13 February 2011

Why File-Sharing Mice Should Not Fear The Media CAT


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What is the usual outcome of a cat hunting a mouse? The cat nearly always prevails, does it not?
Well, that might be the case in cats’ and mice’ real life, but in
a virtual cat-and-mouse-game occurring in the field of file-sharing things are often likely to look different. Hence, it is much more like Tom & Jerry.

Background

Some time ago I blogged on Media CAT hunting numerous alleged and, in many cases unknown, file-sharers, accusing them of copyright infringement and asking the Patent County Court for a default judgment. Being too grotesque at its very beginning, this story seems to now have reached an unanticipated end.

The recent hearing before the Patent County Court

On 17 and 24 January 2011 HHJ Collin Birss QC undertook hearings on Media CAT’s allegations against 27 individuals. Those, in Media CAT’s view, had violated Sections 16 (1)(d) and 20 of the Copyright, Designs and Patent Act (CDPA).
Prior to lawsuit commencement, Media CAT had first served the internet service providers (ISP) of the P2P-users with Norwich Pharmacal orders to identify them. Thereafter Media CAT began sending so called “letters of claim” to  the individuals so identified, thereby threatening each of them to pay £ 495 in order to avoid litigation.

The key issues in the judgment of Birss QC

In his  judgment delivered in February 2011 Judge Birss made some important comments and findings on file-sharing in general and rebuked the business practice of Media CAT and its legal support ACS:Law in particular.

With respect to Media CAT’s business model, he found that

– the letters asserting that Media CAT was a copyright protection society and that it was the exclusive territorial licensee of rights granted by the copyright owner were misleading, since the letters would be understood by many people as a statement that they have been caught infringing copyright in a pornographic film, that Media CAT had evidence of precisely that, and that a court has already looked into the matter (a copy of the Norwich Pharmacal is provided);

– the agreement between a copyright owner and Media CAT, giving Media CAT a “sole and exclusive right to demand collect and receive all revenues in respect of illegal file sharing” was insufficient to acquire the rights it claimed in relation to copyright and that in order to provide for legal certainty to the defendants, claimants need to be joined by the copyright owners pursuant to Section 102 CDPA, and that

– the notices of discontinuance, subsequently filed by Media CAT, represented an abuse of process and should be set aside as well as should the proceedings be stayed until the copyright owners, if any, decide to join the proceedings.

With respect to file-sharing and P2P networks, Birss QC held that

– the proof that an Internet user had installed a P2P software did not prove he had used it to infringe copyright;

– a claimant needed to establish that the defendant had downloaded and distributed the copyrighted work, i.e. that a copyright infringement had taken place. A mere copy of an IP address logged as a node on the P2P network and relating to films was not sufficient to evidence a copyright infringement, and that

– it had to be clarified where the copy of the file alleged to have been transferred in the P2P network did come from and to exclude that the copyright owner could have made it available on the Internet in the first place.

My final thoughts

Everyone on the Internet using a P2P technology should be aware that it is capable of causing copyright infringement. However, that can be said of many things and Judge Birss distinguishes very well that the primary objective of P2P is not to necessarily violate copyright law. Besides, there are certain requirements which a claiming rightholder must meet in order to succeed in court proceedings. These requirements include, as the present case shows, the entitlement to claim and the establishing of an accomplished copyright infringement. To an extent, the foregoing might prove insurmountable to copyright trolls like Media CAT or GCB.

It does not surprise that Media CAT has gone insolvent and ACS:Law ceased to send letters of claim.

As I wrote in the beginning: the CAT has failed and the mice have won.

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