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A British court ruled that The Pirate Bay does infringe the copyright of UK rights-holders, in the first of a two-part case to get British ISPs to block the torrent tracker. The case was heard with only the rights-holders in the court. The ISPs had declined to attend.  The operators of The Pirate Bay , of course, were not there either.

This was the case of Dramatico Entertainment Ltd and others v British Sky Broadcasting Ltd and others, heard in the British high court by the Hon Mr  Justice Arnold.  The ruling was handed down yesterday.

The case was brought by various recorded music companies, including Warner, EMI, and Virgin. The defendants were British ISPs including BT and TalkTalk, who brought the case against the government over the Digital Economy Act. Interestingly, the defendants also include some mobile ISPs.

 This  was the first  hearing in  what may become a two-part case.  It seems that there has been a behind-the –scenes agreement that the judge would  hold an  initial hearing to determine whether or not copyright  has been infringed, and a follow-up to determine the order against the ISPs.

 In order to make their point to the judge, the rights-holders had to give examples of their copyrights which were being harmed by The Pirate Bay. The rights-holders  cleverly chose 10 albums which even an ageing judge  (the give-away was that the referred to the claimants as ‘record companies’)  might not object to – a collection of pretty young girl singers and jolly ditties, with one rap song about a miscarriage of justice.

 The rights-holders had brought the case to ask  for a block on the The Pirate Bay on the grounds that it infringed their copyright. They had to argue that the operators of the The Pirate Bay could not be personally brought to the court, therefore they were bringing the case against the ISPs as intermediaries.

 This would appear therefore to be an example of a case heard “inaudita altera parte” – in the absence of the  other party.  I note this text in ACTA:

 The judicial authorities shall have the authority to adopt provisional measures  inaudita altera parte where appropriate […]  In proceedings conducted inaudita altera parte each Party shall provide its judicial authorities with the authority to act expeditiously on requests for  provisional measures inaudita altera parte, and to make a decision without undue delay

 The intent of that ACTA text would seem to be an open and shut case.

 You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to Media and Academics – please cite as Monica Horten, Inaudita altera parte  - Pirate Bay block pre-empts ACTA, 21 February  2012 . Commercial users - please contact me.

Iptegrity in brief is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing.   I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. I am currently (from June 2022)  Policy Manager - Freedom of Expression, with the Open Rights Group. For more, see About Iptegrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

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Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.


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