Copyright Remedies: High Court Rejects Application For Proprietary Relief

Does a copyright owner have a proprietary claim to property purchased from the proceeds of an infringement of copyright? On 5 February 2013, Mr Justice Newey delivered a detailed judgment in the High Court that provides a clear indication of the limitations on the remedies available for infringement of copyright. Since the decision in Twentieth Century Fox Film Corporation and others v David Harris and others [2013] EWHC 159(Ch), we have found ourselves advising on, and have given a lot of thought to, the legal and practical implications of this case.

In 2008, the members of the Motion Pictures Association of America Inc. (the Studios) brought copyright infringement proceedings against Newzbin Limited. Newzbin was a members-only website that aggregated a large amount of illegally copied film, television, literature and other material, and made it available online. Mr Justice Kitchin found that the site was "engaged in a deliberate course of conduct well knowing that the vast majority of the materials in the Movies category [are] likely to be protected by copyright and that the users of those materials are infringing that copyright." An injunction was therefore granted, requiring the website to be taken down.

Soon after the Newzbin site was taken down, it was resurrected as Newzbin2. The Studios successfully obtained site-blocking injunctions, pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (CDPA), requiring major internet service providers to block their subscribers' access to the site. In addition, the Studios obtained freezing injunctions against David Harris (the Newzbin2 site operator) and three companies alleged to have links to the Newzbin2 website, to ensure assets would be available to meet a judgment. The Studios then took a further step of applying for a proprietary injunction against these and other defendants.

Why did the Studios seek a proprietary injunction over assets already subject to a freezing injunction?

A freezing injunction permits a defendant to deal with the assets in the ordinary course of business, in addition to which a certain amount of money may be spent on living expenses and legal representation. A proprietary injunction is a far more restrictive measure, wholly curtailing a defendant's ability to deal with the assets. In essence, the measure would reflect the position where the court believes there is an arguable case that the claimant actually owns the assets. The Studios argued that...