Mr Justice Arnold's Newzbin2 judgement, handed down on Thursday, marks a seminal moment in the development of copyright protection in the UK. Depending on your view, it may also mark a staging point on the road to more severe online censorship. Either way, the judgement's aftermath has told us a lot more about culture and communications minister Ed Vaizey than we knew before.
The High Court judgement, which forces BT to use its CleanFeed technology to block access to the Usenet content-indexing site Newzbin2, was predictably welcomed by the copyright lobby and slated by civil rights activists and ISPs.
Newzbin2 is, as the name suggests, the oddly similar successor to Newzbin, which met the film studios in court last year. In that case, Mr Justice Kitchin gave the studios — 20th Century Fox, Universal, Warner Bros, Paramount, Disney and Columbia Pictures — a partial victory, in that he issued an injunction ordering Newzbin to stop facilitating access to those studios' films. However, he refused to order Newzbin to stop indexing all copyrighted content, no matter who the copyright owner is.
Although they tried to spin Kitchin's judgement as a great victory at the time, the studios knew they had missed the big one, so they returned to the High Court, this time with the explicit support of lobbying groups IFPI, the BPI, the Association for UK Interactive Entertainment and the Publisher's Association, to attack BT instead.
In his judgement on Thursday, Arnold — who refused to seek advice from the European Court of Justice on the relevance of European law — agreed that blocking at source was the way to go. "I am satisfied that the order sought by the Studios is a proportionate one," he said, adding that he thought the rights of the studios outweighed those of Newzbin2's users, and most certainly those of Newzbin2 itself.
Among the voices welcoming Arnold's judgement was Ed Vaizey, who went onto Twitter to say just how much he agreed with it.
Vaizey, recently described by Private Eye as by far the most heavily-lobbied minister in government (with civil rights groups getting barely a look-in), is an interesting character. Since getting his brief more than a year ago, he has mostly kept his cards to himself regarding his stance on copyright infringement.
Earlier this year, he began secretive talks with rights holders, ISPs and others around the possible formulation of a voluntary site-blocking system. He has always acknowledged the copyright lobby's argument that file-sharing costs the UK creative industries millions if not billions in harm, but has generally kept quiet on the matter himself.
No longer. Vaizey's Twitter session began with this: "Interesting judgment in newzbin case, should make it easier for rights holders to prevent piracy". Clearly attacked with some vigour by other Twitter users, Vaizey countered by pointing out spelling mistakes in some of the jibes (before succumbing himself to such errors on multiple occasions) and retweeting some of the more insulting tweets that he had received.
Here are some of Vaizey's statements during that session — some retweet other people's tweets, with Vaizey's comment appended:
"@Old_Holborn: @edvaizey Do you think Van Gogh should have charged for every person who ever saw his died in poverty
Agree with independent TV producers body PACT that newzbin judgment will help protect investment in the content we all want to warch [sic]
Agree with equity head Christine Payne that newzbin judgment will help prevent 20% revenue theft from creative businesses
"@cyberdoyle: #deact RT @nickg_UK The thing which will stop piracy is legal access to movie downloads at reasonable prices." try lovefilm
"@barton71: @edvaizey Tories are buying the lobbyist line. Hollywood is dictating UK Internet policy. or equity, pact etc
One question he would not address, however, was this: As CleanFeed, the technology that BT is supposed to use to block Newzbin2, was only put into BT's system to make sure people could not access sites containing child pornography, does Vaizey think that copyright infringement is serious enough to merit the same sort of ISP action?
After all, child pornography — a criminal offence, which small-scale copyright infringement most certainly is not — clearly merits what Arnold's judgement describes as "a hybrid system of IP address blocking and DPI-based URL blocking which operates as a two-stage mechanism to filter specific internet traffic". It is an acceptable form of censorship for an extreme type of case.
CleanFeed has not been used for other purposes, so why now, and why copyright infringement? Either copyright infringement is comparable in its severity to child pornography, or the courts are happy to make ISPs use a tool brought in for a specific purpose for other purposes where many would argue it is heavy-handed.
If the latter is true, then where will it stop? This is why people are getting quite scared about the censorship implications of Arnold's decision. This may well go to the European Court of Justice, no matter how well Arnold thinks he understands European law.
In the meantime, we can finally identify Vaizey's stance on the matter. What we don't know is how well he understands the long-term implications of that position.
PS - For an excellent legal view on Arnold's judgement, do read Lilian Edwards's latest blogpost.