Thursday 7 February 2013

The final (?) installment in the Newzbin saga

Everyone will be aware of the courts' decisions in Newzbin and Newzbin 2. By way of short summary, Newzbin was a website which indexed and provided links to infringing films and music. In March 2010, Mr. Justice Kitchin ruled that Newzbin liable both for communicating copyright protected works to the public and for authorising copyright infringement. He held that Newzbin was deliberately indexing copyrighted content, and that "for the year ended 31 December 2009, it had a turnover in excess of £1million, a profit in excess of £360,000 and paid dividends on ordinary shares of £415,000".

Newzbin was temporarily shut down but came back as Newzbin 2. In June 2011, the Motion Picture Association applied for an injunction to force BT to cut off customers' access to Newzbin 2, which was granted by the High Court on 28 July 2011.

In September 2011, Newzbin 2 released software which aimed to circumvent the BT blocking, causing the High Court to order BT to block its customers' access to the Newzbin 2 within fourteen days. This was a first in terms of UK copyright law.

Both decisions are summarised in more detail by the IPKat here.

The latest in the saga is a decision from the High Court regarding whether a copyright owner has a proprietary claim to money derived from infringement of the copyright. Six film studios, all members of the Motion Picture Association, claimed to be the owners or exclusive licensees of the copyright in numerous films and television programmes, and argued that where copyright is infringed, the copyright owner has a proprietary claim to the whole proceeds of the infringement.
Mr Justice Newey held that the remedies for infringement of copyright are dealt with in chapter VI of part I of the CDPA. Section 96(2) states that, in an action for infringement of copyright, "all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right".

He concluded that:
"Despite Mr Spearman's persuasive advocacy, it seems to me clear that a copyright owner does not have a proprietary claim to the fruits of an infringement of copyright. I shall not, therefore, grant proprietary injunctions."

So Hollywood won't get the profits of Newzbin's piracy.
An interesting side note: ZDNet  reported that the barrister acting for Newzbin in its 2010 trial has been indefinitely struck off in January 2012 because he owned the file-sharing site. The Bar Standards Board disbarred Brighton-based David Harris for breaches of paragraphs 301(a)(iii), 302, 603(d) and 901.7 of the Code of Conduct of the Bar of England and Wales.

No comments: