Five file-sharing facts – and a farewell from me

For my last post in my sixth month stint as a guest Kat, I thought I would draw together a couple of developments on (or at least related to) one of my favourite subjects – blocking injunctions (see here and here for two of my previous efforts on this front).

1.   In the Netherlands, battle has been raging for years between BREIN, a Dutch anti-piracy organisation and XS4ALL and Ziggo, two Dutch ISPs. BREIN wants those ISPs to block The Pirate Bay (TPB), the notorious bittorrent tracker site already blocked by court order by the major ISPs in the UK. A block was ordered at first instance, but overturned on appeal by the Hague Court of Appeal on the basis that the block was neither proportionate nor effective (judgment here, in Dutch). BREIN has appealed the case to the Dutch Supreme Court. Earlier this month XS4ALL issued a statement, again in Dutch. XS4ALL explains it opposes illegal downloading, but that blocking TPB did not reduce such activity while also blocking lawful information. Explaining the procedure before the Supreme Court, XS4ALL signs off by noting that it has until 5 September to file its Defence to the appeal.

I'm actually allergic to cats. No seriously.

2.   This Kat oft ponders why, once blocked by ISPs, unlawful websites are still easy to find on search engines. As blogged here, the UK’s IP advisor to the Prime Minister Mike Weatherley MP had proposed that search engines should voluntarily block sites subject to ISP blocking orders. No rights owners have yet asked a court to force a search engine to do this in the UK (although why not – the law would seem to permit such a request in this Kat’s opinion), but they have in Canada, as Torrentfreak reports. The outcome has been very good for the rights owner – a court in British Columbia has ordered Google to remove links to infringing material not just from Google.ca, but from everywhere – including .com, co.uk and .co.fr. Google is appealing, but if courts in one jurisdiction now feel confident in ordering search engines to make changes to their indices worldwide, that’s a big development in favour of rights owners.

3.   Also from Torrentfreak comes news of Google taking positive blocking action, having apparently voluntarily removed links to Bayfiles, a file-hosting spin-off of TPB, from its index. Links remain in place on other major search engines. This thread on reddit suggests links to the site may still be available from certain national Google sites but not all, with some users suggesting that the removal is down to a specific policy violation by Bayfiles rather than an anti-piracy move by Google.

4.   More from Mike Weatherley, who last week released a report entitled “Follow the Money” which considers "what has been done by the advertising industry, payment processors, Government and law enforcement to reduce the potential for website owners to profit from IP related crime”. It’s a good read, and includes Mike’s view that solving IP crime needs a three-stranded solution of Education, Carrot and Stick. Under Stick, Mike says:

“Finally, the stick part of the approach focuses on IP enforcement. It is very much a last resort option, but it is important that IP enforcement legislation has real teeth when all else fails. It should be a graduated enforcement response. Warnings and fines are obvious first steps, with internet access blocking and custodial sentencing for persistent and damaging infringers not to be ruled out in my opinion (one for a later discussion paper no doubt!)”

This Kat is deeply sceptical we’ll see such penalties for infringers this side of the 2020s. The first stage of the Digital Economy Act, which is largely about sending angry letters to infringers, is nowhere to be seen four years after the Act was enacted. The second stage, in which punishments, but lesser ones than Mike proposes, were to be meted out, has been all but forgotten.

5.   Finally, the Guardian reports on an interesting potential development in the UK courts’ jurisdiction to order blocking injunctions. The power under section 97A to order such blocks is limited to addressing instances of copyright infringement. But luxury brand powerhouse Richemont has made an application for a block under section 37(1) of the Senior Courts Act 1981 (the High Court’s general power to grant injunctions where it considers it just and convenient to do so) in respect of websites selling counterfeit goods in infringement of its trade mark rights, rather than copyright. Definitely one to watch.

My favourite and most popular illustration this year

On that note, this Kat bows out of his time as a guest Kat. A big thank you to Jeremy, the rest of the IPKat team, and to everyone who has read my posts, commented or emailed me in response to them. I hope that rather than just fill up your inboxes, my postings have informed and educated you or, failing that, that my lolcat pictures have amused you.