Dramatico Entertainment Ltd v British Sky Broadcasting Ltd
High Court of Justice, Chancery Division
[2012] EWHC 268

The absence of the operators and users of TPB

9 The operators of TPB have not been joined as defendants to this claim, nor has it been served upon them. They did not appear at the hearing, nor have they been represented. Nor has any user been joined, served, appeared or been represented. It might be asked why it would be appropriate for this Court to determine the *234 preliminary issues in their absence. Counsel for the claimants gave four answers to that question, the first three of which I agree with.

10 First, there is no jurisdictional requirement to join or serve the operators or users of TPB. Article 8(3) of the Information Society Directive and s.97A of the 1988 Act (set out below) confer jurisdiction on the Court to grant injunctions against intermediaries whose services are used by a third party to infringe copyright. Neither art.8(3) nor s.97A requires joinder or service of the third party.

11 Secondly, the courts both in this jurisdiction and in other Member States have proceeded on the basis that it is not necessary to join or serve the third party. In Twentieth Century Fox v BT [2011] EWHC 1981 (Ch) the operators of Newzbin2 claimed to be different to the operators of Newzbin1. I granted the order sought even though the operators of Newzbin2 had not been joined or served and no user was joined or served (although one user did apply to be joined prior to the second hearing). The same approach has been adopted by courts in Belgium, Denmark and the Netherlands. Thus in Stichting Bescherming Rechten Entertainment Industrie Neederland BREIN v Ziggo BV (case 374634/HA ZA 10-3184, judgment of January 11, 2012 ) the District Court of the Hague (Judges Blok, Kalden and Loos) held at [4.42]:

    “The District Court considers on that as follows. The imposing of the claimed order meets the conditions of due process. After all, the measure is imposed after a prior, fair and impartial procedure, i.e. the present proceedings. Contrary to what Ziggo and XS4ALL argue, it is not required that all its subscribers are parties to the proceedings or are heard. It provides that ‘the person or persons concerned’ must be heard. In a case like the present one, in which an order is claimed against intermediaries, such intermediaries can be considered to be the persons concerned in the sense of this provision. Said intermediaries have been heard. Any different interpretation would render the regulation for orders against intermediaries which the European legislator has implemented with the Enforcement Directive meaningless. It is inherent in such regulation that an order can be imposed upon inter alia internet providers to cease their services in proceedings to which the alleged infringer is not, at least not necessarily a party and so is not heard in it. One of the reasons for implementing such an option is precisely, after all, the situation that the alleged infringer cannot be sued, for instance because his identity is not known (see Memorandum, following the report, Parliamentary Documents II 2005–2006, 30 392, no. 6, pp.10 and 11).”

12 Thirdly, it would be impracticable, or at least disproportionate, to require joinder or service of the operators or users of TPB. TPB was set up and originally operated by four Swedish individuals (Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström) who were convicted of criminal offences of aiding and abetting copyright infringement by the Swedish courts. It appears that, while their (unsuccessful) appeals against conviction were pending, they left the jurisdiction of the Swedish courts. While Warg is said to be in Cambodia, it is unclear where the others are. Furthermore, they have claimed that TPB is now operated by a Seychelles company called Reservella Ltd, although this is disputed. In subsequent civil proceedings brought by a number of record companies in Sweden against Warg, Neij and Sunde, the court has thus far been unable to serve *235 the proceedings on the defendants. There is no reason to believe that any attempt to serve English proceedings on them would be any more successful.

13 Even if proceedings could be served upon the operators of TPB, there is no reason to believe that they would seek to defend them or to make representations to this court. The BPI wrote to the operators complaining of infringement on July 12, 2011 and subsequently sent a copy of the letter by email on August 10, 2011, but received no reply. The operators’ attitude is clear from the following passage on the “about” page of TPB:

    “Only torrent files are saved at the server. That means no copyrighted and/or illegal material are stored by us. It is therefore not possible to hold the people behind The Pirate Bay responsible for the material that is being spread using the tracker. Any complaints from copyright and/or lobby organisations will be ridiculed and published at the site.”

True to their word, the “legal threats” page of the website contains links to copies of a series of cease and desist letters sent by right owners together with the operators’ responses, which tend to the profane. The page ends:

    “No action (except ridiculing the senders) has been taken by us because of these.:—)

    Nice graphs for the law firms who don't get the hint above:

        ‘(we used to have a nice graph here, but it’s simpler to just say: 0 torrents has been removed, and 0 torrents will ever be removed.)’”

There is more evidence of this kind.

14 Turning to the users of TPB, the evidence is that there is a considerable number of these in the United Kingdom. While in theory it would be possible to identify those users, or most of them, who were using TPB during a particular period by means of Norwich Pharmacal orders directed to ISPs, that would be a costly exercise in itself. It would be wholly disproportionate to attempt to join or serve all such users, and there would be no basis for singling out particular users for joinder or service. Nor, I suspect, would most users wish to defend the proceedings or even make representations.

15 The fourth answer given by counsel was that any findings of infringement made in these proceedings would not be binding upon the operators or users of TPB. While technically correct, I do not regard this point as particularly persuasive, since if the order sought by the claimants is granted the operators and users of TPB will be adversely affected.