This morning, the High Court has ruled that BT must block Newzbin2, a website which it claims assists in copyright infringement, following a request by the Motion Picture Association. To many, this decision may seem obvious as it seeks to protect intellectual property and the suggestion is that the site in question was set up mainly for this purpose.

Large parts of the ISP community have made great efforts to stop distribution of child abuse images on the Internet, and thanks to its work there are very few cases of such images being hosted in the UK. However, as the arm of UK legislation doesn’t reach into other countries, such content is still available in other countries. To tackle this, many ISPs operate a URL filtering system which seeks to protect accidental access to such images. This usually works by filtering all traffic to IP addresses for URLs on the list via a proxy, which then carried out more specific checks on the URL, or at least that’s what any responsible ISP implementing this system would do.¬†BT operates such a service under the name ‘cleanfeed’ and was one of the early pioneers in this area.

It is a criminal offence to view images of child abuse, however the intellectual property community is now keen to use this technology designed to stop civil wrongs (copyright infringement). You can debate the merits and flaws of whether this is right or wrong in policy, but there is a much more pressing issue.

The current systems in use are intended to prevent accidental access to content which would be illegal to view. It is certainly not illegal to ‘view’ the Newzbin2 site, and individuals looking to visit the site are doing so intentionally in my view are doing so intentionally, not by accident. The system of URL filtering works to protect accidental access, but as many people will know, getting around filters is trivial, such as by use of proxies, VPNs, using multiple host names to access the content, using other protocols, etc.

“In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes.

It knows that the users of Newzbin2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin2.”

Justice Arnold

At present, the filtering systems are largely ignored by most users, because there is an almost universal view that distribution of child abuse images is unacceptable. There have been a few discussions relating to flaws in some implementations by researchers, but largely the system has been allowed to operate as intended.

There is a significant danger, that when this voluntary system loses the support of larger numbers of users, the techniques used to circumvent it will become more widely known, and the effectiveness of the system will be much reduced, as individuals work around restrictions to access content which courts may order they shouldn’t have access to.

By taking action to protect its users accidentally committing one of the most serious of crimes, BT has now been required to enforce a court order preventing access to a website for what is essentially an entirely private matter. I can understand MPA’s motives, and if we assume that intellectual property should be protected, why they have sought this action, but I am very worried about the negative externalities of what may happen, as this could be more detrimental to society as a whole, as now we will see every civil litigant seeking to use this as a precedent.

Sebastien Lahtinen

Tags: , , , , , , ,

4 Responses

  1. Mark on 29 Jul 2011

    >> now we will see every civil litigant seeking to use this as a precedent.

    And the courts will decide accordingly.

    I don’t see the problem.

  2. seb on 30 Jul 2011

    I do welcome due process being followed but there are unfortunate side effects of a system designed to stop access to images of child abuse being used for civil wrongs. If this approach continues, the systems won’t be able to cope without significant investment by ISPs (which in turn gets passed onto the consumer) and more people will find ways around the system. Indirectly, it may discourage ISPs from adopting any filtering systems as they may fear they would end up having to block this type of content.

    I do not in any way condone copyright infringement and I have no issues with individuals engaging in such activity being hauled before a court (provided they are not simply there because they are not technical and did not have the means to protect their systems from being abused). My concern is about the way in which a system designed to stop one kind of abuse has been required by a court to be used for something completely different.

    There is a wider issue here in relation to how can you police national laws on a global Internet. This question is a very difficult one, and I am concerned the answer may be seen to be filtering as that has all sorts of unintended consequences.

  3. PhilT on 02 Aug 2011

    Cleanfeed and the like were the dangerous precedent, because they came first. This judgment merely rides on the back of it and isn’t therefore the precedent.

    Countries that are strong on free speech like Denmark would presumably not be able to justify Cleanfeed, with for example the Danish Pedophile Association having a web presence.

    It wasn’t possible to have a sensible discussion about the ramifications of child abuse filtering because of the toxicity of the topic, but the rights and wrongs of filtering and free speech are equally applicable.

    Paediatricians beware !

Leave your comment