In the recent and related cases of Capitol Records and others v British Telecommunications plc and others, and Young Turks Recordings Ltd and others v British Telecommunications plc and others, the High Court ordered the six main internet service providers (ISPs) in the UK to block access to cyberlocker and stream-ripping websites. This was the first time website blocking orders have been granted in relation to websites of these kinds.
A cyberlocker website is a file storage site similar to legitimate cloud storage sites like Dropbox but including features which make available unlicensed commercial content by allowing users to upload and download content to and from its servers.
The application brought by Capitol Records and others concerned a cyberlocker website called "Nitroflare.com" (the site). The court noted several features of the site that encouraged the infringement of copyright owned by or exclusively licensed to record companies, including that the site:
- Allowed users to upload and download content to the site's servers for free
- Rewarded users who uploaded content by enabling them to earn money each time their uploaded content was downloaded by another user
- Had a policy whereby uploaded files which were not downloaded by anyone for a period of 90 days would be removed
- Provided users with URL links for sharing once they uploaded a file. There was no ability to limit access
- Widely disseminated the links on sites which aggregate links to music or other copyright-controlled content
- Offered much larger storage capacity than typically offered by legitimate cloud storage services.
The court found the site’s users had infringed copyright by uploading and downloading infringing content from the site. The court also found infringement of copyright by the site’s operators, having shown that the site was deliberately structured for the purpose of inducing users to upload commercial content.
Stream-ripping is the process of converting the audio files attached to music videos offered on streaming services (YouTube, for example) into permanent audio downloads.
In the application brought by Young Turks Recordings Ltd, users of the infringing sites copied the YouTube URL for the relevant video onto the stream-ripping site or Downloader App (downloaded from the infringing sites), and converted the file before downloading and storing it on the user’s device. YouTube deliberately prevents the downloading of content but the conversion technology provided a means of getting around these safeguards.
The court found that the users had infringed copyright when converting and downloading infringing content and the operators of the various stream-ripping websites had infringed copyright both by the operation of the stream-ripping service on the sites, and by the provision of the downloader app.
Good news for copyright owners
In both cases the operators of the sites had directly infringed copyright by performing unauthorised acts of communication to the public. The court applied the European Court of Justice ruling in Stichting Brein v Ziggo BV and others which had concluded that "deliberate facilitation" was sufficient to establish an act of communication, and that this could be shown if the operator had an intention to facilitate infringement when providing the service.
The court concluded that the operators of Nitroflare.com had sufficiently intervened to give the site’s users access to copyright works. As to stream-ripping the court found a deliberate facilitation of infringement of copyright as sites were created with the intention of providing "conversion" links to remove audio files from the original music video files.
These cases illustrate the English court’s willingness to update the types of blocking order available to respond to new types of infringement and will be welcomed by copyright owners as a new tool in their continuing game of cat and mouse with internet infringers.