Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others

JurisdictionEngland & Wales
JudgeMR JUSTICE ARNOLD
Judgment Date20 February 2012
Neutral Citation[2012] EWHC 268 (Ch)
Docket NumberCase No: HC11C04518
CourtChancery Division
Date20 February 2012
Between:
(1) Dramatico Entertainment Limited
(2) Emi Records Limited
(3) Mercury Records Limited
(4) Polydor Limited
(5) Rough Trade Records Limited
(6) Sony Music Entertainment Uk Limited
(7) Virgin Records Limited
(8) Warner Music UK Limited
(9) 679 Recordings Limited
Claimants
and
(1) British Sky Broadcasting Limited
(2) British Telecommunications Plc
(3) Everything Everywhere Limited
(4) Talktalk Telecom Group Plc
(5) Telefónica Uk Limited
(6) Virgin Media Limited
Defendants

[2012] EWHC 268 (Ch)

Before:

The Hon Mr Justice Arnold

Case No: HC11C04518

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Rolls Building, Fetter Lane, London EC4A 1NL

Ian Mill QC, Edmund Cullen and Tom Richards (instructed by Forbes Anderson Free) for the Claimants

The Defendants did not appear and were not represented

Hearing date: 9 February 2012

THE HON MR JUSTICE ARNOLD MR JUSTICE ARNOLD

Contents

Topic

Paragraphs

Introduction

1–8

The absence of the operators and users of TPB

9–15

The Claimants' rights

16–18

Bittorrent

19–20

TPB

21–29

Legal Framework

30–38

International treaties

30–33

Berne Convention

30

WIPO Copyright Treaty

31–32

WIPO Performances and Phonograms Treaty

33

Information Society Directive

34–36

Domestic Implementation of the Information Society Directive

37

The 1988 Act

38

Infringement by users of TPB

39–71

Copying

40–43

Communication to the public

44–71

Infringement by the operators of TPB

72–83

Authorisation

73–81

The nature of the relationship

75–76

The means used to infringe

77

Inevitability of infringement

78

Degree of control

79

Steps to prevent infringement

80

Conclusion

81

Joint tortfeasance

82–83

Conclusion

84

Introduction

1

The Claimants are record companies claiming on their own behalf and in a representative capacity on behalf of the other members of BPI (British Recorded Music Industry) Ltd ("BPI") and Phonographic Performance Ltd ("PPL"). The Defendants are the six main retail internet service providers ("ISPs"). Between them they have a fixed line market share of some 94% of UK internet 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 a peer-to-peer ("P2P") file-sharing website called The Pirate Bay ("TPB").

2

In Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [2011] RPC 28 (" 20C Fox v BT") I held that the Court had jurisdiction, and that it was appropriate to exercise my discretion, to make a blocking order against the Second Defendant ("BT") with respect to a website called Newzbin2. In Twentieth Century Fox Film Corp v British Telecommunications plc (No 2) [2011] EWHC 2714 (Ch) I determined the terms of that order.

3

On 12 December 2011 Vos J made a similar order against the First Defendant ("Sky") in respect of Newzbin2. The making of the order was not opposed by Sky, and its wording was agreed. Paragraph 1 of that order provides:

"In respect of its residential fixed line Sky Broadband customers to whose service the system known as Mohawk is applied, the Respondent shall within 7 working days adopt the following technical means to block or attempt to block access by its customers to the website currently known as Newzbin2 and currently accessible at www.newzbin.com, its domains and sub-domains and including payments.newzbin.com and any other IP address or URL whose sole or predominant purpose is to enable or facilitate access to the Newzbin2 website. The technology to be adopted is:

(i) IP blocking in respect of each and every IP address from which the said website operates and which is:

(a) notified in writing to the Respondent by the Applicants or their agents; and

(b) in respect of which the Applicants or their agents notify the Respondent that the server with the notified IP address blocking does not also host a site that is not part of the Newzbin2 website.

