Factual and Procedural Background
The Plaintiff, representing record companies and acting on behalf of members of two industry organizations, brought a claim against six major internet service providers (ISPs) in the United Kingdom, who collectively hold approximately 94% of the fixed-line market share. The Plaintiff sought injunctions under section 97A of the Copyright, Designs and Patents Act 1988, implementing the Information Society Directive, to compel the Defendants to block or impede access to three peer-to-peer file-sharing websites (referred to collectively as "the Websites").
The claimants' application was supported by various organizations representing other rightsholders, each providing witness statements in support.
The court had previously dealt with similar claims in related cases involving other websites, establishing jurisdiction and issuing blocking orders against ISPs. The present applications were made via CPR Part 8 Claim Forms and application notices, with all Defendants agreeing to the terms of the orders sought, subject to the court's satisfaction regarding jurisdiction and appropriateness.
The court considered whether service of the applications on the operators of the Websites was required and directed that it was not, based on prior reasoning and evidence demonstrating impracticability.
The Plaintiff relies on copyrights in sample sound recordings, evidencing that the Websites operate without licenses from Plaintiff members and function as profit-making businesses facilitating extensive unauthorized sharing of copyrighted material via Bittorrent technology.
Extensive evidence was presented regarding the scale of infringing content available on the Websites, their popularity among UK users, and the commercial nature of their operations.
Legal Issues Presented
- Whether the Defendants are service providers within the meaning of section 97A of the Copyright, Designs and Patents Act 1988.
- Whether users of the Websites infringe the Plaintiff’s copyrights by copying and communicating sound recordings to the public.
- Whether the operators of the Websites infringe the Plaintiff’s copyrights by communication to the public, authorisation of infringement, and joint tortfeasance.
- Whether users and/or operators of the Websites use the Defendants' services to commit copyright infringement.
- Whether the Defendants have actual knowledge of the infringing use of their services.
- Whether it is appropriate and proportionate for the court to grant the injunctions sought against the Defendants.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch) ("20C Fox v BT") |
Jurisdiction to make blocking orders against ISPs under section 97A; terms of blocking orders; copyright infringement findings against websites. |
Established court’s jurisdiction and appropriateness of blocking orders; precedent for injunctions against ISPs regarding infringing websites. |
| Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch) |
Copyright infringement by website operators; injunctions to restrain infringement. |
Found Newzbin Ltd had infringed copyrights on a large scale; basis for subsequent blocking orders against related sites. |
| Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch) ("Dramatico v Sky") |
Users and operators of websites infringe copyrights; court’s discretion in granting blocking orders; proportionality considerations. |
Confirmed infringement by users and operators; supported use of blocking orders; set out proportionality framework. |
| Football Association Premier League Ltd v QC Leisure [2011] ECR I-0000 |
Test for communication to the public under the Information Society Directive. |
Applied to determine whether users and operators communicate works to a new public not originally authorised. |
| Societ Consortile Fonografici v Del Corso [2012] ECR I-0000 |
Interpretation of communication to the public and related rights directives. |
Clarified criteria for communication to the public; distinguished contexts where broadcasting is not communication to the public. |
| Football Dataco Ltd v Sportradar GmbH [2012] ECR I-0000 |
Interpretation of database rights and re-utilisation; territorial application of infringement acts. |
Held re-utilisation acts occur in both origin and recipient states; supports territorial jurisdiction over operators outside UK if targeting UK public. |
| Golden Eye (International) Ltd v Telefónica UK Ltd [2012] EWHC 723 (Ch) |
Proportionality in intellectual property remedies balancing rights under ECHR and EU Charter. |
Outlined approach to balancing copyright holders' rights against privacy and expression rights of others; applied in assessing blocking orders. |
| Rugby Football Union v Viagogo Ltd [2012] UKSC 55 |
Approach to balancing competing fundamental rights. |
Approved proportionality framework applied in intellectual property cases involving conflicting rights. |
| Football Dataco Limited & Ors v Stan James plc, Sportradar GmbH & Ors [2013] EWCA Civ 27 |
Joint tortfeasance liability for operators of websites facilitating infringement. |
Confirmed that website operators who cause or procure infringement by users may be joint tortfeasors and liable for users’ infringements. |
| Pammer v Reederei Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v Heller [2010] ECR I-12527 |
Criteria for determining whether online activity targets consumers in a particular Member State. |
Applied analogously to assess whether websites target the UK public for jurisdictional purposes. |
| L'Oréal SA v eBay International AG [2011] ECR I-0000 |
Trade mark law and jurisdiction; relevance to intellectual property enforcement and proportionality. |
Provided principles on balancing rights and assessing targeting relevant to copyright infringement enforcement. |
| UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH (Case C-314/12) (pending) |
Interpretation of Article 8(3) Information Society Directive regarding use of ISP services by infringing parties. |
Referenced for issues concerning whether operators and users of infringing websites use ISP services to infringe copyright. |
Court's Reasoning and Analysis
The Court began by confirming that the Defendants qualify as service providers under relevant UK and EU law and that the Plaintiff’s evidence established that users of the Websites infringe copyrights by unauthorized copying and communication to the public. The Court analyzed the nature of the Websites’ operation, concluding that users who download content via torrent files infringe by copying protected works, and by making those works available to the public electronically in a manner that targets a new public not originally authorized by the rights holders.
The Court considered recent CJEU case law to determine the territorial scope of communication to the public, concluding that acts of communication may occur both where the communication originates and where it is received, particularly if targeted at the UK public.
Regarding the operators of the Websites, the Court found that they actively facilitate infringement by indexing torrent files, providing user assistance, and encouraging activity, thereby communicating copyrighted works to the public. The operators also authorize infringements and are jointly liable as tortfeasors with the users, as they induce and profit from the infringing activity.
The Court was satisfied that both users and operators use the Defendants’ services to infringe copyrights, and that Defendants have actual knowledge of this through notifications and correspondence.
On proportionality, the Court applied established principles balancing intellectual property rights with fundamental rights to privacy and freedom of expression, referencing both UK and EU law and prior case law. The Court noted that the Defendants did not oppose the orders and that the cost and burden of compliance were modest. Although blocking orders can be circumvented, the Court found them justified even if only a minority of users are prevented from accessing the infringing sites. The Court concluded that the orders are necessary, appropriate, and proportionate to protect the Plaintiff’s rights, outweighing the rights of users and operators.
Holding and Implications
The Court’s final decision is to GRANT the injunctions sought by the Plaintiff against the Defendants, requiring them to take measures to block or impede access to the three identified peer-to-peer file-sharing Websites.
The direct effect is that the Defendants must implement blocking orders to prevent their customers from accessing the infringing Websites. The Court’s decision does not set new precedent beyond applying and affirming existing legal principles but reinforces the approach to website blocking orders in copyright infringement cases within the UK jurisdiction.