downloading legal fail..

[sparksy]

Default Failure of prosecution of downloaders
Judge roundly rejects ACS:Law claim
by cmumusicnews 10. diciembre 2010 13:16


When London-based sue-the-fans specialists ACS:Law recently let the personal details of thousands of suspected file-sharers leak onto the internet in what was possibly the greatest ever breach of data protection laws, at least the legal firm's top man Andrew Crossley could argue that he's never claimed to be an IT expert. But what his excuse is for seemingly bungling what should have been a pretty straightforward copyright infringement action is anyone's guess.

According to Torrentfreak, the controversial legal firm - which works for various content owners in anti-file-sharing litigation - recently took eight alleged file-sharers to court seeking default judgements. Crossley said that he had filed copyright infringement proceedings against all eight defendants on behalf of his client Media CAT, and all eight had failed to respond, and the court should therefore find in his client's favour by default.

The judge did not concur. For starters, he said, of the eight defendants who had failed to respond to court papers three had, erm, responded. Meanwhile, ACS failed to provide evidence that any action had been taken against three others. Which only left two of the eight claims.

Then, the judge pointed out, in copyright actions only a copyright owner or exclusive licensee can sue - which is why when trade bodies lead copyright litigation the actual lawsuit lists the labels they represent as plaintiffs. Media CAT is an agency that represents content owners pissed off by file-sharing, but itself is not a content owner. As ACS had listed them as the claimants, all the claims were invalid. So, good work there.

But there is wider significance to this hearing than just demonstrating the, erm, skills of legal man Crossley. In amongst the court papers was an argument designed to combat any suggestion that perhaps it wasn't the accused who actually illegally shared the claimant's content, but someone else using the defendant's PC or unprotected wi-fi network.

Crossley said that, even if such an argument was provided as a defence, his client's claim would still stand, because allowing someone else to use your internet connection in this way would amount to authorising infringement. This is of wider significance because other sue-the-fan lawyers have indicated plans to use this argument as well.

Now, as we've mentioned many times before, the English law concept of 'authorising infringement' is as close as the UK gets to the wider concept of 'contributory infringement' successfully used in the US to identify Napster, Grokster and LimeWire as infringers by providing P2P software to others who then infringed. A similar concept was used in the Swedish courts to find The Pirate Bay guilty of copyright crimes.

But authorising infringement has never been tested in an English court as a legal concept for making the providers of internet tools used by others to infringe guilty of infringement. Doing so would probably require sophisticated legal argument, and would almost certainly have to rely on the Australian case against Kazaa, Australia's copyright system being very similar to ours.

But using the concept of authorising infringement to imply an obligation on every UK ISP customer to stop friends and family from using their PCs to file-share, and another obligation to password protect their wi-fi networks, is even more ambitious, and would most likely rely on one case in the German courts with very little persuasiveness in the context of English law.

Judge Colin Birss was not impressed, saying in his judgement: "The plea that 'allowing' others to infringe is itself an act restricted by s16 (1)(a) and 17 of the 1988 [Copyright, Design & Patents] Act is simply wrong. The term used by those sections of the Act is 'authorising' and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties".

In rejecting all eight of ACS:Law's claims for default judgements, Birss added: "I should end by recording that I am not sorry to have reached the conclusion I have in refusing all the requests for default judgment".

[skeletor]

Read about this the other day. Good to see the judge had some sense, although he did dismiss 2 legitimate cases that they filed purely because of their ineptitude.