An injunction to prevent access to copyright infringing content, or perhaps not yet: UK perspective

Abstract

In 2010, the United Kingdom High Court found an indexing company liable for the copyright infringements of its users when they downloaded materials from the Newzbin website. While its servers were located within UK jurisdiction and the majority of infringing content was in claimants' repertoire of films, the website was forced to cease operation. However, shortly after the ruling, it is believed to have moved its servers offshore and resumed operation from the same location, still accessible to UK users but beyond reach of the UK law. This prompted the case, Twentieth Century Fox & Ors v British Telecommunications Plc (2011), by the film studios to seek an injunction against one of UK's internet service providers, to force it to block its users' access to the Newzbin2 website. With the order granted and more UK ISPs also required to block their users' access to infringing content in Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Ors (2012), evidence also suggest that technical possibilities exist to render such a blockade ineffective. Beside debates on conflicting interests and proportionality, this paper argues that it may still, in reality, prove harder to achieve a stricter regulation.

Keywords:

• internet service providers
• injunctions
• circumvention

Notes

Goldberg, D., Sutter, G, and Walden, I. 2009. Media law and practice. Oxford: Oxford University Press.

Ibid.

See for example: Sinde Act, 2011, is a provision in Spain's Sustainable Economy Act designed to fight internet piracy.

See for example; Amendment to the Irish Copyright and Related Rights Act 2000.

See for example, Article 15 of the Electronic Commerce Directive [Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (O.J. L178/1)].

See Cohen, J. 1998. Lochner in cyberspace: the new economic orthodoxy of rights management. Michigan Law Review 97(462): 511.

See Smith, T. 2012. Napster enabled 1.4bn song swaps in September. Available from, http://www.theregister.co.uk/2000/10/14/napster_enabled_1_4bn_song/ (Accessed 30 July 2012).

Prominent among them were file-sharing services such as Grokster, Morpheus, and Kazaa which were sued by the movie and recording industries in 2002 but, as with Grokster, the court of appeal had accepted that defendants' software was capable of substantial non-infringing uses, lacked knowledge and the ability to control the infringement .

See A&M Records, Inc. v. Napster, Inc, 239 F.3d 1004 (9th Cir. 2001).

Ibid., at [1021-22].

Metro-Goldwin-Mayer Studios, Inc. v. Grokster Ltd., 259 F. Supp. 2d 1029 (C.D. Cal. 2003).

Ibid., at [1040].

See Grokster Ltd, 545 US 913 (2005).

The Court's conclusion by Judge Souter had accepted that the Sony decision had limited technology developer liability as far as it was built on the design of an infringement-enabling technology.

Sony Corp. of America v Universal City Studios, Inc., 464 U.S. (1984).

See generally Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481 (2010).

For example, in establishing procurement of copyright infringement, the UK court is more likely to look at evidence including advertising or promotional materials published by the defendant companies and their response to requests to infringe, which arguably has a narrower interpretation than the inducement theory established in Grokster by the US Supreme Court. The difference in the UK model is that communication between the distributor and the end user is required, which differs from Grokster. See also Smith, G. 2008 Internet law and regulation, 4th ed., 93 [2-155]. London: Sweet & Maxwell. ‘Amstrad suggest that general inducement by advertising will not suffice, without a proof of specific infringement as a result of the communication to an individual infringer’.

See Twentieth Century Fox Film Corporation & Anor v Newzbin Ltd [2010] EWHC 608 (Ch) (29 March 2010).

See Geist, M.. Is there a there there? Towards greater certainty for internet jurisdiction. Berkeley Technology Law Journal 16: 1354–1406.

Ibid., at 1355.

See for example; Gutnick v Dow Jones & Co [2002] H.C. A 56 [para 9,42].

Ibid., at [100].

See Sterling, A. 2008. World copyright law 3rd ed., 152. London: Sweet & Maxwell.

See Young v New Haven Advocate, 315 F.3d 256 (4th Cir. 2003).

For example; the online copyright provisions within the Digital Economy Act 2010.

As emphasised by Recital 59 of Directive 2001/29/EC.

