Should ISPs pay to block pirate websites? Supreme Court to decide

BT and EE have appealed to the Supreme Court of the UK against an earlier ruling that made ISPs liable for the costs of blocking copyright infringement websites. The appeal was heard by five judges sitting in the highest court in the land – though half the legal arguments were based on EU regulations and directives. Telco …

[Voland's right hand]

"pornography, gambling, even social media" sites, which he inferred was done regardless of whether others were paying for it. If, he reasoned, ISPs could do that voluntarily, why not do it for copyright-infringing content?

Told ya so. If you open the censorship can of worms once, there is no way in hell to put the wiggly ones back into the can.

[IsJustabloke]

It's not quite the same thing...

In one instance the gov are saying... "hey You! Block that website it's nasty!" in this case it's company saying "hey you! block that website they're ripping us off!"

although it makes me feel dirty, I'm kinda with BT on this, why should they bear the cost of shutting down the rip off?

That said I don't disagree with the general point you make re censorship and worms

[Anonymous Coward]

Re: It's not quite the same thing...

I'm kinda with BT on this, why should they bear the cost of shutting down the rip off?

I am not.

1. They have been instrumental in pushing the capability through (no comment on the actual drivers to do so).

2. They have repeatedly branded everyone who has pointed out what this is going to end up with as a paedophile protector (if not an outright suspect paedophile).

3. They have always been the SP to be at the forefront of deploying this too

So now, the court tells them to bend over and provide services to all and sundry for free. That as far as I am concerned is justice being served. Without Vaseline.

[Dan 55]

Re: It's not quite the same thing...

although it makes me feel dirty, I'm kinda with BT on this, why should they bear the cost of shutting down the rip off?

The blocking infrastructure is up and running, the cost to add a new address is negligible. The big ISPs block websites by categories anyway as a 'service' to the subscriber.

[chivo243]

@Volands right hand

there is no way in hell to put the wiggly ones back into the can.

And no spoon big enough to eat them all ;-}

[Jeffrey Nonken]

Zymurgy's Law of Evolving Dynamics: The only way to re-can a can of worms is to use a bigger can.

[Anonymous Coward]

I think a very large number of commentards including myself have made this observation. It was only a matter of time. Next up websites that disagree with the political establishment and then it's time for the thought crime police.

[alain williams]

political banning

websites that disagree with the political establishment

we already have that. A few months ago the Spanish government blocked access to web sites that were pro Catalan separatist; in the run up to the (unofficial) referendum.

[The Nazz]

Re: political banning

further to Alain Williams' post

And the EU's comment (well, that of Juncker and Tusk certainly) on Spain/Catalonia? "It's a matter for them internally"

Yet, their response to such as Poland, Hungary and other eastern countries relly not wishing to have, nor willing to take enforced mass migration on themselves. An internal matter for those countries?

"Hell, no, they're bastards, how the hell dare they defy our dictats. Let's penalise them forthwith."

[Nublaii]

Re: political banning

I think you meant to write “illegal” referendum... different fish.

[Brewster's Angle Grinder]

"Next up websites that disagree with the political establishment and then it's time for the thought crime police."

None of this blocking is happening on a politican's say so. It is happening in public, decided upon by independent arbiters, to rules set out by our elected government.

And I simply don't buy the argument we must adopt extreme libertarianism to avoid extreme totalitarianism. We can endeavour to strike a balance between "censorship" and freedom. Yes, there will be mistakes, and overshoots on either side. And, yes, constant vigilance is required to make sure it isn't pushed out to either extreme. But I think we can find a reasonable compromise.

[Anonymous Coward]

"We can endeavour to strike a balance between "censorship" and freedom"

We can, the problem is they can't and by they I mean the government and corporations. A government will censor what disagrees with it and paints it in a bad light, it's main goal is to stay/get in power and get money from corporations/rich people, corporations will do it in the name of profit.

[katrinab]

Sky Broadband Shield for example is an optional service, which I haven't activated on my account. I did however activate the Talk Shield.

[Halfmad]

Who decides if it's copyright-infringing?

Anyone with a Youtube account who uploads videos will likely have had at least one attempt to pull content or screw over monetisation due to "infringing copyright" when it's actually covered under fair use.

