20^th Century Fox v BT:  Can an ISP have ‘not the right kind of knowledge' in respect of copyright enforcement liability?

Second report on the case from last Wednesday in the High Court, when I attended the hearing.

 The case of Twentieth Century Fox v BT  (the Motion Picture Association of America ‘s European arm suing  British Telecommunications)  could be a key landmark case for copyright enforcement on the Internet.  At stake is whether an ISP in Europe  can be ordered to block a website which is alleged to be   infringing copyright.  The legal chasm between the two parties  is the meaning  of ‘actual

knowledge' under UK copyright law.  In a nutshell, it concerned whether the ISPmust be informed of specific infringements (BT's position) or whether it was sufficient for rights-holders to inform the ISP in general terms of alleged infringing activity ( the MPA position).

Richard Spearman Q.C, representing the Motion Picture Association ( MPA - the European arm of the MPAA) accused BT of taking an ostrich-like approach.  "Article 8.3 makes reference to actual knowledge"  said Mr Spearman "It's obvious that BT has enormous knowledge of infringing activity but not the right sort of knowledge."

BT, represented by Antony White, QC,  does state that it is not good enough just to make  general claims that a website is infringing. Indeed, BT is quick to point out the dangers of this approach, which risks catalysing an avalanche of claims against ISPs.  BT   contends that ‘the right sort of knowledge' is a court ruling that specific  content is infringing, since it is  neither legal nor is it  desirable for an ISP to make decisions on the permissibility of Internet content.

Although the site question, Newzbin, has previously had a  court ruling which found against it, the ruling asked the site to take down specific content. It did not classify the entire site as ‘infringing'. BT argues that - if  it is legitimate for it to be asked to block -  it must be told about  specific content, and that the proposed order to block the entire website is overbroad.

Antony White (BT)  argued that proposed wording of the order which the other side are  demanding, would have the effect of asking it to monitor all of its customer traffic for the benefit of one rights-holder, namely the Motion Picture Association. BT further argued that its technology, whilst it  can prevent BT's own subscribers from accidentally stumbling over the allegedly infringing content, cannot prevent an infringement. The difference is important. Anyone intent on infringing can find other ways.

One of the cases that BT relied on  was  the Belgian  case of  Sabam v Scarlet, where the Advocate General's Opinion has stated that a filtering order - not exactly the same as the proposed order for BT but  on the same legal basis - is incompatible with EU law.

Please attribute this article: Monica Horten (2011) Hollywood v BT: the wrong kind of knowledge?  http://www.iptegrity.com  3 July2011 .  

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed.

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