Nathan Fan is a JD candidate at Osgoode Hall Law School.
In the growing number of legal victories for the MPAA, the English High Court of Justice recently found popular Usenet indexer, Newzbin, liable for the copyright infringement of works owned by the MPAA. The March 29, 2010 decision ruled in favour of the movie studios, holding that Newzbin had actively encouraged and authorized its users to infringe copyrighted movies, and also knowingly made the illegal content available through its indexing.
Newzbin, which claims to be the most comprehensive Usenet search engine on the internet, is a site that compiles and indexes content available on Usenet newsgroups for its users to search through. To do this, Newzbin hired editors to sort through all of the groups on Usenet and compile an index of relevant information of the content available in these groups. Newzbin does not host any of this content, but instead provides the collected and compiled information to the users through NZB files. Each NZB file contains all the information a user requires to download and decode the content stored on the various Usenet servers. As Newzbin only provides the NZB file to its users (akin to BitTorrent files) and treats all content without prejudice, it claims that the site was a “content agnostic” search engine, akin to Google, and therefore could not be held liable for the copyright infringement of their users. For its services, Newzbin charges its members a fee for premium access to its indexes and has grossed over £1 million in 2009.
Writing for the court, Justice Kitchin held that the system of operation of the editors clearly indicated Newzbin’s knowledge and active involvement in procuring copyrighted works. The 250 editors employed by Newzbin were required to create “reports” of all the titles that were available on their index and subsequently file them under specific headings that, in the opinion of Justice Kitchin, were inherently indicative of pirated content. The reports contained descriptive information regarding the title, overall file size, and details of source, genre and language of the work.
There was also undisputed evidence that the editors were required to visit and compile information from “warez” newsgroups, well-known for their illegitimate and unauthorized content. Kitchin stated that this evidence shows that “Newzbin is designed to and does in fact search newsgroups which contain infringing materials”. Further evidence accepted by the court found that out of a sample of 50,000 reports related to movie files, all but 0.3% were shown to be commercially available copyrighted works.
In response, Newzbin argued that their software only indexed the information on Usenet and that the activity on the site was related mostly to text files found in the Usenet discussion groups. It was further argued that Newzbin took an “agnostic” approach and did not differentiate the content, citing that there was also non-infringing content represented in the index.
Ultimately, Kitchin was not convinced of Newzbin’s “agnostic” defense, holding that Newzbin’s definition of “agnostic” was merely that all content was taken and not that all content was treated in the same way. It was concluded that Newzbin had deliberately provided the access and encouraged its users to infringe copyright. Thus, Kitchin granted an injunction against Newzbin indexing the works of the MPAA members.
Given this ruling, the MPAA and other members of the entertainment industry can now scratch another notch on their post alongside other victories over search sites such as IsoHunt and The Pirate Bay. It seems that the film and music industries are gaining some serious legal headway in strengthening the rights of copyright owners in the internet world. However, enforcement still remains elusive in many countries, such as China, where intellectual property rights are less developed (see IFPI’s recent loss to Chinese search engine Baidu). Given the global nature of the internet, it seems that another day only brings another fight for the MPAA. However, the continued victories for the industry might just illuminate the silver lining for the industry.