Exploring the legal basis for the new ‘Pirate‘ Proxy war

[FLAME]

This week, police took unprecedented action by shutting down proxies facilitating access to torrent sites blocked in the UK. With the surprise arrest of the sites' alleged operator leaving people scratching heads, TorrentFreak decided to find out what emboldened police to go after sites that neither carry nor link to any infringing content.

Since the launch of Operation Creative last year, UK police have contacted a range of so-called ‘pirate’ sites while giving their operators the opportunity to shut down quietly to avoid further action. It was pretty much certain that torrent and streaming sites would be prime targets, and we’ve seen that play out in recent months.

This week, however, PIPCU delivered a surprise. Instead of going after sites that host or link to infringing material, they targeted a series of sites that have never done so, arresting their alleged operator in the process.

REVERSE PROXIES

So-called ‘reverse proxies’ are not file-sharing sites, they merely restore access to third-party sites that have been rendered inaccessible by ISPs, as the result of a court order for example. The sites that were closed down this week enabled users to access The Pirate Bay and KickassTorrents, even if their ISP actively blocks the site.

The police intervention raises many questions, none of which will be officially answered while an investigation is underway. So, in order to try and fill in some of the blanks, TorrentFreak spoke with expert intellectual property lawyer Darren Meale to explore a possible basis for this week’s arrest of a proxy site operator.

“Internet users have sought ways to continue to access the sites by getting round the blocking put in place by the ISPs. One of the ways to do this is to use proxy servers. This operation is a major step in tackling those providing such services.” – FACT director Kieron Sharp commenting this week on the proxy shutdowns.

BREACH OF A HIGH COURT ORDER?

Darren Meale: “The individual has been accused of helping Internet users access websites which the English High Court has ordered the major UK ISPs to block. That order arose in a civil, not a criminal action, and only applies to the ISPs in question. If it applied to the individual and he ignored the Court order, he would be in contempt of court and a judge could commit him to prison. But I don’t understand that to be what is going on here.”

ASSISTING A CRIMINAL ENTERPRISE?

So, with the High Court blocks a potential red herring, our attention is turned to the activities of the sites being unblocked by the proxies, and how merely facilitating access to those sites might be perceived as an offense by the Police Intellectual Property Crime Unit.

Darren Meale: “Sites like The Pirate Bay and KickassTorrents have been the subject of all sorts of civil and criminal actions around the world, but are tricky to target because of where they are based and the way they operate. That’s why initiatives like site blocking have become popular in the UK.

“The rights owners, police and other authorities can’t get their hands on the sites directly, at least not practically. Of course, that doesn’t mean that those sites aren’t still committing criminal offenses.

“Although we tend to think of copyright infringement as a civil wrong, it is also a criminal offense provided it is carried out ‘in the course of business’. Sites like KAT run as a commercial enterprise and make a lot of money out of advertising, so there is a pretty strong case that they are committing criminal offenses, including in the UK.”

If sites like The Pirate Bay and KickassTorrents are committing crimes, others can also commit crimes by helping them, Meale says.

Darren Meale: “The Serious Crime Act 2007 makes it a crime to intentionally encourage or assist someone else committing a crime, in the same way as it used to be a crime to ‘incite’ someone to commit a crime.

“The UK’s National Fraud Intelligence Bureau (NFIB) has previously accused operators of file-sharing websites of committing crimes of this nature. PIPCU’s statement in this matter also refers to its intention to ‘come down hard on people believed to be committing or deliberately facilitating such offenses’.

“These kinds of ‘inchoate‘ offenses are, in my view, the most likely candidate for what this individual has been arrested for.”

BUT OTHER ISPS ARE FACILITATING ACCESS TO ILLEGAL SITES TOO..

Only six ISPs in the UK have been ordered to block sites like The Pirate Bay and KickassTorrents, the others are, at this very moment, knowingly facilitating access to these potentially criminal sites. How is it that a proxy service operator now finds himself in hot water while these ISPs continue with no repercussions?

Meale points out that the L’Oreal v eBay decision found that service providers (eBay in that case) had no duty to police their services for infringement. Also, service providers benefit from safe harbors under the E-commerce Directive, rendering them immune from prosecution in certain circumstances.

Darren Meale: “However, there is a difference between providing Internet access generally (which ISPs do) and providing a service or website which sets out to link to another, illegal, website. An attempt to make ISPs liable for what flows through them in the same way as someone running a file-sharing site failed in Australia in a case called iiNet. I think the same distinction would be drawn in Europe and the UK.

“Providing general Internet access: OK subject to exceptions such as if the ISP is hosting. But setting up a service designed to help people access illegal websites: that’s much more dubious. That’s not to say that the legal issues that surround all this are straightforward – they’re not.”

CONCLUSION

What shines through following the events of this week is how untested the waters are in cases such as these. Whether PIPCU intends to follow this matter through to the bitter end (risking a potentially unfavorable outcome) remains to be seen, but it’s possible that won’t be needed.

At this point they have already achieved the total closure of all targeted sites along with the seizure of their domains. That, along with a clear message to others mulling the same course of action might, in the overall scheme of things, be considered “mission accomplished.”