Not long ago, According to the UK Intellectual Property Enterprise Court (IPEC) A definitive ruling, Nintendo succeeded in obtaining a broad web blocking order, Blocked sites include those that only redirect or link to third-party piracy sites.

The decision represents a major victory for Nintendo in its ongoing efforts to curb the spread of online piracy in the UK. Case background 2021 years 12 month 2 day, Nintendo submitted an application, Requirement pair includes BT, Sky and Virgin Media in the UK 6 Big broadband and mobile Internet service providers have issued bans.

The application seeks to block or attempts to block Internet service providers from accessing both sites (Target website) . The target site allows access to third party sites through links, Allows visitors to download pirated versions of Nintendo's Swich game (Unauthorized Nintendo game) . The ISPs did not object to the application, There have been many successful cases of obtaining such orders, They are familiar with such actions and their likely outcomes.

Relevant law

According to 1988 years "copyright, Design and patent law" (CDPA) The first 16 section, Copyright infringement occurs if the work is distributed to the public without authorisation in the UK, Including electronic transmission (The first 20 (2) section) Or authorized by the infringing party. In addition to holding the infringer accountable, Copyright owners can also seek a site-blocking order against Internet service providers whose services are being used to commit infringement. The condition for successful blocking is that the copyright owner must prove it:

－The Internet service provider targeted is the provider of said service;

－A user or operator of a website that uses the Internet service provider's services infringes copyright; and

－The Internet service provider was actually aware of the infringement (Including that the copyright owner has sent notice of the infringement) .

Final verdict

In this case, Court basis 1988 years CDPA The first 97 Bar sum 1981 years "Superior court act" The first 37 (1) The provisions of the article issued an order, Require Internet service providers to block access to the target website. User infringement court ruling, UK Internet service provider subscribers have infringed the copyright of Nintendo's works——specifically, Includes the game's source code and object code as well as some of the text and graphics. The process of infringement is as follows:

1．Connect to the target website;

2．Use the target website to access a file containing an unlicensed Nintendo game and download it to an electronic device located in the UK. Due to the large number of visitors to the target website, With a clear purpose, The judge concluded that the download was still going on, And the infringer creates an infringing copy of the work in the memory of the device.

Copyright infringement by operators

According to the previous decision, The authorized website operator shall bear joint tort liability for the user's copying behavior. Court determination, The act of Posting a link is a pass "Electron transmission" To disseminate the work to every user who clicks on the link. This effectively expands the scope of the site blocking order, Not just those that do offer access to pirated copies, It also includes a broader redirection/A website that links to the original pirate site.

At this point, There is evidence that the target sites are operating for profit, So it can be presumed that the act is equivalent to "Communicate to the public" (reference GS Media BV v Sanoma Media Netherlands BV A case) . Although the reality needs to be understood, But there is clear evidence in this case that the operators knew they were engaging in illegal activity, Because they are taking steps to remain anonymous and circumvent enforcement measures taken by Nintendo. To the British public when considering whether infringement has occurred in the United Kingdom, The court needs to consider whether British consumers are targeted by infringing websites. Unauthorized Nintendo games are available online, But it's abundantly clear from the case law, The mere fact that consumers in a particular area have access to a website is not sufficient to establish a regional connection in that jurisdiction and thus constitute a cause of action.

however, In this case, The court was satisfied that British consumers would think the content of the target site was aimed at them, The reasons are as follows:

－The UK is an important market for Nintendo's games;

－The target site offers games that are very popular in the UK;

－UK consumers visited the target site in large numbers, One of the websites is from 2021 years 1 Since the month total traffic has reached 434000 time (Including repeat access) . The proportionality principle of the injunction came despite extensive efforts by Nintendo's lawyers, But Nintendo failed to identify the operator of the target site.

Therefore, To prevent further damage, The ban is necessary and consistent with the principle of proportionality, Specific reasons include: 1．The right of Internet service providers to conduct business will not be affected; 2．Internet service providers already have the technology necessary to block access to problematic sites; 3．Nintendo will bear the cost of enforcing the ban; 4．The public has no legal right to be informed of or to access websites that operate solely for the purpose of providing unauthorized access to Nintendo games. It has been important for some time, British courts have granted several site-blocking orders, But the Nintendo ruling has expanded the tool's power, Confirmed that its use extends beyond the pirate sites themselves, It can also be expanded to sites that only publish hyperlinks to these sites. The case also reaffirms the flexibility available to courts in assisting rights holders to navigate the complexities of online infringement.

(Compiled from www. lexology. com)

Reprinted from China Intellectual Property Network   translation: Wang Dan　proofread: Liu Peng

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