Given the level of controversy that “The Stop Online Piracy Act” (SOPA) and “Protect IP Act” (PIPA) have generated in the US, it was surprising that the Newzbin2 case (Twentieth Century Fox Film Corp v British Telecommunications plc) last year did not attract more comment in the UK beyond legal circles.
The Newzbin2 case established for the first time that Internet Service Providers (ISPs) could be required by a court order granted under existing UK copyright law (the Copyright, Designs and Patents Act 1988 s.97A) to block customers from accessing a website which infringes copyright.
More media attention seems inevitable if and when music copyright holders are successful later this year in obtaining a blocking order requiring the UK’s five largest ISPs to block “The Pirate Bay” file-sharing website (TPB), given the site’s high profile: (PPB is reported to be amongst the UK’s 100 most visited sites).
The High Court's determination this week that both the operators of TPB and its UK users are responsible for large scale UK copyright infringement in a preliminary hearing makes the eventual granting of a blocking order in this case seem highly probable.
While the granting of a blocking order is a discretionary remedy, the Court's evidential findings in the initial hearing suggest that it views TPB as involving copyright infringement of a similar or perhaps more serious nature than was present in the Newzbin2 case. The following arguments were considered in the Newzbin2 case but did not prevent the court from exercising its discretion to grant a blocking order:
- that the rightsholders represented in the case did not have an interest in all the works featured on the website. The court found that the represented rightsholders were having their works infringed on a massive scale and this was enough to justify the order. The court also considered that other rightsholders not represented would be likely to support the action. Finally, the court considered any non-infringing use of the site was de-minimis.
- a “floodgates” argument regarding the prospect of routine blocking of more borderline sites. The court felt it probable that subsequent cases brought by rightsholders would focus on “more egregious offenders”. The TPB case seems to support this analysis.
- the argument that webblocking can be circumvented by technical means. The court considered that the order would be justified even if it only prevented a minority of Newzbin2’s users from accessing the site.
- the need to ensure the order is proportionate and strikes the correct balance in terms of the European Convention on Human Rights between the property rights of the copyright holders and the right to freedom of expression of TPB’s users and operators. The court considered that the property rights of the copyright holders outweighed any legitimate freedom of expression involved in the use/operation of the Newzbin2 site.
It is difficult to see the High Court reaching a different decision on any of the above factors in relation to the TPB, based on its preliminary ruling, or indeed to identify any other distinguishing factor from the Newzbin2 case which might persuade it not to exercise its discretion to grant an injunction requiring TPB to be blocked.
What are the wider implications of these judgements?
- the operators of websites such as TPB and Newzbin2, which index links to download pirated copyrighted material and provide other facilities to assist their members with those downloads will not be successful in claiming that they are not responsible for infringement of copyright under UK law simply because they do not provide direct downloads themselves.
- the court process for obtaining a website blocking order is stringent and requires a significant amount of evidence to be lead in order to prove the extent of the copyright infringing activities involved as opposed to legitimate non-infringing activities; and further consideration by the court of whether or not it is appropriate to exercise its discretion in the circumstances.
- seeking orders of this kind in the High Court will remain expensive notwithstanding a successful test case and there is no guarantee of an award of costs for copyright holders even if they are successful.
- the cases dealt with the court so far have arguably been relatively straightforward, because the websites involved have been determined to have a minimal amount of non-infringing use. A crucial question for the future is how the courts would deal with a site which has a significant amount of copyright infringing material, but which also has a significant degree of legitimate use. We will continue to monitor this rapidly developing area of copyright law with interest and report future developments.