The UK High Court appears likely to order UK ISPs to block the notorious BitTorrent site, The Pirate Bay. In the just released opinion in the Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Ors  EWHC 268 (Ch) (20 February 2012) case, Justice Arnold ruled that users of the site as well as its operators infringe copyright. Users who download copies of sound recordings violate the right of reproduction. Users who make sound recordings available for downloading make them available to the public and are liable for communicating the sound recordings to the public. The Pirate Bay is liable for authorizing the infringement of its users. It is also liable for infringement based on the accessorial liability theories of joint infringement and inducement.
The court left to a follow up process the question of whether The Pirate Bay would be blocked to UK users. The power of EU courts to make orders requiring service provides to take steps to prevent their systems from being used by third parties to infringe copyright has been available in the EU for over a decade. The experience in the EU shows that this power has been used judiciously balancing the interests of rights holders and service providers and the fundamental rights of users. Based on previous jurisprudence in the UK and elsewhere in the EU, it seems very likely that the UK High Court will make an order blocking or impeding access to The Pirate Bay.
Background to The Pirate bay case
The UK Pirate Bay case involves a claim by record companies against UK retail ISPs who jointly provide Internet connectivity to 94% of UK internet users. The record labels are seeking an injunction pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (the “CDPA”) which implements Article 8(3) of the EU Information Society Directive requiring ISPs to take measures to block or at least impede access by their customers to The Pirate Bay (TPB). The court split the proceeding into two phases. The phase first examined whether users of TPB and TPB infringed the CDPA. The second phase will determine whether and how the TPB should be blocked.
The harm caused by TPB
Considerable evidence about the operations of TPB was put before the court. Some highlights included the following:
- TPB is a very widely-used website. Over 30 million users worldwide use its service. It is the 43rd most popular website in the UK according to the Alexa rankings. According to Comscore measurements, it receives 3,669,050 unique visitors from the UK (8.61% of the worldwide total).
- As for the content that is available on TPB, it is vast in scale. Its index lists 4,021,772 torrent files. Approximately 25.59% of the content is comprised of music (including music videos). Of these, 75.1% of the files chosen are commercially available. An additional 3% are likely to be protected by copyright. Over 1 million “music” torrents are listed on TPB, of which over 750,000 are commercially available. Torrents for 72 of the top 75 albums in the UK chart are available on TPB.
- The operators of TPB “do not operate the website for altruistic reasons”. The website carries click-through advertising. The revenue generated by such advertising, based on “some fairly conservative assumptions”, is in the range US$1.7 to 3 million a month. In addition the operators sell merchandise, the revenue from which is more difficult to estimate.
Infringement by users of TPB
To find that TPB was liable for authorizing infringement, the court had to consider whether UK users of TPB were direct infringers copyright. It was argued they were; first, by reproducing sound recordings; second, by communicating sound recordings to the public. The court had little difficulty finding liability under both theories. According to Justice Arnold:
It is clear that a user of TPB who selects a torrent file in order to obtain a copy of particular content, and then downloads the associated content files, copies the content contained in those files on his or her computer. It follows that, if the content files comprise a copyright work, and if the user does not have licence of the copyright owner, he or she will be infringing copyright.
The court also had little difficulty in finding that users who make files available for sharing over TPB are liable for communicating them to the public. To reach this conclusion, the court made a number of important findings.
- The territorial reach of the CDPA applied to the acts of infringement since UK users were involved as both uploaders and downloaders as part of bitTorrent swarms. It “is immaterial whether the act of communication to the public is committed at the place of origination or the place of reception”.
- Copies of sound recordings are “communicated” to the public. The UK, unlike Canada so far, has implemented the WIPO Internet Treaties making available right. Based on this right, users who make sound recordings available for sharing “make the recordings available by electronic transmission in such a way that members of the public may access the recordings from a place and at a time individually chosen by them”.
- These sound recordings are also made available “to the public” “since copies of the sound recordings are made available to users who have not purchased them from an authorised source.”
Accordingly, the court concluded that UK users of TPB were liable for infringement. In so ruling, the court came to the same conclusion as the Full Court of the Federal Court of Australia, albeit under a slightly different statutory provision, in the Roadshow Films Pty Ltd v iiNet Ltd  FCAFC 23 case.
Infringement by the operators of TPB
The labels also contended that the operators of TPB are liable for infringement of copyright on two bases. First, they authorize infringement. Second, they are jointly liable for the infringements of their UK users under accessorial theories of liability.
