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Tuesday, 14 February 2012

Talk Talk rolls over without a fight, court order granted to expand Newzbin block to third ISP

As Newzbin disappeared from a .com domain to occupy a new home last week, UK ISP Talk Talk became the third ISP subject to a blocking order under S.97A of the Copyright, Designs and Patents Act 1988.

The block must be in place within 14 days of the order, which I believe was made on the 9th February by Justice Arnold, but I don't yet have a copy.

Whilst the internet community rallied against website blocking proposals in the Digital Economy Act 2010, a little-known amendment to copyright law introduced via a Statutory Instrument (SI) passed in 2003 brought web censorship provisions on copyright grounds to the UK.

The SI transposed EC directive 2001/29/EC into law (paragraphs 58 and 59 being relevant here).

Those concerned about over-reach of copyright laws should take note at the groundwork via the 1996 WIPO Copyright Treaty and the above EC directive, bringing much of what people are upset about today into law almost a decade ago.

In this particular case I'm concerned that Talk Talk apparently took no steps to fight the expansion of the blocking order despite me identifying concerns about over-blocking of the Internet Protocol (IP) address space.

A senior source at Talk Talk told me when I asked about last week's scheduled hearing:

"we [Talk Talk] are not appearing / submitting.
 Our primary interest is the order in the case that there is an infringement finding"

In a nutshell, Justice Arnold seems to have created a mechanism whereby rights holders can add IP addresses to the blocking order without going back to the court.  There appears to be no mechanism to remove IP addresses when they are no longer being used by Newzbin, and this will have consequences for any unrelated website inheriting Newzbin's old IP addresses.

IP addresses are in short supply and the probability of IP addresses being re-used in a relatively short time period is high.

The consequences of over-blocking were somewhat mitigated by a very specific definition in the original order against BT.  BT were instructed to first filter on IP address, then check the website domain (URL) matches before blocking.  This is a process used by their child porn blocking filter known (somewhat incorrectly) as Cleanfeed.

Differences in the network blocking technology deployed by each ISP could increase the risk of over-blocking.

I'm very concerned that BT, who valiantly challenged the original blocking order, were punished with a sizeable costs order for defending the public interest and rigorously contesting the case against blocking.  It is clear that such a costs penalty would likely dissuade any other ISP from asking a court to scrutinise a blocking order, increasing the possibility that the courts will nod-through many more injunctions.

If similar orders are sought against other websites, not only will this drive people to use measures to work around the block, thereby increasing their own vulnerability to cyber security threats; it will also create an administrative burden on ISPs to manage a growing list of IP addresses and URLs that need blocking.

UPDATE 17:05: I'm reminded in mitigation that it is clear from Justice Arnold's BT ruling in July that the courts have a role in establishing infringement when S.97A of the CDPA is applied to ISPs. It could have been far worse given the wording of S.97A.  Based on DMCA-style notice and take down, ISPs could have been forced into proactive censorship of websites without a court finding of infringement.

HT @WillTovey for tip to court listing


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