Capitol Records & Ors v British Telecommunications Plc & Ors

Internet service providers may be ordered under section 97A of the Copyright, Designs and Patents Act 1988 to block access to a website where the statutory conditions are established and the order is proportionate.

A website operator may communicate copyright works to the public where it deliberately intervenes to give users access to protected content. Authorisation and joint tortfeasorship may also arise where the service is structured to facilitate infringement, infringement is highly probable or inevitable, the operator controls the means used, and its preventative measures are ineffective.

Targeting the UK is assessed objectively by evaluating all relevant circumstances. A blocking order remains proportionate where legitimate use is negligible and the order is carefully drafted.

Record companies applied for an order under section 97A of the Copyright, Designs and Patents Act 1988 requiring six major internet service providers to block subscribers’ access to Nitroflare, a file-storage website alleged to facilitate large-scale copyright infringement.

The defendants accepted the form of the proposed order and did not oppose its making in principle. The issues were whether the defendants were service providers, whether Nitroflare’s operators and users infringed copyright, whether the defendants’ services were used for that infringement, whether the defendants had actual knowledge, and whether the order was necessary and proportionate.

1. Order made. The defendants were required to block access to Nitroflare under section 97A of the Copyright, Designs and Patents Act 1988.
2. The defendants were service providers within regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002. The users and operators of Nitroflare used their services to infringe copyright, and the defendants had actual knowledge of the relevant infringement evidence.
3. The operator communicated copyright works to the public. Applying Stichting Brein v Ziggo BV and others (Case C-610/15), deliberate facilitation of access may constitute communication where the operator intervenes with knowledge of the consequences. Nitroflare was designed to provide convenient access to protected commercial content, and the evidence supported an intention to facilitate infringement.
4. Users who uploaded copyright works also communicated them to the public. UK users who downloaded files made copies in the UK contrary to section 17 of the Act.
5. The operator authorised users’ infringements. The relevant circumstances included the relationship with users, the means of infringement, the probability or inevitability of infringement, the operator’s control, and the absence of effective preventative measures. The notice-and-takedown system was inadequate because content was continuously replenished, duplicate links remained available, and responses were delayed or incomplete.
6. The operator was jointly liable with users. It induced, incited or procured infringement and acted with users pursuant to a common design. The service was structured to profit from the availability and downloading of popular commercial content.
7. The hosting safe harbour did not prevent injunctive relief. The proposed order was necessary, effective and proportionate. Legitimate storage use was likely to be negligible, the order was carefully drafted, and the copyright owners’ interests outweighed any affected interests of users or operators.