In a move that will certainly impose greater monitoring obligations on ISPs, the High Court has recently ordered five ISPs (Sky, Everything Everywhere, TalkTalk, O2 and Virgin Media) to prevent its users from accessing the Swedish file-sharing site The Pirate Bay by implementing sufficient website access blocks. The claimants in the case were record companies claiming on their own behalf and on behalf of the British Recording Music Industry Ltd (BPI) and Phonographic Performance Ltd (PPL).
The Pirate Bay provides, in the main, links to pirated e-books, music and video for users to download for free, and has been the scourge of the online world for quite some time now. The order follows a ruling in February, where the High Court held that the site had violated copyright regulations and that the users who had accounts with the ISPs had infringed the claimants’ copyright by copying the sound recordings on a large scale. The ruling paved the way for the claimants to obtain the necessary blocking orders against the ISPs which have now been granted.
The five ISPs have each negotiated the terms of the injunctions as each ISP will need to use different technical means of blocking. BT, a defendant in the proceedings, was excluded from the scope of the judgment and has asked for a further six weeks before considering its response to the order.
There is certainly consistency in the court’s approach following the Newzbin decision (https://www.fladgate.com/takedown) and rights holders may now be encouraged to make further applications for website blocking orders. The ISPs can only do so much and any blocking measures that they take will be only temporary in nature as infringing websites, and users who want to download the infringing content, will quickly find ways to work around the blocks. The ISPs, who would have to bear the economic brunt of these blocking orders, have called for an increased emphasis on changing consumer behaviour and for commercially viable legal alternatives (for example, Spotify) to be put in place.
The pirates will ultimately always find ways to get round the blocks and, perhaps, money should instead be diverted to developing sufficient encryption software to make it harder for digital files to be shared. This is the treasure chest that needs to be guarded.