TWENTIETH CENTURY FOX FILM CORPORATION AND OTHERS V SKY UK LTD AND OTHERS [2015] EWHC 1082 (CH), 28 APRIL 2015.

SUMMARY

The High Court has made an order requiring the UK’s five major internet service providers (ISPs) to block access to a number of websites including “Popcorn Time” type websites. The court rejected the claimants’ arguments based on infringement by communicating works and authorising infringement, but found that the operators of the Popcorn Time websites were joint tortfeasors with the operators of the host website.

BACKGROUND

Where ISPs knowingly operate services that are used to infringe copyright,the copyright holders can obtain injunctions against the ISPs under s.97A Copyright, Designs and Patents Act 1988. It has also previously been established that where a party “intends and procures and shares a common design that the infringement takes place” he may be liable for copyright infringement as a joint tortfeasor.

FACTS

The claimants were Hollywood studios which held copyright in a large number of film and television programmes and who sought a website blocking order under s.97A Copyright, Designs and Patents Act 1988 against the defendants, the UK’s five major ISPs.

Streaming sites and BitTorrent sites had been dealt with in detail in previous cases. However, the case in question dealt with Popcorn Time type websites – one difference being that the Popcorn Time application source website did not ‘communicate copyright works to the public’ but merely made available the tool (the app) for download.

Popcorn Time refers to an open source application which used a ‘sequential downloading’ feature of BitTorrent technology to stream illegal content. The Popcorn Time content was constantly updated by maintaining links with peers and torrent catalogue sites together with a website which was used as a source of update information.

HIGH COURT RULING

For the court to have jurisdiction to make the order under s.97A Copyright, Designs and Patents Act 1988, four matters had to be established, namely that the:

  • ISPs were service providers;
  • users and/or operators of the target websites infringed copyright;
  • users and/or the operators of the target websites used the services of the ISPs to do that; and
  • that the ISPs had actual knowledge of that.

The first and fourth matters had been established in previous cases and as such the court had no difficulty in finding that the defendants were indeed service providers and that they had been put on notice. It was the second and third points which were in question.

The second matter, whether the operators of the target website infringed copyright, was considered in greater detail. The claimants put forward a number of arguments in this respect, their successful argument being that the operators of Popcorn Time application source websites and source of update information websites were infringing copyright in the protected works as joint tortfeasors with the operators of the host website and/or with those who placed the infringing content on the host websites.

The third matter was also established as the services of the ISPs were clearly used to infringe copyright. It was through the use of the ISPs’ services that the infringement was carried out.

Birss J said that the question of whether a blocking order would be proportionate and the exercise of the court’s discretion did not pose any general difficulties and as such it was ordered that the defendant ISPs block access to all the target websites.