High Court, Decision of 28 July 2011, [2011] EWHC 1981 (CH), Twentieth Century Fox Film Corporation & Others v. British Telecommunications Plc

In a test case brought by Twentieth Century Fox and five other major film and TV production studios, the English High Court has for the first time granted an order requiring an internet service provider (ISP) to implement blocking measures to prevent its users from accessing a website supplying infringing film and television program content.

Newzbin2

The object of the studios' attention was the so-called Newzbin2 website (Newzbin2). Newzbin2 had previously been operated in the UK but had moved offshore to servers in Sweden, controlled by a Seychelles company. Newzbin2 enabled users (who paid to use its service) to assemble complete copies of films and TV programs from a great many small parts which had been unlawfully copied and split up into individual Usenet message "posts". These were indexed on and thus easily located and assembled using Newzbin2.

The court found that films and television programs comprised about 70% of the content accessible via Newzbin2 and that the studios owned or controlled copyright in a large proportion those works, including "Harry Potter and the Deathly Hallows: Part 1", "Alice in Wonderland", and "Wall Street: Money Never Sleeps". In fact, the judge (Mr Justice Arnold) commented that it appeared to be quite hard to find any content on Newzbin2 that was not protected by copyright. The studios' rights were being infringed on a massive scale.

Legislation

The claimant studios sought an order against the UK's largest internet service provider, British Telecommunications PLC (BT) under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA 1988) which gives UK courts the "power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright."

Order Sought

The studios asked the court to require BT to implement: (1) IP address blocking in respect of every IP address from which Newzbin2 operated or was available and (2) URL blocking in respect of each URL available at Newzbin2, its domains and sub domains, in each case as notified in writing to BT by the studios. In effect, the studios were asking that BT should use the same technical system to block Newzbin2 as it already operated (known as "Cleanfeed") to block URLs reported to it by the Internet Watch Foundation (IWF), a UK internet industry body which maintains a list of URLs of web pages containing images of child abuse (which in turn are reported to IWF by members of the public, police and other agencies).

Issues

BT accepted that it was a "service provider" for the purposes of section 97A but argued that the court had no jurisdiction to make the order sought by the studios. Contrary to BT's submissions the judge held that he did, because BT's services were being used by both the end user/subscriber to Newzbin2 and by Newzbin2 itself to infringe copyright. Newzbin2 was held to be authorizing BT users' infringements, jointly liable for users' infringements and to be directly infringing by making infringing works available, in each case by means of BT's service.

BT had sufficient "actual knowledge" because what must be shown is only that a service provider has actual knowledge of one or more persons using its service to infringe copyright. It is not essential to prove actual knowledge of a specific infringement of a specific copyright work by a specific individual. From practical standpoint, a service provider will be fixed with "actual knowledge" by receipt of a sufficiently detailed notice and a reasonable opportunity to investigate the position.

The shield from liability provided by Article 12 of the E-Commerce Directive (2000/31/EC) for a "mere conduit" merely protected BT from liability in respect of for infringement of copyright. But it did not place any limit on the type of injunction which might be granted to require a service provider to terminate or prevent infringement, such as an injunction under section 97A CDPA 1988.

The order sought would not amount to a general obligation on BT to monitor information transmitted by it which would otherwise be contrary to the prohibition in Article 15(1) of the E-Commerce Directive. In this case the order sought would require BT to block or impede access to Newzbin2 by automated means which would not involve detailed inspection of the data of any of BT's subscribers.

There was no prohibited interference in the right of freedom to receive and impart information and ideas, within Article 10 of the European Convention on Human Rights.

Outcome and Impact

The judge said he would make an order substantially in the form summarized above. The studios made clear to the judge that if they were successful they intended to seek similar orders against all the other significant ISP's in the UK. So, it is expected that a number of other cases will now be brought on a similar basis against other ISPs to block Newzbin2 and other sites operated outside the UK which provide UK consumers with unlawful access to copyright works.