Out-Law News 3 min. read
28 Jul 2011, 3:27 pm
The UK's largest internet service provider (ISP) will use technology it developed to block access to websites featuring images of child abuse to stop users visiting Newzbin 2.
Six major film studios - including Warner Brothers, Disney and Fox – requested the action.
The case is the first time that an ISP has been ordered to block access to such a site under UK copyright laws, according to the judgment.
Mr Justice Arnold will make an order "substantially in the form sought by the studios" later this year.
Newzbin 2 is a members-only site which collates links to a large amount of illegally-copied material including films, music and computer games, found on Usenet discussion forums.
The Motion Picture Association (MPA), the international arm of the trade body which represents film studios, previously won an order preventing the original Newzbin site from linking to free content. The site later went into administration, and a new version was set up outside the UK's jurisdiction.
Section 97A of the Copyright, Designs and Patents Act gives UK courts the power to grant an injunction against an ISP if it had 'actual knowledge' that someone had used its service to infringe copyright.
Earlier this month an Italian judge ruled that the search engine Yahoo! did not have to identify and remove results that link to alleged pirate websites as the copyright holder did not provide links to specific websites. The UK court rejected Newzbin's argument that it was merely providing search results.
Mr Justice Arnold said the MPA had been able to demonstrate BT's 'actual knowledge' of Newzbin's illegal content.
"In my judgement it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newzbin 2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes," he said.
"It knows that the users of Newzbin 2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin 2."
MPA President and European managing director Chris Marcich described the judgment as a "victory" for the creative industries which "demonstrates that the law of the land must apply online".
"This court action was never an attack on ISPs but we do need their cooperation to deal with the Newzbin site which continually tries to evade the law and judicial sanction," he told the BBC.
The studios now intend to seek similar orders against other large ISPs in the UK, according to the judgment.
The controversial Digital Economy Act (DEA) will require the UK's media regulator Ofcom to write new rules governing copyright infringement over the internet.
Ofcom drafted plans last year that would force ISPs to hand over details of people infringing copyrighted material to rights holders, allowing them to take action. Under the draft code, ISPs could also have to suspend users' internet access if they are found to be illegally downloading copyrighted material.
BT and TalkTalk called for a judicial review of the DEA, saying that the legislation was rushed through Parliament and unenforceable. However last month a judge ruled that it could go ahead.
"This judgment provides rights holders with a practical tool to prevent clear cases of online infringement," said Iain Connor, an intellectual property law specialist Pinsent Masons, the law firm behind OUT-LAW.COM.
"This is much more sensible than the proposed three strikes and you're out file sharing legislation to be implemented under the Digital Economy Act," he said. " In order to allow their new platforms to satisfy consumer demand, rights holders need to be able to cut off infringers at source. Services such as Newzbin can always undercut legitimate service providers because they invest nothing in Britain's creative industries."
Copyright campaigners branded the move 'pointless and dangerous'.
"These judgments won't work to stop infringement or boost creative industries," said Peter Bradwell of the Open Rights Group. "There are serious risks of legitimate content being blocked and service slowdown. If the goal is boosting creators' ability to make money from their work then we need to abandon these technologically naive measures, focus on genuine market reforms and satisfy unmet consumer demand."
BT described the judgment as "helpful" and said that it provided clarity on a complex issue.
"It clearly shows that rights holders need to prove their claims and convince a judge to make a court order. BT has consistently said that rights holders need to take this route. We will return to court after the summer to explain what kind of order we believe is appropriate," the company said in a statement.