High Court orders British ISPs to block "The Pirate Bay"

[HarryT]

Originally Posted by Ninjalawyer

Popular speech, like the websites that you describe above rarely need special protection under the law; unpopular speech, like that contained on The Pirate Bay, is where consideration of free speech is actually necessary.

This is not "speech", whether popular or unpopular. It is criminal activity. There is a rather significant difference. You may not think so, but the courts (very rightly, IMHO) do.

[Keroberos]

Originally Posted by Ninjalawyer

As I said, even if you don't like The Pirate Bay, this sets a worrisome precedent in the UK for site blocking with seemingly little consideration about the harm blocking causes to the public.

Maybe a more apt analogy than petty theft would be the police shutting down a printing press that was printing pro-piracy pamphlets, as well as other material.

Popular speech, like the websites that you describe above rarely need special protection under the law; unpopular speech, like that contained on The Pirate Bay, is where consideration of free speech is actually necessary.

Exactly, Oppressive censorship usually always starts with those that the majority does not like / does not agree with. Once the framework is in place to start blocking / censoring anyone / anything, we need to start worrying about where this is going to ultimately end up.

I know of several independent musicians and filmmakers whose ability to reach out to, and create new fan-bases would be irreparably harmed by the blocking of TPB in the UK. Added to the fact that almost everyone agrees that this will do little to curb piracy, we need to start asking what are the real reasons why they are doing this. Is it really to stop piracy, or is it to stop any method of competition / distribution that doesn't pass through the established industries?

[MovieBird]

Originally Posted by HarryT

This is not "speech", whether popular or unpopular. It is criminal activity. There is a rather significant difference. You may not think so, but the courts (very rightly, IMHO) do.

I realize we're not talking about US courts, but this would fail the O'Brien test in America. While distributing copyright materials may be against the law, I would see the linking as similar to the actual O'Brien case.

On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A sizable crowd, including several agents of the Federal Bureau of Investigation, witnessed the event. Immediately after the burning, members of the crowd began attacking O'Brien and his companions. An FBI agent ushered O'Brien to safety inside the courthouse. After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law. He produced the charred remains of the certificate, which, with his consent, were photographed. For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts. He did not contest the fact that he had burned the certificate. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his anti-war beliefs, as he put it, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position."

[HarryT]

Originally Posted by MovieBird

I realize we're not talking about US courts, but this would fail the O'Brien test in America. While distributing copyright materials may be against the law, I would see the linking as similar to the actual O'Brien case.

There's no "may" about it. It is against the law (unless you have the permission of the copyright holder, of course).

[Ninjalawyer]

Originally Posted by HarryT

This is not "speech", whether popular or unpopular. It is criminal activity. There is a rather significant difference. You may not think so, but the courts (very rightly, IMHO) do.

Well, the case wasn't against The Pirate Bay, it was against the ISPs, so already a possible justice issue as The Pirate Bay is punished without having had the opportunity to defend itself. The block against the website also has the effect of blocking legitimate speech that has nothing to do with copyright infringement (you can see check out the three examples in my previous post if you don't want to take my word for it).

Also, keep in mind that The Pirate Bay didn't actually distribute any copyrighted materials - they linked to it. It's not entirely clear in caselaw in common law countries whether just linking to illegal material is itself illegal. Add to that the fact that The Pirate Bay doesn't even host the torrent tracker now that it has switched to "magnet links". If merely linking to illegal material is itself illegal, I suspect Google and possibly MobileReads may have some issues. If just linking is not illegal, then what is the basis of the ban?

And even where there's criminal activity, that doesn't mean there isn't speech; the two things can and do intersect, so it's less black and white than you might at first think.

I'd be interested in seeing the court documents once they're posted.

Originally Posted by Ninjalawyer

It was a legal civil action, I agree. However, just because it was legal doesn't mean it was just. The UK public is barred from accessing a website and the operators of The Pirate Bay have had their site blocked in the UK even though they could not make any arguments in the court proceedings (since the action wasn't against them). As I said, even if you don't like The Pirate Bay, this sets a worrisome precedent in the UK for site blocking with seemingly little consideration about the harm blocking causes to the public.

Maybe a more apt analogy than petty theft would be the police shutting down a printing press that was printing pro-piracy pamphlets, as well as other material.




Popular speech, like the websites that you describe above rarely need special protection under the law; unpopular speech, like that contained on The Pirate Bay, is where consideration of free speech is actually necessary.

