Précis - The High Court has given judgement on the preliminary issues in the Pirate Bay litigation, opening the way for copyright holders to obtain an injunction ordering ISPs to block the download site.
What? The High Court has given judgment allowing a number of media companies to continue with their action seeking an injunction forcing ISPs to block the website of the Pirate Bay.
So what? On 20 February 2012, the High Court delivered its judgement on whether the download site the Pirate Bay infringes the copyrights of various media companies which had brought a claim against it. The Pirate Bay does not host illegal files but allows users to search and access copyrighted content. Please click here to read our previous article on the litigation.
The court found in favour of the copyright holders, affirming the judgement given in the Newzbin2 case on which we reported here. While the Pirate Bay had argued that it merely provided a forum for its users, the court held that the website went far beyond merely enabling or assisting its users but did in fact authorise and approve their illegal file-sharing.
The user-friendly environment of the website, the advice which it provided on how to download files, its indexing of the torrents used for downloading and the Pirate Bay’s refusal to stop the illegal downloads were some of the key factors cited in the judgement.
The copyright holders can now seek an injunction under section 97A of the Copyright, Designs and Patents Act 1988 which will force ISPs to block access to the website, with the court expected to decide whether to grant such an injunction in June. Considering the similarity to the Newzbin 2 litigation, it is very likely that such an injunction will be given.
Observers representing ISPs and the media industry will nevertheless have a keen interest in the decision in case the court gives any further guidance on how the cost of the blocking is to be shared between the parties.
In the present decision, Arnold J stated that the two-tiered approach (with an initial hearing on the legality of the site’s operations before an application for an injunction) would not be necessary in all circumstances. Considering the similarity of the present decision to Newzbin2, it is likely that the court would now be prepared to hear a claim for an injunction to ban a file-sharing website similar to Newzbin2 and the Pirate Bay without a preliminary hearing. As a result, such injunctions could become cheaper and more quickly available.
The impact of the decision remains uncertain for the time being, with download sites shifting to alternative technologies such as magnet links and virtual private networks, while copyright holders may now try to bring similar claims against search engine operators to force them to automatically downgrade pirated content in their result listings.
Parliament is also expected to include the issue of search engines and illegal content in the new Communications Act which is to become law before the next election.