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

[tompe]

Originally Posted by HarryT

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

What? Why is English law relevant here? I mean if you go to Holland to a coffee house and smoke why should that automatically be criminal activity in England?

[HarryT]

English law is relevant here because it is English law that has seemingly been broken. If they are not breaking Swedish law that's fine - they are presumably free to operate in Sweden.

[tompe]

Originally Posted by HarryT

English law is relevant here because it is English law that has seemingly been broken. If they are not breaking Swedish law that's fine - they are presumably free to operate in Sweden.

But you are calling them criminals. That is the issue. You do not become a criminal if you break strange laws in other countries.

[HarryT]

Originally Posted by tompe

But you are calling them criminals. That is the issue. You do not become a criminal if you break strange laws in other countries.

It you prefer to call them "heroes of free speech", that's absolutely fine with me. I have my own opinions.

[Keroberos]

Originally Posted by SteveEisenberg

The Pirate Bay is piracy.

No. No. No. The Pirate Bay is a tool for the distribution of digital files, it may be used to commit piracy (and I won't argue the fact that it is used for that purpose a lot). Just like roads are tools used to transport people and goods, and they may be and are used to commit crimes, should we block those too?

[Ninjalawyer]

Originally Posted by HarryT

English law is relevant here because it is English law that has seemingly been broken. If they are not breaking Swedish law that's fine - they are presumably free to operate in Sweden.

Seemingly is the correct word as the case was not a criminal case against the operators of The Pirate Bay. I would be a lot less uncomfortable if the site were blocked after a criminal investigation was conducted and The Pirate Bay had the opportunity to speak in their own defense.

This isn't an easy case unfortunately because of the worldwide nature of the web, and the obvious difficulty in prosecuting people in the UK because of a website based in Sweden. That said though, I don't think the answer to those difficulties is website blocking.

[tompe]

Originally Posted by HarryT

It you prefer to call them "heroes of free speech", that's absolutely fine with me. I have my own opinions.

Oh, I thought you used "criminals" in a legal way. If it was just an arbitrary insult then I have no objections as long as the word does not mean that they have done anything that is illegal in the country they have dont it.

[HarryT]

By all means please regard it as an "arbitrary insult" .

[ProfCrash]

Originally Posted by Keroberos

No. No. No. The Pirate Bay is a tool for the distribution of digital files, it may be used to commit piracy (and I won't argue the fact that it is used for that purpose a lot). Just like roads are tools used to transport people and goods, and they may be and are used to commit crimes, should we block those too?

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.

[CyGuy]

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.

But that should not be allowed obviously...

[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

[murraypaul]

Originally Posted by Ninjalawyer

Seemingly is the correct word as the case was not a criminal case against the operators of The Pirate Bay. I would be a lot less uncomfortable if the site were blocked after a criminal investigation was conducted and The Pirate Bay had the opportunity to speak in their own defense.

TPB have made it very clear they have no interest in involving themselves in any actions like this.
The printing press analogy fails because they aren't printing lots of different things, some of which are illegal, almost all of the material they aid in distributing is illegal, and that is the focus of the site, hence the name.
Part of the finding in these cases has been that is that there is no significant non-infringing content. That is why 'normal' sites, where a small proportion of content was infringing, would not be addressed in the same way.

[ScotiaBurrell]

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.

seat belts insurance and other stuff too

[Ninjalawyer]

Originally Posted by murraypaul

TPB have made it very clear they have no interest in involving themselves in any actions like this.
The printing press analogy fails because they aren't printing lots of different things, some of which are illegal, almost all of the material they aid in distributing is illegal, and that is the focus of the site, hence the name.
Part of the finding in these cases has been that is that there is no significant non-infringing content. That is why 'normal' sites, where a small proportion of content was infringing, would not be addressed in the same way.

Whether they choose to involve themselves or not is irrelevant, they should be provided an opportunity to be heard (whether or not they take it is their prerogative) before their site is blocked; otherwise, on what basis is the determination that they're doing anything illegal even made? Something is criminal once it has been determined to be so based on a fair hearing in a criminal trial, not because, "well, it has the word "pirate" right in the title!"

As I said in the passage of mine you quoted, my discomfort comes from the fact that The Pirate Bay wasn't involved in this investigation and, in fact, there was no criminal investigation; the finding was made in a civil case, not a criminal case. I don't necessarily disagree with blocking a website, if it is done through a process that ensures the affected parties can present evidence and make arguments and where the trier of facts balances the cost of suppressing the speech against the benefit.

With respect to the printing press analogy, I'm not going to get into an argument about it; analogies by their nature are imperfect, so mine wasn't without its faults. Although, as I have already pointed out a few times, there are in fact large sections of The Pirate Bay devoted to non-infringing content. And while The Pirate Bay may be "devoted" to infringing content, it doesn't actually appear that they host anything infringing or illegal; that is a determination for a UK criminal court to make, not the two of us arguing on a forum.

[ProfCrash]

Actually, there are people who rather dislike the police preventing people from entering their street unless they are residence because they feel that it is an infringement on peoples right to come and go as they please. The police are doing it in order to deter crime in areas that have seen an increase in crime but not everyone who lives on that street is a criminal or planning on engaging in a crime. There simply is a higher likelihood based on current trends.

And it has not ruled illegal, I don't think it has ever gone to court even though it is unpopular.

My point? There are times that the legal system is engaged because there is enough evidence of a criminal trend that it is deemed to be in the benfit of the public to make it harder for criminal activity to occur or to catch the folks who are engaged in criminal activity.

I don't think anyone has ever said that road blocks to identify drunk drivers are illegal or unjust. I don't know that they have ever been challenged in court.

I do know that the major television stations and radio stations, the ones using public air waves, have far more stringent limitations on what they can show and not show during certain hours of the day then cable channels because the air waves are public. The government limits speech in this case to benefit people. ie young kids should not be watching porn on CBS, NBC, ABC, FOX or the like because we deem that to be bad and those stations are using public airwaves but Playboy can show porn when it wants.

So there are precedents (sp) for public owned goods (roads, airwaves) being restricted in order to benefit the public. In the case of the roads, there is a precedent for restricting the use in order to arrest the few people who are engaged in criminal activities while inconviencing everyone who is not, ie those of us not drunk, not on drugs, wearing our seatbelts, and driving with insurance.

Nevermind that free speech means that speech comes without consequences. You are free to yell fire in a crowded movie theatre when there is no fire and you will find yourself in jail for doing so because your speech created a dangerous situation. You are free to post what you want on the internet and then be charged with a crime, witness the idiots who posted about stealing a penguin and returning him before the theft was discovered. They still ended up paying a fine because they used their free speech to post on it. Or the people who have been arrested for inciting a riot even when they did not participate in the London riots because they posted on Twitter and Facebook encouranging others to do so or told people where to go.

As my high school rights and responsibility teacher said "Your rights end where my nose begins." You are not allowed to use your rights in such a manner that they hinder my rights. Clearly the UK Courts have determined that The Pirate Bay infringes on the rights of the copyright holders and others who are being screwed out of the money they are owed for selling their goods by The Pirate Bay. You might not agree with the decision but I don't buy the censorship argument for one second.