More on blocking injunctions...

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."