The application concerned 9 different target websites and was initially made on paper. After recalling the conditions under which an order may be granted on paper (which in any case is something for the court to decide), Birss J refused to deal on paper with this particular application. This was on consideration that, because of their characteristics, five websites raised "new and different issues" [para 15] from those considered in earlier applications.
All such websites employed the same Popcorn Time system which - in Birss J's opinion - would not allow per se a finding of infringement - whether primary or secondary - of the right of communication to the public within s20(2)(b)CDPA.
Popcorn Time
As explained by the judge, Popcorn Time refers to an open source application which must be downloaded by the user onto their computer from a Popcorn Time application source website (PTAS website) to browse, search and locate film and TV content using the BitTorrent protocol. The application, which is free to download and does not require the user to return to the PTAS website at all afterwards - operates as a Bit Torrent client but with the addition of media player software, an index/catalogue of titles and images and descriptions of titles.
Once a work has been selected the application downloads the content using the BitTorrent protocol, but the user may start watching it as soon as the process starts, ie without waiting for the completion of the download.
Popcorn Time applications locate torrents by searching catalogues of existing websites which host those torrents. At times they do so by circumventing existing blocks [so the (evergreen) question may become: are blocks effective?].
As stressed by Birss J, "[n]o-one really uses Popcorn Time in order to watch lawfully available content." [para 24]
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| Yet an explanation was provided for Popcorn Time |
In order for a court to be able to issue an order pursuant to s97A CDPA, there are four matters that need to be established:
(1) that the ISPs are service providers;
(2) that the users and/or operators of the target websites infringe copyright;
(3) that users and/or the operators of the target websites use the services of the ISPs to do that; and
(4) that the ISPs have actual knowledge of this.
(4) that the ISPs have actual knowledge of this.
While (1) and (4) were not really controversial in this case, Birss J focused his analysis on (2) and (3). In relation to the latter the judge found that the Popcorn Time application was a means necessarily used for users to infringe the copyright of the claimants in many senses. However whether (3) was also met in this case proved more challenging to determine.
Did the operators of the target websites infringe copyright? Yes, but not by communicating works or authorising infringement
As happened in previous applications for blocking orders, the applicants had put their case in three ways: (1) communication to the public; (2) authorisation, and (3) tortfeasance. While Birss J found infringement in respect of (3), he held that the Popcorn Time system did not infringe copyright by means of (1) or (2).
In this Kat’s opinion, the part of the decision on (1) in particular is fairly interesting.
Although Birss J did not refer to recent decisions of the Court of Justice of the European Union (CJEU) on the right of communication/making available to the public, he appeared to dismiss implicitly the approach taken in Svensson [Katposts here] and its progeny, ie BestWater [here] and C More Entertainment [here and here].
While in those cases the CJEU suggested that to have an act of communication/making available to the public it is not necessary to transmit any work, at para 38 of his decision, Birss J stated:
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| Only fully licensed popcorn for Benedict |
This bit of Birss J’s decision is in line with what the European Copyright Society suggested in its Opinion on Svensson [cf the very different approach takeninstead by ALAI, on which see - amongst others - here], ie that to have an act of communication it is necessary to transmit a work.
In conclusion
Birss J found that the court had jurisdiction under s97A. Nonetheless, “[t]his case was … much more complicated that it appeared to those seeking the s97A order. The fact that wholesale infringements of copyright [were] clearly taking place using Popcorn Time [was] true enough However, it [was] nevertheless necessary to identify with precision the correct legal basis of the application.”
In relation to the Popcorn Time system this was tortfeasance in relation to (3), but not communication to the public or authorisation, as had been instead the case in previous applications.
In relation to the Popcorn Time system this was tortfeasance in relation to (3), but not communication to the public or authorisation, as had been instead the case in previous applications.