High Court Orders ISPs To Block Access To File-Sharing

His Honour Mr Justice Arnold has ruled in favour of a number of British record companies and ordered the UK's six main Internet Service Providers (ISPs) to block access to the file-sharing website called Pirate Bay.

The Claim

All nine claimants in the action were record companies, who owned the copyright in a large number of sound recordings. Proceedings were brought against six of the country's main ISPs for an injunction under s.97A of the Copyright, Designs and Patents Act 1988 (the "CDPA"), which provides that the High Court has the power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright. The claimants sought an order requiring the ISPs to block or otherwise impede access to the Pirate Bay website.

Infringements by Pirate Bay users and operators

As a preliminary issue, Arnold J found in February that both the users and operators of the Pirate Bay website (none of whom were party to the proceedings) infringed copyright owned by the claimants.

Users were found to be copying the copyright works in breach of s.17 of the CDPA. They were also found to be in breach of s.20 CDPA, which prohibits communication of the work to the public. Arnold J said that it was unclear whether communication to the public occurred when users uploaded or downloaded music, but in this instance, it was not necessary to consider that question as there was evidence that Pirate Bay users both uploaded and downloaded music.

Arnold J found that the operators of Pirate Bay had a clear objective and intention to infringe copyright and had the means and control over the website in order to be able to prevent infringement, but chose not to. Their actions went far beyond enabling and assisting. Their conduct amounted to authorisation of its users copyright infringement and communication to the public contrary to s.16(2) of the CDPA. The operators of the Pirate Bay website were also held to be jointly liable for the infringements committed by its users.

Proportionality of the orders made

In making orders against the defendants, Arnold J was obliged to consider the proportionality of remedies for the infringement of intellectual property rights (under Article 3(2) of the European Parliament and Council Directive 2004/48/EC).

In this instance, following Arnold J's decision on infringement, the terms of the orders had been negotiated and agreed between the claimants and...