On 29 March 2010, Justice Kitchin of the England and Wales High Court gave Hollywood film makers a copyright infringement win they couldn’t have scripted better themselves.
The decision can be contrasted to the recent Australian iiNet decision (read our previous post here), in which iiNet was found not to have authorised infringement of copyright after its customers used iiNet’s ISP service to engage in the unauthorised downloading of movies and other content. The appeal of that decision is likely to be heard in August this year.
As to why Newzbin was found liable whereas iiNet was excused, the answer can be found in the functions of each entity. It was contended that Newzbin was a site focused on piracy, and this is what the Court essentially found. By contrast, iiNet is an internet service provider much more removed from this process.
In the iiNet case, Justice Cowdroy dismissed the studios’ claims on the basis that, essentially, they had picked the wrong defendant. Newzbin perhaps presents an example of the ‘right’ defendant. The Newzbin facility through which complete films were accessed provided the means for infringement, was created by Newzbin, and was entirely within Newzbin’s control.
Newzbin indexed and categorised films found on “Usenet”. The Usenet system acts as an “electronic equivalent of public bulletin boards”. When a user uploads binary material (such as films) onto Usenet, the material is encoded and split into numerous parts. To download a film from Usenet, a user must onerously and inconveniently locate and download the potentially hundreds or thousands of related parts.
Newzbin’s efforts enabled members to search for films, and developed and provided a facility so that Newzbin’s premium members could access a complete copy of a film with the click of a button. Newzbin also sub-categorised films according to source, which often suggested that the copy was unlawful, and provided premium members with a range of other information about the relevant film.
Newzbin argued it did not infringe copyright as its website was merely a search engine like Google directed to Usenet, and that it was “content agnostic”. Justice Kitchin disagreed, finding that Newzbin had infringed copyright by:
· authorising acts of infringement by Newzbin members;
· procuring, encouraging and entering into a common design with its members to infringe; and
· communicating the Claimants’ copyright works to the public, namely Newzbin’s members.
The Claimants were granted an injunction (the specifics of which will be subject to further argument) restraining Newzbin from infringing copyright in the Claimants’ respective film repertoires. Damages, including additional damages, also remain to be determined.