ISP are more likely simply to block entire domains than go for a case by case method.

Not a slippery slope, more a great big cliff.

[anonymous boring coward]

Re: Who decides if it's copyright-infringing?

Good thing you mention Youtube, as their business model largely relies on ripping off copyrighted material.

[anonymous boring coward]

Re: Who decides if it's copyright-infringing?

Why do you downvote me stating a fact?

The truth is unappealing?

[Anonymous Coward]

Re: Who decides if it's copyright-infringing?

Typically blocked content is not copyright infringing where the host server is situated or they would attack the source, only once the content appears in the copyright area is there any issue and then only for the local distributers.

However since rights to content are sold to local distributers so they can charge for our access then the ISP and the Governement are working for the distributers interests against ours, monopolies push our viewing cost up without any benefit to us or the content creators.

That the "infringing host" could be said to be just another distributer is said to be invalid on the premise that the distributer has been allowed to purchase the only right to distribute said content in your area, a legal supported monopoly. Netflix for example has most of it's content unavailible outside of the US as our local distributors have been given the only right to distribute here. The producers and artists still got paid by netflix but the blocking laws are not really for artists or producers benefit at all.

Now if the same content was sold direct to us without the local distributers then the producers and artists would still get paid but the leeches would not, hence we have laws to protect the leeches monopoly on what we are allowed to view.

Without the leeches then media access would be cheaper and the ISP and Government would not have to pay out our money to guarranty the leeches right to leech. Most people who use "infringing sites" would prefer to use a legitimate site, those that would not pay at all would not under any scheme.

So if the Government instead removed the distribution monopolies and all the laws created for their unfair protection then the whole "piracy" issue would disappear and we would all save money.

Lastly copyright infringement is never theft as the owner retains possession no matter how many people copy or view it.

[Joseba4242]

Re: Who decides if it's copyright-infringing?

> Typically blocked content is not copyright infringing where the host server is situated

Yes it is. Section 97A orders are issued in cases where the content are illegal in most jurisdictions.

> or they would attack the source

Being illegal does not mean that it is feasible to address the problem at source. See for example the Ecatel case which was decided last week where it took four years for the court to decide.

> Netflix for example has most of it's content unavailible outside of the US

Which blocking scenario are you considering that relates to Netflix? Netflix asking for a 97A order against UK ISPs to block access to Netflix content ? That would be most bizarre.

No, these orders are not used (or possible to be used) for geo restriction.

> So if the Government instead removed the distribution monopolies [...] then the whole "piracy" issue would disappear

How exactly would that stop counterfeit Cartier watches?

Of course all cases of copyright infringement could be stopped immediately by abolishing copyright. Whether or not a world without copyright (and hence a world without Game of Thrones and possibly Cartier) would be a better world is debatable, but there doesn't seem to be widespread support for it.

Outside Torrentfreak an ElReg that is.

[Pete 2]

Pass it on

> ISPs arguing that while they don't mind being ordered to block copyright-infringing content, someone else should be bearing the costs of doing so.

And someone else does: their customers. ISPs aren't some magic, infinitely deep well of money, gold and resources. Where all they have to do is dip in and pull out a wad. Any costs they incur gets passed on to their customers.

And if all ISPs are required to pay for a universal blocking service, it isn't as if they can find "efficiency savings" (aka making people redundant and requiring the poor gits who remain, work harder and longer hours).

So a universal cost increase will just be passed on to all the ISPs' users. They will all raise their prices by the cost of implementing this. Just as all energy companies raise their prices almost in lock-step when wholesale gas prices increase.

[}{amis}{]

Re: Pass it on

Just to play the devils advocate.

Who should pay for recall costs on a car defect the company the issue reporter or the user??

I look forward to the outcome of this ether way as there is guarantied ruffling of feathers.

[Anonymous Coward]

Re: Pass it on

"Who should pay for recall costs on a car defect the company the issue reporter or the user??"

That is an appalling analogy.

One is a fault by an existing and established manufacturer

The other is a 3rd party, unrelated to either involved in the case trying to make money out of scam.

