Comment Causal Link (Score 5, Informative) 341
The crux of the case will lie in proving that there is a causal link between the lack of laws requiring ISPs to block websites, and the damages claimed. The precedent is Francovich v. Italy. However, given that the judge in a ruling against British Telecom forcing them to use Cleanfeed to block access to websites like Newzbin and TPB acknowledge that tools to circumvent the system were available. And, in fact, Newzbin has released a client allowing access to their website despite the Cleanfeed block. The same software allows access to TPB. It relies on both encryption and the TOR network. Newzbin told BBC news that 93.5% of UK users have downloaded their Cleanfeed circumvention software. This flies in the face of the judge's comment that "Even assuming that they all have the ability to acquire [the means to circumvent Cleanfeed], it does not follow that they will all wish to expend the time and effort required."
93.5% of UK Newzbin users may not be "all" people in the UK who want to use file sharing networks, but it certainly means that establishing the causal link between lack of ISP blocking remedies and damages from file sharing will be difficult. People want access to those files, and Cleanfeed has proven largely ineffective at stopping two of the main sites involved in sharing. It should also be noted that these sites are not the actual hosters of the allegedly damaging files; they are merely portals to peer-to-peer networks that have other access methods available (e.g. DHT on BitTorrent). Again, the claim that blocking these websites would prevent financial damage is rather dubious.