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His Honour Mr Justice Arnold has ruled in favour of a number of
British record companies and ordered the UK's six main Internet
Service Providers (ISPs) to block access to the file-sharing
website called Pirate Bay.
The Claim
All nine claimants in the action were record companies, who
owned the copyright in a large number of sound recordings.
Proceedings were brought against six of the country's main ISPs
for an injunction under s.97A of the Copyright, Designs and Patents
Act 1988 (the "CDPA"), which provides that the High Court
has the power to grant an injunction against a service provider,
where that service provider has actual knowledge of another person
using their service to infringe copyright. The claimants sought an
order requiring the ISPs to block or otherwise impede access to the
Pirate Bay website.
Infringements by Pirate Bay users and operators
As a preliminary issue, Arnold J found in February that both the
users and operators of the Pirate Bay website (none of whom were
party to the proceedings) infringed copyright owned by the
claimants.
Users were found to be copying the copyright works in breach of
s.17 of the CDPA. They were also found to be in breach of s.20
CDPA, which prohibits communication of the work to the public.
Arnold J said that it was unclear whether communication to the
public occurred when users uploaded or downloaded music, but in
this instance, it was not necessary to consider that question as
there was evidence that Pirate Bay users both uploaded and
downloaded music.
Arnold J found that the operators of Pirate Bay had a clear
objective and intention to infringe copyright and had the means and
control over the website in order to be able to prevent
infringement, but chose not to. Their actions went far beyond
enabling and assisting. Their conduct amounted to authorisation of
its users copyright infringement and communication to the public
contrary to s.16(2) of the CDPA. The operators of the Pirate Bay
website were also held to be jointly liable for the infringements
committed by its users.
Proportionality of the orders made
In making orders against the defendants, Arnold J was obliged to
consider the proportionality of remedies for the infringement of
intellectual property rights (under Article 3(2) of the European
Parliament and Council Directive 2004/48/EC).
In this instance, following Arnold J's decision on
infringement, the terms of the orders had been negotiated and
agreed between the claimants and the defendants, all of whom were
professionally represented, and so it was assumed by the Court that
the orders were proportionate between the parties.
Nonetheless, Arnold J noted that it was also necessary for the
Court to consider if the orders were proportional as between the
record companies and the users of the ISP's services. He held
that they were proportionate, on similar grounds to those in the
earlier case of 20C Fox v BT [2011] EWHC 1981 (Ch)
(concerning the blocking of the Newzbin file sharing website), in
which Arnold J found that the rights of Claimant under Article 1 of
the First Protocol to the European Convention on Human Rights
(which provides that every person is entitled to the peaceful
enjoyment of his possessions) outweighed the individual user's
right to freedom on expression under Article 10 ECHR.
Technological measures
The terms of the orders took into account the technological
measures available to the ISPs. In 20C Fox v BT the orders
required the use of BT's "cleanfeed" system
(developed to block access to child pornography) to prevent access
to the Newzbin website. It was pointed out, however, in a report
submitted to the Court in these proceedings that this system could
be circumvented. As a result, the orders agreed required the ISPs
to use IP address blocking to prevent access to the Pirate Bay
website.
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