UK courts look at a series of factors to determine if a person is liable for authorizing infringement. In the recent case involving the Newzbin file sharing site, Kitchin J summarized the factors UK courts take into account:
In my judgment it is clear from this passage that ‘authorise’ means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances.
Justice Arnold applied these factors and concluded that TPB was liable for authorizing infringement.
The first factor examined was the nature of the relationship between TPB and users. The court found that TPB “provides a sophisticated and user-friendly environment in which its users are able to search for and locate content.” The website organization and the features that are available to users demonstrated is “plainly designed to afford to users of TPB the easiest and most comprehensive service possible.” TPB “is in no sense a passive repository of torrent files; it goes to great lengths to facilitate and promote the download of torrent files by its users.”
The second factor examined was the “means used to infringe”. This factor also pointed to authorization. “The torrent files which are so conveniently indexed, arranged and presented by TPB constitute precisely the means necessary for users to infringe. It is the torrent files which provide the means by which users are able to download the “pieces” of the content files and/or to make them available to others.”
The evidence on the third factor, the Inevitability of infringement, established that “Infringement is not merely an inevitable consequence of the provision of torrent files by TPB. It is the operators of TPB’s objective and intention.”
In examining the degree of control exercised by TPB, the court found thatTPB would be able to prevent infringement of copyright, if its operators wanted to do so. However, even though the site removed torrents if “the name isn’t in accordance with the content” or if they are “child porn, fakes, malware, spam and miscategorised torrents”, as a matter of policy, “the rights of copyright owners are excluded from the criteria by which the operators of TPB choose to exercise this power.” The court also found that TPB took no stepsto prevent infringement even though they had the power to do so. “On the contrary…they actively encourage it and treat any attempts to prevent it (judicial or otherwise) with contempt.”
Based on the following the court came to the conclusion that the operators of TPB authorized infringement.
In my judgment, the operators of TPB do authorise its users’ infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they “sanction, approve and countenance” the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v bin in this respect. If anything, it is a stronger case.
The same factors lead the court to find the operators of TPB liable on accessorial liability principles. According to the court “the operators of TPB induce, incite or persuade its users to commit infringements of copyright, and that they and the users act pursuant to a common design to infringe. It is also relevant in this regard that the operators profit from their activities. Thus they are jointly liable for the infringements committed by users.”
Will the UK High Court block TPB?
The findings of the court make it very likely that it will order UK ISPs to take steps to block or impede access to TPB. As noted above, the UK has implemented Article 8(3) of the Information Society Directive. This gives the court the power to make orders blocking access to pirate web sites by using various means including IP address and URL blocking. UK courts have used this jurisdiction in other cases. For example, in the Twentieth Century Fox Film Corp v British Telecommunications plc  EWHC 1981, case, the High Court found it appropriate to make a blocking order against British Telecom with respect to the file sharing website Newzbin2. In a later case, Twentieth Century Fox Film Corp v British Telecommunications plc (No 2)  EWHC 2714 the court made a similar order against Sky Broadband. A similar order was made against the ISP TalkTalk.
Other EU member states have used the same jurisdiction conferred by Article 8(3), as implemented into local law, to make similar orders including to block or impede access to TPB to users of those countries. For example, courts in Denmark, Italy, Netherlands, Finland, Sweden and Belgium have all made such orders. The EU courts have recognized that blocking orders can play a crucial role in protecting domestic markets by preventing or impeding users from accessing a foreign file sharing site.
Based on these precedents the question that the UK High Court will most likely have to decide is not whether ISPs should be ordered to block TPB. The question will be what technical means should be used to accomplish this objective.
When courts make blocking orders
Some Internet activists have argued that if courts make orders blocking access to pirate web sites such as The Pirate Bay this action would “break the Internet” and impinge on freedoms of speech. They suggest that the courts should not begin to make these orders to avoid these consequences. These arguments were ratcheted up over the unpopular US Congressional legislation called SOPA. Lost in the debates about SOPA were some key facts including that different forms of site blocking are already in use for many purposes besides enforcing copyrights and that the jurisdiction to make these kinds of orders in copyright cases has been available and used frequently in the EU for over a decade, all without “breaking the Internet”.1
Many forms of website blocking are already in use around the world including in Canada, the United Kingdom, Japan, Australia, Austria, France, and Norway for a range of purposes. For example, it has been used for blocking spam and protecting users from malware and child pornography. As indicated above, courts in the EU have also ordered ISPs to use a variety of blocking measures to protect domestic markets from foreign pirate sites and to enforce orders for injunctive relief against infringers. In theTwentieth Century Fox Film Corp & Ors v British Telecommunications Plccase, the court noted that British Telecom was already using a system known as Cleanfeed as a blocking means to screen out child pornography sites.
