Friday 25 May 2012 by Mark Weston

In 2003, a group of friends living in Sweden launched a website which quickly became one of the most notorious sites on the internet - a file-sharing website known as The Pirate Bay. The High Court has now instructed five internet service providers (ISPs) to take measures to block their users from being able to access it. A sixth ISP asked the court for a 'few more weeks' to consider its position in blocking it.

So what happened? Back in November 2011, the British Phonographic Industry (BPI) asked the ISPs voluntarily to block access to the website. They refused saying it would take a court order for them to implement the request, as they wanted to protect themselves against being sued by users and against charges of censoring the internet.

The BPI successfully applied to the High Court to block public access. Interestingly, The Pirate Bay does not host any actual copyright material itself, such as music/video files. Instead, it hosts links and tracker files which are available for users of the website to download, which facilitate the copying of copyright material on computers worldwide through the BitTorrent protocol. The Pirate Bay is the largest site in the world hosting these links and tracker files. The owners and operators of the website make a lot of money annually in revenue from advertising on the website (and we are talking seven figures here).

The BitTorrent protocol is a technology that can be used for good or bad. Legitimate uses include the distribution of legitimate files in a fast and cost-effective manner. Early versions of the BBC iPlayer used this technology. Numerous trackers on The Pirate Bay point to files which are allowed by their respective copyright owners to be shared e.g. new and upcoming bands who want their material distributed widely. However, there is a massive illegitimate use too. If the technology is used to allow copying and distribution of files which are subject to copyright (which it usually and frequently is) then it threatens the revenue and investment of the creative industries and deprives them of that revenue, investment and ultimately costs jobs. It is the so-called hidden cost of illegitimate use of the technology.

The policy reasoning behind the judgment is somewhat obscure. If the judgment is official judicial condemnation of file-sharing of copyrighted content then that is all well and good. But it is not a surprising condemnation... because we all knew that anyway. Lots of parliamentary and judicial developments in the UK and overseas tell exactly the same story. For example, the Digital Economy Act in the UK two years ago, the recent Wikipedia 24-hour shutdown in protest at the Stop Online Piracy Act legislation going through the US Congress, our own home-grown ACS:Law saga culminating in the recent Ben Dover Productions and Golden Eye International case; through to judicial and government action halfway round the world in New Zealand with the pursuit by the US authorities of the founder of Megaupload, the flamboyant Mr Kim Dotcom. So another judicial condemnation is a bit interesting... but not very much so because it is nothing new and the price paid for it (i.e. censoring the internet) seems disproportionately high.

Perhaps the judgment was a practical measure to stop file-sharing of copyrighted content through The Pirate Bay website? I hope not. Because this is not the way to do it. Anyone who uses that website through any of those ISPs can circumvent any controls put in place by the affected ISPs by simply using a proxy server to access the blocked site, which takes all of 60 seconds or less to set up. The effect of the judgment can be nullified with a few clicks of the keyboard - while putting the ISPs to the cost for no real purpose; and really only ending up affecting innocent consumers who do not anyway use the blocked site and who end up paying higher charges to fund the cost of the ultimately futile blocking measures.

The other problem is that censorship can have the affect of increasing traffic as people who would not otherwise try and access a censored site try anyway. There is a case to be made for some censorship. For example, child pornography sites should be shut down and blocked. The overwhelming majority in the UK agree about this. That is because millions of people in the UK do not access child pornography sites (nor would they want to) and they are rightly concerned about the disproportionate harm that results from such sites.

However, millions of people do share files - unlawfully and without an appreciation of the more hidden harm it causes to the creative industries and the economy in general. And in such cases, censorship is often counterproductive, particularly when any such blocks can be easily circumvented.

A far better way forward to combat the leakage of intellectual property and the revenue attached to it must surely be firstly, education of the public by the creative industries. They need to make their case loudly and publicly as to the reasons why it is bad to rip off content. This message needs to be tailored and repeated. Secondly, it needs to be a message that is combined with imaginative, creative and competitive pricing and distribution mechanisms for their content so that legitimate routes to content are far more attractive. Education of consumers combined with affordable and realistically accessible content streams for consumers must, and should, be the way forward.

Mark Weston partner at Matthew Arnold & Baldwin LLP

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