The Who’s Who

The Claimant, Media CAT, is a company contracted to act on behalf of copyright owners to “inquire, claim, demand and prosecute through the civil courts” individuals identified as having infringed copyright over the internet through the use of peer-to-peer (P2P) file-sharing software.

The Defendants are a group of 27 private individuals accused of copyright infringement.

ACS:Law was a law firm instructed by Media CAT to undertake the necessary legal work associated with fulfilling their duties under contracts with copyright owners.

Andrew Crossley was the owner and only registered solicitor at ACS:Law. It is perhaps his name that is the most familiar in this case. He is to appear before the Solicitors Regulation Authority (SRA) as a result of his firm’s conduct (in particular, failure to protect the personal data of over 10,000 individuals which became available to the public after the ACS:Law website was attacked by disgruntled hackers).

Both ACS:Law and Media CAT have ceased business which is not thought to be a coincidence, but an attempt to avoid scrutiny and financial liability for the case (let’s see how that works out!).

First things first…

The central focus of this hearing was to consider whether a request by ACS:Law to discontinue the claims and reinstate them at a later stage should be allowed by the court. However the case has dealt a rather devastating blow to Media CAT and ACS:Law’s campaign against alleged copyright infringers and of particular interest, is the judge’s consideration of the tools that are being used to unveil these individuals.

The Facts

In order to pursue suspected copyright infringers, Media CAT would obtain lists of IP addresses (unique numbers identifying computers connected to the Internet) linking the use of file-sharing software to particular copyright works such as films or music tracks. Once they had this list, they instructed a firm of solicitors (ACS:Law) to apply to the court for what are called ‘Norwich Pharmacal’ orders to require Internet Service Providers (ISPs) to disclose the real names and addresses of individuals.

Through this process, Media CAT gained access to thousands of names and addresses. Media CAT’s lawyers, ACS:Law, would then write to each suspected infringer with so called ‘speculative invoices’ demanding payment of £495 and threatening court action if they did not pay. The judgment explains that these letters consisted of 6 pages of legal and technical language, 3 attachments and an invitation for the user to look on ACS:Law’s website at “Notes of Evidence”. Clearly these letters were designed to instil fear, backing accused individuals into a corner where they felt they had no other option than to pay up or accept the stress and cost of defending court proceedings.

Despite Media CAT obtaining tens of thousands of personal details, they (through ACS:Law) only chose to pursue 27 cases (the Defendants) in the Patents County Court. All 27 cases were due to be heard on 17 January 2011, however two days before the hearing the owner and principal solicitor of ACS:Law, Andrew Crossley, notified the court that they wanted to discontinue all 27 claims. A discontinuance does not mean that the cases would be dropped, but that they would be suspended with a view to reissuing the claims at a later stage.

The Questions

1. Why were the claims not being brought by the copyright owners themselves? Should the various copyright owners be joined as parties to the claims?
2. Was the use of Norwich Pharmacal orders in this case appropriate in unveilling the identities of suspected infringers?
3. Should the notices of discontinuance be allowed or disallowed on the basis that it would be an abuse of process and/or give Media CAT an advantage (some of the defendants had already filed a defence)?

The Judgment

His Honour Judge Birss QC arrived at the following conclusions:

1. Media CAT is only (at best) a licensee and therefore the copyright owners whose rights are alleged to have been infringed must be party to the claims. To allow the notices of discontinuance would be a breach of the law requiring this step to be taken. Furthermore, the notices amounted to an abuse of process - particularly in relation to cases where a defence had already been filed, giving the copyright owners a collateral advantage in relitigating claims.
2. While the judge accepted that P2P software could be used to infringe copyright, the material upon which ACS:Law evidenced their claims to obtain Norwich Pharmacal orders was not sufficient and would be required. Norwich Pharmacal orders should serve only to unmask the identity of an individual, not to allow the recipient of that information to try the case outside of court. It would not have been the intention of the judges who ordered the Norwich Pharmacal orders that ACS:Law would set about undertaking a form of summary justice in the way it was conducted.
3. The notices of discontinuance amounted to an abuse of process in this case on the basis that the wrong party was bringing the claims. Allowing the discontinuances would create a collateral advantage for the claimants as it would avoid judicial scrutiny of the claims upon which the Norwich Pharmacal orders had been sought.

The Future

• All 27 cases will now need to be heard (not separately, of course) and the court will consider whether a ‘wasted costs order’ should be awarded in favour of the defendants who have had to pay for lawyers.
• The system used by ACS:Law is a rather crude and unfavourable implementation of the provisions enshrined in sections 3 to 18 of the Digital Economy Act 2010. A judicial review of these sections is to take place in March.
• ACS:Law is under investigation by the Information Commissioner’s Office (ICO) for breaches of the Data Protection Act 1998.

Case Information

Mr Tim Ludbrook of 13 Old Square Chambers for Media CAT.

Mr Guy Tritton of Hogarth Chambers for the Defendants.

Media CAT v Adams & Ors [2011] EWPCC 6 is available to read on BAILII.