April 9, 2021
The claimant record companies issued proceedings against the six main internet service providers in the UK seeking an order pursuant to s 97A of the Copyright, Designs and Patents Act 1988 requiring them to block access to the “cyberlocker” website nitroflare.com. The claimants said that the site was being used to infringe their members’ copyrights on a large scale.
Mr Justice Miles explained that a cyberlocker site is a file storage site that makes available unlicensed commercial content, including music files, by allowing users to upload and download unlicensed content to and from its servers. The site encouraged the sharing of links, which it generated, and the downloading of content, which it stored by allowing users to upload content to the site’s servers for free. Downloads could then be made for free by the site’s users, with download speeds being faster if a user paid for a premium account. The site also offered an “Affiliate Programme’, which financially rewarded users who uploaded content for each subsequent download by another user.
The claimants contended that there had been infringement: (i) by the operators of the site in communicating works to the public within s 20 of the 1988 Act; and/or in authorising or acting as joint tortfeasor with the users of the site in their commission of infringing acts under s 16; and (ii) by the downloading users of the site in the UK, in making copies of works within s 17 of the 1988 Act; and/or by uploading users, in communicating works to the public within s 20.
In terms of the operator communicating works to the public, Miles J found that the operator intervened to give access to a protected work by transmitting files to the downloading user. It was therefore responsible for communicating the protected works by electronic transmission. The intervention was not passive, as the site was set up and existed to enable users to access and to download content (uploaded by others) in an easy and convenient way. In fact, the site encouraged such downloading. Further, the communication involved a profit-making activity through advertising and subscriptions.
Miles J was satisfied that the operator intended, when providing the service, to facilitate infringements. The operator must have known that much of the content on the site comprised commercially released music and videos that were protected by copyright, the downloading and copying of which required a licence. Its revenue was derived from advertising and the more downloading took place, the greater its advertising revenue. Further, there was no evidence of any serious attempt by the operator to take steps to combat illegal uses.
As for communication “to the public”, it was clear that the works were made accessible to a sufficiently large number of people. The situation was not the same as in some of the authorities where a site was used to make an onward transmission or provided a link to another site. Here, the content was uploaded by users and downloaded by others. Therefore, there was no question of the use of another technical means to make available some original communication. Further, the need to show that the communication was to a “new public” did not arise, although the requirement was satisfied in any event, as there was no prior authorisation of any “original communication”. Miles J concluded that the site was designed to make recordings freely available without any licence to a large and indeterminate class of people, without any need for the users to purchase them from authorised sources.
The servers for the site were based outside the UK, but Miles J found that the site targeted the public in the UK (as well as other countries): (i) the site was in English; (ii) there were large numbers of UK visitors to the sites; (iii) the site allowed payment for its premium service in GBP; and (iv) advertising on the site was in many instances for UK retailers or services.
Accordingly, infringement by the operator under s 20 was established.
Miles J found that the same applied to the uploading users of the site. When users uploaded content to the site, it was in the knowledge and with the intention that it would be downloaded by other users. Uploading users were encouraged to provide links to downloading users and were offered financial incentives. The site was structured to make that content generally available to all internet users. Therefore, uploading users were making a communication to the public. Since the site was targeted at the UK public, by using the site (with its UK-targeting features), uploading users targeted the public in the UK with the communication.
As for infringement by downloading users Miles J agreed with the claimants that when a user clicked on a link to obtain a copy of particular content and downloaded the content, the user copied the content contained in those files on his or her computer. If the content comprised a copyright work and the user did not have the licence of the copyright owner, he or she infringed copyright.
Miles J also found that the operator of the site authorised user infringement under s 16. The operator provided a user-friendly environment for its users to upload and download copyright content without authorisation from the copyright owners. Certain features of the site showed that it was designed for the sharing of commercial content rather than mere storage or the lawful sharing of files. These included the automatic deletion policy, the lack of any control over uploaded content (such as password protection), fast free upload speeds, the ability to earn revenue from downloads and the absence of limits on file size.
Infringement was the inevitable consequence of the service provided by the site, Miles J said, and the operator was able to control the use of the site and the content stored. Whilst the site carried conditions that made clear that certain types of content would be deemed unacceptable and there would be automated filtering of that content, in practice, the site did not do anything effective to filter out infringing content. It was also clear that the site did not operate an automated takedown process. The claimants had therefore made out their case under s 16.
Miles J was also satisfied, given the above findings and applying the relevant principles, that the operators of the site had induced, incited or procured users to commit infringements of copyright (profiting from so doing) and that they and the users had acted pursuant to a common design to infringe. The operator was therefore jointly liable for the infringements committed by users.
Finally, Miles J was satisfied that the order was proportionate for various reasons, including: (i) it was necessary to protect the rights of the claimants; (ii) the recordings were available to be enjoyed by ISP subscribers using legal digital music services; and (iii) to the extent that rights of users or operators of the site were engaged, given the conclusions on infringement, their interests were outweighed by the interests of the claimants in enforcing their copyright. Accordingly, Miles J granted the order sought. (Capitol Records, A Division of Universal Music Operations Ltd v British Telecommunications Plc  EWHC 409 (Ch)) — to read the judgment in full, click here).