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

[elcreative]

Originally Posted by Keroberos

No, it exists to allow its users to link to files they want to share, something which has apparently been deemed legal in their country of operation. If their users are linking infringing files is it TPB's responsibility or is it the users? As I linked to earlier, Viacom is still convinced that YouTube is dedicated to infringement, I would hate to see how that case would have gone if YouTube was not allowed to state their case, and Dajaz1.com's domain was seized and held for over a year with no court hearing at all at the behest of the RIAA. This is why cases like these need to be decided in a true adversarial court hearing where both sides get to have their say.

I gathered that its legality wasn't exactly established even there as the owners have declined to defend anything by scattering around the world to avoid legal actions... not being finally found illegal doesn't mean legal, just means decision pending...

[murraypaul]

Originally Posted by Keroberos

No, it exists to allow its users to link to files they want to share, something which has apparently been deemed legal in their country of operation. If their users are linking infringing files is it TPB's responsibility or is it the users?

Both. TPB have the ability to remove infringing files, but refuse to do so.
They actively encourage users to upload them.
The site is designed to facilitate infringement.
TPB are guilty (as found by the judge) of authorising the users' infringements.

[murraypaul]

The portion on the judgement relating to this:

Authorisation

The law with regard to authorisation was considered by Kitchin J in 20C Fox v Newzbin at [85]-[95]. At [89] he cited a passage from the speech of Lord Templeman in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013 at 1053-1055 in which Lord Templeman approved the definition of "to authorise" given by Atkin LJ in Monckton v Pathe Freres Pathephone Ltd [1914] 1 KB 395 at 499, namely "to grant or purport to grant to a third person the right to do the act complained of". Kitchin J continued at [90]:

He went on at [98]-[102] to conclude on the fact of that case that Newzbin Ltd had indeed authorised infringements of the claimants' copyrights by its premium members.

I shall consider each of the factors identified by Kitchin J in turn.
The nature of the relationship. TPB provides a sophisticated and user-friendly environment in which its users are able to search for and locate content. John Hodge, BPI's Head of Internet Investigations, describes in his witness statement how the website is organised and the functions that are available to users. As he explains:

i) TPB indexes and arranges torrent files so that users can choose between various different search facilities to assist them in browsing for content to download or in locating specific content or categories of content.

ii) When uploading a torrent file, users are required to provide detailed information about it. This information provides TPB with the ability to index it and make it available for searching. It also assists users in deciding whether or not to download it.

iii) TPB does not merely receive the upload of the torrent file, it processes it. For example, TPB deletes any tracker server that may have been nominated by the uploader in the torrent file and replaces it with tracker servers of TPB's choosing.

iv) Users are provided with assistance and advice as to how to download from the site and as to the trustworthiness of particular torrents. Status badges are awarded to uploaders to provide an indication of number and popularity of their uploads.

v) Users are also provided with assistance and advice as to how to circumvent blocking measures taken as a result of court orders.

vi) Users are offered links to "cyberlocker" storage facilities for downloaded material.

vii) Registered users are able to set preferences which allow them to choose what material can be downloaded and how information is displayed on the website.

viii) TPB provides a forum for users to share information about content and even to ask other users to upload particular content which might not currently be available.

ix) Users are offered a choice of 35 different languages to facilitate and encourage the widest possible participation in the use of its services by those engaged in P2P file-sharing.

These features are plainly designed to afford to users of TPB the easiest and most comprehensive service possible. TPB is in no sense a passive repository of torrent files. It goes to great lengths to facilitate and promote the download of torrent files by its users.

The means used to infringe. The torrent files which are so conveniently indexed, arranged and presented by TPB constitute precisely the means necessary for users to infringe. It is the torrent files which provide the means by which users are able to download the "pieces" of the content files and/or to make them available to others.

Inevitability of infringement. Infringement is not merely an inevitable consequence of the provision of torrent files by TPB. It is the operators of TPB's objective and intention. That is clear from the following:

i) Its name – The Pirate Bay – and associated pirate ship logo are clearly a reference to the popular terminology applied to online copyright infringement: online piracy.

ii) According to a statement published on its site, it was founded by a "Swedish anti copyright organisation".

iii) The matters described in paragraph 13 above.

iv) In the first instance judgment in the Swedish criminal proceedings, Lundström was recorded as stating that "the purpose of the site was pirate copying".

v) It is also evident from the numerous proceedings in other European jurisdictions that the operators of TPB are well aware that it is engaged in copyright infringement. Injunctions and other orders against the operators of TPB have been ignored. Orders against TPB's hosting service providers have been circumvented by moving TPB to new providers.

Degree of control. TPB would be able to prevent infringement of copyright, should its operators so wish. As the website makes clear, torrents can be removed. They will be removed if "the name isn't in accordance with the content" or if they are "child porn, fakes, malware, spam and miscategorised torrents". As a matter of policy, however, the rights of copyright owners are excluded from the criteria by which the operators of TPB choose to exercise this power.

Steps to prevent infringement, Despite their ability to do so and despite the judicial findings that have been made against them, the operators of TPB take no steps to prevent infringement. On the contrary, as already explained, they actively encourage it and treat any attempts to prevent it (judicial or otherwise) with contempt. Indeed, according to a statement on the website, the reason for its recent adoption of Magnet links as the default option is that "it's not as easy to block as .torrent files". This confirms the operators' determination to do whatever they can to provide users with unrestricted access to torrent files and thereby enable the users to continue to infringe. As noted above, BPI has asked TPB to cease infringing its members' and PPL's members' copyrights, but this request has been ignored.

Conclusion. In my judgment, the operators of TPB do authorise its users' infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they "sanction, approve and countenance" the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v Newzbin in this respect. If anything, it is a stronger case.

[nogle]

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.

You mean like Kinkos does? Or public libraries?

[nogle]

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.

Imagine that I stand on a corner and let people know from whom they could buy illegal drugs. I don;t sell the drugs myself, I simply tell people where they could if they so desired. Have I committed a crime? What if I put the information on a website?

[HarryT]

Originally Posted by nogle

Imagine that I stand on a corner and let people know from whom they could buy illegal drugs. I don;t sell the drugs myself, I simply tell people where they could if they so desired. Have I committed a crime? What if I put the information on a website?

A quick Google search suggests that yes, telling someone where they can buy illegal drugs is itself illegal. It's probably some sort of "aiding and abetting" type crime.

[nogle]

Originally Posted by HarryT

A quick Google search suggests that yes, telling someone where they can buy illegal drugs is itself illegal. It's probably some sort of "aiding and abetting" type crime.

So, if I am yelling on the street corner that the guy across the road is a drug dealer, you think that I would likely be arrested? If the facts are on my side (i.e. the guy is actually a drug dealer) I am unlikely to be charged for slander.

Granted, I may have some safety considerations, but I have a difficult time believing that I would be arrested and charged.

[nogle]

Originally Posted by HarryT

A quick Google search suggests that yes, telling someone where they can buy illegal drugs is itself illegal. It's probably some sort of "aiding and abetting" type crime.

How about the manufacture of illegal drugs? Is it illegal (or should it be illegal) to have/distribute information of the manufacturing of illegal drugs?

As a result of years at university and an aversion to ridding myself of text books, I own several books that describe in great detail the manufacture or extraction and purification of many drugs including many that are also sold illegally. Should I burn my books before I get raided?

[carpetmojo]

I'm not a hundred per cent certain about this....... but aren't we getting just the teensiest bit silly here ?

[HarryT]

If you're trying to suggest that owning an organic chemistry textbook is akin to operating a website which encourages and aids people to infringe copyright, you're backing a no-hoper, my friend .

[Ninjalawyer]

Originally Posted by elcreative

I gathered that its legality wasn't exactly established even there as the owners have declined to defend anything by scattering around the world to avoid legal actions... not being finally found illegal doesn't mean legal, just means decision pending...

Uh, in the UK there is a presumption of innocence, so not being found guilty doesn't mean "guilty once the paperwork comes in". Plus, if you look at paragraph 12 of the decision, you'll see that the court didn't even bother to try and add The Pirate Bay as a party. I think the point most people find distressing is that the court sanctioned The Pirate Bay, even though The Pirate Bay had no opportunity to argue its side. There's a difference between The Pirate Bay deciding not to argue its side and The Pirate Bay not being provided even the chance.

It would have been different if this were a criminal case where The Pirate Bay founders were given a chance to respond, or where the court was required to conduct a proper balancing of the harms of censorship to the benefit of blocking access, but that never happened. Even if you agree with the result, I'm sure you can at least admit that the process leaves something to be desired as far as justice goes.

[ProfCrash]

Originally Posted by nogle

So, if I am yelling on the street corner that the guy across the road is a drug dealer, you think that I would likely be arrested? If the facts are on my side (i.e. the guy is actually a drug dealer) I am unlikely to be charged for slander.

Granted, I may have some safety considerations, but I have a difficult time believing that I would be arrested and charged.

If he was selling drugs and you did then probably be charged with murder or attempted murder when he or is friends shoot you for announcing he was selling drugs.

[tompe]

Originally Posted by HarryT

It's clear in the court's judgement, if you read it. The reason that the blocking order was granted was that TPB was judged to have no significant use other than aiding and abetting copyright infringement. Most people would accept, I believe, that even though MR does indeed, as you rightly say, host files which would be illegal for people in certain countries to download, it also has a significant proportion of content that does not infringe.

The "significant non-infringing use" test has been the primary criterion applies to copyright infringement cases for many, many years, in both the US and UK.

Yes, but that does not make the criminals at Mobileread non-criminals. It is like if you rob a bank and at the same time do someting good than the bank robbery is not criminal,

[tompe]

Originally Posted by HarryT

I think most of us would accept that it falls into the "pretty blooming obvious" category that TPB is, first and foremost, a pirate site.

Hint: the clue's in the name...

The name should be read as ironic

[tompe]

Originally Posted by murraypaul

Both. TPB have the ability to remove infringing files, but refuse to do so.
They actively encourage users to upload them.
The site is designed to facilitate infringement.
TPB are guilty (as found by the judge) of authorising the users' infringements.

Since they do not store infringing files I do not see how they can remove them. What do you mean by upload? A user is not uploading files to a central storage.