Why Site Blocking Orders Need To Be Challenged In Court
from the two-sides-to-every-story dept
There is an extremely dangerous trend to remove proper judicial review from cases involving alleged copyright infringement. Sometimes that means "voluntary" actions by ISPs -- the SOPA and ACTA approach. Sometimes, it means appearances before tribunals by members of the public without adequate legal representation, as is happening under New Zealand's "three strikes" law. And sometimes it might involve a judge, but consist of the latter simply agreeing to requests from the copyright industry, without anyone challenging the grounds for doing so.
That was the case for the most recent action by the British Phonographic Industry (BPI), which represents the recording industry in the UK, as reported by Techdirt last week. Now Andres Guadamuz on his TechnoLlama blog has dug a little deeper into the judge's reasoning for granting these orders, and discovered the following remarkable section:
the evidence indicates that blocking orders are reasonably effective. The effect of the order made in Italy with regard to TPB [The Pirate Bay] referred to in 20C Fox v BT at [197] was a 73% reduction in audience accessing TPB in Italy and a 96% reduction in page views. The blocking order made in Italy in relation to KAT has had a similar effect. As for the effect of the orders made in England in relation to TPB, as at 19 December 2011, TPB was ranked by Alexa as number 43 in the UK, while as at 21 November 2012, its UK ranking had dropped to number 293.
As Guadamuz notes:
I had to look for the source of such astounding information, but I was not able to obtain any reliable resources, and I suspect that it is a figure given by the BPI, which may have been pulled out of the nether regions of their institutional anatomy. On the contrary, I found a report from Torrent Freak claiming the opposite, but this claim should be taken with a pinch of salt.
The use of Alexa is also rather surprising, since it is very rarely quoted these days:
Alexa works by measuring the behaviour of users who have installed a toolbar in their browser. This gives a snapshot of a very narrow demographic, that of Alexa toolbar users. Needless to say, people who are more likely to share files online are less likely to have any sort of toolbar installed on their browsers, particularly one that tracks online behaviour. Similarly, there are studies that prove that Alexa's rankings tend to be wrong for both small and big websites, as they tend to produce some serious mismatches with reality.
And Guadamuz goes on to point out:
In the end, the best way to try to ascertain the effect of ISP blocking orders is to ask the people who are engaged in the practice. This is precisely what was done by Dutch researchers Joost Poort and Jorna Leenheer. They conducted a survey of thousands of Dutch residents about their downloading behaviour. While more than 75% of respondents claimed that they never downloaded any illegal content, those who engaged in the practice replied that they were not affected whatsoever by the blocking of TPB in the Netherlands. Only 3.6% claimed that they are downloading less, and only 1.9% admitted that they had stopped downloading entirely. This seems like a huge failure of blocking orders.
But none of this information was presented in court. Instead, the judge used his own -- or maybe the BPI's -- figures to justify his blocking orders. That's why it's regrettable the ISPs involved did not mount any kind of challenge where they could have offered an alternative view on how effective such orders really are, so that the judge could form a more balanced view of the situation. More generally, this episode shows the dangers of moving to systems where the other side of the copyright story is not fully and fairly presented.
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Filed Under: evidence, legality, site blocking, uk, unchallenged claims
Reader Comments
The First Word
“Oh, look! Sony, Universal and Time Warner all cheated the system, last year! How, you ask?
By buying laws, because they are "people" with all the rights and none of the responsibilities. This breeds a level of contempt for the masses last seen in the early steps of the last millennium.
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And ffs they are wither dumb or very well paid to ignore reality. Obviously nobody will be able to access TPB if there's a blockade going on. Directly. And what was the main purpose of blocking? To stop piracy and increase sales. Has the blockade translated into the latter? Obviously not.
So let us cut the rapist penis and ignore the fact he can use a plethora of other tools to molest his victim right?
Might as well block the entire internet.
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Oh, look! Sony, Universal and Time Warner all cheated the system, last year! How, you ask?
By buying laws, because they are "people" with all the rights and none of the responsibilities. This breeds a level of contempt for the masses last seen in the early steps of the last millennium.
