April 29, 2015 | Elizabeth Knight

Does the Popcorn Time judgment put other software distribution sites at risk?

The High Court has blocked another group of websites for reasons relating to copyright infringement, at the demand of members of the Motion Picture Association of America. In one sense the judgment and related blocking order for Popcorn Time constitute an improvement on the usual position of orders granted under Section 97A Copyright, Designs and Patents Act 1988.

The blocking order is appended to the judgment, which improves transparency, something that ORG has been campaigning for as part of our 451 Unavailable project. Previously orders were unpublished. This development means that ORG and others may no longer have to go through the process of obtaining court orders from the High Court. This assumes that the judgments themselves continue to be published, which has not always been the case.

The blocking order also includes safeguards regarding information that must be made available to Internet users. Again this is welcome. It follows the Cartier case, in which ORG intervened and successfully argued that safeguards must be included in blocking orders. The Popcorn Time order again requires ISPs to tell customers that access has been blocked by court order, to identify the parties who obtained the order and to state that affected users have the right to apply to court to challenge the order.

However, it is not all good news. The Popcorn Time blocks represent the first time Section 97A orders have been used to block access to a new type of sites, namely sites that distribute software and do not link to infringing content. This raises the question of whether the judgment could set a precedent for the blocking of other sites that distribute software, such as any other BitTorrent client. In ORG’s view it should not be assumed that all such sites will be blocked.  Mr. Justice Birss emphasized that the Popcorn Time application is used in order to watch pirated content on the Internet and indeed it is also manifest that that is its purpose. No-one really uses Popcorn Time in order to watch lawfully available content.”1

The judge found that the operators of the websites allowing downloading of the Popcorn Time do not commit an act of communicating copyright works to the public. Rather the sites make available a tool. The judge also did not accept that the operators of the Popcorn Time download sites were authorizing infringement by the operators of the host websites. But he decided that the suppliers of the Popcorn Time applications are jointly liable (as joint tortfeasors). Mr. Justice Birss found that “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.”2

It appears that the same reasoning would apply to other websites that allow the download of software such as BitTorrent clients. However, the Judge again emphasized, “the point of Popcorn Time is to infringe copyright. The Popcorn Time application has no legitimate purpose.” This suggests that if a piece of software also has a legitimate purpose, separate from the infringement of copyright, then it is less likely to be blocked. In the current case we believe the judge was probably correct to conclude that the software was the key means of allowing users to access the infringing websites, but we are concerned that this may not always be the case with future blocking applications. Many torrents have a legitimate use.

It appears that the court has applied a reasonable test. Judges will need to be careful in future when applying the test, as this is a complicated issue and most software is multi-purpose. In this case the software has been designed and integrated with web services that are solely designed to target infringing commercial content. Of course with any software there is the possibility of repurposing what it does. It would be wrong, for instance, to block the source code of the applications, or the underlying protocols and technologies such as BitTorrent.

Further decentralisation could make blocking even harder, as it is centralised points that can be targeted by blocking.

ORG will continue to monitor and publish details of website blocks at www.451unavailable.org  We will be looking carefully at future judgments that target new technologies as they are an area of particular risk.

1: Twentieth Century Fox Film Corporation & Ors v Sky UK Ltd & Ors [2015] EWHC 1082 (Ch), paragraph 24

2: ibid, paragraph 55