21 February 2012

Injunctions against ISPs Part III: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others

After disappointments with Scarlet and Netlog, the withdrawal of SOPA and PIPA and Her Majesty's Government's acceptance of the Hargreaves Report, Big Copyright had something to cheer about.  In Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others [2012] EWHC 268 (Ch) (20 Feb 2012) Mr. Justice Arnold concluded that both users and operators of The Pirate Bay ("TPB") infringe the copyrights of the claimant record companies in the UK. TPB weren't there, of course.   As the judge noted at paragraph [12] of his judgment, one of the founders of TPB was believed to be in Cambodia but the others have scattered to the four winds. All attempts to serve them with Swedish proceedings have come to nought. Not surprising as they have all been convicted of offences there.

Not only were TPB missing from Dramatico but so too were the internet service providers ("ISPs") against whom orders under s.97A of the Copyright, Designs and Patents Act 1988 were sought. That is the section that implements art 8 (3) of the Copyright and Related Rights Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 167, 22.6.2001, p.10) which I have discussed extensively in "Injunctions against ISPs" on 6 Nov 2011, "Injunctions against ISPs Part II: the CJEU's Judgment in Scarlet" of 11 Dec 2011 and finally "SABAM v Netlog - the Ghost of Denning stalks the corridors of Luxembourg" of 18 Feb 2012. Mr. Justice Henderson had ordered  the trial of two preliminary issues, namely whether on the evidence before the Court, (i) users and (ii) the operators of TPB infringe the Claimants' copyrights in the UK. The remaining issues raised by the claim were left to be dealt with at a second hearing if the claimants prevailed on either or both of the preliminary issues. In the particular circumstances of the present case, Mr. Justice Arnold accepted that this was a sensible way in which to proceed, but he wished to make it clear that he did not regard it as essential for claims of this nature to be dealt with in two stages.  The ISPs took the view that those issues were not its fight and chose to stay away which the judge regarded as understandable.   Even though it was something of a walkover, it still appears to have required a silk and two juniors to persuade the judge that TPB and its users had infringed the recording industry's copyrights.

The judge quoted extensively from the claimants' expert's report as to how TPB's technology worked and concluded at paragraph [20] of his judgment that:
"the key part of the Bittorrent protocol is the creation and distribution of torrent files associated with particular content files. The torrent files do not themselves contain any material from the associated content files. Rather, they enable the identification, and hence the uploading and downloading, of the relevant content files. Thus they serve a somewhat similar function to the NZB files described in 20C Fox v Newzbin at paragraphs [29] to [31] (summarised in 20C Fox v BT at [32])."
As in Newzbin, the claimants claimed that TPB had infringed their copyright by authorizing copying and secondly as joint tortfeasors with the downloaders who used their service.  Not surprisingly, the judge held that they were right.

Interestingly, the judgment mentioned some other s.97A injunctions against Newzbin2.   One granted by Mr. Justice Vos against British Sky Broadcasting on 12 Dec 2011 and another made by Mr. Justice Arnold against TalkTalk on 9 Feb 2012. Nobody seems to have mentioned the Scarlet or Netlog decisions but then nobody had an interest in doing so and it was arguably not necessary for Mr. Justice Arnold's decision,.

If anyone wants to discuss this topic with me they should call me on 0800 862 0055 or contact me through Facebook, Linkedin, twitter or Xing, or through my contact page.

Other Views
Zach Whittaker "Sleepwalking into censorship: Pirate Bay faces UK web block" 20 Feb 2012 ZDNet London Calling

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