An even more apt analogy would be an organization that provides a printing press set up to print copies of copyrighted material (without obtaining permission of the copyright holder or providing any compensation to same) and invites anyone in the public who wishes to do so to come in a print a copy for themselves for free. The Pirate Bay does not just advocate piracy, it facilitates it and provides the means.

[tubemonkey]

Originally Posted by Ninjalawyer

Well, the case wasn't against The Pirate Bay, it was against the ISPs, so already a possible justice issue as The Pirate Bay is punished without having had the opportunity to defend itself. The block against the website also has the effect of blocking legitimate speech that has nothing to do with copyright infringement (you can see check out the three examples in my previous post if you don't want to take my word for it).

Also, keep in mind that The Pirate Bay didn't actually distribute any copyrighted materials - they linked to it. It's not entirely clear in caselaw in common law countries whether just linking to illegal material is itself illegal. Add to that the fact that The Pirate Bay doesn't even host the torrent tracker now that it has switched to "magnet links". If merely linking to illegal material is itself illegal, I suspect Google and possibly MobileReads may have some issues. If just linking is not illegal, then what is the basis of the ban?

And even where there's criminal activity, that doesn't mean there isn't speech; the two things can and do intersect, so it's less black and white than you might at first think.

I'd be interested in seeing the court documents once they're posted.

This makes sense to me. I'm totally against ISP's being required to block websites. If the website is doing is doing something illegal, go after it. If downloaders are doing something illegal, then go after them. Either way, it's not the ISP's fault for illegal activity. They're a neutral party and forcing them to take action flies in the face of net neutrality.

[Giggleton]

Originally Posted by HarryT

This is not "speech", whether popular or unpopular. It is criminal activity. There is a rather significant difference. You may not think so, but the courts (very rightly, IMHO) do.

When reading is outlawed, only outlaws will read.

[Teknikal]

It's a dangerous precedent in my opinion, once blocking starts they will keep adding more and more sites that do or say something someone somewhere doesn't like, in ten years time the internet could basicly be cable tv with official channels only.

Of course I'm sure by then some seriously big bad Darknets will have sprung up and the Governments won't be able to keep track of them or what goes on at all. There are already a few primitive ones about already where drugs and worse are openly sold safely.

In conclusion I think it'd a bad thing for everyone including governments and publishers because they are going to lose the ability to keep an eye on things and know who is trying to do what.

[CyGuy]

Originally Posted by tubemonkey

This makes sense to me. I'm totally against ISP's being required to block websites. If the website is doing is doing something illegal, go after it. If downloaders are doing something illegal, then go after them. Either way, it's not the ISP's fault for illegal activity. They're a neutral party and forcing them to take action flies in the face of net neutrality.

It certainly is not the ISP's fault nor should they in any way be required to "block" anything. This would be like you talking on your landline to someone and saying stuff you shouldn't and then going after Bell. Seriously, how is it Bell's fault what you say on your phone?

[tompe]

Originally Posted by SteveEisenberg

Your post is clearly speech. The web site of the Swedish Pirate Party, which provides intellectual justification for the likes of the Pirate Bay, is speech.

The Pirate Bay is piracy.

Well, no. That seems to me like saying that publishing a book about lock picking is burglary.

[tompe]

Originally Posted by HarryT

This is not "speech", whether popular or unpopular. It is criminal activity. There is a rather significant difference. You may not think so, but the courts (very rightly, IMHO) do.

So having the torrent to the encrypted Wikileak file is criminal activity?

And why do you think the current pirate bay is engaged in criminal activity? It has not been shown that it is criminal activity in Sweden. And if it clashes with other countries laws it is not called criminal activity since each country have there own definitions about what is criminal.

[tompe]

Originally Posted by HarryT

There's no "may" about it. It is against the law (unless you have the permission of the copyright holder, of course).

No, it is not against the law always to make available pointers to copyrighted material.

[tompe]

Originally Posted by Hamlet53

An even more apt analogy would be an organization that provides a printing press set up to print copies of copyrighted material (without obtaining permission of the copyright holder or providing any compensation to same) and invites anyone in the public who wishes to do so to come in a print a copy for themselves for free. The Pirate Bay does not just advocate piracy, it facilitates it and provides the means.

How does it provide the means? I went to a torrent on Pirate Bay and clicked on the magnetic link. My browser just said that it did not understand the link.

Saying it provides the mean is like saying that a phone book provides the mean for burglary.

[HarryT]

Originally Posted by tompe

And why do you think the current pirate bay is engaged in criminal activity?

Because the High Court tells me so, and they know a lot more about English law than I do.