1967 Ltd -v- BSkyB: High Court orders ISPs to block access to copyright-infringing music websites

The High Court has granted an injunction to a number of record companies requiring the five main internet service providers (ISPs) to block access to 21 websites (Target Websites).¹ The website-blocking order was issued under s97A of the Copyright, Designs and Patents Act 1988, for breach of copyright in respect of music files.

There have been a number of similar s97A orders granted over recent years, such as Twentieth Century Fox.² In his judgment, Mr Justice Arnold stated that the recent application for a website-blocking order in relation to trade mark infringement (the Cartier decision,³ which we review in this newsletter), provided "much more complete and up-to-date evidence as to the efficacy of [previous] section 97A orders… the technical measures being adopted by the Defendants to implement such orders and the costs being incurred by the Defendants in implementation". The stage is therefore set for future injunctions of this kind.

Judgment

The Target Websites use BitTorrent peer-to-peer file sharing, which allows users to select and download music from an organised directory of content. The High Court held that the unauthorised downloading and copying of copyright recordings, as well as the communicating of copyright works to the public, constitutes copyright infringement by UK users of the Target Websites.

Mr Justice Arnold noted that "[the Target Website operators'] role is by no means passive… they intervene in an active and highly material way so as to enable users to access and to download recordings content in an easy and convenient way". He found that these operators infringe the claimants' copyright by communicating the copyright works to the public in the UK, authorising infringements by UK users and acting as a joint tortfeasor with UK users. He also found that the ISPs are service providers; that users and operators use the ISPs' services to infringe the claimants' copyright; and that the ISPs had actual knowledge of the infringement.

For similar reasons to those provided in Cartier, the Court held that granting the orders would be proportionate in this instance. Mr Justice Arnold quoted additional evidence provided by the claimants which suggests that "on average, the number of UK visitors to BitTorrent websites which have been the subject of blocking orders has declined by 87%".

Comment

In light of the in-depth analysis set out in Cartier, and this subsequent decision to grant an order based on similar reasoning, it will be difficult for ISPs to argue that such orders are disproportionate in the future. As a result, we are likely to see an increase in the number of such applications.

Please click on the links below for the other articles in the December 2014 IP/IT newsletter:

• No spec saving for Asda: genuine use of a trade mark considered by Court of Appeal
• Cartier -v- BSkyB: High Court orders ISPs to block access to trade mark-infringing websites
• ECJ ruling in Deckmyn provides further clarity to the UK parody exception
• Revenge porn: a dish that could serve you with a jail term
• TRIPP TRAPP: seat at the table of never-ending rights for shape marks remains elusive

_Notes:

_{¹1967 Limited & Others -v- British Sky Broadcasting Limited & Others [2014] EWHC 3444 (Ch).
²Twentieth Century Fox Film Corp. -v- British Telecommunications plc (No 2) [2011] EWHC 1981 (Ch)
³Cartier International AG -v- British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch).}