See Kohl, U. 2012. The rise and rise of online intermediaries in the governance of the internet and beyond – connectivity intermediaries. International Review of Law, Computers & Technology 26(2-3): 185–210, 190.

Bright. M. 2004. BT puts block on child porn sites. The Guardian, 6. June 2004. Available from; http://www.guardian.co.uk/technology/2004/jun/06/childrensservices.childprotection (Accessed: 9 April. 2012).

See Richardson, T. 2006. Cleanfeed working overtime, says BT. Available from, http://www.theregister.co.uk/2006/02/07/bt_cleanfeed_iwf/. (Accessed: 13 August 2012).

See, for example, IWF Facilitation of the Blocking Initiative. Available from http://www.iwf.org.uk/public/page.148.htm (Accessed 10 February 2012).

Hörnle, J. 2012. Premature or stillborn? The recent challenge to the digital economy act. Computer Law & Security Review 28: 83–89.

See Ofcom Report. 2012. Site blocking to reduce online copyright infringement Available from, http://stakeholders.ofcom.org.uk/binaries/internet/site-blocking.pdf (Accessed: 14 May 2012).

Newzbin2 [2011] EWHC 1981 (Ch) (28 July 2011).

BskyB [2012] EWHC 1152 (Ch) (02 May 2012).

See Outlaw News. 2012. Website blocking provisions to be removed from Digital Economy Act, says government. Available from, http://www.outlaw.com/en/articles/2012/june/website-blocking-provisions-to-be-removed-from-digital-economy-act-says-government-/ (Accessed: 30 June 2012).

Newzbin, op cit, note 18.

Newzbin2, op cit, note 33, at [59].

Ibid., at [61].

Article 1(2) of Directive 98/34/EC (as amended by Directive 98/48/EC) refers to any Information Society service, normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

See Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Ors [2012] EWHC 268 (Ch) (20 February 2012), [3-4].

BskyB, op cit, note 34, at [84].

BskyB, op cit, note 40.

Section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) gives UK courts the power to grant an injunction against an ISP if it had ‘actual knowledge’ that someone had used its service to infringe copyright. It implements Article 8(3) of the Directive 2001/29/EC which state that ‘Member States shall ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’.

Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (Information Society Directive) [2001] OJ L167/10.

s.97A(1) of the CDPA.

Newzbin2, op cit, note 33, at [147].

s.97A(2) of the CDPA.

Newzbin2, op cit, note 33, at [157].

Case: C-557/02 [2009] ECR I-227.

Provision referred to is implemented in the UK by Reg. 17 of the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013).

Art. 12(3) of Directive 2000/31/EC states that this Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement [See also; Reg. 20 of the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013)].

Case: C-324/09 - L'Oreal SA & Ors v EBay International AG & Ors. [139] [141-144].

Op cit, note 33 at [71] [73].

Op cit, note 33 at [200]. [See also; Article 19 commentary: ‘England and Wales: blocking Websites Sets Bad International Precedent’ available from, http://www.article19.org/resources.php/resources/2508/en/england-and-wales:-blocking-website-sets-bad-international-precedent (Accessed:15 August 2012).

The District Court of Helsinki - Case Reference: H 11/20937.

For example, internet blocking has the potential for over-blocking and under-blocking of content.

See Clayton, R. 2012. Memorandum submitted by Dr Richard Clayton Available from, http://www.parliament.thestationeryoffice.co.uk/pa/cm200708/cmselect/cmcumeds/353/353we05.htm (Accessed: 13 January 2012).

See European Digital Rights Newsletter. More ISP blocking in different EU countries. Available from, http://www.edri.org/edrigram/number10.4/isp-blocking-europe (Accessed: 28 March, 2012).

See Brown, M. 2012. BT is the final major ISP to block the Pirate Bay. Available from, http://www.wired.co.uk/news/archive/2012-06/21/bt-blocks-bay (Accessed: 27 June 2012). See also Whittaker, Z. 2012. Last in line, BT blocks the Pirate Bay; bypassed in minutes. Available from, http://www.zdnet.com/blog/london/last-in-line-bt-blocks-the-pirate-bay-bypassed-in-minutes/5342 [Accessed: 27 June 2012].

