20-04-10

'Search Engine' Site Liable for Copyright Infringement A website that claimed to be a "search engine like Google" (and stored no unlicensed content) has been found liable for copyright infringement. In 20th Century Fox Film Corp (and others) v Newzbin Limited [2010] EWHC 608 (Ch) (reported 29 March 2010), the Court found Newzbin liable for infringement of several film studios' content because it had "authorized" the copying of films, "procured and engaged with" its users in a "common design" to copy films and directly infringed the studios' copyright by "communicating to the public" their films. Under such headings as "Movies", "Music", "TV" and "Apps", Newzbin provided indexed links to various types of files stored on "Usenet" (an electronic bulletin board) and claimed that it was not liable for the acts of its users. Newzbin also recruited users as "editors" to check that certain automatic-multi-referring links were accurately collecting all of the part-files from hundreds or thousands of internet locations. These "editors" (who were "encouraged to make as many reports as possible" and rated in a "league table") effectively acted as a "system of quality control" to ensure that all of the individual files that comprise a copy of a film were in the link. Crucially, the court found that the site's written guidance and instructions to editors showed "an awareness" by Newzbin and a "positive encouragement and inducement" to focus on films. Interestingly, Newzbin's written warning to "not do any act which would assist enable incite or encourage any unlawful acts" was held by the Court to be "entirely cosmetic" and not "intended to be…acted upon by editors". Whist Newzbin offered a Takedown Notice facility, the court considered the "cumbersome procedure" to be "entirely cosmetic" and designed to make it impractical for rightsholders. The site's Terms and Conditions, which had some standard "lawful purposes" requirements, were "window dressing" and a "superficial attempt to conceal Newzbin's purpose and intention" because it did nothing to enforce those Terms. In an echo of the recent YouTube/Viacom dispute, the Court was shown various internal Newzbin correspondence referring to types of content on the site and concluded that Newzbin "is and has been aware for very many years that the vast majority of films in the 'Movies' category are…protected by copyright" and that its users are using the site to infringe such copyright. The Court held that, rather than mere "facilitation" of infringing behaviour, Newzbin had "actively encouraged", "rewarded" and "instructed and guided" editors so extensively as to "purport to possess the authority" for allowing its editors to create the complex and detailed links enabling users to download copyrighted material. In addition to such "authorising" of copies and "procuring and engaging with others in a common design to copy", the Court also found that Newzbin was "making available" (and thus "communicating to the public") the studios' films. Whilst the site was not storing or transmitting the content itself, the Court held that Newzbin was "making [the films] available to the public by electronic transmission in such a way that members of the public may access [the films] from a place and at a time individually chosen by them". The Court said Newzbin's service was "not remotely passive" and that it was "providing a sophisticated technical and editorial system which allows its premium members to download all the component [files] 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". This case presents much-needed guidance on a wide range of Digital Media topics, including the (Grokster-ish) question of "encouraging" or "authorising" infringement, liability for "procuring and engaging in a common design to copy" protected content, the still-mysterious "making available" right, and effective terms and conditions for UGC websites - as well as further (if more legally-complex) issues regarding ISP immunity, availability of injunctions against service providers, extra penalties for "flagrant" infringement and the question of what constitutes a "significant" proportion of infringing content. Having been buried by the volcanic eruption of reports about the new Digital Economy Act, the press seems to have missed this important legal development. Even if the linking method and the "editor instructions" in this case are relatively unusual, the possibility of shutting down websites which do not store or transmit any infringing content (e.g. search engines) has been brought a step closer by this case that potentially offers far greater assistance to the piracy-riddled music and film (and TV, etc) industries. The full text of the judgment may be accessed via: http://www.bailii.org/ew/cases/EWHC/Ch/2010/608.html.
Article by Tom Frederikse