Illegal Sites and Web-blocking

In the last week there have been three stories in the news concerning copyright infringement and “illegal websites”. In each case, a group with an interest in enforcing copyright has called for or announced measures against such websites, but this raises an important question of what makes a website illegal. In terms of copyright infringement this is a very tricky question as there is no easy way to tell whether content or a service is unlawful.

The Plans

According to the BBC, the PRS – which acts as a collecting society for those who own the copyright in songs, such as songwriters, composers and publishers – has called for search engines to implement a “traffic light” system for tagging websites. The system would work by adding a green flag to websites offering legal music downloads and red flags to those offering music unlawfully. The idea behind this is that individuals will be directed away from illegal sites to the legal ones – although it relies both on people using complicit search engines to find music, and caring whether their source of music is lawful or not.

PayPal will be working with the IFPI to target "illegal websites"

PayPal will be working with the IFPI to target "illegal websites"

Secondly, the IFPI – a London-based organisation which represents some of the world’s recorded music companies – have announced that PayPal will be working with them and City of London Police (and their Economic Crime Directorate) by blocking payments to a list of “illegal websites” provided by the IFPI. PayPal will join MasterCard and Visa who are already blocking 24 websites with another 38 in the pipe-line. This is despite the fact that both MasterCard and Visa were threatened with legal action over taking similar action against WikiLeaks even though the website has not been found illegal.

Finally, the ORG has obtained (through a freedom of information request) minutes from a recent “secret” meeting between various copyright owner groups and ISPs, and DCMS discussing proposals for a national web-blocking system. This confirmed that the “Rightsholder Group” – including the Publishers’ Association, BPI, MPA and Premier League – were proposing to implement a “voluntary” system by which ISPs would not resist legal action forcing them to block websites, identified by the copyright groups that are “substantially focused upon infringement of copyright.” These meetings were only made public after a tip off, and only a single consumer representative was present (the minimum required by law).

Each of these plans, to some degree, contain a significant flaw; they rely on an interest group identifying an “illegal website.”

What Makes a Site Illegal

Under copyright law, copyright is infringed by communicating a copyrighted work to the public without a licence (s20, CDPA) which would seem to include making the work available to others (via a website or P2P network). In addition, the High Court has the power (under s97A, CDPA) to grant an injunction against a service provider who has “actual knowledge” that someone using their service is doing so to infringe copyright.

The question then becomes whether or not a site involved in distributing works such as music, films or books has some form of defence to copyright infringement. Unfortunately, this can be practically impossible to determine. There are three main ways for a site to be operating legally:

  • If the works are in the public domain, no copyright claim can be made. This varies with the type of work and the jurisdiction.
  • A service will be legal if there is some statutory scheme authorising it, such as a compulsory licensing scheme. These exist in various countries and allow a service to offer copyrighted works provided they pay the right amounts to the relevant authorities.
  • Thirdly, a service will be legal if it has suitable licences to communicate the work to the public. Most “legal” sites (such as iTunes and Amazon) operate by negotiating licence agreements with all the relevant copyright owners (or collecting societies).

While this sounds fairly straightforward in theory, in practice, determining whether one or more of these three applies (either as an individual consumer or an organisation with the resources of the IFPI etc.) can be impossible.

The ICE have seized the domain names of several "illegal websites"

The ICE have seized the domain names of several "illegal websites"

With regard to the public domain, works in the public domain in one country (say the US) might not be in another (say the UK). This was made clear in April 2011 when the UK Music Publishers Association managed to have the IMSLP’s domain name confiscated, based on a copyright claim over a work in the public domain in Canada and the US (where the website operated) but still in copyright in the UK. Fortunately this all worked out peacefully but under any of the above proposals, a mistake over jurisdiction could have serious consequences.

Similarly, in some jurisdictions merely linking to content, rather than hosting it, is not covered by copyright (as in the UK, aside from the issue with s97A) however this has not prevented some groups from taking “legal” action against sites doing so in other jurisdictions, such as when the US’s ICE seized the domain name of a Spanish site that had been declared legal by Spanish courts.

Even a licence agreement does not necessarily prove a site is legal. Any licence agreement needs verifying, and only an author who has not sold or transferred any relevant parts of the copyright, or allowed anyone to give out licences will know whether or not a site has no licence. This is why in any claim for copyright infringement all copyright owners and exclusive licensees must be involved (s102, CDPA – one of the many holes in the ACS:Law/MediaCAT litigation).

Even if a licence agreement exists, this may not prove legality. Both Amazon and iTunes have allegedly distributed content unlawfully through their services under the assumption of a licence (although both took action when they became aware of the illegality, and were not taken to court). In one of the earliest major copyright cases (Donaldson v Beckett 1774) the respondents had bought the copyright in certain poems at an auction and tried to enforce them, but the House of Lords pointed out that the works had been written over 45 years earlier, so were out of copyright. Even though Beckett could prove a chain of ownership back to the original copyright, it had already expired.

The only way to verify a licence is to track down the original copyright owner

and work through all licence agreements (including blanket ones such as

Works with a Creative Commons licence (such as this post) may not need further licensing. CC-By, Creative Commons

Works with a Creative Commons licence may not need further licensing. CC-By, Creative Commons

Creative Commons licences) to see if there is a link to the website. This is likely to be impossible for the public and very difficult for anyone else.

In any event, given the excessive scope and duration of copyright, it is likely that many websites contain infringing material (through including pictures, quotes etc.) and it is hardly an exaggeration to suggest that rigorously enforcing copyright would break significant parts of the Internet. Websites such as the Internet Archive (which was declared a “pirate site” earlier this year) and Wikipedia host vast quantities of material that infringe copyright in the UK, and could easily fall victim to any of the above processes.

How Website Filtering Would Work

The question then becomes how the above groups will compile lists of “illegal sites”. The most obvious way would be to list those websites that host or link to content, some of which is covered by their members, and which do not pay them.

With the PRS scheme, this might have some chance of success, as the PRS will have lists of works covered by their members. However, as noted above, merely being in the position of giving out licences is not sufficient to determine that the site is not licensed (as there may be others who can give licences). There are also issues of defamation if search engines or the PRS list websites as breaking the law when they do not.

With the copyright owner groups, it will be even harder to determine whether or not sites have appropriate licences. As such, web-blocking is likely to be used against websites that cannot be shut using legal means – such as FileSoup or TVLinks, which were shut down, but later declared legal (or, at least, had all charges against their operators dropped). It is entirely possible that the threat of being put on a blocklist may be enough to force websites to pay up for extra licences, even if the are already legal.

Where Do We Go?

In summary, these attempts to deal with “illegal websites” all suffer from the major flaw of requiring that someone identify whether or not a website is legal and only a Court, with all relevant parties present, is in a position to do this. This makes any process time-consuming and costly (for all parties), or unfair and unjust. Even with web-blocking processes there is no guarantee that web-blocking will reduce copyright infringement, and even then, that it will increase revenues to copyright owners, or increase creativity.

For now, though, the success of any of the above schemes would seem to depend on the result in the Newzbin2 case (Twentieth Century Fox Film Corporation & 5 Ors v British Telecommunications Plc), currently before the High Court, in which the MPA asked the Court to force BT to add Newzbin to their blocklist (under s97A).

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