High Court Upholds Claim of Copyright Infringement in Internet Discussion System

Twentieth Century Fox Film Corporation & Ors v Newzbin Ltd [2010] EWHC 608 (Ch)

The High Court has upheld a claim by Fox and other film makers for copyright infringement against the Defendant, Newzbin Ltd, arising from its operation of a website called Newzbin.

The Defendant was found liable to the Claimants for infringement of their copyrights on three basis: (i) by authorising the copying of the Claimants' films; (ii) procuring and engaging with its premium members in a common design to copy the Claimants' films; and (iii) communicating the Claimants' films to the public.

Background

The Defendant owns and operates the website Newzbin, which catalogues and indexes files that have been posted on a file sharing and discussion system called Usenet.

The claim alleges that Newzbin is focused on piracy: it locates and categorises unlawful copies of films; provides a facility for its users to search for specific unlawful copies; and allows users to download them.

The Defendant claimed that Newzbin is simply a search engine like Google, and that it was "content agnostic" in that Newzbin is designed to index the entire content of Usenet, and provides (where possible) hyperlinks so that any supply of unlawful material occurs solely between the hyperlink user and the relevant Usenet server operators – Newzbin plays no part in it.

Decision

1. What constitutes 'authorisation'?

   It was alleged that the Defendant was "authorising acts of infringement by Newzbin's members".

   Authorisation means the grant or purported grant of the right to do the act complained of. The Court referred to the case of CBS Songs Ltd v Amstrad (where the manufacture and sale of equipment which enabled sound recordings to be copied onto tape was held to have facilitated copyright infringement but not authorised it).

   The Court then provided further guidance on establishing authorisation by outlining the issues to consider, focusing on the control the Defendant exercised through Newzbin. This included:

   (i) the nature and relationship between the alleged authoriser and primary infringer;

   (ii) the degree of control that the supplier retains

   (iii) any preventative steps taken to stop the infringement

   (iv) did the supply lead to inevitable copyright infringement

   (v) does the equipment supplied constitute a means to infringe.

   The Court found that the downloading facility Newzbin provided is bound to result in that work being copied as it provides a means for infringement; was created by...