Is requesting content breach of copyrighted content?

[Confuseddd]

Hi all

Looking for some advice

Friend of mine has today received an email threatening them with a breach of Copyright, Designs and Patents Act 1988, specifically that they have requested copyrighted material (supposedly not shared anything) from their website

I haven't seen the full email but they've said it's mentioning lawyers and legal action etc etc

What should they do next?

[AndyJ]

Hi Confusedd,

I'm not clear what you mean by 'requested copyrighted material from their website'. I assume this was not a standard call by their browser for an item from the other website, as would happen when they viewed a page in the normal way and the digital file was displayed on the user's computer screen. Obviously, this is how the internet works and so it doesn't constitute either copying or infringement. Since the target site would not be aware of whether or not the user then saved any element of the webpage (an action which might in certain limited circumstances amount to infringement by copying), I can't see what is the basis for this claim. The only way the target site could become aware that something had been copied from their site was if the item was then made publicly available on the user's own website /social media etc (ie it was shared, which you say didnt happen).

It is possible that if the downloaded material was stored on a server which was connected to the internet but not incorporated into the user's website via the appropriate code, it might still be found by a web crawler or bot (or if the server was hacked), assuming that the server was not properly secured against such intrusion. But if the material was merely in the cache of the user's computer after the user visited a webpage, then this would not be infringement as it would fall under section 28A of the Copyright Designs and Patents Act, a legal protection which has previously been confirmed by the Court of Justice of the European Union in a case know as Meltwater, as well as the UK Supreme Court.

There is also an exception under the fair dealing rules (see section 29) which allows a user to copy material for the purposes of research and private study, provided that this is not done for commercial purposes.

The only other scenario I can think of is if the user (your friend) used a link to the target site such that the material, for instance an image, was displayed within the user's web page etc. This is often referred to as hotlinking, and as long as the user does not store a copy of the material on his own server, that is perfectly legal provided that a. the original material was accessible to the general public (not behind a paywall or other protection), and b. the material itself was being legally displayed on the target site in the first place. We do not need to worry about this second condition in this instance as it appears from your posting that the owner of the target site is claiming ownership of the copyright in the material. The authority for this is another CJEU decision known as Svensson.

So unless the circumstances of this claim are completely different to those described above, I can't see how the claim can be valid or needs to be taken seriously. Obviously your friend should satisfy himself or herself that this is not just some sort of criminal scam or phishing attack.

[Confuseddd]

Hi Confusedd,

I'm not clear what you mean by 'requested copyrighted material from their website'. I assume this was not a standard call by their browser for an item from the other website, as would happen when they viewed a page in the normal way and the digital file was displayed on the user's computer screen. Obviously, this is how the internet works and so it doesn't constitute either copying or infringement. Since the target site would not be aware of whether or not the user then saved any element of the webpage (an action which might in certain limited circumstances amount to infringement by copying), I can't see what is the basis for this claim. The only way the target site could become aware that something had been copied from their site was if the item was then made publicly available on the user's own website /social media etc (ie it was shared, which you say didnt happen).

It is possible that if the downloaded material was stored on a server which was connected to the internet but not incorporated into the user's website via the appropriate code, it might still be found by a web crawler or bot (or if the server was hacked), assuming that the server was not properly secured against such intrusion. But if the material was merely in the cache of the user's computer after the user visited a webpage, then this would not be infringement as it would fall under section 28A of the Copyright Designs and Patents Act, a legal protection which has previously been confirmed by the Court of Justice of the European Union in a case know as Meltwater, as well as the UK Supreme Court.

There is also an exception under the fair dealing rules (see section 29) which allows a user to copy material for the purposes of research and private study, provided that this is not done for commercial purposes.

The only other scenario I can think of is if the user (your friend) used a link to the target site such that the material, for instance an image, was displayed within the user's web page etc. This is often referred to as hotlinking, and as long as the user does not store a copy of the material on his own server, that is perfectly legal provided that a. the original material was accessible to the general public (not behind a paywall or other protection), and b. the material itself was being legally displayed on the target site in the first place. We do not need to worry about this second condition in this instance as it appears from your posting that the owner of the target site is claiming ownership of the copyright in the material. The authority for this is another CJEU decision known as Svensson.

So unless the circumstances of this claim are completely different to those described above, I can't see how the claim can be valid or needs to be taken seriously. Obviously your friend should satisfy himself or herself that this is not just some sort of criminal scam or phishing attack.

Appreciate the length of reply!

They said to me that all they've done in simply asked, on a forum, if anyone has this particular content, they've not shared or distributed anything and the content itself also hasn't been shared subsequently. But supposedly the request in itself constitutes a breach. I struggle to see how that may be the case but I have no law knowledge

[AndyJ]

I am also struggling to see any circumstances in which asking the whereabouts of some material could ever be interpreted as infringement.
It wouldn't matter what the actual material was, for instance a camcopy of the latest blockbuster movie or a new song by Taylor Swift, simply asking, even if that was a preparatory step to acquiring some pirated material, would not amount to infringement. If your friend feels like engaging with these people, the next step would be to ask them exactly what part of the law they think has been broken. There are a lot of people out there who have a very sketchy idea of how copyright law is supposed to work.

[Confuseddd]

Again really appreciate the response and I have advised my friend of your comments

They've said they may email them back but don't want to make things worse; I think it might be good for piece of mind but it's their choice. Someone did say the fact the initial correspondence came from a support email address rather than any legal team/lawyer/etc is quite telling

The website in question specifically referenced section 97 of the Copyright Designs and Patents Act 1988 but a few have have said they don't see the relevance of this particular section and that as andyj said, simply asking for content isn't an infringement

[AndyJ]

Hi again,

I imagine that the reference to section 97 is intended to imply that they think your friends have not only infringed their copyright, but have done so in a way that is flagrant and so exceptional that they are considering applying for additional damages. This appears to be either dillusional or more evidence that they don't understand the law and are just copying the sort of nonsense put out by the claims management companies we hear about quite a lot on these forums.

[Confuseddd]

We were reading that particular section again and doing a bit of Googling and we both said we can't see how it has any relevance in this instance

Had there been any sort of streaming/downloading/uploading/sharing etc I would (possibly) understand, but I can't see how just asking if anyone has xxxxxxx material is an infringement. Post has since been deleted as far as we can tell too

[Nick Cooper]

This seems to be a very bizarre stretch, because in some circumstances such a enquiry could lead to the perfectly legitimate supply of a copyrighted work. Someone could, for example, ask in a forum if anyone has a particular old film that is not currently available on DVD/BD or any streaming service. That could elicit a reply from someone who has it on an old official VHS release - or even a out-of-print DVD - and is willing to part with it, if that works for the person looking for it. Even if accepted, and the transfer happened, that wouldn't be an infringement due to the principle of the exhaustion of rights.