Burn After Redditting – Scottish Court of Session Lays Down Marker for Online Copyright Protection

In a potentially significant win for broadcast rights holders, Sky UK Ltd have successfully obtained interim protection from infringement of their broadcast rights through links posted on the popular online forum Reddit. The Scottish Court agreed that the copyright in the broadcasts was potentially infringed by storing copies online and providing links which allowed free, unauthorised and unlimited access to them.

Facts and remedy sought

An internal investigation at Sky established that the broadcasting giant’s programming was being made freely available to the public through 3 pages on Reddit (“subreddits”). Each subreddit had thousands of readers. Users would request specific programmes, copies of which were then placed on a Google Drive. Links providing access to the drive were posted on the subreddit. Following a complaint from Sky, Reddit removed individual links but fresh ones were nonetheless continually added. Sky sought an interim interdict requiring the poster of the links to refrain from further infringing activity.

Decision of the Court

The Court accepted that there was a good prima facie case for copyright infringement. Of particular significance in the judgment was the distinction made between programming which was behind a paywall and that which was broadcast free-to-air by Sky.

In order to constitute an infringement of the copyright in Sky’s broadcasts, the Reddit links had to communicate them to a ‘new’ public – i.e. one outside the original contemplation of the rights holder. This was considered to be clear in relation to the programmes which Sky only authorised to be available to paying Sky customers, but a separate question arose regarding programming on Sky Arts, which was not behind a paywall. Lady Wolffe held that such programming was still infringed, on two bases:

1. The free content still required users to create a SkyGo account with the rights holder. In doing so, they were required to accept Sky’s terms and conditions, including a prohibition on copying or transmission other than for personal use. The users of the links on the subreddits would not be those who had acceded to Sky’s terms of use and therefore constituted a different public to that envisioned by the broadcaster.
2. The availability of the programmes from Sky Arts was time limited on Sky’s own platform, but not through the links. Anyone viewing the links after they were no longer available on Sky’s platform therefore constituted a new public.

Interesting questions for English law:

The legislation in question – the Copyright, Designs and Patents Act 1988 – applies across the U.K., so the statutory basis for a copyright infringement claim is the same in England and Scotland. Whilst a Scottish Court decision does not bind English Courts (even if it were backed up by a final judgement), it raises some relevant points for consideration in relation to the CDPA.

The Scottish Court appeared to extend principles of copyright law established by the CJEU in its finding as to the freely available content. The decision cites GS Media as authority for the principles involved, but the factual circumstances of GS Media involved publishing copies of material which had not been made freely available on the internet by the rights holder. Copyright owners would doubtless be delighted if other courts agreed with this interpretation of GS Media, but it is not certain that this interpretation would appeal to an English Court.

While Lady Wolffe’s construal would afford copyright owners greater control over their materials, a question remains as to the extent of the terms and conditions that might be required to gain this protection. If a mere check-box agreeing to brief and basic T’s&C’s was sufficient, that might render broadcast copyright effectively inexhaustible, irrespective of how readily available to the public the programme has been made already. It remains to be seen whether the Scottish Court’s view will be upheld in a substantive trial or another jurisdiction, but it certainly offers encouragement to rights holders seeking to clamp down on online pirating.