ISP ordered to block access to file-sharing website

The High Court's decision in Twentieth Century Fox v BT

The High Court has ruled, in the first decision of its kind in England, that BT must block access to a file-sharing website (Newzbin2). The action was brought as a representative action by a number of film studios seeking to enforce indirectly the copyright they owned in the works which were being shared. Direct action against the website's operators was impracticable as they were unknown and its servers were outside the jurisdiction. BT, as the UK's most popular ISP, was the next best target.

Background

Newzbin2 is the successor site to the Newzbin site shut down as a result of a High Court ruling at the end of last year. That decision held that Newzbin infringed film studios' copyright on a large scale (see here). The Newzbin sites used the Usenet system to enable their users to share and access thousands of works protected by copyright, largely films and TV programmes but also music, books, video games and more. UK Copyright legislation (s97A CDPA) enables the High Court to grant injunctions against service providers (e.g. ISPs such as BT) "where that service provider has actual knowledge of another person using their service to infringe copyright".

The judgment

The High Court (Mr Justice Arnold) found that BT had actual knowledge of other persons (i.e. the users and operators of Newzbin2) using its service (i.e. internet access) to infringe the claimants' and others' copyright.

There was actual knowledge because (i) of last year's judgment finding that Newzbin was infringing copyright on a large scale, (ii) the vast majority of content on the website (shown to be over 90%) was highly likely to be protected by copyright and present without the consent of the rights holders, and (iii) it was probable that a substantial number of BT subscribers were members of Newzbin2 and would use the service to receive infringing copies.

BT argued that Newzbin2's users and operators were not using its service to infringe copyright. This argument was rejected. As BT provided users access to the internet (i.e. making it possible for unauthorised material to be transmitted between users and third parties), Newzbin2's users used BT's service to infringe copyright. As Newzbin2 were authorising and jointly liable for users' infringements and the users were using BT's service to infringe, so was Newzbin2. Similarly, as Newzbin2 was communicating works to the public, it was also using BT's service to commit that infringement.

We discuss some of the key parts of the judgment in more detail in the attached.

Lawyers Niri Shanmuganathan, Adam Rendle