Hard on the heels of the AdWords case, Mr Justice Arnold has decided a rather different case where the service provider couldn't escape liability for copyright infringements. Twentieth Century Fox Film Corporation & Anor v Newzbin Ltd [2010] EWHC 608 (Ch) (29 March 2010), as the title tells you, concerned films, although other types of copyright work (or 'content' as we must learn to call them) were also mentioned. The defendant operated an online indexing facility, in which volunteer editors collected and collated information about media files available online - and who the defendants encouraged to concentrate on films, the most popular type of file among the users of the premium service (30p per week). Because it knew about the infringements that were taking place, and because of its editorial involvement which facilitated the infringements (including the way the site was strutred to guide premium members to the infringing copies and providing the means to download them), the defendant was authorising the infringements. I wonder whether the members of the House of Lords who decided, back in the mid-80s when they seemed intent on keeping intellectual property law in its box, that Amstrad's twin-deck, high-speed tape recorder did not involve an 'authorisation', would agree?
The difference is that reasonable members of the service (700,000 of them) would have believed that the defendants had the authority to grant permission to users to make copies. It had 'sanctioned, approved and countenanced the copying of the films', and moreover it had 'procured and engaged in a common design with its premium members to infringe the copyrights'. It was not just a passive participant in the process, which distinguishes the case (if it were necessary to do so) from the AdWords case.
The site displayed plenty of notices warning users not to infringe copyright: the judge dismissed these, in a well-known expression which I will nevertheless file away for future use in this context, as 'window dressing'.
Out-Law, as always, has the story and the report is well worth reading. It also has a comment which is worth reading: ISPs will rest easier after this judgment, because it makes it clear that they have to go a long way before they do something that might be considered actionable.
The difference is that reasonable members of the service (700,000 of them) would have believed that the defendants had the authority to grant permission to users to make copies. It had 'sanctioned, approved and countenanced the copying of the films', and moreover it had 'procured and engaged in a common design with its premium members to infringe the copyrights'. It was not just a passive participant in the process, which distinguishes the case (if it were necessary to do so) from the AdWords case.
The site displayed plenty of notices warning users not to infringe copyright: the judge dismissed these, in a well-known expression which I will nevertheless file away for future use in this context, as 'window dressing'.
Out-Law, as always, has the story and the report is well worth reading. It also has a comment which is worth reading: ISPs will rest easier after this judgment, because it makes it clear that they have to go a long way before they do something that might be considered actionable.
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