Last week, BT and the Movie Studios returned to court to discuss the terms of the newzbin2 injunction. The judgement is a pretty much a victory for the Studios. BT must use Cleanfeed to block notified sites, they must use it to block all addresses notified by the applicants, the proposal that only sites that ‘predominantly’ induce copyright infringement should be blocked was rejected, they can’t turn the blocking off for operational reasons without the permission of the applicants, they can’t terminate the injunction in circumstances where the applicants don’t injunct BT’s competitors in a reasonable time frame, BT have to pay for the enforcement, BT have no right to claim damages against the studios for consequential liability, BT have to pay the studio’s court costs to the point of the initial newzbin2 injunction, costs incurred after the injunction are born be each side.
It should be noted that all the Studio’s are US based companies.
The blocking technology, Cleanfeed, was built and designed to block unacceptable pornography. This court backed pursuit by the studios will lead to technical evolution that will make restricting unacceptable pornography harder. More people will adopt VPN technology. Pornographers will be harder to fight.
Probably dedicated downloaders will leave BT while it remains the only injuncted UK ISP. The costs are not large, and certainly not large in terms of the number of BT Retail customers. I am unclear if BT Global Services have to apply Cleanfeed to the majority of their business customers who don’t currently subscribe to this service, and what this might cost.
It’s the point about equitable treatment that I feel is unfair to BT, and creates a market distortion. The judge has permitted the Studios to victimize the largest UK ISP and as such means that it is now in an uncompetitive position to trade. It’s not just that deemed illegal activity is unavailable at BT while remaing so at its competitors; BT’s customers have to pay the additional cost of enforcing the injunction.
In the discussion about whether BT could claim damages against the Studios for loss of business, the judge drew the conclusion that the only damages BT would suffer would be claims from customers about loss of service, which since the judge deems the service lost to be an illegal one, he’s not too fussed. The second cause of loss might be liability caused by wrongful blocking due to mistakes made by the Studios. He states that he considers the risk of the Studios over-notifying candidates for blocking to by negligible or minor. (Actually, the judgement states there is no evidence that this would occur). I’d suggest that the behaviour of the customers of some law firms in the USA and Europe, such as ACS Law shows that some copyright holders have little interest in the accuracy of their data when asking for remedy, shown by the number of people caught in their trawl who plausibly claim complete innocence. Bad behaviour is pervasive enough for the term Copyright Troll to have come into existence, The Judge says that he accepts mistakes can be made, if so why doesn’t he support BT’s right to claim damages in circumstances that a notified candidate for blocking is wrong. While making mistakes remains cost free, they are more likely to happen, even more so in a profit making organisation.
Also in looking at counter damages, the Judge missed the lost business caused by people that don’t want to subsidise the Studios profits moving to non-injuncted providers. He also maintains that the decision to apply for injunctions against other ISPs is that for the Studios. If BT consider that the Studios are using the courts in an anti-competitive manner, they’ll have to return to court, presumably on the basis of changes in market and/or the Studio’s behaviour after the site blocking is implemented.