MPAA Gets Court To Block Popcorn Time Websites In UK, Despite Judge Admitting The Sites Don't Actually Infringe

from the we-seem-to-have-a-problem-here dept

We've written in the past about the UK going a bit nuts in ordering ISPs to block sites over potential copyright infringement, often using questionable logic and little concern for the unintended consequences of out and out censorship. Now it's reached a new, somewhat ridiculous level, in which a court has sided with various Hollywood studios in ordering a bunch of websites be blocked for merely distributing versions of the Popcorn Time software, even as the judge admits the studios' argument doesn't make much sense, since the sites themselves don't offer any infringing material, and no infringement flows through the sites themselves.

The court clearly recognizes that a site distributing Popcorn Time is quite different from torrent sites or streaming sites:
So the operators of both BitTorrent sites and streaming website sites have been held to infringe copyright by communication to the public even though the infringing copy of the copyright work itself does not come directly from those websites but because the sites contain catalogued and indexed connections to the sources of those copies. The website operators are held to have intervened in a highly material way to make the copyright works available to a new audience and to infringe.

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. There is no transmission (or retransmission) of the copyright work at all. What the PTAS site makes available is a tool. The tool is the Popcorn Time application. From the point of view of the user, the PTAS site is not the place at which they encounter a catalogue or index of content. It is the Popcorn Time application, when running on the user's computer, that provides catalogued and indexed connections to the sources of infringing copies of the claimants' copyright works. The operators of the PTAS sites are facilitating the making available of the content by providing this tool but that is a different matter. In my judgment the scope of the act of communication to the public cannot be stretched as far as to cover the operation of a site which simply makes the Popcorn Time application itself available for download.

Accordingly I am not satisfied that the operators of the PTAS websites Popcorn Time IO, Flixtor, and Movie Panda are committing an act of communication copyright works.
So, don't order them blocked, right? Not so fast...
The issue I have to decide is whether the suppliers of the Popcorn Time applications are jointly liable with the operators of the host websites. In my judgment they are. 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.

Although I am not satisfied in relation to communication to the public or authorisation by the operators of the Popcorn Time websites, I am satisfied that the operators of these websites (both PTAS and SUI) are jointly liable for the infringements committed by the operators of the host websites.
I understand the logic. The judge is arguing that these tools are mainly used for infringement, and thus that alone should make them somehow responsible and thus they can be blocked. But, that is one slippery slope if you follow that logic all the way down. Under that logic, the VCR should never have been allowed. In the early days -- before Hollywood figured out how to make use of them to the studios' advantage -- most VCR usage was not for authorized content. Ditto for many other innovations as well. Yet, rather than outlawing them, we allowed them to develop, and the industry eventually figured out how to use them properly.

Thanks to this kind of ruling, that will never happen with Popcorn Time (in the UK at least), and that seems pretty dangerous. It's yet another case of Hollywood shutting down what it fears, rather than learning to embrace it and give users what they want.
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Filed Under: blocks, censorship, filters, popcorn time, uk


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  • identicon
    Anonymous Coward, 29 Apr 2015 @ 11:55am

    this goes to show that there doesn't have to be anything illegal going on to get something banned, blocked, stopped, whatever, in the UK. it shows just how far the USA entertainment industries are stuck right up Cameron's ass! the judge is right out of order for doing this when there is no legal basis and no proof of wrong doing. not a very nice country to be in when you dont have to do or be doing anything illegal to receive a legal judgement against you! like the USA, the UK has thrown away it's need of evidence before sentencing is carried out!

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 29 Apr 2015 @ 11:59am

    Thanks to this kind of ruling, that will never happen with Popcorn Time (in the UK at least)

    Other countries that are less afraid of new things will catch up and leave these dinosaurs behind eventually. That's what will happen. It's not like we haven't got good examples throughout History, eh? *wink wink*

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Apr 2015 @ 12:06pm

    "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

    How many MORE times will it take before Madman Masnick understands that using someone else's content is simply illegal? -- Rhetorical question. Hasn't after a decade, never will.

    If you're defending the enablers of infringement, then you're a pirate.

    reply to this | link to this | view in chronology ]

    • icon
      CK20XX (profile), 29 Apr 2015 @ 12:15pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      I'm sorry... I just can't stop giggling at this comment. I REALLY want someone to make a wanted poster for "Madman Masnick" now. He'd probably photograph it, share it with Cory Doctorow, then hang it in his office.

      reply to this | link to this | view in chronology ]

      • identicon
        Pragmatic, 30 Apr 2015 @ 5:06am

        Re: Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

        Well he put up a picture on Twitter of himself in a tutu. It's not that much of a stretch to ask him (very nicely) to put up a picture of himself in a straitjacket. :P

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 12:16pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      "If you're defending the enablers of infringement, then you're a pirate."

