Blocking Torrents in the UK

I enjoy teaching a variety of law related courses. Thus, in addition to our more standard IP offerings, I have also taught property law, civil procedure, licensing, etc. One of my favorite courses is Internet Law. I enjoy that class because I end up learning a tremendous amount from students as both the technology and culture of our electronic society continues to change.

In an important internet and copyright law case, the English Court has just ordered a host of internet service providers to shut-down access to a set of websites that facilitate online copyright infringement.  20th Centruy Fox v. Sky UK, 2015 EWHC 1082. (High Court of Justice for England and Wales).  The action pits media companies (who are the copyright holders) against internet service providers who provide internet access to both home and business users.  The reality, however, is that the ISPs appeared to ready to concede and comply with the court order that effectively removes this black-market access from UK consumers.  It was only Judge Birss who forced the parties to prove their case.

Section 97A of the UK Copyright, Designs, and Patents Act of 1988 provides for “injunctions against service providers” who have “has actual knowledge of another person using their service to infringe copyright.” Here, service providers includes anyone providing “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing and storage of data, and at the individual request of a recipient of a service.”

The court breaks down the statute as having for elements:

  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.

Here, the only real issue is whether the new model of torrent-streaming known as “Popcorn Time” was a form of infringement (2) and whether it used the ISP services to accomplish that end (3).

To operate the Popcorn Time system, a user must install a client-program on his computer (from a Popcorn-Time-Application-Source (PTAS) website) the client-program then looks to another site as a Source of Update Information (SUI) that includes indexes of available content.  The actual streaming then occurs in a peer-to-peer scenario as well as from some “host websites” that are not part of the action here.

The alleged-infringing sites here are either PTAS sites (providing the popcorn-time client application download) or SUI sites (providing an index listing of content available) or both.

No Direct Infringement: In reviewing whether these sites infringe a copyright, Justice Birss found no direct infringement under the UK exclusive rights of “communicating copyright works to the public” because none of the sites actually cause the transfer of copyrighted material. Section 20(2)(b) of the 1988 Act.

No Authorisation: The UK copyright law makes it unlawful to “authori[se] an act restricted by copyright.”  Here, Judge Birss also found no “authorisation” because there was no evidence of any direct connection between the PTAS sites and SUI sites and the host websites.

Yes Joint Tortfeasor Liability:  The final theory of infringement turned out to be a winner for the copyright holders – that of joint tortfeasance.  Under the law previously developed by Justice Kitchen, joint tortfeasor liability in copyright law can occur:

[M]ere (or even knowing) assistance or facilitation of the primary infringement is not enough. The joint tortfeasor must have so involved himself in the tort as to make it his own. This will be the case if he has induced, incited or persuaded the primary infringer to engage in the infringing act or if there is a common design or concerted action or agreement on a common action to secure the doing of the infringing act.

Quoting Sabaf v.Meneghetti, 2002 EWCA Civ 976.

Applying this doctrine to the facts at hand, Justice Birss concluded that the suppliers of the Popcorn Time applications meet the requirements for joint liability with the operators of the host websites:

The Popcorn Time application is the key means which procures and induces the user to access the host website and therefore causes the infringing communications to occur.  The suppliers of Popcorn Time plainly know and intend that to be the case.  They provide the software and provide the information to keep the indexes up to date.  I find that the suppliers of Popcorn Time have a common design with the operators of the host websites to secure the communication to the public of the claimants’ protected works, thereby infringing copyright.

In making this decision, Justice Birss also noted the importance that the software lacks significant and practical non-infringing uses.

To be clear here, the ruling is not that the ISPs are joint tortfeasors but instead that the suppliers of the Popcorn Time application and the indexing websites are joint tortfeasors with the sites that actually host and distribute the infringing content.

Home Delivery: On question (3) above – are the ISP services being used to infringe – the court also sided with the media companies – finding that the provision of internet services to users serves “an essential role in the infringements. . . . It is through the use of the ISPs’ services that the operators of the Popcorn Time websites carry out their acts.”

ALthough the services must now be blocked in the UK – I did check and “” is still available from my Columbia Missouri Starbucks office.

Read the decision here: 20th Century Fox v Sky – Popcorn Time Approved Judgment dated 280415.

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In the U.S., we tend to look less favorably on this style of blacklisting.  However, our culture is changing as media companies increasingly control user’s internet connection.


12 thoughts on “Blocking Torrents in the UK

  1. 4

    Another Birss beauty:

    The fact that wholesale infringements of copyright [were] clearly taking place using the Popcorn Time [was] true enough However, it [was] nevertheless necessary to identify with precision the correct legal basis of the application.

    No “sniff” and hand wave and “whatever”-ends-justify-the-means please.

  2. 3

    Dennis, I think it’s worth explaining in a bit more detail why the ISPs were ready to concede, and why the judge nevertheless called in the media companies and asked them to prove their case.

    This is not the first time that such orders have been sought in the English courts. Paragraph 3 of the judgment lists a long line of previous cases, in which the applicable principles have been hammered out. E.g. the basis on which orders can be granted, and how to ensure proportionality so that it is technically easy for the ISPs to comply and they are not handed an unduly burdensome policing job. [*]

    When such orders were first sought, the ISPs appeared in court to argue their corner. However, now that the issues are settled, they take the view that although they will only act if there is a court order, they no longer oppose the order if it is in the same form as before, and are happy for it to be dealt with on paper.

