back to article Trademark holders must pay for UK web blocking orders – Supreme Court

BT has won a UK Supreme Court battle over who should pay the costs of trademark infringement blocking orders – and it won't be internet service providers. Instead rights-holders must reimburse ISPs for the costs of blocking rights-infringing material, according to Supreme Court judge Lord Sumption. "There is no legal basis …

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Good decision

And of course the rights-holders have the right to sue the infringers for their costs, including anything they pay to the ISP. But it gets it back to a fight between a right-holder and a bad person, aided by their well-paid lawyers (technically also bad people, but you know what I mean)

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Pint

Re: Good decision

I especially like this clause, which is hard to argue against: "The protection of intellectual property rights is ordinarily and naturally a cost of the business which owns those rights and has the relevant interest in asserting them."

Good sense wins!

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Re: Good decision

"Police my trademark for me at your expense" should never have been allowed to fly.

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Re: Good decision

However did this have to get to the Supreme Court? Some strange judicial thinking going on further down.

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Re: Good decision

Good, good. Takes it off our bill. And makes the copyright cartels Pay Per Violation (PPV - now there is an acronym they should be familiar with!) that they want to block.

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Re: Good decision

"However did this have to get to the Supreme Court?"

IP owners would have forced it up high even if lower courts had been upholding BT's position.

Law is mostly about who has deeper pockets and can afford to take it to court or keep it in court.

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FAIL

Good.

I guess Cartier are going to find out how expensive hardware can really be.

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Anonymous Coward

Re: Good.

"I guess Cartier are going to find out how expensive hardware can really be."

Gold plated with a prestigious brand name too.

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Re: Good.

A sensible decision, much like the "polluter pays" doctrine.

If the content companies cause this process and the process costs money, and with lawyers involved it will, then those seeking to enforce their rights should pick up the bill.

Or are they so entitled that they feel that they are justified in asking third parties to pay so as to protect their revenue streams?

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WTF?

Re: Good.

Or are they so entitled that they feel that they are justified in asking third parties to pay so as to protect their revenue streams?

I detect a strong sense of entitlement pervading this whole story.

Entitlement that people buy their stuff at whatever unjustifiable price they charge for it.

Entitlement that they can carry any information, whoever it affects.

Entitlement to make replicas of whatever will bring the biggest profit.

Entitlement to bilk their clients for the maximum possible fees.

and so on. I'm sure there are more.

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Re: Good.

And marked up 1,000%

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Re: Good.

"Entitlement that they can carry any information, whoever it affects."

That would be a webhost. The ISP is merely a conduit, much like Hermes or Royal Mail.

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Anonymous Coward

I applaud the Supreme Court Judges in their decision because ultimately it's us in the street having to pay via higher communication bill costs.

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Yes, it's good common sense and I applaud it. However also bear in mind that not every business is turning millions in profit, some are very small "one-man" businesses have a niche they want to protect, they're on razor thing margins and they have a right to protection too. They might not be able to afford to fight off the bastards who want to rip them off, they go under and the local country's economy loses another business and may gain another social security recipient.

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Anonymous Coward

I don't think that matters to be fair as they probably couldn't afford to get the order to block it in the first place let alone pay the ISP's costs.

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Even being a one-man business doesn't mean the ISP should pay your costs for you.

If you don't have the ability to pay the legitimate costs of doing business, including looking after your IP, then you don't have a viable business.

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Anonymous Coward

...and suddenly...the PPI vultures found new territory to exist in.

"Have you posted a JPG to the internet from home or in the workplace? You could be owed thousands! Call Bains and Earnst the online IP claim specialists now for a no win no fee consultation."

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If you're not making enough profit to cover the costs of protecting your IP, then either:

A) When you get a blocking order to protect your IP, your profits will go up by more than the cost of the blocking order. In this case, investing in a blocking order is a sensible business investment. OR,

B) Your IP is not worth protecting. Sucks to be you, but you have no right to force ISPs to pay for it for you.

Of course, where your IP is trademarks on actual physical goods, you might wonder what the heck Customs are doing letting it into the country, and what the heck the Police are doing not investigating (including co-coordinating with foreign Police forces where appropriate), and what the heck the Government are doing not getting tough on foreign governments that allow this sort of thing to happen from their territory. But none of that is the ISP's fault and it's not fair to punish the ISPs for it.

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Anonymous Coward

Trademark - or copyright ?

