UK Court Wants To Limit Copyright Trolling… But Not Enough To Stop It Entirely
from the some-good-some-bad dept
Earlier this week there was a long and detailed ruling out of the UK’s High Court of Justice, looking into the practice of copyright trolling (suing a bunch of alleged infringers based mainly on IP address info, where the real purpose is to send threatening letters to get people to pay up) and finding it questionable — but still agreeing to force an ISP to hand over some user account information. These kinds of lawsuits certainly feel like a form of legalized extortion, and, over in the UK, ACS:Law and Davenport Lyons each ran into legal troubles for the scheme. A perfect ruling here could have completely slapped down the practice, but instead, it appears the court went for a more nuanced route.
The judge here tries to slice a ruling down the middle — rejecting large parts of this lawsuit for effectively trying to create a “court sanctioned… sale of the Intended Defendants’ privacy and data protection rights to the highest bidder,” which the court finds questionable. It also goes into a discussion about copyright trolling, or, as it calls it, “speculative invoicing.”
However, at the same time, the judge does require ISP giant O2 to hand over data on a bunch of people accused of file sharing to Golden Eye Ltd — but does so with some caveats. While there were many associated cases that all got rejected, the court did pick one, Ben Dover Productions, which it allows to move forward with O2 being required to release a lot of customer data. However, apparently somewhat fearful that such info would be abused to send out shakedown letters, the court wants to “supervise” any “pre-action correspondence” that the companies send. After admitting that this is not “normal,” the court says that the situations with ACS:Law and MediaCAT show “why this is an appropriate course to take.”
the court needs to consider the impact of the letter of claim upon ordinary consumers who may not have access to specialised legal advice, who may be innocent of what is alleged against them and who may be embarrassed and/or distressed by being alleged to have been involved in filesharing involving pornography.
From there, the court actually goes on to critique the “draft letter” — noting that the original letter Golden Eye wants to send is “objectionable in a number of respects,” specifically in misleading recipients of the nature of the threat and their options. It also attacks the specific demand for £700, noting that the amount is “unsupportable.” The reasoning here is quite interesting, with the final reason being the most telling. The judge slams Golden Eye for admitting that it chose £700 because “only a small proportion” of people they send the letter to will actually pay up. As the court notes:
This comes quite close to an admission that the figure of £700 has been selected so as to maximise the revenue obtained from the letters of claim, rather than as a realistic estimate of the damages recoverable by the relevant Claimant from each Intended Defendant.
The judge also points out that each defendant may be a different situation, and some may not have infringed at all. Having a blanket settlement fee simply is not appropriate, and clearly is not an accurate representation of damages. Additionally, the court notes numerous other problems with the nature of the shakedown letter:
First, the reference to the Code of Practice is inappropriate both for the reasons given by HHJ Birss QC and because it was not designed for letters to ordinary consumers.
Secondly, the draft letter does not make it clear that the fact that an order for disclosure has been made does not mean that the court has considered the merits of allegation of infringement against the Intended Defendant.
Thirdly, the draft letter asserts under the heading “Infringing Acts” that the Intended Defendant is liable for infringement. Although the last paragraph under that heading implicitly acknowledges the possibility that the Intended Defendant may not be the person who was responsible for the infringing acts, this acknowledgement is not sufficiently explicit. Furthermore, the reference under the heading “Proposed Settlement” to “inaction, by permitting a third party to use your internet connection” undermines the effect of the implicit acknowledgement. As HHJ Birss QC has explained, nothing less than authorisation suffices for infringement, at least in the context of a claim for damages.
Fourthly, the second paragraph under the heading “Legal Consequences” is too one-sided in that it sets out the consequences to the Intended Defendant of a successful claim without acknowledging the consequences to the relevant Claimant of an unsuccessful one. Fifthly, the reference to “other intellectual property” under the heading “Proposed Settlement” is unjustified. There is no evidence that any other intellectual property rights of the Claimants have been infringed.
Sixthly, I consider that requiring a response within 14 days is unreasonable given that the Intended Defendants are consumers and that there is no urgency in the matter. 28 days would be reasonable.
Lastly, the threat to make “an application to your ISP to slow down or terminate your internet connection” is unjustified. Counsel for the Claimants accepted that the word “application” was inappropriate, and said that “request” would better convey what was intended. I do not agree that a threat even of that nature is justified in a letter of this kind, however.
All in all, it’s good to see the court recognize how such copyright trolling can and is abused, and try to limit that. It’s too bad that it still comes down on the side of having O2 give up a bunch of user information, still knowing that this is likely how it’s going to be used. However, at least it’s trying to minimize the abuse.