File sharing – the UK courts discover their power

2011 may prove to be a key year for progress in the UK by the media companies in their ongoing battles against file sharing.

The year started badly, with the MediaCAT debacle throwing up both legal setbacks and adverse publicity. But two developments this summer involving BT have shifted the balance back towards rights holders. The first was BT’s failed challenge to the Digital Economy Act, and the second was the Newzbin2 case, in which BT were ordered to block access to a site that provided links to pirated films.

One of the aims of the Digital Economy Act, passed in the last days of the Labour Government, was to make it easier for rights holders to obtain effective relief, without necessarily having to prove the precise identity of individual file sharers – notoriously difficult when several members of a household connect to a wireless router, or if third may be “piggy-backing” onto it. A proposed code of conduct to be set up under the Act would provide that if IP addresses were shown to be used for infringing activity, a warning letter would be sent. Emphasis is placed in the first instance on education, including providing advice on securing internet connections. However if infringement continued to take place, the ISP could be required to terminate the connection : an approach popularly referred to as “three strikes and you’re out”, though the precise threshold for disconnection is not yet set.

BT and TalkTalk challenged the Act’s legality in the courts, raising a host of objections including claims that its provisions were contrary to European law providing for immunity for mere conduits of information, and were disproportionate to the objects to be achieved. This challenge failed , and it seems that the DEA was at last to provide some effective remedy for file sharing.

But the most cheering news for rights holders came in the Newzbin2 case – Twentieth Century Fox v BT – in which the media rights owners discovered at last that they had had an effective legal remedy all along, which had lain dormant on the statute book since 2003. In that case, a number of media companies brought action against BT requiring them to block access to an internet site known as Newzbin2 which was actively promoting piracy of films. The application was based on a legal provision enabling injunctions to be granted against service providers who knew of others using their services to infringe copyright. BT again objected on a variety of grounds, including that it was a “mere conduit” and should not be required to monitor traffic (a surprising submission given its previous dabbling with the “Phorm” advertising service). The court rejected all of BT’s objections and ordered it to take measures to block access to the Newzbin2 website.

That injunction only binds one particular ISP, namely BT, but now that the law has been clarified and the legitimacy of such an order has been confirmed, it seems inevitable that rights holders will be able to obtain similar orders against other ISPs, and in respect of other websites promoting piracy.

The great advantage of an order blocking access to a website is of course that it does not have to be directed against numerous individual file sharers, but can instead cut off infringement at source. To be more precise, it can cut off one of its sources: the internet is hydra-like in that new sites can rapidly spring up to replace those that cease operating. But there was evidence indicating that such a blocking order would at least significantly reduce traffic, and the order sought by the Claimants in Newzbin2 enabled them to notify new IP addresses to BT and require them to block those IP addresses, without the need to keep returning to court.

Very shortly after the Newzbin2 judgement was handed down an announcement came that Government do not intend to implement the Digital Economy Act measures that allow for a blocking of websites. Rights-holders are to be left to pursue their own remedies in the courts. But the relief available there may be quicker and more effective anyway; the mechanisms in the DEA were cumbersome. Meanwhile, the provisions addressed to individual users who participate in serial piracy, including (ultimately) disconnection, are still to be implemented: their roll-out is presently expected to start in the second half of 2012. The Culture Secretary, Jeremy Hunt, has also recently called for further measures including the isolation of infringing websites from ISPs, advertisers, search engines, and credit card companies.

Making an act illegal is not necessarily effective; making it impossible as well is clearly much more so. (That is why we lock our doors when we leave home, rather than merely rely on the law against burglary). The Newzbin2 case has shown that the courts can and will order the blocking of sites hosting infringing content. This may be a powerful remedy, though it remains to be seen whether owners of these sites will be able to regroup and continue much as before. Even if not 100% effective, making access to infringing copies more difficult to the casual downloader is surely progress.

Guy Burkill QC of Three New Square specialises in telecoms-related and electronics patents.