March 15, 2021
The claimant record companies issued proceedings against the six main internet service providers in the UK seeking an order pursuant to s 97A of the Copyright, Designs and Patents Act 1988 requiring them to block access to the “cyberlocker” website nitroflare.com. The claimants said that the site was being used to infringe their members’ copyrights on a large scale.
Mr Justice Miles explained that a cyberlocker site is a file storage site that makes available unlicensed commercial content, including music files, by allowing users to upload and download unlicensed content to and from its servers. The site encouraged the sharing of links, which it generated, and the downloading of content, which it stored by allowing users to upload content to the site’s servers for free. Downloads could then be made for free by the site’s “premium” and “non-premium” users, and download speeds were faster if a user paid for a premium account. The site also offered an “Affiliate Programme’, which financially rewarded users who uploaded content for each subsequent download by another user.
The claimants contended that there had been infringement: (i) by the operators of the site in communicating works to the public within s 20 of the 1988 Act; and/or in authorising or acting as joint tortfeasor with the users of the site in their commission of infringing acts; and (ii) by the downloading users of the site in the UK, in making copies of works within s 17 of the 1988 Act; and/or by uploading users, in communicating works to the public within s 20.
In terms of the operator “communicating” works to the public, Mr Justice Miles found that the operator had intervened to give access to a protected work, as it was responsible for the transmission of the files to the downloading user and was therefore responsible for the communication of the protected works to the public by electronic transmission. The intervention was not passive, as the site was set up and existed to enable users to access and to download content (uploaded by others) in an easy and convenient way. In fact, the site encouraged such downloading. Further, the communication involved a profit-making activity through advertising and subscriptions.
Miles J said that the CJEU’s current position (regardless of the Advocate General’s Opinion from July 2020 in Joined Cases C-682/18 and C-683/18 Peterson v Google EU:C:2020:586) was that the deliberate facilitation of a communication is sufficient to establish an act of communication and that this is shown if the operator has an intention when providing the service to facilitate infringements. Miles J was satisfied that this requirement had been established. The operator of the site must have known that much of the content on the site comprised commercially released music and videos that were protected by copyright, the downloading and copying of which required a licence. Its revenue was derived from advertising, and the more downloading took place, the greater its advertising revenue. The clear inference was that the operator intended to facilitate infringement of copyright.
As for communication “to the public”, it was clear that the works were made accessible to a sufficiently large number of people. The situation was not the same as in some of the authorities, where a site was used to make an onward transmission or provided a link to another site. Here, the content was uploaded by users and downloaded by others. Therefore, there was no question of the use of another technical means to make available some original communication. Further, the need to show that the communication was to a “new public” did not arise, although the requirement was satisfied in any event, as there was no prior authorisation of any “original communication”. The way the site was designed to work was that recordings were made freely available without any licence from the claimants to all the users of the site, a large and indeterminate class of people, without the users having to purchase them from authorised sources.
The servers for the site were based outside the UK, but Miles J found that the site targeted the public in the UK (as well as other countries): (i) the site was in English; (ii) there were large numbers of UK visitors to the sites; (iii) the site allowed payment for its premium service in GBP; and (iv) advertising on the site was in many instances for UK retailers or services.
Accordingly, infringement by the operator under s 20 was established.
Miles J found that the same applied to uploading by users of the site. When users uploaded content to the site, it was in the knowledge and with the intention that it would be downloaded by other users. Uploading users were encouraged to provide links to potential downloading users and were offered financial incentives for encouraging other users to download the content they had uploaded. The site was structured to make that content generally available to all internet users. Therefore, uploading users were making a communication to the public because they knowingly and intentionally intervened to give access to the uploaded works to the public. Since the site was targeted at the UK public, by using the site (with its UK-targeting features), uploading users targeted the public in the UK with the communication.
As for infringement under s 17 by downloading users Miles J agreed with the claimants that when a user clicked on a link to obtain a copy of particular content and downloaded the content, the user copied the content contained in those files on his or her computer. If the content comprised a copyright work and the user did not have the licence of the copyright owner, he or she infringed copyright.
Miles J also found infringement under s 16 by the operator of the site. The site provided a user-friendly environment for its users to upload and download copyright content, thereby sharing it with other users and even earning revenue in some cases. The site was designed for the sharing of commercial content rather than mere storage or lawful sharing of files. Infringement was therefore the inevitable consequence of the service provided.
Miles J was also satisfied that the operators of the site had induced, incited or procured users to commit infringements of copyright (profiting from so doing) and that they and the users had acted pursuant to a common design to infringe. The operator was therefore jointly liable for the infringements committed by users.
Finally, Miles J was satisfied that the order was proportionate for various reasons, including: (i) it was necessary to protect the rights of the claimants; (ii) the recordings were available to be enjoyed by ISP subscribers using legal digital music services; and (iii) to the extent that rights of users or operators of the site were engaged, given the conclusions on infringement, their interests were outweighed by the interests of the claimants in enforcing their copyright. Accordingly, Miles J granted the order sought. (Capitol Records, A Division of Universal Music Operations Ltd v British Telecommunications Plc  EWHC 409 (Ch) — to read the judgment in full, click here).