be careful what you wish for?

UK (c ) intermediaries and enforcement

Lilian EdwardsProfessor of E-GovernanceUniversity of StrathclydeDeputy director CREATe

Be careful what you wish for• Digital Economy Act laid to rest – the fall of "three strikes"• The rise of web blocking since 2011• But esp with Cartier in 2014• The future?• See EU new Green Paper on copyright, Dec 2015• "follow the money"• Enrolling of payment intermediaries cf Wikileaks• Of advertisers• Of search engines

UK site blocking orders• UK has become world leader in copyright (and TM) blocking orders

for copyright UNDER CDPA S 97A since Newzbin 2 [2011] EWHC 2714 (Ch) (500+ blocking orders, IPKat 29 July 2015)• Dissensus in EU : some national courts allowed © blocking orders

(Belgium, Denmark) – others have denied them eg Germany GEMA vs Deutsche Telekom ;Sweden, B2 (ISP) re Pirate Bay and Swefilmer (December 2015) (IPKat, 1 December 2015)• EU law following Scarlet v SABAM and Telekabel Wien v Constantin C-

314/12 appears to allow but not mandate blocking orders pace art 15(1) ECD ; conditions of injunction a matter for national law

How the UK got here• S 97A Copyright Designs and Patents Act 1988 – 1st successful case – Newzbin2 [2011] EWHC 2714 (Ch) (indexing and linking site)• Court "shall have power to grant injunction vs a service provider where

that SP has actual knowledge of another person using their service to infringe copyright"• UK growth? Good test case; availability Cleanfeed; acceptance of copyright

industries narrative? • Subsequent successful actions vs Pirate Bay, other P2P sites, unauthorised

sports streaming sites, Popcorn Time - Extended from copyright infringement to trade marks ie blocking sites hosting counterfeits Cartier v BSkyB etc [2014] EWHC 3354 (Ch)

Issues with s 97A orders• Lack of due process - 1. Cases conducted between

rightsholders and ISPs. Blocked party rarely party, does not defend. ISPs routinely do not defend since Paramount v BSkyB. • Users? Telekabel suggests rt of users to intervene/oppose

(Hanuz, 2015) and UK law possibility (post Cartier, para 263 )• Lack of due process - 2 – new URLs or IP addresses for sites can

be added without further court process to prevent avoidance – proxies, mirrors, archives• LDP – 3? - All cases bar Popcorn Time decided by Arnold J.• Scope creep from © to TM – what of blocking scam,

phishing or malware sites - left in (extra) legal limbo • Enabling of censorship infrastructure eg of extremist or

jihadi sites, synergetic with extralegal blocking of adult but legal content [ISP porn filters])

Web blocking 1: 3 strikes 0• Blocking so successful – according to content industry stats eg BPI

that UK DEA graduated response scheme officially abandoned 24 July 2014• Policy question never asked in court: given rise of new business

models for creative industries, and rise of streaming rather than downloading, do blocking orders make sense GIVEN side effects on freedom of expression & potential for avoidance??

Policy in blocking orders : role of courts and empirical evidence

• Why are we collecting empirical evidence in the copyright wars?• To influence policy makers/legislators? (To oppose lobbyists for content

industries?) To influence users/voters?• Judges? Actually make a great deal of law – esp in US, UK:

• Judicial review of the DEA (BT et al v Sec of State for BIS [2011]EWHC 1021 (Admin)• Use and extension/routinisation of s 97A CDPA• Striking down of the “private use” copyright exemption (BASCA et al v

Sec of State for BIS [2015] EWHC 1723 (Admin)• (and cf privacy/DP and CJEU! 3 years of GDPR process while Google Spain,

DRIreland, Schrems, etc respond to Snowden..!)• How should this affect our strategies in UK in working for “evidence

based policy”? Unclear.• Obvious uses of empirical evidence in blocking order cases?

Evidence!! - 1• DEA judicial review, 2011 (Mr Justice Parker, HC)

• (para 211) “In this case Parliament has addressed a major problem of social and economic policy, where important and conflicting interests are in play… How these competing and conflicting interests should be accommodated and balanced appears to me to be a classic legislative task, and the court should be cautious indeed before striking down as disproportionate the specific balance that Parliament has legislated”

• (para 213) why judicial deference?• 11 files of evidence, but still not all of it!• Constraints of court time to examine volume of material submitted• Expert economists argued either side “with equal conviction and vigour”• Fuller quoted “polycentric” disputes, “ hard enough for the legislature to seek to think through and to weigh

all the policy choices.. Well night impossible for a judge”• (para 246) “not.. sufficient to show through economic evidence there are arguable errors”