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How many health insurance policies did Sony, Universal and Time Warner buy? How many did any of your 100 favorite pirate sites buy? Combined, I bet the answer is zero, nada, zilch.
So were the big corporations always fair? The artists always have a right to look for better deals. They've always had the chance to hire managers and agents? Is the system perfect? Nah but it's been quite nice for many people. Everyone in that hierarchy-- from bottom to top-- did much better under Sony, Universal and Time Warner than they did under Mega, Pirate Bay or any of your favorite "sharing" sites.
Face it: just because the big corporations weren't perfect doesn't mean that we should embrace anarchy. That's often much, much worse.
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I'm going to ignore "Big Piracy", because that's laughably stupid, but search and hardware tech companies have given artists more power and freedom than they've had in mankind's history. If these companies are so bad to artists, then they should stop using all those tech tools that make it cheaper and easier to produce and market their content. No more digital music, no more YouTube, delist from Google (somehow...), scrub their web presence clean. That'll show 'em!
"Face it: just because the big corporations weren't perfect doesn't mean that we should embrace anarchy."
First, The actions of these big companies weren't just "not perfect", often they were downright despicable. Second, we're a long, long way from "embracing anarchy", and it's silly to suggest anybody here is doing that.
"That's often much, much worse."
Things are much, much better for artists, creators, consumers and fans today. Things are only much, much worse for the big corporations that have for decades controlled who gets to watch and listen to what. You'll be hard pressed to find many people who feel sorry for them.
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That's why I always call them "copyright deniers" now because they seem to think that asking for any enforcement qualifies you as a "maximalist."
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Remind us why HADOPI ended up sending out more letters now that the government is paying them less money?
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Hah... As if the cockroaches ever come out when the light shines
So sure. Open up the trials. There's always been that option. Everyone's always had the right to sue. It's just that the cockroaches running these sites aren't going to come out in the light. Mike maintains immunity by never doing any of the nasty lawbreaking that he apologizes for, but the actual law breakers aren't going to put their head in on the chopping block.
I'm guessing Mike is dreaming of a Lance Ito-like judge spending a year taking testimony and arguing about the semantics of posting a link. Then there will be another three years of appeals in this dream because that's how long the everything-must-be-free crowd wants to continue to deny reality.
But in the real world, the good-for-nothing folks won't show up. Just as they don't pay anything to the creators and don't pay for any health care, they're not interested in being productive members of society. They want a fast buck and then a chance to disappear into the night.
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Re: Hah... As if the cockroaches ever come out when the light shines
Moron. You do realise that it wasn't even Mike who wrote the article, right?
If you are gonna type bollocks, you may as well get the author right.
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Re: Re: Hah... As if the cockroaches ever come out when the light shines
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Re: Re: Hah... As if the cockroaches ever come out when the light shines
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bob, quiet down
But, of course, to you, the law is the law and it can't POSSIBLY be wrong.
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Re: bob, quiet down
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Re: Hah... As if the cockroaches ever come out when the light shines
But I want to point out one very important thing. You are aware MP3.com was perfectly legal and won in court, right? The only reason they closed down was because the ongoing court battle WHICH THEY WON bankrupted the site.
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Re: Re: Hah... As if the cockroaches ever come out when the light shines
While I've always felt that MP3.com was much more legal than the cockroaches that Mike celebrates and defends, the courts sure gave them a hard time.
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Re: Re: Re: Hah... As if the cockroaches ever come out when the light shines
Despite the hard time in the court MP3.com still won.
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Re: Re: Re: Hah... As if the cockroaches ever come out when the light shines
The site was deemed legal. You know, ABIDING TO THE FUCKING LAW. They went bankrupt because the legal battle was costly. I will repeat myself LEGAL. They WERE NOT DOING ANYTHING WRONG. Go ahead, keep calling them thieves when the justice says clearly they are not. Not that you need to dig deeper eh?
I'll bet your father was on the crowd that cheered against the VHS as some sort of devious technology that would kill the industry eh?
