“Your request is being processed” – Is the tide turning in favour of Illegal Downloaders?

 The last few weeks have seen the issue of illegal downloading of media content over the internet through Peer-To-Peer file-sharing services brought firmly back into the public consciousness.
 
Controversial law firm ACS:Law has been at the centre of a debate which has moved from asking whether or not their methods of pursuing individuals alleged to have downloaded music and movies (some of which are pornographic) were justified to the wider issue of privacy concerns over the use of data collected to support their allegations after Hackers organised a “denial of service” attack on the firm’s website which led to a backup database of E-Mails containing the identities of thousands of suspected filesharers being made public.
 
The Information Commissioner has already stated that an investigation into whether ACS:Law has breached terms the Data Protection Act 1998 is already underway, and these concerns led yesterday to the High Court granting an adjournment of the Ministry Of Sound’s attempt to force internet service provider Plusnet to hand over subscriber details to allow the record label to investigate whether or not its content had been downloaded illegally. 
 
PlusNet told the Court that it would need to ensure that the information to be provided to Ministry of Sound would be adequately protected (along with the privacy of their subscribers) before making any disclosure. The Court agreed to consider the objection, and the case has been adjourned.
 
In many ways, this very public (in every sense of the word) has served to highlight the various legal, social, moral and political issues associated with the entertainment industries’ efforts to stamp out illegal downloading of their material.
 
Starting from the basic and undeniable premise that anyone involved in copying or facilitating the unauthorised copying of any material which is protected by copyright (which will include the overwhelming majority of the music, film and software files shared over peer-to-peer networks such as Newzbin, Limewire and BitTorrent)for reasons other than “fair dealing” is an infringement and as such illegal, taking action to deter further infringement would in most cases seem perfectly reasonable.
 
Not, however, in this case. The Music Industry in particular has struggled with the issue of “piracy” through copyright infringement since the introduction of cassette recorders and has long claimed that “home taping is killing music”. The first major case which saw action taken against a third party who facilitated unauthorised copying of copyright-protected material was CBS Songs Limited v Amstrad Consumer Electronics in 1988, which saw CBS take on Lord Sugar’s home electronics business after the launch of a hi-fi which contained a tape-to-tape recording function.
 
CBS and eventually the British Phonographic Industry (BPI) claimed that selling tape-to-tape recorders with an advertisement that described the product as allowing owners to “make duplicate recordings from one cassette to another, record from any source and….make a copy and you can even make a copy of your favourite cassette” amounted to authorising the infringement of copyright in the original materials used to make copies.
 
Amstrad’s advertisement did contain a footnote warning that recording and playback of most material could only take place with the permission of the copyright owners.  The House of Lords eventually came to the decision that Amstrad’s activities did not infringe on the basis that the footnote made it clear that Amstrad did not have any authority to allow its customers to copy material belonging to BPI’s members – it was up to the end user to decide whether or not to copy and ultimately the recorder could be used for perfectly legitimate reasons, such as recording the voice of a member of the public in conversation and then making copies for friends.
 
A combination of the World Wide Web, the internet and new platforms such as peer-to-peer downloading has created  a “perfect storm” of risk to copyright owners that they could only have envisioned in their worst nightmares back in 1988 – they are now facing up to the opportunities and risks of the digital age as well as the growing dilemma of allowing their work to reach a wider audience versus keeping control over it and ensuring that they are able to guarantee a financial return on their creative or intellectual investment.
 
A distinction was drawn by the courts in 2003 between the CBS v Amstrad case, where Amstrad had no control over the actions of the owners of the hi-fi in question, and that of intermediaries who could exert some control over the activities of their users in the 2003 case of Sony Music Entertainment UK Ltd. v easyInternetcafe Ltd.
 
easyInternetcafe operated a service which allowed its users to burn sound recordings from the internet onto a blank CD. Although easyInternetcafe argued that it did not know (or want to know) what its customers were doing and should be allowed to rely upon the home-recording defence in the Copyright, Designs and Patents Act 1998, the Judge disagreed and found it liable for copyright infringement even though a number of warnings were given to users of the CD-burning service and staff were not permitted to look at the files they were being asked to transfer.
 
More recently, the 2010 case of Twentieth Century Fox v Newzbin, a website which described itself as a “search site” argued that it simply allowed its users to
find infringing content rather than authorising its copying, but the claimants successfully argued that the way in which Newzbin worked (by showing its users where to find individual parts of larger files over Usenet) amounted to authorising its members to infringe copyright, and therefore made the site liable for infringing in its own right, following the logic in CBS v Amstrad, on the basis that the way in which the site operated suggested that it had authority for its users to find and download movie files. The case was a major victory for the entertainment industries, with the Motion Picture Association’s European general counsel describing the site as “a source of immense damage to the creative sector in the UK and worldwide.”
 