“surprising if a skilled economist was not able to show such errors had been made”• (para 249) copyright isn’t “exclusively economic” so a purely economic model isn’t all that

counts in deciding on proportionality anyway!• (para 256) Parliament merely had to make “rational and justifiable assumption” re impact of

sanctions on infringers (70% desistance), relationship of infringement to legal sales, avoidance etc

• -> DEA upheld

Evidence!! - 2• Private copying case – BASCA v Sec of State for BIS, 2015, Mr Justice Green• (para 144) “The "economic" nature of the decision: The Defendant contended that since the issue was

"economic" it was by definition complex and this entitled the decision maker to a wide margin of discretion. In my view ..It is an error to suggest that simply because the subject matter of a decision, or the evidence used to justify it, is "economic" or "technical" that courts should recoil in terror and move gratefully into judicial reticence mode by reference to "margin of appreciation". If this were the judicial default position Courts would find it hard indeed to hold in favour of Claimants in clinical negligence cases”

• (para 145”) “But this does not imply that the Courts will substitute their own view of the correct decision for that of the decision maker..”

• (para 217) “the actual distinction between a merits review and a judicial review might be more apparent than real.. The Judge does not "decide" the science; on the contrary the judge hears expert evidence and then applies an approach which is akin to a public law rationality challenge..The test is known as the "Bolam" test. It essentially accepts that there may well be a number of different competing medical or scientific theories in a case and there may also be a range of quite different yet reasonable views. In such cases the court only rejects a Defendant's view if it is outwith that reasonable range.”

• (para 272) “that exercise [quantifying the harm not avoided by pricing-in] needed to be conducted and it was not”

• Cf DEA - - > Case decides against validity of the exception (the statute) – but despite adopting similar discretionary review framework.

S97A – 1 – Newzbin 2 ( 20th C Fox) 2011• Expert evidence - Andrew Clark ( preferred) vs Malcolm Hutty ( para 16)• Difficulty though not scale of © infringement accepted ( 22, ref Hargreaves)• Para 192ff- "efficacy" ie degree of circumvention

• Many users will have to acquire extra knowledge of VPNs etc• Some will be put off by extra cost or security implications• Experience of Italy : ev quoted from DEA review – when Italy blocked Pirate Bay

use of site "markedly reduced" acc to studios ( by 96%). However no evidence as to alternate routes to infringing content, or as to length of effect of reduction

• "Order would be justified even it only prevented access to.. A minority of users"• Efficacy as part of proportionality – para 200 – freedom of expression vs RT to

property? Minimal discussion. Cf para 23 need for legit markets w para 35 re ev commercial access to illegal movies (97.5% link to IMDB: 0.7% on Amazon)

S97A – 2 – Cartier 2014• More empirical evidence available than in 2011; Helen Saunders v Ian Brown• Mush evidence re costs to ISPS of extending blocking to TMs , inc possibilities of over blocking and

retaliatory DDOS ( largely dismissed)• Much legal discussion re implementation of art8(3) IPRED for TM via general senior courts

injunctive power• Para 26 – ev circumvention had become easier, cheaper and more user friendly• "Efficacy" - paras 163 ff• No need to show overall reduction in amount of infringement ie ev of

diversion is irrelevant!• Cf Ev from The Hague CtA case ( Ziggo v BREIN) that reduction in visits to TPB

not = overall reduction in infringement ( Poort) ( para 168) – accepted by CtA so no blocking order made• CJEU Constantin cited to hold only necessary to show "seriously discouraging"

users of SITE TO BE BLOCKED ( para 174)• "Proportionality" – 218ff - pix as killer evidence esp para 223

• "Admittedly one of the more dramatic examples"

• UK had experienced 71% drop in traffic to blocked websites while ROW had increase of 27.8%

• No mention causality, hidden traffic, diverted traffic, better access to legal sources eg streaming, YT, better windowing of release

• Cf Hague/ Poort ev rubbished in methodology : not re UK users ( cf Italy! , only Dutch torrents, self reporting

• Result ! Order made, albeit 2 yr limitation.

Conclusions?• Deciding whether to make a blocking order is not primarily an economic

decision based on empirical ev, but a normative decision based on legal argument• Courts will defer to legislators on policy except when they don't • Courts say they don't find economic evidence too complex but applicn of

methodological critique to empirical ev somewhat sporadic• If all reviews are by one judge, value judgments on worth of empirical

evidence and which empirical ev is better will stay constant – Cf Arnold J stance that "efficacy" does not mean either : overall infringement is reduced OR some ( most?) users can't still get access• Some expert evidence is more convincing than other expert evidence

( duh)• Some foreign empirical evidence is too foreign to use except when it isn't• Pictures tell a thousand words