Capitol Records and others v BT and others: High Court victory sees cyberlocker website blocked by internet service providers

The UK recorded music industry recently prevailed in a piracy case against a number of internet service providers regarding the operators and users of a cyberlocker website.

The legal action was brought by a number of record companies, both majors and independents, suing for themselves and in a representative capacity on behalf of members of BPI and PPL. The claimants sought an injunction against six defendant internet providers (being BT, EE, Plusnet, Sky, TalkTalk and Virgin Media) requiring them to take measures to block internet users from accessing the website nitroflare.com.

Under section 97A of the Copyright, Designs and Patents Act 1988, the High Court has the power to grant an injunction against a service provider where that service provider has actual knowledge of another person using their service to infringe copyright.

The claimants argued that Nitroflare is a cyberlocker website (meaning a file storage site) that not only allows users to infringe copyrights by making unlicensed commercial content available, including music files,  but was “deliberately designed”  to encourage the uploading and downloading of unlicensed copyright material to and from Nitroflare’s servers. Whilst Nitroflare’s site enables users to upload and download content for free, downloads were made quicker if a user pays for a premium account. The site was further monetised by offering an affiliate programme which rewards users for uploading content and allows those users to earn money each time their uploaded content is downloaded by another user.

This action was brought after the claimants had attempted to use Nitroflare’s own takedown policy to have infringing content removed. This was said to require “substantial efforts” and resulted in the sending of a large number of takedown notices but to “very limited effect” owing to various factors such as the significant delay between infringing content being uploaded and it being identified, the risk of crawler technology failing to identify all infringing content on the site, and Nitroflare’s lack of an automated takedown process.

Based on data evidence, within a 12 month period there were 190 million visits to the Nitroflare website recorded, 4.7% of which were from users in the UK. To demonstrate the large scale piracy being enabled by the site, a representative sample of files showed that Nitroflare had in excess of 11 million links to content available for download, 80% of the files were commercially available, and a further 11% assessed as likely to be commercially available, therefore 91% of those files were likely to be protected by copyright.

It was found that there had been acts of copyright infringement by both the operators and users of Nitroflare, the former by way of communicating works to the public and/or in authorising or acting as joint tortfeasor with the users of the site in their commission of infringing acts, and the latter by making copies of copyright works and communication of those works to the public. Indeed Mr Justice Miles noted that: “Infringement is the inevitable consequence of the service provided by the site”.

The claimant’s requested order was considered both proportionate and necessary to protect the rights of the claimants and the other record company members of BPI and PPL, and so the web-blocking injunction was duly made.

This case is a much welcomed victory for the music industry as a whole. Although the majority of music consumption in the UK today is through legal streaming platforms, and peer-to-peer file sharing networks such as LimeWire may be thought of as relics of the past, the fact remains that file sharing sites are still very real and significant contributors to the estimated £200 million a year that is illegally taken from the music industry by piracy.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.