A High Court in the UK has ordered several entire sites censored, at the request of the copyright industry, because they link to the Popcorn Time application. This is an ineffective, disproportionate, and dangerous act of censorship – not to mention utterly useless. It only takes a VPN, in any country, to completely circumvent the censorship.
The courts seem to still live in the book burning times, when they had some kind of authority over what information was allowed to exist and what information could be effectively silenced. That has not been the case for about 20 years.
The Internet, after all, was created to keep operating even in the event of a full-scale nuclear war. It has more than enough resilience to withstand – practically ignore – a misguided court here and there. John Gilmore was absolutely right when he noted that the Internet interprets judicial censorship as technical damage to the network, and just routes around it.
Let’s call a spade a spade: This is censorship. Not all things that are called censorship today are; in fact, most aren’t. When a forum moderator deletes a post, for example, is not censorship, as it is the owner of the publication platform (the server) that exercises property rights and publication rights. Those owning the publication platform always get to decide what to publish, even against somebody else’s wishes. This is not censorship.
Censorship is when the government decides what somebody may not publish, or not transport. And that’s exactly what happened here.
Such measures are restrictions in so-called fundamental rights, as guaranteed by the Charter of the European Union. Courts may issue such restrictions, but can’t do so lightly: any restriction must be “necessary, effective, and proportionate”. These words have very specific meaning:
A restriction being necessary means that there must be an identified need to do something. It doesn’t have to be this particular thing, but there must be a state of systemic discontentment in some form that needs a judicial action. In this case, the copyright industry weren’t happy (which they haven’t been for the past century or more), which apparently qualified.
Moving forward from necessity, a specific judicial action is proposed. In order for it to proceed, the action suggested must be effective – that is, it must solve the identified problem. The notion that judicial censorship has any kind of effect at all on the Internet shows that courts are stuck in the last century, and the High Court order fails this test miserably.
Last and perhaps most importantly, such an order must be proportional, that is, it must not create more problems than it solves. This is where the real danger lies. A court has handed out censorship orders against sites that provide links – links! – to a software application that may or may not be used to exercise normal property rights and violate the copyright monopoly in that process. That’s not taking censorship lightly at all.
One would wish that everybody making stupid decisions like this would read the very straightforward explanation named “World of Ends” – explaining what the Internet is, and how to stop mistaking it for something else. Apparently, the courts think that the ISPs have any say whatsoever in what their customers may or may not access on the net, or have been deluded into thinking so by the copyright industry.
There’s also the question of what the courts will do when they discover that this is trivially circumvented by using a standard VPN, or even just using TOR. Will the High Court try to ban all VPNs, even those not in the same country?
Good luck with that.