Columbia Pictures, Disney, Netflix & Ors vs. British Telecommunications, Sky, Virgin & Ors  EWHC 2799 (Ch)
The Applicants (the “Studios”) are members of popular studio groups that own the copyrights to vast quantities of movies and television programs, while the Respondents (the “ISPs”) are the top six Internet service providers. from the United Kingdom.
The Studios requested the grant of a website blocking order under Section 97A of the Copyright, Designs and Patents Act 1988 (“CPDA”) to which ISPs do not. not oppose. The Application relates to five websites (the “Target Websites”) such as 123movies.online, which purport to make available for streaming large amounts of copyrighted film and television content, including content owned by studios, unlicensed.
The Target Sites do not themselves host the content concerned: third-party sites host the audiovisual content transmitted to them. The operation of target websites is to provide links to the content of these third party sites in a user-friendly manner that allows users to search and directly access the content.
Copyright infringement – communication
The studios’ position is that the operators of the target websites are liable for copyright infringement as they allow access to copyrighted works owned by the studios. They argue that the necessary territorial link is made by targeting users in the UK. Providing sites that allow access to copyrighted content in a direct manner is tantamount to “communication”.
The relevant principles of “communication” have recently been considered by the Court of Appeal in TuneIn Inc v Warner Music UK Ltd  EWCA Civ 441 (“To agree“). The judge was satisfied that, as in To agree, Target Sites allow the public to access content from a place and time of their choice. Additionally, by including links to content, target websites provide easy access. In addition, the content is released to the “public” because the target websites have been visited by a large and unknown number of people.
Copyright infringement – authorization and copying:
The Studios have also argued that the operators of the target websites are infringing copyright by allowing acts of copying by UK-based users. This is based on the fact that the streaming process causes the user’s device to create copies of the content in its memory, which is an offense under Article 17 (1) of the CPDA. The judge was convinced that there was an authorization and that counterfeiting by copying is an inevitable consequence of access to the material.
The main evidence presented was a witness statement in support of the claim. This confirmed that in terms of purpose and general mode of operation, the target websites are essentially the same as other websites currently subject to existing website blocking orders under Section 97A.
The judge was convinced that an injunction is needed to reduce the damage to the studios and granted an order to block the website. The activities of the target websites were not curtailed despite attempts to contact their operators. The judge felt that granting the order would be the most effective way to prevent an offense of this nature.
The Studios have confirmed that after the order is granted, they will notify the target websites to CloudFlare and request that they be assigned to dedicated IP addresses. This will help ensure that only material on target websites is blocked.