Popcorn But No Blockbuster

April 28, 2015

In {i}Twentieth Century Fox Film Corporation & Ors v Sky UK Ltd & Ors{/i} {[2015] EWHC 1082 (Ch): http://www.bailii.org/ew/cases/EWHC/Ch/2015/1082.html} Mr Justice Birss made yet another website blocking order. It was the usual story – applications made on behalf of members of the Motion Picture Association of America Inc against the UK’s leading ISPs, who did not oppose the applications for orders under s 97A of the Copyright, Designs and Patents Act 1988 . What made this one different was that it blocked application download sites – five sites which neither host nor communicate material in breach of copyright.

Those sites, although varying by degrees, were sources of open source applications which a user can download and which enable a user to obtain film and TV content using the BitTorrent protocol. The application operates as a Bittorrent client but with the addition of media player software, an index/catalogue of titles and images and descriptions of titles. Popcorn Time is the leading application of this type and Birss J used that term as shorthand to cover the group of websites of that kind. A Popcorn Time application is usually free to download and, once the user has downloaded the Popcorn Time application, he or she has no need to return to that website but can pick up high profile content in the comfort of their home – cocking a snook at copyright laws while no doubt eating popcorn.

I want to make it clear that I have no real problem with the order made by Birss J; indeed, he is something of a hero in this short tale. As he said (at [66]):
‘The point of Popcorn Time is to infringe copyright. The Popcorn Time application has no legitimate purpose. It is a proper use of the court’s power under s 97A both to seek to prevent its dissemination and to seek to interfere with its operation.’

But the events that led to that conclusion are a little worrying.

So workaday are website blocking orders now that applications for them are dealt with on the papers. Normally, the representatives of the MPAA put together a case which shows evidence that a site is being used to host infringing material. An application is then made, served on the ISPs and a box is ticked asking that the case is dealt with on the papers. That is not by any means as trivial a process as I have made it sound – in this case, which involved applications relating to nine sites, the application was supported by detailed evidence running to six lever arch files. Since the ISPs are the nominal defendants and their stance is not to oppose such applications, that is virtually the end of the matter. There is no hearing. An order is made. In due course, users of the infringing sites click and discover that they cannot access the sites any more. Justice is done but, so the theory goes, it is a private matter and it doesn’t need to be seen to be done.

What makes Mr Justice Birss the hero of this tale is that he spotted that the applications relating to the Popcorn-type sites were not standard at all. He made it clear (at [15]) that the claimants should have applied for a hearing in the first place and should not have sought an order based on the papers. Birss J insisted on a hearing and analysed the application properly when, without his intervention, it would have glided through.

He found that the restriction sought required a different justification because the Popcorn-type sites neither communicated copyright works nor, on the evidence, authorised copyright infringement: He stated (at [38]):
‘I cannot see how the operator of the PTAS website commits an act of communicating copyright works to the public. The PTAS site simply does not communicate any copyright works to anybody. There is no transmission (or retransmission) of the copyright work at all. What the PTAS site makes available is a tool. The tool is the Popcorn Time application. From the point of view of the user, the PTAS site is not the place at which they encounter a catalogue or index of content. It is the Popcorn Time application, when running on the user’s computer, that provides catalogued and indexed connections to the sources of infringing copies of the claimants’ copyright works. The operators of the PTAS sites are facilitating the making available of the content by providing this tool but that is a different matter. In my judgment the scope of the act of communication to the public cannot be stretched as far as to cover the operation of a site which simply makes the Popcorn Time application itself available for download.’

Mr Justice Birss was however able to find that the operators of the Popcorn-type sites were joint tortfeasors and that was sufficient hook for a blocking order, saying (at [55]):
‘The Popcorn Time application is the key means which procures and induces the user to access the host website and therefore causes the infringing communications to occur. The suppliers of Popcorn Time plainly know and intend that to be the case. They provide the software and provide the information to keep the indexes up to date. I find that the suppliers of Popcorn Time have a common design with the operators of the host websites to secure the communication to the public of the claimants’ protected works, thereby infringing copyright.’

{b}The Real Worry{/b}

Despite the fact that the Popcorn result seems fair enough, there are nagging concerns about process. I am struck by a parallel with the numerous SIs that affect road closures. There were 14 published on 23 April including ‘The A66 Trunk Road (Briery Bridge to Storms Farm Underpass) (Temporary Prohibition and Restriction of Traffic) Order 2015’. These petty interferences with our rights of way require an order of Parliament (well, sort of) and are published. But many interferences with our rights of way on the Internet are by way of applications on the papers and what the Popcorn case highlights is that there is a drip effect and Internet rights of way may drain away.

Is it fanciful to draw comparisons between the old twin cassette decks and Popcorn? Actually, it is a little fanciful. But there is a nagging fear that insufficient light is being shed on these applications and that the ISPs ‘neutrality’ means that our processes, which rely on an adversarial system, are not really well suited to the job.

If I may be allowed a moment of pre-election fantasy (though the supplies of such fantasies are being hogged by leading politicians), it would be nice if the next government thought through the mechanisms for control of the Internet, without being obsessed with threats. The next government might do well to consider making sure that restrictions that affect thousands of Internet users are at least as transparent as those affecting the users of the Storms Farm Underpass. I am not advocating yet more SIs (God forbid) but a rule change that enhances transparency.

And, since I am in fantasy mode, I’d like to see the ISPs evaluate these applications in the meantime rather than nodding along to each and every one.