Measures to Tackle ‘Illegal Sites’

This week the Government published several documents relating to copyright. Most significantly, the IPO released its response to the Hargreaves Review of Intellectual Property and Growth. The Government seems to have accepted most of the recommendations in principle, including the legalisation of format-shifting, but we will not know until later this year (or next year) whether or not this will lead to a change in the law.

One of the most significant changes (particularly given the recent Newzbin2 ruling) was the widely reported announcement by Vince Cable (of the Department of Business, Innovation and Skills) that plans to block ‘illegal websites’ were being scrapped. Given the many concerns with web-blocking (some of which I have discussed elsewhere) it is unsurprising that this apparent change in policy has been welcomed by many groups. However, this celebration may be premature as the documents themselves paint a different picture.

The Response to the IP Review

The official government response to the IP Review has very little to say on web-blocking other than that, following advice from Ofcom, “site blocking will not be brought forward at this time. ” However, they go on to say that the Government “will do more work on what other measures can be pursued to tackle online copyright infringement.” This seems to be in line with what Vince Cable announced. Ofcom’s report on the practicalities of web-blocking has also been published. Certain sections of this document have been redacted, however, this was done unsuccessfully (demonstrating the futility of using technological measures to restrict access to information online) and the full version is available elsewhere.

The most important point to recognise is that Ofcom was only considering use of sections 17-18 of the Digital Economy Act for web-blocking, and it was this process they concluded was ineffective. Their conclusions include a range of other suggestions for restricting or limiting access to ‘illegal websites’, which are worth a read. This suggests that the picture painted by Vince Cable and BIS may not show the whole story.

DCMS’s View on Web-blocking

The second policy document published in this bundle was the Department of Culture, Media and Sport’s report on how they were proceeding with implementing parts of the Digital Economy Act. This seems to take a rather different approach to the same report provided by Ofcom. They note that the web-blocking proposals in the DEA are “unlikely to be effective because of the slow speed that would be expected from a full court process.” Rather than commenting on the technical impracticalities or ease of circumvention, they have focussed on the argument put forward by some of the copyright lobby groups that going to court to get a blocking order is too slow and costly (as demonstrated by Newzbin2).

This suggests that DCMS may continue their ‘secretive’ negotiations with major ISPs and copyright lobby groups to implement a ‘voluntary’ blocking scheme (along the lines of the IWF’s scheme) which could avoid the problems raised by involving the judiciary (such as the cost, speed, and the need to provide evidence and prove allegations).

In addition to this, DCMS notes that they are already “exploring measures which target the revenue streams of websites dedicated to infringing copyright, such as banning advertising on these sites and withdrawing payment facilities” in conjunction with law enforcement and industry groups (as hinted earlier). Note that this does not seem to involve the courts, and may itself be illegal. They are also looking into ways to get search engines to adjust their search results so that “unlawful sites do not appear higher up in search rankings than legitimate sources of digital content.”

The IPCrime Report

The third major document is the rather worryingly-named IP Crime Strategy report. The report falls into the frequent trap of equating copyright infringement (or even hosting websites) with counterfeiting, importing illegal drugs and patent infringement. It also seems to recommend further integration of private copyright enforcement groups with police forces, suggesting that these companies should provide “[m]arket monitoring, intelligence collection and sharing and more general support like forensics” to law enforcement. This activity raises significant concerns (which will be dealt with at a later date) about private groups representing the alleged victims of ‘IP Crime’ (such as FACT) providing evidence and forensic support to prosecutions – particularly when it is the public convictions that are likely to be of benefit to them, rather than any just result.

The report also comments on issues surrounding third-party liability, where sites such as Ebay may be held liable for the sale of counterfeit or trade-marked goods through their systems (following a recent CJEU ruling in L’Oreal v Ebay C-324/09). The report states that “providers of online services such as marketplaces/ trading platforms, advertising and card payment facilities have a role in tackling IP crime by reducing the ability of criminals to profit from their crimes“, also echoing the comments from DCMS on blocking payment services to sites that may themselves be legal (as with OiNK, TV-Links and FileSoup, all of which were either found to be legal, or not prosecuted).

The seizure of domain names is also referenced, and apparently plans are already under way to copy the widely-criticised spate of seizures by the US’s ICE. The report notes that “the Metropolitan Police’s e-crime Unit are working with Nominet and others to remove infringing sites at the domain name level, while the City of London Police have been engaged with rights holders and card payment companies to disrupt sites run by criminals” – again, questions as to the legality of such actions can be raised. It may be that if the Government itself tried to seize domain names this would be held illegal, but while Nominet is doing so ‘voluntarily’ the protections provided by the courts through Judicial Review or the Human Rights Act can be side-stepped.

The Government’s War on the Web

While the announcement that s17-18 of the DEA will not be used in the near future is a welcome one, in many ways it comes as little surprise. The new powers were supposed to replace the existing powers under s97A of the Copyright, Designs and Patents Act, as it was alleged these were not strong enough – something the Newzbin2 ruling has disproved. Instead it seems that the Government will continue working on other ways of tackling websites copyright lobby groups disapprove of by suspending their payment methods, seizing domain names, asking search engines to ‘bury’ them and forcing ISPs to block them on a ‘voluntary’ basis.

It may be that this becomes a Pyrrhic victory for openness and freedom on the Internet, as the copyright lobby may still get their war on the Internet, but without the transparency and legal protections offered by the court-supervised process in the DEA.

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