Following a series of cases in which the High Court of England and Wales has granted blocking orders, a new injunction has been issued against two websites called SolarMovie and TubePlus. In Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors  EWHC 3479 (Ch), Arnold J is adding to the now long list of blocked torrent tracker sites in the UK, a list that includes Newzbin, The Pirate Bay, H33t, Torrentz, Torrent Reactor, and many others.
The blocking order follow a now familiar pattern established in 20th Century Fox v BT: lawyers for the film and/or music industry go to court against UK ISPs to try and obtain an injunction that will block access on those to a specific website. The subject websites are not included as co-defendants, and their guilt tends to be assumed, or dealt with separately. The websites are then blocked at the ISP level, meaning that any person who enters “www.thepiratebay.sx” into their browser will receive a notice stating that the site is not available.
The fact that these orders are ridiculously easy to bypass seems not to worry anyone involved in this cases, there is an almost wilful denial on the part of the movie industry, they really seem to think that this is the way to go.
There is one thing that sets Paramount v B Sky B apart from previous cases, and it is in the nature of the blocked sites. SolarMovie particularly does not host any content, and rather has links to content located elsewhere. Arnold J spends some time trying to decide whether these links constitute an infringement of copyright as the claimants argue that “some UK users of the Websites, namely users who submit links to infringing content to the Websites, infringe their copyrights by communicating the copyright works to the public.” Arnold J is in the process of considering whether or not a link constitutes communication to the public, and for that he refers to an ongoing number of cases in front of the ECJ, namely C-348/13 BestWater International GmbH v Mebes, C-279/13 C More Entertainment AB v Sandberg, and C-466/12 Svensson v Retriever Sverige AB. Some of these are unresolved (or the judgements have not been published) at the time of the judgement, but they prompt Arnold J to move away from the toxic doctrine that holds that hyper-links constitute communication to the public. He comments:
“I acknowledge that it is arguable that the mere provision of a hyperlink is not enough to constitute communication to the public (particularly if the hyperlink is not directly to a source of the copyright work). I also acknowledge that it is arguable that it makes no difference whether or not the source of the copyright work to which the hyperlink links is licensed by the copyright owner. I also acknowledge that it is arguable that it makes no difference whether clicking on the links results in framing (i.e. the work being presented within the frame of the operator’s website) or not. What the operators of FirstRow were doing, however, went beyond the mere provision of hyperlinks linking (directly) to (unlicensed) sources of copyright works (which were framed). As explained in the passage quoted above, they were intervening in a highly material way to make the copyright works available to a new audience.”
While Arnold J still grants the blocking orders, we are starting to see a more nuanced position that recognises that not all hyperlinks are the same, and judges are able to analyse the nature of the content being shared in order to determine if there is a communication to the public or not. Being the eternal optimist, I would hope that we will at least see more rational decisions in this area in the future.
I find one thing remarkable, it’s 2013 and courts are still arguing about “framing”. Really? It’s almost as if we’re back in 1997 and the Web is filled with animated gifs… oh wait!
And one final thing, blocking orders do not work. Give it up and sort out your business models.