By Walter van Holst (Mitopics)
In the past few weeks we have witnessed a significant number of countries in which ISPs have been ordered in judicial verdicts to block the Swedish website The Pirate Bay (TPB). Examples of this are the United Kingdom, India and The Netherlands. This is seen by many as the logical extension of already existing verdicts against TPB in those jurisdictions. The litigation surrounding TPB has gone through several stages:
Stage I: TPB itself
TPB has been litigated in several jurisdictions outside Sweden, where the courts’ reasoning typically went as follows:
1. Unauthorised file sharing through the bittorrent protocol is copyright infringement;
2. Facilitating such file sharing on purpose (and profiting form it) is tort or your local civil law equivalent;
3. It is easier for rights holders to demand from TPB to stop facilitating infringement than to ask end-users who actually infringe to stop doing so, therefore it is justified to demand from TPB to block end-users.
4. It is plausible that TPB facilitates file sharing between individuals in the jurisdiction of the court, therefore the court is competent despite TPB being based in Sweden;
5. Therefore the court can issue a verdict against TPB, ordering it to block users from the court’s jurisdiction;
Stage II: ISP blocking
Now that TPB at best ignores verdicts resulting from stage I, if not flaunts them, the following stage has been that ISPs have been taken to court. In those cases the reasoning is as follows:
1. TPB is ignoring earlier verdicts ordering it to block access from the court’s jurisdiction, thereby flaunting the rule of law;
2. The copyright infringement by the ISP’s users cannot be left unanswered;
3. It is still easier for rights holders not to go after the end-users that are doing the actual infringement, and since TPB turns out to be ignoring verdicts a blockade of TPB at the ISP level is the logical next step;
4. Proportionality requirements for such a blockade resulting from for example the European Convention on Human Rights are met since only technically skilled people can circumvent it and based on dodgy statistics presented by BREIN it can be assumed that blocking might achieve the ends of stopping copyright infringement.
Stage III: Injunctions against circumvention services
As predicted by many critics, it turns out that IP- and DNS-level blocking is trivial to circumvent. So now we are entering a third stage, in which injunctions against circumvention are being asked and at least in ex parte procedures area also granted. World famous Dutch rights enforcer BREIN (http://www.anti-piracy.nl) takes the position that providing a proxy service, even one that is not TPB-specific is again tantamount to contempt of the court’s decisions regarding IP- and DNS-blockades. Furthermore, BREIN takes the position that merely explaining how such a blockade can be circumvented also constitutes a circumvention of a valid court order and as such unlawful.
This is a fallacy at several levels. First of all, Dutch law does not have a concept of contempt of court. Moreover, a court’s verdict in a private law case cannot bind parties that were not part in the lawsuit at hand. Thirdly, and most importantly, the mere demonstration that a court’s ruling is flawed and not based in reality has more in common with Galileo Galilei’s demonstration that the sun does not revolve around the earth than with threatening the rule of law in a democratic state, as argued by Bart-Willem Schermer in this blog.
There is a circular reasoning in all of this, apart from all the fallacies of moaning about imaginary losses of turnover as well as attacking intermediaries because they supposedly are best positioned to prevent infringement which for the purpose of this blog I have left aside. All the Dutch Pirate Party has done is merely pointing out that circumvention of blockades at the ISP-level is much easier than lawyers and judges alike apparently could comprehend, despite having been told so in court before. The logical conclusion should be that ISP-blocking is fundamentally ineffective and that earlier rulings based on a misguided notion that proportionality requirements have been met should be rescinded. The response by BREIN so far has been that they have been going after proxies and publicly have suggested that they may go after VPN-providers and other service providers that either on purpose or inadvertently allow for circumvention of ISP-level blockades. So BREIN retroactively wants to prove the proportionality of measures it has demanded and has been granted by the courts by suppressing anything that might suggest that they are not proportionate.
And yes, the way TPB has responded to demands of rights holders, verdicts by courts and also the way the Dutch Pirate Party has operated in the past does not deserve a prize for beauty and elegance. There is no love lost between me and the Pirate Party, I don’t like one-issue parties and it takes more than an (admittedly) sensible political program about IPR to make a good party. Quality of people involved comes to mind for example.
Having said that, BREIN’s relentless fight to enforce so-called intellectual property rights (IPRs, which have more in common with privileges than with property) no matter the cost to fundamental rights to freedom of expression and privacy is much more of a threat to the rule of law in a democratic state than anything TPB has done so far. It is BREIN who is behaving like a jack-booted thug here, by repeat abuse of the ex parte procedure (which in itself is poorly reconcilable with the rule of law as we know it) and by its outrageous demands against the Dutch Pirate Party. If anything, an assistant professor at Leiden University should come to the Pirates’ defence instead of showing to have drunk the IPR-maximalists’ kool-aid by calling the mere expression of facts a threat to the rule of law. This could go into the PR-textbooks as a lovely example of ‘spinning’. If there was anything lovely about spinning to begin with.
In conclusion: it is time to wake up and smell the coffee. General purpose computers, especially interconnected with each other, are intrinsically good at copying and disseminating information. Most, if not all of our notions of IPR are founded on the notion that creativity and innovation have to be renumerated as well as that curation and distribution of information is a capital intensive and risky proposition, that also should be rewarded. The latter has been increasingly proven to be a fallacy. The former an interesting question that is unlikely to have a one-size-fits-all answer. The ends of having a vibrant society in which we have technological, cultural and political exchanges of positions are no longer served by the means of current IPR-regimes and are actually under threat from these means. Ends being more important than means, this only means that those means are up for debate. This madness must stop.