Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE ARNOLD,MR JUSTICE ARNOLD |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWHC 1152 (Ch) |
| Docket Number | Case No: HC11C04518 |
| Court | Chancery Division |
| Date | 02 May 2012 |
[2012] EWHC 1152 (Ch)
The Hon Mr Justice Arnold
Case No: HC11C04518
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Mill QC, Edmund Cullen QC and Tom Richards (instructed by Forbes Anderson Free) made written submissions on behalf of the Claimants
Introduction
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 and Phonographic Performance Ltd. The Defendants are the six main retail internet service providers. 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 file-sharing website called The Pirate Bay ("TPB"). The claim is supported by PRS for Music, the Motion Picture Association, the Publishers Association, UK Interactive Entertainment and the Producers' Alliance for Cinema and Television.
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) (" 20C Fox v BT (No 2)") I determined the terms of that order.
In an earlier judgment in these proceedings handed down on 20 February 2012 [2012] EWHC 268 (Ch) ("the First Judgment"), I held that both users and the operators of TPB infringe the copyrights of the Claimants (and those that they represent) in the UK. Since then, the Claimants have agreed the terms of orders under section 97A of the 1988 Act with five of the Defendants. The Third Defendant ("Everything Everywhere") consented to an order in the agreed terms, while the First, Fourth, Fifth and Sixth Defendants ("Sky", "TalkTalk", "O2" and "Virgin") stated that they did not oppose the making of orders in the agreed terms. Having considered the matter on paper, on 27 April 2012 I made orders in the agreed terms. These are my reasons for doing so. References to "the Defendants" below are references to the Defendants other than BT.
Jurisdiction
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". I have already held that both users and the operators of TPB infringe copyright. In order for this Court to have jurisdiction to make the orders sought by the Claimants, three further matters must be established. First, that the Defendants are "service providers" within the meaning of section 97A. Secondly, that users and/or the operators of TPB use the Defendants' services to infringe copyright. Thirdly, that the Defendants have actual knowledge of this.
So far as the first matter is concerned, 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.
As to the second matter, I am satisfied that both users and the operators of TPB use the Defendants' services to infringe for similar reasons to those which I gave in 20CFox v BT at [99]-[113]. In this connection, I note that the evidence of Mr Sehested (as to which, see the First Judgment at [41]-[42]) was that, out of 3,299,337...
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