The High Court in England has ordered BT, UK’s largest internet service provider (“ISP”), to put measures in place to prevent its users from accessing Newzbin 2, a website that allowed its members to upload and download a wide range of copyright material. This case was bought by Twentieth Century Fox and various other studios (the “Studios”) and is the first decision of its kind in the UK. The Court clearly considered that ISPs may be called upon to assist in bringing IP infringement to an end and was prepared to request ISPs to use existing mechanisms to prevent present and future copyright infringements by its users where they have actual knowledge of such infringements.
Background to the case
The Studios previously succeeded in a copyright infringement claim against Newzbin1, a website, which enabled its members to acquire unlawful copies of material including films, TV programmes and books. The website closed down and reformed itself as Newzbin 2. The operators of the website used pseudonyms and the domain name was registered to an offshore company which meant that the website was outside the jurisdiction of the High Court. In light of this the Studios brought a case against BT alleging that it had ‘actual knowledge’ that its users were infringing IP rights and requested the High Court to order BT to block access to the Newzbin 2 website.
The Studios claimed that it had advised BT of the website and copyright infringing activities months prior to the commencement of the case. The High Court stated that this constituted actual knowledge and ordered BT to put mechanisms in place to block the website.
Analysis
- It is clear that the following factors particular to this case significantly influenced the High Court in reaching its decision
- BT had blocking mechanisms already in place to prevent access by its users to websites that made available child abuse content and it would therefore be feasible for BT to extend such blocking mechanisms to the Newzbin 2 website
- The Studios had already succeeded in a copyright infringement claim against Newzbin1
- The vast majority of content on the Newzbin 2 website was infringing copyright
While this is a welcome decision for copyright holders, it also indicates that a court might not grant a blocking order if it would be unduly burdensome for the ISP. BT left itself open to this decision by implementing a system intended for an entirely different purpose. It is unfortunate but a consequence of the decision is that some ISPs might think twice about implementing a system aimed at blocking content relating to child abuse if those same ISPs could then be obliged to conduct an enforcement role on behalf of copyright owners, which to date is something that has generally been resisted.
Irish Approach
In Ireland a similar blocking order was sought in the UPC case. The High Court noted that Ireland had failed to adequately implement European legislation and that it therefore did not have the power to order ISPs to prevent its users infringing IP rights.
As discussed in a previous article, Regulations have been drafted to fill this gap so that the courts will be able order ISPs to block or direct traffic between internet users that engage in copyright infringement.
Contribuited by David Cullen.
