PromoBay block

Promo Bay is republishing entirely legal content that nevertheless originates from the Pirate Bay. It does not deserve to be blocked, and it is unclear why it is blocked.

We think there are two likely reasons this block is in place:

(1) The site may be hosted at an IP address that is used by the Pirate Bay. This would be a classic example of ‘over blocking’, mandated by law. This wasn’t the intention:

As Mr Walsh explained, it is straightforward to prevent that method of circumvention by using IP address blocking. IP address blocking is generally only appropriate where the relevant website’s IP address is not shared with anyone else. If it is shared, the result is likely to be overblocking (see 20C Fox v BT (No 2) at [6]). In the present case, however, TPB’s IP address is not shared. Thus IP address blocking is appropriate. Accordingly, the Defendants have agreed to orders which require IP address blocking

Nevertheless it could be argued that the site could move IP address. This may be possible – but equally if the IP address is tied to TPB’s ownership in any way, it might get blocked again.

(2) The site’s domain may be on a list of domains deemed to be copies of the Pirate Bay in the court order. If so this is an error. 

ORG has written to the ISPs that are subject to the order today, to find out exactly what has happened. To be clear, we think the problem is less likely to be with the ISPs than the way the blocking orders are working. Furthermore, it is unclear what would be needed by the ISPs to get the block lifted, and what mechanisms are envisaged by the High Court to deal with these kinds of issues.

However, the wider policy ought to cause some concern at this point. The site that is blocked is publishing material that is both legal and promoting independent musicians. Censoring such material should hardly be a result that the music industry wishes to see.

But these results are the likely consequence of a policy of blocking. Censorship is an emotive issue. It betrays power relationships. Innocent sites can be caught. It fails to deal with the root problems, and can even reduce pressure to do so. At ORG, we contend that there are better ways of dealing with infringement than blocking:

1. target companies with legal action;
2. use legal avenues to stop commercial interaction with infringement;
3. continue improvements in meeting demand with supply and give consumers what they want.

Blocking does not seem to be reducing infringement, but nevertheless music revenues are going up, largely because of the growing success of legal services. That’s the way forward, rather than getting invoved in largely pointless battles that merely tarnish the industry’s name while driving problems further underground.