Will Blocking Illegal Music Download Sites Ruin The Internet?

With the copyright debate flaring up again amid reports that Attorney-General George Brandis wants to block offending websites, UK based copyright law expert and solicitor Andrew Forbes shares his view on theMusic.com.au.

Copyright infringement on the internet is rife. Few would dispute that, or the magnitude of the problem it poses for the music industry and other creative industries.

But how do we respond to the challenge? This is the multi-million dollar question that has faced rights holders, internet providers, governments and judges around the world.

The very idea that steps should be taken to reduce online copyright infringement is often greeted with howls of outrage by the anti-copyright lobby. They complain of censorship, of freedom of speech being eroded. They claim that the internet will be ‘broken’.

At root, this is not really a legal problem. It’s a cultural, behavioural one relevant to every digital society. But the law needs to protect society against unacceptable behaviour which infringes the rights of others who work hard to create it.

Today, innovative legal music websites are in abundance. Competitively priced, or even free. Quality assured and guaranteed not to deliver adware and nasty viruses to your computer. No aggressive advertising for adult and gambling sites. Indeed, with the range of legal services on offer, you wonder why anyone bothers with illegal websites.

However, behavioural patterns take time to shift and the law has an important role to play in that process. The law is not a silver bullet, but nor should it hover in the background, like a stern aunt lecturing on rights and wrongs but unable to impose her will.

Indeed, with the range of legal services on offer, you wonder why anyone bothers with illegal websites.

Every country will implement its own laws and policies; but a fundamental cornerstone of every society is that infringing other people’s rights is wrong. For example, in the UK, the law has been used to help reduce the use of illegal websites. It has enabled the use of court orders requiring internet providers to restrict access to websites that infringe the rights of others.

The UK position is part of a bigger legal picture within the European Union which acknowledges the importance of effective, proportionate and dissuasive laws to combat infringement. EU legislation recognises that internet providers are often best placed to reduce illegal activity because their networks are the conduit through which infringement takes place. Accordingly, the European Copyright Directive requires EU governments to ensure that rights holders can apply for website blocking injunctions against internet providers and other intermediaries.

The music industry in the UK has acted under this law and has made a number of court applications requiring the main UK internet providers to prevent subscriber access to illegal websites. None of these sites could claim to give anything back to the writers, performers and industry off which they feed. Their whole business model is infringement. Evidence also shows that the sites profit from their activities by pocketing significant advertising revenue.

Unsurprisingly, the judiciary has had no difficulty in considering it appropriate to grant the blocking orders applied for. The court has recognised that internet providers themselves profit from providing access to these illegal sites and has required the internet providers to block them; with the internet providers paying their own legal costs and the costs of implementing the blocks.

The music industry, together with other creative industries, have been granted court orders requiring UK internet providers to block 41 illegal websites. Has the internet been broken by this activity? Far from it. Internet providers no longer oppose the court applications and the illegal websites choose not to intervene in them. On the whole, the websites themselves fail even to respond to correspondence from rights holders (and when they do, it’s merely to offer some token attempt to take down a few titles). They seem to be happy to hide offshore, away from the reach of any forum of justice in which their activities will come under scrutiny.

Website blocking has had a major impact on use of illegal sites

The evidence in the UK is that the use of website blocking has had a major impact on use of illegal sites. Of course, there are always ways and means to evade the effect of the orders – but in reality most users are just not bothered enough to go down that road. It’s much simpler to switch to something else which is easy and available. If that happens to be a legal service which has attractive features and is pitched at the right price, why not use that instead?

A key issue underpins all of this. It is the need to redress the balance between the limitless potential of the internet to allow users to experience music in new and user-friendly ways; and the economic interests of writers and performers and the industry which surrounds them. The law has a vital role to play in that process, by providing effective remedies to patrol the more lawless borders of the web.

That won’t break the internet in any way – it is simply a part of growing up, of the web maturing into a place where consumers and creators can co-exist in harmony.

Andrew Forbes
Founding Partner, Forbes Anderson Free Solicitors, London