The High Court of England and Wales has held that a website called Newzbin was infringing the copyright in feature films in a claim brought by a group of film makers and distributors.  This is a rare successful outcome for content owners against third party intermediaries in the courts in their fight against online piracy. 

Facts

Users of Newzbin were downloading pirate copies of films posted by third parties on Usenet.  Newzbin denied responsibility for their actions.

Usenet is a worldwide internet discussion system which allows its users to upload and view messages on electronic public bulletin boards.  Newzbin is a web-site on Usenet, which itself identified and indexed a large number of messages (or files) posted by users throughout Usenet.  Together, the indexed files could make up a whole feature film.  In return for the payment of a membership fee, a facility called ‘NZB’ on the Newzbin site allowed its members to easily download the films Newzbin had identified. 

Newzbin members also had access to ‘reports’ on the Newzbin site, provided by a team of 250 editors, which provided useful information about each film title, including who had posted the material and when, the number of files making up the particular work, and the source of the material, such as hand-held cameras in cinemas, which Newzbin did not dispute was a strong indication that the copies were unlawful.  Newzbin made a substantial amount of money out of membership fees.

The judgment

Kitchin J heard a substantial volume of evidence, including some ‘extensive and searching’ cross-examination of Newzbin employees.  On the basis of this evidence, the judge had no doubt that Newzbin was and had been aware for very many years that the vast majority of films available to Newzbin members were commercial and so very likely to be protected by copyright, and that Newzbin members who used its NZB facility to download the claimants’ films were infringing the claimants’ copyright. 

The judge held that Newzbin was itself liable for copyright infringement on all three grounds alleged by the film companies.  First, Newzbin had authorised the infringements by its members. A reasonable Newzbin member would deduce from Newzbin’s activities that it purported to possess the authority to permit the user to copy any film that he might choose to download.  Newzbin had sanctioned, approved and countenanced the copying of the films.

Secondly, on the facts, Newzbin had procured and engaged in a common design with its members to infringe the copyright in the films.  Finally, the set-up of the site was such that Newzbin had intervened in a highly material way to make the films available to its members.  It followed that Newzbin had also infringed the claimants’ copyright by communicating the films to the public.  

Comment

This case is significant because for the first time content owners have succeeded in a copyright action against a party providing the means by which individual users can infringe copyright, as opposed to against the individual users themselves.  From the CBS v Amstrad home taping case in the 1980s to more recent cases involving peer-to-peer networks, it has proved difficult to persuade a court that the intermediary had either authorised copyright infringement or procured or acted in a common design with individual users to commit the infringing acts. 

The film companies succeeded in this case because in evidence they pointed to specific features of the Newzbin site, and even specific acts by Newzbin employees, which clearly illustrated that

(i) Newzbin was well aware that the infringements were taking place,
(ii) the site was designed and intended to make it easy for its members to download infringing copies of films,
(iii) it had profited from the members’ infringements, and
(iv) it had done nothing of any significance to stop these activities. 

For this reason, content owners will be encouraged to bring claims against other websites where they can file convincing evidence of a similar nature.