UK ISP injuncted to block Newzbin website. Could it happen in NZ?

POSTED BY Rick Shera
29 July 2011

posted in l@w.geek.nz | Copyright

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In a decision issued yesterday (67 page PDF), Justice Arnold in the UK High Court, Chancery Division, granted an injunction in a test case against the largest British ISP, BT. The action was brought by a number of MPA member movie studios but the injunction granted equally benefits all copyright owners whose works might, but for the injunction, have been infringed in the future by Newzbin/Newzbin2 or its users.

The injunction reads:

"1. The Respondent [BT] shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:

(i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.

(ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.

2. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.

3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses).”

Justice Arnold is pretty dismissive of all the usual arguments as to proportionality, efficacy, cost, floodgates etc that BT raised. Then again, the evidence quite clearly showed that around 98% or more of the material made available via the Newzbin site was infringing so BT wasn't in a strong position with respect to the underlying harm. As Justice Arnold said:

"It appears to be quite hard to find any content on Newzbin2 that is not [infringing]"

The Injunction is granted under section 97A of the UK Copyright, Designs and Patents Act 1988, which reads:

97A  Injunctions against service providers

(1)The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.

(2)In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to—

(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and

(b) the extent to which any notice includes—

(i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.

We don't have an equivalent provision in New Zealand and the Newzbin2 decision is very much based on an analysis of European Union Directives, from which s97A is derived. The decision is also clearly limited to its facts and His Honour is at pains to rebut the floodgates argument that BT raised (although how successful that will be remains to be seen since it is acknowledged that this was a test case and that all ISPs would be faced with the same requirement, at least with respect to the Newzbin site). 

We do of course have the now standard DMCA style notice and takedown/ISP safe harbour regime in sections 92B-E of the Copyright Act 1994, and the right to obtain injunctions is specifically reserved in those sections. However, as I read them, those injunctions must be targeted at a specific instance of infringement or on-going infringement by a specific infringer, of a known work, not the broad injunction against anyone in respect of any works owned by any copyright owner now or in the future, as granted in the Newzbin case. So, at first glance, I don't think the Newzbin case has much direct application in New Zealand at present.

However, three factors need to be borne in mind:

  1. New Zealand ISPs do already operate a filtering system based on a list of sites that our Department of Internal Affairs has determined contain objectionable material under the Films, Videos, and Publications Classification Act 1993.  So, we could as easily slip down the slope which starts with ISP filtering for criminal content and has now lead in the UK to filtering for civil infringement.
  2. The US position (PDF) put forward for the Trans Pacific Partnership Agreement would expand the scope of injunctions able to be granted against New Zealand ISPs, enabling a Newzbin type injunction to be granted here.
  3. Our Copyright Act is up for general review in 2013.

Given those three factors, I expect that movie studios will be pushing for the same regime to be implemented here over the coming years.

POSTED BY Rick Shera
29 July 2011

posted in l@w.geek.nzCopyright

VIEWED 3699 TIMES

PERMALINK

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