Content blocking technology The European Commission’s Digital Single Market Strategy aims to ease content blocking restrictions on paid content across Europe. However, when it comes to copyright infringement, the Strategy currently only encompasses “large-scale infringement.” In order to achieving a level-playing field, Internet blocking order has become the ‘weapon of choice’ for combatting music piracy in the digital world. But what are a content owner’s rights?

1. 1
Direct action often ineffective
– ‘Cease and Desist’ letters to domain registrants
• Letters simply ignored. Registrants based overseas
• Difficult to identify real website operators (often not the registrants)
• Obvious difficulties with enforcement action
– Notice and takedown by hosts
• Reputable hosts operate take down policies
• But operators may use non-responsive host (based in obscure jurisdiction)
– Direct against individual infringers
• Not cost effective. Difficulties with proving infringement. Risks reputational harm
Limitations with “follow the money” approach
– Payment freezing
• Ask Visa, MasterCard etc. to suspend website operators' merchant accounts
• Website closure not guaranteed – operators switch to alternative payment methods
Other options face challenges
– De-indexing
• Request Google etc. to "de-index" entire target websites
• Search engines frequently require court order to act
• No clear legal foundation for such court orders
• De-indexed websites would remain accessible where bookmarked by consumers
•Music 4.5: Converting Freemium, 24th
June 2015
Achieving a level playing field: problem of combatting internet music piracy

2. 2
Technological foundation
– Technology developed by ISPs to block access to illegal child images and to offer parental
website controls/filters
Legal foundation
– Section 97A CDPA gives UK courts 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
– Section 97A CDPA implements Article 8(3) of the Information Society Directive
– Article 8(3) of the Directive provides that rights holders must be ‘in a position to apply for
an injunction against intermediaries whose services are used by a third party to infringe a
copyright’
•Music 4.5: Converting Freemium, 24th
June 2015
The emergence of internet blocking orders: technological and legal history
technological history background

3. 3
Twentieth Century Fox Film Corp. & Others v. BT (2011)
– Film studios secured first UK blocking order forcing BT to block access to website Newzbin2
– Newsbin2 website mainly focussed on film and television content (music content also available)
– Nature of ‘infringing acts’ and ‘proportionality’ of orders considered
– BT held to have actual knowledge of persons using their service to infringe copyright
– High Court granted internet blocking orders pursuant to Section 97A CDPA
– Operators of websites not joined as defendants
Dramatico Entertainment Ltd & Others v. BSkyB Ltd & Others (2012)
– Claimants were record companies represent members of BPI and PPL
– High Court ordered various UK ISPs to block access to ‘The Pirate Bay’ file sharing website
– Judgment followed approach taken in Newzbin2 case. ISPs did not contest grant of orders
•Music 4.5: Converting Freemium,
24th June 2015
Website blocking orders: the key court decisions

4. 4•Music 4.5: Converting Freemium, 24th
June 2015
Blocking orders in practice

5. 5
EMI Records Limited & Others v. BSkyB Ltd & Others (2013)
– Claimants were major record labels (also representing BPI and PPL membership)
– Defendants were main retail ISPs in the UK
Website services
– Websites operated content indexing websites
– Users free to browse select sound recordings (or other content)
– Users downloaded relevant torrent file for that content from the websites
Vast scale of the problem
– Websites operated as a substantial profit-making business
– KAT website recorded approaching 4 million UK visitors in June 2012 alone (40 million visitors that
month worldwide)
– 64 of the Top 75 UK Albums in November 2012 had at least one link on KAT website
High Court decision
– Court ordered UK ISPs to block access websites pursuant to Section 97(a) CDPA
– UK ISPs did not contest grant of orders
•Music 4.5: Converting Freemium, 24th
June 2015
Website blocking orders: the key court decisions

6. 6
•Music 4.5: Converting Freemium, 24th
June 2015
Court of Justice of European Union endorsement of blocking orders
CJEU validation of Member State blocking order regimes (UPC
Telekabel Wien GmbH v Constantin Film Verleih GmbH & others)
[2014]:
- EU laws do not preclude courts of Member States granting
‘blocking injunctions’ against ISPs
- But ISPs must retain discretion as to how they achieve that
outcome
- Measures taken should:
- not unnecessarily prevent lawful accessing of online
content; and
- should prevent / seriously discourage unauthorised
access to the protected subject-matter

7. 7
– Evidence of efficacy of order review by Arnold J in Richemont case [Cartier International AG & others
v. BSkyB and others [2014 EWHC 3354 (Ch)]]
• Expert evidence given to Court as to efficacy of Section 97A orders. Website blocking orders
found to be “reasonably effective”
• Experienced and determined users can circumvent blocking measures
• But casual, inexperienced or lazy users stop visiting targeted websites
• Overall UK traffic to target websites drops dramatically following grant of court order
– Updating orders
• Rights holders may update orders to address attempted circumvention
• Right holders may use automated procedures to update orders
• ISP required to implement updated orders
– Conclusion
• Internet blocking orders merely part of the solution but:
– Important weapon for right holders in fight against online piracy
– Proving a quick and effective remedy against online piracy in UK
•Music 4.5: Converting Freemium, 24th
June 2015
Are website blocking orders effective?

8. 8
Site-blocking: where are we now?
– Blocking orders are generally proving effective for rights holders
– Ever growing number of orders. Increasing costs burden for ISPs
– Multiple website blocking orders now in effect in UK (Claimants
spanning music, film and sports industries)
•Music 4.5: Converting Freemium, 24th
June 2015
Website blocking orders under section 97A CDPA: latest developments