Dr Craig Steven Wright & Ors v BTC Core (a partnership) & Ors

A copyright work and its fixation are distinct. A structure may be fixed without content which expressly describes or labels that structure. It is enough that the structure is recorded completely and unambiguously, so that the protected subject matter is identifiable with sufficient precision and objectivity.

Fixation need not be permanent. Nor must there be a causal link between the fixation relied upon for copyright subsistence and a later infringement. At the jurisdictional gateway, evidence that third parties could deduce a file format from files written in that format supported a real prospect of proving fixation under section 3(2) of the Copyright, Designs and Patents Act 1988.

The claimants alleged copyright in the Bitcoin File Format and the Bitcoin White Paper, together with database rights in versions of the Bitcoin blockchain. They said that the defendants' operation of the BTC and BCH blockchains infringed those rights.

Most defendants were outside England and Wales. Mellor J permitted service out for the other causes of action but refused it for infringement of copyright in the Bitcoin File Format. He held in [2023] EWHC 222 (Ch) that the claimants had no real prospect of proving that the format had been recorded as required by section 3(2) of the Copyright, Designs and Patents Act 1988.

The issue on appeal was whether the alleged recording of the format in the first block of the Bitcoin blockchain gave the claimants a real prospect of satisfying the fixation requirement.

1. Appeal allowed. Arnold LJ, with whom Warby LJ and Asplin LJ agreed, held that the claimants had a real prospect of establishing fixation of the Bitcoin File Format.

2. The alleged work and its fixation had to be kept distinct. The Bitcoin File Format had been clearly identified as the structure of a block. Whether and when that structure had been fixed was a separate question. The claimants' case was that fixation occurred when the first blockchain block was written.

3. Fixation of a structure does not necessarily require content which defines, describes or labels the structure. The relevant question is whether the structure was recorded completely and unambiguously. The XML-format decisions did not establish that descriptive content was indispensable.

4. The judge should have applied the requirement identified in Levola: whether the alleged fixation made the subject matter identifiable with sufficient precision and objectivity. Evidence that third parties had deduced the format from blockchain blocks supported the claimants' case. It also supported both purposes of fixation: evidencing the work's existence and delimiting the scope of protection.

5. Earlier SAS litigation did not require a different conclusion. Its fixation difficulties arose from the pleaded works and the absence of evidence that the relevant data-file format was set out in them. It did not decide whether a file format could be fixed when the first file conforming to it was written.

6. Copyright protects the intangible work, rather than the particular medium in which it was fixed. Section 3(2), read with section 3(3) of the Copyright, Designs and Patents Act 1988, does not require a causal link between the fixation establishing subsistence and the alleged copying. Fixation need not be permanent and may later be destroyed.

7. Schedule 2 to the Particulars of Claim was not relied upon as the relevant fixation because it post-dated the alleged infringements. The difficulty was temporal, rather than an absence of causation. Whether it could support claims concerning later infringements was left open.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 868, unanimously allowed the claimants' appeal and held that there was a real prospect of establishing fixation.
2. High Court, Chancery Division: Mellor J held in [2023] EWHC 222 (Ch) that the claimants had no real prospect of proving fixation of the Bitcoin File Format and refused permission to serve that copyright claim outside the jurisdiction.