Twentieth Century Fox v Newzbin , the judgement for this case was released a few weeks ago and has already sent shockwaves through the industry. This article considers the judgement and it’s effects on service providers.
For years now service providers have basked in the protection offered by the e-commerce Directive’s ‘Mere Hosting’ defence. The basic premise is that they would argue that they are providing a service that can be used legitimately for legal purposes, it is not their problem that users end up using the service for illegal purposes for example copyright infringement etc.
Newzbin provided indexes of various media files posted to discussion groups, users paid a weekly fee of 30p to use the service. Newzbin’s claims were simply that it did no more than Google or any other search engine and thus should not be liable for it’s users’ actions. The Court however heard that the following guidance was given to it’s editors:
“People look at our site for movies, games and apps, pretty much in that order…If you report movies, then you get rewarded for it because we want you to report them…you’re benefiting the entire community a LOT more by making movie posts and decoding the cryptic filenames people come up with”.
Mr Justice Kitchin said in his judgement: “[Newzbin] well knows that it is making available to its premium members infringing copies of films…[it] operates a site which is designed and intended to make infringing copies of films readily available to its premium members the site is structured in such a way as to promote such infringement by guiding the premium members to infringing copies of their choice and then providing them with the means to download those infringing copies”.
As mentioned Newzbin charges users 30p per week to access their service, they have over 700,000 members and the court heard that last years revenues were in excess of Â£1m and profits were around Â£360,000.00. The Court found that the evidence of the sites instructions to editors contradicted their claims that they were unawhere of the infringing material located on the site:
“In light of… the structure of Newzbin, the categorisation of content and the encouragement given to editors to report films, I have no doubt that [Newzbin] is and has been aware for many years that the vast majority of films in the Movies category of Newzbin are commercial and so very likely to be protected by copyright, and that members of Newzvin who use its NZB facility to download those materials, including [‘the studios’] films, are infringing that copyright”.
Whilst various parts of the website clearly stated that users should not infringe copyright this was deemed as merely “window dressing” by Jusice Kitchin: “This has not led the defendant to install some kind of filtering system which, on the evidence, it could easily have done. To the contrary , it has actively encouraged its editors to make reports on films, has rewarded them for so doing…I am entirely satisfied that a reasonable member would deduce from the [Newzbin’s] activities that it purports to possess the authority to grant any required permission to copy any film that a member may choose from the MOvies category on Newzbin and that [it] has sanctioned, approved and countenanced the copying of the [studios] films”.
The judgement specifically rejected Newzbin’s claim that they were like Google:
“This service is not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party…to the contrary, the defendant has intervened in a highly material way to make the claimants’ films available to a new audience, that is to say its premium members”.
It seems that this ruling will assist in putting an end to “link” sites i.e. those sites that provide links to media that would infringe copyright. However despite media speculation this ruling will not put an end to ‘tube’ sites and similar, if you look at the wording of the judgement it is clear that the reason for the verdict was Newzbin’s stance towards copyright infringement in terms of encouraging it’s editors and not providing a filtering system. Most ‘tube’ sites and the like now use filtering or hashing systems and also make it clear in their terms and conditions that material uploaded to the site must not infringe copyright or any other third party rights.