The portion on the judgement relating to this:
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Authorisation
The law with regard to authorisation was considered by Kitchin J in 20C Fox v Newzbin at [85]-[95]. At [89] he cited a passage from the speech of Lord Templeman in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013 at 1053-1055 in which Lord Templeman approved the definition of "to authorise" given by Atkin LJ in Monckton v Pathe Freres Pathephone Ltd [1914] 1 KB 395 at 499, namely "to grant or purport to grant to a third person the right to do the act complained of". Kitchin J continued at [90]:
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"In my judgment it is clear from this passage that 'authorise' means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances."
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He went on at [98]-[102] to conclude on the fact of that case that Newzbin Ltd had indeed authorised infringements of the claimants' copyrights by its premium members.
I shall consider each of the factors identified by Kitchin J in turn.
The nature of the relationship. TPB provides a sophisticated and user-friendly environment in which its users are able to search for and locate content. John Hodge, BPI's Head of Internet Investigations, describes in his witness statement how the website is organised and the functions that are available to users. As he explains:
i) TPB indexes and arranges torrent files so that users can choose between various different search facilities to assist them in browsing for content to download or in locating specific content or categories of content.
ii) When uploading a torrent file, users are required to provide detailed information about it. This information provides TPB with the ability to index it and make it available for searching. It also assists users in deciding whether or not to download it.
iii) TPB does not merely receive the upload of the torrent file, it processes it. For example, TPB deletes any tracker server that may have been nominated by the uploader in the torrent file and replaces it with tracker servers of TPB's choosing.
iv) Users are provided with assistance and advice as to how to download from the site and as to the trustworthiness of particular torrents. Status badges are awarded to uploaders to provide an indication of number and popularity of their uploads.
v) Users are also provided with assistance and advice as to how to circumvent blocking measures taken as a result of court orders.
vi) Users are offered links to "cyberlocker" storage facilities for downloaded material.
vii) Registered users are able to set preferences which allow them to choose what material can be downloaded and how information is displayed on the website.
viii) TPB provides a forum for users to share information about content and even to ask other users to upload particular content which might not currently be available.
ix) Users are offered a choice of 35 different languages to facilitate and encourage the widest possible participation in the use of its services by those engaged in P2P file-sharing.
These features are plainly designed to afford to users of TPB the easiest and most comprehensive service possible. TPB is in no sense a passive repository of torrent files. It goes to great lengths to facilitate and promote the download of torrent files by its users.
The means used to infringe. The torrent files which are so conveniently indexed, arranged and presented by TPB constitute precisely the means necessary for users to infringe. It is the torrent files which provide the means by which users are able to download the "pieces" of the content files and/or to make them available to others.
Inevitability of infringement. Infringement is not merely an inevitable consequence of the provision of torrent files by TPB. It is the operators of TPB's objective and intention. That is clear from the following:
i) Its name – The Pirate Bay – and associated pirate ship logo are clearly a reference to the popular terminology applied to online copyright infringement: online piracy.
ii) According to a statement published on its site, it was founded by a "Swedish anti copyright organisation".
iii) The matters described in paragraph 13 above.
iv) In the first instance judgment in the Swedish criminal proceedings, Lundström was recorded as stating that "the purpose of the site was pirate copying".
v) It is also evident from the numerous proceedings in other European jurisdictions that the operators of TPB are well aware that it is engaged in copyright infringement. Injunctions and other orders against the operators of TPB have been ignored. Orders against TPB's hosting service providers have been circumvented by moving TPB to new providers.
Degree of control. TPB would be able to prevent infringement of copyright, should its operators so wish. As the website makes clear, torrents can be removed. They will be removed if "the name isn't in accordance with the content" or if they are "child porn, fakes, malware, spam and miscategorised torrents". As a matter of policy, however, the rights of copyright owners are excluded from the criteria by which the operators of TPB choose to exercise this power.
Steps to prevent infringement, Despite their ability to do so and despite the judicial findings that have been made against them, the operators of TPB take no steps to prevent infringement. On the contrary, as already explained, they actively encourage it and treat any attempts to prevent it (judicial or otherwise) with contempt. Indeed, according to a statement on the website, the reason for its recent adoption of Magnet links as the default option is that "it's not as easy to block as .torrent files". This confirms the operators' determination to do whatever they can to provide users with unrestricted access to torrent files and thereby enable the users to continue to infringe. As noted above, BPI has asked TPB to cease infringing its members' and PPL's members' copyrights, but this request has been ignored.
Conclusion. In my judgment, the operators of TPB do authorise its users' infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting. On any view, they "sanction, approve and countenance" the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of. It is no defence that they openly defy the rights of the copyright owners. I would add that I consider the present case to be indistinguishable from 20C Fox v Newzbin in this respect. If anything, it is a stronger case.
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