Six film studios, including Warner Brothers and Disney, took an action seeking an order requiring BT to block access to a particular site, www.newzbin.com, which allowed users to share data files, predominantly films and music. On 28 July 2011, Arnold J of the English High Court ordered that BT must block access to the site.
The Irish Context
A similar action was taken before the Irish Courts by the record company, EMI. In October 2010, the Irish Courts declined to grant an injunction requiring UPC, as an internet service provider (ISP), to put in place measures to prevent copyright infringement by its subscribers using peer to peer filesharing. Matheson Ormsby Prentice successfully represented UPC. EMI had sought to impose a “three strike” system on UPC that required UPC to disconnect internet service to a subscriber if the subscriber was determined to have unlawfully downloaded copyright protected material on three occasions. In the background, a similar system had been agreed to between eircom and certain copyright holders in an out of court settlement.
Charleton J made clear his disapproval that copyright holders were not being adequately protected by the legislation. However, the legislation did not provide the grounds for granting the injunction sought by EMI. On that basis, the Irish Courts reached a different result than in the English High Court.
Legal remedy in UK law
Under UK law, the High Court may grant an injunction where an ISP has ‘actual knowledge’ that its service is being used to infringe copyright. This provision was introduced into the Copyright, Designs and Patents Act, 1988 (CDPA) by virtue of regulations in 2003 transposing the Information Society Directive. Arnold J found that the purpose and wording of s. 97 A (1) of the CDPA was important. The knowledge threshold did not need to be interpreted too restrictively. The Court held that a service provider can be given actual knowledge by means of a sufficiently detailed notice and a reasonable opportunity to investigate. The film studios had written to BT giving details of a previous case (Twentieth Century Fox v Newzbin (2010)) in which an earlier version of the newzbin website was found to have been used to infringe copyright on a large scale. On that basis, BT did have the requisite actual knowledge. Accordingly, Arnold J granted an injunction in favour of the studios against BT compelling it to use either IP address blocking or Deep Packet Inspection based technology to block access to the newzbin website. BT are entitled to comply with the order by using Cleanfeed, a system that was already in place to tackle child pornography.
UK commentators consider that this is a landmark decision which will allow copyright holders, such as film studios and record labels, to apply for similar injunctions against other ISPs in respect of similar filesharing websites. This judgment will also be reviewed with interest by the music and film industry this side of the Irish sea in the wake of EMI v UPC. Draft regulations were made available for consultation by the Department of Jobs, Enterprise and Innovation in order to provide copyright holders with a suitable remedy to online infringement. The draft regulations provide that an owner of copyright can apply to the High Court for an injunction against an ISP whose facilities are used to infringe an owner’s copyright. We await the result of that consultation.