Richard Spearman QC has won a major claim for the Hollywood film studios for infringement of copyright and unlawful means conspiracy. Judgment was handed down by Barling J on 16 May 2014, following a trial in December 2013. In addition to granting a permanent injunction and orders for an account of profits and the payment of damages, Barling J ordered the effective defendants to make interim payments in the total sum of £1.3m, and to pay £350,000 on account of the Studios’ costs, which were awarded on the indemnity basis.
The claim arose out of the operation of two websites, known as “Newzbin” and “Newzbin2”, and was a sequel to two earlier sets of proceedings.
Initially, the Studios brought an action against a company called Newzbin Limited in respect of the operation of the Newzbin website, the sole purpose of which was (as they contended) to make available to its users unlawful copies of copyright works, including movies and TV programmes. That action was tried by Kitchin J in 2010, and resulted in findings in favour of the Studios of infringement of copyright, and Orders against Newzbin Limited which included an Order for an interim payment on account of costs of £230,000.
Following that judgment, no monies were paid to the Studios. Nor did the infringements cease. Instead, shortly after the judgment: (1) the Newzbin website was taken down and Newzbin Limited went into liquidation, and (2) the website was reinstated at the same domain name (www.newzbin.com, although subsequently the domain at which it could be accessed changed to www.newzbin2.es), operating from servers outside the jurisdiction. The Studios contended that, apart from the addition of the number “2” to the graphic of the name, the Newzbin2 website had exactly the same appearance as the Newzbin website, and that the websites operated in exactly the same way as one another and were otherwise the same in all material respects.
The Studios’ responded to this by making an application under s97A of the Copyright, Designs and Patents Act 1988 against British Telecommunications plc, the result of which was later extended to all other major UK ISPs by a series of applications under s97A. That application was treated as a test case, and resulted in two judgments by Arnold J: the first, in July 2011, on the principle of whether an order should be made against BT (Twentieth Century Fox Film Corpn v BT  RPC 28); and the second, in October 2011, concerning the detail of the appropriate Order (Twentieth Century Fox Film Corpn v BT  EWHC 2714 (Ch)). In short, Arnold J held that BT should block access to the Newzbin2 website by using the technology which BT already possesses and uses to block unlawful images of children in conjunction with the Internet Watch Foundation. Following the Studios’ success in obtaining that relief, the Newzbin 2 website shut down in November 2012.
Mr David Harris, who qualified as a barrister, represented Newzbin Limited in the action concerning the Newzbin website, on a direct access basis. Mr Harris was later disbarred by the Bar Standards Board as a result of various charges relating to his involvement in that action. The Studios’ case before Barling J was that Mr Harris: (1) ran the operation of the Newzbin website from about 17 December 2009 until the Newzbin website ceased operating on about 18 May 2010, (2) was behind the operation of the Newzbin2 website from start to finish, (3) was at the heart of concerted efforts to syphon off monies from Newzbin Limited with the purpose and effect of preventing the Studios from recovering either damages or costs pursuant to the Judgment and Order of Kitchin J, and (4) was the moving force behind a number of companies which were also joined as defendants, which he had used for the purposes of (a) syphoning off monies from Newzbin Limited (b) receiving and channelling to him or for his benefit revenues earned from the operation of the Newzbin2 website (c) acquiring assets, in particular a house and a McLaren motor car, for his use and (d) thwarting the Studios’ ability to recover compensation for the infringement of their copyrights.
Upholding these contentions, Barling J held that: (1) Mr Harris was a joint tortfeasor with Newzbin Limited in respect of the infringing operations of the Newzbin website (see ); (2) Mr Harris was either the sole tortfeasor or a joint tortfeasor with one or more other persons in respect of the infringing operations of the Newzbin 2 website (see ); (3) Mr Harris was liable together with the other effective defendants for unlawful means conspiracy, on the basis of both conspiracy to infringe the Studios’ copyrights and conspiracy to defraud the Studios (see ). Among other things, Barling J agreed with the Studios’ argument that there was a strong analogy between the acts carried out by the effective corporate defendants and those which are capable of founding liability in relation to a breach of trust or fiduciary duty carried out by another (see ).
For the full judgment please click here.