Blocking Newzbin

Newzbin is making legal history in the UK. Saskia Walzel looks at the 2010 High Court decision which found Newzbin guilty of copyright infringement.

Image: CC BY-NC-ND 2.0@Si McMahon

Very recently the Government floated the possibility of a “cross-industry body... to be charged with identifying infringing websites against which action could be taken”. Copyright owners believe the ongoing Newzbin case provides the necessary legal basis for an industry body to decide which websites ISPs should block. Many websites technically enable users to infringe copyright, especially those who host user-generated content. Under the host principles, established in the Electronic Commerce (EC Directive) Regulations 2002 they have to respond to notice and take down request by copyright owners. Though just because users infringe copyright does not mean that the website itself is infringing copyright.

Newzbin, relatively obscure before it was taken to court in the UK by the Hollywood studios, is a Usenet indexing subscription service. In its various incarnations Newzbin made legal headlines this year when the High Court for the first time granted a blocking injunction under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA). Before that, in March 2010 Newzbin became the first “filesharing service” found to infringe copyright in the UK.

Like the Pirate Bay, Newzbin advanced the “we’re just like Google defence”, focusing on the fact that Newzbin, much like a search engine, does not make infringing copies or communicate them to the public. While users may infringe copyright the service itself does not, it is argued, perform any of the acts restricted by copyright.

However, under section 16(2) of the CDPA it is also an infringement of copyright to “authorises” others to do any of the acts restricted by copyright. In Twentieth Century Fox v Newzbin [2010] the High Court ruled that the way Newzbin was set up and operated by its administrator, and the way the administrator behaved, amounted to de-facto authorising the infringement by its member.

According to Mr Justice Kitchin “a reasonable member would deduce from the defendant's activities that it purports to possess the authority to grant any required permission to copy any film that a member may choose from the Movies category on Newzbin and that the defendant has sanctioned, approved and countenanced the copying of the claimants' films, including each of the films specifically relied upon in these proceedings.” In deciding that Newzbin had infringed copyright the High Court relied on CBS Songs v Amstrad [1988], which has become the defining case law on authorising infringement.

In 1988 the House of Lords found that Amstrad had not authorised infringement by users of its twin cassette deck, as alleged by the BPI and its members. It was ruled “that ‘authorise’ means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement.” The House of Lords rejected the argument that Amstrad had authorise infringement by technically enabling it and encouraging infringement by advertising that the cassette deck “now features 'hi-speed dubbing', enabling you to make duplicate recordings from one cassette to another, record direct from any source and then make a copy and you can even make a copy of your favourite cassette.”

In coming to the conclusion that Newzbin had authorised its users’ infringement the High Court considered what the Amstrad case established as relevant factors, namely: “the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement.”

The High Court concluded that the set-up of Newzbin, and the behaviour of its admin, amounted to authorising infringement to such an extent that Newzbin also has “procured and engaged with its premium members in a common design to copy the claimants' films”, and hence was also jointly liable for the infringement. Specifically, the site was “structured in such a way as to promote such infringement by guiding the premium members to infringing copies of their choice and then providing them with the means to download those infringing copies by using the NZB facility”, which the High Court identified as a crucial element of the website, and the administrator “further assisted its premium members to engage in infringement by giving advice through the sharing forums”.

Not really like Google then, or YouTube, or Wikipedia.... or like cyberlockers... maybe. It’s not like the movie and music studios only want the Pirate Bay blocked, they want an industry body akin to the Advertising Standards Authority to block a number of websites totalling the low hundreds.¹ With so little case law to go by it is difficult to foresee how an industry body would apply the Amstrad test on authorisation to the wide range of web services that technically allow users to infringe copyright. If the ongoing legal punch-up between copyright owners and cyberlockers in the US is anything to go by, “authorising” may end up meaning simply “anything we don’t like”. In the US movie and music studios are accusing cyberlockers of committing acts restricted by copyright, and for good measure, that they are “actively inducing” their users to infringe copyright.

The cases are currently playing out in court, to the backdrop of tense negotiations over whether remote storage services, call them cloud or cyberlocker, need to pay for a copyright licence to let users store their content. Ultimately copyright owners have a commercial incentive to cry “copyright infringement” whenever any new web service takes off, because a website is only liable to pay for a licence to copyright owners if they engage in acts restricted by copyright. Until the UK High Court has done the heavy lifting and established a robust body of case law, it is inconceivable that a non-judicial body should be allowed to decide which websites infringes copyright through authorisation. And once the case law has been established, it is questionable whether an industry body should be allowed to intervene in what are essentially commercial negotiations.

¹ “Site Blocking” to reduce online copyright infringement: A Review of section 17 and 18 of the Digital Economy Act, Ofcom, see pg.47