UK: Twentieth Century Fox Film Corp v BT - The Game Changer

Last Updated: 18 August 2011
Article by Douglas McLachlan

The English High Court's ruling that BT, the UK's largest internet service provider ("ISP"), must block access to the Newzbin website has fundamentally changed the game in the ongoing legal battle against online copyright infringement, but it may have unintended consequences.

The problem of online copyright infringement

Online copyright infringement has been a major headache for the film, television, music and gaming industries. Advances in computer and telecommunications technology have largely outpaced the business models of firm in these sectors. Although the legal online download market can no longer be said to be embryonic, it was slow to get started. And, of course, the illegal download market has a very attractive business proposition that's very hard to compete with: it's free.

A study by Ipsos MediaCAT in April 2010 analysing the scale of film and television piracy in the UK in 2009 estimated the overall loss from film piracy at £477 Million and the overall loss from television piracy at £58 Million. Another study by Tera Consultants dated March 2010 estimated the audio and audiovisual industries were losing 670 Million Euros in revenues from physical and digital piracy, and concluded that most of that was from digital piracy. That said, it's very hard to quantify the size of these illegal markets with any degree of statistical accuracy. The one thing that everyone can agree on, however, is that it's a serious problem.

Finding the right pressure points

Lawyers too have had trouble keeping up. Despite the many arguments and excuses of the end users of illegal download services such as Newzbin ("If I like a movie, I tend to buy it on DVD later"), it's always been very clear that downloading copyright material through via these services amounts to copyright infringement. However, it's been very difficult to track down and then tackle the end users directly. Those who have encounter difficulties in proving that the person alleged to have carried out the downloading (or uploading) actually did the deed ("Maybe someone used my unsecured WiFi connection?"). And although a police raid and seizure of the PC in question would almost certainly settle the question once and for all, it all seems a bit heavy handed and is, ultimately, an inefficient method of tackling what has become a very widespread practice.

The Lawyers then moved up the chain to the illegal download services themselves. Again, brushing aside arguments as to whether these services actually do anything other than act as search engines for peer to peer file sharing (Newzbin doesn't actually make anything available for download itself, it just acts as a Usenet matchmaking service that pairs a downloader with an uploader for a particular file), the Lawyers found that while they could knock these services down, it is very difficult to get them to stay down.

The predecessor to the present case illustrates the issue perfectly: In Twentieth Century Fox v Newzbin, the film Studios obtained injunctions against Newzbin Limited restraining infringement of the copyrights in the Studios' catalogue. The Court made orders for an inquiry into damages, ruled that Newzbin Limited should pay the Studios' costs on an indemnity basis and ordered Newzbin limited to pay the sum of £230,000 on account of those costs.

Success? Well, not quite. Shortly after that Newzbin Limited went into voluntary liquidation and although the Newzbin website ceased operating shortly after 17 May 2010, it was reincarnated in almost identical form as Newzbin2 just over one week later.

Clearly, litigating against the illegal download services themselves is an expensive version of the game Whack-A-Mole. Hit one service, and another one pops up almost instantly.

The Game Changer - Hit the ISPs

The solution the Lawyers have come to is adopt an indirect approach: hit the ISPs (such as BT) that facilitate the internet.

This is the game changer.

ISPs have the technical means at their disposal to block domain names, IP addresses and URLs. Effectively, they can "turn off" the download service. BT already does this to block child pornography on the internet using a technology called Cleanfeed. As part of a self regulation system that has been in operation since 1996, the Internet Watch Foundation (IWF) operates a hotline service to allow the public and IT professionals to report criminally obscene content and when the IWF reports the content to BT, it is blocked using Cleanfeed.

The Studios have all made it clear that the recent case against BT was a test case, and that they now intend to seek similar orders against all significant ISPs in the UK. The proposal now is for BT and the other ISPs to block online copyright infringers using the same technology.

The Danger

That approach is not without its risks. Systems such as Cleanfeed have been very effective in blocking access to child pornography on the internet. Even the most radical free internet advocate must surely agree: that is a good thing!

The danger is that the very technically adept file sharers out there, who collaboratively wrote the innovative code that made Usenet file sharing systems such as Newzbin possible, might now turn their talents to circumventing systems such as Cleanfeed. If that happens (and there's no reason to think it won't) it may mean that those systems become far less effective at blocking access to criminal material on the internet.

One cannot avoid agreeing with Professor Hargreaves, the author of the recent report commissioned by the Prime Minister, Digital Opportunity: A Review of Intellectual Property & Growth (May 2011) that the solution is neither purely legal nor purely technical when he concluded that "we need a combination of enforcement, education and a big push to expand the legitimate market for digital content."

Change or no change, the game looks set to go on.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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