UK's (Losing) Battle with Pirates

In what seems to be a never-ending war on piracy, the Royal Navy has been seemingly substituted for an army of lawyers, and skirmishes on the seas traded for exchanges in a courtroom.  In a decision that mirrors an international effort to limit access to the peer-to-peer file sharing website known as “The Pirate Bay” (TPB), the High Court of Justice in the United Kingdom ruled on May 2, 2012 that six of the UK’s largest internet service providers (ISPs) would block TPB’s IP address from its customers in an attempt to prevent access to files that have infringed numerous copyrights.

Briefly, TPB is a Swedish website that hosts links to provide its users access to millions of BitTorrents that allow the uploading and downloading of copyrighted software, films, music, and other forms of media. According to the Internet traffic ranker, it is the 80th most popular website in the world. By comparison, Netflix is the 96th most popular website and New York Times is 112th). The site’s overwhelming popularity has not gone unnoticed – with governments and companies across the world (Belgium, Denmark, Germany, Greece, Ireland, Italy, Malaysia, Netherlands, China, Sweden, and the United States) pressured heavily by media corporations to shut down or limit access to the site.

Thus, we arrive at the High Court ruling that the UK’s ISPs must block TPB’s IP address – a block that encompasses approximately 19 million users, representing 94% of Internet users in the UK. The reasoning behind this decision was centered on section 97A of the Copyright, Designs and Patents Act 1988, which states, “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.” Furthermore, the court ruled, there was no question that the Defendants (ISPs) satisfied the definition of service providers, that the users and operators of TPB use the Defendants’ services to infringe copyright, and that the Defendants have actual knowledge of this infringement.

There is little issue with the reasoning behind the High Court’s decision; however, the legislation itself raises questions. In my opinion, there are two issues with the legislation. The first issue is a jurisdictional problem. TPB is a website whose servers are located in Sweden, and is granted network connectivity through a Swedish company, Serious Tubes Network. Thus, British companies are being held responsible for content over which they wield no control because it is created by foreign companies. By requiring British ISPs to block such IP addresses, the courts are effectively limiting the companies’ consumer bases. This intervention in restricting which services these commercial entities are allowed to provide is unwarranted; since the goal of these companies is to provide access to the Internet, not monitor its content.

The second issue with the legislation is that it is difficult to logically assign fault to the ISP – for it is neither responsible for hosting, nor downloading the content. Rather, it is the hosting company that simply enables the Internet user to perform the actual acts of hosting and downloading pirated content. While the ISP is the easiest target, ease of accusation does not translate to culpability. It is one thing to ask the ISP to monitor its users’ actions on the Internet, but an entirely different and unjustified matter to hold them responsible for the actions of their users.

As an aside, while the IP block comes as the court’s latest method of restricting access, TPB has a reputation of circumventing both restrictions and attempts to physically shut down its servers with astonishing ease and efficiency. In response to the UK IP address ban, TPB has launched a parallel version of its website with a new IP address that is unblocked from the aforementioned ISPs, thus allowing UK users full access to its site.

In a move that almost mocks international authorities’ attempts to bring down their servers, TPB is planning to use GPS-controlled, low-orbit aircraft containing microcomputers to store and transmit it server data. In doing so, TPB would severely complicate efforts to locate and shut down their servers. Perhaps it truly lives up to its reputation as “the world’s most resilient BitTorrent site”.

Byron Tse is a JD Candidate at Western University, Faculty of Law.