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Re: Re: Re: Re: Hah... As if the cockroaches ever come out when the light shines
Again. If they really weren't doing something wrong and you really think that they have a binding precedent, why don't you just go set up your own version and make a mint.
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Re: Re: Re: Re: Re: Hah... As if the cockroaches ever come out when the light shines
They won. They were legal. End of story. Heck, they even reinvented themselves and started anew under a different website. Eventually.
MP3.com wasn't about making "a mint". It was the first of it's kind. A website where people could upload their ripped CDs, which it would cross match with online data to accurately tag for you, for online listening purposes. In addition to which, I doubt you know this tidbit, they were also one of the first online sites where artists could directly upload their music and sell it themselves.
That you bitch about pirate sites and celebrate the legal killing of a site (because that's what the MP3.com court battle was, the legacy players taking a legal business/site to court and ruining them through the drawn out legal process which they, MP3.com, couldn't actually afford to fight... but they did anyway and were proven in actual court filings in the right) that was FOR the artists says all we need to know about you. That you don't care about artists at all. You just want to wag your finger at whatever current perceived enemy.
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Really convincing way to push a moral argument.
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And ironically, they set the precedent to similar services out there and I'd probably be able to start a service like this and rely on the ruling to make any lawsuits against me cheaper. Because it's sure like hell the MAFIAA would try to bankrupt me.
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Re: Hah... As if the cockroaches ever come out when the light shines
second point when are going the copyright trolls learn we dont want everything free in fact i am going to buy an original movie since it is worth it and i have only to wait a bit for a price drop but when one movie is localized and i cant get it legally then piracy sounds an attractive option also why i must pay the same of a digital copy than a physical copy (or even more)
also everybody want a fast buck even copyright maximalists ... ok especially copyright maximalists but when they stomp the public rights thats when we need to made a stand after all the founders of usa were all law breakers too
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Any evidence to the contrary is just an anomaly in the statistics that we will buy a report to 'debunk' immediately and add more demands.
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Next Kickstarter, Pledgemusic, Bandcamp etc
The plan is becoming clear
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first mega, pirate bay, storage services and torrents
second fanfiction sites deviantart and forums
third Kickstarter, Pledgemusic, Bandcamp etc
fourth indie works
and last remove public domain so they have control of everything
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While public domain may not be gone, it is essentially dead and becoming more and more irrelevant to people, as nothing ever enters it(In the US at least).
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A mark of cluelessness
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Re: A mark of insanity
Just to go another direction :-)
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Ignore that blocking TPB scattered those pirates to many more obscure websites or different downloading methods. Please also ignore the total amount of (measurable) piracy unless that number goes down.
I think the real reason why they hate sites like TPB is that it provides a point in reference that constrains their ridiculous math.
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Correlation is not causation, but they don't even have correlation there.
It'd be like tearing down a prison to reduce crime, then judging your success by the number of prisoners locked up in that specific prison. It's crazy.
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If the copyright supporters want so desperately to find and stop theft, they have no father to look than within.
The big copyright industries steal more than any pirate can in a lifetime.
They steal from the public with tax breaks without return. They steal from the country. They steal from culture by locking up public domain without return. They steal from the artists with creative accounting and fees. They can't even help themselves from stealing from each other.
So who are the real bad guys here?
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Response to: Anonymous Coward on Mar 11th, 2013 @ 9:29am
I meant "no farther"
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Proxies
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Re: Proxies
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"Study: Megaupload closure boosted Hollywood sales 10%"
http://www.theregister.co.uk/2013/03/08/megaupload_piracy_study/
Not effective, eh?
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Re: "Study: Megaupload closure boosted Hollywood sales 10%"
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Re: Re: "Study: Megaupload closure boosted Hollywood sales 10%"
Correlation is not causation."
Repeating a truism isn't persuasion. Gainsaying is not argument. Simple denial isn't proof. Dismissal doesn't force the opposite conclusion. Childishly repeating "NO, NO, NO!" doesn't convince anyone. "Zakida Paul" cannot wave his hands and make facts go away.
