Mr Justice Kitchin’s judgment in this case represents a major victory for the film industry against online piracy. The uncompromising judgement determined that a Usenet search service infringed film studios' copyright when it provided the means by which its "premium members" could, with the click of a mouse, sweep the Usenet platform and retrieve binary component film files to reconstitute whole movies that could then be burned to DVD.

BACKGROUND

Newzbin owns and operates a website (Newzbin) that acts as a search engine directed to Usenet. Usenet, originally designed as a platform for posting and retrieving text content by its users, evolved subsequently to support larger non-text, or binary, content, which includes films, TV shows, etc. Large binary files have to be split into smaller files that are then uploaded individually to Usenet. To retrieve the content as a whole, users have to download each component file individually and reassemble all files sequentially. Or they can use Newzbin’s NZB files, which collect all related binary components from Usenet and reassembles them into the original binary content.

Newzbin also uses members known as “editors” to check the quality of messages posted on Usenet and to cross -reference them for ease of use by end-users. Editors are encouraged to focus on binary content.

Twentieth Century Fox, along with five other makers and distributors of films (referred to collectively as Fox), brought an action for infringement of copyright. Fox claimed that

Newzbin infringed their copyrights by: authorising acts of infringement by its members and procuring, encouraging and entering into a common design with its members to infringe and communicate copyright films to the public. Newzbin argued that, like online search engines, it was “content agnostic” and provided a passive service, acting simply as an “intermediary in providing a link to the sites from which Fox’s films may be downloaded”. Newzbin also asserted that it had no knowledge of any infringing material being made available via its website.

DECISION

Kitchin J held that by allowing the creation of NZB files and the actions of the editors, Newzbin actively provided the means for copyright infringement, which amounted to “authorisation” under Section 16 of the Copyright, Designs and Patents Act 1988

It was well established that a person who procures an infringement of copyright is liable joint and severally with the infringer. Kitchin J found that the Newzbin website was designed and intended to make infringing content available to its premium members. Further, Newzbin had induced its editors to create reports of films protected by copyright, assisted its premium members to engage in infringing acts and had profited from the infringement. On the evidence, Newzbin had procured, encouraged and entered in a common design with its premium members to infringe.

Fox's case, under Section 20(2)(b) CDPA, was that Newzbin made their films available to the public by electronic transmission in such a way that members of the public could access them from a place and at a time chosen individually by them.

Kitchin J noted that Newzbin charged a fee to allow access to the NZB facility and had set up a sophisticated system to allow its premium members to download films from a place and at a time chosen individually by them, with full knowledge of the consequences of its actions. In the light of Article 3 of the Copyright Directive (2001/29/EC) and the guidance provided by the European Court of Justice, the concept of communication to the public should be interpreted broadly, the judge concluded that Newzbin had infringed by communicating to the public.

Kitchin J was clearly not impressed with what he regarded as flagrant infringement by Newzbin. The evidence showed that, contrary to its assertions, Newzbin was aware that the vast majority of the material made available through the Newzbin website was protected by copyright and that its users were infringing that copyright. Such matters, the judge stated, should be taken into account on enquiry as to damages in determining whether Fox was entitled to additional damages under Section 97 CDPA.

COMMENT

Whether search engines of any kind are truly "content agnostic" was immaterial; what was material was that Newzbin wasn't. The judge made much of the fact that Newzbin did not, as it claimed, treat "all content in the same way". In relation to binary content all aspects of Newzbin's service were aimed at allowing premium members to download copies of films, the majority of which were copyright protected. Copyright infringement was therefore inevitable and the means to infringe completely within Newzbin's control. It was by no means "passive".