13 February 2011

Why File-Sharing Mice Should Not Fear The Media CAT


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Catputerphoto © 2009 Sarah | more info (via: Wylio)


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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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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