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Copyright blocking - recent UK cases

Wednesday, June 6, 2012 - 11:17

The latest case brought by rightsholders under the Copyright Designs and Patents Act 1988 has found that bittorrent tracker site The Pirate Bay does infringe copyright according to the Act. Following this decision it seems likely that rightsholders will seek injunctions under s97A of the Act requiring ISPs to “block” access to the site, as they have already done for Newzbin.

Perhaps the more interesting aspect of the judgment is the report it gives of injunctions that have been granted since the widely reported case involving BT and Newzbin. BT were ordered last year to use URL blocking (implemented on their existing system for blocking IWF-listed material) to obstruct users’ access to Newzbin. This should ensure that only URLs associated with the Newzbin site were blocked. However subsequent injunctions against Sky and TalkTalk appear to have added blocking at the IP level (commonly known as blackholing). According to paragraph 3 of the judgment Sky were ordered to implement

(i) IP blocking in respect of each and every IP address from which the said website operates and which is:

(a) notified in writing to the [ISP] by the [Rightsholders] or their agents; and

(b) in respect of which the [Rightsholders] or their agents notify the [ISP] that the server with the notified IP address blocking does not also host a site that is not part of the Newzbin2 website.

While in TalkTalk (paragraph 4) the restriction that a notified IP address must only host the Newzbin2 site appears to have been relaxed to include “any IP address the sole or predominant purpose of which is to enable or facilitate access to the Newzbin2 website” though the rightsholder is still required to notify that the server hosts that no other website will be affected.

IP address blocking has been widely recognised (for example in Ofcom’s report on website blocking) as carrying a significant risk of unintentionally blocking access to lawful material. Blocking access to an IP address means, at least in principle, that all services using that IP address will become inacessible, so not just web, but e-mail, FTP and anything else. What makes this worse is that it is relatively common for many, completely unrelated, sites and services to be operated on the same hardware: companies that provide external web-hosting services are unlikely to operate a single machine for each of their customers. In both the Scarlet and Netlog cases in the European Court the risk of overblocking (and the resulting infringement of users’ right to receive and communicate information) has been a significant factor in refusing an order. In the Sky and TalkTalk injunctions it appears that the UK judges were satisfied that the Applicant rightsholders could determine that the IP addresses they sought blocks for were not being used in this way.

However there’s no certain way (other than asking the operator of the equipment) to take an IP address and find all the websites that run on it. The daily operation of the Internet requires the conversion in the other direction – if you know you want to access www.ja.net then your computer has to be able to discover that that has the IP address 212.219.98.101. There's an Internet system called the Domain Name Service (DNS) whose job it is do to that. But the DNS doesn't provide a way to start from 212.219.98.101 and discover, for example, that it is also the host for www.nhs-he.org.uk, a website apparently in a completely different top-level domain. Since the original version of this post I've been pointed at services such as http://www.domaintools.com/research/reverse-ip/ that seem to do a reasonable job of finding other sites that share a given IP address. That claims to use a "patented algorithm" though it doesn't give any further details; however all the algorithms I can think of depend on assumptions about Internet use that may not always be true.

I’ve not been able to find a full report of either the Sky or TalkTalk cases to see whether this issue was discussed; the addition of "or predominant" to the TalkTalk injunction suggests that it may have been. But unless the rightsholders have spotted something I haven’t, an assertion that a particular IP address “does not also host a site that is not part of the Newzbin2 website” seems to contain a certain amount of risk.