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Twentieth Century Fox and Others v. Sky UK and Others UK High Court, [2105] EWHC 1082 (Ch), 28 April 2015 The ruling concerns the technology used by ‘Popcorn Time’ websites, which offer software tools allowing users to access unlicensed TV and film content; the decision marks another step forward in the maturing body of case law relating to site blocking.

The High Court has for the first injunctive relief under s.97A was dealt with at a hearing. time issued a Court order blocking made by Hollywood film studios ‘Popcorn Time’ is an open source access to ‘Popcorn Time’ sites, against BT in relation to the application that can be following an application by six Newzbin2 website. Newzbin was a downloaded and installed by the major Hollywood film studios, website that indexed and made user onto their computer device who are all members of the available unlicensed film and other from a Popcorn Time application Motion Picture Association content for users to download. source (‘PTAS’) website. Popcorn (Twentieth Century Fox and Others After the movie studios secured Time apps can be downloaded for v. Sky UK and Others [2105] injunctive relief against Newzbin free and can be used to browse, EWHC 1082 (Ch)). Popcorn Time on the basis of copyright search and locate films and TV sites offer software tools that infringement (Twentieth Century content from third party websites provide access to unlicensed TV Fox v. Newzbin [2010] EWHC 608 without users having to return to and film content, enabling the user (Ch)), the operators of the website the Popcorn Time site from which to access an up-to-date database of relocated and created a new they originally downloaded the unauthorised content quickly and website (Newzbin2) offshore and tool. It acts as a BitTorrent client, easily. The Popcorn Time interface out of the jurisdiction, making it collecting pieces of broken up film presents thumbnails and film titles very difficult for the studios to content together and assembling in a similar manner to lawful enforce the judgment they had them into a content file for catalogue sites like Netflix, using obtained. The studios sought an viewing, with the addition of BitTorrent technology to download alternative route to enforce their media player software, an index illegal content. rights, using the then seldom used /catalogue of titles and images and The judgment means that the five s.97A right in a test case to block descriptions of titles. Popcorn leading internet service providers access to the content via the ISP. Time applications locate torrents (‘ISPs’) in the UK are all required The result was the decision in by searching catalogues of existing to block customers’ access to the Twentieth Century Fox & Ors v. BT, websites that host those torrents. site. The Order, which was granting the movie studios the Once a work is selected by the unopposed by the ISPs, was the relief they sought under s.97A, and user, the application seeks the most latest to be granted under section effectively laying down a template popular and/or highest quality 97A Copyright, Designs and that rightsholders in a range of version of the content chosen, and Patents Act 1988 (‘CDPA’), which industries could deploy in the streams as it downloads the is a cause of action that has been future. The movie studios content using the BitTorrent deployed effectively by media subsequently obtained similar protocol. The user may start rightsowners over the past few orders against the UK’s other watching the content as soon as the years to control and block the use major ISPs. process (known as sequential of infringing content online. It is a Since then, copyright owners downloading) starts. You do not notable decision on the nuances of from a variety of sectors have have to wait for the completion of the technology used by ‘Popcorn sought and been granted similar the download. The content Time’ sites, which advances the orders, mostly in relation to available using the Popcorn Time rapidly developing body of case streaming and BitTorrent sites. applications is constantly updated law in this area of copyright law. as they link to a website that they Order sought use as a source of update Background The application sought in this case, information (‘SUI website’). Section 97A CDPA (‘s.97A’) entitles which was originally brought on Popcorn Time sites often feature copyright owners to apply to the paper, related to nine target glossy, user-friendly interfaces and Court to seek injunctive relief websites, which consisted of four popular content. The typically high against ISPs who are hosting streaming and BitTorrent websites quality design of Popcorn Time material that infringes their (which the presiding judge, Birss J, sites and user-friendly experience copyright, where the ISPs have determined raised issues that had means that there is the potential ‘actual knowledge’ of the already been dealt with for them to be confused as being infringement. S.97A implements comprehensively in previous cases lawful, legitimate sites. Article 8(3) of the Copyright and could therefore be dealt with Directive (2001/29/EC) in England on paper) and five ‘Popcorn Time’ Decision and Wales. sites, which, Birss J held, raised new Birss J ordered the defendant ISPs The first application for and complex issues that had to be to block access to all the target

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websites. the operators of the host However, the judge ruled that there Although the nature of the websites/those who place was again no communication to ‘Popcorn Time’ technology was infringing content on such the public because it was the different to BitTorrent sites, the websites. Popcorn Time application that Court followed the same criteria made the content available at a that had been laid down in the Communication to the public time and place of the user’s Newzbin2 case for establishing Birss J agreed that the Popcorn choosing, not the SUI websites. jurisdiction under s.97A, namely: Time application is used in order 1. that the ISPs are service to watch infringing content on the Authorisation providers; internet and not really used in The movie studios argued that the 2. that the users and/or the order to watch lawfully available operators of both the PTAS and operators of the target websites content. SUI websites were infringing infringe copyright; However, the judge did not agree copyright in the protected works 3. that the users and/or the that there had been a by authorising the infringing operators of the target websites use ‘communication to the public’ communication to the public the services of the ISPs to do this; under s.20(2)(b) CDPA in respect (pursuant to s.16(2) CDPA) by the and of the Popcorn Time sites. The operators of the host websites 4. that the ISPs have actual judge held that, with regard to the and/or by those who placed the knowledge of this. Popcorn Time sites, it was the infringing content on the host If the above jurisdictional application itself that was running websites. requirements are made out, the on the user’s computer, which Birss J considered that the court then has to go on to consider presented to the user catalogued Popcorn Time application was a whether an order is appropriate in and indexed connections to the technical means necessarily used by the circumstances and on what sources of the copies. The PTAS users to infringe the copyright in terms the order is to be made. site did not communicate any the content. The tool is used to Birss J found no difficulty in copyright works to anyone. There find, access and collect the pieces establishing points (1) and (4), and was no transmission (or re- of the content files using the that, in relation to the streaming transmission) of a copyright work. BitTorrent protocol and to watch and BitTorrent sites, there was a As a PTAS site did not contain any the protected work via the media clear basis for granting the order information about any work, it player. Infringement of copyright sought for the same reasons as had could therefore not be was inevitable when Popcorn Time been considered in detail in ‘communicating a work.’ The site was used. The operators of the previous cases. instead made available a tool, PTAS and SUI websites had taken However, Birss J held that namely the Popcorn Time no steps to prevent infringement. questions (2) and (3) were less application, which could be used to Instead, they ensured that the clear in relation to the Popcorn retrieve content from third party infringing content available on Time websites. linked sites. The operators of the Popcorn Time was constantly The studios submitted that the PTAS sites were consequently updated. operators of the Popcorn Time facilitating the making available of The judge said that these points websites used the services of the the content by providing the tool. would be relevant to an argument ISPs to infringe copyright in Birss J considered that the scope of that the suppliers of the Popcorn protected film and TV works by: the act of communication to the Time applications were authorising 1. communicating the works to public could not be stretched as far acts of infringement by users. the public contrary to s 20(2)(b) as to cover the operation of a site However, the claimants’ case was CDPA; that simply made the Popcorn that the operators of the PTAS and 2. authorising the infringing Time application itself available for SUI websites were authorising the communication to the public download. acts of infringement committed by contrary to s 16(2) CDPA by: The judge considered the case the host website operators. But (i) the operators of the websites against the operators of the SUI Birss J held that there was that host the infringing content; websites to be stronger on the basis insufficient evidence about a and/or that the SUI sites are the source of relationship between the suppliers (ii) those who place infringing the catalogue/index presented to of the Popcorn Time app and the content on the host websites; and the user each time they access the host website operators. Indeed, 3. acting as joint tortfeasors with Popcorn Time application. most of the factors he had

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considered had nothing to do with proportionate and appropriate flag new substantive issues that the connection, if any, between the given the court’s discretion. cannot be dealt with on a paper suppliers of the Popcorn Time application under s.97A. This application and the host website Takeaways decision ultimately turned out to operators. While the operators of The decision marks another step be far from a ‘slam dunk’ decision the host websites were carrying out forward in the maturing body of for the movie studios. Indeed, two infringing acts, such as case law relating to site blocking of the three grounds for bringing communicating the work to the orders. It was also a departure from the s.97A order were dismissed, public, he was not satisfied that a the series of cases that had been which could make s.97A more case based on authorisation of dealt with on paper because the complex for rightsowners to bring those infringements by the nature of the ‘Popcorn Time’ sites in the future, depending on the operators of the PTAS/SUIs’ raised new and different issues nature of the technology that is the websites was made out. because of the nature of the source of the complaint and its technology used, and the interrelationship with ISPs. Joint tortfeasorship interrelationship of the Popcorn A party may also be liable for Time apps with the sites that Steven James Counsel Brown Rudnick LLP, London copyright infringement as a joint hosted the protected works. [email protected] tortfeasor where that party “has It was key to the decision that the induced, incited or persuaded the Popcorn Time application has “no primary infringer to engage in the legitimate purpose” (para 66) and infringing act or if there is a that its only purpose was to common design or concerted infringe copyright. Popcorn Time action or agreement on a common sites can therefore be sharply action to secure the doing of the contrasted with content agnostic infringing act” (20C Fox v. Newzbin platforms. at para 108). It is notable that Birss J granted Despite dismissing the the blocking orders despite finding ‘authorisation’ claim, Birss J did that there was no infringement of uphold the submission that the the ‘communication to the public’ operators of the Popcorn Time right. In reaching his decision, the sites were joint tortfeasors with the judge focused on the absence of operators of other sites on which ‘transmission’ of a copyright work. unlawful copies of protected This is surprising given that in content were hosted (and which previous cases brought under could be accessed by the users of s.97A it has been held that the Popcorn Time sites) on the transmission by the site concerned basis that the Popcorn Time is not an essential requirement for application was the key means finding infringement by way of used to procure and induce the unauthorised communication to user to access the host website and the public. therefore cause the infringing It is also notable that the communications to occur. The claimants’ claim for ‘joint suppliers of Popcorn Time plainly tortfeasance’ succeeded despite the knew and intended that to be the claim for ‘authorisation’ failing. case, and therefore shared a Birss J was confident that the ‘common design’ with the operators of the host websites were operators of the host websites to carrying out infringing acts, but secure the communication to the did not consider that there was public of the claimants’ protected sufficiently clear evidence about works. the relationship between Popcorn Having found liability on the Time operators and the host basis of joint tortfeasorship, Birss J websites. had no difficulty in finding that In practical terms, it will be granting the orders was important for content owners to

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