Monday, March 29, 2010

Newzbin escapes injunction in the UK High Court

The High Court in the UK has decided against granting an injunction applied for by Hollywood Studios against a Usenet group, Newzbin. Whilst not being convinced the Newzbin operators were entirely innocent in relation to inducing copyright infringement the Mr Justice Kitchin decided that the injunction sought was too broad.
"133. The claimants contend that the defendant is a relevant service provider and that it has actual knowledge that its premium members are infringing the claimants' copyrights and, indeed, the copyrights of other rights holders in the content made available on Newzbin . Accordingly they invite me to grant an injunction to restrain the defendant from including in its indices or databases entries identifying any material posted to or distributed through any Usenet group in infringement of copyright.

134. The defendant accepts that it is a relevant service provider but disputes that it has actual knowledge of any person using its service to infringe because it has never been served with a notice of the kind referred to in section 97A(2).

135. I do not accept that service of such a notice is a precondition of a finding that a service provider has actual knowledge of another person using its service to infringe copyright. Such is evident from the section which says that this is simply one of the matters to which the court must have regard. Nevertheless, I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants' copyrights in relation to their repertoire of films."

Under the provisions of the Digital Economy Bill currently likely to go through parliament in the wash up of legislation before the general election, (presumably with the BPI's approval) it is a fairly  good bet that Newzbin would have been Internet history without reference to a judge.  Given the judge is very clear he doesn't buy the operators' complete innocence it wouldn't be a sensible business decision for an ISP to attempt to defend them in court.  Some might think that a good thing.  I don't know enough about Newzbin to assess whether they induced infringement or engaged directly therein but under the digital economy bill as it stands we won't really get the chance to test the question in the courts, even when the accused is demonstably innocent.

Updated due to strange formatting problems, 31/3.

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