Imagine that, in the Summer of last year, you had been following the MP's expenses scandal and heard that The Telegraph was publishing a rather less redacted version that MP's were prepared to give us. Interested, you navigated your way to www.telegraph.co.uk only to find it was not responding. After some searching around and asking friends you discover that the website has been blocked by most major UK ISP's. It seems a junior official in Parliament had asked them to block The Telegraph for copyright violation.
Just this could happen as a result of amendment 120A to the Digital Economy Bill that was passed yesterday in the House of Lords. Being strictly accurate (and I am a stickler for accuracy) I don't think that Parliament going after The Telegraph is likely any time soon for reasons I will explain at the end of this post, but the reasons for that are political not legal and that should worry all of us.
What is this all about? The copyright industry (which I will call "the BPI" for short) would like a way to make ISP's block internet access to servers that are involved in wholesale copyright violation. Trying to go after the owners of the servers is difficult, either because they are convicted criminals or because they are a mega corporation that will thumb their noses at the BPI and fight tooth and nail against any effort to take them down. How much easier to get ISP's to do the job.
I believe (and I think most copyright lawyers agree with me) that the courts could be persuaded to develop a general form of order requiring an ISP to block access to unlawful content. They have already done this with so-called "Norwich Pharamcal" orders that are used to ask innocent third parties (like ISP's) to divulge the names of the guilty. If there was any doubt, section 97A of the Copyright Designs and Patents Act 1988 makes it quite clear that the courts have the power to do this.
What seems to be bugging the BPI is that a court order costs money and they (the BPI) will have to pay for it. What they want is to be able to get the orders they want for free, or rather at someone else's expense. Amendment 120A does the job. The killer bit is this wording:
(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.
ISPs will feel forced to block on request
What this means is that a copyright owner can send a notice to an ISP asking them to block access to a website. The ISP has a choice: either they block the site, or they wait to see if a court will make an order to block it. If they wait, they pay the costs. There's going to be a really strong temptation just to block without asking any questions, rather than go to court and risk what will amount to a fine.
Its much worse than that. The written request doesn't need to explain why the website should be blocked. It can just be a bald instruction "block this site", or perhaps a list of websites to block like that supplied by the Internet Watch Foundation>. The ISP won't find it easy to "ask questions" because it will have nothing to work with. There is also nothing to stop the BPI sending huge numbers of requests, swamping the ISP so that a conscientious ISP that does not want to blindly block everything will find it prohibitively expensive to do so.
Furthermore, the website won't usually be run by anyone with a contractual relationship with the ISP. This is not a "block your customers" type of order but a "block someone on the internet" one. The ISP won't have any customer relations incentive not to block, nor will they have any way (in general) of recovering their costs from the website owner.
In most cases the only safe way for an ISP to proceed will be to just block everything they are told to block. What is to stop the BPI routinely requesting a block whenever there is anything they vaguely dislike? Nothing. There is no penalty for sending an unjustified written requests. The request does not have to say that anything in particular is wrong, its just a request after all. If I were the BPI I'd just churn these out wholesale and cherry pick which to actually enforce, relying on the spread of fear, uncertainty and doubt to get my own way.
No redress for the innocent
What about website owners? There's no requirement in the amendment to tell the owner of the website that a request has been made to an ISP. The owner/operater will usually first find out they have been blocked by the ISP after it has happened. Aside from persuading all ISP's in the UK to unblock you (perhaps by promising to pay their costs if they eventually are ordered to block) there is nothing you can do about it. There won't have been a court order, so there's no appeal.
Even if you, as a website owner, hear about the request from some well-meaning ISP, you may not know what it is exactly that you are accused of. Like Joseph K's legal team in The Trial you will have to deduce what you are charged with doing. How anyone can think that is fair or reasonable defeats me.
If an ISP is persuaded to resist a request to block your site and you then intervene in subsequent court proceedings brought by the BPI, the case could go on a long time — copyright cases can be quite complicated. Maybe there are important issues of law at stake that will take the matter to the Supreme Court and back. The result an enormous costs bill. Who will have to foot it if you lose? Ordinarily, the ISP. You can see why an ISP is going to require a lot of persuading not to just roll over and do what its told.
The court will be bypassed
The amendment is stuffed full with good intentions. There's a whole list of things a court would have to take into account before making an order, all of which would be things a court would probably take into account anyway. Courts really don't need to be told to take into account "the importance of preserving human rights, including freedom of expression, and the right to property" for instance — they are required to do so by the Human Rights Act 1998 — which suggests that the amendment was not drafted by someone with any knowledge of legal practice more's the pity.
But all these good intentions are quite irrelevant because the new law gives the BPI huge leverage before anyone gets near a court. The court process may be scrupulously fair, but which ISP is going to routinely risk getting there?
Well there's plenty more that's wrong with the amendment, for example what on earth is a "location on the internet" (IP address, URL, DNS domain...)? Did anyone who knows anything about computer networking get asked about this before it was tabled (I assume: no)? But I think that is enough for me to complain about in one post. I hope you get the general idea. Sadly the politicians involved don't.
The Telegraph case is unlikely. Not because the legal conditions aren't made out - it is certainly true "a substantial proportion of the content accessible at or via" the part's of the Telegraph's site where all those barely redacted expenses claims where displayed infringed copyright, so there's certainly a basis for a claim. The Telegraph is in the position of having an alternative outlet to air its grievances (the paper version) and enough money to fight the government over it and to offer to indemnify any UK ISP that is nervous about it. By contrast the House of Commons was running scared in the middle of 2009 and its officials were probably sane enough to try to avoid the huge scandal associated with blocking the newspaper.
But the blocking of a newspaper, a major site like youtube, or indeed any other site (insert your favourites in here) is by no means implausible. Newspapers regularly republish information quoted in other newspapers, much of which may infringe copyright. Where a site is overseas and won't make so much of a fuss about blocking in the UK, it all becomes more likely.
My last blog on the topic of the Bill complained of a similar power that would allow the government to block sites it didn't like such as wikileaks. Subsequent amendments blocked that hole, but now we have a new provision that lets private individuals as well as the government shut down sites, with wikileaks still a prime target. Politicians of all parties need to think very seriously about whether they really want to give the BPI this amount of power.