High Court grants, for the first time, website blocking orders targeting cyberlocker and streamripping sites/app and considers that CJEU won’t follow AG Opinion in YouTube/Cyando

Kat blocking

Earlier this week, the High Court of England and Wales issued two website blocking orders, which set new precedent and are the expression of a further development in the rich UK website blocking jurisprudence. 

The orders, which were issued by Miles J further to applications made by record labels that are members of BPI, are the first orders ever granted in the UK to block access to, respectively, a cyberlocker and a number of streamripping sites/app.

The decisions are also interesting from a broader, EU perspective, in that the judge considered that the Court of Justice of the European Union (CJEU) is unlikely to follow the position adopted by Advocate General (AG) Saugmandsgaard Øe in his 2020 Opinion, when it decides YouTube/Cyando, C-682/18 and C-683/18 [Katpost here].

Capitol Records and Others v BT and Others: cyberlocker operators

The first order was made further to an application by record companies, which are members of BPI and PPL. BPI, which coordinated the proceedings on behalf of the Claimants, explained that its members hold the UK rights to approximately 99% of all sound recordings legally consumed in this country.

The application sought an order pursuant to s97A CDPA [the provision by which the UK transposed Article 8(3) of the InfoSoc Directive into its own law] against the 6 largest UK ISPs (between them, they share 91% of the fixed broadband market) to block access to nitroflare.com, a cyberlocker which – according to the Claimants – is used to infringe their copyrights on a large scale.

As mentioned, this was the first time in the UK that an application of this kind, ie an application targeting a cyberlocker, was made.

Miles J reviewed the threshold conditions for granting website blocking orders, as developed over a consistent body of case law.

What is particularly interesting here is the conclusion by the judge that the operators of the cyberlocker at issue DO directly infringe copyright by performing unauthorized acts of communication to the public under s20 CDPA, that is the UK equivalent of Article 3 of the InfoSoc Directive. This is in contrast with the position of AG Saugmandsgaard Øe, who concluded that neither YouTube nor cyberlocker Uploaded would be directly performing acts of communication to the public under Article 3 of the InfoSoc Directive.

Miles J, instead, considered that the CJEU conclusion in Ziggo [Katposts here and here] would be applicable in the case at hand: the operators of NitroFlare pursue a profit-making intention and perform an indispensable intervention; they are therefore directly liable for the doing of acts of communication to the public. Miles J also went further than that and explicitly suggested that the AG Opinion in YouTube/Cyando is “unlikely to be followed” by the CJEU (at [26]):

I accept the Claimants’ submission that the CJEU’s present position (illustrated by [Ziggo]) is that deliberate facilitation of a communication is sufficient to establish an act of communication and that this is shown if the operator had an intention when providing the service to facilitate infringements. I am satisfied that this requirement has been established here (at [27])

The judge concluded that infringements were committed by:

• users of the site, in accordance with ss17 CDPA, that is the UK equivalent of Article 2 of the InfoSoc Directive, and 20 CDPA; 
• the operators of the site by authorizing users' infringements in accordance with s16(2) CDPA; 
• the operators of the site as joint tortfeasors with the users;
• the operators of the site, in accordance with s20 CDPA.  

Young Turks Recordings and Others v BT and Others: streamripping sites/app operators

The second order followed an application targeting a number of stream ripping sites, including Flvto, and app. As readers may know, stream ripping is regarded as “responsible for a mammoth proportion of the overall piracy problem”. As Miles J explained (at [4]):

Stream ripping is a process whereby streamed audio content is converted into permanent audio downloads which can be stored for future consumption and/or shared with others. The Claimants’ evidence explains that this is one of the fastest growing forms of online infringement of copyright in sound recordings and the most prevalent.

The application was also made by BPI on behalf of its members, which hold approximately 99% of all sound recordings legally consumed in the UK, as well as rights in the videos which are streamripped.

The request – also the first of this kind in the UK – was based on ss 97A CDPA and 37(1) of the Senior Courts Act 1981 (the latter was the one also used in, e.g., Cartier [Katpost here]) and sought an order against the major UK ISPs to block access to the aforementioned sites and app.

