Costs of Blocking Injunctions

摘要

It is trite to state that the infringement of intellectual property rights over the internet poses substantial problems to right holders. More interesting are the methods employed by right holders to combat these problems. Bringing claims against individual infringers is possible,assuming they can be identified and are within the court's jurisdiction, but presents obvious difficulties: it may be excessively cumbersome to sue a huge number of individuals who may not even be in a position to provide satisfactory redress. It is therefore understandable why right holders have found it more efficient and effective to bring claims against third parties who are implicated in wrongdoing. Claimants have found some success in bringing claims against "bad-acting" websites—such as, perhaps most notoriously, The Pirate Bay websites—which participate in the tortious infringement of the claimant's rights. Such websites may be considered to be accessories, and to commit wrongs themselves/ But claims against third-party websites do not necessarily provide adequate remedies, so right holders have recently sought to stem infringement by going after internet service providers (ISPs) as a more effective content access "choke point". ISPs are a step further removed from the "direct" infringement of the individual wrongdoer than any particular websites, but an injunction which compels the ISP to block users from accessing certain websites may be the most effective form of relief for a right holder. However, blocking orders raise a number of important questions. Is a court able to grant such an injunction? Assuming the court does have jurisdiction to make a blocking order, should an injunction be granted? Who should bear the costs of the injunction?