Key Points:

An English court has ordered ISPs to block their customers' access to The Pirate Bay. Could it happen here?

Last week an English court ordered British ISPs to block their customers' access to The Pirate Bay. Why did it make this order – and could the decision in Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 1152 (Ch) have implications here for blocking access to websites?

What does The Pirate Bay do?

The Pirate Bay is a Swedish website hosting over four million torrents and magnet links. Its attitude is one of gleeful contempt for rights-holders, as shown by its responses to legal threats. In February the English High Court found it was not only authorising its users' copyright infringements, but was directly responsible for them:

"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… the operators of TPB induce, incite or persuade its users to commit infringements of copyright, and that they and the users act pursuant to a common design to infringe."

Why did the English court order ISPs to block access?

The Copyright, Designs and Patents Act 1988 (UK) allows rights-holders to ask the High Court of England and Wales to grant an injunction against an ISP with "actual knowledge of another person using their service to infringe copyright".

Here, the ISPs had acquired actual knowledge in three ways.

First, the rights-holders notified them of infringements.

Secondly, the ISPs were aware of the contents of the rights-holders' evidence in support of this claim.

Thirdly, the ISPs were aware of previous findings about the infringing activities of The Pirate Bay and the internet users who utilised it.

As a result, the ISPs were found to have actual knowledge that users and the operators of The Pirate Bay used the ISPs' services to infringe copyright.

So could this work here?

Not in the same way. Australia's Copyright Act doesn't have an equivalent to section 97A in the UK legislation – not yet, at least.

However, it is possible that rights-holders could seek the same outcome by notifying ISPs of their internet subscribers accessing such websites to infringe copyright, and asserting that unless ISPs block access to such websites, they are authorising copyright infringement. If this argument was accepted, the court could grant an injunction requiring an ISP to block access. It would seem, however, that there is a high threshold in Australia for actual knowledge, following iiNet.

Blocking access might only reduce the amount of copyright infringement, not eliminate it. British ISPs need time to implement the block, and The Pirate Bay and others are using that time to explain how users can circumnavigate it.

A long-term solution will probably require a full rethink of copyright laws and enforcement. There are at least two inquiries into copyright issues underway, but recommendations from either are still some way off.