Hollywood v BT: consequences for all European ISPs, court told

20th Century Fox v BT:

Is BT the first in a domino effect of blocking orders? BT's defence against the Hollywood studios who files for a blocking order, will be critical for the Internet in the UK and Europe. The case could set up an important precedent. Both parties in court were accutely aware of this possibility.

I attended the court hearing yesterday. Here is my first report of the proceedings. Most media appear to have reported this case based on information supplied by the MPA. I heard BT's submissions, as well as responses from the MPA.

British Telecom (BT), the UK's largest Internet service provider, is defending itself in court this week against a website blocking order filed by the the Motion Picture Association ( MPA ) which is the European arm of the MPAA, representing the major Hollywood film studios. The MPA is asking for an order to make BT block access for all of its subscribers, to a website called Newzbin, which allegedly offers access to unauthorised copies of films and music.

It emerged in court that the application for the blocking order followed months of

litigious threats against BT. The proposed blocking order itself was only served on BT on Monday of this week. Anthony White QC for BT, told the court that BT has not yet had a chance to review the likely effects of the proposed order, for example, the effect on subscriber churn. It is understood that the proposed order commands BT to block the entire Newzbin website.

It is not clear whether other UK ISPs have been issued with similar threats. Mr White (BT) said: ' This is a case where an ISP is alone before a court.' And : 'We would not want to be singled out as the only ISP. We don't know if the claimant intends to file against all ISPs'.

Mr White argued that as a 'mere conduit' BT does not select the content which it carries and therefore it is inapproporiate to order it to block content. : 'ISPs are in a business which is centred on open access to the network'

BT raised a two-tier argument - against the proposed order in its totality, and, if the judge were to be minded to make the order, BT argued for some changes.

Mr White (BT) told the court that there is a risk that if this proposed order is granted, the consequences could be that similar orders will follow for other UK ISPs, and for ISPs in other European Union member states. BT has been told of 400 websites which the rights-holders wish to have blocked. Moreover, he highlighted the risk that follow-on orders would not just be copyright, but could relate to any other material which someone might want to keep out of the public domain, and he briefly alluded to recent privacy cases and super-injunctions.

If I understand it correctly, he was suggesting that if the order it granted, there could be a kind of domino effect, where more and more organisations file for blocking orders and other ISPs are targetted.

Mr White (BT) requested that if an order is made, it should be limited to specific URLs, taking the view that there could be legal and non-infringing content on the site, even if it was a small percentage. He also argued that the MPA content in only part of the Newzbin site, and that it is disproportionate to block the whole website on their behalf. It would be inappropropriate to set a precedent of blocking the entire site, was the thrust of his argument.

Richard Spearman, Q.C, for the Motion Picture Association, countered 'my instructions are that there is more than one URL. The French versions of films alone, he said, would be 15,000 URLs.'

'This is infringement on a grand scale' he said.

Mr Spearman (MPA) said that his client was not accusing BT of any wrongdoing, but was filing for the blocking order because BT was best placed to prevent the infringement.

And Mr Spearman (MPA) formulated an argument that the court is obliged to consider the rights of others, and if I understood it correctly, those 'others' could be people who have not made a claim or filed for a blocking order, but who may have copyrighted content on the site. Such as the music collecting societies and the BPI. (Iptegrity readers who followed the Telecoms Package will be familiar with the phrase 'the rights of others' as a euphemism for copyright.)

Please attribute this article: Monica Horten (2011) Hollywood v BT: consequences for all European ISPs, court told http://www.iptegrity.com 30 June 2011 .

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