Faced with resilient websites and services that respond quickly to attacks by law enforcement, copyright holders around the world have sought more permanent ways of limiting the growth of pirate sites.
Spreading rapidly through Europe to countries as far-flung as Australia, one of the most popular has become the website-blocking injunction. Initially obtained via complex and pioneering legal processes, in some countries these court orders are now fairly easily obtained.
Researchers from Western Sydney University and King’s College London have published a paper examining regimes in three key regions, the EU, Australia and Singapore. They find that all display shortcomings which negatively affect rightsholders and in some cases even due process.
“[T]here are problems not only with the remedy itself but also in the manner in which the blocking injunction is implemented,” the researchers write.
“The fact that multiple proceedings have to be filed in order to obtain a global level of enforcement and the possibility of blocking measures being circumvented are problems with the remedy itself.”
In other words, copyright holder dreams of rendering content inaccessible everywhere will require injunctions in all countries against every major ISP. Even then, that won’t solve the problem of the workarounds (proxies, VPNs) that are constantly being made available.
But while rightsholder problems are regularly documented, the researchers also draw attention to the manner in which injunctions are obtained, particularly in the UK where many hundreds of sites are blocked by ISPs. Their first concern focuses on how site operators are effectively excluded from proceedings.
“Notably, neither of [the] domestic provisions under which the High Court typically exercises jurisdiction in granting blocking injunctions provide that the operators of the online locations sought to be blocked be made party to the application before the court,” the researchers write.
“Thus, a common feature in the series of cases leading to blocking injunctions in the copyright context…is that only the ISPs who were called upon to block the target online locations were before court and not the operators of the online locations in issue.”
While it is unlikely that many site operators would appear in court to contest an injunction, the researchers say it is a “cause for significant concern” that the legal mechanism effectively freezes them out of the process, especially since local ISPs no longer contest proceedings.
“[M]ost orders to-date have been granted after consideration of the applications on paper alone. Essentially, what this means is that the court is only possessed of the material submitted by the rights-holders, which go uncontested by the ISPs, leaving the interests of the operators of the target online locations completely unrepresented,” they write.
But while noting the above, the researchers do make it clear that the court hears the merits of these cases. They also add that the sites being blocked are “patently infringing”. However, due to the way the legal process operates, it’s possible it could be abused.
“What must be emphasised is that, in future, there may be instances where the operator of an online location has a plausible defence to a claim of IP infringement,” the researchers say.
“In the circumstances where the court is only privy to the pleadings and documentary evidence submitted on behalf of a right-holder, the court’s discretion may become the subject of abuse, especially since the only other party before court (i.e. the ISP) shows no interest in protecting the operators of target online locations.
Indeed, due to the manner in which the relevant EU directives are implemented, even site operators who can be identified and notified don’t have to be informed of proceedings under the law.
“In the EU’s context at least….the implementation of the blocking injunction fall short of due process requirements,” the researchers note.
“Although, in the UK….a safeguard was incorporated into blocking orders allowing the authors/owners of the content blocked to apply to court to have the injunction varied or set aside, the lack of a notice requirement under the law may render this safeguard, at best, useless.”
Thus far there have been no signs that rightsholders have attempted to abuse the blocking process in the UK, but the almost complete lack of transparency after court orders are issued remains a cause for concern.
Once an injunction is obtained, rightsholders are free to add additional domains to the UK’s blocklist, as and when they see fit. No ISP currently maintains a public list of the domains being blocked meaning that the whole process is shielded from public scrutiny.
It’s believed that more than 1,000 sites might be blocked in this manner but few people have this information. A public list would go some way to inspiring confidence that the kind of abuse the researchers highlight doesn’t come to pass.