Pirates' block? Courts get tough on BitTorrent Brigands
Readers of the 1709 Blog will already know of today's decision of Mr Justice Arnold (Chancery Division, England and Wales) in Dramatico Entertainment Ltd & others v British Sky Broadcasting Ltd & others [2012] EWHC 268 (Ch). This blogger still hasn't yet had a chance to read the decision in full, but has at least had a small chance to sample it. The action is explained thus:
While we're on the subject, a few days ago the IPKat had the good fortune to receive an email from his friend Joris van Manen (a partner in the Amsterdam office of Hoyng Monegier), who drew his attention to this interesting judgment of the Court in The Hague which is about, quite coincidentally, the power to block subscriber access to The Pirate Bay. As Joris helpfully observes, there are some interesting paragraphs about Article 11 of the Enforcement Directive, not to mention some tasty snippets on the Copyright Directive, freedom of speech, net neutrality and provider liability. Joris is naturally far too modest to mention that he acted on behalf of the plaintiff BREIN -- an organisation representing the film, music, games and publishing industries.
"6. In the present case ... the Claimants [rights owners] have not brought proceedings for copyright infringement against the operators of TPB [= The Pirate Bay, which facilitates BitTorrent file-sharing] in this jurisdiction, although both civil and criminal proceedings have been brought in a number of other jurisdictions. Accordingly, the Claimants and the Defendants [internet service providers through which file-sharers gain access to TPB] agreed to a consent order made by Henderson J on 20 January 2012 directing the trial of two preliminary issues, namely whether on the evidence before the Court, (i) users and (ii) the operators of TPB infringe the Claimants' copyrights in the UK. The remaining issues raised by the claim were left to be dealt with at a second hearing if the Claimants prevailed on either or both of the preliminary issues....
7. Understandably, the Defendants did not choose to appear or be represented at the trial of the preliminary issues. I was informed by counsel for the Claimants that the Defendants' position is that it is not for the Defendants to decide whether or not users or the operators of TPB infringe the Claimants' rights, but for the Court to do so. Be that as it may, I have considered the Claimants' contentions with care to see if they are made out on the evidence and the law".What was the outcome? Following a thorough summary of the technologies involved, the problems of dealing with an entity such as the PTB, and the international and national provisions of applicable law, Arnold J came down in favour of the unopposed rights holders. This is how Music Week reported the ruling:
"The UK record industry has today claimed a major victory in its fight against the Pirate Bay - with the High Court recognising that the site's owners and users are operating illegally.
Claimants represented by the BPI - including Dramatico, EMI, Polydor, Rough Trade and Warner - argued that the UK's leading six Internet Service Providers should block the filesharing site. Defendants including BT, TalkTalk, Sky and Virgin Media did not attend the hearing and were not represented.
In a written [84 paragraph] judgment handed down earlier today, Mr Justice Arnold ruled that "both users and the operators of TPB infringe the copyrights of the Claimants (and those they represent) in the UK". He added [in paragraph 81]:
"In my judgment, the operators of TPB do authorise its users' infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they 'sanction, approve and countenance' the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v Newzbin [here] in this respect. If anything, it is a stronger case". ...A further hearing is now set for in June to decide which ISPs should block the site, and how".
