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On Tuesday, the Motion Picture Association of America and its members won a big ruling from a U.K. High Court when a justice there agreed to issue website blocking orders against several Popcorn Time websites.
Popcorn Time has been called the “Netflix for piracy,” an open-source torrenting app that’s caused great frustration for copyright holders. The original app debuted in 2014 and was taken down for a while, but has since popped up again in new iterations from Popcorn Time IO, Flixtor, Movie Panda and others.
Although Justice Colin Birss has agreed to grant an injunction motion made by Twentieth Century Fox, Universal Studios, Warner Bros., Paramount Pictures, Disney and Columbia Pictures, he does so after struggling with the technological set-up of Popcorn Time and rejecting “significant parts” of the studios’ case.
Ultimately, though, in ordering the biggest U.K. telecoms to block access, Justice Birss has handed down a landmark decision that seems to go further than any court has gone before.
“On paper it was not clear whether the ostensible purpose of the blocking order was intended just to prevent users from obtaining the Popcorn Time application itself or whether it was intended to interfere with the operation of Popcorn Time applications already downloaded,” writes the Justice. “By the hearing this aspect had been clarified: the claimants are seeking to achieve both ends and a blocking order directed to both [Popcorn Time Application Source] and [Source of Update Information] websites is likely to achieve both objectives.”
The justice’s reasoning in getting to this conclusion is interesting.
The ISPs (Sky, Virgin, TalkTalk, etc.) hardly put up a fight, but Birss wished to figure out what he was ordering and put it in context to past blocking orders made against the likes of indexing websites like Newzbin2 and PirateBay as well as illegal streaming sites.
Hollywood studios had a bit of trouble in terms of showing the justice how certain Popcorn Time websites were communicating copyrighted content to users as it’s just a tool. Here’s how the justice puts it:
“The difference with the Popcorn Time system is that now it is the application itself running on the user’s computer which presents to the user catalogued and indexed connections to the sources of the copies. If a PTAS site is purely the source from which the Popcorn Time application software is downloaded and the application itself, once operational on the user’s computer, never connects back to the PTAS site then can the reasoning employed in the earlier cases apply? I do not believe it can. I cannot see how the operator of the PTAS website commits an act of communicating copyright works to the public. The PTAS site simply does not communicate any copyright works to anybody.”
That’s one side.
But Birss also notes that the Popcorn Time app isn’t quite an innocent tool — that it’s “used for users to infringe the copyright in many senses” and further, that it’s unlike a “tape recorder which could in principle be used by a user for any work (infringing or not).” Still, that said, the justice goes back to the point that the suppliers of the app aren’t themselves communicating copyrighted works.
So next question: Are the suppliers encouraging piracy? They aren’t doing much to prevent infringement. The studios might believe that those behind the Popcorn Time app are facilitating piracy through various means, but the justice says that “there is no concrete information about that relationship… if any, between the suppliers of Popcorn Time and the host website operators.”
And yet, after pointing out the flaws of the copyright holders’ theories, Birss won’t let Popcorn Time providers off the hook. That’s because he agrees that the suppliers are jointly liable with the operators of the host websites. Here’s the other key aspect of the justice’s ruling:
“The Popcorn Time application is the key means which procures and induces the user to access the host website and therefore causes the infringing communications to occur. The suppliers of Popcorn Time plainly know and intend that to be the case. They provide the software and provide the information to keep the indexes up to date. I find that the 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.”
And so, after concluding there’s wholesale infringements of copyrights thanks to Popcorn Time and agreeing it’s a proportional measure to block the public from getting the app as well as interfere with those attempting to use the app, he agrees to the injunction. For now, the studios are limited to blocking the IP addresses or URLs that have been identified as facilitating Popcorn Time, but he’s also going to allow the studios to come back for an amended order that will address new sites that are being accessed by the Popcorn Time app.
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