The High Court has ordered five internet service providers (ISPs) to block access to a number of websites including "Popcorn Time" type websites.
Copyright holders may apply for injunctions against ISPs which know that their services are being used to infringe copyright under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) (section 97A).
The jurisdiction to grant these injunctions has been dealt with in a series of decisions beginning with Twentieth Century Fox Film Corp v British Telecommunications plc (known as Newzbin2).
For a court to have jurisdiction under section 97A to make the order, it must be shown that:
- the ISPs were service providers.
- the users or operators of the target websites infringed copyright, and used the services of the ISPs to do so.
- the ISPs had actual knowledge of this.
Copyright may be infringed by communicating a work to the public (section 20(2)(b), CDPA) or by authorisation of infringing acts (section 16, CDPA).
BitTorrent websites and streaming website sites have been held to infringe copyright by communication to the public even though the infringing copy did not come directly from those websites, but because the websites contained catalogued and indexed connections to the sources of those copies (Football Association Premier League Ltd v British Sky Broadcasting Ltd  EWHC 2058 (Ch); Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd).
A party may also be liable for copyright infringement as a joint tortfeasor where it intends and procures and shares a common design that the infringement takes place (CBS Songs Limited v Amstrad Consumer Electronics Plc  AC 1013; Unilever Plc v Gillette (UK) Limited  RPC 583).
"Popcorn Time" is an open source application that can be downloaded and installed by the user onto their computer from a Popcorn Time application source (PTAS) website. The application enables users to browse, search and locate films and television programmes. It uses a feature of BitTorrent called sequential downloading to enable a user to watch films and programmes more quickly as a stream, without waiting for the download to complete. The content available using the Popcorn Time applications is constantly updated as they link to a website which they use as a source of update information (SUI website).
The copyright owners , of films and television programmes (T) issued proceedings against several ISPs. T then applied for website blocking orders, with an application on paper under Part 23 of the Civil Procedure Rules. Users were using the ISPs to access four streaming and BitTorrent websites and five Popcorn Time websites (the target websites). For some of the target websites, the SUI website was a separate website and in other cases it was the same as the PTAS website.
The ISPs did not oppose the orders.
The court ordered the ISPs to block access to all of the target websites. It held that the suppliers of the Popcorn Time applications were jointly liable with the operators of the host websites.
The Popcorn Time system differed from those considered in previous applications because it was the application itself, running on the user’s computer, which presented to the user catalogued and indexed connections to the sources of the copies. As the PTAS site did not communicate any copyright works to anyone, the court found that there was no transmission or retransmission of the copyright work. The operators of the PTAS sites facilitated the making available of the content by providing the tool to do so, but the scope of the act of communication to the public could not be stretched to cover a site that simply made the Popcorn Time application itself available for download.
The operators of the SUI websites were not carrying out an act of communication. It was the Popcorn Time application which made the content available at a time and place of the user’s choosing, not the SUI websites.
While it was clear that the operators of the host websites were carrying out infringing acts, such as an act of communication to the public, there was no evidence of a connection between the suppliers of Popcorn Time and the host website operators. So, a case based on authorisation of those infringements by the operators of the suppliers’ websites did not succeed.
The Popcorn Time application was the key means that procured and induced the user to access the host website and so caused the infringing communications to occur. The suppliers of Popcorn Time knew and intended that to be the case. They provided the software and information to keep the indexes up to date. The Popcorn Time suppliers had a common design with the operators of the host websites to secure the communication to the public of the protected works, and so infringed copyright.
The ISPs’ internet services, which they provided to their users, had an essential role in the infringements carried out by the Popcorn Time operators. It was through the use of the ISPs’ services that the operators carried out their acts. So, a website-blocking order was appropriate.
As the Popcorn Time website raised new and different issues from previous case law, the court itself declared that this website blocking application was not suitable to be dealt with on paper, even though the ISPs did not oppose it.
The decision illustrates the faith placed in site-blocking orders both by rightholders and the courts. The site-blocking jurisdiction has now been extended to deal with trade mark infringement (Cartier v BskyB and others) and, in this decision, to websites which merely supply software that is used to access infringing works, as opposed to providing access to the works themselves. Although the supply of the software by the operators of the Popcorn Time websites did not infringe copyright by communicating works or authorising infringement, the court’s finding that the operators of the Popcorn Time websites were joint tortfeasors was sufficient for the court to have jurisdiction under section 97A. Interestingly, the court noted that the operators may have been authorising acts of infringement by the users, but this had not been alleged by T.
Future cases are likely to explore this angle further along with other potential extensions of the jurisdiction.
Case: Twentieth Century Fox Film Corporation and others v Sky UK Ltd and others  EWHC 1082 (Ch).
First published in the June 2015 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.