Court rejects Usenet file-sharing ban on Newzbin

A group of movie studios wins a bid to stop the site from directing users to their titles, but loses a wider attempt to stop it indexing all copyright material
Written by David Meyer, Contributor

A high court judge has turned down a request from a group of movie studios to block Usenet-indexing website Newzbin from directing users to copyright-infringing material.

The studios — 20th Century Fox, Universal, Warner Bros, Paramount, Disney and Columbia — brought a suit in February asking for two injunctions against Newzbin, which describes itself as a search engine for content on Usenet bulletin boards. On Monday, the Hon Mr Justice Kitchin handed down a judgement that granted the studios one injunction, which forces Newzbin to stop offering access to copyrighted films owned by those studios.

However, he denied the other injunction, which would have compelled the site to stop indexing all copyright-infringing material posted on Usenet, no matter who owned it.

"I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons," Kitchin wrote in his judgement.

The decision sets a precedent, as the case is the first to be brought by rights holders seeking an injunction under section 97a of the Copyright, Designs and Patents Act 1988. That section gives the courts the power to "grant an injunction against a service provider", if the service provider knows that someone is using its service to infringe copyright. The law does not specify what kind of restrictive action is covered by such an injunction.

Newzbin has a paid premium membership level that lets users search indexed content on Usenet, a global distributed internet discussions system. The site also provides a technology — an XML-based file format called 'NZB' — that helps users download material from Usenet more quickly than would be otherwise possible. The invite-only site, which had a turnover during 2009 of more than £1m, is run by Chris Elsworth (known as 'Caesium'), Thomas Hurst (known as 'Freaky') and Lee Skillen (known as 'Kalante').

On Usenet, those who share copyrighted material do so by splitting up the binary files of that material into hundreds or thousands of fragments, each embedded in a separate message. As Kitchin pointed out, the use of NZB files saves Newzbin users the trouble of manually locating and identifying each message.

"Moreover, the reports in the Newzbin index provide a considerable body of very useful information in relation to each title," Kitchin said. "They include descriptive information, the URL and an NFO file which identifies the individual user who posted the content to Usenet, the email address of that user, information from which the date on which the content was posted to Usenet can be deduced and the number of files making up the particular work."

In his judgement, Kitchin found Newzbin liable for infringing on the claimants' copyrights, for the films 27 Dresses, Atonement, 300, Cloverfield, National Treasure: Book of Secrets and Spiderman 3 in particular.

He made this finding because Newzbin "has authorised the copying of the claimants' films; has procured and engaged with its premium members in a common design to copy the claimants' films; and has communicated the claimants' films to the public," he said.

In his judgement, Kitchin pointed out that the subcategories in the 'movies' category on Newzbin were a strong indication of piracy.

"The overwhelming majority of the reports in the Movies category of the Newzbin index relate to content which is commercial and very likely to be protected by copyright," he said.

Kitchin said that he would therefore grant the injunction related to movies owned by the plaintiffs and will consider what the precise terms of the injunction will be, including any necessary safeguards.

In their other injunction application, the movie studios asked the court to stop Newzbin from indexing "entries identifying any material posted to or distributed through any Usenet group in infringement of copyright".

Kitchin turned down this request for a number of reasons. First, the claimants were "seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence," he said.

"Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights," Kitchin said. "Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain."

Kitchin concluded by saying injunctions issued under 97a should only stop a defendant from violating copyrights of films owned by claimants and could not extend any further.

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