Blocking Orders: Assessing Tensions with Human Rights

In the past few years, the practice of enforcing intellectual property by ordering internet access providers to block infringing websites has been rapidly growing, especially in Europe. European Courts, such as the CJEU and ECtHR, advance several factors to inform—from the perspective of different fundamental rights—the website-blocking practices for copyright enforcement in Europe. This chapter provides an overview of these factors, starting with the freedom of expression framework for website blocking and the rather revolutionary, at least for the European judiciary, concept of user rights that has being construed under it. It then proceeds to discuss the limits of intermediaries’ involvement in digital enforcement dictated by the EU-specific freedom to conduct a business. The required efficacy of the blocking resulting from the human right to property framework for intellectual property is also examined. Potential effects on the website-blocking practices of the recent EU copyright reform are then discussed before concluding.

12. Copyright infringement in the digital environment

This chapter analyses cases of copyright infringement in the online environment. It begins by analysing some early cases regarding file-sharing technologies, including A&M Records, Inc. v Napster, Inc., MGM Studios, Inc. v Grokster, Ltd, and Sweden v Neij et al. (the Pirate Bay case). It assesses new techniques for fighting illegal file-sharing, such as blocking access to websites offering file-sharing technology or indexes with a focus on the operation of s. 97A website blocking orders. It examines the recent Supreme Court decision in Cartier International v British Sky Broadcasting which will have substantial implications for costs in these orders. Finally, it describes the slightly controversial process known as speculative invoicing.

Orienting to see what’s important: Learn to ignore the irrelevant

The current study used a triad judgment task to assess whether blocking by comparison type in a triad judgment task could lead people to pay less attention to surface-level (irrelevant) features and pay more attention to deep (structural) features of information. A sample of 313 participants recruited through Mechanical Turk participated in this study. On each triad, participants were asked to evaluate which of two source scenarios went best with the target scenario. Three types of triads were constructed with materials related to the ability to perceive ethical issues within the practice of psychology. One type of triad contrasted a scenario that was similar to the target in terms of surface-level features and a scenario that was similar in terms of deep features (similar surface-similar deep, SS/SD). A second triad type contrasted a scenario that was similar in terms of deep features with an unrelated scenario (similar deep-unrelated, SD/U). The third contrasted a scenario that was similar in terms of surface features with an unrelated scenario (similar surface-unrelated, SS/U). There were 10 triads of each type. We found that with all the blocking orders except two, participants reliably chose the SS scenario over the SD scenario for the SS/SD triads. However, participants who started out with the SD/U triads did not. The results provide evidence that people often have the ability to perceive the deep, but they are distracted by the surface-level features. The results also show that people can be oriented away from being distracted by the surface-level features so that they can see the deep.

Why Keep a Dog and Bark Yourself? From Intermediary Liability to Responsibility

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum. In this context, this paper would like to explain the recent developments in intermediary liability theory and policy within a broader move towards private ordering online. Public enforcement lacking technical knowledge and resources to address an unprecedented challenge in terms of global human semiotic behaviour would coactively outsource enforcement online to private parties.Online intermediaries’ governance would move away from a well-established utilitarian approach and toward a moral approach by rejecting negligence-based intermediary liability arrangements. Miscellaneous policy tools—such as monitoring and filtering obligations, blocking orders, graduated response, payment blockades and follow-the-money strategies, private DNS content regulation, online search manipulation, or administrative enforcement—might reflect this change in perspective. In particular, governments—and interested third-parties such as intellectual property rightholders—try to coerce online intermediaries into implementing these policy strategies through voluntary measures and self-regulation, in addition to validly enacted obligations. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet. In this sense, the intermediary liability discourse is shifting towards an intermediary responsibility discourse.Further, enforcement would be looking once again for an ‘answer to the machine in the machine’. By enlisting online intermediaries as watchdogs, governments would de facto delegate online enforcement to algorithmic tools. Due process and fundamental guarantees get mauled by technological enforcement, curbing fair uses of content online and silencing speech according to the mainstream ethical discourse.

Website Blocking in Europe

This chapter considers website blocking practices in European nations besides the United Kingdom. Most member states have enacted legislation to permit courts or administrative authorities to issue website blocking injunctions in some form. The majority of these statutory remedies are restricted to the enforcement of copyright and related rights, but some target other rights or pursue public policies such as the regulation of online gaming or the prohibition of images depicting child abuse. In some jurisdictions, blocking orders are available without any specific legislative basis, pursuant to ordinary rules governing injunctive relief.

Part F Cross-Border Issues, 46 Liability for Branch Deposits and the Impact of Foreign Law

This chapter examines the extent to which a bank based in England is liable to meet the deposit obligations of its foreign branches if, for some reason, they are prevented from doing so directly. It considers the impact of a foreign branch; the consequences of an outbreak of war; the effect of a foreign expropriation law; the effect of other forms of seizure; exchange control laws; the effect of a foreign moratorium; and blocking orders.