April 23 2012
The High Court has ruled that users and operators of the peer-to-peer file-sharing website The Pirate Bay infringe the copyright of owners of content available through the website. The ruling was made at a preliminary stage in the content owners' application for an order that the court require various English internet service providers (ISPs) to block access to The Pirate Bay website.
The Pirate Bay is a well-known Swedish website that allows users to share electronic files (including films, music, computer games and software) using file-sharing technology. It is a limb of the Pirate Party, a Swedish political group that campaigns for greater freedom to copy content.
Nine record companies applied for an injunction against the six main retail ISPs in the United Kingdom, both on their own behalf and as representatives of the other members of the BPI (British Recorded Music Industry) Limited and Phonographic Performance Ltd. Between them, the claimants owned or exclusively licensed the copyright in numerous sound recordings available on The Pirate Bay website.
The claimants relied on Section 97A of the Copyright Designs and Patents Act 1988, which requires ISPs to take measures to block or at least hinder access to infringing websites. Although copyright infringement proceedings had been brought against The Pirate Bay in other jurisdictions, the claimants did not do so in the United Kingdom. However, the parties agreed for two preliminary issues to be tried - namely, on the evidence before the court, whether the operators of The Pirate Bay infringed the claimants' copyrights in the United Kingdom, and whether its users did so.
The claimants argued that The Pirate Bay's users infringed their copyright by:
The judge held that both the users and the operators infringed the UK copyrights of the claimants (and the organisations represented by the claimants).
Infringement by users
It was clear that a user of The Pirate Bay who selected a file to copy, and then downloaded the associated content files, copied the content of those files onto his or her computer. If that content was a copyright work, and the user was not licensed to copy that work by the copyright owner, the user's actions amounted to copyright infringement.
In addition, Article 3(1) of the EU Copyright Directive (2001/29/EC) - which was implemented in the United Kingdom by the Copyright and Related Rights Regulations 2003 - introduced an exclusive right for authors to authorise or prohibit communication to the public of their works.
The judge considered that users of The Pirate Bay had made recordings available by electronic transmission in such a way that members of the public could access the recordings from a place and at a time individually chosen by them. These communications were also made to a "new public" who had not been authorised by the rights holders, as the copies of the sound recordings had not been purchased from an authorised source. Consequently, the judge concluded that the UK users were in breach of the claimants' right of communication to the public.
Infringement by operators
The judge weighed the various factors identified in Newzbin(1) in considering whether The Pirate Bay authorised its users' infringing acts. These factors were:
The judge considered that this case was indistinguishable from Newzbin and, if anything, was a stronger example of authorisation. The Pirate Bay operators had authorised users' infringing acts of copying and communication to the public and went far beyond merely enabling or assisting. Users were given advice on how to download from the site, on the trustworthiness of particular torrents and on how to circumvent blocking measures taken as a result of court orders. Infringement was not merely an inevitable consequence of the provision of torrent files by The Pirate Bay, but was the operators' objective and intention. The Pirate Bay also purported to grant its users the right to carry out the infringing acts.
On the issue of joint tortfeasance, the judge again referred to the Newzbin judgment. The fact that The Pirate Bay had approved and countenanced its users to commit copyright infringement and had profited from those activities was relevant. Consequently, the operators of The Pirate Bay were jointly liable for the infringements committed by their users.
Following this ruling on preliminary infringement issues, the claimants are in a strong position to obtain the necessary blocking orders against the ISPs, as happened in Newzbin. The UK record industry has claimed a key victory in its ongoing battle with The Pirate Bay and the High Court's endorsement of the Newzbin decision will encourage rights holders to press ahead with further applications for website blocking orders under Section 97A of the act.
However, the battle is not over. A further hearing is timetabled in June 2012 to decide which ISPs should block the website and how this can best be achieved. Given that, following the Newzbin case, issues have again come to light concerning the effectiveness of the technology involved, blocking infringing websites may be easier said than done.
The government's current Consultation on Copyright deals with format shifting and the ease with which content can be shared, but only in relation to the proposed introduction of a private copying exemption (eg, when copying music to an iPod). The consultation does not consider related issues, such as how best to tackle the growing issue of illegal file-sharing websites; nor does it seek to improve the remedies available to copyright owners in such circumstances.
For further information on this topic please contact Jeremy Drew or Georgia Warren at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (email@example.com or firstname.lastname@example.org).
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