Online Copyright Infringement: Twentieth Century Fox v BT

In the test case heard by The Hon Mr Justice Arnold only in late June, he has produced a ground-breaking judgment within the month (published on 28 July). He grants an injunction to the applicants (various representative members of the Motion Picture Association of America) and requires BT to put in place blocking technology directed to the Newzbin web sites. 

The full judgment in Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch) is now available on bailii here.

The case is concerned with the legal remedies that can be obtained to combat online copyright infringement. The applicants are six film production companies or studios (20^th Century Fox, Universal, Warner Bros, Paramount, Disney and Columbia Pictures: ‘the Studios’). The application was brought in a representative capacity on behalf of all group companies of the Studios that are owners or exclusive licensees of copyrights in films and television programmes. The application was for an injunction against BT pursuant to the CDPA 1988, s 97A, intended to block or at least impede access by BT’s subscribers to a web site currently located at www.newzbin.com (“the Newzbin2 website” or just “Newzbin2”). The Studios regard this as a test case and intend to seek similar orders against all the other significant ISPs in the UK. The other ISPs were informed of the present application in case they wished to intervene, but have not done so.

The application was a sequel to a successful claim for copyright infringement brought by the Studios against Newzbin Ltd, which formerly operated an almost identical website located at the same URL (“the Newzbin1 website”). Newzbin Ltd was found by Kitchin J to have infringed the Studios’ copyrights on a large scale (see Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch)). He granted an injunction against Newzbin Ltd to restrain further infringements of the Studios’ copyrights. Subsequently the Newzbin1 web site ceased operation but the Newzbin2 site commenced operation at the same location and operates in essentially the same manner as its predecessor. The operators of the Newzbin2 website are unknown, but the operation appears to have moved offshore and effectively beyond the reach of court proceedings. The Studios contend that the only way in which they can obtain effective relief to prevent, or at least reduce the scale of, these infringements of their copyrights is by means of an order against BT (and thereafter the other ISPs).

The draft order sought was as follows:

1. “1. The Respondent shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:

(i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.

(ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.

2. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.

3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses).”

The judgment of Arnold J (204 paragraphs of it) involves a careful tour of all the related legal landmarks in this area, with a tour guide learned in both European and UK history. Both the Digital Economy Act and the ECJ judgment in L’Oreal v eBay are covered.