On Monday morning it was clear that B2 Bredband, Bredbandsbolaget, after the court's verdict will be forced to block its users from reaching pages belonging to The Pirate Bay or Swefilm. What and who are affected and covered by the judgment? What applies for VPN services going forward and what outcome can we expect in the longer term? As advocates of an uncensored internet, these are the most relevant issues we want to touch on and share our analysis about.
What does it include?
At present, the judgment only affects B2 Bredband (Bredbandsbolaget) and applies only to Swefilmer, The Pirate Bay, and its various proxy domains. The verdict is the first of its kind and will therefore be a precedent in future cases. The judgment not only means that B2 Bredband is forced to block Swefilmer and The Pirate Bay, but it also means that Swedish internet providers may have an obligation to cooperate with the copyright holders to stop copyright infringement in the future.
The verdict not only opens up the possibility for copyright holders to request blocking of additional pages, but it also means that more internet providers in the future may be forced to censor websites. In practice, therefore, the decision will likely include both more Internet providers as well as more copyright-infringing pages in the future.
Internet service providers have the right to appeal domain names that copyright holders request to be blocked, but the verdict indicates that most Internet service providers will most likely choose not to appeal and instead choose to agree to the blocking requirements as the court case now made it clear what an appeal would lead to. The problem with the verdict is thus that copyright holders have free hands to request the blocking of whatever domain names they want, since internet providers will now want to avoid a lengthy and expensive litigation processes that they are likely to lose.
DNS blocking - but not IP blocking
In the short term, it is hard to see how the verdict will actually prevent customers of B2 Bredband to reach said pages. Although the verdict was found in favor of the claimants, there is a significant difference in the scope of the verdict when compared to the claim submitted:
The injunction concerns the The Pirate Bay service and the Swefilmer service as defined under the PROCEDURES AND SETTINGS heading of the judgment, with the exception that IP addresses are not covered.
Therefore, B2 Bredband does not need to block traffic to the websites' IP addresses, but only the DNS lookups that are performed against the domains of the websites. As a B2 Bredband customer, there seems to be an easy way to bypass such a block by switching DNS servers so that the ISP is not used for domain lookups.
Change DNS servers
Usually, users use the ISP's dedicated DNS servers, unless they have actively chosen not to do so. There are several public DNS servers that can be used instead, and if using those DNS addresses instead, you'll still be able to reach the censored websites. In addition to a VPN service, OVPN also operates its own DNS servers, which are used automatically when connecting via our client. These can be used to circumvent censored websites.
How are VPN services affected?
Historically, few legislative changes and court decisions affecting Internet service providers have also affected Swedish VPN services, and it is not likely that VPN services will be affected by a similar decision. As such, the judgment against B2 Broadband has no direct impact on VPN services, but increase in the use of VPN services is to be expected -- partly because consumers will want to bypass the blocking of DNS lookups, but also because the judgment is an indication on how the Swedish court and legislation will look at copyright infringement in the future.
The impact on VPN services in the longer term feels more unclear. Assuming that all Internet providers in Sweden are affected by the same decision as B2 Broadband in 5-10 years time, then VPN services are obviously indirectly affected by the fact that their own Internet providers are forced to follow the decision, provided the service uses an Internet provider in Sweden. In that situation, everything will be about how the blockage technically works. If DNS blocking as mentioned above is still used, it will not affect VPN services, as they basically always have their own dedicated DNS servers. If, on the other hand, the blocking method changes to in the future, it would be a major argument for VPN services to increase their capacity abroad or even convert to foreign legal entities where legislation is more advantageous.
What does the future hold?
As many have already argued, this verdict is likely to have a major impact on the future. What we can expect in the next few months is a series of claims from copyright holders who now see their chance to tighten the snare on the major Internet providers TeliaSonera, Telenor, Tele2, and Comhem.
Furthermore, this seems to be yet another case of something that will initially have little impact due to inadequate technical understanding and technical "loopholes". What is more interesting to follow is how the copyright holders will react if and when they notice that the verdict has little or no effect due to the defective blocking method. In this situation, we consider it reasonable that the blocking method will be criticized by the claimants.
Det är svårare att förutspå på vilket sätt en blockering i sådana fall kommer att ske. Det kanske största argumentet mot att man inte kan använda IP-blockering är att The Pirate Bay använder Cloudflare vilket även används av en stor mängd andra domäner. Vid en blockering av ett sådant IP-spann skulle ett stort antal domäner bli påverkade även om de inte har någon anknytning till upphovsrättsintrång. Att något sådant inträffar ligger varken i domstolars, lagstiftares eller internetleverantörers intresse. Det ligger uppenbarligen inte heller inte i de yrkandes intresse då exempelvis Sony Music Sweden Entertainment i dagsläget ligger bakom Cloudflare.
It is more difficult to predict how future blocking of websites will be implemented. Perhaps the biggest argument against not using IP blocking is that The Pirate Bay uses Cloudflare, which is also used by a large number of other domains. Blocking such an IP span would affect a large number of websites - even if they have no copyright infringement content on their websites. Blocking such a vast number of unrelated websites is not in the interests of courts, legislators or Internet providers. It is obviously not in the interest of the claimants either. As an example, Sony Music Sweden Entertainment is currently behind Cloudflare, and a large-scale IP block to censor The Pirate Bay could potentially affect them, too.
Andra möjliga blockeringsmetoder går i dagsläget bara att spekulera i men skulle kunna innefatta:
Other possible blocking methods can only be speculated, but could include:
- Deep Packet Inspection - Monitoring and blocking of packages
- Keyword Blocking - Blocking domain names containing specific keywords
- Dynamic content blocking - Blocking websites containing specific words
- Backbone blocking - Blocking websites on the Internet's backbone
Avslutningsvis, är det tydligt att beslut av detta slag alltid väger mellan två poler. Å ena sidan blir implementeringen av beslutet för bristfällig och kommer inte ge något resultat för de yrkande. Å andra sidan blir domen för hård och påverkar så mycket mer än vad som från början var tänkt. Oavsett under vilken kategori domen mot B2 Bredband hamnar, är det alltid oroväckande när det pekas mot ett mer fängslat och censurerat samhälle. Om tillräckligt många domar som denna stegvis delges, hur många steg är vi ifrån att Sverige påbörjar byggnationen av en kinesisk brandvägg?
In conclusion, it is clear that decisions of this kind are always polarizing. On the one hand, the method of implementation is too flawed and will not produce any results for the claimants. On the other hand, the verdict is too harsh and affects much more than was initially thought. Regardless of which category the judgment against B2 Broadband falls into, it is always alarming when we move towards more censored and strict society. If enough verdicts like this are incrementally passed, how many steps away are we from Sweden constructing their own Chinese firewall?
- s.2, 1 a) https://www.documentcloud.org/documents/3460821-Svea-HR-PMT-11706-15-Dom-2017-02-13.html ↩︎