      Taking your argument and putting it another way and using the same logic the judge applied to block this site, let's see how it sounds then.

      "If Walmart is selling guns then they're enablers of murder and if you defend Walmart then you're a murderer too."

      Ipso facto, Walmart must be shutdown because they sell tools which CAN be used to take the lives of others.

      I'd ask if you see how retarded that kind of logic, yours and the judge's, is. Except I know Retarded is your nom de plume. So you wouldn't realize how moronic that kind of thinking is.

      reply to this | link to this | view in chronology ]

      • identicon
        Dingledore the Flabberghaster, 30 Apr 2015 @ 2:57am

        Re: Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

        I don't think that's a good comparison because tools sold in WalMart (or Asda, as it's called over here) aren't primarily sold to enable murder.

        King Sized Rizla is a different matter entirely.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Apr 2015 @ 3:29am

          Re: Re: Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

          You can watch non 'copyright infringing' videos on popcorn time as well.

          What's your point?

          reply to this | link to this | view in chronology ]

          • identicon
            Dingledore the Flabberghaster, 30 Apr 2015 @ 9:40am

            Re: Re: Re: Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

            Erm...that King Sized Rizla have only one use. Thought that was obvious. Sorry for confusing you.

            reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 29 Apr 2015 @ 12:18pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      If you're defending the enablers of infringement, then you're a pirate.

      If I defend Ford Motor Company, does that make me bank robber?

      reply to this | link to this | view in chronology ]

      • icon
        tqk (profile), 29 Apr 2015 @ 1:36pm

        Re: Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

        If you're defending the enablers of infringement, then you're a pirate.

        If I defend Ford Motor Company, does that make me bank robber?/em>

        I'm confused. If I defend Hollywood, does that make me The Spanish Inquisition, Josef Stalin, or Pol Pot?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 12:20pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      When will you understand that the studios, labels and publishers wish to control all publications, and choose what creations the public can experience?
      If a bit of piracy is the cost of enabling free speech so be it. It is not as though the studios, labels and publishers are not making a profit.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Apr 2015 @ 3:42am

        Re: Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

        * Unless you go by their accounts...

        reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 29 Apr 2015 @ 12:29pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      I think the VCR and MP3 player were/are great pieces of technology, and led to even more extremely important and useful technological advances and devices.

      Welp, looks like I defend 'the enablers of infringement', guess it's time to hit the store for the eye-patch and stuffed parrot for my official pirate uniform.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 12:34pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      Why are you using this blog's content?

      reply to this | link to this | view in chronology ]

    • identicon
      Nigel, 29 Apr 2015 @ 1:14pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      dude you simply do not get simple coffee time sorta shit, please shut up

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 29 Apr 2015 @ 6:07pm

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      "How many MORE times will it take before Madman Masnick understands that using someone else's content is simply illegal?"

      Well considering that this is simply not true, probably quite a few more times.

      reply to this | link to this | view in chronology ]

    • identicon
      Just Another Anonymous Troll, 30 Apr 2015 @ 6:42am

      Re: "jointly liable" is not a slippery slope. Overt acts with sole purpose to infringe.

      I'm sure you've quoted at least one part of one comment here. That means you used someone else's content, which is illegal and makes you a pirate. Want some rum, matey?

      reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 29 Apr 2015 @ 12:19pm

    Madman Masnick

    Mike's* generally well-reasoned but let's stick to the facts.

    This is a horrible ruling and if it were here in the US it would set a horrible precedent.

    Ehud
    *Well I'm personally butthurt he turned down my offer to go do coffee or whatever for that offer they have in the techdirt store where you get a 30 minute face-to-face with him. I wasn't even going to bring a macaroni-picture for him to sign. However, the reason I originally expressed an interest in the meeting [which was unrequited and I cried for hours --maybe days] was because Mike puts things together. Anyone can analyze a ruling or write a story. It takes knowledge of the context to frame it in a way that expresses WHY and HOW it is important. Still... the story is not about Mike. It's about the judge's ruling. Right?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 12:22pm

      Re: Madman Masnick

      This is a horrible ruling and if it were here in the US it would set a horrible precedent.

      It may not set a precedent in the US, but it will b e quoted in support of similar actions in the US.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 12:37pm

    The only reason why is because "it has no legitimate uses."

    Which, funnily enough, is the reason why LSD is illegal in the UK.

    reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 29 Apr 2015 @ 12:42pm

      Re:

      The only reason why is because "it has no legitimate uses."

      What if you use Popcorn Time only view Public Domain movies?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 1:44pm

      Re:

      The only reason why is because "it has no legitimate uses."

