The internet file-sharing war is hotting up. On one side are the global media giants who own the copyright in so many films and other well-known media content. On the other side are pirate peer-to-peer (‘P2P’) file-sharing websites, run by individuals who prefer not to give their real names.
The media companies celebrated an important victory on 28 July 2011. England’s Court of Appeal decided that it could order British Telecom to use site-blocking software to prevent its subscribers from accessing the Newzbin2 website. BT is the UK’s largest internet service provider (‘ISP’), with over five million subscribers. Newzbin2 is a website which allows its members to search the internet to find pirate copies of media content. Newzbin2 had apparently located over 30,000 films and nearly 100,000 TV programmes. The case was brought on behalf of 20th Century Fox, Disney and four other household name companies.
You may not use P2P sharing sites – so why does this matter to you? The problem is that copyright is everywhere. You breach copyright every time you make a digital copy of media content without the owner's consent – including downloading it to your computer or iPod, uploading to YouTube or social media like Facebook, and even making copies from your own CDs to your MP3 player (known as ‘format-shifting’).
The media companies say it matters. They lose massive amounts of income from pirate copies and they call this ‘revenue theft’. They say they need the huge profits generated by successful blockbusters so they can invest in other content. So, they say, less income means less content for everyone to buy.
The good news for you and me is that they are concentrating their efforts on the large scale abusers, particularly the file-sharing websites. At the moment, their main attention is focused on film (although games are also big news).
The media companies won their first battle against Newzbin in 2010 when they obtained a court order closing down the original site – but Newzbin2 was then set up in the Seychelles, where English court orders are not easily enforced.
July’s decision shows that the English courts can make orders under existing copyright law requiring ISPs to use their technology to block access to P2P sites. This is good news for the UK government. The controversial Digital Economy Act (‘DEA’), rushed through Parliament in 2010 in the last days of the Labour government, included powers allowing the government to make orders requiring ISPs to block access to offending websites. These powers were being challenged in the courts, and it took the government only a few days after the Newzbin2 judgment to announce that it was not going to use them. Other provisions in the DEA, under which ISPs can be required to suspend the accounts of subscribers who repeatedly download illegal content, are unaffected.
What will the judgment mean? According to Ian de Freitas, an intellectual property partner at London solicitors Berwin Leighton Paisner, the threat of court action will be enough. ISPs are likely to block access to P2P sites at the request of media companies who can provide enough evidence that the sites are infringing copyright1. BT actually welcomed the Newzbin2 judgment, saying that it provided useful clarity about exactly what media companies had to prove before ISPs could be required to block access.
But smaller copyright owners are already complaining that they don’t have the resources to threaten court action to force ISPs to block the sites – they would have preferred the government to do it for them, using the DEA.
There are wider issues too. Opponents of internet regulation argue that site-blocking offends against freedom of speech. The Court of Appeal considered this in the Newzbin2 case. It said that the right to free speech under the Human Rights Act was relevant but was outweighed by the importance of protecting copyright. Free speech activists are worried that technology originally designed for blocking access to child pornography is now to be used to protect business interests.
But those who object to the judgment should perhaps remember that copyright is a well-entrenched principle in legal systems throughout the world. All that the decision is really doing is providing a new tool to enforce existing legal rights. Simon Baggs, partner and head of rights protection at specialist solicitors’ firm Wiggin (who acted for the media companies in Newzbin2) says that, ‘the decision is vital for the content sector as it continues in its efforts to create a sustainable and safe environment for the distribution of legal content online…UK content owners have just established a powerful weapon to assist them in protecting their copyrights’.
Although BT welcomed the clarity provided by Newzbin2, many ISPs are sceptical about whether site-blocking will actually work. Newzbin2 itself, from the safety of the Seychelles, has already threatened to sabotage BT’s site-blocking technology. Others say that site-blocking also risks blocking legitimate content and slowing down the internet.
Another view is that the argument is all about protecting the revenues of the media giants. Consumer advocates argue that P2P sites serve consumers in the fight against ‘rip-off prices’. Independent operators, particularly in the music industry, see high content prices as a barrier preventing them from reaching a wider audience.
So the battle lines are drawn up. The UK government is keen not to be caught in the cross-fire and so it has used the judgment as an opportunity to pull out of the site-blocking debate. Good news for users is that it has also now recognised that the law prohibiting format-shifting is widely flouted and discredited, and so it has announced plans for an exemption.
Is there room for compromise? That may depend on whether the media companies might reduce their prices. If they did that, would enough users be ready to pay them? If not then consumers will continue to use the pirate sites, and they in turn will keep finding ways around the block. Be prepared for a long fight!
Nick Hancock, Lecturer, The College of Law