In a recent decision, the Tel-Aviv District Court found that music download site Unidown.co.il enabled and encouraged copyright infringement. The Court ordered Israeli ISPs to block access to the site (NMC United Entertainment Ltd. v. Bloomberg Inc. 33227-11-13).
Unidown allows users to download music directly from YouTube. YouTube is licensed to stream copyrighted media and its Terms of Service explicitly forbids users from accessing such media other than directly through its site.
Users first search Unidown for music. The user is then presented with two embedded links. A streaming link lets the user stream the music directly from YouTube, while a download link lets the user convert and download the media. To enable the user to convert and download the media, Unidown provides an embedded link to sites like freetubeconverter.com, which convert the streaming version of the media to downloadable formats such as MP3.
The Court found that Unidown’s provision of embedded links to enable direct streaming and downloading of copyrighted media encouraged copyright infringement and amounted to accessory liability in tort. The Court noted that the streaming, while against YouTube’s Terms of Service, was not in contention in the case because the point was not raised by the parties and YouTube was not a party to the suit. However, the Court found that the downloading constituted copyright infringement, and reasoned that the side-by-side combination of links to stream and download the media encouraged such infringement.
The Court cited several cases from the English High Court that ordered ISPs to block streaming websites and services that enabled copyright infringement. The Court did not distinguish those cases, even though there is no Israeli equivalent to the English statute that provides for censorship of sites that enable infringement. The Court noted that the pace of legislation lags behind that of technological development, perhaps suggesting that this was the Court’s motivation in issuing the far-reaching order to block the site.
The Court noted that had Unidown merely provided links to the YouTube pages hosting the media that was searched for, it would not have been liable for encouraging infringement. However, by enabling users to stream the media directly and placing a link nearby to convert and download the media, Unidown could not be seen as a search engine providing access to information. Here, clicking the link generated by Unidown was itself the infringing act.
The Court discussed, though declined to decide, whether the provision itself of the links amounted to infringement. It cited Comcast of Illinois v. Hightech Electronics, 2004 U S Dist. Lexis 14619, which offered that in certain circumstances the provision of a link to an infringing site would amount to direct infringement.
The Court emphasized that it found no material distinction between the actions of sites that convert the media, and Unidown, with its provision of an embedded link to download the desired content. As such, the Court found that Unidown’s contribution to the ability of infringement, even by providing a link, justified ordering the site blocked.
Asaf Naymark, Associate
