Volume litigation is discussed in Chapter 10 (at 10.2.7) and only received three pages of coverage in the book. Since then much has happened, most of it fuelled by the actions of Andrew Crossley and ACS: Law. This blog has several entries on this - see Not a Good Week for Andrew Crossley and Volume Litigation Issues to catch up while I also wrote a longer piece on the activity for the Journal Computers and Law. Throughout I bemoaned the lack of a full hearing on the activity, noting that whenever an action was defended the pursuit would be dropped. I'm pleased to say eventually that Railli Solicitors and Lawdit Solicitors (operated by the excellent Michael Coyle) finally forced a hearing. What happened next has been covered extensively by the media. ACS:Law ceased operations and Andrew Crossley sought to have the cases discontinued. He claimed he had been the target of death threats including bomb threats and criminal attacks including the famous Anonymous ACS:Law hack - interestingly on a related note the Information Commissioner last week found he need take no action against BT over leaked customer details handed over to ACS:Law - see here .The more cynical may observe that Andrew Crossley sought to discontinue the cases to avoid a precedent being set in case he ever wanted to return to this valuable cash cow. In any event HH Judge Birss was having none of it. He decided as the copyright holders were not in court the case had to continue and continue it did (and indeed does) and on the 8th of February he issued his judgement in the matter.
Media Cat v Adams
The most important part of HH Judge Birss's judgement is his views on the connection of IP addresses and infringers. As I have discussed before the fulcrum of the volume litigation model is to link an IP address to an individual user using a Norwich Pharmacal order. So the enforcement organisation (in this case Media Cat) capture IP addresses which they pass on to their legal representatives (here ACS:Law) who then seek a Norwich Pharamacal order against ISPs forcing them to reveal customer account details relating to that IP address. As has been pointed out by myself and others an IP address is though an address of a device not a person - you can identify a router but now who was using it. ACS:Law have claimed that the operator of a router has some form of "owner liability" to ensure that anyone using their router is not acting unlawfully. I have repeatedly pointed out that the Copyright, Designs and Patents Act has no such provision.
Judge Birss seems to have come down squarely on my interpretation of the CDPA. He notes (at paras [28-31]):
28. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All Media CAT’s monitoring can identify is the person who has the contract with their ISP to have internet access. Assuming a case in Media CAT’s favour that the IP address is indeed linked to wholesale infringements of the copyright in question (like the Polydor case), Media CAT do not know who did it and know that they do not know who did it. The Particulars of Claim are pleaded in a way to address a problem which is very old and very well known in intellectual property cases (see e.g. The Saccharin Corp v Haines (1898) 15 RPC 344). There the patentee had patents on all known methods of making saccharin and so, even though the patentee did not know how it was made, the defendant’s saccharin must be infringing one way or another. Such saccharin type points arise frequently when a claimant contends that despite a lack of information about some aspect of the matter, one way or another the defendant is liable for infringement.
29. Media CAT’s case on this is in two parts. Of course Media CAT cannot know who actually used the P2P software, so in paragraph 3 of the Particulars of Claim they plead that the software was used either by the named defendant who was identified by the ISP, or by someone they authorised to use the internet connection or someone who gained access to the internet connection “due to the router having no or no adequate security”. Then in paragraph 5 the plea is that “in the premises” the defendant has by himself, or by allowing others to do so, infringed. So taken together these two paragraphs show that the Particulars of Claim is pleaded on the basis that one way or another the defendant must be liable for the infringement which is taking place.
30. But the argument is based on equating “allowing” and “authorising” and on other points. What if the defendant authorises another to use their internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright? Does the act of authorising use of an internet connection turn the person doing the authorising into a person authorising the infringement within s16(2)? I am not aware of a case with decides that question either. Then there is the question of whether leaving an internet connection “unsecured” opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally what does “unsecured” mean? Wireless routers have different levels of
security available and if the level of security is relevant to liability - where is the line to be drawn? No case has decided these issues but they are key to the claimant’s ability to solve the Saccharin problem and say – one way or another there is infringement here.
31. Notable again is the contrast between the letter of claim and the Particulars of Claim. The letter simply asserts that the defendant has infringed “either directly yourself or by you authorising (inadvertently or otherwise) third parties to do the same”. The letter makes no mention of unsecured internet connections. It does not face up to the Saccharin point. Again the Particulars of Claim is rather more frank than the letter.
The Particulars of Claim faces up to the difficulty and tries to put a case which deals with it, but it all based on untested legal and factual propositions and issues of technology.
