Dramatico

I tried to post this as a comment to Neil's posting but it seems too big.


A bit later than Neil - and not disagreeing with anything he has written, this  is a copy of what I have written for my IT Law blog

An earlier post described the High Court ruling of Mr Justice Arnold in the litigation between a number of copyright owners and BT. In the case, the copyright owners sought and obtained an order requiring  BT to to take specified steps to block its Internet users access to the file sharing website Newzbin2. In subsequent proceedings a similar order was made against two further  ISPs, British Sky Broadcasting and Talk,Talk.  A further case has now been before the High Court, again before Mr Justice Arnold. Although not named as a party in the litigation, the elephant in the room in the case of Dramatico Ltd (and others) v. British Sky Broadcasting (and others) is the famours, or infamous, web site 'The Pirate Bay' Originally based in Sweden, a number of the individuals involved in the administration of the Pirate Bay file sharing web site were the subject of successful criminal proceedings in that country. The affair has been controversial with a Pirate Bay political party being founded subsequent to the convictions and securing representation in Swedish parliament on an anti-copyright platform. As in Newzbin2, copyright owners are asking the courts to order ISPs to take steps to block access to the Pirate Bay from England and Wales. Interestingly from the perspective of a Scots lawyer there do not appear to have been similar proceedings in this jurisdiction. In Newzbin2, a  civil action had previously been raised by right owners against Newzbin2 and to a great extent this served as the basis for the action seeking the blocking of access. This has not been the case with the Pirate Bay and when the case first came before the High Court in January 2012 it was ruled that prior to determining whether a blocking order should be made there should be an initial hearing to determine whether The Pirate Bay and its users were guilty of copyright infringement. In some respect the subsequent proceedings were rather one dimensional. The various ISPs identified as defendants in the case were not represented. As Mr Justice Arnold explained, the reasoning, which has been a feature of many cases involving the making of, Norwich Pharmacalorders requiring the identification of an individual who has made use of Internet facilities provided by an ISP or a web site, was that it was for the court rather than the defendants to take a view as to the legality or otherwise of conduct. Again, no notice of the proceedings was served on the Pirate Bay administrators; partly it appears because of uncertainty as to their locations (one was believed to be living in Cambodia but also, and perhaps more contentiously because of their expressed contempt for laws and legal processes. As was noted:

The operators’ attitude is clear from the following passage on the “about” page of TPB: “Only torrent files are saved at the server. That means no copyrighted and/or illegal material are stored by us. It is therefore not possible to hold the people behind The Pirate Bay responsible for the material that is being spread using the tracker. Any complaints from copyright and/or lobby organisations will be ridiculed and published at the site.” True to their word, the “legal threats” page of the website contains links to copies of a series of cease and desist letters sent by right owners together with the operators’ responses, which tend to the profane. The page ends: “No action (except ridiculing the senders) has been taken by us because of these. :-) Nice graphs for the law firms who don’t get the hint above: (we used to have a nice graph here, but it’s simpler to just say: 0 torrents has been removed, and 0 torrents will ever be removed.)”

Perhaps more fundamentally, the specific proceeding s sought to order intermediaries to block access to the Pirate Bay. In the particular case there was, it seems to me, ample evidence of the nature of the web site and the conduct at issue. There is, however an underlying tension which may need to be considered more fully in the future between the rights of copyright owners and the provisions of Article 10 of the European Convention on Human Rights which guarantees (subject to the inevitable exceptions) the right to receive and to impart information. Turning to the substance of the case - or at least this stage of the case - the task for the claimants was to establish that both the users of the Pirate Bay web site and its controllers were guilty of copyright infringement.  Insofar as individual users were concerned the most interesting issue concerned the question whether they might have committed infringements by making copies of a protected work available to the public. This relates essentially to the nature of file sharing web sites whereby a user can download material but, as a sort of quid pro quo, makes material on his or her own material available to other users. In previous eras. communication to the public required operations on a signifcant scale, today, we are all potential broadcasters.

In respect of the Pirate Bay itself, the arguments and issues were effectively the same as with Newzbin2. The conclusion that the Pirate Bay purported to authorise infringement and/or were jointly liable with individual users was not surprising. As was commented by Mr Justice Arnold:

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.

and again

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.

There is little if anything to disagree with in this ruling. As, however, is is normal in cases of this sort, there is reference to the decision of the House of Lords in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013. As someone who recalls the original case, it is frightening to realise that it is nearly a quarter of a century old. Where did all the years go?

The concern of copyright owners in the 1980s was that giving individuals the ability the make copies of pre-recorded tapes would lead to the destruction of  the creative industries. In spite of the copyright owner's loss in the Amstrad case, that did not happen. Moving on a couple of decades we have the Hargreaves report Again, I have commented on this before. I think my key concern is that we have moved from a situation where copyright and the creative industries have been peripheral to the mainstream economy to today's reality where they are pivotal. In spite of this, we lack hard evidence of the impact of infringement - or indeed what should be perceived as infringement?

It may well be that the Pirate Bay is a vessel which should be sunk. This is only part of the problem. The legal mechanisms for seeking redress, as seen in the present case, are clunky and expensive. Although Mr Justice Arnold indicated that different approaches might be followed in future cases, what we have had here has been a High Court application, a High Court hearing on preliminary issues and - presumably - there will now be a further hearing seeking enforcement. Assuming, as seems likely, the enforcement order will be made, there do seem to be real questions (beyond my technical ken) how easy and effective enforcement will be.

There is an old Irish joke about a traveller who gets lost and seeks directions to the intended destination from a passer by.  There follow a series of 'take the third turning left and then the fifth right  .... or maybe the second right and seventh left" before the concluding line 'but if I were you, I wouldn't be starting from here in the first place". There are elements of truth in that for the present situation. Copyright concepts developed centuries ago are under pressure. Fundamental reform will certainly not be easy but it may be necessary.