The High Court has handed down two judgments in Capitol Records & Ors v British Telecommunications plc & Ors and Young Turks Recordings Ltd & Ors v British Telecommunications plc & Ors requiring the UK’s six main internet service providers to block access to certain unlicensed ‘cyberlocker’ and stream ripping websites which were held to be infringing the claimant record companies' copyright in their music/videos. The Claimants sued for themselves and also in a representative capacity on behalf of members of the BPI and PPL, with the BPI co-ordinating the proceedings.
As this was the first time the Court had been asked to consider blocking injunctions in relation to such websites, Miles J decided that the applications should be dealt with at a hearing as opposed to on the papers.
What do these websites do?
The Capitol Records case concerned cyberlockers. A cyberlocker site is a file storage site which makes available unlicensed commercial content, including music files, by allowing users to upload and download unlicensed content to and from the site's servers. It is different from a legitimate file storage/sharing site as it is deliberately designed to encourage the uploading and downloading of copyrighted material and offers an 'affiliate programme' which rewards users who upload content.
The Young Turks case concerned stream ripping. Stream ripping is a process whereby streamed video/audio content offered on streaming services such as YouTube is converted into permanent audio downloads which can be stored for future consumption and/or shared with others. This can be done either via: (i) a downloadable application stored on a user's computer; or (ii) on the stream ripping site itself by copying the relevant video URL onto the site and clicking 'convert' (whereby a conversion is carried out on the site's server) in order for the user to be able to download and save the audio file on their computer. Stream ripping sites enable the bypassing of technological protection measures (TPMs) which are in place to prevent content being downloaded. The sites involved each provided a stream ripping service, provided or promoted a downloadable app, and provided back-end facilities to assist in the operation of the site and the app.
Infringement of copyright by users and operators
In order to assess whether to make the website blocking orders, the Court was required to assess whether the operation and use of the sites involved infringement of copyright, and also whether it was proportionate to make the orders sought. Miles J held that the operators of the cyberlocker and stream ripping sites were infringing the Claimants' copyright in their music/videos by communicating the works to the public and authorising or acting as a joint tortfeasor with the users of the sites in their commission of infringing acts. He also held that the users of the sites in the UK were infringing by uploading and/or downloading and/or ripping music/videos, making copies of the music/videos and/or communicating them to the public.
Despite being handed down post-Brexit, both judgments referred to CJEU case law and the Advocate General's opinion in YouTube/Cyando. In that case, the Advocate General expressed a view that a cyberlocker operator did not communicate works stored on its server to the public. Whilst the CJEU decision in that case will not be retained EU law, Miles J noted that the Advocate General's opinion was unlikely to be followed as it departed from three earlier CJEU copyright decisions (which are retained EU law) including Brein which had since been approved by the CJEU in BY v CX.
Miles J held that the operators of the sites communicated the work to the public as they 'intervened' to give access to the protected music/videos and authorised users to commit copyright infringement because, amongst other things:
- in the cyberlocker case they were responsible for the transmission of files to the downloading user;
- in the stream ripping case, absent the intervention of the sites, the relevant content would not be accessible to download except to someone who had paid to be a premium user of YouTube and, even then, only on a limited basis;
- they encouraged users to download infringing files;
- the sites were designed in a user-friendly fashion which made it easy to commit copyright infringement;
- they were a profit-making activity through advertising and subscriptions; and
- the operators had an intention when providing the services to facilitate infringements – they must have known that content on the sites comprised commercially released music that was protected by copyright or the ability to convert it for download. In the stream ripping case, even though the download app did not itself transmit content it still amounted to an intervention as the operators had full knowledge of the consequences by giving users access to protected works.
Miles J noted that the operators of the sites had sought to conceal their identities and thereby shielded themselves from the legal process. Further, there was no evidence of any serious attempt by the site operators to take steps to combat illegal uses.
Miles J held that the operators were also liable as joint tortfeasors with the site users. In the cyberlocker case, Miles J noted that the site "does not merely make available the means of infringement, it thrives on infringement". In both cases, Miles J was satisfied that the operators of the sites induced, incited or procured users of the sites to commit copyright infringement (and profited from doing so) and that the operators and users acted pursuant to a common design to infringe.
The BPI put forward evidence that stream-ripping is one of the fastest growing and most prevalent forms of online infringement of music copyright. These are therefore welcome judgments for the music industry which relies on the payment of royalties which are avoided by such cyberlocker and stream-ripping websites. In particular, the stream-ripping decision confirms that operators may infringe copyright in circumstances where they are simply providing the platform for a user to commit an infringing act (e.g. by downloading a stream-ripping app) as opposed to committing the act themselves, a highly valuable finding for copyright owners.
More generally, as a result of Brexit, the UK was not required to (and the Government has indicated that it will not) implement the Digital Single Market Copyright Directive (DSM Directive) including its provisions relating to the liability regime for online content-sharing platforms. The approach the UK Government may take on these issues is therefore of considerable interest - as noted here, it featured in a recent Parliamentary inquiry by the Digital, Media, Culture and Sport Committee in relation to the economics of music streaming, where issues of piracy and the UK's approach to the issues covered in the DSM Directive have been discussed. Of course, it is possible that the UK will seek to 'take the best aspects' of the DSM Directive and implement those, with much depending upon the extent to which there is space in the Parliamentary timetable for extensive legislative reform.