Over the last three to four years, the UK Courts have made a series of website blocking orders against ISPs requiring them to block or, at least, impede access to websites which engage in or facilitate copyright infringing activities. Now that the jurisdiction is well entrenched, the Courts are prepared to deal with such applications (which tend not to be opposed by the ISPs) on paper. However, in the most recent decision (20th Century Fox v Sky UK Limited), the Court was faced with a different type of issue – ‘Popcorn Time' application source websites - and, accordingly, required the matter to be dealt with in a hearing. This case is the first time that the UK Court has had to consider Popcorn Time sites and whether they are subject to the website blocking order regime.
In summary, the Judge made the website blocking order, despite deciding that the operators of Popcorn Time application source websites do not infringe copyright by acts of communication to the public (and also, on the evidence before him, do not authorise operators of host websites to infringe). The Judge made the order because the Popcorn Time application was the key means which procured and induced users to access the host website and therefore cause infringing communications to occur. The suppliers of Popcorn Time knew and intended that to be the case and were therefore acting in a common design with the operators of the host websites to infringe copyright.
The Judge summarised the main aspects of Popcorn Time as follows. It is an open source application which users can download onto their computer to enable them to obtain film and TV content using the BitTorrent protocol. In order to access content using the application, users download for free, and install, the Popcorn Time application from a source website (PTAS website). The application enables users to browse, search and locate films and TV programmes using the BitTorrent protocol. To view content, the application downloads the content using the BitTorrent protocol, using sequential downloading (so that users can watch the film/TV programme as a stream). Popcorn Time applications locate torrents by searching catalogues of existing websites which host these torrents (including blocked sites, where the Popcorn Time application circumvents the block). The Popcorn Time applications also maintain links with a website which they use as a source of update information (SUI website) – this allows indexes held by the application to be updated, so that new content is made available to users and the Popcorn Time application itself can be updated.
The Judge decided that the operators of the PTAS websites were not communicating copyright works to the public – because they were not transmitting or re-transmitting copyright works. Whilst they were facilitating the making available of content by making available a tool (ie the Popcorn Time application), the act of communication to the public could not be ‘stretched’ that far. The Judge also decided that the operators of the SUI websites were not communicating works to the public. Unlike BitTorrent and streaming sites (where users consciously visit the sites and are presented with a catalogue from which they select which film to watch, those sites thereby intervening in a material way to make the films available), SUI websites do not present users with catalogue/indexing information (as that is presented to them by the Popcorn Time application).
The Judge also rejected the claim that the suppliers of Popcorn Time applications were authorising acts of communicating to the public committed by the host website operators – but this was because there was no concrete information about that relationship in the evidence.
However, the Judge did decide that the operators of both PTAS and SUI websites were infringing copyright as joint tortfeasors with the operators of the host websites and/or with those placing infringing content on the host sites. The Popcorn Time application was the key means which procured and induced users to access the host website and cause infringing communications to occur. The suppliers of Popcorn Time knew and intended that to be the case and therefore they had a common design with the operators of the host websites to infringe copyright.
Popcorn Time was recently described in a Bloomberg article (referred to by the Judge in his decision) as the torrenting app that was ‘too good to be legal' and as the ‘kindler, gentler face of piracy online’. The Court has confirmed that the acts of those operating Popcorn Time application websites do amount to copyright infringement as a form of joint tortfeasance with those operating host websites and placing infringing content on those sites.