Case of Cartier, Montblanc and Richemont v BSkyB, BT, TalkTalk, EE and Virgin

The case of Cartier, Montblanc and Richemont v BSkyB, BT, TalkTalk, EE and Virgin (Open Rights Group intervening) [2014] EWHC 3354  deals with the Claimants Intellectual rights holder seeking to force the Defendants ISPs to block various websites that the Claimants indicate are hosting and selling counterfeit goods. An excellent summary of the background of this is found in the IPKat site [http://ipkitten.blogspot.ie/2014/10/online-enforcement-has-colour-and-name.html] as well the judgement on Bailli [http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2003/3354.html&query=Cartier&method=boolean].

The summary is that with some caveats the rights holder is allowed under various legal provisions (domestic and EU) to apply for a blocking injunction. The upshot is that the offending sites can be blocked.

The Ancient Greeks had a phrase, men/de translated roughly as on the one hand and on the other.

Thus stealing has been perceived as a wrong doing since Biblical times. There are numerous and many laws on the subject of in both common and criminal law both on the direct action of stealing and the surrounding activities: from supply of house breaking tools to that of selling counterfeit goods on a newspaper (a paper based media of information exchange). So the latter example seems to be analogous close to a website allegedly selling similar goods and viewable via the ISPs network. However to differential, that while the Cartier judgment thankfully provides a sunset clause (with two years being suggested) it ignores the social,economic and IT framework that websites in general operate in. A vast majority of sites are both legitimate and their underlying software can be changed so as to restrict content on site. This coupled with the fact that sites have a value, with site names being auctioned depending on their worth means than any injunction, even if justified, can impact the sites owners. Furthermore there is an economic disparity between the power dynamic between corporate rights holder and site owners. From examples of how other take-down notices by rights agencies have been automated [https://www.techdirt.com/articles/20120308/03505018034/eff-argues-that-automated-bogus-dmca-takedowns-violate-law-are-subject-to-sanctions.shtml] so as to be overlying broad and having a censorious effect, then over eager use of injunction could have the same effect on the EU freedom of selling goods.

Therefore while counterfeiting is a problem that deserves solution, it should be a nuanced one that those not effect the rights and open innovative flow of data that rights holders themselves have used to sell their products.