See Meyer, D. 2012. Newzbin client aims to circumvent BT blocking. Available from http://www.zdnet.co.uk/blogs/communication-breakdown-10000030/newzbin-client-aims-to-circumvent-bt-blocking-10024357/ (Accessed: 2 May, 2012).

Newzbin2, op cit, note 33, at [194].

See Froomkin, M. 2006. The internet as a source of regulatory arbitrage. In Brian Fitzgerald ‘Cyberlaw: Volume 1’. Hampshire: Ashgate Publishing.

See: http://www.boxopus.com/site/page?view=about (Accessed: 29, June, 2012).

See Clare, H. 2012. Dropbox bans bittorrent startup Boxopus from service. Available from,http://www.zeropaid.com/news/101455/dropbox-bans-bittorrent-startup-boxopus-service/ (Accessed: 2 July 2012).

See Outlaw News. 2012. Facebook blocks Pirate Bay torrent links. Online at, http://www.out-law.com/page-9940 (Accessed: 12 June 2012).

Reference to copyright and related right in Art 8(3) of the Directive 2001/29/EC.

Newzbin2, op cit, note 33 at [161].

See Newzbin2, [2011] EWHC 2714 (Ch), at [6].

‘An assertion that a particular IP address does not host a site that is not part of Newzbin2 website seems to contain an amount of risk’. See Cormack, A. 2012. Copyright blocking – recent UK cases. Available from, http://webmedia.company.ja.net/edlabblogs/regulatory-developments/2012/02/21/copyright-blocking-recent-uk-cases/ (Accessed: 10 August 2012).

Ibid at [32].

See Kim, S., and Jun-Yong, L. 2007. A system architecture for high-speed deep packet inspection in signature-based network intrusion prevention. Journal of Systems Architecture 53(5-6): 310–320. See also Aghasaryan, A., Kodialam, M., Mukherjee, S., Toms, Y., Senot, C., Betgé-Brezetz, S., Lakshman, T. V., & Wang, L. 2010. Personalized application enablement by web session analysis and multisource user profiling. Bell Labs Technical Journal 15(1): 67–76.

Op cit, note 33 at [177].

See Scarlet Extended, [2011] EUECJ C-70/10. See also: Netlog, [2012] EUECJ C-360/10.

Newzbin2, op cit, note 33, at [177].

Scarlet Extended, op cit, note 73 at [50].

See, L'Oreal, op cit, note 52. at [144].

Finnish Supreme Court Decision – Case Ref: KKO 2010:48.

Ibid.

BskyB, op cit, note 34, at [77].

Kohl, op cit, note 27 [pp. 201] – ‘No doubt, ISPs are becoming increasingly resigned to their regulatory role in the online context’.

Commission Staff Working Document. Accompanying document to the Proposal for a Council Framework Decision amending Decision 2002/474/JHA on combating terrorism (Brussels, SEC(2007) 1424/2) [para, 4.2]. Available from, http://ec.europa.eu/governance/impact/ia_carried_out/docs/ia_2007/sec_2007_1424_en.pdf (Accessed: 20 August, 2012).

Newzbin2, op cit, note 33, at [196].

It may depend on the individual users' perceived benefit if subscription costs may go up – thus if the extra cost on users' subscriptions will not outweigh the benefit obtained from accessing infringing content, the user will likely continue membership.

[2005] E.T.M.R. 25.

Newzbin2, Op cit, note 33, at [198].

See Hargreaves, I. 2011. Digital opportunity: a review of intellectual property and growth, 2011, para; 8.23. Available from, http://www.ipo.gov.uk/preview-finalreport.pdf. (Accessed: 10 August 2012) – ‘copyright infringement is a stubborn fact of the digital landscape which might well get worse and which justifies serious government effort in identifying the right mix of measures to address it’.

Note the UK's implementation is made dependent upon the establishment of actual knowledge of another person using the service for copyright infringement.

See Internet Watch Foundation - 2010 Annual Report [p. 4]. Available from, http://wwwiwf.org.uk/accountability/annual-reports/2010-annual-report (Accessed: 14 August 2010).