Annexure B- Music Rights Australia submission November 2012  

Summary of ISP blocking actions in Europe

Rights owners have now obtained a number of court decisions in EU member states requiring ISPs to block their customers’ access to infringing websites, such as the well-known Bittorrent site, the Pirate Bay. Depending on the country, these actions have been undertaken under laws implementing article 8(3), tort law, as part of a criminal procedure, or administrative process.  In general the courts have ordered ISPs to implement the orders in the form of DNS and IP blocking.   In all cases the ISPs have been required to bear their own costs of implementing the blocks.

Austria 
In May 2011, in a case brought by film companies, an Austrian court ordered the ISP UPC to block access to kino.to - a popular portal for streaming infringing movies – via DNS and IP blocks.  

Although kino.to went offline in June 2011 following criminal actions against it, the proceedings have continued and in November 2011 the appeal court refused the ISP’s attempt to have the blocking order set aside. Instead, the appeal court made a broader form of blocking order and also dropped a condition imposed by the first instance court, which had required the film companies to pay security.  Some questions in the case have recently been referred to the European Court of Justice.

Belgium
In September 2011, an appeal court made orders requiring the ISPs Telenet & Belgacom to block their customers’ access to the Pirate Bay.  In April 2012 further orders were made against all Belgian ISPs in relation to blocking alternative forms of the Pirate Bay domain name (Depiraatbaai.be and baiedespirates.be). The blocking was applied only at DNS level. ComScore research shows a 79 per cent drop in usage of The Pirate Bay between October 2011 and September 2012. 

Denmark
In Denmark, there have been three cases in which blocking orders have been made. In October 2006, a court granted Danish rightsholders’ request for orders that ISP, Tele2 A/S block access to Allofmp3.com. The choice of blocking method was left to the ISP, which chose to implement DNS blocking. 

In January 2008, a court ordered ISP, DMT2 A/S (later known as Sonofon A/s and Telenor A/S) to implement DNS blocking of the Pirate Bay. That decision was confirmed on appeal by the Danish Supreme Court in November 2008, and then again in May 2010. The Danish Supreme Court’s decision notes that the remedy sought was proportionate to the harm suffered by rights holders from infringers. In particular, the Court noted:

Having been informed about the costs and inconvenience incidental to blocking at DNS level, compared with the very extensive infringements of copyrights administered by the respondents which are effected via the website www.thepiratebay.org and in which the respondents have a significant and protection-worthy interest in bringing to an end or, at least, in reducing significantly, the Supreme Court concurs that there are no grounds for concluding that the injunction will imply any damage or inconvenience to Telenor which are out of apparent proportion to the respondents’ interests in the issues of the injunction. 

In February 2012, the Danish High Court ordered ISP “3” (Hi3G Denmark) to take “necessary and suitable steps” to block their subscribers’ access to the Grooveshark website, including sub-sites and sub-domains. 3 has complied with the court order by using a deep packet inspection method.  No appeal was filed. All major ISPs (Telia, Telenor and TDC & subsidiary companies) blocked the site as of 20 April 2012 using the DNS method of blocking. Usage of Grooveshark decreased between April 2012 and September 2012 by 48 per cent. In July 2012 a court order required ISP Telenor to block a different domain name of The Pirate Bay (www.thepiratebay.se) and all ISPs have implemented the block on DNS level. 

Finland
In October 2011, a court in Finland ordered ISP Elisa to block access to The Pirate Bay. The Finish Court found that the injunction was reasonable and proportionate, noting that: 

“It is not credible that the measures referred to in the resolution would result in such costs, or have such an impact otherwise, that implementing said measures could be held to be unreasonable from Elisa Oyj’s point of view, or that they would cause others such harm or inconvenience that they might be regarded as an impediment to an injunction to discontinue.”

The order was confirmed on appeal, and in October 2012 Elisa’s application to further appeal to the Finish Supreme Court was rejected. In June 2012, two further Finish ISPs, DNA and TeliaSonera were also ordered to block The Pirate bay. The blocks have been implemented on IP and DNS level as of July 2012 but the ISPs (DNA and TeliaSonera) have appealed. Usage of The Pirate By declined between January 2012 and September 2012 by 74 per cent. 

Greece
In May 2012, a court in Athens granted an application brought by a broad coalition of rights holders, including music, film, and book publishers, for an order requiring all major Greek ISPs to implement DNS and IP blocking of the ellinadiko.com and music-bazaar.com websites. The ISPs did not appeal the decision. 

Ireland
In July 2009, in EMI & Ors v Eircom, a court ordered ISP Eircom to implement DNS & IP blocking of access to the Pirate Bay.  The court action was not contested by Eircom.

Italy
In Italy, successful blocking actions have been taken under criminal law. In December 2009, the highest court in Italy confirmed orders requiring all ISPs in Italy to implement DNS & IP blocking of The Pirate Bay.  Following the implementation of the order, usage of The Pirate Bay decreased between February 2010 and September 2012 by 57 per cent. A similar court order was obtained in April 2011 in connection with the BT Junkie Bittorrent website. Usage of this site decreased by 92 per cent between April 2011 and February 2012, when the service voluntarily shutdown following the closure of MegaUpload. And in May 2012 an order was obtained in connection with Bittorrent site kat.ph, whose usage went down by 74 per cent between May and September 2012.  

Netherlands
In 2012, an appeal court made orders requiring the ISPs Ziggo and XS4ALL to implement blocking for the Pirate Bay. 

In May 2012, a Dutch court issued an injunction requiring other Dutch ISPs UPC, KPN, Tele2 and T-Mobile to also block The Pirate Bay. Between January and September 2012 the usage of The Pirate Bay decreased by 79 per cent. 

Also in May 2012, the court issued a further judgment against the Dutch Pirate Party, prohibiting it from providing access to The Pirate Bay via a dedicated proxy and to stop offering links to circumvention sites. The court held that the party is facilitating the active circumvention of The Pirate Bay block, which is a tort under Dutch law.

Norway
In February 2012, an appeal court affirmed the lower court’s decision not to grant an order requiring ISP Telenor to block access to The Pirate By. The court refused the order due to a lack of legal basis – the relevant European law has not been implemented in Norway. The Government is currently working on a bill to address this. 

Spain 
In Spain, the new “Sustainable Economy” law and an implementing decree which came into force in March 2012, enables the blocking of foreign infringing sites in certain circumstances. The process begins with a complaint from rights holders which is then considered by an administrative body. Rights holders have filed several complaints under the new law. 

UK
In October 2011, in a case brought by film companies, a court ordered ISP BT to block access to the Newzbin2 website.  Similar orders were subsequently obtained against other ISPs.  

The Court rejected an argument that the blocking order pursuant to section 97A of the UK Copyright Designs and Patents Act 1998 (which implements article 8(3) of the EU Information Society Directive) would be contrary to fundamental rights:

“...it merely requires BT to implement an existing technical solution which BT already employs for a different purpose; implementing that solution is accepted by BT to be technically feasible; the cost is not suggested by BT to be excessive; and provision has been made to enable the order to be varied or discharged in the event of a future change in circumstances. In my view, the order falls well within the range of orders which was foreseeable by ISPs on the basis of section 97A, and still more Article 8(3) of the Information Society Directive. I therefore conclude that the order is one “prescribed by law” within Article 10(2) ECHR, and hence is not contrary to Article 10 ECHR.”

In May 2012, in a case brought by record companies, a court ordered five major ISPs to block access to The Pirate Bay.  Research shows that usage of The Pirate Bay in the UK significantly decreased since the block was implemented by ISPs in May 2012: the usage of the site declined between April and September 2012 by 73 per cent.