Monday, 25 November 2013

Section 97A orders

As reported by ISP review, a number of UK ISPs are having to block yet more web sites.

An example is SolarMovie who appear to be site that streams films directly, rather than a file sharing or download site.

This seems to follow a trend of court orders issued under section 97A of The Copyright, Designs and Patents Act 1988 which includes the infamous Pirate Bay, blocks for which are clearly completely ineffectual.

However, what is interesting here is a judgement in April, which basically puts simply using the Internet to access material on the Internet as outside the scope of copyright. It is not "copying", it is accessing the information remotely.

The logic is similar to the fact that a person reading an illegitimate copy of a book is not themselves breaching copyright by so reading it. Accessing material (even with the inherent copying and caching in transmission) is not breaching copyright.

But this has implications for section 97A orders, surely. These orders are based on 97A(1): "The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright."

But in this case the is no person "using the service" to infringe copyright. The user of the ISP's service is not in fact infringing because it is a streaming site.

So does that mean the section 97A orders are not in fact valid against streaming sites?

The wording of 97A makes sense, as if the customers of the ISP are not infringing copyright, why would the ISP be burdened with court orders. Ideally the copyright holders should take action against the site itself that is almost certainly breaching copyright by "broadcasting" or "distributing" content without the licence. Of course, if, in the country in which the server is hosted, such actions are not a breach (e.g. because for personal use) it could be that there is no copyright breach at all, but certainly there is no infringing by the users of the ISPs service. So 97A should not apply.

I am not a lawyer, but that is how it seems to me. Comments?

12 comments:

  1. Slightly off-topic: Do the blocks effect your customers, as you use BT infrastructure?

    On topic: You're applying logic to law. Aren't Lawyers employed to prevent this sort of thing?

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    Replies
    1. 1. No, we have no blocking and do not use cleanfeed.
      2. You may be right...

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  2. I suspect that it doesn't really matter - the only way this can be determined is to go to court. Which ISP is going to want to go down that route? Especially given the courts' past history of making ludicrously illogical (and hideously epensive) decisions.

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  3. Going off on a slight tangent regarding website blocking, how is it I can't access http://eztv.it when using AA as my ISP, all I get is a page saying it has been blocked by users in the uk. - they are blaming the ISP for the blokc, which can't be the case - so who is doing the blocking?

    Thanks

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    Replies
    1. We (A&A) are not blocking, and indeed, it is not blocked from my PI at home via the same network. It seems that web site is deciding to serve different content from some IPs. I suggest you contact them and ask. Do let us know.

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    2. From my understanding, from this thread: http://torrentfreak.com/eztv-circumvents-isp-blockade-and-slams-hollywood-censorship-130731/ EZTV have put the entire UK allocation into their firewall and are not blocking per-se, just redirecting to a "The UK courts are a fully paid up member of the music industry, use a VPN to access us" page.

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    3. From my understanding, they have added most of the UK's allocation to their firewall and are directing us to a "The UK courts are fully paid up members of the Music Industry, so use a VPN to access us" page.

      http://torrentfreak.com/eztv-circumvents-isp-blockade-and-slams-hollywood-censorship-130731/

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    4. Bod: I'm guessing you don't have IPv6 enabled, but RevK and I do? Over IPv6, I get the website content as expected; same request over IPv4 gets me their blocked message. (Both going directly over my A&A line, obviously; IPv4 requests from the Netherlands and USA work fine.)

      It's rather bizarre that they're actually blocking access themselves while complaining about "censorship": obviously if you can see their message, your ISP is *not* blocking it, so the instructions are redundant!

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    5. I suspect they are being clever - if they don't serve the normal page to UK IPs then the UK courts have no reason (and possibly even not power) to order a block on the site. That gives the site the control of what is shown on the "Block" page. No idea if that worked.

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  4. I would need to remind myself of the detail, but my recollection is that this case dealt with the reproduction (copying) right, holding that, in the circumstances at issue, the Article 5(1) exception was made out, such that there was no infringement of the reproduction right. However, the reproduction right is not the only right comprising the bundle of rights known generically as "copyright", and I wonder whether the basis which would be argued in a s97A application here is not reproduction, but communication to the public (s20, Copyright, Designs and Patents Act 1988, in the UK.) My feeling — and I do not have the wording in front of me — is that s20(2) might apply here.

    This may all be wrong, but it's the best thought I have off the top of my head.

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    Replies
    1. Indeed, but the users of the service the ISP provides is not being used for communication to the public - the ruling is basically that it is outside the scope of copyright. Yes, the site serving the streaming my be infringing, but they are not users of the providers service, as well as the fact that if they are not in the UK the relevant legislation for that may be somewhat different anyway.

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  5. > the service the ISP provides is not being used for communication to the public

    Hmm... I wonder if one might argue that the act of infringement is "communication to the public" in the sense that the material is "made available", and that the connection between the user and the server is what makes the work "available" to that user. Without the connection, the work is not made available, such that the service connection is used — by the person running the server, if not the user receiving the stream — to infringe copyright. Perhaps.

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