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ISPs and liability for copyright infringement

ISPs and liability for copyright infringement

31/01/12

In a recent ruling in the UK, the High Court granted an injunction against an Internet Service Provider (ISP), under Section 97A of the Copyright Design and Patents Act (CPDA)1988, holding it liable for the actions of a third party using its services to infringe copyright.

The third party concerned was based outside of the High Court’s jurisdiction and had set up a file-sharing website "newzbin" employing a system allowing users to read and post relatively short messages of binary content. The newzbin site would collate and categorize this content so that the messages could be located and downloaded by users in combination to re-create complete films and digital audio content.

The newzbin web-address had previously been used in the same fashion by a UK company, Newzbin Limited, whose actions had fallen foul of the CPDA 1988 and in 2010 it had been found to infringe the copyright of Twentieth Century Fox Film Corporation and others. The company had subsequently gone into liquidation prior to the establishment of the current successor website at the same URL.

The ISP (British Telecom) was known to have at its disposal specialist technology allowing it to block specific web content and the claimant, again Twentieth Century Fox Film Corporation and others, sought an order that British Telecom apply that technology to prevent its customers from accessing the "newzbin" site.

Section 97A CPDA 1988 provided basis for such an order but only in so far as (i) a third party is using the service to infringe copyright; and (ii) the ISP has actual knowledge of such use: the latter test being often quite difficult to establish. However, in the present case, in view of the large amount of evidence against Newzbin, and particularly in view of the outcome of the earlier action in 2010, the Court found itself satisfied that British Telecom had the requisite knowledge and that it be ordered to block its internet-access customers’ (c. six million) access to the newzbin site.

While Newzbin disputed the effectiveness of the block, at least one other ISP has followed suit in blocking their customers’ access to the site, and others are likely to follow with similar action if further orders are sought.