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More ACS:Law – what are the implications for three-strikes?

By | Published on Wednesday 9 February 2011

ACS:Law

Both ACS:Law and its clients MediaCAT may have gone out of business, but the file-sharing litigation they instigated continues to rumble on in court, even if reps for the two firms choose not to attend.

As previously reported, London legal firm ACS:Law, leading advocate of the sue-the-fans approach to tackling file-sharing, took 27 cases to court last year on behalf of porn companies represented by piracy monitors MediaCAT. But the cases pretty much immediately fell apart as the judge picked holes in the process and legal arguments of ACS main man Andrew Crossley.

Panicked by the judicial criticism, Crossley tried to withdraw the lawsuits, then announced he was stepping back from file-sharing litigation altogether, and then shut down his company. Nevertheless, Judge Birrs insisted that the cases – and the whole approach of lawyers sending intimidating letters to suspected file-sharers in the hope they’ll quickly settle out of court, providing said lawyers with a commission – continued to be reviewed in court.

The latest hearing took place yesterday. With ACS:Law and MediaCAT now no more, Birrs gave the actual copyright owners whose intellectual property rights have possibly been infringed here fourteen days to step in and fight the cases themselves, otherwise the lawsuits – as Crossley has already requested they be – will be dismissed. At that point the judge will rule regarding whether and how defendants in this case can recoup their legal costs from the plaintiffs.

Birrs again criticised the ACS:Law approach, ie building a business based on the assumption most people targeted with stern legal letters will settle out of court, especially if the content they are accused of illegally accessing online is pornographic. And again the judge accused Crossley of trying to operate away from judicial scrutiny.

According to TorrentFreak, he told the court: “[ACS:Law had] a very real interest in avoiding public scrutiny. 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?”

But with ACS:Law dead in the water and its letter-writing approach well and truly bashed to the floor, probably of more interest in yesterday’s hearing was Birrs latest thoughts on whether someone who pays for an internet connection can be held liable for copyright infringement if, unbeknownst to them, a third party uses their connection to illegally file-share, whether after being given permission to use the bill payer’s computer, or by tapping into an unprotected wi-fi network. Birrs seems to think not.

According to The Guardian, he said: “Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone [officially] related to that IP address at all? Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement [does not make it] clear to me that the person identified [ie the bill payer] must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so”.

He added: “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) [of the Copyright, Designs & Patents Act]? I am not aware of a case with decides that question either”.

He’s right, this issue – ie the liability of an ISP customer for third party copyright infringement – has not been addressed in any UK file-sharing court cases, mainly because there haven’t been many, and in the 100 or so pursued by the BPI back in the day it never came up, mainly because the vast majority of people targeted with file-sharing litigation quickly fess up to having accessed unlicensed content online.

It did come up a few times in the US during the Recording Industry Association Of America’s file-sharing litigation campaign, most notably in the Santangelo case, and in the main judges there were unwilling to extend liability for infringement to internet account holders who had not personally accessed unlicensed content.

For a finding in the other direction, we must look to the German courts, where one court did rule that there was an obligation on internet customers to password protect their wi-fi connections in order to avoid liability for any infringement conducted by third parties on their network, though that case would not be especially persuasive in the English courts.

Of course, we say again, in most file-sharing cases the accused quickly admit to having file-shared. However, Birrs’ comments do demonstrate there is a lot of ambiguity in English law if and when a defendant claims they are not personally aware of any file-sharing conducted on their net connection. And, of course, in the wi-fi age such a claim is more believable.

That fact has implications beyond ACS:Law’s shenanigans, in that if and when the three-strikes component of the Digital Economy Act reaches the stage at which the net connections of persistent file-sharers are suspended or restricted, the appeals system which will presumably be part of the ‘graduated response’ process will have to cope with “but it wasn’t me guvnor” claims. And if said appeals system is going to have to rely on precedent in common law, then things are going to be tricky.



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