1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors

The Claimants are record companies claiming on their own behalf and in a representative capacity on behalf of the members of BPI (British Recorded Music Industry) Ltd (“BPI”) and Phonographic Performance Ltd (“PPL”) (“the Members”). The Defendants are the five main retail internet service providers (“ISPs”) in the United Kingdom. Between them, the Defendants have a market share of some 95% of UK broadband users. By this claim the Claimants seek an injunction against the Defendants pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (“the 1988 Act”), which implements Article 8(3) of European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“the Information Society Directive”), requiring the Defendants to take measures to block, or at least impede, access by their customers to 21 websites (“the Target Websites”). As with previous applications by the Members, the application is supported by representatives of other rightholders in the film, television and book publishing industries.

Over the last three years, a series of orders have been made requiring the Defendants to block, or at least impede, access to websites pursuant to section 97A of the 1988 Act. I have considered the principles to be applied to applications of that kind in a series of judgments: Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [2012] Bus LR 1471 (“20C Fox v BT”); Twentieth Century Fox Film Corp v British Telecommunications plc (No 2) [2011] EWHC 2714 (Ch), [2012] Bus LR 1525 (“20C Fox v BT (No 2)”); Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14 (“Dramatico v Sky”); Dramatico Entertainment Ltd v British Sky Broadcasting Ltd (No 2) [2012] EWHC 1152 (Ch), [2012] 3 CMLR 15 (“Dramatico v Sky (No 2)”); EMI Records Ltd vBritish Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] ECDR 8 (“EMI v Sky”); Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch), [2013] ECDR 14 (“FAPL v Sky”); and Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch), [2014] ECDR 7 (“Paramount v Sky”). Since the last of those judgments, Henderson J has considered the impact of the judgment of the Court of Justice of the European Union in Case C-466/12 Svensson v Retriever Sverige AB [EU:C:2014:76] in Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2014] EWHC 937 (Ch) (“Paramount v Sky 2”).

As has been the case with all the section 97A applications since that in 20C Fox v BT, the Defendants have neither consented to nor opposed the present application. Rather, they have confined themselves to negotiating the wording of the orders if the Court is minded to grant them. Accordingly, I have considered this application on paper.

Recently, I have had to consider an application for a website blocking order which was sought to combat online trade mark infringement rather than copyright infringement: see Cartier International AG vBritish Sky Broadcasting Ltd [2014] EWHC 3354 (Ch) (“Cartier v Sky”). As I explained in that judgment, that application was opposed by the Defendants, who adduced evidence and arguments on a series of issues. As a result, I was provided with much more complete and up-to-date evidence as to the efficacy of the section 97A orders which have been granted to date, the technical measures being adopted by the Defendants to implement such orders and the costs being incurred by the Defendants in implementation. As a consequence, I considered the application afresh and reviewed many of the issues again.

The Claimants, and the other Members they represent, own, or are exclusively licensed in respect of, the copyrights in a very large number of commercially available sound recordings. Together, the Members hold the rights in about 99% of all sound recordings which are lawfully marketed in the UK.

The Target Websites are the websites currently known as (1) bittorrent.am, (2) btdigg.org, (3) btloft.com, (4) bts.to, (5) limetorrents.com, (6) nowtorrents.com, (7) picktorrent.com, (8) seedpeer.me, (9) torlock.com, (10) torrentbit.net, (11) torrentdb.li, (12) torrentdownload.ws, (13) torrentexpress.net, (14) torrentfunk.com, (15) torrentproject.com, (16) torrentroom.com, (17) torrents.net, (18) torrentus.eu, (19) torrentz.cd, (20) torrentzap.com and (21) vitorrent.org.

The Target Websites all use the Bittorrent peer-to-peer file-sharing protocol, and are broadly the same in their operation and their service as The Pirate Bay, KAT, H33T and Fenopy websites, which were held to be infringing, and were made the subject of blocking orders pursuant to section 97A of the 1988 Act, in Dramatico v Sky, Dramatico v Sky (No 2) and EMI v Sky. Like The Pirate Bay, KAT, H33T and Fenopy websites, the Target Websites operate as Bittorrent indexing websites. They provide an organised directory of content which users can search and browse and from which they can select the sound recordings (or other content) of their choice. Having selected the content, users download the relevant torrent file for that content either from the Target Websites or other websites to which the Target Websites provide links. The Bittorrent software on the users’ computers will then use the information in the torrent file to download the “pieces” of the content files from the “swarm” in the manner described in Dramatico v Sky.

