As Mr Justice Kitchin’s judgment in Twentieth Century Fox Film Corporation and Another v Newzbin Ltd  EWHC 608 (Ch) (29 March 2010) has now been reported in the Fleet Streets, EMLR and several other reports and has been discussed extensively in the blogs I thought I might add a few words.
The first point I should make is that I was not led in the case. The reports list David Harris’s name before mine suggesting that I was his junior. I took over Newzbin’s defence at a very late stage because David was unable to continue to represent the company for professional reasons. Alas these only came to light in the course of the evidence which meant that I came into the case only after all the witnesses had given their evidence. All I could do then was to make oral and written submissions.
The case was important for three reasons: -
- Technically: It seems to have been the first case in the common law world at any rate on Usenet as opposed to file sharing technology;
- Commercially: It was something of a victory for the entertainment industries the viability of which have been threatened by digitization; and
- Legally: The decision did make some new law on authorization and communication right.
A good working definition of the Usenet is offered by Wikipedia:
“Usenet is a worldwide distributed Internet discussion system. It developed from the general purpose UUCP architecture of the same name…… Users read and post messages (called articles or posts, and collectively termed news) to one or more categories, known as newsgroups. Usenet resembles a bulletin board system (BBS) in many respects, and is the precursor to the various Internet forums that are widely used today; and can be superficially regarded as a hybrid between email and web forums. Discussions are threaded, with modern news reader software, as with web forums and BBSes, though posts are stored on the server sequentially.
One notable difference between a BBS or web forum and Usenet is the absence of a central server and dedicated administrator. Usenet is distributed among a large, constantly changing conglomeration of servers that store and forward messages to one another in so-called news feeds. Individual users may read messages from and post messages to a local server operated by their Internet service provider, university, or employer.”
In other words the Usenet is a collective term for a massive number of news groups to which subscribers post email like messages in order that they may be read by other subscribers.
To understand Newzbin it is important to appreciate that two types of messages can be posted on a news group, namely text and binaries. Text is text – discussion of a topic in natural language just like any other email. Thus, a subscriber to a news group on cricket might post the latest score in a test match and a subscriber to a cookery news group might post a recipe for cranachan. Binaries can be anything else: photos, software, music or indeed films reduced to digital code.
Binary files of films are very large and therefore have to be broken up into parcels and posted separately to a news group. Locating and downloading all those parcels so that they can be reconstituted into their original format is a long and laborious process that only a few enthusiasts would normally attempt. Newzbin made that task very much easier by cataloguing the Usenet and providing a software tool which could identify and download the components of a film or TV programme. Twentieth Century Fox and the other claimants pleaded that this amounted to copyright infringement. Newzbin contended that it was doing no more than is done by Google or any other search engine.
When I first came to the Bar, Anton Pillers were all the rage. That was because pirated copies of films and records were distributed on video and audio cassettes which made them vulnerable to detection and seizure. Their picture and sound quality were not always good. There was a limit to how many could be made and there was a cost in making and distributing them.
Digital technology changed all that. The technology enabled any number of perfect copies to be made and distributed anywhere in the world instantaneously. That technology presented a much bigger threat to the entertainment.
It was against that threat that the WIPO Copyright and Performance and Phonograms Treaties were negotiated and implementing legislation such as the US Digital Millennium Copyright Act and the EU Directive 2001/29/EC enacted. It was also the threat to which s.3 to s.18 of the Digital Economy Act 2010 was intended to address. It is significant that that legislation was passed in the wash up shortly after Newzbin.
The case addressed two important points of law which I shall discuss in greater detail later in my IP/IT Update blog:
- Authorization: It followed the Australian decision in Cooper v Universal Music Australia Pty Ltd  FCAFC 187 thereby rowing back from the House of Lords’ decision in C.B.S. Songs Ltd and ors v Amstrad Consumer Electronics Plc  1 A.C. 1013; and
- Making Available: It was the first fully argued trial on the communication right introduced by the 2001 Directive.
As counsel in the case, I am constrained as to what I can say specifically about the judgment but I will certainly discuss its implications in more general terms in due course.