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Sky's the limit: Broadcaster successful in Scottish copyright infringement case

Who are the parties?

The pursuer, Sky UK Limited, is a well-known provider of television content for satellite and internet broadcast, including via the channels Sky Arts, Sky Atlantic and Sky News. Viewers have to pay to see Sky’s content, with the exception of Sky Arts which was made available to view for free on 17 September 2020.

The defender is a man from North Lanarkshire, Scotland, who goes by the online aliases ‘Cherzo’ and ‘Cherzo1’ on platforms such as Youtube and Reddit.  

What is the case about?

The pursuer had become aware that its television content was being copied and posted online to Youtube and via hyperlinks posted on Reddit to various ‘Subreddits’ of which the defender was a moderator.

An open source investigation by the pursuers into the usernames ‘Cherzo’ and ‘Cherzo1’ revealed the defender, Alex Cherrie, as the person behind the aliases. He had called himself ‘Cherzo’ on various other social media websites; one of which showed his name and location.

The pursuer appeared before Lady Wolffe in the Outer House of the Court of Session, seeking interim interdict to prevent the defender from copying the pursuer’s programmes and posting links to them online.

Applying the test for interim interdict, Lady Wolffe considered (1) the prima facie case for copyright infringement, and (2) whether the granting of interim interdict was justified on the balance of convenience.

The prima facie case

Counsel for the pursuer Usman Tariq argued that the defender had copied and communicated the pursuer’s content by electronic means, in breach of sections 17 and 20 of the Copyright, Design and Patents Act 1988. The defender had posted links to the pursuer’s content on a popular website which any member of the public could view without restriction. The defender also encouraged users of the Subreddits to post requests for UK TV content including the pursuer’s programmes.

The hyperlinks directed users to an online drive on which recordings of TV programmes had been saved by the defender. Although profit is not an essential component of copyright infringement, the defender did solicit online donations through the payment platforms Paypal and Patreon. Despite the pursuer issuing a takedown request to Reddit and Youtube (which led to the defender’s Youtube channel being removed), the defender continued to post links to the pursuer’s content on Reddit. Having been notified of the takedown request and having had his Youtube channel deleted, the defender must have been aware that continuing to post links to the defender’s programmes was infringing their copyright.

Lady Wolffe was convinced that the pursuer had a strong prime facie argument. The defender had copied not just images but whole episodes of the pursuer’s content. Posting the links to both Youtube and Reddit was equivalent to broadcasting the pursuer’s programmes by electronic transmission; such that thousands of the websites’ users could view the programmes whenever and wherever they chose.

Lady Wolff considered the pursuer’s argument that posting links to the free Sky Arts content was copyright infringement, because it made the programmes available to “a new public” which the programme makers had not had in contemplation when first broadcasting the content (cases cited: Svensson v Retriever Sverige AB [2014] Bus LR 259, (Case C-466/12)) and GS Media BV v Sanoma Media Netherlands BV and Others (“GS Media BV”), [2016] Bus LR 1231, Case C-160/15). Since the Sky Arts programmes were only free to watch to users of the Sky Go app who had agreed to the pursuer’s terms and conditions, and because the content was only available for a limited time, Lady Wolffe agreed that the defender had made the programmes available to a different group and in a different way than the pursuer had intended.

The balance of convenience

The pursuer had already contacted Reddit and Youtube to get the infringing content taken down but this did not prevent the defender from continuing to post new links to the pursuer’s programmes. Having had limited success with non-litigious means and the defender’s continued infringement therefore being flagrant; Lady Wolffe found that the balance of convenience favoured the pursuer. The concern that the defender would simply continue the infringement under new online aliases meant that there was sufficient urgency to justify granting interim interdict.

What can we take away from this decision?

That Scottish courts have accepted that reposting free content online can be copyright infringement, and that interim interdict may be available as a remedy where there’s a risk of an online infringer creating new accounts and continuing to infringe under a different alias.

This case is also a reminder of how easy it can be identify a seemingly anonymous internet user.

If you require legal advice on having infringing content removed from the internet, please contact the Dispute Resolution team on 0131 226 8200 or via our online form.

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