Should Search stop sharing? Mike Weatherley MP ponders on piracy

Over the past few years of evolution of the Section 97A blocking injunction jurisdiction in the UK, this Kat has always thought it peculiar that while 41 websites are now blocked by the major UK ISPs, all of those websites still appear prominently in search results when you look for them on search engines.

MP Mike - cooler than your average MP?

This is on the mind of Mike Weatherley MP, Intellectual Property Adviser to the UK’s Prime Minister, as well. He has recently released this discussion paper, in which he opines on what search engines could be doing to help combat piracy (while emphasising in bold type that search engines are not the cause of piracy). As the paper makes clear, it is not Government policy, but it does contain some interesting and not entirely uncontroversial proposals. There are a total of 10 recommendations, amongst them:

1.   Demotion of websites from search results once they have been demonstrated to host infringing content, even if they also host lawful content. Mr Weatherley supports the BPI’s proposal that a site reported 10,000 times for infringement to a search engine should not appear on the front page of search results, whatever the search terms, and a site reported 100,000 times should not appear in the first ten pages of search results (what if there is only one page of results in total? Muses Merpel).

2.   Carry over of site blocking such that once a court has ordered UK ISPs to block a site, search engines should quickly remove that site from its listings. Mr Weatherley suggests search engines and rights holders agree a protocol for making this happen.

3.   Ban advertising by pirate sites, so as to cut off their money supply. This seems uncontroversial, and potentially highly effective. PIPCU estimates that a “Follow the Money” strategy could close 95% of pirate sites.

4.   Un-auto the autocomplete so that pirate sites and terms associated with them are not suggested automatically by search engines.

5.   The use of trust marks or warnings to flag infringing sites, similar to those currently in use for sites containing malware.

The Internet is full of bad things - but who
is responsible for policing it?

The second recommendation concerning site blocking is one of two “*Key Recommendations*” in the paper. Google has so far resisted it – arguing that without a court order against it, it should not be obliged to take this action. This seems fair – ISPs resisted voluntary blocking before Section 97A became popular but have not since hesitated to comply with court orders – so why should Google and its kin be treated differently? Alternatively, this debate might be solved with a site blocking application against a search engine… although might that raise some new legal issues?

Readers will see that Google gets a lot of references in this post, as it does in the paper – although it is only one of several popular search engines, Mr Weatherley considers that as the UK search market leader, Google should show “market leadership” and take the lead on these ideas.

In this Kat’s view, we’re unlikely to see any of these ideas become law anytime soon, but they will all play into the discussions between industry and service providers, mediated and facilitated by the Government. As always, watch this space…

Kat disclosure: this Kat and his Simmons & Simmons colleagues act for a number of content providers, rights owners and other parties with interests in this area, but are not involved in any of the site blocking litigation for those clients.