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The All-Mighty Blocking Order: A Copyright Holder's Best Friend?

28/04/2014 13:37 BST | Updated 28/06/2014 10:59 BST

In late 2015, internet users in Britain who have illegally downloaded or streamed videos could go to their letterboxes and find something far worse than junk mail: a warning from their Internet Services Providers (ISPs) related to their dodgy activity -- every freeloading web junkie's worst nightmare.

In truth, although the Digital Economy Act 2010 is scheduled to put such an action into law within the next couple of years, the aforementioned scenario is unlikely. "None of the rights holders want to go after individuals anyway," says Ben Allgrove, partner at London law firm Baker & McKenzie, "Targeting the users, which the record industry did in the early 2000s, was a disaster from a PR perspective, and it didn't work."

Instead, it's the all-mighty blocking order that seems to be the most powerful weapon in copyright law's arsenal these days.

The contentious court orders against the likes of Virgin Media, BT, Sky and Talk Talk, require such ISPs to block pirated content sites like Megashare and Project Free TV. And, although some lawyers claim they aren't as ubiquitous as they may seem, in March, the discretionary remedies -- which can be obtained in as little as three months -- received the stamp of approval from the Court of Justice of the European Union (CJEU) in the UPC Telekabel case: the Court held that blocking orders do not violate the EU Charter of Fundamental Rights and are perfectly legal. This was the first such case to reach the CJEU; it officially and unofficially broadened the legal measure's scope of acceptance.

The bar is set relatively low for the ISPs themselves in that the Court explained that as long as they take reasonable steps to ensure that sites are blocked, they will be in compliance with the court mandated injunctions -- so they shouldn't be liable for such pesky tech workarounds as proxies, for instance.

However, to Joe Internet User, clicking on a link and receiving the minimal yet daunting 'Error - site blocked' message, may set off 'free speech' alarm bells. "It's not a free speech issue," counters Allgrove, "It's an 'I want access to free content' issue, which is a totally different thing."

Thus far, many of the sites being blocked are what he calls 'bad actors' who would have difficulty using a free speech defence as they're merely providing links or downloads to content they don't own. Yet, there are always unforeseen grey areas and varying standards of fair use on this worldwide web. Allgrove notes "There is a divide between the broad US-style fair use and the fair use exceptions available in most other countries."

One common overlap between the United States and the United Kingdom in the online copyright protection realm (albeit with limited usage in the latter for the moment) is found in the orders requiring search engines to block URLs of infringing sites from appearing in results. The US has implemented this -- with increasing vigour it would seem -- via the Digital Millennium Copyright Act 1998. In fact, this breed of blocking order has even been exercised by the French High Court. This is accomplished in two ways: merely blocking the infringing site altogether or de-prioritising it from appearing in the coveted organic search (a.k.a. page 1). It's, naturally, attracted its share of ire from the digital rights advocates' camp.

Criticisms of the more oft-used traditional ISP-side blocking orders have been levelled by the ISPs themselves. In Twentieth Century Fox v Newzbin -- a seminal blocking order case -- the infringing site, Newzbin, was ordered to close up shop but circumvented the system when it re-opened as a mirror site Newzbin2 prompting the landmark order. BT, one of the ISPs required to block the site, argued that it should not -- as an innocent third party -- be forced to incur legal costs as a result of the order. The argument failed.

"It's an infringement on the ISP's freedom to run their own business if they're having to spend money on things which aren't important for them," explains Allgrove. However, he also sees the ISPs' 'penalty' as proportionate to the legal benefits it incurs elsewhere. "No one else gets the defences and immunities that ISPs get under the E-Commerce Directive -- for caching and hosting. So, effectively, this is the trade-off."

Although so far, the results of blocking orders are largely being experienced by consumers via search engines and their ISPs, we may well see rights holders get more focused and try to target specific infringing users on mainstream sites like YouTube or Vimeo with such injunctions. This would of course pose its own set of legal challenges, such as a clash with Article 15 of the aforementioned E-Commerce Directive, which states that service providers are not required to monitor content.

Ultimately, extreme remedies like blocking orders (along with the educational outreach and other more benign measures) seem to have levelled the playing field when it comes to rights holders vs. pirates.

And, the prevalence and growth of models like iTunes and Spotify mean that, in theory, "if you can get a legal, convenient relatively well-priced offering, people will use it even if they can find it for free if they go out there and ferret around," according to Allgrove.

However, the 'gotta have it now' online culture of immediate gratification shows no sign of abating. And, incited by such consumer hunger, pirates are never too far from exploiting the next loophole.