Monday, 1 August 2011
Late last week Justice Arnold in the UK High Court issued his judgment in Twentieth Century Fox v BT  EWHC 1981 – ordering BT to block access to a website, Newzbin2 (www.newzbin.com), that was held in an earlier case to be infringing copyright on a large scale. Rick Shera and Lilian Edwards already have some interesting comments up, but I thought I’d add my 2c worth.
The decision and Australian law
On a purely legal level, the decision has limited direct relevance for Australia. Much of the decision is concerned with interpreting EU Directives and the European Convention on Human Rights. The availability of an injunction to require BT to block a website is based on a specific provision in UK law, s 97A of the UK Copyright, Designs and Patents Act 1988, that allows for injunctions against intermediaries, even where the intermediary itself is not an infringer. There is no equivalent in Australian law (s97A comes from EU Directives). Although similar provisions to s 97A were to be found in early drafts of the Anti-Counterfeiting Trade Agreement, for the most part, references to intermediaries were removed from the final ACTA text. Thus even if Australia signs up to the ACTA, we would not expect s 97A to make its way into Australian law that way.
Nevertheless, Australian law does contain a provision to allow for website blocking. Under Australia’s ISP Safe Harbours, where an ISP relies on the protection of the Safe Harbours against an allegation of copyright infringement (Part V Div 2AA), the remedies that can be granted against the ISP are limited to two specific kinds of remedies. One of those remedies is:
an order requiring the carriage service provider to take reasonable steps to disable access to an online location outside Australia (s116AG(3)(a)).
Under Australian law, in making such an order, the court is required to take into account a series of factors: the harm being caused to the copyright owner; the burden that such an order would place on the ISP; the technical feasibility and effectiveness of such an order, and the availability of other, less burdensome but still effective orders (s116AG(5)).
Now, s 116AG is not some standalone remedy like s 97A in the UK; its relevance depends, first, on the copyright owner showing that the ISP is infringing or authorising infringement. To date, ISPs have not been held liable for authorising infringement, but in the Roadshow v iiNet decision, the Full Federal Court seems to have made it clear that an ISP could be liable for authorising infringement, if given ‘unequivocal and cogent evidence of the alleged primary acts of infringement’ (Emmett J at ) (subject to any different view the High Court might have, if it grants special leave to appeal).
Once infringement by the intermediary itself is shown, (no small task of course) I imagine that an Australian court could come out with quite a similar view to that of Arnold J in 20th Century Fox v BT about the appropriateness of a website blocking order.
In saying that, I am a very long way from saying that we are going to end up with multiple orders blocking Australians’ access to copyright-infringing websites. It’s worth remembering that one of the reasons the movie studios could readily seek a blocking order in this case was that Newzbin itself had been held to be infringing copyright on a grand scale in an earlier (2010) decision of Justice Kitchin (20th Century Fox v Newzbin  EWHC 608).
A copyright owner seeking an order like this would also need to convince the court that the blocking order was not too burdensome. In the UK Newzbin2 decision, this argument depended on the filtering BT was already doing. This brings me to my next point.
Censorship becomes Copyright Enforcement
Another point of interest is that the decision involves the extension to copyright enforcement of a technical system initially implemented by BT to address child porn. One of the reasons Justice Arnold gave for finding that an injunction requiring website blocking was proportional (and not too costly for BT) was because BT was already filtering for child porn sites via its ‘Cleanfeed’ system.
This is highly relevant given the Australian government’s policy in favour of mandatory ISP filtering, and recent moves by Telstra and Optus to implement voluntary child porn filters. The IIA has been arguing that such moves are not so much censorship as cooperation with law enforcement concerning materials it is illegal to possess. The problem with that kind of argument is that there are so very many ways that Australian law makes information illegal. Not just child porn, but copyright infringement, or material that breaches anti-terrorism laws. There has always been a background fear that once filters are introduced for internet service, they invite extension, or ‘mission creep‘. Rarely, however, do you see such a clear example.
The discussion of injunction scope
Another aspect of interest in the case is the discussion of injunction scope. This issue – exactly how broad can or should an injunction be? – is all too rarely discussed in detail by judges, particularly in Australia, where courts will tend to make an order at the end of their judgment asking the parties to bring in proposed ‘short minutes of order’ – thus relegating detailed discussion of the scope of the injunction to a subsequent directions hearing with reasoning not included in the judgment proper.
By contrast, this case involves quite a decision of injunction scope. The order requested in the application was breathtakingly broad – I’m not surprised BT was concerned:
‘The Defendant shall prevent its services being used by users and operators of the website known as NEWZBIN and NEWZBIN2 to infringe copyright.’
A revised version of the injunction provided for in the judgment reads as follows:
1. The Respondent [BT] 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).”
This order, the court ruled, was narrowly tailored and, importantly, made provision for ongoing revision in light of changed circumstances. Injunction scope is something that needs a bit more thought, I think. But here is not the place.
Other bits and pieces
There are some other interesting things going on in the judgment. The discussion of ‘knowledge’, and what counts as ‘actual knowledge’ of infringement sufficient to warrant an injunction, is interesting, and forms something of a contrast with the discussion of knowledge and ‘red flags’ in the YouTube/Viacom decision. The court grapples with the question that is so taxing in all these online cases: whether ‘actual knowledge’ of infringement means actual knowledge of particular identified infringements, or actual knowledge of general ‘infringing activity’. In this case, in the UK legislation, the court decides that general knowledge of infringing activity is enough – in the process demonstrating the high importance of statutory drafting.
The decision also raises an interesting question about the need for the Digital Economy Act (UK) provisions on website blocking: as Pangloss notes, the reason for the DEA provisions was uncertainty about s 97A – with a decision now on s 97A, is there any need for the DEA provisions?
But enough. There’s plenty more to ponder. Those are just some initial thoughts.
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