In 2013 when site-blocking was hitting the courts in Norway (again,) Sony’s legal team briefly considered the threat of a challenge from the Norwegian Pirate Party or other groups opposed to filtering the internet. But any fears of a challenge were quickly brushed aside. Why? Because, in all likelihood, no one could take the financial risk of challenging the site-blocks in court.
This week, Wikileaks released the Sony email archive. The communications contain no surprises on their anti-piracy views, but they do provide a window into the thought process of a corporation whose business model is built on censorship, discriminatory geoblocking, and turning local ISPs into the internet police.
And by local, they mean mean the world.
Norway provides a stark example of Sony’s overreach, because the country is already a case study in how to eliminate piracy. Despite passing legislation that allows site-blocking, Norway hasn’t actually enforced a filter for the Pirate Bay or other file-sharing sites. Yet music piracy at least has been nearly eradicated as Norwegians flock to legal sites to pay for their music. (Of course, delivering content that people actually want to buy is another story entirely, as the industry has discovered.)
For those who have crowed loudly for years about the need to reduce illegal downloads, Norway is a perfect example of how to do exactly that – with accessibility, not censorship, steering consumers from piracy to paying sites. The music industry is hardly a role model for sane digital policy, but in this instance they provide an example which other anti-piracy groups may want to pay attention to.
Unfortunately, it’s no surprise to see Sony pushing for censorship in courts around the world. Nor is it a surprise that, as the emails now on Wikileaks show, the corporation assumes it can do so unchallenged.
Sony brushed aside even the idea of a challenge to their site-blocking efforts because if the challenger were unsuccessful, they would have to pay Sony’s legal costs. Taking advantage of the fact that no one will be able to take on that risk, the corporate alliance with deep pockets gets the go ahead to demand blocking measures for an entire nation.
Interestingly, as the email points out, Sony themselves would not be liable for anyone else’s legal expenses if they lost their case, tilting the scales even more in their favor.
The policy of making losers pay legal costs for the other party is not unusual, surprising, or necessarily even wrong. The Norwegian legal system isn’t at fault for ensuring the party who wins isn’t out of pocket thousands of dollars. But in a case involving ISPs, massive corporations, and access to information for an entire country, the result of such policy is a severely asymmetric power dynamic.
Sony’s eagerness to exploit this feature of the court system may not be a legal problem, but it is certainly an ethical one: pursuing a case because no one can afford to challenge you is pretty gross behavior.
But what else do we expect from the so-called creative industries?
We can’t be shocked by the calculated power play and assumption of dominance against citizen challengers. The days of being surprised at censorship should be long gone with the likes of SOPA- and ACTA-esque attempts to control the internet. But it’s no less disgusting just because we already knew it was happening.