[x-pubpol] Small Claims Track Makes Court Best for Handling UK Internet Piracy Cases

[Joly MacFie]

http://www.ispreview.co.uk/index.php/2012/10/small-claims-track-makes-court-best-for-handling-uk-internet-piracy-cases.html

By Mark Jackson

The Intellectual Property Office <http://www.ipo.gov.uk/> (IPO) has today
introduced a *new small claims track* to the *Patents County Court*(PCC)
that should make it easier for UK internet users to defend themselves
against dubious claims of *file sharing piracy*. Rights Holders will also
find the process a lot cheaper.

Until recently Rights Holders rarely pursued suspected cases of *internet
copyright infringement* through the courts because it was expensive and law
firms (e.g. ACS:Law, Davenport Lyons <http://www.davenportlyons.com/> etc.)
often found it more lucrative to pursue broadband ISP customers by
sending *bullying
settlement letters* (aka – “*speculative invoicing*“).

But such cases often place a great deal of reliance upon the Rights Holders
ability to connect an Internet Protocol
(IP<http://www.ispreview.co.uk/jargon/category/Internet_Services/IP.htm>)
address, which is assigned to your connection whenever you go online and
made public while sharing content over a *BitTorrent* P2P (file sharing)
network, to a specific individual. Several recent cases and rulings (e.g.
here<http://www.ispreview.co.uk/story/2011/06/10/uk-davenport-lyons-lawyers-disciplined-over-illegal-file-sharing-isp-threat-letters.html>
 , here<http://www.ispreview.co.uk/index.php/2012/07/goldeneye-sends-internet-piracy-claim-letters-to-2845-o2-uk-customers.html>
 and here<http://www.ispreview.co.uk/index.php/2012/07/uk-library-and-education-coalition-warns-anti-piracy-act-will-limit-net-access.html>)
have found such evidence to be very flimsy and often even inadmissible.

The reason for this is because an
IP<http://www.ispreview.co.uk/jargon/category/Internet_Services/IP.htm>
address
can at best only* identify the connection owner* and any small timing error
between an ISP and the third-party P2P logs could easily result in the
wrong individuals being targeted. Most connections are also shared (e.g.
families, hotels, public
wifi<http://www.ispreview.co.uk/broadband_wireless.php> hotspots,
business networks, schools etc.), thus actually being able to identify the
guilty individual becomes almost impossible. As a result Rights Holders
often prefer to avoid the courts, while publicly blaming the issue on cost.
The Small Claims Court

Until today the small claims
court<http://www.ispreview.co.uk/new/complain/unofficial_isp_complaints_handlers.php#5>
simply
wasn’t equipped to handle such disputes but the IPO’s new track aims to
provide Rights Holders with the option of pursuing basic copyright disputes
through an informal hearing, without legal representation. This is expected
to “*reduce the cost of pursuing Intellectual Property infringement cases*“.
Claims allocated to the new track will also be subject to *cost
restrictions of £5,000* or less to ensure they are proportionate to what is
at stake.

*Michael Fallon, Business Minister, said:*

“*Small firms, whose intellectual property has been infringed, will have
today a simpler and easier way to take their cases forward, by writing
direct to the judge and setting out the issues.*

*Lower legal costs will make it easier for entrepreneurs to protect their
creative ideas where they had previously struggled to access justice in
what could often be an expensive progress. A smarter and cheaper process is
good for business and helping businesses make the most of their
intellectual property is good for the economy*.”

On the surface this might sound a bit like it’s going to open the
floodgates for thousands more people to be pursued by Rights Holders and
that is possible. However, as hinted earlier, the small claims track could
also be a double-edged sword for Rights Holders as the problem of fallible
evidence is not one that can easily be overcome.

Furthermore consumers whom feel wrongly targeted and or bullied by such
piracy claims now have an easier and more affordable means of defence than
incurring the risk of a potentially expensive court proceeding. Whether or
not this works in practice is yet to be tested.

*Peter Bradwell of the Open Rights Group
<http://www.openrightsgroup.org/> (ORG)
said:*

“*A less costly and complex route to justice is another important step
towards intellectual property laws that are fit for the digital age. A
small claims track will mean creators can access justice more easily when
their rights are infringed. And it should help consumers defend themselves
against lower value infringement claims*.”

*Mike O’Connor, Chief Executive of Consumer Focus, said:*

“*High volume but low value copyright infringement by consumers has posed a
considerable challenge to a system designed for high value business
disputes. The small claims track is a significant step towards a cost
effective and fair copyright enforcement regime fit for the digital age. It
will allow consumers to effectively defend themselves without facing
expensive legal fees. Alternatively consumers can own up without fear of
having several thousand pounds of cost imposed against them*.”

Sadly none of this looks set to prevent the first phase of the *Digital
Economy Act* (DEA) from getting underway in *early 2014*
(details<http://www.ispreview.co.uk/index.php/2012/06/ofcom-release-internet-piracy-tackling-initial-obligations-code-for-uk-isps.html>).
This will require broadband ISPs to begin sending “*notification letters*”
(warnings) to those suspected of having engaged in “*illegal*” internet
piracy. But it might just weaken the case for tougher measures, such as
account disconnection or other service restrictions, if Rights Holders are
already perceived to have an affordable legal remedy at their disposal.

-- 
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Joly MacFie  218 565 9365 Skype:punkcast
WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
 VP (Admin) - ISOC-NY - http://isoc-ny.org
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