[Anonymous Coward]

Re: Pass it on

I'm not even sure it qualifies as a "scam". Are these dodgy vendors deceiving their customers? Usually not, I think. In some cases, at least, they are merely providing a service which the government, following the advice of lobbyists, has chosen to make illegal.

[Dazed and Confused]

Re: Pass it on

> I'm not even sure it qualifies as a "scam". Are these dodgy vendors deceiving their customers? Usually not, I think. In some cases, at least, they are merely providing a service which the government, following the advice of lobbyists, has chosen to make illegal.

This is a much better analogy.

If I kill someone who I disagree with that is a criminal act and the police will come and arrest me and I'll be punished at the government (actually you and me)'s expense.

But if I libel them then the police and the government have no interest in the matter, it is up to the individual I libel to seek redress against me.

[Anonymous Coward]

Re: Pass it on

A better analogy would be who should have to pay to put a speed regulator into the car of a reckless driver. I don't think the car manufacturer should pay to police their customers like that.

[Dave K]

Re: Pass it on

>>Just to play the devils advocate....

Sorry, rubbish analogy. A better one would be to say that the police/councils can pass the cost of installing speed cameras (to catch those flouting the speed limits) onto the DVLA - seeing as it's the DVLA that collects the road tax which is used for maintaining the roads.

Even then, it's still not a great analogy really.

Ultimately, I for once agree with BT. If a company wants a dodgy site blocked (because they either cannot be bothered to go after the actual perpetrators, or can't for some reason) and they manage to get a court order for it, they should pay the costs for the block.

[Anonymous Coward]

Re: Pass it on

So a universal cost increase will just be passed on to all the ISPs' users. They will all raise their prices by the cost of implementing this.

Or conversely: the ISPs will implement the cheapest solution which can they can come up with, and that is an automated system that blocks *any* site requested by *anyone*, without any due process to investigate whether the request is legitimate or not. Of course, they then risk getting sued by people who are having their content blocked wrongly; but unlike big media companies, they probably won't have the resources to fight.

In the end, an auto-takedown approach results in the whole Internet being blocked, apart from a whitelist consisting primarily of Google / Facebook / Twitter (whose content can't be selectively blocked at the domain or IP level anyway)

[Pascal Monett]

Re: Pass it on

"an automated system that blocks *any* site requested by *anyone*, without any due process to investigate whether the request is legitimate or not"

Oh, I see, you're talking about YouTube.

I do believe that the issue at hand is not yet including takedown notices by "anyone". This is a court order we're talking about. I doubt the courts would start sending orders willy-nilly just because Bill Cartier, watchmaker, thought it would be funny to shut down Cartier.com.

[Anonymous Coward]

No damned way should ISPs be bare the cost of this. I have no love for large Corps that buy Laws to suit them but on the other hand they shouldn't bare the cost of blocking anything.

[Pen-y-gors]

Bare the cost?

It would be interesting if the ISPs did lay bare the actual costs involved, but they shouldn't have to bear the cost of enforcing the block.

[Anonymous Coward]

Re: Bare the cost?

The only peple who should bare the cost are the distributors, they are after all the only ones who profit from it.

In fact if they got rid of the distributor's content monoply then blocking would be unnecessary, the content creators could deal direct with their viewers or sell to more than one distributor who would then be buying a worldwide distribution right.

Ultimately content distributors have got used to having their hands in the public pocket and this is just more audio cassette tax where they charge everyone regardless of "guilt". They create nothing and are allowed to tax everyone because content exists, not if the content is viewed.

Everyone who uses the internet has to pay the local content distributors because they say so and they bribed the Government officals into agreeing with them. That is the real crime

[Pen-y-gors]

ISPs profiting?

I'm not too sure how ISPs actually 'profit' from subscribers connecting to a given site, whatever it is hosting.

The ISPs get their money from subscriptions for a service - a pipe. It doesn't matter which sites the subscriber views, they still get the same income.

Arguably, if these 'copyright infringing' sites encourage users to download large amounts of data in the form of video streams, that is actually reducing the profits of the ISP, as they need to provide additional capacity with no additional income.

[Charlie Clark]

Re: ISPs profiting?

It doesn't matter which sites the subscriber views, they still get the same income.