      That assumes that it can only be used for infringing purposes, which is not true.

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 29 Apr 2015 @ 1:44pm

      Re:

      "Which, funnily enough, is the reason why LSD is illegal in the UK."

      Well, then they should legalize it immediately! LSD has many legitimate medical uses.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 1:03pm

    notice it's the dick-licking UK where they got this done! dont even attempt it in the USA. shows what a pussy Cameron and his bunch of wankers are after! anything that hurts the people and makes him out to be Obama's best buddy in that 'special relationship'. fuckin' prick!!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Apr 2015 @ 1:07pm

    "we allowed them to develop"

    And they've allowed PopcornTime to develop as well, you dumb schlub.

    Mike Masnick just loves to see artist's rights trampled.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 1:12pm

    Popcorn Time brings me content I want to watch. I would have no problems paying a subscription for it if the content is there.
    I pay for a Netflix subscription, but it doesn't always have the content I watch because of movie studio cockblocking bullshittery.

    I would also pay for HBO Go if I cared at all about Game of Thrones, which I seem to be the only person in the world who doesn't.

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 29 Apr 2015 @ 1:51pm

    Freedom of speech

    "If you're defending the enablers of infringement, then you're a pirate."

    If you're defending someone you're exercising your right to freedom of speech.

    Those would would remove our right because "someone copied a file" are the threat to free speech, free expression, and freedom in general.

    E

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 2:27pm

    Basically they want to block free and open-source software.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 2:29pm

    The judge got it almost right


    So the operators of both BitTorrent sites and streaming website sites have been held to infringe copyright by communication to the public even though the
    infringing copy of the copyright work itself does not come directly from those websites but because the sites contain catalogued and indexed connections
    to the sources of those copies. The website operators are held to have intervened in a highly material way to make the copyright works available to a new
    audience and to infringe.

    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. There is no transmission (or retransmission) of the copyright work at all. What
    the PTAS site makes available is a tool. The tool is the Popcorn Time application. From the point of view of the user, the PTAS site is not the place at
    which they encounter a catalogue or index of content. It is the Popcorn Time application, when running on the user's computer, that provides catalogued
    and indexed connections to the sources of infringing copies of the claimants' copyright works. The operators of the PTAS sites are facilitating the making
    available of the content by providing this tool but that is a different matter. In my judgment the scope of the act of communication to the public cannot
    be stretched as far as to cover the operation of a site which simply makes the Popcorn Time application itself available for download.

    Accordingly I am not satisfied that the operators of the PTAS websites Popcorn Time IO, Flixtor, and Movie Panda are committing an act of communication
    copyright works.


    Note that the judge issuing the ruling is no other than Colin Birss - the same who wrote the sensible landmark Media CAT Ltd v Adams & Ors [2011].



    A full link to the ruling is in order:

    http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2015/1082.html


    He clearly understands the technology and his reasoning is not that offering a dual use application without more is illegal but rather that the websites are jointly liable on account of their linking the application with torrent indexes which are already blocked and the way in which the application is promoted.

    Had the sites been smart they would just have called their app Torrent streamer and offered it for download and not linked themselves with any online indexes.

    reply to this | link to this | view in chronology ]

  • identicon
    J, 29 Apr 2015 @ 2:50pm

    Well this is what courts do...

    Take a piece of legislation, then find "creative" ways to read it, to get to a result that they want to get to.

    On the face of it the requirements of CDPA s97a are pretty specific:
    Injunctions against service providers

    (1)The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.

    So if somebody isn't infringing copyright, they shouldn't have their website blocked.

    The sites developing Popcorn Time aren't directly dealing in any copyright-infringed material; but the court finds that because they are acting with a "common purpose" with sites that index torrents, then providing PT is indeed using the ISPs' service "to infringe copyright".

    The court also finds it pretty convincing that the software is "authorising" its users to infringe copyright (which is itself to a copyright infringement), but can't formally find that because the movie studios' lawyers screwed up that bit of their case.

    A few posters above have asked, 'but what about VCRs etc' -- the UK does have its own version of the 'Betamax' decision, specifically a case where an Amstrad dual tape deck with double-speed deck-to-deck recording was found not to be "authorising" copyright infringement... which is why Alan Sugar has been fronting The Apprentice on the BBC for the last ten years, while the developers of PT probably won't.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Apr 2015 @ 2:12pm

    Microsoft Windows

    THE most commonly used software used in copyright infringement has got to be Microsoft Windows. But I don't see where the so-called judge ordered Microsoft's websites blocked. Of course, Microsoft has a little more money to throw around than Popcorn Time does. I guess money makes some cocks sweeter than others.

    reply to this | link to this | view in chronology ]


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