And there, for the past ten years, like a half-forgotten buried treasure, this legislative tool against online copyright infringement has patiently sat, awaiting its rediscovery and implementation. It was not as if no-one knew it was there. Lawyers from the creative industries knew well that this measure had the potential to deliver a crushing victory against illegal websites. They were fully aware that its force could compel ISPs to do what no number of MOUs, voluntary agreements or moral exhortation could ever do. And yet, they also saw its potential dark side. Trained from an early age never to ask a question to which they did not know the answer, legal minds in the studios and labels did not want to inquire of the High Court what they could do with 97a in case the answer came back firmly negative. Such an outcome would have ensured that the risk was never taken to test it again. And so it was that it remained sheathed, a sleeping dog, whilst the battle against online infringement raged all about it.
That is until 28 June 2011, when Mr Justice Arnold declared that all seven of BT’s legal arguments against the use of 97a were incorrect, and therefore granted the Motion Pictures Association an injunction, requiring BT to block access to Newzbin2, the massively infringing Usenet indexing site. This judgment is in the same potentially game-changing category Botham at Headingly, ‘81. At last, for the first time, we know we can get ISPs to block websites. The law has determined such action is proportionate, feasible, not an infringement of human rights and compliant with European law. And although only BT were subject to this judgment, it would be a waste of legal fees for any other ISPs to argue it should not apply to them. Equally, any sites bearing similar characteristics of Newzbin (i.e. where, to quote Mr Justice Arnold “it appears quite hard to find any content not protected by copyright”) will be subject to the same order – and in a speedier legal process than this test case.
But – and there is bound to be one – the judgment could yet fail to deliver to its full potential. Willing the means does not deliver the end. ISPs will have to implement the technology to achieve the order, and this – they will claim – is devilishly difficult. They will also claim they can’t afford it (although this is never a strong argument when, as BT’s do, your annual profits exceed the entire annual revenue of the recorded music industry!). The question will also arise as to efficacy. Everything can be circumvented, the determined infringer will always be able to devise work-arounds, and then disseminate these to fellow pirates. Even though the aim must always be reduction and not eradication, the subjectivity of what effectiveness looks like will surely keep the High Court busy for years to come.
The biggest question arising from yesterday’s judgment concerns another piece of legislation, itself in danger of being interred beneath a morass of half-drafted regulation, legal wrangling and political game playing. The Digital Economy Act’s section 17 is designed to do something quite similar to the s97A which has shown itself to be so effective. One of the factors holding it up has been a concern about its implications on everything from national security to freedom of speech (the latter being a red herring that even Agatha Christie would have eschewed as being too random). But, here’s the thing. If, as we see, s97a can be given effect without engaging these concerns, then why should section 17 still remain subject to the fears? The calls for full implementation of the DEA look even more justified in the light of the judgment.