• Targeting Digital Copyright Piracy: Intermediaries in the Cross Hairs
  • May 21, 2012
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • Summary

    On 2 May 2012 the High Court delivered its second judgment in Dramatico Entertainment v BSkyB. The order was for a blocking injunction, requiring five internet service providers (ISPs) to block access to the website ‘the Pirate Bay’, one of the largest global illegal downloading sites. This decision confirms the developing trend of rights holders targeting those that provide the infrastructure within which copyright infringement takes place, as opposed to the infringers themselves.


    Background

    The Pirate Bay is a well-known file sharing website with over five million registered users, allowing users to download music and videos illegally.

    The claimants in this case are the music industry trade body, the British Recorded Music Industry (BPI). The BPI represent major record companies who own over 99 per cent of the sound recordings sold legally in the UK. In December 2011, the BPI issued legal proceedings against the defendant ISPs (Sky, Everything Everywhere, TalkTalk, O2 and Virgin Media) for orders under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) requiring the ISPs to prevent their users from accessing the Pirate Bay website. Section 97A CDPA gives the Court the power to grant an injunction against an information society service provider, in the event that that service provider has actual knowledge of another person using their service in order to infringe copyright.

    On 20 February 2012, in his preliminary judgment Arnold J in the English High Court ruled that the Pirate Bay and its users were infringing the copyright belonging to the claimants.


    Latest judgment

    The first judgment prompted the BPI and the ISPs to commence negotiations and to agree the terms of an order for an injunction. This led to Arnold J’s second judgment, delivered on 2 May 2012, which required the ISPs to block, or attempt to block, access to the Pirate Bay pursuant to section 97A of the CDPA.

    In his judgment, Arnold J determined that the ISPs were service providers within the meaning of the Electronic Commerce (EC Directive) Regulations 2002, and hence within the meaning of the CDPA s.97A. Both the users and operators of the Pirate Bay used the ISPs’ services to infringe the claimant’s copyright in the UK. The ISPs had actual knowledge of the infringement. Therefore, the Court had jurisdiction to grant an injunction. Further, the grant of an injunction was not contrary to the European Convention on Human Rights or the Charter of Fundamental Rights of the European Union (articles 10 and 11, respectively). The orders sought were proportionate, both between the parties and between the claimant and the users of the ISPs' services. Arnold J also considered that it was appropriate to implement IP address blocking, as the Pirate Bay’s IP address is not shared, which removes any danger of overblocking.


    Comment

    This is an important case in the field of English copyright law, making it clear that intermediaries can be held responsible for online copyright infringement. It builds on the recent Newzbin litigation (20C Fox Film v BT (2011)) where an injunction was granted against BT requiring it to stop its subscribers accessing "Newzbin2", a subscription website providing links to pirated films.

    One of the key factors for intermediaries who are potentially affected is knowledge - namely are they aware of the alleged infringement, or not. This is encouraging as it does not burden intermediaries with the task of policing the internet, however it does highlight the need for ISPs and potentially other intermediaries such as search engines and payment services providers to have in place and to regularly update effective policies that enable them to respond appropriately to situations where they are notified of alleged infringement, both in the context of potential civil liability (such as under the CDPA) and also, conceivably, criminal liability (for example under the Proceeds of Crime Act 2002). The consensual nature of the decision also belies the dialogue that is increasingly taking place between stakeholders as this evolving legal landscape is refined.