In the EU, courts exercising their discretion as to whether to make a site blocking or other order to stop third parties from using service providers’ facilities to infringe copyright require the court to take into account the interests of all concerned. For example, in the EU the protection of the right to intellectual property is enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Under EU law, there is an obligation to protect intellectual property and to provide rights that confer effective remedies.2 However, EU courts recognize that the right to the protection of intellectual property rights is not inviolable and must be balanced against other rights including those of service providers and the fundamental rights of users.
In accordance with these principles and as noted above, EU courts have issued blocking orders against TPB and sites like TPB. A Belgium Appellant Court recently made a blocking order with respect to TPB expressly ruling that DNS-blocking is no limitation on the freedom of speech or on other fundamental rights. This holding is consistent with laws around the world including in Canada and the US which recognize that laws which protect and provide remedies for copyright infringement do not violate fundamental rights such as the fundamental rights enshrined in the Canadian Charter of Rights and Freedoms3 and the US First Amendment.4 Far from being acts labelled by Internet activists as “censorship”, copyright “is an “engine of free expression” that by “establishing a marketable right to the use of one’s expression…supplies the economic incentive to create and disseminate ideas.”5
In spite of these reasons to protect copyright, courts in the EU still balance the rights of service providers and fundamental rights of users in deciding whether to make orders under Article 8(3) of the Information Society Directive. For example, the European Court of Justice in the Scarlet Extended SA v SABAM (ECJ Case C-70/10) 24 November, 2011 case rejected a request for an injunction against an ISP requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software with a view to blocking the transfer of files the sharing of which infringes copyright. In order to protect the rights of service providers and the fundamental freedoms of individuals, the Court in the Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, Case C‑360/10, 16 February 2012 case recently made a similar ruling precluding courts from granting filtering orders against social media sites which would require them to install systems for filtering all files hosted on their networks to prevent infringements of copyright.
The EU model which considers the interests of all stakeholders including service providers and individuals in deciding whether to make blocking or other orders to stop or impede infringements, shows that a balanced approach is possible. It appears very probable, however, that the UK courts will make some kind of order to block or impede access to TPB when the matter comes back before the court. Without this kind of order, it would be hard to keep The Pirate Bay at bay.
1 For a discussion of the technical effects of blocking orders, see, for example: Daniel Castro, PIPA/SOPA: Responding to Critics and Finding a Path Forward (containing a rebuttal to the objections raised against SOPA/PIPA in respect of DNS filtering); George Ou, DNS Filtering is Essential to the Internet (countering the argument that SOPA/PIPA would impede the implementation of DNSSEC); George Ou, My DNS Filtering Research before House SOPA Panel (arguing that speculation of DNS fracturing has been proven wrong by real-world examples); Paul Vixie, COICA and Secure DNS (agreeing that DNS filtering is a valid technical solution which presents no real threat to DNSSEC); ITIF Comments on PIPA/SOPA Developments (arguing that technical measures proposed by PIPA and SOPA do not threaten cybersecurity and that objections to DNS filtering depend on contrived scenarios and dubious assumptions about user behavior); and Ofcom, ’Site blocking’ to reduce online copyright infringement” (considering several different methods of site blocking, including DNS filtering, deep packet inspection (DPI), and URL or IP blocking).
2 British Telecommunications plc) v Secretary of State for Business, Innovation and Skills  EWHC 1021 (Admin), Productores de Música de España (Promusicae) v Telefónica de España SAU Case C-275/06 29 January 2008, Scarlet Extended SA v SABAM , (ECJ Case C-70/10) 24 November, 2011, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, Case C‑360/10, 16 February 2012
3 See, Compagnie Générale des Établissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),  2 F.C. 306 (Fed.T.D.), Drolet v. Stiftung Gralsbotschaft, 2009 FC 17, Fraser Health Authority v. Hospital Employees’ Union, 2003 BCSC 807.
4 See, for example, Harper & Row and Eldred where the US Supreme Court ruled that copyright restrictions do no violate the First Amendment, but rather promote and nurture free speech. See also the opinion of Floyd Abrams, one of the leading US First Amendment experts rebutting the argument that providing a means to block rogue websites would violate US First Amendment rights.
5 See, the US Supreme Court opinion in Golan v Holder.