The key here is a ruling yesterday from the UK High Court. Back in March, the High Court in London ruled that Golden Eye International Ltd could pursue O2 (Telefonica) customers for copyright infringement. Golden Eye had issued a Norwich Pharmacal Order (a demand for information on third parties) against O2 for information on 9124 IP addresses it suspected of being involved in illegal downloading, including from the porn brand Ben Dover.
In a subsequent court case, Mr Justice Arnold ruled, “Golden Eye and Ben Dover Productions have a good arguable case that many of the relevant Intended Defendants have infringed their copyrights. I am satisfied that they do intend to seek redress for those wrongs and that disclosure is necessary to enable them to do so.”
But it wasn’t an absolute victory for Golden Eye. Firstly, the court wanted to consider the precise wording of any letters to be issued; and perhaps more pertinently, it said that the subscriber should not automatically be assumed responsible for any copyright infringement.
Yesterday’s ruling has now given the green light to Golden Eye. It will need to send two letters to users. The first will be a general warning to give notice that infringement has been detected on their internet connection, and asking for a response within 28 days. However, this letter must not imply an automatic assumption of guilt, nor issue threats to slow down or terminate the users’ connection; but does warn against failure to reply.
The second letter is designed to negotiate a settlement figure – and is where things begin to get interesting. The user can only reply ‘yes, I did it,’ or ‘no, it wasn’t me.’ If the former route is chosen, then the user will have to start negotiations with Golden Eye. If the latter route is used, then the most obvious and most likely argument is that even if it was the user’s IP address, he (or she) wasn’t using it at the time; that is, it could have been a visitor to the house (as happened in the Finnish case), or it must have been a hacker gaining illegal access to the system.
In either case it comes down to who is responsible for use of the connection; the unknown visitor or hacker, or the owner of the connection. This is bound to come to a head in the very near future, possibly as a direct result of GoldenEye’s letters. It is wrong and impossible to prejudge a judge. In February 2011, Judge Birss said in a separate case (ACS:Law), “The fact that someone may have infringed does not mean the particular named defendant has done so.”
Nevertheless, the intent of the Copyright, Designs and Patents Act 1988 is fairly clear: the infringer is the person who undertakes the acts reserved to the copyright holder. That would seem to let the user off the hook if the the copyright holder cannot absolutely prove the identity of the infringer. However, copyright infringement is also a tort, meaning that the employer can be held vicariously liable – which suggests a possible argument that by not securing the connection, the subscriber can be held vicariously liable for the infringement.
This is going to take the wisdom of a judge to decide.