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CuriousJoe
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PostPosted: Sun May 26, 2013 4:23 pm    Post subject: Copyright Litigation Reply with quote

Could anyone help me ?
I have been looking for a single example of a user being litigated against for downloading or sharing copyright material in the UK. (therefore not a service but a user)

Any links etc

Many many thanks
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AndyJ
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PostPosted: Sun May 26, 2013 8:41 pm    Post subject: Reply with quote

Hi Joe,
There have been quite a few cases of this sort, although I'm not clear whether you are looking for a specific type of case.
Probably the most recent one is that of Anne Muir, which was widely reported on, including by the BBC.
Another case which was fairly open and shut, and for which summary judgement was given, was Polydor Ltd v Brown and others [2005] EWHC 3191.
And just to show that complainants don't always win, we had the well-known Media CAT cases which brought about the downfall of the legal firm ACS:law.
As you may know, in many cases, litigation against an individual is most likely to start with the granting of a so-called Norwich Pharmacal order, which requires an ISP to divulge the name of the account holder associated with a particular IP address which it is alleged has been responsible for doing the downloading. But these orders can be abused if the complainant merely wishes to pursue what is known as speculative invoicing against an alleged downloader, something the courts tend to disapprove of, if there was never an intention to commence litigation in the courts. An example of this scrutiny in action can be found in Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWHC 723 Ch. Obviously since this case is about the granting of a Norwich Pharmacal order, it does not itself relate to an individual downloader, and as far as I am aware, Golden Eye's only other attempt to bring a case to court failed to go forward, presumably because the parties settled.
I hope this is the sort of thing you were looking for.
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CuriousJoe
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PostPosted: Mon May 27, 2013 1:56 pm    Post subject: Reply with quote

Hi Andy,

Thank you ever so much for such a detailed and helpful reply. It was exactly the sort of help I was looking for.
In regards to some of your comments,

- "There have been quite a few cases of this sort, although I'm not clear whether you are looking for a specific type of case. " - no it was specific. I have been looking into copyright legislation specifically in relation to online piracy, and was curious about the extent to which claims are made under the CDPA against users (not services), specifically for infringement (16(2)) - due to downloading (s.17) and sharing (s.20) . Though cases against services such as Newzbin are widely reported I struggled to find individuals who were litigated against.

This may be due to my sourcing ? Primarily looking at PLC - but I was curious if User Infringement Litigation is common - and if not what are the commercial reasons behind it not being used.

Lots of the legal comment seems to state that user targeting can be ineffective, due to cost / and the volume of targets. - but finding at times the specifics of what a copyright holder could expect from a successful litigation attempt against a user has been challenging , in particular ;

- what sort of damages could they expect , and do they outweigh over cost of pursuing users (taking on board the Norwich order as well into the calc, which again I have struggled to find details as to the cost of such an order)
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AndyJ
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PostPosted: Mon May 27, 2013 5:04 pm    Post subject: Reply with quote

Hi Joe,
With online piracy, the problem with going after the individual downloaders is how to prove, cost-effectively, that infringement has occurred and who, specifically, is liable. The normal route is for robot programmes to monitor the IP addresses of users who access the (mostly torrent) hosting sites, followed by a Norwich Pharmacal order to obtain the name and address of the account holder, then an attempt to get an admission from that individual. As was discussed in both the Golden Eye and Media CAT cases, more often than not the record or video companies who are the rightsholders, outsource this work to a third party in exchange for a slice of the money made out of the operation. Since litigation through the court is expensive, the business model which seems to have been adopted here is to get the account holder to settle to avoid the expense of going to court. Of course many businesses such as photo libraries have adopted this approach in the past, so it's not unique to the record and movie business.

Without a warrant to search the account holder's premises, it is unlikely that evidence of copying (ie a copy of the pirated material being found on the hard disk) will be available, so making a s 16(2) infringement hard to prove. Unless the complainant can persuade the courts that there is a criminal element to the complaint - rare as far as a private individual is concerned - the likelihood of getting a so-called Anton Piller order is fairly slim, so much rests on the viability of the downloading evidence. From the the Media CAT cases referred to in my earlier posting, this can be problematic. The courts in the US are now taking a similar approach (you could Google 'Righthaven' or 'Prenda Law' if you want more details on this).

Which means that, as you say, going after individuals is far from straightforward or economically worthwhile. In theory the provisions of the Digital Economy Act were supposed to make this easier for the rights holders, but negotiations over the details of implementation and code of practice have stalled without any real progress being made, and that part of the Act is still not in force.

You asked about damages. This is another disadvantage for the potential complainant, because in civil law the aim of damages is not intended to punish, but rather to restore to the complainant what he has lost by the act of infringement, which of course in each individual case, is a fairly small amount, say the retail price of the album, video or game involved. Exemplary damages may be awarded if the infringement is flagrant, but again this may be hard to prove. By far the largest element of any financial penalty to be borne by the unsuccessful defendant is the costs which may be awarded against him, in addition to his own legal costs.

All of which explains why for the most part organisations like the BPI and FACT amongst others tend to go after the hosting sites (as in Newzbin 2) because it causes greater disruption to pirating generally, whereas companies like ACS:law tend to go after individuals using somewhat dubious methods to extract monetary settlements which are out of proportion to the actual damage suffered by the rights holders.

As for the costs of various judicial proceedings, these will vary considerably depending on the length on the proceedings, the number and quality of counsel instructed and similar factors, and generally go unreported. You might expect a typical Norwich Pharmacal order hearing to cost in the hundreds or low thousands because, by definition they are ex parte and relatively brief.
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