First injunctions ever granted in the UK to block access to cyberlocker and stream-ripping sites
Locations
Whilst UK courts have granted a number of website blocking orders over the past decade, (see some of our previous blogs – High Court orders ISP to block access to infringing website; A new advanced approach – live blocking injunctions…), these particular orders were the first of their kind in the UK in relation to these types of websites.
Terminology
A cyberlocker website is an online file storage site which provides unlicensed commercial content to its users by allowing them to upload and download the unlicensed content to and from its servers.
Stream-ripping, on the other hand, is the process of converting the audio files attached to music videos offered on streaming services (YouTube, for example) into permanent audio downloads. A recent study carried out by PRS for Music (collecting society for members' musical works) found that "overall usage of stream-ripping services dramatically increased by 1390% between 2016 and 2019, overshadowing all other illegal online music activity in the UK."
Background
In Capitol Records and Others v British Telecommunications plc and Others [2021] EWHC 409 (Ch) and Young Turks Recordings Ltd and Others v British Telecommunications plc and Others [2021] EWHC 410 (Ch), the claimant record companies sued for themselves and on behalf of other BPI and PPL record company members, with the proceedings being coordinated by BPI. The defendants consisted of six major ISPs (BT, EE, Plusnet, Sky, TalkTalk and Virgin Media), together sharing 91% of the UK's fixed broadband market. The ISPs did not oppose the form of order in principle, having been negotiating with the BPI for many months. The two cases draw easy comparisons: they involved the same parties, contained similar legal issues and the judgments were handed down on the same day by the same judge.
Judgment
In both Capitol Records and Young Turks, the court found that the users and operators of, respectively, a major cyberlocker website and various stream-ripping websites infringed copyright owned by or exclusively licensed to record companies. Mr Justice Miles ordered the ISPs to block access to the infringing websites under s97A of the Copyright, Designs and Patents Act 1988 (CDPA).
An interesting development in these two cases was the conclusion by Miles J that the operators of the sites did directly infringe copyright by performing unauthorised acts of communication to the public under s20 CDPA (the UK equivalent of Article 3 of the InfoSoc Directive). This conclusion stepped away from the Advocate General (AG)'s opinion in YouTube/Cyando, (C-682/18 and C-683/18), in which the AG had said that an operator did not communicate works on its server if it:
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did not actively intervene by selecting the content transmitted;
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did not determine that content; and
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did not in some other way present it as its own.
Miles J said in both judgments that the AG's opinion was "unlikely to be followed."
Instead, he considered the correct ruling to be applied was the CJEU ruling in Stichting Brein v Ziggo BV and others which concluded that "deliberate facilitation" was sufficient to establish an act of communication under s20 CDPA, and that this could be shown if the operator had an intention to facilitate infringement when providing the service.
In Capitol Records, Miles J concluded that the operators of the cyberlocking website more than sufficiently intervened to give access, as required in Brein, to copyright works to the site's users. In Young Turks, despite the sites' terms of use containing a prohibition on infringing copyright (which Miles J described as "window dressing"), the sites were created with the intention of providing "conversion" links to strip the original music video files of their audio files, and this constituted a deliberate facilitation of infringement of copyright.
Comment
This is a welcome development for rightsholders in the evolving body of UK law in relation to website blocking orders. It is likely that there will be more of these types of website blocking orders to come in the UK, which will target cyberlocker and stream-ripping sites, given the high level of infringement generated by such activities. The BPI has also confirmed that it will now be taking further action following these rulings. Innocent ISPs and other intermediaries will continue to find themselves in the middle of the battle between rightsholders and infringing sites, as these intermediaries "are best placed to bring such infringing activities to an end" (recital 59 in the preamble to the InfoSoc Directive). These two cases also illustrate the practicality of website-blocking injunctions where sophisticated infringers are constantly finding new and evolving technical means, including in cases like Capitol Records and Young Turks where the identities of those operating the sites were opaque.
The view in this decision that the AG's opinion in YouTube/Cyando is 'unlikely to be followed', is a significant one and will be welcomed by rightholders as that has been seen by some as a regressive approach.
Rightsholders will also continue to push for greater protection, as BPI's general counsel has called on the government to do more to help reduce music piracy, including requesting a statutory damages regime to further deter illegal sites, as well as faster, more affordable ways for rightsholders to obtain blocking orders.
With special thanks to trainee, Kristina Holm, co-author of this article.