    The reason Birss J. called in this case is because he spotted that there was a technical difference over previous cases. (He is one of the judges in the Patents Court, and has a strong understanding of both the technical and IP law aspects of computers and the internet.)

    Specifically, he spotted that the Popcorn Time sites worked differently from the BitTorrent sites in previous cases. So he wanted proof that they were indeed infringing copyright. As you have noted, on two of the three heads used previously he held that they weren’t. But there was joint tortfeasorship.


    [*] This proportionality is required by the applicable EU Information Society Directive, on which the UK Section 97A is based. The English courts are bound by decisions which the Court of Justice of the European Union has given when similar cases have arisen in other European countries. I think I’m right to say that the English courts first granted such an order before the CJEU gave any guidance, and that when the guidance came it didn’t require any change in English practice. But for example the CJEU sent back a Belgian case where the order was disproportionately wide.

    1. 3.2

      Excellent posts Tim (here and below).

      A model of objective knowledgeable dissertation without the “EP über alles” effect. A clean, detached, “this is our law” post is always welcome to read.

      I second the thanks!

  3. 2

    Of course, intellectual property infringement is a tort. The idea that it is not and that general principles of tort law should not apply is ridiculous. That is why Judge Rader’s decision in BMC Resources is downright abominable. Under tort law, two or more can jointly combine to infringe, and all are jointly liable.

  4. 1

    Its both impractical and a threat to liberty and free expression to find liability for ISP’s, unless the ISP can be established as a joint tortfeasor. An ISP is like a common carrier; it cannot pro forma police the activity of everyone who uses the line. ISP’s should reasonably cooperate with investigations and court-ordered remediation of IP’s and hosted sites. Beyond ISP’s, whole swaths of cloud businesses could be affected:

    “service providers includes anyone providing “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing and storage of data, and at the individual request of a recipient of a service.”

    That means anyone from to Gmail could be fully subject to patent/copyright liability for the actions of their users. That would make the current patent litigation abuse crisis look like a child’s game in terms of litigation volume, business disruption, and unintended consequences for non-infringing end-users.

    On the other hand, I don’t think it could unfold that way here, but the U.K. has been moving to a more authoritarian, centrally planned society for some time now…it will be interesting to see how hard it sticks there.

    1. 1.1

      Martin, a road services all. Can a court enjoin the owners of a road if someone notifies the road owner that it is being used to carry stolen vehicles?

      Even if the road owner is informed of the illegal traffic, checking for it and stopping it would be a cost that would have to be passed on to the rest of us. Think airports and their security systems as what might happen.

      When I look back at life before terrorism, when we had no security systems at all, when people without tickets could help their loved one’s to board aircraft, I think that one of the major successes of terrorism is imposing on us this loss of freedom.

    2. 1.2

      Martin, you are right to say that ISPs’ liability should be limited. And it is.

      The language you quote….

      service providers includes anyone providing “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing and storage of data, and at the individual request of a recipient of a service.”

      … comes from the the EU Information Society Directive.

      That serves a broadly similar purpose to the DMCA in the USA. It aims to strike a balance between ISPs and rightsholders. It enables rightsholders to take action against online infringements, while at the same time limiting the liabilities of ISPs as common carriers. As under the DMCA, an ISP has no liability unless it receives notice of an infringement and does nothing about it.

      Given that the purpose is to limit their liabilities, I suspect that Gmail would think that a wide definition of “service provider” is appropriate?

      1. 1.2.1

        Tim I thought the object of the case was to find or not find an ISP a joint tortfeasor under the patent and trademark laws- IOW, full liability for the copyright or patent violations from a service provider role, and they were found to be jointly liable. What am I missing?


          No, ISPs don’t have full liability. A suitably limited court order to prevent infringement can be granted, as in the present case, but they have no liability for damages.

          This comes from the interaction of two EU directives, which serve to harmonise the laws of EU member states.

          One is Directive 2000/31/EC on certain legal aspects of information society services (the Electronic Commerce Directive)
          link to

          Article 12 says that an ISP who is a “mere conduit” has no liability for the information transmitted. Compare your “common carrier”.

          Despite this lack of liability, Article 12(3) does permit member states to provide for court orders to terminate or prevent infringement. But Article 15 prevents the imposition of a general obligation to monitor for infringements, so the court order has to be limited to something specific that the ISP has knowledge of – e.g. specific websites.

          Then there is Directive 2001/29/EC (the InfoSoc Directive).
          link to
          Article 3 harmonises the definition of what constitutes copyright infringement on the internet. The CJEU has issued decisions construing this.

          Then Article 8(3) requires member states to provide for injunctions against intermediaries (whereas the earlier Electronic Commerce Directive merely permitted this against ISPs). However, Recital (16) clarifies that this is without prejudice to the provisions relating to ISPs’ liability in the Electronic Commerce Directive.

          By the way, note that the present case was about copyright rather than patents or trade marks. The InfoSoc Directive is specific to copyright and related rights, but the Electronic Commerce Directive is wider.


          Martin, I’ve just realised what is causing you a problem. There is no suggestion in the decision that the ISPs are joint tortfeasors.

          As Dennis noted:
          “To be clear here, the ruling is not that the ISPs are joint tortfeasors but instead that the suppliers of the Popcorn Time application and the indexing websites are joint tortfeasors with the sites that actually host and distribute the infringing content.”

          See paragraphs 55-56 of the decision.

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