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The six main retail internet service providers in the United Kingdom must take measures to block or impede their customers' access to three P2P file-sharing websites, the England and Wales High Court of Justice ruled Feb. 28 (EMI Records Ltd. v. British Sky Broadcasting Ltd., EWHC, No. HC12F4957, 2/28/13).
Justice Arnold concluded that both the subscribers and BitTorrent websites infringed recording industry copyrights by copying musical works and communicating them to the public, referring to its rulings in several recent cases for support.
In cases targeting P2P sites, including Newzbin, Newzbin2 (151 PTD, 8/5/11), and the Pirate Bay (34 PTD, 2/22/12), the plaintiffs' obtained orders that required ISPs to block the sites, the court observed.
The court noted that the ISPs did not oppose the plaintiffs' requests for orders targeting the KAT, H33T, and Fenopy file sharing websites.
Section 97A of the Copyright, Designs, and Patents Act 1988 empowers the high court to “grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.”
The act requires four showings:
• that the defendants are service providers;
• that users of the websites infringe copyright;
• that users use the ISP's services to infringe copyright; and
• that the ISPs have actual knowledge of the infringement.
Each element was satisfied here. The ISPs are clearly service providers, the court observed. And the subscribers--along with the BitTorrent website operators--infringed the plaintiffs' copyrights by both copying works and communicating them to the public.
The ISPs had actual knowledge of the infringement through infringement notices sent by the plaintiffs.
The court detoured into an analysis surrounding jurisdiction over the website operators. It concluded that each targeted the United Kingdom through their infringement and had the ability to control their users' uploads and the availability of infringing content.
The Austrian Supreme Court has referred questions concerning ISP blocking orders to the European Court of Justice, the court observed. UPC Telekabel Wien G.m.b.H. v. Constantin Film Verleih G.m.b.H., No C-314-12 (E.C.J. case referred June 29, 2012). The court asked for clarification on whether one who makes copyrighted information available online “uses” internet access providers' services within the meaning of the Information Society Directive, 2001/29/EC.
This court found no reason to change its opinion on the issue, noting that its answer was “yes” in the Newzbin2 case. Twentieth Century Fox Film Corp. v. British Telecommunications PLC, 2011 EWHC 1981.
Constantin stated in its referral that it was inclined to believe that ISPs' services are “used” within the meaning of the directive, this court observed.
Golden Eye (International) Ltd. v. Telefonica UK Ltd., 2012 EWHC 72, noted two reasons why blocking orders must be considered carefully. Article 3(2) of 2004/48/EC imposes a general obligation to consider the proportionality of remedies for the infringement of intellectual property rights. In addition, the European Court of Justice has held that national courts must strike a fair balance between IP protections and individuals' fundamental rights.
Golden Eye considered several factors, culminating in a balancing test. Applied here, the balancing test supported the issuance of the injunction.
Constantin expressed concerns about blocking orders, noting that an examination of fundamental rights and proportionality occurred only after the event in enforcement proceedings. That worry did not exist here, the court said, because under English law, courts must consider those interests before issuing a blocking order.
Turning to the proportionality of the order, the court found that its issuance would generate only modest compliance costs.
“In this context, it is important to note that none of the Defendants has appealed against any of the blocking orders made by this Court,” the court said.
Subscribers' ability to circumvent ISP's blocking efforts did not take away from the proportionality of the order.
“[E]vidence indicates that blocking orders are reasonably effective,” the court said, looking to data surrounding such an order in an Italian case.
The court added that the orders were necessary and appropriate to protect the plaintiffs' intellectual property rights, interests that clearly outweighed the users' rights, since the users can obtain the works from many lawful sources.
The plaintiffs were represented by Ian Mill of Forbes Anderson Free.
Full text is available at http://www.bailii.org/ew/cases/EWHC/Ch/2013/379.html.
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