My colleague Sherif Malak has taken a look at the ''Newzbin 2' case in July this year, continuing our theme of “who should hold the can?” for illegal content on the networks. Whilst the debate about the severity of sanctions in the Digital Economy Act against infringements by users rages on, rightsholders appear to have made some headway elsewhere in the case of Newzbin2.
The background to the case was cause for much celebration amongst rightsholders when, last year, a number of film studios succeeded in obtaining an injunction against the providers of file-sharing website, Newzbin, which enabled users to download copyright infringing content including films and TV-programmes. There, Kitchen J emphatically concluded that Newzbin was not only liable for authorising infringement, but was also liable as a primary infringer, even finding that ‘flagrancy’ (and thus increased damages) had been proved under s. 97 of the CDPA. Celebrations somewhat stopped when , after a quick shimmy of its servers to Sweden, the imaginatively titled “Newzbin2” service rose from the ashes, moving beyond the jurisdiction of the UK courts.
Foiled? Well no, not quite. Turning their attention to the ‘gatekeepers’ of the internet, the ISPs, rightsholders sought an injunction against the UK’s largest ISP, BT, to block access to Newzbin2 wherever it was located….. and succeeded! Whilst the court batted away a number of legal arguments BT raised including those relating to the HRA and E-Commerce Regulations, of particular note is Justice Arnold’s seemingly broad interpretation of ‘actual knowledge’ of infringement required to make out BT’s liability under s. 97A of the CDPA – actual knowledge of the use of the service to infringe (rather than of a specific infringement) now appears to be enough.
On the face of it, together with the ECJ’s guidance in L’Oreal v. eBay (discussed here earlier), this looks like quite the bombshell for intermediaries. But before rightsholders begin flocking to the courts to apply for injunctions, they should keep a few points in mind:
- The floodgates are unlikely to open following this test case as the facts were heavily weighted in favour
- of rightsholders: Newzbin/Newzbin2 had few non-infringing users, BT knew of the facts of infringement from the previous case and rightsholders sought the blocking of a specific website (not the analysis of all user traffic), where the ISP already had filtering software in place (in the instance, BT’s Cleanfeed). It cannot therefore be assumed that all services will share the same fate especially that the decision is not binding precedent on other High Court applications.
- The type of blocking sought in Newzbin2 was quite precise and BT already had the Cleanfeed system at its disposal – not all ISPs will have the same technical capacities.
- Although the judgment suggested that applicants would be likely to recover all their legal costs if successful, Arnold J made clear that there is no guarantee that this will be the case for anyone seeking an injunction.
- The speed of the court process renders injunctive relief ineffective against short lived services - as communications minister Ed Vaizey pointed out last month, there is currently little recourse against online services that pop up for a few days to ‘cash in’ on a live sport event before disappearing again.
- Finally, the practical effect of blocking an infringing site may not effectively reduce online copyright infringement – there is nothing to say that infringers won’t just move on to the next source of free (yet still unlawful) content.
All in all, the lack of certainty and costs that an injunctive remedy involves means that it’s not clear whether this will be preferred to the user level remedies available under the DEA. However, now that the site blocking provisions of that Act have been dropped, it’ll at least be an additional, an no doubt welcome, option in a rightsholder’s legal armament for tackling online copyright infringement.
Have a good weekend.