4 May 2012 by

The Digital Economy Act, is it growing teeth?

An important ruling in a case regarding the disclosure of potential copyright infringers by the internet service provider O2 to a company seeking to protect its intellectual property is likely to have an effect on all future applications by companies seeking disclosure of potential infringers’ personal details from those that hold them.

In this case an application was made by a pornography company, Goldeneye, for their own purposes and on behalf of 12 other pornography companies with whom they had a commercial arrangement to share the proceeds of any successful actions against O2 to disclose the names and addresses of people that they believed were illegally downloading and sharing copyrighted materials.

The court allowed the disclosure of the suspected infringers’ details to Goldeneye on the basis that their “interests in enforcing their copyrights outweigh the [O2 customers’] interest in protecting their privacy and data protection rights, and thus it is proportionate to order disclosure, provided that the order and proposed letter of claim are framed so as properly to safeguard the legitimate interests of the [O2 customers], and in particular the interests of [O2 customers] who have not in fact committed the infringements in question.” The court also ordered that all claims against infringers arising out of the disclosure order would be required to be brought in the Patents County Court which has a cap on the amount of costs and damages that can be recovered from the losers of a case.

The court did not allow the 12 other companies the same details as the Judge, Mr Justice Arnold, considered this to be “tantamount to the court sanctioning the sale of the intended defendants’ privacy and data protection rights to the highest bidder.” He continued that “to make such an order would not proportionately and fairly balance the interests of the other claimant with [O2 customers’] interests.” Each of the 12 companies would need to make their own applications if they wanted access to the personal details of O2’s customers.

There were also words of caution from Mr Justice Arnold for companies seeking to obtain disclosure of the names and addresses of potential infringers based on IP address identification alone. He accepted evidence from Consumer Focus, a consumer charity, that IP addresses can lead to individuals being misidentified, as their identity is tracked to a computer source as opposed to an individual user, and consequently some of the individuals that are identified as being infringers “will not be guilty of having committed the infringement”.

The Goldeneye ruling is likely to have an important impact on the Digital Economy Act, and the new anti-piracy code of practice that Ofcom is in the process of implementing, as it demonstrates that the new code will have to emphasise that total reliance is not placed on IP addresses to identify copyright infringers.

At present, letters are sent from internet service providers to their customers suspected of copyright infringement warning them to stop. If three or more are sent in a year then the infringer’s internet connection can be slowed or stopped, and their name and address will be added to a ‘black list’ which will be available for copyright holders to use to enforce their intellectual property rights.

Whether the measures implemented by the Digital Economy Act are going to curb online piracy remains to be seen and there are going to be many more test cases emerging over the coming years that will shape the extent to which copyright holders can protect their creations.

Please call Marc Thurlow on 020 7288 4768 with any questions.

5 April 2012 by Yezdan Izzet

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