Illegal downloading. Big issue. Lots of complaints about lawyers pursuing heavy-handed shoot ‘em all and let God sort ‘em out tactics, such as writing letters to 78 year olds accusing them of downloading Basement Jaxx or whatever. The London firm of solicitors ACS:Law has become notorious in the blogosphere for its pursuit of illegal downloading; however, as of yet, it has no reported trial successes. Not an easy win. Even when the other side doesn't turn up.
The MediaCat case brought by ACS:Law is a prime example. 8 anonymous defendants. A claim that they had illegally shared, on peer-to-peer networks, the oeuvre of artistes such as Lynsey Dawn McKenzie. Or, at the very least, had not secured their internet connexions sufficiently, so that someone else could glom off their internet capacity. And apparently an open and shut case. So much so that ACS:Law applied for default judgment, and an order that the Defendants stop what they are doing and secure their networks, without even asking for a hearing; ACS:Law had not received a defence, so asked for a victory on the filed papers alone.
So, the judge looked at the court file. And was not impressed. These cases were all copyright cases; they should be brought by either the owner of copyright or an exclusive licensee. Was MediaCat either? The judge was uncertain. The claim form didn’t say. It did however say that MediaCat “represented” the owner and/or licensee, so at least that was one step forward. But the judge was very uncertain about the whole securing of an internet network. Not least because the judge decided that ACS:Law had pleaded the law wrongly – the appropriate legislation (sections 16(1)(a) and 17 of the Copyright Designs and Patents Act 1988) does not mention “allowing” someone to use your facilities, but “authorising”. Biiiiig difference.
The judge also pulled apart the claim form and particulars for being defective; they did not include a number of things the Civil Procedure Rules demand, e.g. whether MediaCat had done the things it needed to do before suing, although he decided that this did not affect his decision. He had plenty of other grounds for his ruling.
ACS:Law was after a set of default judgments. In other words, the claims had been filed and served, and the Defendants had done nothing. In those cases, you can go to Court and ask for judgment. If the defendant then wakes up to the fact it’s got a judgment against it, no biggie; it can have it set aside, if there’s a valid defence floating around somewhere. Defendant will have to pay costs, but that’s only fair, it should have done something beforehand. Thing is, defendants have a couple of weeks within which to do something – put in a form that says “I give up” or “I’ll fight”. In two of the eight cases the Defendants had not only put in the form, they had sent in a proper defence. Stating that they had never peer-to-peered in their life. OK, they had sent the form to Court, not to ACS:Law, but that doesn’t matter; the rules only require the defence be sent to the Court. The judge implied ACS:Law should have checked with the Court before going for judgment.
So, two down, six to go. Three other cases had problems; ACS:Law had asked the Court to serve the claim form and particulars, but the Court file did not have any evidence that the Court had done it. A fourth had a very similar Court file, with no evidence that the Court had served the claim, but the claim evidently had been served – there was a defence with the Court. You would think this would lead to the inference that those other three claims had been dealt with in the same way, but the Court constrained its imagination. What it did mean was that there was another case with a defence filed, and three that had apparently not been served.
So six down, two to go. There was no problem with service in this last brace of cases. It had all been done and dusted; the Defendants had been served, they had not replied. Prime candidates for default judgment. Trouble is, the Court rules dealing with default judgment state that you can only apply for default judgment for a specific sum of money, or for “delivery up” of goods. That was not what MediaCat sought. What ACS:Law should have done, said the judge, was make a formal application under a different Court rule. A trifling, piffling little technicality that the Court would happily ignore for the sake of justice? No. The judge pointed out that where injunctions were sought these different rules became important. There were novel questions of law raised in the claims – could someone be forced to uprate their internet security? Did the Court have the power to grant injunctions where MediaCat had not proved that the Defendants actually HAD infringed copyright? These needed to be gone through before a judge, rather than on the nod. More to the point, how old were the Defendants? The Court rules do not allow default judgments against children…MediaCat had not provided any evidence on this point at all.
So all eight applications were refused. In the four cases where a defence had been filed this was obviously correct. It is unfortunate that the Court rules do not specify that a defendant must serve a defence on the claimant as well as with the Court, but it’s not hugely difficult for a claimant to phone the Court and ask if a defence in claim number whatever has been filed. The decision that the Court had not served proceedings looks a little harsh, even though it is based on Court of Appeal authority (Patel v Smeaton) that the Court should put an endorsement on its copy paperwork showing when and how a claim was served. But a claimant is hardly likely ever to know the Court might not have served; MediaCat might have asked the Court to draw the inference that, if at least one other claim filed at the same time was definitely served, the others probably were as well. However, it would have made no difference. The Court refused judgment on other grounds – grounds which look to be perfectly sound. So, one quick route to stop copyright infringement has been firmly cut off.