The first cut of this article mentioned copyright.

Does this have any bearing on the shysters who try and go after people based on IP addresses caught torrenting ?

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Re: Trademark - or copyright ?

"Does this have any bearing on the shysters who try and go after people based on IP addresses caught torrenting ?"

Not as far as I can make out but if I read the judgement correctly the cases cited suggest that they'd have to pay the costs of finding those IP addresses and matching them to the particular premises to which those IP addresses were assigned at a given time.

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Re: Trademark - or copyright ?

The ruling stems from the Cartier litigation, which relates to website blocking injunctions issued to make it a little bit harder to access sites which infringe on certain trade marks.

It should apply to blocking orders based on infringement of copyright, but I guess that's a battle for another day.

It will be interesting to see whether it has an impact on blocking orders imposed on ISPs under the Digital Economy Act, in respect of porn sites which do not implement age verification, but there's a completely different framework. While it seems reasonable to me that the same approach should be taken, and that the BBFC should reimburse ISPs for their costs, that seems... unlikely.

It has no direct bearing on the Norwich Pharmacal orders used to obtain subscriber information from ISPs, in my opinion.

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Media companies face the same issue in Australia, they have to pay the ISP's when they apply to the Courts for a web site to be blocked. The advantage (some claim) is that the list of sites has to be made public in the Court notice giving those naughty boys with VPNs somewhere to go to look for their knock off films!

ISP's are in these cases no different to a postal service, a conduit for delivery of material produced by others. No one would expect the 'Royal' Mail to be responsible for the contents of envelopes it delivers for others so why should an ISP?

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Thumb Up

Interesting

This also potentially has another effect - at least in Blighty. ISPs are much less likely to get involved in prioritising access, and/or running their own media services, as this would weaken their 'conduit' status.

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Re: Interesting

I'm not sure that's true, as the shielding law treats each transmission in isolation.

A company which offered an Internet access service and its own IPTV service would be shielded from liability in respect of a transmission initiated by a user of its Internet access service, but would not be shielded for something it chose to distribute via its IPTV service.

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[Adrian Speck QC, claiming that ISPs were "profiting" from rights-infringing content and therefore ought to divert those "profits" into the costs of court order compliance.]

How are ISPs profiting from people access a website through their network? The only way they would be profiting is if the ISP is hosting the website or when they block the infringing websites they are sending the traffic to a site owned by the ISP.

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Good.

The fundamental objection to spam is that it's cost-shifted advertising - the recipients carry the lion's share of the costs, paid via their ISP bills - and it doesn't matter if the spam is commercial, religious, memes or charitable.

Forcing ISPs to pay the costs of filtering/blocking naughty websites was cost-shifted enforcement and encouraged abuse by rightsholders. This will probably result in a vast amount of scaling back of actions now their blank cheque has been withdrawn.

A very interesting question is how large the backdated bill will be - bearing in mind that forcing BT to deploy vast filtering systems in order to comply with these court orders has cost tens of millions of pounds.

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Re: Good.

The indemnified costs here relate only to the incremental costs of adding new sites to the block list, not the setup or maintenance of filters. The court held that this is because the ISPs in question already had this kit, for other reasons.

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Boffin

Can. Worms. Open.

with Cartier's barrister, Adrian Speck QC, claiming that ISPs were "profiting" from rights-infringing content and therefore ought to divert those "profits" into the costs of court order compliance.

That's quite a leap in law. By the way it's not massively differentiated from how you end up with the EU taxing links. Problem is it opens up a can of worms.

By this legal logic carriers profit from DDoS attacks and should be liable for damages incurred. By this logic funeral services providers profit from car accidents and should pay costs for them. Just because somebody profits from an event, legal or otherwise, doesn't make them liable. Then again I've always said that carriers should be forced to require all their customers to deploy something that produces the same effect as BCP-38. Oh hey, there's an ambulance for you to chase lawyers of this world.

Like I said it's a leap, a deeply illogical one.

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The automotive analogy

The analogous situation is the idea that a toll road should bear the cost of searching vehicles for smuggled goods because they are "profiting from the trade".

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Well, I never...

I'm not certain this ruling is a good idea. I was just about to suggest that, because petrol dealers aid and abet criminal enterprises that use motor vehicles, petrol dealers should be assessed penalties if they do not refuse to serve criminals.

This ruling seems to make my proposal moot, at least in the UK.

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