While all the fun and games have been going on with the Digital Economy Act the High Court of Justice, Chancery Division have given the creators and owners of IP a victory in the battle with the Pirates in the NewzBin case. In particular they have significantly eroded the ability of ISP's to "turn a blind eye" and rely on the empty argument that they did not know what was going on - guv'nor. NewzBin claimed that it had simply indexed and provided files uploaded by others - so had no liability. Mr. Justice Kitchen was having none of this;
"The defendant is liable to the claimants for infringement of their copyrights because it has authorised the copying of the claimants’ films; has procured and engaged with its premium members in a common design to copy the claimants’ films; and has communicated the claimants’ films to the public"
As was to be expected NewzBin had put some weasel words re a disclaimer on its website as follows hoping to dodge the bullet - but again no joy. Mr. Justice Kitchen said;
" I should also draw attention to the user terms and conditions which include the following restriction which mirrors that which applies to editors:
“You may only use the Site for lawful purposes. In particular you may not use the Site to transmit defamatory, offensive or abusive material or material of an obscene or menacing character, or which promotes hatred, violence or illegal conduct, or in breach of copyright or any other intellectual property rights, or in breach of the Computer Misuse Act 1990 or other relevant legislation or the rights of another User.”
I have no doubt that this is another superficial attempt to conceal the purpose and intention of the defendant to make available binary content of interest to its users, including infringing copies of films. As will be seen, the defendant has done nothing to enforce this restriction. To the contrary, it has encouraged its editors to report and has assisted its users to gain access to such infringing copies."
As mentioned previously in other articles Article 8 of the WIPO Copyright Treaty provides an exclusive right of communication to the public for authors / owners and this proved highly problematic for NewzBin. The extract below may well have application to Justin TV, U Stream and YouTube who can hardly be described as passive even though they do not charge for services.
"In the light of Directive 2001/29/EC and the guidance provided by the ECJ in Rafael Hoteles, I believe the following matters are material to this question. The defendant has provided a service which, upon payment of a weekly subscription, enables its premium members to identify films of their choice using the Newzbin cataloguing and indexing system and then to download those films using the NZB facility, all in the way I have described in detail earlier in this judgment. This service is not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party. To the contrary, the defendant has intervened in a highly material way to make the claimants’ films available to a new audience, that is to say its premium members. Furthermore it has done so by providing a sophisticated technical and editorial system which allows its premium members to download all the component messages of the film of their choice upon pressing a button, and so avoid days of (potentially futile) effort in seeking to gather those messages together for themselves. As a result, I have no doubt that the defendant’s premium members consider that Newzbin is making available to them the films in the Newzbin index. Moreover, the defendant has provided its service in full knowledge of the consequences of its actions. In my judgment it follows from the foregoing that the defendant has indeed made the claimants’ copyright films available to its premium members and has in that way communicated them to the public. "
So - good news for Copyright owners with many of the Pirate services now holed below the waterline.