Twentieth Century Fox Film Corp & Ors v Sky UK Ltd & Ors [2015) EWHC (CH)
In a week when the Senate Standing Committee on Legal and Constitutional Affairs is to hold hearings on the Copyright Amendment (Online Infringement) Bill 2015, a decision handed down on Tuesday by Birss J of the England and Wales High Court of Justice provides an insight into how site blocking legislation works overseas.
The case concerned an application for a site blocking injunction by a number of film companies. The target websites fell into three categories: streaming sites; BitTorrent sites; Popcorn Times sites. The Popcorn Times sites raised some different issues form the streaming and BitTorrent sites previously considered by the courts. Popcorn Times works by users downloading an application on to their computer. This enables them to see what content is available. Once a work has been selected, the application downloads the content using BitTorrent.
Under s 97A pf the Copyright Designs & Patents Act 1988 (UK) four matters need to be established before a court has jurisdiction to grant a site blocking order:
(1) that the ISPs are service providers,
(2) that the users and/or operators of the target websites infringe copyright,
(3) that users and/or the operators of the target websites use the services of the ISPs to do that, and
(4) that the ISPs have actual knowledge of this.
If the jurisdictional requirements are satisfied then the court has to consider whether an order is appropriate and in what terms.
According to His Honour, previous site blocking cases clearly established that issues (1) and (4) were satisfied. He therefore focused his judgment on whether the users or operators of the websites infringe copyright and whether they use the services of the ISPs to do so.
The infringement claim was put in three ways: communication; authorisations; and joint tortfeasance. Having regard to the facts of the case and previous case law, Birss J concluded that it was the Popcorn Times application and not the users or operators of the target websites that communicated the infringing content. Further, there was insufficient evidence about the relationship between the suppliers of Popcorn Times and the operators of the host websites to sustain a finding of authorisation liability.
However, His Honour went on to find that the suppliers of Popcorn Times were jointly liable with the operators of the host website for the infringements.
“The Popcorn Time application is the key means which procures and induces the user to access the host website and therefore causes the infringing communications to occur. The suppliers of Popcorn Time plainly know and intend that to be the case. They provide the software and provide the information to keep the indexes up to date. I find that the suppliers of Popcorn Time have a common design with the operators of the host websites to secure the communication to the public of the claimants' protected works, thereby infringing copyright.” [para 55]
Use of ISPs
Hi Honour concluded that the third element was also satisfied.
“The defendants' internet services, which they provide to their users, have an essential role in the infringements committed by the Popcorn Time website operators for the same reasons as have been considered in the earlier cases about other kinds of site and other infringements. It is through the use of the ISPs' services that the operators of the Popcorn Time websites carry out their acts.” [para 59]
His Honour went on to conclude that he had jurisdiction to grant the orders sought and that it was proportionate and appropriate in the circumstances to do so.
This decision is noteworthy for a number of reasons.
It shows how a body of law in relation to site blocking orders has developed in the UK over the last four years. [para 3]
It also shows that a set of practices and procedures have been established in relation to applications for such orders.
As his Honour observed: “It is convenient to note at this stage three points about the cases under section 97A. The first is that neither the ISPs nor the rightholders have appealed against any aspect of the orders made in those cases, including those aspects which deal with the costs of the applications and the costs of implementing the orders. The second is that, since 20C Fox v BT and 20C Fox v BT (No 2), the ISPs have not opposed the making of the orders sought by the rightholders, but have restricted themselves to negotiating the wording of the orders if the Court is minded to grant them. Thirdly, in consequence, most of the orders have been granted after consideration of the applications on paper.” [para 4]
It is important to note that notwithstanding the practice of considering such applications on the papers, the court can and will require a hearing when there are new issues of law to be ventilated. This is even in circumstances when the application is unopposed.
And finally, the case is an important reminder that even where the court has jurisdiction to grant a site blocking order, it still has to consider whether it is proportionate and appropriate to do so in the circumstances.
The case is available herehttp://www.bailii.org/ew/cases/EWHC/Ch/2015/1082.html