Old Newzbinned

I see that Lexology carries a note on the decision in Motion Picture Association v BT [2011] EWHC 1981 (Ch) in July, ordering BT to block access to a revived "Newzbin2" web site that was enabling a large scale copyright infringement in films after an earlier site had been successfully restrained. 

The problem with services that post material on a delayed basis is that time-pressured senior lawyers can get over-excited about the 'latest' case, and miss all the discussion that occurred when it first hit the traditional and social media, none of which is summarised in the note. That's especially problematic in this particular context, given the vast lobbying effort by the 'majors' to gloss over some critical issues associated with alleged mass copyright infringement.

Specifically, the injunction was granted under section 97A of the Copyright, Designs and Patents Act 1988, which enacts the Information Society Directive (2001/29/EC) giving the High Court "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." 

The case shows that rightsholders have long had adequate protection for mass infringement, and underscores the waste and futility involved in passing the Digital Economy Act during the infamous Parliamentary 'wash-up' of 2010. The core provisions and site-blocking generally have been found by Ofcom to be unworkable; and the Liberal Democrats have joined the calls for the DEA to be largely repealed.

More productive efforts are focused on modernising our intellectual property rights, and it would be good to see more articles on that. 

Wither the Digital Economy Act?

Well wasn't this a shoddy little piece of Parliamentary washing-up?

A year later we're still fussing over the damn thing and, surprise, surprise: site-blocking has been abandoned as unworkable and ISPs won't have to subsidise the costs of protecting outmoded entertainment industry business models.

BUT! I cannot fathom a decision to charge on individual citizens £20 for appealing "every notification letter received from their ISP, and against every instance of infringement identified" by a copyright owner. It's all very well to say that this will discourage vexatious appeals and that the individual can recover the £20 if their appeal is successful. But where is the constraint on the mistaken, vexatious or groundless issue of infringement notices? Will it cost £20 per notice to complain about that? Can they all be heard together? These things could arrive like confetti, effectively reversing the burden of proof and obliging the indivdual to underwrite a multiplicity of appeals.

My sense is that there will be not be a significant number of appeals. But, on the flip-side (as it were), rights owners who avail themselves of this process will find their material shunned altogether, for the reasons discussed in Henry Jenkins' "Convergence Culture". Rights owners who don't understand that are doomed.

I can't imagine what Kafkaesque process Ofcom is being forced to envisage in order to bring this monster to life, but I understand we'll find out "shortly".

Image from LoveMarks.