In countries across the world, IP rightholders are pushing website blocking as the latest weapon against online copyright infringement. United Nations’ Human Rights experts, security engineers, law professors and others are pushing back, noting both the enormous collateral damage such blocking can cause and the likelihood that it will do little to actually curb infringement.
Against this background, the UK government’s announcement on Wednesday that it will not go forward with a highly controversial website blocking regime - at least for the time being - is an important step in the right direction. Unfortunately, this is unlikely to be the end of the debate in the UK, if Freedom of Information documents and news reports about comments made by UK Minister for Communications, Culture and the Creative Industries Ed Vaizey are any indication.
The UK government’s decision was based on a report by UK regulator Ofcom, dated 27 May 2011, but released on Wednesday as part of the UK government’s welcome response to the landmark Hargreaves report from May. As we saw in last week’s Newzbin2 judgment, rightsholders in the UK already have the ability under existing law to obtain court injunctions requiring ISPs to block websites proven to have infringed copyright, but the reserved blocking powers in sections 17-18 of the 2010 Digital Economy Act are broader and more controversial. That’s why the UK Department of Culture, Media and Sports asked Ofcom in February to review whether those website blocking provisions were workable. Ofcom concluded they weren’t, but did not reject use of website-blocking altogether.
Ofcom’s report considers the technical feasibility of four techniques that Internet intermediaries could use to block sites (Internet Protocol blocking, Domain Name System alteration, URL blocking, and Packet Inspection of network traffic) against 7 criteria: speed of implementation; cost, blocking effectiveness; difficulty of circumvention by users and counter measures ISPs could take; ease of administrative or judicial process; the integrity of network performance; and the level of granularity of blocking that is possible and corresponding impact on legitimate services. Some of this analysis was redacted in the report released by the UK DCMS on Wednesday but an unredacted version of the Ofcom report has now been posted here.
Ofcom concludes that while it is feasible to “constrain access to prohibited locations on the Internet” using these techniques alone or in combination, “none of the techniques is 100% effective; each carries different costs and has a different impact on network performance and the risk of over-blocking” and that “[f]or all blocking methods circumvention by site operators and Internet users is technically possible and would be relatively straightforward by determined users.”
This, of course, is not news to anyone who has taken the time to investigate what is involved in website blocking.
Despite all that, Ofcom concludes that website blocking could form ”part of a broader package of measures to tackle infringement”:
“Although imperfect and technically challenging, site blocking could nevertheless raise the costs and undermine the viability of at least some infringing sites, while also introducing barriers for users wishing to infringe. Site blocking is likely to deter casual and unintentional infringers and by requiring some degree of active circumvention raise the threshold even for determined infringers.”
The report goes on to suggest that if blocking is to be implemented, DNS blocking is the preferable approach because it would cause the least delay and cost – two of the key concerns voiced by copyright holders. It also suggests augmenting this by requiring search engines to delist websites.
However, Ofcom notes that DNS blocking is at best a short term solution because implementation of DNS Security Extensions (DNSSEC) will shortly make DNS blocking more transparent and hence less effective. It therefore recommends Packet Inspection for a longer term solution but highlights that it is technically complicated (and therefore slower to implement), expensive (translation: Internet access costs are likely to go up as costs are passed onto subscribers), and raises a number of pesky legal questions – such as whether DPI is compatible with UK privacy and data protection law. (We’d like to read that legal opinion).
After IP righstholders’ intense lobbying for PIPA in the US and the concerted push in international fora (such as WIPO and the OECD) for Internet intermediaries to act as copyright police and engage in website blocking, it is heartening to see the UK regulator’s sensible discussion of the technological limitations, and awareness of the public policy implications of ordering Internet intermediaries to comb through our online communications.
We welcome the UK government’s announcement, and commend its commitment to evidence-based policy-making. Let’s hope that policymakers across the world take the time to understand the implications for all Internet users’ security, for human rights and the rule of law, and the future of the open global Internet of telling DNS servers to “lose” parts of the Internet in the name of enforcing copyright holders’ private rights.