Not entirely true: depending on where the traffic is from and its volume they do pay. But this is only really noticeable for streaming video and not visiting the 1001E64 sites selling fakes and forgeries.

[John Sanders]

None of this makes sense

This is all opportunistic political shit.

No ISP is responsible for the actions of 3rd parties unrelated to them.

The only responsibility of the ISP is to keep the data flowing and the customer paying the bills happy.

In fact an ISP's only concern is getting paid for the services.

Why do ISP's have to act as the judiciary or the police?

This is all for censorship, and gibs.

[Mike Tyler]

well

Perhaps if the infringement is costing the likes of Cartier so much money, they should see paying to have it blocked as a good business decision, I don't suppose the court order / injunction came cheap, of course if they are just making a lot of noise and want to bully the ISP into paying ...

[Timmy B]

I recon...

A centralised scheme that companies opt into that is responsible for blocking sites. You're Nike and you want fake Nike trainers sites blocked you pay for access to the service for registration of sites blocked as the result of court orders and then ISPS check that service for free. Easy. That way anyone has fair access. Dammit governments if I can come up with these ideas, anyone can!

[Anonymous Coward]

Re: I recon...

So you are okay with giving control of what you are allowed to view with your internet connection to a group who are not going to pay you for the loss in your content access?

If anything on the internet can be blocked by at the ISP then the ISP subcription price should go down, you are paying for access not limited access

[JimmyPage]

Tax implications ...

Surely the cost of doing something mandated by law can be offset against tax ?

[GruntyMcPugh]

Riiight, so Joe Punter sees a nice knock of Cartier watch online,.... buys it, and it's delivered to him via a postal service.

Cartier are going after the ISP. Not the postal service,.... not the person selling the knock off watch,... but the ISP. Do they mean to go after the web hosting provider of the infringing web site? Are they looking down the wrong end of the pipe here?

[Doctor Syntax]

"Riiight, so Joe Punter sees a nice knock of Cartier watch online,.... buys it, and it's delivered to him via a postal service."

And take it a step further: say the knock-off vendor advertises by letterbox litter. Does Cartier hold the Royal Mail responsible for checking through all the mail and pulling out the infringing letters?

[Velv]

"say the knock-off vendor advertises by letterbox litter"

It could be argued Cartier should go after whoever distributed the letterbox litter...

[Charlie Clark]

Exactly, this is really a matter for customs and excise and similar. Blocking ip traffic is really difficult, clamping down on postal services that ship illegal wares while not trivial is a walk in the park in comparison. Also the payment providers.

[Pascal Monett]

Re: "Blocking ip traffic is really difficult"

Um, don't think so. Put an IP address on blacklist and you're done.

I'm not an expert, but if you can do exactly that in the Windows hosts file, I doubt it can be any more of an issue for an ISP with trained professionals.

[tellytart]

Re: "Blocking ip traffic is really difficult"

"I'm not an expert, but if you can do exactly that in the Windows hosts file, I doubt it can be any more of an issue for an ISP with trained professionals."

You can't just block an IP address - the way many modern sites are hosted now, if you block one IP address, you could also block many innocent sites that are hosted on the same server.

[GruntyMcPugh]

Re: "Blocking ip traffic is really difficult"

"Um, don't think so. Put an IP address on blacklist and you're done."

Afraid not. Take IIS, I host a test instance on my work PC for debugging issues on our Intranet servers. My PC has one NIC, and one IP address, yet I host several web sites on it. We aren't talking plain TCP/IP here, where a hostname equates to an IP, that's just the start of the process. Host Headers on IIS means you get the web site relating to the hostname you asked for, not the IP address the hostname resolves to. So I have wibble.workplace.com and wobble.workplace.com and both resolve in DNS to 192.168.1.1 BUT the http header comes to IIS asking for either Wibble, or Wobble and gets the appropriate web site.

So if you banned the IP you'd ban everything hosted on the same server,... hell, maybe even a whole farm if you have an F5 and it's doing the host header redirection.

[Anonymous Coward]

Re: "Blocking ip traffic is really difficult"

I know!

Let's just stop the domain from resolving, on any name server in the UK.

