Israel Court Issues Injunction against ISPs and Recognizes Contributory Copyright Infringement

ISP

NMV Entertainments LTD (formerly NMC Music LTD) et al. records Israel music and represents some of the larger foreign music canneries. They have sued Bloomberg Inc. and various Internet Service Providers (ISPs) including Bezeq International, Partner, 013 Netvision, 012 Smile Telecom, Hot-Net Internet LTD and Aharon Perfori (then the owner of Unidown, which was subsequently transferred to Bloomberg).

Unidown is a limited company incorporated in the Seychelles. The issue in question is access to the Unidown and Downsong websites as found at http://www.unidown.co.il and http://www.downsong.net which serve as a supermarket of music that enable the public to download songs without any royalties being paid to the rights holders.

The plaintiffs applied for the websites to be closed down, 150,000 Shekels in statutory compensation without proof of damages (the amount limited to minimize the court fees), and legal fees to be carried by the defendant, and most significantly, that the various internet service providers (ISPs) block access to the websites.

The plaintiffs alleged that the primary infringing permitting website was a straw company and that closing it down would not stop the service being provided. For reasons of utility, the ISPs were a legitimate target. In addition to legally constructing cases of indirect infringement, the plaintiffs accused them of Unjust Enrichment.

Bloomberg Inc argued that the website was merely a search engine that operated worldwide in seven languages and that offered four features: (i) searching and direct listening to musical content from YOUTUBE, (ii) Finding relevant information from Wikipedia, (iii) Creating a playlist and (iv) searching for musical content and allowing consumers to locate and download such content from third party websites. Since three of the four features were not under challenge, they felt that the attack on their website was excessive.

Judge Gidon Ginat of the Tel Aviv District Court acknowledged that the infringer who accesses copyright infringing material via a website and downloads it to his computer is the actual infringer, but considered that the website owners are responsible for contributory infringement in that they enable end users creating copies and reproducing copyright material.

In this instance, the copyright owners have pursued the internet service provides arguing that where infringement is being conducted on two separate websites, the Internet Service Provider is responsible for encouraging or at least aiding abetting copyright infringement.

The Court ruled that website UNIDOWN is nothing more than a platform for downloading copyright infringing copies that are discovered by search engines. Unidown converts YOUTUBE playable content into media that can be downloaded and saved as MP3 format files. Whilst it is certainly the case that the downloaders themselves are the primary infringers, the website owners that allow the links are contributory infringers in that they facilitate the downloads.

The Court concentrated on Unidown, also available as .com and with other parallel sites, after the plaintiffs abandoned Downsong after failing to show a link between them and Unidown. Additionally, the court was willing to act against the ISPs where the identity of the site owner was concealed, but with Downsong this wasn’t the case. Consequently Judge Ginat did not rule regarding blocking access to Downsong but did note that this ruling did not affect the plaintiff’s rights to take legal steps against that company.

As to Unidown, Judge Ginat ruled that the site should be taken down and that Bloomberg should pay 100,000 Shekels in statutory compensation.

Judge Ginat relied on UK precedents, including Judge Arnold’s rulings in Paramount Home Entertainment International Ltd & Others v British Sky Broadcasting Ltd & Others [2013] EWHC 3479 (Ch); Twentieth Century Fox and others v British Telecommunications plc [2011] EWHC 1981 (Ch);Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch); EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch); Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch) and Justice Birss’ ruling in Twentieth Century Fox Film Corporation v. Sky UK Ltd [2015] EWHC 1082 (Ch).

Judge Ginat noted that in an Appeal to the Israel Supreme Court, (Appeal 447/07 Mor vs. Barak ITTT (1995) and Bezeq Benleumi P.D. 63 (3) 664 (2010)) the Supreme Court refused to fulfill the lacuna in the Law and to grant an injunction but called on the Knesset to legislate. However, since that case related to the rights of anonymity, it was different and wasn’t binding case-law, and since five years had passed without the Knesset addressing the issue, Ginat did not see fit to wait for the legislative to do their job. In addition, Bloomberg should bear legal costs of 50.000 Shekels, and, in an interesting wrinkle, it seems that as Partner argued that it was unjust to award legal costs against the defendants, Judge Ginat ruled that they alone should bear the legal costs of 34,000 Shekels, and the other defendants were not required to bear legal costs. However, should Partner choose to present coherent legal arguments, they would not be penalized for so doing and might even prevail.

Civil Ruling 33227-11-13 NMC United Entertainment LTD et al. vs. Bloomberg et al. Tel Aviv District Court by Judge Ginat, 12 May 2015

 

COMMENT

The responsibility or otherwise of ISPs to police the Internet is a hot issue. However, it seems reasonable to issue injunctions against them on a case specific basis.

Personally, I am in favor of a shorter and more liberal copyright regime, but think that Israel does have an obligation to uphold international standards. I am not sure, however, that Judge Ginat is correct that there is a lacuna for the Israeli legislative to address and their failure to do so authorizes him to judicially create contributory copyright infringement or aiding and abetting copyright infringement. The Israeli legislature passed a brand new copyright law in 2008. Even back then, the issue of ISPs was established and there was US pressure on Israel. See here for example. Israel was not and is not a signatory to the treaties that require forcing ISPs to police the web.  It seems that the Knesset intentionally decided not to include this lacuna in their legislation. Since CBS vs, Amstrad, providing the technology for infringing (back then, it was a tape to tape double cassette deck) has not been considered culpable in the UK.

Is this ruling a case of judicial legislation? It seems to be.  I am against judicial activism preferring that judges leave legislation to the democratically elected parliament. I note that even in the US, recent decisions have overturned the judicial doctrine of incitement to infringe or contributory infringement of patents.

One Response to Israel Court Issues Injunction against ISPs and Recognizes Contributory Copyright Infringement

  1. Bruce E Lilling says:

    Generally ISP do not know the content their clients put on a website and it is exceptionally time consuming and costly to monitor such content. So to me in the long run I think it is logical that courts will back away and in most cases not impose liabilities on ISPs. If not not ISP will certainly be raising their prices very significantly.
    In the case however where an ISP does have a a reasonable basis for knowing, then yes they should be liable, but I think those cases will be rare and will be the exception not the rule

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