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Re: Re: Re: "Study: Megaupload closure boosted Hollywood sales 10%"
Why do you continue to do it then?
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Re: Re: Re: "Study: Megaupload closure boosted Hollywood sales 10%"
Being said from someone who continously does exactly the same to Mike and others on this site now that is priceless lol
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Re: Re: Re: "Study: Megaupload closure boosted Hollywood sales 10%"
FTFY
To paraphrase PaulT I'll need sunglasses. The sheer irony and projection are blinding me.
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Re: False Study
Use your brain.
Oh, sorry, you don't have one.
THINK!
Megaupload was shut down last year (2012)
What was the Western world going through at the time?
Hmm...
I seem to recall a massive bank scandal that happened in late 2008 that crashed the economy of the U.S., I ALSO seem to recall that Europe's economy was flat-lining at the time as well.
Hmm...
So, if that's the case, people were losing their homes, jobs and money...
Who has money to buy?
Use the brain you were born with, not the brain the MPAA put into your head.
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Re: Re: False Study
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it means appearances before tribunals by members of the public without adequate legal representation
Tribunals by there very nature as NON adversarial processes do not allow EITHER side from having legal representation except in highly specific circumstances, and that would only allow the respondent (defendant) and never the plaintiff (prosecutor) to have legal representation.
This happens all the time though the rules of procedural fairness (natural justice), due process, Evidence (though it's on balance of proof only) are fully adhered to. It basically allows the creation of an equitable hearing where both parties individually present to the tribunal THEIR side as they see it, not wrapped up in legalese.
There is nothing wrong with it and there is still the ability of appealing decisions through a higher court paying solicitors if you so wish. Though it still doesn't mean you cannot be coached by a solicitor into how to present your case and how to respond etc.
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And even if you don't have representation at the hearing, having it when preparing (even just in terms of filling in paperwork, knowing when and where to submit it) can be very useful (which is something I have been involved in). And you can bet the claimants/plaintiffs will have that. If anything, the idea that representation isn't needed at these sorts of things may contribute to the lack of adequate representation or awareness.
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Content blocking
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What's Sauce for the Goose...
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That'll teach um for writing bad, loosely worded, special interest influenced, law.
Just what do we pay judges for anyway since obviously they haven't allowed a jury to actually listen to (and even re-listen to as new aspects arise) constitutional concerns of even the most basic privacy issues of our electronic age. (A judge basically tells a jury what it can or cannot consider)
The obvious (unjust?) constitutional privacy issues are clear. They are only muddled by the judicial, thus law enforcement, confusion between a written letter and an e-mail of that same text. Even though the Constitution makes no distinction some mistaken judge/jury did and, to date has been, allowed to stand.
An example of the utter unjust implementation of such legal precedence is the DMCA take-down notice (abused by thousands) that does not include review by a judge.
The eternal copyright problems can be solved with public awareness of the personal value (for your kids!) of public domain and copyright terms much less than the life of (yourself) the audience. (15-30 yrs)
These reasonable terms would force content creators to come up with new sequels or better yet entirely new works instead of loafing back and leaching off of past (thus removing 95% of the dead UN-republished media from culture) works. In this way the public domain would grow rather than shrink and the available cultural content a person could use and profit from would increase also.
There are so many examples of culture being selectively edited by anyone with a two bit copyright claim (on even pivotal public speeches) its beyond any 'cultural' state of emergency could describe.
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no surprise here. even if the ISPs or any other peoples organisation had been allowed to attend and give any evidence, it would have been ignored. more so if the evidence was shown to be nearer the truth than that presented by the BPI, simply because they are friends with the government, and certain ministers that are trying to be as strict on downloading and the like as China etc, whilst still condemning other countries from doing the same thing!! wankers, the lot of them!
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Sick Strikes copyright accusation
Hollywood saw, probably about the time of Righthaven, and definitely before Prenda that the copyright trolling model of gaming the courts to shakedown people for copyright extortion just wasn't going to work.
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