March 8, 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 certain “stream-ripping” websites, which the claimants said were infringing their copyrights in a vast number of sound recordings and films.
The claimants argued that all of the infringing sites had participated in and/or had enabled stream-ripping, i.e. the “ripping” of audio files used with music videos offered on streaming services, in particular YouTube. Stream-ripping is a process whereby streamed audio content is converted into permanent audio downloads that can be stored for future consumption and/or shared with others.
The claimants contended that there had been infringement: (i) by users of the sites, in committing acts of copying within s 17 of the 1988 Act; (ii) by the operators of the sites in authorising user infringement within s 16(2); (iii) by the operators as joint tortfeasors with the users; and (iv) by the operators in communicating works to the public within s 20.
Miles J found that UK users used the infringing sites to download and make copies of the claimants’ recordings. The evidence showed that the infringing sites had a large number of UK users and the infringing sites were able to “convert” all recordings on YouTube, which included copyright content. Since these acts of copying took place without a licence, they were infringements. There was no defence of personal use.
As for infringement by the operators of the sites, Miles J noted that s 16 of the 1988 Act provides that copyright in a work is infringed by a person who without the licence of the copyright owner authorises another to do any of the acts restricted by copyright.
Miles J found that the reason the infringing sites existed was to enable users to obtain copyright works illegally. The sites were also operated in such a way as to allow this to happen. The reason they provided a “conversion” facility was to enable users to obtain permanent downloaded content from streaming services, such as YouTube, that had safeguards to prevent just that happening.
Miles J was also satisfied that infringement was the inevitable consequence of the service provided by the infringing sites. The whole point of the services was to make available unlicensed music downloads (or the means to do so) and it was effectively inevitable that these services would be used to download copyright material including commercially successful recordings. In addition, the commercial purpose of each infringing site was to generate revenue through advertising by attracting users to the site with the free means of copying and making available popular content.
The infringing sites purported to offer a takedown facility (requiring rights holders to identify specific links for removal of infringing content), thereby demonstrating the operators’ awareness of the use of the sites for copyright infringement. However, the evidence showed that these facilities were wholly inadequate.
There were also serious difficulties in identifying the websites’ operators. The steps taken to conceal their identity suggested an awareness on the part of the operators of their inevitably infringing activities and a desire to evade action and enforcement against them.
Miles J also found that the operators of the infringing sites had the capacity to prevent further downloads. None of them had taken any steps to prevent infringement.
Therefore, Miles J held that the operators of the infringing sites had authorised the infringing copying of the claimants’ copyright material.
Miles J was also satisfied that the operators had induced, incited or procured users to commit infringements (profiting from doing so) and that they and the users had acted pursuant to a common design to infringe. The operators were therefore jointly liable for the infringements committed by users.
As for communication to the public, Miles J found that the infringing sites intervened to give access to a protected work and that, absent such intervention, the relevant content would not be accessible to download except to someone who had paid to be a premium user of YouTube. By providing “conversion”, these sites were directly responsible for the communication of the claimants’ copyright content to the public by electronic transmission. The intervention was also active: the sites were set up and existed to enable users to access and to download content in an easy and convenient way. Further, the communication was of a profit-making nature, as the sites carried advertising.
As for communication to the public, the works were made available to the entire internet public. Further, to the extent that works had been made available to be streamed on YouTube (or another platform), ripping them so as to make them available as downloads: (a) constituted a new technical means; or (b) constituted a new public because any original authorisation was in relation to YouTube (or other platforms). In addition, when providing the service, the operators intended to facilitate infringements.
Finally, Miles J found that the communication was targeted at the UK. First, the default language of the sites was English. Secondly, the language of the advertisements was English. Thirdly, there were millions of UK visits to each site recorded at the relevant time. Fourthly, in US Proceedings, there was witness evidence from one of the operators that the sites were “targeted at the entire world of eligible internet users”. Miles J was therefore satisfied that there had been infringement under s 20.
On proportionality of the order, Miles J found that inter alia: (i) the injunction was necessary to prevent or at least reduce stream ripping; (ii) there were no realistic alternative measures that were less onerous than a blocking order; (iii) the measures sought would at least seriously discourage users from accessing the target website; (iv) it was reasonable to infer that a well-publicised blocking order would dissuade other site operators and users from embarking on stream ripping of this type; and (v) stream ripping caused very substantial damage to the claimants’ IP rights.
Accordingly, Miles J said, the Order was proportionate and it was right to make it. (Young Turks Recordings Ltd v British Telecommunications Plc  EWHC 410 (Ch) (25 February 2021) — to read the judgment in full, click here).
In separate proceedings heard on the same day, Miles J also granted a website blocking order to Capitol Records and other record labels requiring the ISPs to block the cyberlocker website Nitroflare.com. Nitroflare.com 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 — full report coming next week. (Capitol Records, a division of Universal Music Operations Ltd v British Telecommunications Plc  EWHC 409 (Ch) (25 February 2021) — to read the judgment in full, click here).