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Towards the end of last week, news emerged that an alternative option was being discussed in order to replace the existing Digital Economy Act’s website blocking measure. The UK government’s Ministers of Culture, Communications and Creative Industries, Ed Vaizey has officially invited the Open Rights Group (ORG), rights holders and ISPs to look at a new ‘plan B’ approach which could mean ISPs blocking access to websites deemed to facilitate Internet copyright infringement based on a central blacklist.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

Plans were first formalised through a meeting late February with rights holders and ISPs, which led to the creation of a working group that would investigate site-blocking systems. The working group is said to be meeting the first week of April. Jim Killock, Executive Director of the ORG said the discussions had been prompted by delays to the DEA.

Such plans would see responsibility for the monitoring of websites being passed to the newly established independent body that would manage a blacklist of piracy websites. ISPs would then voluntarily filter out the websites said to be infringing copyright. The benefit of this, of course, would be to copyright holders who would only need to make a complaint once to the independent body rather than to each ISP. An initial list of around 100 illegal downloading sites has already been drawn up by rights holders, including the likes of Pirate Bay and Newbin2.

The plan B approach has been compared to the Internet Watch Foundation’s (IWF), which collects and investigates reports of child abuse material online. It then distributes a blacklist of web addresses to ISPs who voluntarily use it to filter virtually all UK consumer Internet access. The new plans would mean ISPs would not be responsible for checking complaints made by copyright holders against websites.

At one of the initial government meetings it is believed that one of the rights holders commented on preferring a site blocking approach over a notification method, simply because it would be cheaper and because they did not want to target end users. Rather, they wanted results now. We certainly agree with not targeting end users. As we have declared before, the DEA’s proposed method of using an IP address to identify end users as offenders is simply not accurate enough. It could easily leave innocent people open to improper prosecution. Targeting the source of the problem could potentially see a fairer approach. This assumes of course that the right sites are targeted and that’s a big assumption!

Many obstacles have stood in the way of the current DEA plan, for instance the recently reported news that the DEA will be delayed until at least Spring 2012, the ongoing debate over the allocation of costs between rights holders and ISPs (Opinion.enta.net: DEA passes buck to ISPs), the judicial review brought by BT and TalkTalk and of course the problems Ofcom has encountered with its code of practice. As we mentioned in our last article on the DEA, (Opinion.enta.net: How much more can the DEA withstand?), its future doesn’t bode well, it is already becoming highly unpopular. So now that the government is looking into alternatives, maybe they are finally admitting defeat with the existing plan.

Reportedly many ISPs are interested in the new idea and are responding to it warmly. However, some have also suggested the proposed plan B will need to involve an impartial judge to assess each case to ensure they are legally covered if website owners decide to sue. We agree. Websites should only be blocked following an investigation from an impartial source and not just taken on the basis that the rights holders have asked for it. In fact the Open Rights Group doesn’t agree with the proposal. Peter Bradwell wrote in a blog post “we believe website blocking is a bad idea, especially on a self-regulatory basis where vital judicial oversight is bypassed.”

Another potential concern is the fact that the newly proposed plan has not as yet considered the costs involved or any potential funding available. Such systems needed for this plan to work are not free. Who would foot the bill? Surely not ISPs.

Of course, simply blocking the websites thought to be infringing content copyright may not be enough. It’s almost impossible to develop filters that can’t be circumnavigated in some way. If persistent offenders want the content that badly, a filter is not going to stop them. A more ideal approach would be to remove the websites in question entirely, rather than just blocking them. However, problems arise where the servers that house the websites are located beyond an authority’s jurisdiction. This wouldn’t be something ISPs could control.

The new proposal therefore suffers from the same fundamental problem as the old one. It fails to recognise that ISPs have no control over physically removing or blocking content that doesn’t exist within their own network. As we have said many times before, ISPs are mere conduits of information and cannot be held liable for the data they provide or the websites they provide access to.

Whilst we think it is great the government is looking into alternative plans for the current Digital Economy Act, we believe more research and planning needs to take place before it is finalised. It shouldn’t be rushed just to ‘get results’. After all, it is for this reason the DEA has met such criticism from ISPs, privacy advocates and other DEA critics.

Updated: Monday 18th April 2011

The Government’s Plan B may have suffered a further blow with the latest news from the European Union. The European Court of Justice has been told by the Advocate General, Pedro Cruz Villalón, that ordering an ISP to filter and block electronic communications in order to protect intellectual property rights ‘infringes fundamental rights’. This comment was made in response to a similar case involving a Belgian ISP but could have a wider effect on the recently proposed Plan B approach to website blocking.

Pedro Cruz Villalón, said: “It would make Sabam [a Belgian rights holders association] responsible for the cost of installing the filtering and blocking system. Thus, through that system, the legal and economic responsibility for combating illegal downloading of pirated works from the internet would largely be delegated to the internet service providers…

…the installation of that filtering and blocking system is a restriction on the right to respect the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”

The debate over Plan B also rages on between the Open Rights Group (ORG) and various rights holders associations. The latest news discusses an open letter sent by ORG to a number of associations including the BPI requesting an open public debate on this issue and early sight of the proposals.

Have your say!

What do you think about the alternative plan B to the DEA’s original website blocking measure? Do you believe this is a step in the right direction or just another ill-thought out plan to try to combat P2P illegal file sharing? Let us know your thoughts by leaving us a comment below.

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