Where does this leave us. Well Judge Birss has to be careful. He cannot say the use of an IP address as a proxy for a user is not possible as he has not had a full hearing on the evidence, hence the carefully couched language. But reading between the lines he is saying it would have to be pretty spectacular evidence before he would even consider such a statement. He is also pointing out that ACS:Law is saying one thing in letters to alleged infringers and another in their statements of claim. This he seems to be suggesting is al least bad practice at worst bad faith.
He concludes his views on the practice of connecting IP addresses to claims at para. [91]:
91. First, the nature of the case itself raises many questions. I have mentioned some of them above. The issues are as follows:-
(i) Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all.
(ii) Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement then encounters the Saccharin problem. It is not at all clear to me that the person identified must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so. Perhaps the holder of the account with the ISP has a duty to assist along the lines of a respondent to another Norwich Pharmacal order but that is very different from saying they
are infringing.
He goes on from this central point to, in a quite extraordinary judgement, attack the practice of volume litigation more generally. In paragraph [21] he discusses the menacing tactics of the volume litigation model:
21. Perhaps many, maybe more of the recipients of these letters have been squarely infringing the copyright of [the copyright holder] on a major scale and know that they have been doing exactly that. They may think £495 is a small price to pay and settled immediately. That is a matter for them. However it is easy for seasoned lawyers to under-estimate the effect a letter of this kind could have on ordinary members of the public. This court’s office has had telephone calls from people in tears having received correspondence from ACS:Law on behalf of Media CAT. Clearly a recipient of a letter like this needs to take urgent and specialist legal advice.Obviously many people do not and find it very difficult to do so. Some people will be tempted to pay, regardless of whether they think they have actually done anything, simply because of the desire to avoid embarrassment and publicity given that the allegation is about pornography. Others may take the view that it all looks and sounds very official and rather than conduct a legal fight they cannot afford, they will pay £495. After all the letter refers to an order of the High Court which identified them in the first place. Lay members of the public will not know the intricacies of the Norwich Pharmacal jurisdiction. They will not appreciate that the court order is not based on a finding of infringement at all.
At paragraph [23] he attacks the claimants for trying to dispose of the actions without allowing the respondents the chance to be heard:
23. In any event over a period from August to November 2010 Media CAT commenced 27 cases before the Patents County Court for copyright infringement. In November they applied for default judgment in 8 of them using a procedure almost unheard of in intellectual property cases called a request for judgment (RFJ). It is withott notice to the defendant. These came before me on paper and were dealt with without a hearing. On 1st December 2010 they were rejected (see Media CAT v A [2010] EWPCC 017). The judgment questioned whether the RFJ procedure was appropriate for complex copyright cases of this kind. One feature of the RFJ procedure is that it is designed for claims for specified sums of money (and certain other claims) where no judicial decision is required (see The White Book at 12.0.2).
The coup de grace is delivered in three final withering comments:
At paragraph [91(iii)] he questions the level of damages claimed:
The damages claimed deserve scrutiny. If all that is proven is a single download then all that has been lost is one lost sale of one copy of a work. The sort of sum that might represent would surely be a small fraction of the £495 claimed and the majority of that sum must therefore be taken up with legal costs. If so, a serious question of proportionality arises but again this has not been tested. Clearly if the defendant has infringed on a scale as in the Polydor case then would be a very different matter but there is no evidence of such infringement here.
At paragraph [99] he questions the whole tactics of Media Cat/ACS:Law
Media CAT and ACS:Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 26 court cases, a wholesale letter writing campaign is being conducted from which revenues are being generated. This letter writing exercise is founded on the threat of legal proceedings such as the claims before this court.
Finally at paragraph [22] he highlights the unwillingness of the claimants to back up their letter writing campaign with legal claims:
One odd thing is that if tens of thousands of letters have been sent threatening legal action, where are all the legal actions? The Patents County Court is clearly an appropriate court to bring a claim against an individual for copyright infringement and yet there are only 27 cases pending. Surely out of 10,000 letters it cannot be that only 27 recipients refused to pay.
Unfortunately this is unlikely to be the last we will see of the practice of volume litigation, for as Judge Birss noted himself (at [100])
The information annexed to Mr Batstone’s letter refers to ACS:Law having “recovered” £1 Million. Whether that was right and even if so whether it was solely in relation to Media CAT or other file sharing cases I do not know. Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable.10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so. Note that ACS:Law’s interest is specifically mentioned in the previous paragraph because of course they receive 65% of the revenues from the letter writing exercise. In fact Media CAT’s financial interest is actually much less than that of ACS:Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court. Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?