Miles J reviewed the threshold conditions for granting the requested order and considered that they were satisfied in the present case.

Insofar as copyright infringement is concerned, the judge accepted that infringements were committed by:

• users of the sites and app, in accordance with s17 CDPA;
• the operators of the sites and app by authorizing users' infringements in accordance with s16(2) CDPA; 
• the operators of the sites and app as joint tortfeasors with the users;
• the operators of the sites and app, in accordance with s20 CDPA. 

With regard to the latter, Miles J considered the CJEU holdings in Ziggo and Filmspeler applicable to the case at hand. Again, he found that the CJEU is unlikely to follow the AG Opinion in YouTube/Cyando:

[T]he CJEU’s present position (illustrated by [Ziggo]) is that deliberate facilitation of a communication is sufficient to establish an act of communication and that this is shown if the operator had an intention when providing the service to facilitate infringements (at [80])

The judge also accepted the Claimant’s submission that the sites’ terms of use, which contain a prohibition on infringing copyright, was to be regarded as “window dressing”:

The whole purpose of the technology offered by the Infringing Sites is to circumvent the TPMs [technological protection measures] on streaming sites like YouTube. The TPMs are designed to protect copyright. It is an overwhelming inference that (despite these terms of use) the site operators know that the users are using their services to infringe copyright. (at [37])

Comment 

As mentioned, these very recent orders are important from two perspectives: first, because they signal a further evolution of website blocking jurisprudence; secondly, because they provide an authoritative view of what the CJEU might do when it decides YouTube/Cyando.

Relevance to website blocking jurisprudence

Insofar as the first point is concerned, website blocking orders have gained centrality in the online IP enforcement landscape over the past few years. The reason for involving innocent ISPs and other intermediaries in the enforcement process by means of injunctions against them is encapsulated in recital 59 in the preamble to the InfoSoc Directive:

In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. (emphasis added)

Injunctions can consist of orders by courts or administrative authorities that require intermediaries to terminate or prevent any infringement, “including the removal of illegal information or the disabling of access to it” (recital 45 of Ecommerce Directive).

Over time, courts in different jurisdictions have been imposing different types of injunctions against intermediaries, including de-indexing, payment freezing, disclosure obligations, and website blocking orders. The latter is considered, in a number of countries around the world, as an enforcement method that can effectively target specific digital piracy (and counterfeiting) sites. However, the availability of this remedy, which is granted against non-party internet access providers, remains limited: whilst some jurisdictions have recently introduced it (for instance, the first website blocking order of this kind in Canada was only issued in 2019), in others it remains unavailable (an instance being the US).

In Europe, things are different: website blocking orders have been granted by courts and authorities for several years and have been regarded as important enforcement tools. Website blocking orders have also undergone an evolution over time.

First, competent authorities in a number of jurisdictions have been granting, alongside traditional website blocking orders, also dynamic blocking orders [e.g. in the UK, Italy, Sweden, Singapore, India] which specify, not only the domain name and IP address of the website(s) to block access to, but also any further domain names under which infringements relating to the same rights are committed.

Secondly, orders have been granted against major ISPs in a given country to block access, not just to websites directly engaging with piracy and counterfeiting, but also to block access to websites providing the tools and/or aiding piracy and counterfeiting. A recent instance, analyzed on The IPKat, is indeed orders aimed at blocking websites providing tools to circumvent TPMs.

The position with regard to communication to the public

I have already discussed the AG Opinion in YouTube/Cyando and considered it one which adopts a ‘regressive’ reading of CJEU case law on the right of communication to the public. The CJEU decision in this case is keenly awaited, though there is no information as to when it might be released. 

Besides its relevance to the construction of Article 3 of the InfoSoc Directive, the position that the CJEU will adopt in this case is likely to also have an impact insofar as the construction of Article 17 of the DSM Directive is concerned (the UK will not transpose it). Although the referrals are obviously not based on Article 17, a discussion of the regime introduced by this provision featured at the hearing and in the parties’ submissions and was also directly dealt with by the AG in his Opinion. 

Ultimately, the AG’s position is that Article 17 would be a change in the law, not a clarification thereof. Miles J did not endorse this reading [for my analysis, see here] and considered that the CJEU will not do that either.