Analysis: Government rules out web site blocking

But last week's landmark Newzbin2 ruling suggests the judiciary favours tough action against illegal file sharing

The government today said it will not move forward with web site-blocking regulations contained in the controversial Digital Economy Act (DEA).

The plans to block access to sites that infringe copyright had been widely criticised and described as "unworkable" and "technically difficult" by open rights campaigners such as the Open Rights Group.

In February, Minister for Culture, Media and Sport Ed Vaizey asked communications regulator Ofcom to look into issue. The watchdog today came back with a report that concludes that the proposals in their current form are unworkable.

"Ofcom concludes that the blocking of infringing sites could potentially play a role in tackling online copyright infringement, but that the approach set out in the DEA is unlikely to be effective because of the slow speed that would be expected from a full court process," the Department for Culture, Media and Sport (DCMS) said in a statement.

"This would provide site operators with the opportunity to change the location of the site long before any injunction could come into force. The government will not bring forward regulations on site blocking under the DEA, at this time," it added.

In its official response to the Ofcom report, entitled Next steps for implementation of the Digital Economy Act, the DCMS said it would investigate other measures to tackle online copyright infringement, but did not state what these were.

In an accompanying statement, Vaizey said: "It essential that businesses have the right tools to protect their hard work and investment in the digital age."

It now seems clear, however, that the government no longer considers site blocking to be one of these tools.

Newzbin2

But by rejecting site blocking, the government appears to be at odds with the High Court, which in a landmark ruling last week forced BT to block access to illegal file sharing web site Newzbin2.

In a victory for the Motion Picture Association (MPA), Justice Arnold ruled that BT must prevent its customers from accessing Newzbin2. BT and the MPA are due to go to court again imminently to work out how BT should implement the ruling. BT said that it welcomed the decision.

Alex Carter-Silk, partner and head of IP, technology and commercial at law firm Speechly Bircham, said Justice Arnold's ruling was unprecedented, but pointed out that ISPs have always been under a legal obligation to alert the authorities to illegal web sites.

"The E-Commerce Directive states that if ISPs are mere conduits to the web sites and aren't aware that file-sharing activity is taking place, then they aren't liable to take action under law.

"However, once they are informed or ‘placed on notice' of this activity, they lose their ‘conduit' status and are responsible," he said.

"This is a landmark case because up until this point, ruling on copyright legislation had been put in the ‘too difficult' box.

"Judges didn't know how to enforce this legislation, they weren't technically savvy enough. But Justice Arnold was technically savvy and he made a sensible ruling here.

"The filtering systems used to map the path of these copyrighted materials are pretty sophisticated now, meaning ISPs can police their networks, and Arnold was aware of this."

Carter-Silk argued that this ruling marks a shift in attitude towards the enforcement of stronger copyright laws within the legal profession and that this was a good thing in his opinion.

"After all, without the clout to be able to legislate against illegal sites, you are unable to legislate against privacy and defamation issues and make the internet a complete free-for-all," he said.

But the courts aren't enough....

Jan Dawson, chief telecoms analyst from Ovum, agreed that the Newzbin2 case was a landmark ruling and that it reinforced BT's approach to the issue of ISPs policing file sharing web sites.

"BT had always made it clear that it was not a copyright expert and blocking sites like Newzbin2 was not a judgment call it should be making.

"Therefore this court ruling has meant that they can effectively outsource the decision," he said.

However, the problem of illegal file sharing cannot be effectively tackled by having copyright law enforced on a case-by-case basis.

Dawson explained that to make copyright law workable, the industry needs a longer term solution, a piece of legislation that would enforce these copyright laws, and this is the solution the government should be working towards now.

"In essence, the Digital Economy Act was trying to put a system into place to deal with this issue, but there was a great deal of opposition to that act.

"However, in principle, ISPs do have an incentive to deal with the problem as illegal file sharers use up considerable bandwidth – they just don't want to have to make these decisions themselves."

Peter Bradwell of the Open Rights Group was broadly positive about the government's Next Steps report, but critical of Justice Arnold's ruling.

Bradwell said Next Steps showed that the government has been persuaded by Professor Ian Hargreaves recent Digital Opportunity report, which looked at how the government can grow the economy by altering IP law. It stated, after looking at international examples of file blocking: "Investment to date in stronger enforcement has not significantly reduced piracy."

"Clauses 17 and 18 of the Digital Economy Act are unworkable, technically difficult and not speedy enough to provide copyright owners with the protection they need," said Bradwell. "The Hargreaves report stated that it was not clear that web site blocking is the best way to help artists recoup the money lost through file sharing, and that this might be better achieved by market and licensing reforms."

He added that he thought the Newzbin2 ruling was "dangerous".

"It is dangerous technologically, because there is always the risk of overblocking sites, which will cause problems with internet access, and it is socially dangerous because, [if this was made standard practice] the speedy blocking of sites might see innocent sites and innocent users accused of illegal activity," he concluded.