These cases, however, have all been actions taken against links in the chain of copyright infringement – the intermediaries who put content “up for grabs” in the first place by allowing it to be shared over the internet. Even after a number of campaigns to raise public awareness of the damage which copyright “piracy” can cause to the UK’s creative industry, filesharing remains extremely common amongst the UK’s “connected” society, in which, according to the Government’s Digital Inclusion Champion Martha Lane Fox, “everyone of working age” will be online by 2015.
 
Research on the extent of illegal downloading and the actual behaviour of filesharers (specifically, whether the fact that they can download music for free means that they will stop buying CDs or downloading through legal platforms such as iTunes or AmazonMp3) is contradictory – the UK may in theory have up to seven million filesharers, but how they actually behave is open to question. Some studies suggest that filesharers actually purchase more music than those who stay offline, and the Music Industry, though clearly affected by the issue, is proving surprisingly resilient – last year sales of singles soared to an all-time high of 152.7m units, a 33% rise in a year when GDP shrank by 3.3%.
 
Whilst ISPs have for some time resisted any attempt by the Music Industry or Government to take more of an active role in monitoring and policing their own customers (except for Virgin, who famously sent out a number of inaccurate “warning letters” to users suspected of filesharing in 2008), many have already disclosed the details of suspected filesharers on their networks under the threat of an application “Norwich Pharmacal” or “Motley Fool” Order, which allows for a third party to disclose the identity of a “wrongdoer” to a potential claimant where the ultimate defendant’s identity is unknown and action cannot be taken against them without it. Many of these orders have been granted without a fight, but that was before online filesharing became a “growth industry” for the legal profession.
 
Which brings us to the natural “soft target” – the downloaders themselves. Going after an ISP is, of course, far cheaper and much more efficient than pursuing individual downloaders given the legal costs involved in issuing proceedings against thousands of potential defendants.
 
That is, however, if those defendants can afford to fight – ACS:Law and Gallant Macmillan amongst other firms have been held up to public obloquy over the evidence relied on in support of the countless “Letters Of Claim” which they have sent on behalf of clients in the Adult Entertainment and Music Industries.  The overwhelming majority are based on the premise that the owner of an IP address must be the party responsible for downloading illegally – the copyright infringer.
 
This is not necessarily the case – IP addresses can be “spoofed” and do not identify a PC, merely a connection to the web which can be shared between many people as well as hijacked or used without the owner’s knowledge if the network is not secure.
 
Technology, once again, is moving too fast for the law to keep up, meaning that the evidence upon which the “Infringement Industry” relies may be subject to a fairly effective challenge. That industry depends upon recipients of a Letter of Claim simply paying up when asked to do so, with the figure being made up of a sum in damages and costs incurred by the firm in question in sending out the letter in the first place.
 
Very few fight, but the number is growing. The objections to ACS:Law in particular have mainly been based around the unreliability of basing a copyright infringement claim on an IP address alone, the tone of their letters to suspected infringers and the fact that have only taken the step of issuing Court proceedings against an extremely small number of defendants.
 
It is the large number of recipients of correspondence from ACS:Law that may well lead to their downfall. The Data Protection Act 1998 provides that any business which obtains and uses personal information (which in this case can include IP addresses as well as E-Mail addresses and telephone numbers – in the words of the Act) must put effective and appropriate security measures in place to ensure that it remains private. Those measures must be even more stringent when dealing with “sensitive” personal data, which could account for much of the information made public after the ACS:Law leak given that it deals in some cases with the alleged sharing of pornographic material.
 
Penalties for a breach of the Data Protection Act have very recently become substantially more severe, with the Information Commissioner now having the power to impose a fine of up to £500,000 on any company found to be in serious breach of its terms. Whilst such a fine, in the words of the Information Commissioner, will not put ACS:Law out of business, it will certainly hit them where the wrongly-accused would want them to be hurt – their wallet.
 
Public opinion towards methods used to crack down on illegal downloading has never been more engaged – the passing of the Digital Economy Act as part of the “washup” procedure before the Coalition Government came to power this summer became a key issue in the election campaign. Whilst OFCOM’s consultation on how its controversial provisions, including the potential to limit the access of suspected filesharers to the internet, is ongoing, the Act remains unpopular to say the least, with many arguing that it unfairly favours Copyright Owners and imposes regulatory and cost burdens on both suspected infringers and ISPs.
 
What the adjournment of the Ministry Of Sound’s application shows is that IP infringement is not the only issue which the Court will consider when dealing with this kind of issue. It is also a cautionary tale to any business looking to take action against a very motivated online audience. ACS:Law had apparently “mocked” the efforts of the message board “4Chan” to disrupt US-based attempts to take action against file sharers, leading to its members allegedly mounting the “denial of service attack” on ACS:Law’s website and ultimately to its Excel database of potential infringers being made public.
 
The debate as to whether the Music Industry simply needs to change its business model to meet the challenge of the digital environment and make more material available for legal download (many major artists including the Beatles and AC/DC still refuse to make their back catalogue available online, and Pink Floyd recently won the right to stop the sale of individual tracks from their albums over the internet) rather than wage war against their own customers is far from over. However, the problem is very real and, as this case illustrates, fought on a number of fronts.

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