Sky blocks Newzbin, important legal and technical questions need answering

[Igor Mozolevsky]

On 15 December 2011 17:23, James Firth <james2 at jfirth.net> wrote:

> Opinions of two senior practicing lawyers would not agree with you there...

So what? I'm sure BT and the others had opinions of senior practicing
lawyers that differed from the opinions of senior practicing lawyers
that MPAA had...

> The SABAM case is fundamentally different, in that monitoring of traffic
> is a central part of the blocking order.  In Newzbin it's secondary - to check
> URLs, an action which could be seen as minimising the risk of "overblocking".
> Arnold J said this explicity, more or less, in his October ruling (6 from memory).

Given that ECJ deals with the interpretation of law and not
application of that law to the facts of a particular case,
fundamentally different facts aren't as important as the meaning of
the law, so long as that law is applicable. Applying the structure set
out at [38] in the ECJ judgment (unless I fundamentally misunderstand
how Cleanfeed works) to what the ISP is required to do is this:

1. Identify, within all of the electronic communications of all its
customers, the packets relating to HTTP;
2. Identify, within that traffic, the URLs supplied by the Applicants
(MPAA); and
3. Block access to those URLs.

I don't think that it matters whether 2&3 are done by the ISP or on
ISP's behalf by a third party. I don't see how an ISP would know
whether to pass a well-formed HTTP session to Cleanfeed without a
general catch-all filtering first.

HTTP vs P2P argument makes no difference either: in both cases you
need to actively and indiscriminately monitor the network layer and
based on that monitor the application layer to decide whether to block
content or not. Or is that not how Cleanfeed works?

Would this amount to interception or surveillance under Directive 2000/31?

Further, the BT injunction is not limited in time either, is it?

> All the issues of proportionality and compatibility have been addressed by
> Arnold, J.  Another judge might come to a different conclusion but the thinking
> I'm hearing is that Newzbin will not be affected SABAM.

The three paragraphs that address the proportionality are very thin
and appear to be based on the fact that the cost to BT would not be
too high since BT already used Cleanfeed. Although to me, it seems
bizarre that the judge made explicit references to Cleanfeed in the
order (whereby arguably showing judicial endorsement), instead of a
generic blocking mechanism... The judge made no assessment of the
rights of privacy of BT's users as a whole, merely he was "satisfied"
that the curtailing of Art. 10 rights was proportionate. For example,
I wouldn't be surprised if Cleanfeed logs every referral regardless of
whether that referral is subsequently blocked.

Surely the more appropriate and proportionate course of action in the
BT case would have been for the MPAA to seek an order against the
upstream ISP of Newzbin, as the latter would be more effective,
involve a direct action against the wrong-doer and not unnecessarily
burden intermediaries?


--
Igor M.