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JULY 2011

The Motion Picture Association (MPA), which represents a number of Hollywood film studios, has been successful in its application to the High Court to prevent BT from allowing its ISP customers to access the Newzbin2 website.  The landmark judgment was handed down on 28 July 2011 by Mr Justice Arnold. The MPA argued that the Newzbin2 site contains links to hundreds of unlicensed movies.  The economic impact of online piracy to the film industry is reported to run into hundreds of millions of pounds.

 
The MPA’s action was the latest instalment of a long-running saga in which Hollywood rights holders have tried to enforce the UK copyright laws to prevent online piracy. 

 
In 2010, Newzbin (as it then was) was found by the High Court to have allowed its customers to download movies protected by copyright, in breach of Twentieth Century Fox’s copyright.  As a consequence of the High Court’s judgment, Newzbin went into liquidation and its website was shut down.  However, within a matter of weeks, Newzbin appeared to be resurrected as an off-shore company outside of the UK’s jurisdiction with a new website and name “Newzbin2”. 

Twentieth Century Fox’s action therefore seems to have been ineffective in preventing copyright infringement.  In response, the MPA changed tack and brought an action against the ISP, in this instance BT, in an attempt to cut off the lifeline to Newzbin2.  The MPA argued that BT should use BT’s Cleanfeed software (designed to block websites hosting child pornography) to stop users from accessing the Newzbin2 website. 

The MPA relied upon section 97A of the Copyright, Designs and Patents Act 1988 (CDPA), under which the court has the power to grant an injunction against an ISP where it has actual knowledge of a third party using its service to infringe copyright.  The legal arguments focused on what amounts to “actual knowledge” of copyright infringement.  The MPA’s position was that BT clearly has knowledge of infringing activity by Newzbin2, particularly given the 2010 judgment against Newzbin.  On the other hand, BT argued that it must have notice of specific infringing content and that the terms of the proposed injunction (blocking the entire Newzbin2 site, not just the allegedly infringing parts), were too broad.

Mr Justice Arnold agreed with the MPA and found that “BT has actual knowledge of other persons using its service to infringe copyright”, rejecting BT’s assertion that actual knowledge of a particular infringement was required.  Consequently, BT has been ordered to use its existing Cleanfeed software to block its customers access to Newzbin2.  Whether Cleanfeed will be successful in providing a filter of this magnitude is open to question.

Following the MPA’s successful application, other ISPs will be under considerable pressure to block access to websites that allegedly carry out infringing activity.  Thus the implications of the judgment will be very significant. 

 
Additionally, the judgment makes clear that section 97A CDPA should not be interpreted with reference to section 17 (the web blocking provision) of the Digital Economy Act 2010 (DEA).   Section 17 of the DEA may make it easier for rights holders to obtain injunctions preventing access to infringing websites.  Mr Justice Arnold states that the DEA has “a different genesis and a different reach” from the CDPA.  It therefore remains to be seen how the DEA, when it is fully implemented, will be interpreted.  The implementation of the DEA was effectively put on hold pending the outcome of another case involving BT and TalkTalk in which they challenged its validity; that challenge has recently failed.

If you would like any further information about the issues raised in this article please contact Paul Herbert (pherbert@gdlaw.co.uk) or any other member of the Goodman Derrick LLP’s media team on 0207 404 0606.

This guide is for general information and interest only and should not be relied upon as provoding specific legal advice