Twentieth Century Fox Film Corporation & Ors v Sky UK Ltd & Ors

A website-blocking order under section 97A of the Copyright, Designs and Patents Act 1988 requires proof that the defendants are service providers, that the target-site operators infringe copyright, that they use the defendants’ services to infringe, and that the defendants have actual knowledge. A Popcorn Time application may fall outside communication to the public and authorisation principles applicable to indexed streaming or BitTorrent websites. Nevertheless, suppliers of the application may be joint tortfeasors with host-site operators where they knowingly provide the software and updated indexes as part of a common design to secure infringing communications. The court may make a proportionate order preventing both dissemination and operation of the application.

The claimants, major film and television copyright owners, sought orders under section 97A of the Copyright, Designs and Patents Act 1988 requiring five major internet service providers to block access to nine websites. The defendants did not oppose the relief or attend the hearing.

Four websites were conventional streaming or BitTorrent sites. Five were associated with Popcorn Time applications, which users downloaded from application-source websites and used to locate and stream content through the BitTorrent protocol. The application-source and update-information websites were not necessarily the same. The central issues were whether the relevant operators infringed copyright, whether they used the defendants’ services to do so, and whether a blocking order was proportionate.

1. Jurisdiction. The four requirements for section 97A jurisdiction were satisfied: the defendants were service providers; the operators of the target websites infringed copyright; they used the defendants’ services for that purpose; and the defendants had actual knowledge. The status and knowledge requirements had already been established in the earlier website-blocking cases.
2. Communication to the public. The operators of Popcorn Time application-source websites did not communicate the claimants’ works to the public. Those websites supplied a tool, while the application running on the user’s computer presented the catalogue and indexed connections. The same reasoning applied to update-information websites. The earlier streaming and BitTorrent authorities therefore did not extend to this aspect of the Popcorn Time system.
3. Authorisation. The application was a sophisticated and user-friendly means of finding, obtaining and viewing infringing content. Infringement was inevitable, the suppliers controlled the index and updates, and they took no steps to prevent infringement. However, the claim as argued concerned authorisation of infringements by host-site operators. The evidence did not establish the necessary relationship between the application suppliers and those operators.
4. Joint tortfeasance. Mere assistance or facilitation is insufficient. Liability arises where the alleged joint tortfeasor induces, incites or persuades the primary infringer, or participates in a common design or concerted action to secure the infringing act. The Popcorn Time suppliers provided the software and updated information which procured and induced access to host websites. They therefore shared a common design with the host-site operators and were jointly liable for their infringing communications.
5. Use of the ISPs’ services and relief. The Popcorn Time operators used the defendants’ services because those services had an essential role in their infringements. Blocking both application-source and update or host sites was proportionate and was likely to prevent dissemination of the applications and interfere with their operation. Orders were made, with the Movie Panda application adjourned generally and each defendant bearing its own implementation costs.