Young Turks Recordings Ltd v British Telecommunications Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Miles |
| Judgment Date | 25 February 2021 |
| Neutral Citation | [2021] EWHC 410 (Ch) |
| Court | Chancery Division |
| Date | 25 February 2021 |
| Docket Number | Case No: IL-2020-000223 |
[2021] EWHC 410 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY LIST
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Miles
Case No: IL-2020-000223
Edmund Cullen QC & Gwilym Harbottle (instructed by Lee & Thompson LLP) for the Claimants
The Defendants did not appear and were not represented
Hearing dates: 3 February 2021
The Claimants are record companies suing for themselves and in a representative capacity on behalf of other record company members (“Members”) of BPI (British Recorded Music Industry) Limited (“BPI”) and Phonographic Performance Limited (“PPL”). BPI is co-ordinating these proceedings on behalf of the Claimants. BPI is itself a member of the International Federation of the Phonographic Industry (“IFPI”), an international record industry body.
The Claimants seek an order pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (“the Act”) and s.37 Senior Courts Act 1981 against the Defendant internet access providers (sometimes known as internet service providers or “ISPs”), requiring them to take measures to block their subscribers' access to certain websites (“the Infringing Sites” or “the Sites”). The Claimants submit that the operators of the Infringing Sites are directly infringing and/or jointly and severally liable for the infringement of copyrights owned by/exclusively licensed to Members. The Claimants also submit that the infringement they allege involves wholesale circumvention of technological protection measures (“TPMs”).
The Infringing Sites were identified in the claim form as: (1) Flvto.biz (“Flvto”); (2) Flv2mp3.by (“Flv2mp3”); (3) Flvtool.com (“Flvtool”); (4) 2Conv.com (“2Conv”); (5) 2Convert.net (“2Convert”); (6) H2Converter.com (“H2Converter.com”); (7) H2Download.org (“H2Download”); and (8) Ytbapi.com (“Ytbapi”). Since the claim form was issued, there have been a number of changes, some of which will require an amendment to the Claim Form:
i) Flvtool, 2Convert, H2Download and Ytbapi have ceased to be used since the issue of the Claim Form. However the evidence shows it would be possible for these four sites to be reactivated. Accordingly the Claimants wish to retain these sites in the list of Infringing Sites. The fact that these four sites are not presently in use has had no material effect on the functionality of the other Infringing Sites.
ii) H2Converter.com now redirects to an Infringing Site called H2Converter.net (“H2Converter.net”) where the service previously on H2Converter.com can be found. References to “H2Converter” below are to H2Converter.com or H2Converter.net as applicable. I grant permission to add H2Converter.net to the list of Infringing Sites in the claim form.
iii) A number of the existing Infringing Sites are connected to a new site called MP3.Studio (“MP3Studio”). I grant permission to add this too to the list of Infringing Sites.
The Claimants submit that all of the Infringing Sites have participated in and/or have enabled a process called “stream ripping”, i.e. the “ripping” of audio files used with music videos that are offered on streaming services, in particular YouTube. Stream ripping is a process whereby streamed audio content is converted into permanent audio downloads which can be stored for future consumption and/or shared with others. The Claimants' evidence explains that this is one of the fastest growing forms of online infringement of copyright in sound recordings and the most prevalent.
Arnold J helpfully set out the legal framework for website blocking orders in Dramatico Entertainment Ltd v British Sky Broadcasting [2012] EWHC 268 (Ch) (“ Dramatico”) at [30]–[38]. That jurisdiction has been further explained and developed in EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch); The Football Association Premier League Limited v British Sky Broadcasting [2013] EWHC 2058 (Ch); Paramount Home Entertainment International Limited v British Sky Broadcasting [2013] EWHC 3479 (Ch) (“ Paramount”); 1967 Ltd v British Sky Broadcasting [2014] EWHC 3444 (Ch) (“ 1967 Ltd”); Twentieth Century Fox Film Corp v Sky UK Ltd [2015] EWHC 1082 (Ch) (“ Popcorn Time”); Football Association Premier League Limited v British Telecommunications Plc [2017] EWHC 480 (Ch); Nintendo Co Ltd v Sky UK Ltd [2019] EWHC 2376 (Ch) (“ Nintendo”); and Matchroom Boxing Ltd v BT Plc [2020] EWHC 2868 (Ch) (“ Matchroom”).
