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You may remember the online copyright infringement case we reported regarding NewzBin. Newzbin was a members-only Usenet indexing website that operated a P2P network, by indexing and collating Usenet files, relating to particular works or films. It index listed these files by the name of the film or work and provided reports by Newzbin’s team of editors, giving information about the work. Certain film makers and distributors were successful its owners, NewzBin Limited, for copyright infringement. They obtained an injunction in 2010 on the basis that NewzBin Limited had: - authorised acts of infringement by its website’s members;
- procured, encouraged and entered into a common design with its members to infringe; and
- communicate copyright works to the public.
NewzBin Limited subsequently went into voluntary liquidation and the original NewzBin website ceased operation in May 2010. However, the NewzBin2 website started operating from the same domain name a couple of weeks later based outside the UK. The film makers and distributors sought an order against BT (the largest ISP in the UK) under section 97A of the Copyright Designs and Patents Act 1988 (“the Act”) which states that the High Court shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright. Based on the above the film makers and distributors required BT to take measures to limit access of their subscribers to the infringing website. BT put forward five reasons why the court did not have jurisdiction to grant the order: 1) NewzBin2 subscribers were using NewzBin2’s service to infringe copyright and not BT’s: the court found that the NewzBin2 subscribers were using both NewzBin2’s and BT’s services to infringe copyright. In addition, NewzBin2 was itself using BT’s service to infringe copyright for the reasons given in the original NewzBin judgment. 2) BT had no actual knowledge of the infringements: the court found that it was not necessary to know of a particular infringement, of a particular copyright work, by a particular identified or identifiable individual. BT’s actual knowledge of the use of its service for infringing activity sufficed. 3) The grant of an injunction would be contrary to the exclusion of liability for “mere conduits” under Article 12(1) of the E-Commerce Directive: the court found that this was not the case as Article 12(3) specifically permitted courts to require service providers to terminate or prevent an infringement. 4) The grant of an injunction would be contrary to the prohibition of imposing a general obligation to monitor on ISPs under Article 15(1) of the E-Commerce Directive: the court found that BT was simply required to block access to a website, using automated means. This did not require detailed inspection of the data of any of the BT subscribers. 5) The grant of an injunction would be contrary to the fundamental human rights protected by Article 10 of the European Convention of Human Rights: the court found that the order sought fell well within the range of orders which were foreseeable by ISPs under section 97A. As such, the order was “prescribed by law" and amounted to a legitimate limitation to the subscribers’ and operator's rights. Key factors were: the fact that the order was clear and precise; used an existing technical solution; was technically feasible; was not excessively expensive; and could be varied or discharged.
The film makers and distributors successfully argued that BT should implement the same measures with regard to the NewzBin2 website as it already operates with regard to URLs reported to it by the Internet Watch Foundation, which alerts BT (and other ISPs) to child sexual abuse content on its networks and BT uses a system known as Cleenfeed to disrupt access by its subscribers to those URLs.
The Internet Service Providers’ Association, however, has criticised the use of the Cleenfeed system for a blocking exercise of this kind stating that the system was not designed to deal with this quantity of web traffic and questioned why the Digital Economy Act has not included web access blocking provisions. The Secretary of State for Business announced that the proposed website blocking scheme was to be dropped from the Digital Economy Act 2010 as it was too cumbersome and unworkable.
Key concerns were: the inaccuracy of domain name ownership information on Whois databases; the length of time for enforcement following an injunction (especially by smaller ISPs); and that many blocking techniques have limited granularity which might lead to over-blocking affecting legitimate content. All articles are for general purposes and guidance only and do not constitute legal or professional advice. Copyright 2011 Anassutzi & Co Limited. All rights reserved. Information may be shared or reproduced only if accompanied by the author’s name and bio.
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