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Legal Bulletin: Action against illegal file-sharers
You will all have seen the front page news recently that BPI reached out of court settlements with a number of illegal file-sharers. This action by the BPI is an important step in the fight against illegal music distribution and the establishment of legal on-line music supply services.
Although there has been legal action against illegal peer-to-peer facilities in other countries, this is the first legal action taken by the British music industry. One hurdle to overcome in taking such actions has been finding the right people to sue.
Who to sue?
Software providers: The obvious choice would be the software provider, for instance Napster or Kazaa. However, as we explained in a previous bulletin (“Adverts Which Encourage Copyright Infringement” – available on the intranet) the Amstrad case made it impossible to pin liability on someone who facilitates copyright infringement but does not directly authorise an infringing act. There is also uncertainty about the liability of software providers under the E-Commerce Directive and subsequent E-Commerce Regulations which would make the outcome of legal proceedings against software providers uncertain.
Downloaders: As you know, those who download from illegal peer to peer services do infringe copyright by making an unauthorised copy, and legal action was taken against individual downloaders in the US last year. However, these actions attracted criticism in the press when a couple of the defendants turned out to be children or other apparently vulnerable members of society.
Uploaders: Under UK law, providing files for others to download (“uploading”) was also a restricted act under the 1998 Copyright Designs and Patents Act. However, the 2003 Copyright Regulations updated the 1998 Act to cover new media by introducing the consolidated right of making a copyright work available to the public. It was this new restricted act which the BPI based their claim on. It made much more sense to sue the uploaders, because:
They are the online equivalent of illegal distributors or pirates.
It is easy to see what is being “made available to the public” by simply logging on, so that evidence is easy to gather.
Each song being made available is a separate infringement so that bigger individual actions can be frames against uploaders.
Identifying the uploaders
So, having decided to take action against the uploaders, we are then left with the problem of finding out who they are. All we can see is the electronic identity they have chosen to register. That does not tell us who they are or where they live in order to sue them. Only each uploader’s internet service provider (ISP) has this information, but it is confidential customer information.
We therefore need a court order to make the ISP disclose the identity of their customer. But how can we get a court order against someone who is not infringing? Legal remedies can normally only be obtained against people who have done something wrong. That is where the Norwich Pharmacal Order comes in.
The Norwich Pharmacal Order
This is a procedure for finding out the identity of an alleged wrong-doer from an innocent third party. The name of the Order comes from the case in which this remedy was formulated. This is how the judge set out the terms of the remedy in his judgement:
“If through no fault of his own a person gets mixed up in the wrong doing of another so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. Justice requires that he should cooperate in righting the wrong if he unwittingly facilitated its perpetration. The key factor is that the person against whom the order is sought has facilitated the wrong doing. The claimant must have a real and unsatisfied claim against the unknown wrongdoer which cannot be brought unless the facilitator reveals the wrongdoer’s identity”.
Perfect! That seems to describe the relationship between and ISP and an illegal uploader exactly. So that is what the BPI did, they applied to court for Norwich Pharmacal Orders against a number of ISPs to disclose the identity of a number of uploaders against which they had gathered evidence. The court granted the Orders and the ISPs produced the information. The BPI was then able to contact the infringers and negotiate the compensation payments which have just been reported.
The Norwich Pharmacal Order ensures that those who infringe our members’ copyright on the internet cannot hide from the law.
You will all have seen the front page news recently that BPI reached out of court settlements with a number of illegal file-sharers. This action by the BPI is an important step in the fight against illegal music distribution and the establishment of legal on-line music supply services.
Although there has been legal action against illegal peer-to-peer facilities in other countries, this is the first legal action taken by the British music industry. One hurdle to overcome in taking such actions has been finding the right people to sue.
Who to sue?
Software providers: The obvious choice would be the software provider, for instance Napster or Kazaa. However, as we explained in a previous bulletin (“Adverts Which Encourage Copyright Infringement” – available on the intranet) the Amstrad case made it impossible to pin liability on someone who facilitates copyright infringement but does not directly authorise an infringing act. There is also uncertainty about the liability of software providers under the E-Commerce Directive and subsequent E-Commerce Regulations which would make the outcome of legal proceedings against software providers uncertain.
Downloaders: As you know, those who download from illegal peer to peer services do infringe copyright by making an unauthorised copy, and legal action was taken against individual downloaders in the US last year. However, these actions attracted criticism in the press when a couple of the defendants turned out to be children or other apparently vulnerable members of society.
Uploaders: Under UK law, providing files for others to download (“uploading”) was also a restricted act under the 1998 Copyright Designs and Patents Act. However, the 2003 Copyright Regulations updated the 1998 Act to cover new media by introducing the consolidated right of making a copyright work available to the public. It was this new restricted act which the BPI based their claim on. It made much more sense to sue the uploaders, because:
They are the online equivalent of illegal distributors or pirates.
It is easy to see what is being “made available to the public” by simply logging on, so that evidence is easy to gather.
Each song being made available is a separate infringement so that bigger individual actions can be frames against uploaders.
Identifying the uploaders
So, having decided to take action against the uploaders, we are then left with the problem of finding out who they are. All we can see is the electronic identity they have chosen to register. That does not tell us who they are or where they live in order to sue them. Only each uploader’s internet service provider (ISP) has this information, but it is confidential customer information.
We therefore need a court order to make the ISP disclose the identity of their customer. But how can we get a court order against someone who is not infringing? Legal remedies can normally only be obtained against people who have done something wrong. That is where the Norwich Pharmacal Order comes in.
The Norwich Pharmacal Order
This is a procedure for finding out the identity of an alleged wrong-doer from an innocent third party. The name of the Order comes from the case in which this remedy was formulated. This is how the judge set out the terms of the remedy in his judgement:
“If through no fault of his own a person gets mixed up in the wrong doing of another so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. Justice requires that he should cooperate in righting the wrong if he unwittingly facilitated its perpetration. The key factor is that the person against whom the order is sought has facilitated the wrong doing. The claimant must have a real and unsatisfied claim against the unknown wrongdoer which cannot be brought unless the facilitator reveals the wrongdoer’s identity”.
Perfect! That seems to describe the relationship between and ISP and an illegal uploader exactly. So that is what the BPI did, they applied to court for Norwich Pharmacal Orders against a number of ISPs to disclose the identity of a number of uploaders against which they had gathered evidence. The court granted the Orders and the ISPs produced the information. The BPI was then able to contact the infringers and negotiate the compensation payments which have just been reported.
The Norwich Pharmacal Order ensures that those who infringe our members’ copyright on the internet cannot hide from the law.