North Lanarkshire man who distributed TV shows online banned from further infringing TV network’s copyright
A judge in the Outer House of the Court of Session has granted an interdict against a North Lanarkshire man preventing him from copying UK TV programmes and distributing them to internet users through various social platforms.
Sky UK Ltd alleged that Alex Cherrie had infringed its copyright by providing links to copies of its programming via YouTube and Reddit, through which thousands of people could have accessed its content without payment.
The case was heard by Lady Wolffe. The pursuer was represented by Usman Tariq, advocate, while the defender made no appearance.
The pursuer averred that the defender, under the username “Cherzo1” had been the sole moderator of three Reddit communities, known as subreddits, titled “r/UKTVLAND”, “r/notapanelshow”, and “r/UKPanelShowsOnly”. In these subreddits, each of which had thousands of members, he had encouraged users to post requests for links to UK TV programmes and provided links to a Google Drive containing the requested content.
Particular instances of the defender providing unauthorised access to the pursuer’s copyrighted programming that were referred to included various episodes of programmes broadcast on their paywalled Sky One, Sky Atlantic, and Sky Arts channels. In addition to this activity, it was also alleged that the defender’s YouTube account, operated under the name “Cherzo” contained multiple episodes of the Sky Arts series ‘Portrait Artist of the Week’, both prior to and following the channel becoming free to air on 17 September 2020.
It was further averred that the defender has solicited and received online payments to accounts he held with the PayPal and Patreon platforms. The ‘About’ section of his Patreon page, on which he had 111 ‘patrons’, indicated that the funds he received were used to obtain computer equipment and TV subscriptions to allow him to continue his activity.
It was submitted that the defender’s activities were in contravention of the Copyright, Designs and Patents Act 1988. He had copied broadcasts made by the pursuer and communicated them to members of the public. Further, he operated the three subreddits for the purposes of posting links to the pursuer’s programming, with the provision of these links constituting a “communication by electronic means” for the purposes of Section 20 of the 1988 Act.
The pursuer sought interdict against the defender preventing him from committing further infringements of copyright on YouTube and Reddit, in addition to any other way of uploading broadcasts online. It was submitted that the defender could not but be aware that his conduct was an infringement, and that previous takedown requests submitted to Reddit and YouTube had not stopped him from uploading further content. It was therefore necessary for an interdict to be granted to prevent further infringement.
Infringement on a large scale
In her judgment, Lady Wolffe first considered whether the pursuer had sufficiently identified the defender as the person behind the Cherzo accounts, saying: “The pursuer’s investigators used open sources to establish a link between the defender and the activities of Cherzo1. These are set out in detail in [the pursuer’s] Report.”
Turning to the pursuer’s prima facie case, she began: “I have no hesitation in finding that the pursuer has presented a strong prima facie for breach of copyright in respect of the Broadcasts by the defender. On the material presented, the defender was not just engaged in copying images, which suffices for section 17(4) of the 1988 Act, the defender appears to have copied and made available to the public whole episodes of the pursuer’s content which has the protection of copyright.”
She continued: “The defender has thousands of viewers who may view the Sky Broadcasts without restriction. None of this has been authorised by the pursuer. This conduct constitutes a clear prima facie breach of the pursuer’s copyright in the Broadcasts.”
Addressing whether the links to the free to air Sky Arts programmes constituted communication to a new public, she said: “While the Sky Arts Channel programmes have been free to air since September 2020, I accept as well-founded Mr Tariq’s submission that the pursuer did not thereby make those programmes free to the world at large. In order to view these programmes, albeit without payment, an individual nonetheless required to create an account with the pursuer and to download the ‘Sky Go’ app on their devices.”
She continued: “Importantly, an individual creating an account would have had to assent to the pursuer’s terms and conditions. These terms included restrictions on the account user and they expressly prohibited any copying, downloading or transmission that was not for personal use. The pursuer was making this content free only to that proportion of the public who would create accounts with it and who would agree to the pursuer’s terms and conditions.”
Lady Wolffe concluded: “The defender’s activities demonstrate infringement on a large scale. The defender has in excess of 51,000 users across the Subreddits and had 95,000 users on the YouTube Account. The number of users of the Subreddits continues to grow: between July and November 2020 there had been a 17% growth in numbers. There could be no legitimate purpose in the defender’s activities on the two online platforms other than to benefit financially from his repeated copyright infringements.”
For these reasons, Lady Wolffe granted an interdict ad interim in the terms sought by the pursuer.
© Scottish Legal News Ltd 2021