We wrote about a decision in May in which the Tel-Aviv District Court found that music download site Unidown.co.il enabled and encouraged copyright infringement and ordered Israeli ISPs to block access to the site (the “Unidown” case). A month later, the Court seems to have overturned itself. In April, the English High Court ordered UK ISPs to block Popcorn Time, a popular application that allows users to stream movies for free (Twentieth Century Fox Film Corporation v. Sky UK Ltd  EWHC 1082 [Ch]) (the “Fox” case).
In the Unidown case, the Tel-Aviv District Court cited the Fox case among other English cases in support of its order to Israeli ISPs to block access to online media pirating services.
In the same month, the Court issued a temporary injunction to block Popcorn Time in Israel (ZIRA [Copyrights in the Internet] Ltd. et al v. Anonymous et al 37039-05-15). Last week, however, the Court declined to make the injunction permanent because it found that it lacked a basis to do so.
In its decision, the Court distinguished the Unidown case, in which the site owner was a named defendant who was given a chance to provide evidence and raise arguments in his defense. Here, the Court noted, the site owner is anonymous.
While the English High Court had no problem with ordering the website of an anonymous owner blocked, the Tel-Aviv District Court raised several issues that prevented it from doing so.
First, under Israeli case precedent, a permanent injunction must be more economical than other preventative measures. When the website owner is known, it is easier to prevent the same owner from opening up mirror sites, and nearly impossible when the owner is anonymous.
Second, issuing a permanent injunction ex parte is an exception to the rule according to which a permanent injunction will be given after all sides have been heard. The Court found that the fact that the plaintiffs only filed the suit after Unidown, even though the infringing activity must have been known to the plaintiffs at least since Fox, pointed to a lack of exigency, and that it would therefore not deviate from the general rule.
Third, users that already downloaded Popcorn Time would be unaffected by the block, and would be able to continue to use the application to search for and stream pirated movies for free, unlike if they were using Unidown.co.il, which is a website.
Finally, and probably most importantly, the Court noted that the cost of turning the ISPs into the censorship arm of the court system by ordering them to not only block infringing websites but to also find the owners of infringing websites and any future sites they might set up, may outweigh the cost of the harm caused to the plaintiffs’ intellectual property rights.
Perhaps a unified approach led the Court to adopt two seemingly opposing positions on very similar cases. In the Unidown case, the Court noted that the lack of a statute empowering it to order an ISP to block an infringing site need not prevent it from using its own vested authority to grant injunctive relief. Here, however, the Court noted that a use of its power would be ultra vires—acting beyond the scope of authority vested in it—if to be effective, such use would also impair the public’s right to knowledge and freedom of expression, while granting ISPs the power to dictate what to allow and what to censor, without a statutory framework to define clear standards.
Asaf Naymark, Associate