Itv Broadcasting Ltd and Others (Claimants) (6) Channel 5 Broadcasting Ltd and Another Tv Catchup Ltd (Defendant) The Secretary of State for Business, Innovation and Skills (Intervenor)
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE FLOYD |
| Judgment Date | 18 July 2011 |
| Neutral Citation | [2011] EWHC 1874 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case No: HC10C01057 |
| Date | 18 July 2011 |
[2011] EWHC 1874 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Floyd
Case No: HC10C01057
James Mellor QC and Jessie Bowhill (instructed by Olswang LLP) for the Claimants
Martin Howe QC and James Whyte (instructed by Hamlins LLP) for the Defendants
James Eadie QC, Charlotte May and Ben Jaffey (instructed by The Treasury Solicitor) for the Intervenor
Hearing dates: June 13, 15–17 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Floyd
TV Catchup Limited ("TVC") operate an internet based live streaming service of broadcast television programmes, including films, in which the claimants own the copyright. For historical reasons, the name TVC is inappropriate, as the service provided does not now (although it did in the past) allow users to view programs other than at substantially the same time as the original broadcast. The question which arises in this action is whether, in providing its live service, TVC are performing any of the acts restricted by the relevant copyrights and thereby infringing them.
The TVC service
Users of the TVC service must create an account with log in details. TVC endeavour to ensure that their viewers can only receive access to content which they are already legally entitled to watch by means of their television licence. The terms to which users must agree include the possession of a valid TV licence and to restrict use to the country of residence. The website has the facility to authenticate the user's location, and will refuse access where membership conditions are not satisfied.
The TVC service is funded by advertising, that is to say by showing an advertisement before the live stream is viewed. The advertisements actually contained in the original broadcasts are retained unaltered. There is also "In-skin advertising". So the viewer sees the TVC live stream surrounded by advertising. It is because of the advertising that the claimants who broadcast commercial television channels in the UK, regard TVC as direct competitors, which they are.
The TVC service is administered on their behalf by Netrino (UK) Limited, a web hosting company, although all the servers involved are owned by or leased to TVC. The servers are physically located at Netrino's data centres in Maidenhead and London Docklands. The servers employed are arranged in a sequence of four groups of servers, each group fulfilling a different function. The server groups are called (i) acquisition, (ii) encoding, (iii) origin and (iv) edge.
The input signals used by TVC are the normal terrestrial and satellite broadcast signals transmitted by the claimants. The signals are captured via a single domestic TV aerial and a single satellite dish located in the Maidenhead area. Only digitally broadcast TV channels are used. Both digitally broadcast satellite signals and digitally broadcast terrestrial signals are received. They are received in a compressed format known as MPEG-2. The signals comprise multiple video streams. Each stream represents a television channel.
The signals are passed by the aerial to the acquisition servers also located at the premises in Maidenhead. These servers contain conventional tuner cards which, in combination with software installed on the servers, extract individual video streams from the received signal. The output from the acquisition servers is therefore a video stream in MPEG-2 format, unaltered from the broadcast.
The output from the acquisition servers is passed to the encoding servers, also in Maidenhead. The encoding servers contain software which converts the incoming MPEG-2 stream into an MPEG-4 stream, that is to say a different compression standard.
The MPEG-4 stream from the encoding servers is made available to the origin servers. Commercial software called Wowza Media Server 2 is used to prepare streams of video for sending over the internet in a variety of formats. Up to this point, all channels offered by TVC are processed. Channels are, however, only processed beyond this point if at least one TVC subscriber has requested that channel. If there is no request for a given channel, the signal is discarded.
Edge servers take the stream from the origin servers. The edge servers also use the Wowza software. These servers connect with a user's computer using the internet. They can also make connection with a user's mobile phone, via the internet and then via the cabling inherent in the network operator's infrastructure, making the final link by wireless transmission from the mobile base station.
When an edge server receives a request for a channel from a user, then, unless it is already streaming that channel to a different user, the edge server connects to the origin server which streams that channel. The Wowza software on the edge server creates a separate stream for each user who requests a channel through it. Thus an individual packet of data leaving the edge server is addressed to an individual user, not to a class of users.
The streams provided by the edge servers can be in a variety of different formats. The formats used are:
i) Adobe Flash streams. These are deployed when the user is at a desktop or laptop computer. These computers will have an Adobe Flash player to enable the signal to be displayed on the screen;
ii) HTTP streams. These are for Apple mobile devices (iPhones and iPads); These devices will use the Apple Quicktime software to display the signal on the mobile device;
iii) RTSP streams. These are used for Android and Blackberry mobile phones. These devices have a media player able to display such a stream.
A user who clicks on a channel logo on the TVC website causes the media player to connect to the TVC web server. The TVC web server checks that the user is logged in, in the UK and not using a virtual private network. If authentication is successful, the web server will return, if one is available, the URL of an advertisement to be displayed before the channel is received. For the playing of the stream, the user is provided with the URL of one of the TVC edge servers.
At no stage during the process I have described is the whole or any part of the video stream stored on any disk or other permanent storage medium. All processing takes place in volatile memory. However, in each of the steps described a small amount of data from the video stream is held in the memory of the servers involved. In the case of streaming for Apple devices the servers will hold the video stream in "play list" form". At any one time the servers must hold three "play list" items of 10 seconds each, making a total of 30 seconds of stored video. In fact rather more will be stored because of the need to prepare and store the next item. So 30–40 seconds of video are stored for Apple streaming. Professor Leung, TVC's expert, said he would like to have measured this to be sure, but this is the best evidence that I have.
In the case of streaming to a PC, TVC's buffers have the capacity to hold up to 8 seconds of video streaming in memory. It is, however, not sensible to configure the system in such a way that the buffer is used to its full capacity. As a rule of thumb one would want the buffers to run at less than half the capacity under normal conditions. The experts did not agree on precisely how much buffer would be used at a maximum. Professor Leung, TVC's expert, did some experiments suggesting that the maximum was 5 seconds or so. Mr Lewis, the claimants' expert thought it could be as much as 6 or 7 seconds. The precise figure will depend on the load. I propose to take the figure of 1 to 5 seconds as being that which would normally be used, whilst recognising that the range could be exceeded in periods of very high load. In the end it does not make any difference to anything I have to decide.
The claimants' case of infringement and TVC's defences
The claimants rely on two categories of copyright work: broadcasts and films. There is no longer any dispute that the claimants have established that copyright subsists in the broadcasts and films relied on and that it is owned by one or more of the claimants. It is, on the face of it, surprising that this was ever the subject of challenge.
The claimants allege that the copyright in each category of work has been infringed by (a) communication of the works to the public and (b) by making, or authorising the making of, transient copies of the works in TVC's servers and on the screens of users. There is no allegation of infringement by "broadcasting" as opposed to "communication to the public".
TVC answer the case of infringement of broadcast copyright by communication to the public in two main ways. Firstly, they say that the amended version of section 20(1)(c) of the CDPA 1988 (which creates a general communication to the public right in respect of broadcasts) was invalidly enacted, as it lay outside the power of the Secretary of State to introduce legislation under section 2(2)(b) of the European Communities Act 1972 ("ECA 1972"). It was on this issue that I allowed the Secretary of State for Business, Innovation and Skills to intervene, given that there was a challenge to the validity of primary legislation and the secondary legislation which gave rise to it. Secondly they contend that...
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