Thirteen of the Target Websites (bittorrent.am, btdigg.org, btloft.com, nowtorrents.com, picktorrent.com, torrentdb.li, torrentdownload.ws, torrentexpress.net, torrentproject.com, torrentroom.com, torrentus.eu, torrentz.cd and vitorrent.org) do not permit uploads of torrent files by users, but gather all their links to torrent files using “crawling” technology. No torrent files are stored on these websites’ own servers. Nevertheless, the way in which the torrent files (or rather the links thereto) are presented, and the underlying technology, is essentially the same as in the cases of the other Target Websites.

Section 97A of the 1988 Act empowers the High Court “to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright”. In order for this Court to have jurisdiction to make the orders sought by the Claimants, four matters must be established. First, that the Defendants are service providers. Secondly, that users and/or the operators of the Target Websites infringe the Claimants’ copyrights. Thirdly, that users and/or the operators of the Target Websites use the Defendants’ services to do that. Fourthly, that the Defendants have actual knowledge of this.

As I stated in Dramatico v Sky (No 2) at [5], I am in no doubt that the Defendants are service providers within the meaning of regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013, and hence within the meaning of section 97A of the 1988 Act. None of the Defendants has suggested otherwise.

The Claimants contend that UK users of the Target Websites infringe their copyrights in two ways. First, by copying the copyright works within section 17 of the 1988 Act. Secondly, by communicating the copyright works to the public within section 20 of the 1988 Act. The Claimants contend that the operators of the Target Websites infringe their copyrights in three ways. First, by communicating the copyright works to the public. Secondly, by authorising infringements by UK users. Thirdly, by acting as joint tortfeasors with UK users.

Copying. When a user of a Target Website selects a torrent file in order to obtain a copy of particular content, and downloads the associated content files, the user copies the content contained in those content files on his or her computer. If the content files comprise a copyright work and the user does not have the licence of the copyright owner, he or she infringes the copyright in that work: see Dramatico v Sky at [40] and EMI v Sky at [24].

The Claimants have adduced evidence that:

Accordingly, I conclude that UK users of all of the Target Websites use them to download and make copies of large numbers of recordings in which the copyright is owned by or exclusively licensed to the Claimants or the other Members without the licence of the rightholders and thereby infringe those copyrights. It is immaterial that users of 13 of the Target Websites obtain the torrent files from third party websites by clicking on links provided by those Target Websites, rather than directly from the Target Websites themselves.

Communication to the public. I reviewed the law on communication to the public and its application in Dramatico v Sky at [44]-[71], EMI v Sky at [28]-[51], FAPL v Sky at [28]-[49] and Paramount v Sky at [11]-[36]. There are three questions to be considered:

I reviewed the jurisprudence of the CJEU with regard to the first two questions in Paramount v Sky at [11]-[30]. Since then, the CJEU has handed down judgment in Case C-351/12 OSA - Ochranný svaz autorský pro práva k dílům hudebním os v Léčebné lázně Mariánské Lázně as [EU:C:2014:110] and, more relevantly, its judgment in Svensson. As noted above, Henderson J considered the impact of the latter case in Paramount v Sky 2 at [28]-[35]. His conclusion was that it did not detract from the reasoning I had adopted in EMI v Sky, FAPL v Sky and Paramount v Sky. I agree with this. In Svensson the CJEU ruled that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public within Article 3(1) of the Information Society Directive. It held at [17]-[20] that there was an act of communication, but it held at [21]-[31] that the communication was not to the public since it was not to a new public, that is to say, a public which had not been taken into account by the copyright owners when they authorised the initial communication to the public. The reason for this was that all internet users could freely access the works on the other website to which the works had been communicated with the authorisation of the copyright owners: see [25]-[28].

Accordingly, I remain of the view that, where UK users of a Bittorrent website upload recordings as part of a swarm, all three questions fall to be answered in the affirmative: see EMI v Sky at [39]-[41]. It follows that UK users of the Target Websites infringe in this way as well. It is immaterial that 13 of the Target Websites do not permit uploading of torrent files.

Communication to the public. In my judgment, the operators of the Target Websites do communicate Members’ recordings to the public for the following reasons.

First, the operators of the Target Websites communicate the recordings by electronic transmission. Their role is by no means passive. On the contrary, they intervene in an active and highly material way so as to enable users to access and to download recordings content in an easy and convenient way. This is true not only of the eight Target Websites which allow their users to upload torrent files, but also of the 13 Target Websites which only aggregate links to torrent files on other websites. Furthermore, it is not irrelevant that the communication is of a profit-making nature: all bar one of the Target Websites appear to generate substantial advertising revenues.

