It is not often you celebrate a court judgment that you comprehensively lost, but BT emerged from its drubbing by the Motion Picture Association at the High Court yesterday with quite a smile on its face.
The reason is that Justice Arnold's ruling helps ensure that UK internet service providers don't become "copyright cops" on behalf of Hollywood.
On the face of it, the judgment does indeed turn BT into a policeman, or even a censor. The company has been ordered to block its customers from accessing Newzbin, the bête noire of the movie industry because it provides links to, among other things, pirated films. Now BT – and no doubt soon all the UK's ISPs – must launch into the difficult and expensive business of blocking websites that aid (and abet) copyright infringing.
The reality is more helpful to BT, and reassuring to everyone – me included – who wants ISPs kept out of the business of regulating where we can go, what we can see and what we can download on the internet. Many ISPs are big corporations whose instincts may be inimical to freedom on the web, and whose conflicted business roles – as access providers, delivery mechanisms and sometimes even producers of content – certainly are.
Justice Arnold appears to have done nothing to undermine the legal principle of ISPs as "mere conduits" with no responsibility for the content that passes through their pipes. The decision-making process about what is and is not legal behaviour still rests solely with the courts. Yesterday's ruling clarifies that BT must act, but only at the instruction of a judge, and most probably after a decently long legal wrangle in which rights holders have tried and failed other tactics to shut down an infringing website. This is certainly the process that the MPA has used with the slippery Newzbin, which now harvests its members' fees from the safety of the Seychelles.
The responsibility of website publishers remains a much more open question. How many links to copyright infringing content are too many? How do we protect and nurture innovative services that allow legitimate file-sharing, something that is already becoming an important business tool?
Rights holders have told BT that there are perhaps 400 websites out there that they would like to shut because their activities lead to egregious amounts of piracy. Justice Arnold has given them the tools to prevent the good people of the UK from reaching these 400 sites, but of course there will be 400 more by the time they have finished going through the courts.
When the film industry eventually blunders its way towards a business model that gives its customers what they want – movies on demand, on any device, and soon after their cinema release – the High Court drama over Newzbin ought to prove little more than a diversion.
So – no legal harm done, to ISPs or to the right of consumers to go about their business on the net without their internet provider snooping around. Next, reforming the Digital Economy Act.