Swedish Court orders web censorship of Pirate Bay; idea of ISP tit-for-tat against copyright industry plaintiffs floated everywhere
In a first, a Swedish court has ordered censorship of The Pirate Bay in a case of copyright industry vs. an ISP. While cases like this have been common in the past decade in several European countries, the Swedish community is in shock that a court has actually ordered censorship to take place to protect a commercial interest.
In the case of Copyright Industry v The Internet, an appeals court in Sweden has ruled that one of Sweden’s major ISPs must censor The Pirate Bay at the DNS level. This came as a complete shock to the Internet community in Sweden, even though courts in other European countries have been similarly misguided before. The 108-page legal document contains mindnumbingly boring legalese, but one thing stands out: the ISP is ordered to create a block at the domain level, the DNS level.
“…B2 Bredband AB must, through technical means, prevent its subscribers to reach the services The Pirate Bay and Swefilmer using the domain names and web addresses listed in Appendices…”
This means three things.
First, let’s establish that this is textbook censorship. Instead of calling it “blocking”, “filtering”, “preventing access”, et cetera, it’s important to call a spade a spade. This is a governmental interference between a publisher and a reader. The word “censorship” has been thrown around a lot lately, and it is not censorship when Facebook, Reddit mods, and similar services remove posts (because they’re not the government). But in this case, it is and should be named and called out as such. This is textbook censorship.
Second, this won’t make the smallest measurable dent in access to The Pirate Bay. The old world lives in the illusion that ISPs are some sort of gatekeepers to the Internet; that sites can be accessed or not-accessed only with the blessing of the “entry point” to the Internet. But the Internet has no gatekeeper; it is a World of Ends where you can use any name lookup you like and aren’t limited to the one your ISP suggests. Many have already swapped out their ISP’s suggested DNS lookup to instead use Google’s public DNS 220.127.116.11, specifically to rectify governmental censorship; doing so is far more trivial than installing a BitTorrent client and learning how magnet links work. Here’s a random photo that was posted on Twitter from Turkey:
An even more effective measure to rectify governmental censorship and ISP coerced measures is to use a VPN: when you do, your liberated DNS lookups can’t even be detected by the ISP whose hand is forced.
Third, as radically ineffective as this is, the real tragedy is that messenger immunity – a principle that stood since the Roman Empire – was just abolished. A messenger has been immune from liability for a carried message for two millennia, and for very good reasons. There seems to be a conflict between different European federal laws (“directives”) on the matter, as we’ll be returning to. But Emanuel Karlsten summarizes it quite well in a despairing column titled “The door is now wide open for corporate conglomerates dictating where you may surf and not”:
“…from a technical perspective, the ruling has no teeth whatsoever. […]
No, what’s unique is the responsibility and the legal precedent that the ruling has created. As of today, it’s enough that a corporation goes to court and hands over a list of websites claiming to infringe exclusive rights (which the ruling is limited to) and demand ISPs to censor them. ISPs won’t reasonably afford the money and energy to challenge every demand.
With a wedge in the door to ISP intermediary liability, it’s just a matter of time before other things will be regarded as the ISP’s responsibility. […]
Never before has the judiciary in Sweden made any decision like this in any context. The postal service has never been criticized for people using them to distribute narcotics or cassette tapes. The Road Services has never been forced to take responsibility for its roads being used by bank robbers. We’ve considered this to be a matter for Law Enforcement and other authorities.”
European policy blogger Hax notes that the ruling seem to fall back on the “Infosoc” directive – something that’s loosely called the European Union Copyright Directive, which corresponds to the United States’ DMCA, and which contains provisions for liabilty. However, a later directive – the e-commerce directive – specifically states that ISPs are never liable for traffic in their pipes, a mechanism called “mere conduit” and which corresponds to the US’ “Common Carrier” provision. Hax notes that this appears to be a case of two European federal laws being in direct conflict with each other:
“You cannot have a rule stating that ISPs have no legal liability for the consequences of traffic relayed via their networks – unless illegal. That is the same as saying that ISPs do have legal liability for the consequences of traffic relayed via their networks. And this is the opposite of what is stated in the e-commerce directive.” — Hax
It’s also highly questionable if the ruling would stand if appealed to the European Supreme Court, as a censorship measure needs to fulfil three criteria – it needs to be necessary (there needs to be an identified problem), effective (it needs to solve that problem), and proportionate (it must not create worse problems in the process). As we have already seen, this falls as flat on the effectiveness test as a cartoon cliff diver jumping into a drained pool.
But the ruling cannot be appealed, at least not according to the ruling court; it was made by the highest court for exclusive rights issues (which is a problem in itself, as special-competence courts like this one tend to overvalue their own field of expertise at the expense of everything else). However, there are other measures that can be taken, judicial and otherwise.
Late last night, an idea started floating around on social media, posted independently by many intelligent people at the same time: what if the ISPs ordered to betray their own values and the Internet’s values like this also did the same thing to the copyright industry plaintiffs who are pushing them around? To block the plaintiffs of the case – Universal, Sony, Warner, Nordic Film, the Swedish Film Industry (SF), SVT, the TV4 group, MTG TV, SBS Discovery, and C More – from the net at the DNS level along with The Pirate Bay?
It doesn’t even have to be a complete block; a portal warning page stating that somebody is about to visit an organization that wants the Internet harm would go a long way. One of Sweden’s most renowned PR experts wrote on the matter, “as I know how meticulously the marketing departments of this type of organization count their page hits, they would go into an immediate panic – even if just a single ISP daring to take a stand would do this”.
This idea being floated everywhere independently, combined with the very real ability to pull this off, illustrates something very important.
The copyright industry is absolutely powerless when it comes to fighting the future, and so far, the Internet companies have been trying to take a moral high road and complying to appease and make the copyright industry go away. But there must come a point when repeatedly kicking the sleeping grizzly bear causes the bear to wake up and be really angry.
I believe we all remember the Internet retaliating against SOPA/PIPA early 2012: when Google posts your phone number on their home page and tells the world you’re an enemy of the Internet, as they did with US senators about to vote for the atrocious SOPA bill, things happen on a large scale and very quickly. The old world likes to believe they can control the Internet. That’s only until the Internet collectively decides it is not going to be controlled, just like when somebody’s kicking a sleeping grizzly and it doesn’t initially care about that silly person, it just wants to be left alone: but at some point, it will take action to ensure it is undisturbed.
The ISPs sit on all the power here. It’s time they realized this and stopped taking abuse from obsolete industries who just want them harm, and want our Internet harm. However, doing so would be no excuse for giving up the principles we all fight for: dropping bullies from the net, in a tit-for-tat exactly the way they demand The Pirate Bay to be Stalinized out of existence, is still a blatant violation of Net Neutrality and of principles of global access, and is not something to be taken lightly at all. This is true even if you would technically comply with net neutrality by not blocking, but prefacing all access to those petty bullies with some sort of warning page about their hostile-to-humanity behavior rather than a complete domain drop.
But maybe, just maybe, these petty bullies who insist on crossing swords with the future and with humanity at large could use a taste of their own medicine to stop the petty bullying.