Net piracy gets its day in court
- 25 January 2011
- From the section Technology
Illegal file-sharing is under the spotlight as 26 alleged net pirates appear in court but, in a bizarre twist, it is the law firm that brought the cases that appears to be on trial.
Everyone loves a good, juicy court case and, in this respect, the case of MediaCAT versus 26 alleged illegal file-sharers, delivered in spades.
Firstly the hearing on Monday heard little evidence about whether the alleged file-sharers were guilty but lots about the unconventional methods of MediaCAT and its law firm ACS: Law.
The nature of the agreements made between MediaCAT and a series of copyright holders were under scrutiny as were the thousands of letters sent to those identified of violating their copyright by downloading pornographic films without permission.
The absence of any of the copyright holders in court was perhaps the biggest elephant in the room.
Then there were the unexpected witness statements on both sides.
The first, produced by defence barristers, appeared to show that while MediaCAT attempts to drop the 26 cases currently in court, letters were already being sent on their behalf to another swathe of people accused of downloading films without paying for them.
It emerged that the firm behind the letters - non-legal outfit GCB Ltd - was set up by two former employees of ACS: Law - who had "mistakenly" written to one of the defendants as well as a whole bunch of new people.
The revelations about GCB caught MediaCAT's barrister Tim Ludbrook by surprise and led to an adjournment just 10 minutes into the hearing as Mr Ludbrook questioned his instructing solicitor Andrew Crossley about what was going on.
Then there was the statement from Andrew Crossley himself, delivered just as the court reconvened after lunch.
Mr Crossley, who had been busy tapping away on his laptop during the morning, was absent in the afternoon.
Instead he left Mr Ludbrook to read a statement in which he said he had decided to cease all such work, to concentrate on his other clients and the ongoing investigation of him by the Solicitors Regulation Authority.
That too raised a few eyebrows.
And to top it all, there was a clearly unamused judge, describing proceedings as "mind-boggling" and "unprecedented" and who said more than once that "he was not happy" with the way MediaCAT and ACS: Law had conducted its campaign and subsequent court case.
Vital documents that should have been in court but were actually somewhere "in storage" seemed like a mere sideshow as events unfolded.
But among the twists and turns in Fetter Lane's patent court, there were some important questions being raised about how such cases may be conducted in future.
The government has made provision in its Digital Economy Act for tough penalties for alleged net pirates. It has stressed that there are no immediate plans to cut off access, concentrating instead on a letter campaign aimed at "educating" those whose network connection appears to have been party to illegal downloading.
In Ireland, the government wanted to cut offenders off from the net completely but its plans were recently dealt a blow when an Irish judge ruled that there were no laws in Ireland to allow this.
However the methods of identifying those believed to be sharing material without paying are likely to be similar to those used by ACS: Law, namely trawling torrent sites, locating IP addresses and then applying for a court order forcing ISPs to reveal the physical address of that network connection.
ISPs are not happy about being drawn into copyright holders' battles with net pirates and some refused to hand over details to ACS: Law.
BT and TalkTalk went one step further and recently won the right to have a judicial review of the part of the Digital Economy Act that relates to illegal file-sharing.
They argued, as did defence barristers in the MediaCAT case, that IP addresses - the numerical codes which identify a particular network connection - are simply not reliable evidence and that, even if they were, do not lead necessarily to the person responsible for illegal downloading.
That person could be another member of the household or someone piggy-backing on an unsecured wireless connection.
ACS: Law covered this eventuality by claiming that "allowing" someone to use a network connection was enough to obtain a conviction but Judge Birss questioned this.
The case has had little to do with net piracy and everything to do the new phenomenon of law firms chasing file-sharing in order to make money.
This is an accusation denied by Mr Crossley who, in answer to questions from Judge Birss about whether he ever wanted the cases to go to court, said he intended to "litigate vigorously".
It was revealed in court that Mr Crossley earned a 65% share of all revenue recovered from the thousands of letter sent, a fact not unnoticed by Judge Birss who asked whether Mr Crossley should be "held liable for costs" if the cases are dropped.
James Bench, a spokesperson for BeingThreatened.com - a group put together as a result of legal claims - certainly hopes so.
Mr Crossley had, said Mr Bench "caused distress by the campaign of legal threats that he has carried on against innocent broadband account holders for his own personal profit".
Other firms conducting similar campaigns have fallen by the wayside and, even before Judge Birss delivers his judgement, the case is likely to put others off from similar courses of action.
"Most reputable firms would look long and hard at doing this kind of work," said Deborah Prince, head of legal affairs at consumer group Which.
But what the wider implications will be for the crackdown on net piracy may have to wait until Judge Birss delivers his judgement.
"If he says that there needs to be judicial scrutiny about using IP addresses as evidence or the use of Bit Torrent to find them, or whether you can be held vicariously liable, then that means that the bald assertions of ACS: Law cannot be made in future," she said.
The judgement is expected soon.