NewzBin2: some reflections

So much has already been written and posted on today's judgment of Mr Justice Arnold in Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch) ("NewzBin 2") that it is difficult to think immediately of a fresh slant for coverage on this blog.  In short, for those who may have missed it, NewzBin's rather crude attempt to keep its Usenet internet indexing website going has been smitten by an order that internet service provider BT block users from accessing NewzBin's website.  The order actually sought runs like this:

""1. The Respondent [i.e. BT] shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:
(i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.
(ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.
2. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.
3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses)".

A fairly lengthy account of NewzBins 1 and 2 appears on the IPKat here. and the BBC's report is here.

Rights-owners are predictably jubilant at their victory in what is very plainly stated to be a test case (though, curiously and perhaps for subtle strategic reasons, other ISPs which were invited to intervene in these proceedings declined to do so).  A lot of work has gone into preparing the ground for this action. Given the state of the law and the nature of the damage inflicted, the victory was deserved.  In contrast, those who are not rights are owners are equally predictably critical. While no-one appears to have a good word for NewzBin itself, there are wider issues afoot.

Among the more interesting comments is that of Andrew Orlowski, writing for The Register here:

"It's fascinating to hear arguments such as BT's contention that it is not an internet service provider, or that Newzbin2 members were passive recipients, and just happened to have anime and pirate movies pop onto their PCs ... or that after notification from a copyright-holder, an ISP could claim that it hadn't been notified. These are surreal arguments [Andrew's right, and this blogger wishes that this sort of thing would stop. It wastes the court's time, distracts us all from the core issues and does little to enhance the public's image of the legal profession].

The voluntary plan at meetings chaired by Culture Minister Ed Vaizey – one floated by publishers, music and movie industries and the Premier League – permits speedy judicial review of site-blocking on a site-by-site basis. BT was the strongest opponent in those talks – perhaps hoping for a favourable decision from Arnold.

That hasn't been forthcoming.[It surely wasn't likely to be forthcoming either, in the light of the ruling in NewzBin 1 and given that Arnold J is not known to be a fantasy judge]

Site-blocking not only runs contrary to the classic liberal spirit of English law – I have seen no exemption mooted for journalists or researchers – but it also has another consequence. It makes rights-holders look like they're keener on legislation than on creating new markets for content. Despite a smashing victory, they should be careful what they wish for ['creating new markets for content', like 'creating new business models', is becoming an increasingly hopeless cry as it becomes ever more apparent that there are no realistic and sustainable business models without enforceable copyright -- with the possible exception of micropayment schemes -- and no realistically enforceable copyright in the face of technological advance]".

Readers' comments and reflections are welcomed.