12 December 2010

Of Media Cats and Pirating Mice


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The cases on copyright infringement where P2P is involved are endless, virtually interminable. Within this variety of cases, there are those concerning unsecured WiFi connections. Some jurisdictions like Germany have already developed an authority, thus providing for a better legal certainty. Others, like England and Wales, appear to be in a process to establish theirs.

About a week ago, the England and Wales Patents County Court, presided by Judge Birss, delivered a judgment in such a case. The claims were brought by ACS:Law.

Anyway, why is this worth mentioning?

Well, this is a law firm currently having to deal with a Solicitors Disciplinary Tribunal as a result of the numerous complaints against their methods of work, in particular the dunning letters that firm is known to send to alleged intellectual property infringers.

But back to facts: claimant, assisted by a specialist data monitoring company, did identify eight individuals and accused them to have uploaded “R 18 restricted” films through peer to peer file sharing networks. The defendants, so the Particulars of Claim, “have operated, at the time of the identified infringement an internet connection router that was not secured either adequately or at all, so as to enable another to carry out an act of copyright infringement of the claimant’s Work via the internet connection of the defendant.” Put it another way, the defendants were all owners of WiFi access points that they had not secured. In claimant’s view, these “defendantswere liable for authorising others to infringe the right owners’ rights in the above films.

Since a copyright case can be brought by the owner of copyright or an exclusive licensee and claimant is neither of these, judge Birss started his judgment expressing some doubts as to claimant’s right to be a claimant in the fist place. The court then admitted to be aware “of no published decision in this country which deals with this issue in the context of copyright infringement.” Nevertheless, the court did not upheld claimant’s plea that “allowing others to infringe” equated “authorising others to infringe”. Not even the authority of the German Federal Supreme Court in the case “Sommer unseres Lebens”, stating that owners of unsecured access points have a duty to safeguard their devices to prevent others from using them without permission, was capable of proving persuasive to His Honour. He mentioned the German case “simply as an illustration of the complex and significant legal issues arising.”

So, what is the moral of the story? It seems that under the jurisdiction of England and Wales and, assumingly, under that of the entire United Kingdom, owners of unsecured WiFi internet connections should not be held responsible for any copyright infringement that third parties might cause over that connections. Judge Birss’ reasoning is in fact a very simple one: section 16 (2) of the Copyright, Designs and Patents Act requires that one, without the licence of the copyright owner, does any of the acts restricted by copyright or authorises others to do them. Falcon vs Famous Players is still an authority in terms of “authorisation” and accordingly, “authorise” means to sanction, countenance or approve, or alternatively to grant or purport to grant to a third person a right to do an act. No doubt, an owner of an unsecured WiFi connection does none of the foregoing.

Frankly, one should take the above cum grano salis since the Patents County Court is just a lower court in the judicial system of England and Wales. Nonetheless, this court’s decision clearly addresses the legal weak point in claims aiming to rather generate earnings than to prevent abuse.

 

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