Newzbin: Internet filtering and file-sharing

It has been a very interesting week for UK copyright, with some landmark decisions in Lucasfilm v Ainsworth and Newspaper Licensing Agency v Meltwater. However, everyone seems to be talking about Newzbin. In the case of Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981, the High Court of England and Wales has instated a court-mandated system of Internet filtering against Newzbin, a popular copyright infringement site. Several Holywood film studios sought to obtain an order to get British Telecommunications (BT) to filter content from Newzbin following a successful copyright infringement suit against the site. The studios sought this order as they argue that it is the only way in which they will be able to implement the initial ruling. The High Court agreed with the studios, and BT will have to technically block access from its customers to Newzbin website. Kitchin J ruled that he will be accepting the suggested order from the studios, which reads like this:

“1. The Respondent shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:
(i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.
(ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.
2. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.
3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses).”

Much has been said already with regards to the ruling so there is really little for me to add, I highly recommend panGloss‘ and Richard Clayton’s blog posts on the subject.

However, I wanted to make a small comment about the troubling nature of the ruling from a wider regulatory standpoint. The scope of the decision initially is narrow, its purpose is to implement injunctive relief against copyright infringement. But in doing so, the High Court has produced a ruling that has wide implications, as it begins to enter into legislative territory. Internet filtering is a restrictive practice that borders on censorship, so there should be a legitimate question of whether the judiciary should have the power to impose this restriction without a clear legislative mandate.

Similarly, the efficiency of such an action should be part of any consideration made with respect to blocking and filtering. If the objective of the plaintiffs is to block access from UK customers to a specific infringing site, having this judicial order is not going to help, there are several ways in which this can be achieved easily. The movie studios must know this, but they also must realise that this strategy is ultimately futile. Even if Newzbin was to disappear overnight, there are dozens of services waiting to take over, so the copyright owners would have to sue each one to then obtain similar orders.

To me there is something else at work here. It seems to me that the target here is not Nezbin, the real target are the Internet Service Providers. The real objective of both the initial suit and the subsequent order is not really to send a message to other sites, but to UK ISPs. The Holy Grail of the industry is to have an ISP-level filtering or blocking against copyright infringers, and this ruling brings it closer to fruition. In the future, content owners will go to ISPs with this ruling in hand, and tell them “filter X site, or have a court order it for you”.

Kitchin J has given the industry leverage, it will be interesting to see how they use it in the next few months.