Infringement - Artistic work - Claim arising from use of peer-to-peer file-sharing website to download music

Dramatico Entertainment Ltd and other companies v British Sky Broadcasting Ltd and other ­companies: ChD (Mr Justice Arnold): 2 May 2012

The claimants were record companies claiming on their own behalf and in a representative capacity on behalf of other members of BPI (British Recorded Music Industry) Ltd and Phonographic Performance Ltd.

The defendants were the six major retail internet service providers. In a judgment of 20 February 2012 (see [2012] All ER (D) 01 (Mar)), the court held that the users and operators of the notorious file-sharing website The Pirate Bay had infringed the claimants’ copyright (the first judgment). The claimants subsequently agreed orders with five of the six defendants, intended to block or impede access to The Pirate Bay. The court provided its reasons for the making of those orders.

In order for the court to have jurisdiction to make the orders sought by the claimants, three matters had to be established. First, that the defendants were ‘service providers’ within the meaning of section 97A of the Copyright, Designs and Patents Act 1988. Second, that users and/or the operators of The Pirate Bay had used the defendants’ services to infringe copyright. Third, that the defendants had actual knowledge of that. Regarding the third matter, the claimants contended that the defendants had acquired actual knowledge by: (i) evidence given by counsel during the proceedings on behalf of the BPI; (ii) the contents of the claimants’ evidence in support of the instant claim; and (iii) the findings of the first judgment. Consideration was given to the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013 (the regulations).

The court ruled: Section 97A of the act empowered the High Court to ‘grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright’ (see [4] of the judgment).

Regarding the first matter, there could be no doubt that the defendants were service providers within the meaning of regulation 2 of the regulations, and hence within the meaning of section 97A of the act. In relation to the second matter, on the evidence, both users and operators of The Pirate Bay had used the defendants’ services to infringe copyright. Regarding the third matter, the submissions of the claimants were sufficient to demonstrate knowledge (see [5]-[7] of the judgment).

Orders would be made as sought by the claimants (see [9] of the judgment).

Ian Mill QC, Edmund Cullen QC and Tom Richards (instructed by Forbes Anderson Free) for the claimants; the defendants did not appear and were not represented.