The High Court has ruled in the cases of Young Turks Recordings Ltd & Ors v British Telecommunications plc & Others [2021] EWHC 410 (Ch) and Capitol Records & Ors v British Telecommunications plc & Others [2021] EWHC 409 (Ch) that the operators and users of two of the world’s biggest “streamripping” websites and a major “cyberlocker” website infringed sound recording copyrights. The court issued orders requiring the six main UK ISPs to block access to the sites under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA). The cases involved the same defendant ISPs and were dealt with by the same judge.
“Stream ripping” is the “ripping” of audio files used with music videos that are offered on streaming services, for example, YouTube.
Cyberlockers encourage and reward users for uploading infringing material and unlawfully sharing links to it. They are file storage sites which make available unlicensed commercial content, including music files, by allowing users to upload and download unlicensed content to and from its servers.
The defendant ISPs were relevant service providers under regulation 2 of the Electronic Commerce (EC Directive) Regulation 2002 (SI 2002/2013) and under section 97A of the CDPA.
Communication to the public
In both cases, the court considered the position under EU law and decided that the Advocate General’s opinion in Joined Cases C-682/18 and 693/18 (in which the Advocate General said that an operator did not communicate works on its server if it did not actively intervene by selecting the content transmitted, did not determine that content and did not in some other way present it as its own), was unlikely to be followed. The court ruled that the current legal position as set out in Stichting Brein v Ziggo BV and others (Case C-610/15) is that operation of peer to peer indexation and search sites can constitute copyright-infringing communication to public.
The Young Turks case
The claimant record companies and fellow BPI members sought an order under section 97A of the CDPA and section 37 of the Senior Courts Act 1981 against the defendant ISPs, requiring them to take measures to block their subscribers’ access to certain websites. The claimants argued that the website operators were directly infringing and/or jointly and severally liable for the infringement of copyrights owned by/exclusively licensed to BPI members. The claimants also said that the infringement they alleged involved wholesale circumvention of technological protection measures (TPMs). The websites carried out stream ripping.
The sites included terms of use which purported to make users responsible for material they downloaded through the site, a purported prohibition on infringing copyright and a purported Digital Millennium Copyright Act Notice. However, the court was satisfied that this was that this was window dressing.
The court ruled that the websites were designed to provide a service which enabled users to make infringing copies. The whole purpose of the technology they provided was to circumvent the copyright-protecting safeguards built into the streaming services. Second, the service was provided in a user-friendly fashion. Third, users had access to massive amounts of protected, commercial, material. Fourth, the greater the amount of activity on the websites and accompanying app the greater the prospect of profits (through advertising and payment for conversions). Fifth, the steps taken by the websites to prevent copying of infringing content were wholly inadequate. The operators had clearly not adopted an effective policy to prevent copying of protected content. Sixth, the ownership and control of the websites was deliberately obscure and confusing which led to an inference they wished to avoid protective steps being taken by commercial rights holders. In light of this, the court was satisfied that the websites had authorised infringing copying of the claimants’ copyright material.
The operators of the websites had induced, incited or procured users of the website to commit infringements of copyright (profiting from so doing) and that they and the users acted pursuant to a common design to infringe. The operators were therefore jointly liable for the infringements committed by users. Such joint liability arose both by from the operation of the stream ripping service on the websites themselves (including via sites which provided back-end services) and by the reason of the provision of the accompanying app.
The Capitol Records case
The claimant record companies sought an order under section 97A of the CDPA against the ISPs requiring them to take measures to block their subscribers’ access to the website nitroflare.com. The claimants contended that the cyberlocker website was being used to infringe record companies’ copyrights on a large scale.
The court found that there had been copyright infringement by uploading UK site users communicating works to the public, and by downloading UK users making copies of works. The operators of the site had also infringed copyright by communicating copyright works to the public without licence and authorising copyright infringement. There were also liable as joint tortfeasors with infringing users.
The court said that the website had features which showed that it was deliberately structured to induce users to upload commercial content. Users were offered a financial incentive to upload popular content which large numbers of other users were likely to wish to download. This was most likely to consist of commercial content likely to be subject to copyright. Second, the service was provided in a user-friendly fashion. It was free of charge; it effectively allowed unlimited capacity; and gave uploading users the ability to promote their own uploads by providing them with links which they could supply to others. Third, once content had been uploaded it was freely available to users. There was no restriction (e.g. by password protection) on site-users’ access.
Fourthly, the reach of the website was amplified by the referrer sites. Fifth, the evidence showed that very large amounts of protected content were available for download from the website; and that commercial material accounted for the vast majority of content on the website. The judge pointed out that this was not accidental: the website was designed and structured to facilitate the sharing of commercial (and therefore, probably protected) content.
Sixth, the greater the amount of popular, commercial, content on the website available for downloading, the greater the prospects of profits for the operator (through advertising and subscriptions). Seventh, the steps taken by the website to remove infringing content were wholly inadequate. The operator had clearly not adopted an effective policy to remove copyright protected content. The court said that the reasonable inference from this was that it would be contrary to the operator’s financial interests to do so. The website did not merely make available the means of infringement; it thrived on infringement.
The court was satisfied that the operators of the website had induced, incited or procured users of the website to commit infringements of copyright (profiting from so doing) and that they and the users acted pursuant to a common design to infringe. The operators were therefore jointly liable for the infringements committed by users.
In both cases the court considered that a ISP blocking order would be proportionate.
