Israeli Court quashes an interim order to block access to Popcorn Time

The Tel Aviv District Court has quashed the interim order it issued this past May that had compelled six Internet Service Providers in Israel to “use the measures at their disposal to block the access from Israel to the infringing domain names and website addresses … so that Internet subscribers from Israel would have no possibility of communicating and/or surfing and/or connecting to the infringing domain names and websites” that provide access to the POPCORN time service.

The interim order was issued at the request of Zira – Copyrights on the Internet Ltd. – a company that represents numerous film producers and distributors, and engages in the enforcement of intellectual property rights. Zira had alleged that POPCORN time is an infringing service that makes available to the public television series, movies, Hebrew translations and music whose copyrights or exclusive Israeli distribution rights vest in Zira and its members.
In his recent decision from July 1, 2015, Judge Magen Altuvia held that the interim order that Zira had applied for against the unnamed defendant, is identical in nature to the permanent order Zira is seeking in the lawsuit, and that the court order against the ISPs had been sought before the plaintiffs’ and defendan's rights were expounded, without any alleged wrongdoings of the ISPs. The Court held that Zira cannot rely on another District Court judgment delivered this past May in the matter of, that had ordered ISPs to block access to that website, because, unlike in the matter of Unidown, it is doubtful whether Zira is able to track down the unnamed defendant and prevent him (or her) from launching new websites from which the POPCORN time software will be made available.

The Court held that, unlike in the matter of Unidown, where the defendant had been given opportunity to argue his defense before the Court issued the order against him, in the present case, the lead defendant did not appear before the Court and did not voice his (or her) defense. The Court held that, when evaluating the balance of convenience, as long as Zira is unable to track down the unnamed defendant, nothing prevents the defendant from launching new websites from which the software can be made available for download. Therefore, blocking of the allegedly infringing websites identified in the lawsuit will not completely eliminate the availability of the software for download. The Court also indicated that users who have already downloaded the software can, in any event, continue to use it even if the order is issued, and therefore, the effectiveness of the requested interim order is minimal at best.

The Court also held that the nature of the requested order, which seeks to compel ISPs to block any website that the defendant may subsequently launch, would require the ISPs to allocate resources and effectively serve as censor on behalf of plaintiffs: “The unknown scope of this blocking iceberg, might submerge free competition, free speech and so on, if the Court issues an order blocking access, before the dispute between the appropriate parties is adjudicated... The ‘moral’ price of turning the ISPs into a kind of censor under the Court’s authorization, is equal to, if not higher than, the injury to the plaintiffs’ intellectual property rights." The Court ordered Zira to pay Bezeq International, the only ISP who objected to the temporary order, attorney fees in the amount of 40,000 NIS (approximately US $10,000). {The Court decision, in Hebrew, in available here}.