Court sinks pirates’ net profits

A recent ruling forcing ISPs to block an illegal downloading site is not censorship, but a protection of property

On 2 May 2012 the High Court ­delivered its second judgment in Dramatico Entertainment v BSkyB, ordering five internet service providers (ISPs) to block the world’s largest illegal downloading site, the Pirate Bay.

Dramatico is not just significant in its own right: it also highlights the developing jurisprudence of copyright liability on the internet and one of the most basic principles of law – that taking something without consent is wrong.

In December 2011 the music industry trade body, the British Recorded Music Industry (BPI), coordinated legal proceedings against the ISPs for orders under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) requiring the ISPs to block access to Pirate Bay.

In February 2012 Mr Justice Arnold delivered his first ruling, ­declaring that “in my judgment, the operators of Pirate Bay authorise its users’ infringing acts of copying and communication to the public. [… They] take no steps to prevent infringement. On the contrary […] they actively encourage it. [… They] induce, incite or persuade users to commit infringements of copyright and […] they and the users act pursuant to a common design to infringe.”
Following that judgment the BPI and the ISPs engaged in cooperative negotiations, leading to Arnold J’s second judgment, which required Sky, Everything Everywhere, TalkTalk, O2 and Virgin Media to block, or attempt to block, access to Pirate Bay pursuant to section 97A of the CDPA.

Dramatico builds on and develops the section 97A precedent that Arnold J set in 2011 in the website-blocking judgments in Newzbin (20C Fox Film v BT (2011)). It is a rich source of information for lawyers about how, and in what circumstances, future section 97A blocking cases and CDPA authorisation cases can be brought.

The case also highlights a basic principle of law. Frédéric Bastiat, the 19th century legal scholar, stated that law should enable individuals to ­defend their person, liberty and property. That right to defend property – including copyright – is ­enshrined in Article 1 of the First ­Protocol to the European Convention on Human Rights (ECHR). Its protection incentivises investment in the creative industries.

Defenders of sites such as ­Pirate Bay say the online world is ­different to the physical world and that website-blocking is censorship. Article 10 of the ECHR and Article 11 of the Charter of Fundamental Rights of the EU provide that everyone has the right to freedom of expression. However, that right is not absolute: it does not extend to a right to take something without consent. It must be ­balanced with the rights of others in society, including copyright ­holders.

Dramatico provides a glimpse of a key legal issue that will consume TMT lawyers and their clients over the next five years – namely, the ­responsibility of intermediaries for online copyright infringement. Looked at as a sliding scale of liability, at one end of the scale will sit ­intermediaries who do nothing; at the other end will sit intermediaries who take proactive steps to reduce online copyright infringement.

Lawyers on both sides of the ­debate will be looking to establish the sweet spot on that scale.