ACS:Law judgement raises questions over DEA
This week has seen some interesting developments in the ACS:Law/Media CAT case again 27 alleged file-sharers who have been taken to court by Media CAT. After having brought the cases, Media CAT then tried to have them thrown out so that they might be re-filed at a later date. Judge Birss, presiding over the case noted this was probably an attempt to avoid judicial scrutiny, and for this reason he did not allow the cases to be dismissed. Lawyers for the defendants were concerned that Media CAT, or the copyright owner would re-issue the cases leading to them being dragged out yet further.
Following peculiarities which include both ACS:Law and Media CAT writing to the court stating they have ceased trading and will be taking no further part in this activities, Judge Birss has now issued his judgement in the case. It is a long but interesting read which draws attention to the failings of Media CAT and their solicitors within the case which includes whether Media CAT actually has the right to bring the cases to the court without the copyright owner being present.
Judge Birss also questions the process used and suggests that a neutral, experienced supervising solicitor be appointed when a copyright owner or someone acting on their behalf requests a 'Norwich Pharmacal order' (which is used to force an ISP to identify who owned the IP address at the alleged time of infringement), to ensure that these are not abused. The intention here seems to be to avoid such companies just performing a letter-writing campaign without an intention to bring cases to court.
Of equal interest is Judge Birss' questioning of using an IP address to identify a copyright owner, which he states will likely just identify a wireless home broadband router and that Media CAT therefore do not know who actually caused the alleged and infringement. The judge also asked whether if someone allows others access to their broadband connection does this mean that they have authorized it for use for file-sharing, and questioned what defines an 'unsecure' wireless network. This could have implications for the Digital Economy Act (DEA) which is implementing rules to force broadband providers to identify users who have taken part in alleged file-sharing when identified by an IP address. The use of IP address information in this way remains untested within the courts.
The next steps in this debacle will see the Judge hear counsel to see if there would be anything gained from requiring Media CAT to apply to join with the copyright owners so the cases can proceed, but considering Media CAT have now ceased trading, the cases will likely be dismissed.