(ii) IP address re-routing in respect of all IP addresses that provides access to each and every URL available URL available from the said website and its domains and sub-domains and which URL is notified in writing to the Respondent by the Applicants or their agents; and

(iii) URL blocking in respect of each and every URL available from the said website and its domains and sub-domains and which is notified in writing to the Respondent by the Applicants or their agents."

4

On 9 February 2012 I made a similar order against the Fourth Defendant ("TalkTalk") in respect of Newzbin2. Again, the making of the order was not opposed by TalkTalk, and its wording was agreed. Paragraphs 1–4 of that order provide:

"1. In respect of its customers to whose internet access service the system known as SIG (Service Inspection Gateway) is applied whether optionally or otherwise, the Respondent shall within 10 working days adopt the following technical means to block or attempt to block access to the website currently known as Newzbin2 and currently accessible at www.newzbin.com and/or www.newzbin2.es, its domains and sub-domains and including payments.newzbin.com and any other URL the sole or predominant purpose of which is to enable or facilitate access to the Newzbin2 website. The technical means to be adopted is:

URL blocking in respect of each and every URL from which the said website (and its domains and sub-domains which are notified in writing to the Respondent by the Applicants or their agents) operates.

2. For the avoidance of any doubt, paragraph 1 is complied with if the Respondent uses the system known as SIG.

3. In respect of its customers to whose internet access service the system known as blackholing is applied, the Respondent shall within 10 working days adopt the following technical means to block or attempt to block access to any IP address the sole or predominant purpose of which is to enable or facilitate access to the Newzbin2 website. The technical means to be adopted is:

IP blocking in respect of each and every IP address from which the said website operates and which is:

(a) notified in writing to the Respondent by the Applicants or their agents; and

(b) in respect of which the Applicants or their agents notify the Respondent that the server with the notified IP address does not also host a site that is not part of the Newzbin2 website.

4. For the avoidance of any doubt, paragraph 3 is complied with if the Respondent uses the system known as blackholing."

5

As I explained in 20C Fox v BT at [2], that application was a sequel to a successful claim for copyright infringement brought by the applicants in that case against Newzbin Ltd, which had operated an almost identical website to Newzbin2 ("Newzbin1"). Newzbin Ltd was found by Kitchin J to have infringed the claimants' copyrights on a large scale: Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] FSR 21 (" 20C Fox v BT"). He granted an injunction against Newzbin Ltd to restrain further infringements of the claimants' copyrights. Subsequently the Newzbin1 website ceased operation. Shortly afterwards, however, the Newzbin2 website commenced operation at the same location. As was explained in more detail in 20C Fox v BT at [48]-55], Newzbin2 operated in essentially the same manner as Newzbin1. It followed that Kitchin J's findings of infringement of copyright in respect of Newzbin1 were equally applicable to Newzbin2: see 20C Fox v BT at [113].

6

In the present case, however, the Claimants have not brought proceedings for copyright infringement against the operators of TPB in this jurisdiction, although both civil and criminal proceedings have been brought in a number of other jurisdictions. Accordingly, the Claimants and the Defendants agreed to a consent order made by Henderson J on 20 January 2012 directing the trial of two preliminary issues, namely whether on the evidence before the Court, (i) users and (ii) the operators of TPB infringe the Claimants' copyrights in the UK. The remaining issues raised by the claim were left to be dealt with at a second hearing if the Claimants prevailed on either or both of the preliminary issues. In the particular circumstances of the present case, I accept that this was a sensible way in which to proceed, but I wish to make it clear that I do not regard it as essential for claims of this nature to be dealt with in two stages.

7

Understandably, the Defendants did not choose to appear or be represented at the trial of the preliminary issues. I was informed by counsel for the Claimants that the Defendants' position is that it is not for the Defendants to decide whether or not users or the operators of TPB infringe the Claimants' rights, but for the Court to do so. Be that as it may, I have considered the Claimants' contentions with care to see if they are made out on the evidence and the law.

8

The Claimants have filed a considerable volume of evidence in support of the claim. Some of this evidence relates to issues other than the preliminary issues. I do not consider that it is necessary to summarise all the evidence relevant to the preliminary issues in this judgment, although I have taken it all into account.

The absence of the operators and users of TPB

...

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