UK High Court issues a new set of simplified blocking orders against pirate website

In a decision released on 28 February 2013, the UK High Court of Justice ordered the six main retail Internet Service Providers in the UK (BskyB, British Telecom, Everything everywhere, Talk Talk, Telefonica and Virgin Media – covering more than 94% of the UK internet users) to block access to three of the most popular peer-to-peer file sharing websites, namely H33T, Fenopy and Kat, all based outside the UK.

This injunction was based on section 97A of the 1988 Act allowing the High Court “to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright”. In order to use this provision, the court had however to find that (1) the users and peer-to-peer platforms had used the ISPs’ services to infringe the claimants’ copyright and (2) that the ISP had knowledge of this situation.

The court first ruled that both the users of the peer-to-peer platforms and the operators of these platforms had engaged in copyright infringement.

As for the users, the court held that they had engaged in infringement by (1) selecting and downloading (copying) on their computers particular torrent files and (2) communicating to the public particular copyrighted content without the authorization of the copyright owners.

As for the operators of the peer-to-peer platforms, the court held that they had engaged into infringement by (1) communicating copyright works to the public without authorization of the right owners (based on the active role they play in the transmission), (2) authorizing such transmission (implementation of a user-friendly environment to locate copyrighted content, indexation of such content, etc.) and (3) aiding and abetting users to infringe.

The court thus concluded that the services of the defendants, used by both the peer-to-peer platforms and their users to access and transmit unauthorized copyrighted content over the Internet had been used to infringe copyright.

The court then determined that the ISPs had been made aware of this situation by weekly notifications from the copyright owners.

The court finally found that the blocking order requested in this case was proportional in view of (1) the extent of the copyright infringement enabled by these websites and (2) the nature of the peer-to-peer websites, whose operators “are profiting from infringement on an industrial scale”. [Béatrice Martinet Farano]

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