The England High Court recently made an order requiring ISPs to block two linking websites located at http://www.solarmovie.so (“SolarMovie”) and http://www.tubeplus.me (“TubePlus”). In doing so, the court in Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 3479 (Ch) (13 November 2013) ruled that the sites, which did not themselves host any content, were nevertheless liable for infringement because they facilitated streaming of content to users by hosting and organizing hyperlinks to the content without consent of copyright owners.
The nature of the sites in issue (the “Websites”) were describe by Justice Arnold as follows:
Each of the Websites provides access to streams of a large range of films and television programmes. In the case of SolarMovie, it appears to be the operators’ policy not to provide access to downloads. In the case of TubePlus, it also provides access to downloads. The Claimants’ evidence is that over 99% of the content accessible via each Website is likely to be protected by copyright. The mode of operation of the Websites is broadly similar to that of the FirstRow website described in [Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch), (“FAPL v Sky”] at [14]-[19]. Importantly, as in the case of FirstRow, the Websites do not host the content in question. Rather, the Websites ensure that the content is comprehensively categorised, referenced, moderated and searchable. In the case of SolarMovie, links to content are supplied by registered users of the Websites subject to approval by moderators. A key purpose of moderation is quality control (i.e. control over the quality of the link and the material to which it provides access). In the case of TubePlus, it is not clear to what extent links are provided by users and to what extent by the operators of the Website.
Users who wish to access content via one of the Websites are provided with a number of these links in response to searches or when browsing. Typically, clicking on a link enables the user to view a stream of the chosen content on an embedded player (as noted above, some of the TubePlus links provide access to downloads). The content is hosted by one of a number of third party websites. Some of the host sites require the user to become a member before streaming the chosen content, while others do not. At least in the latter case, the host sites tend not to be searchable.
The ultimate source of the content varies. In the case of television programmes, it is typically a copy captured from a broadcast (with HD broadcasts being favoured for obvious reasons) or (in the case of older programmes) a DVD. In the case of films, it is likely to be a Blu-Ray disc or DVD, but in other cases it may be a television broadcast or a copy of a film made in a cinema using a camcorder or mobile phone. Users who provide links to SolarMovie must specify the “quality” (i.e. source) of the link.
He gave several reasons for finding that the site operators and third parties were liable for copyright infringement.
First, he concluded that the site operators were liable for violating the restricted right of communication to the public by hosting and making available links to the content to the public.
…As the law presently stands, I adhere to the view that the actions of operators of websites like the one under consideration in FAPL v Sky amount to communication to the public of works within Article 3(1) of the Information Society Directive, and more specifically to making those works available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them. I acknowledge that it is arguable that the mere provision of a hyperlink is not enough to constitute communication to the public (particularly if the hyperlink is not directly to a source of the copyright work). I also acknowledge that it is arguable that it makes no difference whether or not the source of the copyright work to which the hyperlink links is licensed by the copyright owner. I also acknowledge that it is arguable that it makes no difference whether clicking on the links results in framing (i.e. the work being presented within the frame of the operator’s website) or not. What the operators of FirstRow were doing, however, went beyond the mere provision of hyperlinks linking (directly) to (unlicensed) sources of copyright works (which were framed)… they were intervening in a highly material way to make the copyright works available to a new audience…
I turn, therefore, to consider whether there is a material difference between FirstRow and the Websites in this respect. In my judgment, there is no material difference, and the operators of the Websites communicate the Claimants’ works to the public. Indeed, the evidence in the present case makes it clear that it would be very difficult for members of the public to access much of the content directly from the host sites if it were not made available by the Websites. Even where the content could be accessed from the host sites, the Websites make it much easier for members of the public to find what they want. Viewed from the perspective of the user, the Websites do in a very real sense make the content available to the public.
Second, he concluded that even if he was wrong about that, that the operators of the sites that hosted the content communicated the works to the public and that the operators of the Websites were jointly liable for this on the basis of the decision in EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] ECDR 8 at [71]-[74].
Third, he ruled that the users of the Websites were liable for communicating the works to the public because users both uploaded movies to the host websites (the websites that hosted the actual content) and then provided links to the content on the SolarMovie or TubePlus websites.
In the present case the Claimants contend that there is communication to the public by UK users of the Websites who supply links to the Websites. For the reasons explained above, I am not sure that the mere provision of a hyperlink amounts to communication to the public. It is clear from the evidence in this case, however, that many, if not most, of the users in question do not merely provide a link to the host site, they also upload the content to the host site. In my judgment, the combined effect of these acts does amount to communication to the public even assuming that the mere provision of a hyperlink does not.
Last, he found that the operators of the Websites were also liable for the infringement by users on the basis of authorization.
