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Dramatico Entertainment Limited and othrs -v- British Sky Broadcasting Limited and othrs [2012] EWHC

Written by Paul Bicknell on 23 February 2012

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In this article I adopt the abbreviations used by the court for ease of references.

The following is a description of the judgment of The Hon Mr Justice Arnold in Dramatico Entertainment Limited and othrs -v- British Sky Broadcasting Limited and othrs [2012] EWHC 268.

Parties

The Claimants comprised of record companies who also claimed in their representative capacities on behalf of members of BPI (British Record Music Industry) Limited ("BPI") and Phonographic Performance Limited ("PPL"). The Defendants comprised of the main six Internet Service Providers ("ISPs").

Claim

The Claimants claimed an injunction pursuant to section 97A of the Copyright Designs and Patents Act 1988 ("the 1988 Act"). The nature of the injunction was for the Defendants to take steps to block or impede access by the Defendants' customers to The Pirate Bay ("TPB").

The parties agreed to a consent order directing a trial of two preliminary issues. These issue where:

"...whether on the evidence before the Court, (i) users and (ii) the operators of TBP infringe the Claimants' copyright in the UK."

As to the operators of TPB, the court found there to be no requirement to join the operators of TPB to the claim nor any of its users and that the issues above could be determined in their absence.

Background

Previously, in Twentieth Century Fox Film Corp -v- British Telecommunications plc [2011] EWHC 1981 ("20C Fox v BT") the court found that it had jurisdiction and that it would excises the same to make a similar order to that sought by the Claimants as against BT in relation to Newzbin2.

A few similar orders had previously been made: (1) Vos J on 12 December 2011 against Sky; (2) 09 February 2012 Justice Arnold against TalkTalk (the fourth defendant).

The Claimants did not bring an action for copyright infringement against TPB in England and Wales but have done so in other jurisdictions.

The Defendants did not show in the present case nor where they represented.

Rights of the Claimants

The Claimants' rights were in the form of sound recordings of musical works ("the Works"). A full list of the Works is set out at paragraph 17 of the judgment.

No license had been granted to TPB.

The law is set out by the court at paragraphs 30 - 38 of the judgment.

The issues

The issues that required determination were, whether:

(1) UK users of TPB infringe the Claimants' copyright by:

(a) Copying the Works contrary to section 17 of the CDPA; and/or

(b) By communicating the Works to the public contrary to section 20 of the CDPA.

(2) The operators of TPB infringe the Claimant's copyright by:

(a) Authorisation of (1)(a) and/or (1)(b); and/or

(b) The operators are jointly liable for the torts of its UK users.

The issue of copying

The court said this at paragraph 40:

"It is clear that a user of TPB who selects a torrent file in order to obtain a copy of particular content, and then downloads the associated content files, copies the content contained in those files on his or her computer. It follows that, if the content files comprise a copyright work, and if the user does not have licence of the copyright owner, he or she will be infringing copyright."

On the evidence the court found that each defendant engaged in the sharing of recordings, and that therefore the UK users who have accounts with the Defendants have infringed, and are continuing to infringe, the Claimants' copyright by copying the Claimants' sound recordings contrary to section 17 of the CDPA in the UK.

The issue of communication of the Works to the public

The court found that, in agreement with counsel, it did not matter for the purposes of the matters in issue in the case whether the act of communicating the Works to the public is committed at the place of origination or the place of reception (that matter was raised because TPB's servers are outside the UK).

The court went on to find that users do communicate the Works to the public by electronic transmission to allow other users to access the Works at a time individually chosen by them. Following FA -v- QC Leisure that the interpretation of the concept of communication should be broad.

On that basis the court said this:

"Accordingly, I conclude that UK users of TPB infringe the Claimants' copyrights in this way also. This conclusion is consistent with that of the Full Court of the Federal Court of Australia, albeit under a slightly different statutory provision, in Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23, (2011) 89 IPR 1: see Emmett J at [151]-[158], Jagot J at [322]-[330] and Nicholas J at [664]-[672]."

Issue of authorisation

The court followed the factors to be taken into consideration as set out by Kitchen J in 20C Fox -v- Newzbin. Kitchen J said this before finding that Newzbin's premium users infringed copyright:

"In my judgment it is clear from this passage that 'authorise' means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances."

The nature of the relationship

The court found on the evidence that:

"TPB provides a sophisticated and user-friendly environment in which its users are able to search for and locate content...These features are plainly designed to afford to users of TPB the easiest and most comprehensive service possible. TPB is in no sense a passive repository of torrent files. It goes to great lengths to facilitate and promote the download of torrent files by its users."

The means used to infringe

The court said this:

"The torrent files which are so conveniently indexed, arranged and presented by TPB constitute precisely the means necessary for users to infringe. It is the torrent files which provide the means by which users are able to download the "pieces" of the content files and/or to make them available to others."

Inevitability of infringement

The court said this:

"Infringement is not merely an inevitable consequence of the provision of torrent files by TPB. It is the operators of TPB's objective and intention. That is clear from the following:

i) Its name - The Pirate Bay - and associated pirate ship logo are clearly a reference to the popular terminology applied to online copyright infringement: online piracy.

ii) According to a statement published on its site, it was founded by a "Swedish anti copyright organisation".

iii) The matters described in paragraph 13 above.

iv) In the first instance judgment in the Swedish criminal proceedings, Lundström was recorded as stating that "the purpose of the site was pirate copying".

v) It is also evident from the numerous proceedings in other European jurisdictions that the operators of TPB are well aware that it is engaged in copyright infringement. Injunctions and other orders against the operators of TPB have been ignored. Orders against TPB's hosting service providers have been circumvented by moving TPB to new providers."

Degree of control

The court said this:

"TPB would be able to prevent infringement of copyright, should its operators so wish. As the website makes clear, torrents can be removed. They will be removed if "the name isn't in accordance with the content" or if they are "child porn, fakes, malware, spam and miscategorised torrents". As a matter of policy, however, the rights of copyright owners are excluded from the criteria by which the operators of TPB choose to exercise this power."

Steps to prevent infringement

The court said this:

"Despite their ability to do so and despite the judicial findings that have been made against them, the operators of TPB take no steps to prevent infringement. On the contrary, as already explained, they actively encourage it and treat any attempts to prevent it (judicial or otherwise) with contempt. Indeed, according to a statement on the website, the reason for its recent adoption of Magnet links as the default option is that "it's not as easy to block as .torrent files". This confirms the operators' determination to do whatever they can to provide users with unrestricted access to torrent files and thereby enable the users to continue to infringe. As noted above, BPI has asked TPB to cease infringing its members' and PPL's members' copyrights, but this request has been ignored."

The finding on authorisation

The court made a finding of authorisation:

"In my judgment, the operators of TPB do authorise its users' infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they "sanction, approve and countenance" the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v Newzbin in this respect. If anything, it is a stronger case."

 Joint tortfeasance

A finding of joint torfeasance followed after applying 20C Fox v Newzbin:

"In the present case, the matters I have considered in relation to authorisation lead to the conclusion that the operators of TPB induce, incite or persuade its users to commit infringements of copyright, and that they and the users act pursuant to a common design to infringe. It is also relevant in this regard that the operators profit from their activities. Thus they are jointly liable for the infringements committed by users."

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