EMI Records Ltd v British Sky Broadcasting Ltd (2013)
The court issued a blocking injunction requiring six internet service providers to block customers' access to three peer-to-peer file-sharing websites. The service providers knew that customers were using the services to download copyrighted sound recordings without permission, and a blocking injunction was proportionate in the circumstances.
The claimant record companies (C) sought an injunction requiring the defendant internet service providers (D) to block customers' access to peer-to-peer file-sharing websites.
C were members of the British Recorded Music Industry (BPI) and were acting on behalf of themselves and other members. They owned copyright in a number of recordings which had been downloaded, without permission, by users of three file-sharing websites. The websites were substantial profit-making businesses and operated as BitTorrent indexing websites, providing an organised directory of content which users could download. When users downloaded a file, the BitTorrent software used the information in the torrent file to download the pieces of the content file from the "swarm" of other users. C's expert had monitored the activities of peer-to-peer users in the United Kingdom and notified D of 4,299,992 instances where their services had been used for the illegal downloading of works of BPI members. C applied for an order under the Copyright, Designs and Patents Act 1988 s.97A.
(1) Section 97A empowered the High Court to grant an injunction against a service provider where that service provider had "actual knowledge of another person using their service to infringe copyright". In order for the court to have jurisdiction to make the orders sought, four matters had to be established: that D were service providers; that users and/or operators of the websites infringed copyright; that users and/or operators of the websites used D's services to do that; and that D had actual knowledge of it (see para.21 of judgment). (2) D were clearly service providers, Dramatico Entertainment Ltd v British Sky Broadcasting Ltd  EWHC 1152 (Ch),  3 C.M.L.R. 15 applied (para.22). (3) UK users of the websites who had accounts with D had infringed, and continued to infringe, C's copyrights by copying sound recordings on a large scale without permission. The users of the websites who were uploaders also communicated C's sound recordings to the public because they made the recordings available by electronic transmission in such a way that members of the public could access the recordings at a place and time individually chosen by those members of the public. The recordings were made available to all other users of the websites, a large and indeterminate class of people, without having to purchase them from authorised sources (paras 24, 27, 39, 42). The operators of the websites communicated the recordings to a new public by intervening, in full knowledge of the consequences of their actions, to give others access to C's copyright works, Societa Consortile Fonografici (SCF) v Del Corso (C-135/10)  Bus. L.R. 1870 and Twentieth Century Fox Film Corp v Newzbin Ltd  EWHC 608 (Ch),  E.C.C. 13 applied. The websites were not passive repositories of torrent files. They went to great lengths to facilitate and promote the download of files by their users. The files were conveniently indexed to give the means necessary for users to infringe. Infringement was not merely an inevitable consequence of the provision of the torrent files by the websites, but it was also their objective and intention. They attracted users and benefited from substantial advertising revenues. They had frustrated international investigations, concealed the identities of their operators and evaded copyright enforcement actions. The obvious inference was that those steps were borne out of an awareness of their infringing activities, Dramatico Entertainment Ltd v British Sky Broadcasting Ltd  EWHC 268 (Ch),  3 C.M.L.R. 14 applied. BPI's attempts to secure the co-operation of the operators in the removal of infringing content had proved futile. The operators sanctioned, approved and countenanced the infringement of copyright committed by their users. They were jointly liable for the infringements committed by the users, Football Dataco Ltd v Sportradar GmbH  EWCA Civ 27 considered (paras 45-47, 51-59, 63, 66-70, 74). (4) The court was satisfied, on the evidence, that both users and operators of the websites used D's services as internet service providers to infringe C's copyrights (paras 87-88). (5) D had been told by C's expert that their services were being used for copyright infringement. They had also received notification from BPI and had been served with the evidence in support of C's application. D therefore had actual knowledge that users/operators of the websites used their services to infringe (para.89). (6) D had been the subject of blocking orders in the past, and already had available the technical means of complying with such orders. The cost of compliance was therefore modest. The orders sought by C were proportionate for similar reasons to those given in Twentieth Century Fox Film Corp v British Telecommunications Plc  EWHC 1981 (Ch),  1 All E.R. 806, BT and Sky applied. C's intellectual property rights outweighed the rights of the website users and operators under the Charter of Fundamental Rights of the European Union art.11. They also outweighed D's art.11 rights, to the extent that they were engaged (paras 101-108).
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