’Think before you link’ may well become the legal catchphrase of our era.
Last month – ending a period of ambiguity – the Court of Justice of the European Union (CJEU) clarified its position on the use of hyperlinks to protected online content. In Svensson, the CJEU held that hyperlinking to protected material would only be deemed a communication to the public – and thus a violation in European copyright law — if that content was not already freely available online. This signalled a conditional victory for freedom of speech advocates and rights holders alike, albeit with a burden imposed on internet users.
Yet, in recent years, the balance seems to have shifted in favour of rights holders. Changing public attitudes towards copyright infringement is certainly playing a role – as evidenced in a 2013 study by Cheltenham-based media law firm Wiggin, which found that 68 per cent of those surveyed agreed that “it is important to protect the creative industries from piracy” (a 13 per cent increase since 2010).
Another contributor is the arsenal of legal actions that now exist to combat unlawful linking, illicit file sharing and torrent downloading. On one end of the spectrum there are good old-fashioned user-targeted warning letters; on the other: contentious court-mandated blocking orders addressed to Internet Service Providers (ISPs) and search engines.
“There’s no one single silver bullet,” says Eddy Leviten of the Federation Against Copyright Theft (FACT), a London-based trade organisation which counts ITV, Sky and Virgin Media among its members. “We have a whole range of solutions that we use to affect the best resolution – that may range from finding a site owner in the UK… all the way to criminal prosecution.”
Blocking tactics: targeting the operators of illegal sites
In the realm of the latter, FACT successfully won its criminal case against Anton Vickerman in 2012. Vickerman operated surfthechannel.com, a website which didn’t host videos, but was essentially a directory of links to infringing content.
Clearly the image of Vickerman in the Newcastle Crown Court receiving a four-year jail sentence served as both a victory banner for rights holders and a warning campaign for violators. As a result, Leviten says FACT saw “a range of sites we’d been targeting change their business model and close up shop.”
However, targeting site operators hasn’t always proven fruitful for rights holders. Shortly after UK-based illegal indexing site Newzbin was shuttered by a high court order in 2010, it re-emerged from the ashes as Newzbin2, prompting Mr Justice Arnold to issue a landmark blocking order requiring BT to bar its users from accessing the sequel site.
Such orders are commonly seen as a “last resort”, explains Leviten, adding: “We generally have exhausted every possible opportunity before we go to site blocking.” However, since Newzbin2, says Flora Greenwood, a solicitor specialising in intellectual property litigation at Bristows, “it’s now become not really a last resort.”
In 2013, major ISPs such as BT, Sky, Virgin Media, and TalkTalk were ordered by the High Court to block dozens of sites like TubePlus, SolarMovie, Project Free TV and ExtraTorrent. This has been followed by a recent order requiring ISPs to prevent access to streaming sites Megashare, Viooz, Watch32 and Zmovie.
This extreme measure – and its apparently increasing popularity – has not been without criticism and concerns stemming from different quarters. On the public advocacy side, the London-based Open Rights Group argues that the courts have not been transparent enough in relation to the issuance of blocking orders and should be at all stages of litigation.
ISPs have their share of gripes as well. “They’re the middle men in all of this and in a lot of instances they’re being asked to pay costs of implementing these measures,” says Greenwood. And such measures are not always effective, as indicated by a recent Dutch Court of Appeal decision in which a blocking order for ISPs to bar users access to the Pirate Bay was overturned. “File sharing had gone up and people were circumventing the block through proxies or using different sites,” says Greenwood of the decision.
Cease and desist: targeting the end user
Another action, among others, which the UK’s much-delayed Digital Economy Act 2010 will put into law in late 2015, is the handing over of suspected copyright infringers’ information by service providers for the purposes of issuing warning letters. It has been criticised, however, for being ineffective and has been likened to France’s now-revoked HADOPI law.
In December, a similar action in Germany controversially saw close to 30,000 alleged users of the pornographic site Redtube receive cease and desist letters imposing fines for illegally accessing streaming adult films. “The courts in the UK do not like those kinds of… harsh tactic[s],” says Greenwood, adding that she believes such actions are “so much in the past – the new thing is really going for the intermediaries and diversifying the kinds of intermediaries you go for.”
Soft power: putting pressure on advertisers
On the non-litigious side, squeezing ad revenue from offending sites is seen as a useful tactic. “I do think it works. Most advertisers don’t want their brand appearing on a site engaging in illegal activity,” says Greenwood, adding that it’s a “collaborative process.” In this vein, for the past two and a half years, FACT has been active in contacting agencies and brands whose ads appear on pirating websites.
Vanishing Act: removing illegal sites from search engines
Arguably the most extreme measure of all is courts requiring that search engines filter out offending sites from results. Adopted in the United States via the US Digital Millennium Copyright Act and recently exercised by the French High Court, this action has digital rights advocates up in arms. Yet, according to Wiggin’s Digital Entertainment Survey, 65 per cent of users do in fact employ search engines to locate copyright-infringing content.
“We think there’s more work to be done by search engines to prevent [copyright infringement],” says Leviten. Greenwood describes a climate of growing tension among such vulnerable intermediaries: “The slight worry for people like the search engines or social networking sites is that if there’s a link that goes to a pirate website, that link would arguably be infringing on copyright.” Clearly ‘think before you link’ has broader implications than the Svensson ruling could ever have envisaged.
Shana Ting Lipton is a journalist and law student.