;)

[Barrie Shepherd]

Re: "Blocking ip traffic is really difficult"

:-) Good solution :-)

Then we can all set our DNS's to 8.8.8.8 or other "Open" DNSs and carry on as normal.

[Charlie Clark]

Re: "Blocking ip traffic is really difficult"

Um, don't think so. Put an IP address on blacklist and you're done.

I didn't say ip-address, I said ip-traffic. An awful lot of sites are now dynamically hosted and dodgy ones will happily go through loads of domains. The internet was built to be extremely resilient when it comes to routing traffic which is why restricting it is so hard and done so rarely: China, Iran, Saudia Arabia, etc. And only Chinas is really effectively able to block traffic without unplugging the pipes.

[Pascal Monett]

Thank you for that information

I understand now how complex the situation has become. Indeed, blocking an address does seem to be a lot more difficult a prospect than I initially imagined.

[adam payne]

Lord Mance did not appear to be impressed by the full costs argument, in which Speck claimed that ISPs are "profiting"

I don't see how they profit from it. ISPs are going to make loads of money from dirt cheap hosting.

Not everybody in the UK goes on these sites so why should I have to pay an increased amount of money to access the internet while getting the same service. ISP would pass any charge to to us the customer.

[The Nazz]

Indeed.

As has been said before, no way can the ISP be profiting. Maybe the hosting service, with Facebook etc riding on it's coat tails, are profiting for sure.

So, it follows that Specks submission to the SC is a deliberate misrepresentation, a falsity on which he and his clients wish to make a profit.

Can we look forward to the Bar Council, Law Society whoever, blocking him from such conduct? Yeah, thought not.

[Cuddles]

Follow the money

While people have made some good points about the problems of censorship and so on, the issue at hand here is far simpler than that and comes down purely to money. The copyright* holders are being ripped off and don't want to have to pay to stop it happening, which is actually fair enough on their part and would be horribly open to abuse if independent individuals could be forced to pay for every violation of their work. The ISPs are an essentially unrelated third party who, as others have noted, are essentially just providing a pipe at a fixed cost with no responsibility (and ideally no knowledge at all) of what passes through it, so obviously they don't want to pay. The IP violators are often anonymous, and in any case almost always unreachable by reasonable means in any reasonable timeframe, so it's effectively impossible to make them pay.

So that's where the argument comes from. There are three parties involved; the one who should pay can't be forced to, so the other two are arguing about who is actually going to pay in practice when both have good arguments why they shouldn't. People have suggested that things like the postal service and others could also be included, but that doesn't really change things. The question always boils down to who bears the cost when the party at fault can't be caught?

* The article says copyright, but this case is actually about counterfeit physical goods.

[Anonymous Coward]

Re: Follow the money

The content creators have not lost any money, local distributors say they have but since you cannot loose that which you never had then it is just their rewriting history and bitching about their competition being cheaper.

The reason the ISP is targetted is because the government and the distributors say that everyone must pay the distributors if they have internet access. The ISP is seen as a way to block access without having to pay each time, they managed to get the Government to put the law in and now the costs fall on the ISP rather than the people who actually want to block the content.

If you picked up a radio channel from another country then you are as guilty as someone who goes to a dodgy host i.e. not at all, the radio station has the right to distribute but another distributor bought the right to tax what you can listen to here.

The content creator has lost nothing, the only people who are grumpy are the distributors who were allowed to buy a right to tax you to watch the content and believe that everyone exists so they do not have to work for a living.

All this waste of money our money to protect the distributors right to leech off us, when they create nothing and benefit only themselves.

[KroSha]

Re: Follow the money

The question always boils down to who bears the cost when the party at fault can't be caught?

The answer is always: "The person who has something to lose."

In every other field, it's the original IP holder who has to take the counterfeiter to court, at their own cost. Usually, the judgement awards them costs, so they don't actually lose anything. But in these cases, they aren't going to get a court order, because they have no idea who the infringer actually is. So they end up out of pocket and the infringer has to find a new route to market.

If they actually want knock-offs off the market, they are going to have to play to get them taken down, at their own cost, or suffer the brand damage that comes with it.

Going after the ISP is like suing the Royal Mail for delivering the goods at the end of the purchase.

