No Newzbin is Good News and Other Thoughts

August 1, 2011

I have been musing for days on the implications of the judgment in Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch) – although actual work and checking the cricket score has had priority. Better legal brains than mine have helped me get a perspective (see Lilian Edwards at {Pangloss:} and Graham Smith at {Cyberleagle:} for starters) but most of the comments that I respect express reservations about the effects of this landmark case. My feeling is that the greater the expressed certainty of view, the higher is the percentage of BS – it is fine not be sure. Just as well, because I am not.
A few things do occur to me:
1. The non-legal world must be looking with amazement at a situation where (apparently) Newzbin is bringing the universe, sorry Universal, to its knees but we all roll off on holiday until October when the actual blocking injunction is drafted and the blocking can start. It is like promising to sharpen your sword in the morning when the barbarians are at the gates.
2. As I have mentioned before, at the time of the case against Newzbin itself, it is hard now to see the vast chasm in enforcement that the Digital Economy Act was meant to fill. If a giant like BT can be forced to block sites pre-implementation, the right to send out a few warnings to pygmy persistent infringers looks tame.
3. Stopping Newzbin from raking in lots of revenue on the backs of the creative and financial input of others is A Good Thing. I have read some comments that seem based on the assumption that Newzbin was a freedom fighter for tortured angels. The implications of blocking generally may be frightening and it all may fail to dent the usenet sites but Newzbin is {i}not{/i} the new model for distribution that we may well need for the 21st Century.
4. Blocking can be avoided of course but casual infringers are the ones that really hit the revenue stream of rights holders and they will be deterred. I sometimes wonder if some experts in this area know anyone relatively normal. For reference, normal people can discuss the merits of various web browsers, smartphones etc, but not as a substitute for life – they are the ones who think tablets are to {i}prevent{/i} headaches. And the judge is right: if you make something trickier, they will not do it.
5. According to the judgment ‘It appears to be quite hard to find any content on Newzbin2 that is not protected by copyright. BT’s best shot was to point to a reference to the 1891 Lancashire census’. If ISPs stopped pretending that they don’t know about infringement, we might all have a grown-up conversation about the means to stop it.
6. Like many others, I fear that success in the case will make the studios and lots of other rights holders relax and stop worrying about the end of copyright as we know it. They shouldn’t, but they will.
Finally, on a personal note, can I make a declaration to all – before I am asked the oh-so-witty question again: I am indeed from Lancashire, I am quite old but I do not feature in the 1891 census.