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Do I infringe others’ copyright by using stream-ripping or file sharing websites?

2021-03-29

Introduction

In the recent cases of Young Turks Recordings Ltd & Ors v British Telecommunications plc & Others [2021] EWHC 410 (Ch) (“Young Turks”) and Capitol Records & Ors v British Telecommunications plc & Others [2021] EWHC 409 (Ch) (“Capitol Records”), the UK High Court found that the operators and users of a major stream ripping website and various main cyberlocker (i.e. file hosting/sharing websites) websites (the “Sites”) have infringed the copyright of musical records owned by the claimant record companies. These two cases are the first cases where the UK court has granted orders requiring internet access providers (“ISPs”) to block access to the stream ripping and cyberlocker websites pursuant to section 97A of the Copyright, Designs and Patents Act 1988.


Background

The facts of both cases are similar. The claimants are record companies suing for themselves and in a representative capacity on behalf of other record company members of BPI (British Recorded Music Industry) Limited and Phonographic Performance Limited.

Young Turks concerns stream ripping, which means the conversion of streamed audio contents such as those on YouTube into permanent audio downloads which can be stored for future consumption and/or shared with others.

On the other hand, Capitol Records concerned cyberlockers, which are file-sharing sites making unlicensed commercial content such as music files available by allowing users to upload and download unlicensed content to and from its servers.

Both cases have the same defendant ISPs and are dealt with by Mr Justice Miles. Since the legal principles and decisions are largely the same, the analyses of both cases are summarized as follows.


The claimants’ case

The claimants either own or are the exclusive licensee of the UK copyright in their musical recordings and none of them had granted any license to the Sites for use of the same. The claimants contend that the Sites have infringed their copyright:

1.        by the operators of the Sites – in providing means for conversion to enable users to permanently download content from streaming services, communicating works to the public and/or in authorizing or acting as joint tortfeasors with the users of the Sites.

2.        by downloading users – in making copies of works, and uploading users – in communicating works to the public.


Infringement of copyright

Infringement by the operators

The Court held that the operators have infringed the copyrights of the claimants because there is communication to the public:

1.        The operators of the Sites have intervened, in full knowledge of the consequences of their action, to give their customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the broadcast work, or would be able to do so only with difficulty. Such intervention is found to be active as the Sites are set up and exist to enable users to access and download content in an easy and convenient way and the Sites encourage such downloading. The fact that the Sites involve profit-making through advertising and subscriptions are also relevant.

2.        The works have been made accessible to a sufficiently large number of people because the copyrighted works were made available to the entire internet public. The works are also made accessible to a “new public” (i.e. a public which was not considered by the authors concerned when they authorized the original communication) and by different technical means because the Sites have made the recordings freely available for downloading without any license from the claimants to all users of the Sites.

3.        Having considered factors including the appearance of the webpages, language(s), currency(ies), and the nature and size of the service provider’s business, the Court found that the Sites are objectively targeted at the UK public because (i) the Sites are in English; (ii) there are a large numbers of UK visitors; and (iii) payment is allowed to be made in GBP.

Further, the Court found that the claimants had not authorized the operators of the Sites to infringe their copyright. Mr Justice Miles considered the following factors and made the following findings:

1.        Nature of the relationship: the Sites provides a user-friendly environment for users to upload and download content easily;

2.        Means used to infringe: the facilities of the Sites provide a means for copyright infringement, and in particular, conversion technology provided by stream ripping websites enables user to circumvent the copyright-protecting safeguards built into the streaming services;

3.        Inevitability of infringement: infringement is the inevitable consequence of the service provided by the Sites;

4.        Degree of control: the operators have set up and administered the Sites;

5.        Commercial purpose: the Sites has been set up and operated to generate revenue; and

6.        Steps taken by the Sites to prevent infringement: the Sites have not taken genuine steps to prevent infringement. The operators have not adopted an effective takedown policy to prevent infringement.

In addition, the Court held that the operators of the Sites have induced, incited or procured users of the Sites to commit infringement of copyright, and that they and the users act pursuant to a common design to infringe. Accordingly, the operators are jointly liable for the infringements committed by users.

Infringement by the users

1.        Downloading users

The Court held that users infringed the copyright by clicking on a link or a button in the downloader application in order to obtain a copy of copyright works without license and downloads the content, thereby copying the contents contained in those files onto his/her computer.

2.        Uploading users

Infringement by uploading users appears in the Capitol Records case only, where users are allowed to upload files onto the Sites. The Court found that such users have infringed the copyright of the claimants because they have knowingly and intentionally intervened to give access to the uploaded works to the public. Uploading users are also offered financial incentives for encouraging other users to download the content they have uploaded.


Relevance to Hong Kong

Stream ripping websites and cyberlockers are becoming popular in the file-sharing market. They are easy to use and users can enjoy copyrighted works at low costs or even for free. However, such “digital piracy” should not be tolerated.

There is yet a case on stream ripping websites and cyberlockers in Hong Kong. Although Young Turks and Capitol Records are not binding on Hong Kong courts, they may provide useful guidance and persuasive support for copyright owners to apply for remedies against similar infringing websites in Hong Kong, because similar statutory bases as relied on by the claimants in both cases can be found in the Copyright Ordinance (Cap.528) (the “Ordinance”).

First, the operators of stream ripping websites and cyberlockers are likely to have infringed copyright of works under section 31(1)(d) of the Ordinance, which stipulates that the copyright in a work is infringed by a person who, without the license of the copyright owner distributes (otherwise than for the purpose of or in the course of any trade or business) to such an extent as to affect prejudicially the owner of the copyright, a copy of a work which is, and which he knows or has reason to believe to be, an infringing copy of the work. Such person commits an offence under section 118(1)(g) of the Ordinance and is liable for a maximum penalty of imprisonment for four years and a fine of $50,000 for each infringing copy pursuant to section 119(1) of the Ordinance.

In addition, the operators are likely to have infringed copyright in a similar manner as in Young Turks and Capitol Records by (i) authorizing others to infringe copyright without the license of the copyright owner under sections 22(2) of the Ordinance; (ii) issuing infringed copies to the public under section 26 of the Ordinance; and (iii) providing services to circumvent effective technological measures under section 273C(1)(g) of the Ordinance.

On the other hand, users of stream ripping and cyberlocker websites are likely to have infringed copyright by downloading and thereby copying the works pursuant to section 23 of the Ordinance.

Therefore, website operators should note that they may nevertheless infringe copyright even though they are simply providing the platform to users as a means for file-sharing. More importantly, the general public should bear in mind that a simple one-click download of works protected by copyright may constitute copyright infringement, and therefore should pay high degree of attention before taking any such action.




For enquiries, please feel free to contact us at:

E: ip@onc.hk                                                                    T: (852) 2810 1212
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www.onc.hk                                                                F: (852) 2804 6311

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2021


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