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UK Ruling Dismisses Passive Involvement Defence For Pirate Film Distribution

The Federation Against Software Theft : 08 June, 2010  (Technical Article)
Enabling communications to download film materials illegally judged in UK court to be an infringement of copyright laws in landmark legal case brought by 20th Century Fox
The Federation Against Software Theft has hailed as 'historic' the recent judgement taken by Mr Justice Kitchin in Twentieth Century Fox Film Corporation & others v Newzbin Limited case.

The Judge found that Newzbin had committed copyright infringement by authorising infringement, that it was jointly liable being involved in a common design with its users to infringe and it was an infringer by the direct means of making available by communication to the public.

Newzbin provides indexing services for messages posted on UseNet services. However these messages can carry text as well as other types of files including films, software and music.

The indexing, categorisation and file checking and sourcing services of Newzbin allowed users to locate, reconstitute and download files containing such large content which would be practically impossible otherwise.

John Lovelock, chief executive of FAST, stated: "In court Newzbin claimed that it was content neutral and did not know about the content indexed, saying the majority of the content was legitimate. The judge found that as a matter of fact this was not the case. We were delighted when the Judge had no hesitation in finding Newzbin liable for copyright infringement."

"Critically the Judge found that distribution of large files such as films was far more advanced in Newzbin's system than the simple distribution of text and most of the content was likely to be unauthorised," he added.

Whilst Newzbin had appropriate terms and conditions prohibiting use of its systems for locating unauthorised films and its staff guidance prohibited the reporting of unauthorised material the Judge found that this was cosmetic and that, in fact, Newzbin encouraged such activities.

Dawn Osborne, Partner, Palmer Biggs Legal, and chair of the FAST Legal Advisory Group (FLAG) added: "The Judge found that the directors had assisted users in forums with advice on how to use their system even when it was obvious that the user intended to use the system for copyright infringement and that the directors knew that the vast majority of content involved infringement of commercial content.

"Crucially the Judge disagreed with Newzbin that it was merely an intermediary providing links to material and so was merely passive, Newzbin had intervened in a highly material way to make the films available providing a sophisticated system to allow users to access content of their choice at the touch of a button," she added.

Dawn concluded: "This is a huge step for UK law in this area. Parallels can be drawn with the Grokster judgement in the US. The UK is now an attractive jurisdiction for cases of this kind. Finally this is a step towards the interests of copyright owners against those making a profit from distribution of unauthorised copies."
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