[Anonymous Coward]

It's copying and not theft, Cartier's problem in my book.

Does the kind of person who buys a knock-off Cartier look like the sort of person who can afford a real one ?

It's us broadband payers who can't afford a real Cartier having to pay to police their brand for the very wealthy if the costs are not redeemed.

[Pen-y-gors]

For Cartier (and similar 'luxury' brands) it's not that they lose potential sales to people who buy knock-offs, but once everyone is wearing replica Cartier watches, then the value of the brand falls, as the rich-but-dim people will stop wasting money on an over-priced Cartier watch, and will instead move to some other over-priced brand who have been more careful with their trademarks.

[Anonymous Coward]

>For Cartier (and similar 'luxury' brands) it's not that they lose potential sales to people who buy knock-offs.....

Fuck'em, power to the people.

[anonymous boring coward]

I suspect it's not the cost of blocking that worries ISPs. Due to less traffic, that would probably be a net gain for them. The problem would be that it might make them less attractive to the potential customer, opening the market for ISPs with less stringent control.

[Anonymous Coward]

Isn't this all a waste of time?

... as VPN is getting easier and easier.

At one point you needed to be a bit of a techi to do VPN, but these days you can just install a browser plugin, or install Opera, which has built in VPN now.

I tested the Opera one out the other day, tried TPB and failed (fresh install without VPN), turned VPN on in setting, and refreshed, straight through without issue, other than being slightly slower.

This without any technical knowledge.

[mark l 2]

Does blocking even make any difference to people buying from these counterfeit goods websites? I doubt it. As soon as the ISP block one domain name the scammers can have another one online in hours. Look at how effective blocking The Pirate Bay has been, I just typed 'The Pirate bay' into Google and the first link i clicked on took me straight there, even though it is supposed to be blocked.

Although i don't used my ISP's DNS servers so perhaps this is why i can get to it.

[Coofer Cat]

Charge Apple for it!

We should charge Apple for all 'lost revenue' from all this copyright infringement. After all, it's their computers that get used to watch it all.

In fact, we should also charge Intel, because without their chips, we wouldn't be infringing on copyright.

Why ISPs can ever be considered 'profiting from' copyright infringement, even after notification is beyond me.

[Colin Tree]

WGAF

anyone pirating is using a vpn, as encouraged by piratebay, etc

bypasses the ISP so WGAF

more shit coming from moronic mouths

[Barrie Shepherd]

Look to the Down Under model

A similar situation (requiring ISPs to block on Court Order) has been running in Australia. This was primarily a result of the movie studios working with the owners of the Dallas Buyers Club copyright

There the Courts have come down partly in favour of the ISPs and ordered that Copyright holders have to pay ISPs $50 per domain blocked. http://www.abc.net.au/news/2016-12-15/federal-court-orders-pirate-bay-blocked-in-australia/8116912

This has led to the inevitable "unintended consequence" that the Copyright holders have to keep going back to the Court to seek further domain blocks which puts the identity of the naughty domains in the public arena giving wannabe pirates a new list of domains to trawl for their films :-)

There is a cost of compliance (even if small) on the ISPs and, as the issue is a Civil matter between companies (i.e. not a criminal prosecution), I think it right that the ISPs should be recompensed for their efforts. Where crime is involved then it's equally right that the ISPs act without payment.

There is a thread, on the very respected Whirlpool Forums site, covering the debate. (tip select "Return to Standard View" - top right hand to make navigation easier.)

https://forums.whirlpool.net.au/archive/2591386

[Anonymous Coward]

Bitcoin

The ISP's could cover the costs by using hidden Bitcoin mining script injected into every government and politician websites.

[Anonymous Coward]

Yes, there will be mistakes,

and overshoots on either side

this attitude exactly makes me think software is not perfect as it could be.

[ecofeco]

And they STILL don't understrand how the Internet works

The PTB are truly clueless about the Internet.

You can't stop the piracy, the dark web, porn, none of it. The ability to route around obstacles was built in from the beginning. Just like the entire purpose of the PC was freedom from the mainframe.

To badly paraphrase Sir Pratchett, " a mistake every corporation has been trying to fix ever since."