The movie and music industries have obtained several High Court orders which compel UK ISPs to block dozens of websites said to facilitate access to copyright-infringing content. Recently, however, they have been joined by those seeking blockades on trademark grounds.
The lead case on this front was initiated by Cartier and Mont Blanc owner Richemont. The company successfully argued that several sites were infringing on its trademarks and should be blocked by the UK’s leading ISPs.
The case is important not only to trademark owners but also to those operating in the file-sharing arena since the High Court is using developments in one set of cases to determine the outcome of legal argument in the other.
The latest ruling concerns potential over-blocking. In some cases target sites move to IP addresses that are shared with other sites that are not covered by an injunction. As a result, these third-party sites would become blocked if ISPs filter their IP addresses as ordered by the Court.
To tackle this problem Richemont put forward a set of proposals to the Court. The company suggested that it could take a number of actions to minimize the problem including writing to the third-party sites informing them that a court order is in force and warning them that their domains could become blocked. The third party sites could also be advised to move to a new IP address.
Complicating the issue is the question of legality. While third-party sites aren’t mentioned in blocking orders, Richemont views some of them as operating unlawfully. When the company’s proposals are taken as a package and sites are operating illegally, Richemont believes ISPs should not be concerned over “collateral damage.”
Counsel for the ISPs disagreed, however, arguing that the Court had no jurisdiction to grant such an order. Mr Justice Arnold rejected that notion and supported Richemont’s efforts to minimize over-blocking in certain circumstances.
“The purpose of Richemont’s proposal is to ensure that the [blocking] order is properly targeted, and in particular to ensure that it is as effective as possible while avoiding what counsel for Richemont described as ‘collateral damage’ to other lawful website operators which share the same IP address,” the Judge wrote.
“If the websites are not engaged in lawful activity, then the Court need not be concerned about any collateral damage which their operators may suffer. It is immaterial whether the Court would have jurisdiction, or, if it had jurisdiction, would exercise it, to make an order requiring the ISPs to block access to the other websites.”
The ISPs further argued that the Court’s jurisdiction to adopt Richemont’s proposals should be limited to sites acting illegally in an intellectual property rights sense. The argument was rejected by the Court.
Also of note was the argument put forward by the ISPs that it is the Court’s position, not anyone else’s, to determine if a third-party site is acting illegally or not. Justice Arnold said he had sympathy with the submission, but rejected it anyway.
“As counsel for Richemont submitted, the evidence shows that, in at least some cases, it is perfectly obvious that a particular website which shares an IP address with a Target Website is engaged in unlawful activity. Where there is no real doubt about the matter, the Court should not be required to rule,” the Judge wrote.
“Secondly, and perhaps more importantly, Richemont’s proposal gives the operators of the affected websites the chance either to move to an alternative server or to object before the IP address is blocked. If they do object, the IP address will not be blocked without a determination by the Court.”
In summary, any third-party sites taken down after sharing an IP address with a site featured in a blocking order will have no sympathy from the High Court, if at Richemont’s discretion they are acting illegally. The fact that they are not mentioned in an order will not save them, but they will have a chance to appeal before being blocked by UK ISPs.
“This action is about protecting Richemont’s Maisons and its customers from the sale of counterfeit goods online through the most efficient means, it is not about restricting freedom of speech or legitimate activity,” the company previously told TF.
“When assessing a site for blocking, the Court will consider whether the order is proportionate – ISP blocking will therefore only be used to prevent trade mark infringement where the Court is satisfied that it is appropriate to do so.”