The Claimants contend that the Court has jurisdiction in the present case because (i) each of the Defendants is a service provider within the meaning of section 97A of the Act (or so far as the TPMs are concerned, an intermediary within the meaning of Art. 11 of the Enforcement Directive); (ii) the users and/or operators of each of the Infringing Sites infringe the Claimants' and the Members' copyrights and rights in respect of TPMs; (iii) the users and/or operators of each of the Infringing Sites use the Defendants' services to do so; and (iv) the Defendants have actual knowledge of this. The Claimants further submit that it is just and proportionate for the Court to make the order sought in respect of each Infringing Site.
The claim was issued and served on the Defendants with the evidence on 21 December 2018. Supplemental evidence bringing the factual position up to date has been served for this application. The Claimants explain the delay as follows. Site-blocking orders are complex and while the Defendants will not usually consent to their being made, they are usually prepared to agree the terms of an order which they will not then oppose, leaving the decision as to whether to make an order to the Court. Since December 2018 there have been long-running open and without prejudice negotiations with the Defendants about the form of the Order. On the day of the hearing before me the ISPs confirmed that they had agreed the form of the order with the Claimants. They did not oppose the order in principle.
It appears from the researches of the Claimants and their counsel that this is the first application for a blocking order in respect of stream ripping sites. In light of the comments of Birss J in Popcorn Time at [5]–[15], I decided that there should be a hearing rather than dealing with the application on paper.
The evidence and factual background
I have considered and relied on the witness statements (with exhibits) of (a) Mr Kiaron Whitehead, General Counsel of BPI. He is responsible for the overall co-ordination of the proceedings on behalf of the Claimants; and (b) Mr Michael Walsh. He is an IT specialist who acts as a consultant for the BPI. He has acted for the BPI in an expert capacity in a number of previous applications pursuant to s.97A. His original evidence relates to the period of Autumn 2018. He has subsequently reviewed that evidence on various occasions culminating in checks in December 2020.
In this section I summarise the Claimants' evidence. I have drawn heavily on the Claimants' helpful skeleton argument (having satisfied myself that it faithfully reflects the underlying evidence).
The Claimants' copyright works
Each of the Claimants is in the business of making, owning and exploiting sound recordings of musical compositions. For the purposes of these proceedings, particular recordings have been selected as sample works (the “Claimants' Recordings”).
Mr Walsh explains that in late 2018 all of the Claimants' Recordings were ripped and downloaded from each of the Flvto, 2Conv and H2Converter sites and (independently) using a downloadable application (“the Downloader App” — an application offered for download onto users' computers, phones or other devices: see further below).
In late 2019 Mr Walsh reviewed the Infringing Sites and in the process converted and downloaded one of the Claimants' Recordings from each of Flvto, 2Conv, Flv2mp3, and H2Converter. He also downloaded five of the Claimants' Recordings using the Downloader App.
In September 2020 Mr Walsh downloaded three of the Claimants' Recordings using the Downloader App. In November 2020 he downloaded: each of the Claimants' Recordings from each of Flvto, 2Conv and Flv2mp3; all but one of the Claimants' Recordings using the Downloader App; and one of the recordings from H2Converter. In September 2020 the BPI Content Protection Unit converted and downloaded five of the Claimants' Recordings from H2Converter, and in November 2020 downloaded four of the Claimants' Recordings from H2Converter.
Each of the Claimants either owns or is the exclusive licensee of the UK copyright in the relevant Claimants' Recording. Where a Claimant is an exclusive licensee the copyright owner is also a Claimant.
None of the Claimants has granted a relevant licence to any of the operators of the Infringing Sites or their users.
The Claimants' Recordings represent a small fraction of the sound recording and film copyrights controlled by the Claimants and the Members on whose...
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