High Court concludes The Pirate Bay infringes UK copyrights

High Court concludes The Pirate Bay infringes UK copyrights:

In unsurprising news, Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 establishes that The Pirate Bay infringes the claimants’ UK copyrights by (i) authorising acts of copying and communication by its users; and (ii) engaging in a common design with those users to perform those infringing acts.  In a carefully-reasoned judgment, Arnold J sets out the background technology and analyses recent case law concerning the communication right.

Although this was a clear case, the Court was careful not to water down the applicable tests for secondary liability: authorisation, for example, remains “to grant or purport to grant to a third person the right to do the act complained of” — though it leads to a similar conclusion here to the broader “countenance, sanction of approve” test favoured in Australia (see, eg, Village Roadshow v iiNet).  Interestingly, Arnold J characterised the “means” of infringement as the torrent files:

The means used to infringe. The torrent files which are so conveniently indexed, arranged and presented by TPB constitute precisely the means necessary for users to infringe. It is the torrent files which provide the means by which users are able to download the “pieces” of the content files and/or to make them available to others.

This contrasts sharply with the approach taken at first instance in the Federal Court of Australia, which treated the “BitTorrent protocol as a whole” as the relevant means of infringement.  I suspect that not much turns on the distinction - except that the UK approach emphasises the importance of the application layer tracker service, rather than transport and session layer protocols.

A second interesting element concerns joint tortfeasorship.  Arnold J uses the language “induce, incite or persuade its users to commit [the primary tort]”.  This appears to be broader than the traditional approach to common design or procurement, and much closer to a common law version of “countenance, sanction or approve”.  It will be interesting to consider whether, on this approach, a marketplace such as eBay can be considered to “persuade” its sellers to advertise counterfeit products, or Google “incite[s]” confusing keyword advertisements by suggesting keyword targets.  This departure from the traditionally strict requirements of intent for joint tortfeasance may have unintended consequences.