In the first UK high court ruling of its kind, telecoms company BT has been given 14 days to block access to Newzbin2, an illegal file-sharing website. It is expected that the ruling could set a precedent for the forced widespread blocking of such sites by ISPs. The decision has raised concerns among ISPs that the prevention of online copyright infringement is increasingly becoming their remit, and questions have been raised about the legitimacy of imposing this burden of ISPs instead of regulators or rights holders.
In practical terms, ISPs such as BT are in the unique position of being able to step in directly to shut down access to infringing websites without to need to identify and pursue individual infringers. Therefore, a compelling argument in favour of requiring direct action by ISPs is their ability to eliminate the problem "at source" which provides a faster, cheaper and more effective way of tackling illegal downloads.
However, in ordering BT to block access to Newzbin2, the Court was also influenced by the fact that ISPs make substantial profits from the services which enable operators and users of file-sharing sites to infringe copyright, that is, website hosting, broadband connections and downloads. Accordingly, the cost of blocking illegal sites was viewed by the Court simply as an expense which is part and parcel of operating such a business. The Court also stressed that the expenditure involved would be "modest and proportionate" since the filtering software that is required to block access to specified URLs or IP addresses is already available, in some form, to most ISPs. In BT’s case, the Court was also satisfied that any financial impact on customers would be negligible.
Critics of the decision have pointed out that large-scale site blocking by ISPs is only a temporary fix to a growing problem, which can only be effectively addressed in the long-term by introducing more attractive legal alternatives to illegal file-sharing and reforming the public’s attitude to copyright.
Whilst putting the onus on ISPs to take action clearly has practical benefits, it seems the Courts are recognizing that ISPs gain direct commercial benefits from illegal file-sharing and are therefore asking them to do their part to help tackle the problem. It is unlikely that ISPs will bear the responsibility for determining which websites to block, but will simply adapt their software to implement instructions provided by rights holders. Moreover, they will have a defence to any claims from customers or other parties affected by site blocking, provided they did so in compliance with a Court order. As such, the ISP’s role could be regarded as a purely technical one.
The decision will nevertheless be of concern to ISPs who may find themselves having to take action and pay out if faced with a similar court order. If so, ISPs can limit their financial exposure by co-operating with rights holders so as to confine their losses to the actual cost of adapting their software. On a long-term basis, once the technology and processes are in place, rights holders can be expected to bear more of the costs of targeting specific sites.