1967 Ltd and Others v British Sky Broadcasting Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 23 October 2014 |
| Neutral Citation | [2014] EWHC 3444 (Ch) |
| Date | 23 October 2014 |
| Court | Chancery Division |
| Docket Number | Case Nos: HC14C02952 |
[2014] EWHC 3444 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Arnold
Case Nos: HC14C02952
Ian Mill QC, Edmund CullenQC and Iain Quirk (instructed by Forbes Anderson Free) for the Claimants
The Defendants did not appear and were not represented
Introduction
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 v British 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-466/12Svensson 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 v British 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 Members' rights
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
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.
Jurisdictional requirements
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.
Are the Defendants service providers?
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.
Do the users and/or operators of the Target Websites infringe the Claimants' copyrights?
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.
Infringements by 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:
i) the Target Websites all have a large number of UK users;
ii) the Target Websites all list a large number of torrents for commercially available music;
iii) albums in the UK Top 40 chart are well-represented on all of the Target Websites;
iv) torrents for...
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