Sony v Easyinternetcafe: A loophole for home CD burning?

The widely anticipated victory for Sony and the other record company claimants in Sony v Easyinternetcafe seemed at first glance scarcely worthy of comment. However, the decision of Mr Justice Peter Smith may carry a sting in the tail for the music industry.

The facts of the case are well known. Easyinternetcafe offered its customers a service whereby files downloaded from the internet by a customer could be copied onto a CD-R in return for a £5 charge. There was evidence that customers of Easyinternetcafé’s CD burning service were – surprise, surprise – downloading music files to be copied onto CDs for them by the internet café staff.

Easyinternetcafe’s very determined smokescreen defence was that it did not know and did not want to know what it was copying for its customers. The judge was having none of this and quickly found Easyinternetcafé liable for copyright infringement. So far so obvious.

The real interest of the case is in comments made by the judge in dismissing one of the internet café’s defences. Easyinternetcafe argued that it and its customers were entitled to rely on the ‘home recording’ exception in section 70 of the Copyright, Designs and Patents Act 1988 allowing for the making of a recording of a broadcast or a cable programme for private and domestic use to enable it to be viewed or listened to at a more convenient time.

This was no help to the internet cafe as Mr Justice Peter Smith dismissed the suggestion that its ‘extensive business operation’ could be considered private or domestic use. As the judge succinctly put it: ‘The defendant is not copying for the purpose of private and domestic use. It is copying for the purposes of selling the complete CD-R for £5.’

He did go on to comment on whether the internet was a form of cable programme service to which the home recording exception therefore applied. This issue has not been decided by the English courts.

It has been held in Scotland in the Shetland Times v Wills decision that the operator of a website posting news articles was operating a cable programme service.

That decision has been criticised by media lawyer Clive Gringras in his book ‘The Laws of the Internet’. He rightly points out that a cable programme service is defined as ‘sending visual images, sounds or other information by means of a telecommunications system otherwise than by wireless telegraphy’, but few websites are ‘sending’ information to visitors. It is more technically correct to speak of information being retrieved from the website by the visitor.

Other commentators, notably the editors of the leading work ‘The Modern Law of Copyright and Designs’ who include leading IP judge Sir Hugh Laddie, have supported the Shetland Times decision. This support is at least partly based on the pragmatic consideration that if the internet does not fall within the definition of cable programme service there will be a gaping hole in the coverage of copyright law.

Although he did not have to decide the point Mr Justice Peter Smith said that he thought the decision in the Shetland Times case was correct, ‘comforted by the fact that that is supported by Laddie.’

He went on to spell out the implications of the home recording exception applying to material copied from the internet. It means ‘that private individuals can build up a substantial private library.’

The full legal and practical implications of this loophole are not yet clear but it is one further worry for the already embattled music industry.

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.