Secondly, the communication is to the public. In at least eight cases, this is because the communication uses a different technical means to that of the previous communication. Even if the communication is not by a different technical means to that of the previous communication in the case of the 13 Target Websites that use crawlers, as to which I shall refrain from expressing a view, it is a communication to a new public, which is to say a public which was not considered by the rightholders concerned when they authorised the original communication or other act of dissemination of the recordings. Recordings are made available to all the users of the Target Websites, a large and indeterminate class of people, without the users having to purchase them from authorised sources.

Thirdly, the Target Websites’ acts of communication to the public are targeted at the public in the UK: (a) the Target Websites are all in the English language (albeit that three of them offer alternative languages); (b) a large number of visitors to the websites (and a significant proportion of their total number of visitors) are from the UK; (c) a substantial proportion of the albums on the UK Top 40 albums chart were available on the websites on inspection, and (d) the advertising on the Target Websites, and certain additional features of the sites, are targeted in many instances at the UK.

Authorisation. In my judgment, the operators of the Target Websites authorise infringements by their UK users for similar reasons to those given in Dramatico v Sky at [73]-[81] and EMI v Sky at [52]-[70]. It is not necessary to rehearse the evidence which supports this conclusion. As noted above, it shows that all of the Target Websites operate in a similar manner to websites like The Pirate Bay, KAT, H33T and Fenopy, although some are more sophisticated than others. All of them go to considerable lengths to facilitate and promote the downloading of torrent files, and hence infringing content, by their users. Although a few of the Target Websites pay lipservice to copyright protection, in reality they all flout it. Although a few of the Target Websites claim not to, they all have control over which torrent files they index.

Joint tortfeasance. In my judgment, the operators of the Target Websites are jointly liable for infringements by their UK users for similar reasons to those given in Dramatico v Sky at [82]-[83] and EMI v Sky at [71]-[73]. Again, it is not necessary to rehearse the evidence which supports this conclusion.

I held in 20CFox v BT at [99]-[113], Dramatico v Sky (No 2) at [6], EMI v Sky at [76]-[88], FAPL v Sky at [51] and Paramount v Sky at [39] that both users and the operators of the websites in issue used the Defendants’ services to infringe the claimants’ copyrights. In my judgment, that reasoning is equally applicable to the present case.

On 10 April 2014 and 25 June 2014 a representative of the Claimants sent emails to the Defendants informing them about the Target Websites’ activities. In addition, the Claimants have served the Defendants with the present application and the Claimants’ supporting evidence. I am satisfied that, as a result, the Defendants do have actual knowledge that users and the operators of the Target Websites use the Defendants’ services to infringe copyright. Indeed, I note that none of the Defendants denies this.

The Claimants contend that I should exercise my discretion to make the orders sought. Unlike in 20C Fox v BT and Cartier v Sky, the Defendants do not advance any reasons as to why I should exercise my discretion to refuse to make the orders sought. Even so, as the Claimants rightly accept, the onus remains on the Claimants to satisfy the Court that it is appropriate to make such orders, and in particular that the orders are proportionate not only as between the Claimants and the Defendants, but also having regard to the interests of third parties who may be affected by the orders.

I reviewed the applicable principles, including the correct approach to the assessment of proportionality, in Cartier v Sky at [158]-[191] and applied those principles at [192]-[265]. I shall adopt the same approach here. In my judgment the orders sought are proportionate for essentially the same reasons as I gave in EMI v Sky at [91]-[106] and FAPL v Sky at [55]-[59]. As I explained in Cartier v Sky, none of the additional evidence and arguments in that case caused me to take a different view. In particular, I am not persuaded that the number of websites which have been ordered to be blocked by virtue of section 97A, or are likely to be ordered to be blocked in the future, imposes disproportionate implementation costs on the Defendants.

I would add that the Claimants’ evidence on the present application includes additional support for the efficacy of such orders: using comScore data, the Claimants calculate that, on average, the number of UK visitors to Bittorrent websites which have been the subject of blocking orders has declined by 87%. No doubt some of these users are using circumvention measures which are not reflected in the comScore data, but for the reasons given elsewhere it seems clear that not all users do this.

I held in Cartier v Sky at [263] that the orders should expressly permit affected subscribers to apply to the Court to discharge or vary the orders. I also held in Cartier v Sky at [264] that the page displayed to users who attempt to access blocked websites should not merely state that access to the website has been blocked by court order, but also should identify the party or parties which obtained the order and state that affected users have the right to apply to the Court to discharge or vary the order. For the avoidance of doubt, these conclusions apply in the present context.

Subject to the minor points just mentioned, I will make the orders sought by the Claimants.