Policing the internet

20 August 2011 | Kavit Majithia


The decision taken by the high court to order BT, the former UK incumbent, to block access to a website that provides links to pirate content could prove significant to the ISP industry.

It was a landmark case against the company, and the ruling means this was the first time an ISP has been restricted from allowing access to one specific site. The issue stems from a court case launched by six major film studios, all part of the Motion Picture Association (MPA), against the operator to implement a block against Newzbin2, a website that allows subscribers to access pirate content. In the ruling, the presiding judge Justice Arnold declared the decision was reached because “BT has actual knowledge of other persons using its service to infringe copyright”. The implications could be widespread if other cases are brought to court against ISPs regarding what content they provide consumers over the internet.

“It is disappointing that the courts have ruled in favor of the movie studios,” said Lee Myall, director at European carrier Interoute. “ISPs have now become fair game for anyone with an issue regarding content on the internet and it won’t be long before there’s another tug of war between artists and ISPs.

BT took a different tack with its reaction, and claimed the ruling provides clarity. “It clearly shows the rights holders need to prove their claims and convince a judge to make a court order,” the company said in an official statement.

“It doesn’t appear that BT really put up much of a fight,” commented Joseph Bowser, attorney at Arent Fox law firm. “It does seem to me the ISPs in the UK would welcome this approach to go the courts if any there any concerns of copyright infringement. BT is not in the business to help Hollywood make money but ISPs will not do anything they are not ordered to do – a customer, however, cannot fault a court order.”

Newzbin2 provides pirate content of films, videos, games and music, much of the high-bandwidth content on ISP networks (see feature Carrying content on page 34), to over 700,000 members. The case was only brought against BT, and the site can still be accessed on other ISP networks, but Bowser believes it is just a matter of time before the website is blocked across the internet in the UK.

As a long-term effect, the ruling could mean there is an extra burden on ISPs to monitor closely what they are providing access to. Market experts also believe there should be greater synergy between content producers and ISPs if all forms of content are required to be monitored on the networks. Bowser believes future similar cases could mean the courts, or indeed associations like the MPA, will make it “more difficult for the ISPs by requesting they use a more aggressive technology to monitor content better on the internet”.

“Networks aside, it is difficult for an ISP like BT to make a judgment call on what is illegitimate and what isn’t,” said Jan Dawson, chief telecoms analyst at Ovum. “Most operators would rather not become the police and allow other parties to take on that role.”

The Internet Service Providers Association (ISPA) was less welcoming than BT of the ruling, and made it clear that taking such steps will not stop online copyright infringement, which the MPA stated was its overall goal when filing against BT. Chris Marcich, president and managing director of MPA stated the ruling was not an attack against the ISPs, but a victory for “millions of people working in the UK creative industries”.

The ISPA took a clear stance in its reaction, and in some ways tried to find a clear boundary between the responsibilities of the ISP in the clouded issue of video piracy. Julian Hobbins, general counsel at the Federation Against Software Theft (FAST), believes the ruling should now encourage greater restrictions from such websites from operating, with an increasing requirement on the ISP to aid that. “The decision to pursue the website via ISPs represents a change of tactic for rights holders but does not serve as an attack,” she said. “This ruling is a watershed, and legitimate online sites will now be encouraged.”