A patent court judge has refused to discontinue a case against alleged unlawful file-sharers, despite the request of the plaintiffs to do so.
Evidence shows MediaCAT is a party that, while coming to court to discontinue, is at the very same time trying to ram home claims formulated on exactly the same basis away from the gaze of the court. That will not do.– Judge Birss
In a judgement given on Tuesday, Judge Birss of the London Patents County Court said the plaintiff — MediaCAT, a company that accused people of file-sharing and demanded hundreds of pounds in settlement — was trying to abuse the judicial process by dropping a flawed case in order to re-sue the defendants later and to avoid judicial scrutiny of the original claims. He also strongly questioned the use of IP addresses as a way to identify copyright infringers.
Since late 2009, MediaCAT used the law firm ACS:Law to send out tens of thousands of letters to people, accusing them of file-sharing and demanding £495 to make sure they did not get taken to court over the matter. Of that money, 65 percent would go to ACS:Law, 15 percent to MediaCAT and 20 percent to the copyright holders — in the 27 cases brought before Birss, the relevant copyright holders were pornographic film companies.
In December 2010, MediaCAT and ACS:Law applied for a default judgement against the defendants — a move that would have led to damages being awarded without the case being properly examined. Birss refused, pointing out that this procedure was inappropriate and almost unheard of in intellectual property cases.
Then, in January, MediaCAT and its law firm applied to have the cases discontinued. ACS:Law ceased trading, but it then emerged that another law firm, GCB, had picked up the letter-writing campaign where ACS:Law left off. Birss highlighted this detail as evidence of an attempted abuse of process.
"The GCB episode is damning in my judgment," Birss said. "This shows that MediaCAT is a party who, while coming to court to discontinue, is at the very same time trying to ram home claims formulated on exactly the same basis away from the gaze of the court. That will not do. I find that these notices of discontinuance are indeed an abuse of the court's process."
Birss also attacked MediaCAT's role in the case, pointing out that its agreement with Sheptonhurst, one of the porn companies involved, was entirely designed to let MediaCAT bring copyright actions. As the agreement did not even grant MediaCAT any rights related to the copyrighted works themselves — one named example was "5 Linsey Dawn McKenzie Films on Tape" — Birss said it was unlikely that MediaCAT had any right to sue the defendants without the actual copyright holders or licensees as co-claimants.
"The advantage of discontinuing as opposed to applying to amend is unwarranted in that it avoids judicial scrutiny of the underlying basis for wider campaign orchestrated by MediaCAT and ACS:Law to generate revenue under the various agreements such as the Sheptonhurst agreement," Birss said.
MediaCAT identified the suspected file-sharers by hiring a company called NG3 Systems to monitor peer-to-peer (P2P) networks, then submit reports linking particular films, the IP addresses used for file-sharing, and the relevant time, date and P2P network. Using this information, MediaCAT then applied for so-called Norwich Pharmacal orders, requiring the alleged file-sharers' ISPs to identify them from their IP address and provide their contact details.
While he fell short of saying the Norwich Pharmacal orders should not have been granted, Birss highlighted major problems with their role in this case — particularly with regards to the usefulness of IP addresses in identifying infringers.
"Even if it is proof of infringement by somebody... it is not at all clear to me that the person identified must be infringing one way or another," Birss said. "The fact that someone may have infringed does not mean the particular named defendant has done so."
Birss noted that the letters sent by ACS:Law "assert MediaCAT is a copyright protection society (which it is not) and the exclusive territorial licensee of rights granted by the copyright owner (which it is not)", and argued that they "would be understood by many people as a statement that they have been caught infringing copyright in a pornographic film, that MediaCAT has evidence of precisely that and that a court has already looked into the matter".
"They may think that their own ISP has decided that they are indeed infringing," Birss complained.
What does 'unsecured' mean? Wireless routers have different levels of security available and if the level of security is relevant to liability — where is the line to be drawn?– Judge Birss
The judge questioned the letters' claim that recipients had either directly infringed or authorised others to do so, saying this equation of "allowing" and "authorising" had never been properly tested in court.
"What if the defendant authorises another to use their internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright?" Birss asked.
"Does the act of authorising use of an internet connection turn the person doing the authorising into a person authorising the infringement? Then there is the question of whether leaving an internet connection 'unsecured' opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally what does 'unsecured' mean? Wireless routers have different levels of security available and if the level of security is relevant to liability — where is the line to be drawn?"
Birss threw out the applications for the case to be discontinued, and asked for advice on whether there was any point in forcing MediaCAT to get the actual copyright holders in as co-plaintiffs. He also suggested that "when a Norwich Pharmacal order is sought of the kind made in this case, it may well be worth considering how to manage the subsequent use of the identities disclosed".
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