Further to Ben's post
last week that BPI is taking legal action to force internet service
providers to block access to three more file-sharing websites, today the High
Court handed down its decision in EMI & Others v
BSkyB & Others in which the UK's six main retail ISPs were ordered
to block access to three file sharing websites.
This judgment comes as no great surprise given Arnold J's similar
decisions in Newzbin, Newzbin 2
and The Pirate Bay,
however it makes it clear that use of s.97A CDPA to get a blocking order is now
a viable option for rightsholders trying to prevent access to illegal file
sharing sites. Arnold J's decision also contains an interesting discussion on
jurisdiction which is often a difficult issue in online cases.
The websites in question were KAT, H33T and Fenopy, all music
file-sharing websites. Arnold J first discussed the website users'
infringements and the website operators' infringements.
The
website users (the uploaders)
It was clear to Arnold J that the websites users' activities
constituted both copying and communication to the public.
As regards communication to the public, Arnold J split the issue
into three questions:
1.
Do users of the websites, who are uploaders, communicate the Claimants' sound
recordings to the public?
He held that they did, as they "make the recordings available
by electronic transmission in such a way that members of the public may access
the recordings from a place and at a time individually chosen by those members
of the public."
2.
Do such users communicate the recordings to a new public applying the criteria identified in Societá
Consortile Fonografici v Del Corso?
In that case, the CJEU held that the broadcasting of sound
recordings within private dental practices was not communication to the public
for the purposes of Article 8(2) of the Related Rights Directive because the
patients constituted a determinate circle of potential listeners, who only
heard the recordings one at a time; that the patients attended for the purposes
of dental treatment and had no choice over the recordings they listened to; and
that the broadcast was not of a profit-making nature.
In the present case Arnold J held that users do communicate
recordings to a new public as the users intervene, in full knowledge of the
consequences of their actions, to give others access to the works. The
recordings are made available to all other users of the websites and although the
uploaders didn't directly make money from uploading, they would do so
indirectly by downloading other users' music without paying.
3.
Does the act of communication to the public occur in the UK?
Arnold J found that where the uploader was located in the UK,
communication to the public occured in the UK. He was more doubtful as to
whether the same would be true if the downloader
was located in the UK. However as in this case the uploaders were in the UK he avoiding
having to give a conclusive answer as regards the location of downloaders.
He referred to Football Dataco
Ltd v Sportradar Gmbh in which the CJEU held that
"re-utilisation" of data held in a database occurs at least in the state of transmission.
Arnold J clarified that this should not be interpreted to mean that
re-utilisation cannot also occur in the state of emission. He held: "Furthermore,
this reading would be consistent with the natural meaning of "making
available". It would be odd if this did not include the place of origin."
On that basis Arnold J accepted the Claimants' argument that where a
communication to the public which originates outside the UK is received inside
the UK, the act will be treated as occurring within the UK if the communication
is targeted at the public in the UK.
So Arnold J concluded that the users
of the websites did communicate works to the public.
The
website operators
The question of whether the operators of the websites made copies
of the works was not considered. In considering whether the operators of the
websites communicated the works to the public, Arnold J again split his
analysis into three questions.
1.
Do the operators of the websites communicate the Claimants' sound recordings to
the public?
Arnold J found that in this instance there was no material
distinction between Newzbin 1 and the
websites in this case: the defendant had intervened in an active manner to make
the films available, therefore the operators of the websites did communicate
the Claimants' recordings to the public by electronic transmission.
2.
Do the operators communicate the recordings to a new public?
Arnold J held that they did as they intervened, in full knowledge
of the consequences of their actions, to give others access to the works. The
recordings were made available to all the users of the websites and the
operators benefited financially from their activities.
3.
Does the act of communication to the public occur in the UK?
In considering this question Arnold J took into account the CJEU's
decisions in Pammer v Reederei
Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v Heller; L'Oréal SA v eBay
International and Donner. In
doing so he found that the websites were targeted at the UK as:
- there were a large number of users of each website in the UK;
- a substantial proportion of the visitors to each website was
from the UK;
- the recordings listed on each of the websites included large
numbers of both (a) recordings by UK artists and (b) recordings that are in
demand in the UK; and
- the default language of each of the websites was English.
In addition, KAT included advertisements with prices in sterling. On
that basis Arnold J found that KAT was reasonably clearly targeted at the
public in the UK but that the position was less clear in the case of H33T and
Fenopy. In any event he reached the same conclusion in respect of all three:
the act of communication to the public occurs in the UK.
Authorising
and Joint Tortfeasorship
Further, Arnold J found that the website operators authorised the
users' infringement of copyright. He said that the website operators went "far
beyond merely enabling or assisting", they sanctioned, approved and
countenanced the infringements of copyright committed by their users and purported
to grant users the right to copy and communicate the works to the public.
Further, as the operators profited from their activities they were also jointly
liable for the users' infringements.
Conclusion
As both the users and the operators of the websites used the
Defendants' services to infringe the Claimants' copyright, and as the Defendants
had actual knowledge that users and the operators of the websites used the
Defendants' services to infringe copyright (this was not denied), Arnold J was
satisfied that granting blocking orders was a proportionate remedy. He
concluded by saying that:
"The orders are narrow
and targeted ones, and they contain safeguards in the event of any change of
circumstances. The cost of implementation to the Defendants will be modest and
proportionate."