July 1, 2016
For information on the legal background of section 97A CDPA and the elements that must be proven, please see our site blocking introduction.
This second blog in our site blocking series focuses on Newzbin2 – the case that confirmed that injunctive relief could be obtained against an online intermediary requiring it to take steps to address online piracy.
Background – Newzbin
Newzbin was a Usenet indexing website – it searched for, indexed and categorised content posted to Usenet service providers.
Newzbin Limited (the operator of the site) claimed it was the Google of Usenet and that it indiscriminately searched for and indexed copyright content posted to Usenet to make that content accessible. The claimant film studios contended that the Newzbin site was focused on film and TV content, the overwhelming majority of which was commercially available and therefore very likely to be copyright protected.
Non-text files (such as films) posted to Usenet are encoded and the data split into a significant number of messages (typically hundreds or thousands). A user wishing to download a copy of a film from Usenet must therefore identify, download and assemble each component part. Newzbin significantly simplified this cumbersome process by providing NZB files, which enabled users to download selected content indexed on the Newzbin site at the click of a button.
Kitchin J held that Newzbin Limited infringed the claimants’ copyrights in three ways:
- authorising infringement of copyright;
- procuring copyright infringement or engaging in a common design to infringe copyright;
- communicating to the public.
Significantly, the case demonstrated the court’s willingness to apply copyright law to the online environment so as to give protection to content owners. It confirmed that the operators of websites that have a close connection with their users; that focus on infringing content; that can control what content their users can obtain; and that can take active steps to prevent infringement are likely to be regarded as infringers.
The case also confirmed that liability for communication to the public may be established where the site does not actually transmit content but actively intervenes to make available protected content hosted elsewhere.
The Newzbin website ceased operating on 18 May 2010.
Newzbin2 and s97A
The Newzbin2 judgment was the first UK decision to consider the High Court’s power to grant an injunction against an Internet service provider (ISP) whose service is being used to infringe copyright.
The target of the order sought was the Newzbin2 website. That site (which began operating on or around 28 May 2010) was in all material respects the same as the original Newzbin site, although its operation had moved offshore. The case encapsulated the difficulties of enforcing copyright law against the operators of infringing websites.
In granting the injunction sought, Arnold J made a number of key findings both in respect of the procedure to be adopted and the evidential hurdles to be satisfied.
As to procedural considerations, the judgment confirmed that:
- An order for final injunctive relief pursuant to section 97A can be granted by the court on the basis of an application to the High Court and without a full trial.
- Section 97A enables a time and cost efficient procedure to deal with applications for blocking orders: there is no need to obtain a judgment against the website first.
- An application under section 97A can be decided by the court without cross-examination of witnesses and/or disclosure under CPR Part 31.
As to the threshold conditions to be satisfied and proportionality (issues of liability have being determined in the earlier Newzbin judgment and BT having accepted that it was a “service provider” within the meaning of section 97A), the judgment found that:
- An ISP subscriber who downloads infringing material from a website is using the ISP’s service to infringe copyright.
- A website operator that authorises the subscriber’s infringements or is jointly liable for the subscriber’s infringements and/or infringes by ‘making available’ infringing copies, uses the ISP’s service to infringe for the purposes of section 97A.
- Although the service provider must have actual knowledge of one or more persons using its service to infringe copyright, it is not essential to prove actual knowledge of a specific infringement of a specific copyright work by a specific individual.
- A service provider may be given actual knowledge of infringement by receipt of a sufficiently detailed notice and a reasonable opportunity to investigate the position.
- An injunction should not be refused on the basis that the applicant does not own all the copyrights being infringed using the site.
- Blocking (or impeding) access to a website such as Newzbin2 by automated means does not involve detailed inspection of the data of any of that ISP’s subscribers. To the extent that this amounts to monitoring, it is specific rather than general.
- The order sought was a proportionate one: it was necessary and appropriate to protect the Article 1 First Protocol rights of the claimants and other copyright owners and those interests clearly outweighed the Article 10 rights of the users of Newzbin2, the operators of Newzbin2 and (to the extent engaged) BT.
- The cost of implementation to BT would be modest and proportionate.
- The order would be justified even if it only prevented access to Newzbin2 by a minority of users.
Newzbin2 paved the way for site blocking orders now obtained by content owners from a number of industries; directed to a number of different types of infringing sites; and granted in territories across the EU and beyond. We will investigate how the Newzbin2 precedent has been further developed in future blogs in our site blocking series.
Wiggin LLP acted for the claimants in both cases.
For more information please contact us.