[Ninjalawyer]

Originally Posted by ProfCrash

In the US they have random road blocks every day that are there to look for people who are driving under the influence of alcohol or drugs. There are cities where streets sometimes have checkpoints to only allow residence in in order to decrease the likelihood of drive by shootings. So there are times that public strees and roads are blocked in the name of catching or stopping crime.

Your analogy would be more apt if the police suddenly decided that no one could ever drive on a particular road because someone with a house on that road may or may not have engaged in illegal activities.

I hate to quote something at such length, but one of the commenters on a story at Techdirt (here) posted the finest summary of the case that I've yet seen:

The first case on site-blocking, (using the vaguely-worded s97A, CDPA) was when the Hollywood bunch sued Newzbin directly (Newzbin was being run by a UK-registered company) - the trial (in March 2010) went spectacularly badly for Newzbin (the judge seemed rather unconvinced by their witnesses, and their initial lawyer had to drop out mid-trial and has since been disbarred for his conduct), but while the judge ruled the site was involved in copyright infringement, and ordered a blocking injunction, he limited it only to material covered by the claimant's copyrights (see the final paragraph of the judgment) for the reasons often brought up against broad site-blocking. This meant that Hollywood would have had to notify Newzbin of every file the wanted blocked. Of course, Newzbin then collapsed under the legal costs and was reborn as Newzbin2.

Following this failure, the Studios came back 12 months later (July 2011) and brought a second claim, under the same law, for the same order, but this time against BT (the UK's largest ISP), not the site. Here, a different judge decided to allow the broad blocking order, the main difference being that in this case the claim was supported by a range of other copyright lobbying groups (see paras 179-186 of the judgment). However, despite there being more groups on the claimant side, BT was the only defendant, and obviously has a different set of interests and priorities than Newzbin2.

Interestingly, there was a follow-up judgment (October 2011) to determine the nature of the ruling, and for that (following the publicity of the first ruling) other ISPs, and even a BT subscriber, made submissions to the court on the main point, but they were dismissed as being too late and irrelevant/untrustworthy (see paras 2-4 of the judgment). The blocking order was granted against BT, along with a massive costs order, which has scared off the ISPs from fighting these cases. In December and February the blocking order was expanded to cover Sky and TalkTalk respectively - neither opposed the orders.

Then we come on to January 2012, when the BPI went after TPB; they had asked the ISPs to block it, but they had refused without a court order as such blocking could count as illegal interception of communications data. So they sued the 6 major ISPs (under the cover of 9 record labels). However, the initial judge refused to grant the order noting that, unlike with Newzbin, TPB had never been ruled illegal in England and Wales, so the case was referred to trial on this issue. In quite a concise, well-worded and well-reasoned judgment, Arnold J came to the conclusion that the users and operators of TPB were infringing copyright. That finding was then used to grant this week's blocking order. ... So in theory, TPB was put on trial.

In practice, of course, that ruling was pretty meaningless. The ISPs didn't oppose it (due to lack of interest, and not wishing to be done for the BPI's legal costs). While others might have been able to make submissions (although I'm not sure if anyone in the UK had the means and will to do so), they would have had to have intervened at some point between the 20 January referral order and the hearing on 9th February. Which means they would have had to have found out about the case, found lawyers, prepared their arguments and gathered evidence in less than three weeks. The biggest problem there being the first part; I try to keep an eye on these sorts of legal developments, but didn't hear anything about this case until the BPI was issuing press releases about it after the ruling - the case name is random enough to make it hard to search for, and court hearings are only published a day in advance in the UK. So much for open justice.

The result of this is that all the arguments and evidence submitted were by the BPI. So (as in the Newzbin2 case) no cross-examination, no challenging of the basic premises, no defences discussed (such as freedom of expression - which is respected over here, thank-you-very-much - or proportionality). This is particularly important as in the Newzbin2 case, some of the evidence which is quoted in the judgment is demonstrably false, so who knows what lies were presented in their "considerable volume of evidence".

The judge did discuss the lack of involvement from operators or users of TPB in paras 9-15). While noting that the users would be "adversely affected" by any order, he dismissed the problem on the grounds that there was no legal requirement that they be present (as the case was against the ISPs), the operators would be hard to find and unlikely to intervene (based on similar attempts in Swedish cases), and the users would be hard and costly to identify.

The main lesson to learn from this is what various groups have been arguing for some time; judicial oversight alone is not enough in an adversarial legal system. We saw this problem with issuing of NPOs to identify file-sharers (the ACS:Law business etc.), we saw this in the US with the seizure of domain names, and we will see it with payment blocking orders when they appear in the UK later this year. An adversarial legal system does not work without an adversary. If the court can't find an interested party, it should find some sort of public defender.

That said, there is some good news in this area; when GoldenEye sort an order requiring an ISP to hand over details of alleged file-sharers, while the ISP was happy to comply, the initial judge (technically a master, not a judge) realised that this was a controversial issue (due to all the complaints about him rubber-stamping these orders in the past) referred it to a full judge (the same as in the above cases) and he then personally invited Consumer Focus to intervene, and they did so. Arnold J was no doubt aware of their interests in these issues, having talked with some of their people (iirc). It's a pity he didn't think of doing something similar in The Pirate Bay case...

Emphasis mine