Today’s decision by the High Court to force BT to block access to a website has been greeted with both derision and jubilation on both sides of the copyright debate. But one thing must be clear - it is not the role of the courts to dictate the terms of what can and cannot be viewed by British people online.
The judge leant heavily on the fact that BT, as a service provider, had ‘actual knowledge’ of the material being transmitted. BT’s previous actions back in 2002 when it threatened to both cut off and throttle customers it believed were infringing copyright (not to mention it’s dabble with Phorm) didn’t help its case - but the latest development is far more significant.
ISPs have relied on the argument that they are not responsible for the actions of the end user (the ‘mere conduit’ defence) and this has been the rationale for campaigns against ISP intereference in connections and the throttling of bandwith. This argument did not fly in court.
Quite worryingly, Judge Arnold also said he believed site-blocking was proportionate, with the Human Rights Act’s Article 1 – which protects the property rights of creators – outweighing Article 10’s rights of free expression.
Following today’s ruling, the legal team acting for the six Holywood studios have said they intend to apply for the same injunction to other ISPs. BT have yet to say whether they will appeal.
This entire debate - as I wrote earlier in the week - has taken place far from public scruitiny, or indeed political leadership. This ruling adds more urgency for the need for a public debate and real discussion.
It is also with a deep sense of irony that on the same day as the BT ruling, a report was leaked detailing how those using pirating sites are far from the parasites they are often portrayed as and are infact good consumers. The report found “pirate site users to buy more DVDs, visit the cinema more often and on average spend more than thir ‘honest’ counterparts at the box office.”
Yet again, we see the industry old-guard taking a punitive and retrograde approach to copyright, dogmattically using every legal tool at their disposal to protect a business model that is undergoing a slow, tortuous death.
I seem to be writing a great deal at present about Britain’s future as a digital knowledge economy and how frequently it seems the ‘establishment’ , be that Whitehall, the Courts or classical business models, risk undermining the transition to this new economy with their actions.
One thing is for sure - the longer rights holders try to hold back the tide of the new industrial revolution, the more likely it is that when the new markets emerge, it won’t be those companies reaping the rewards.