Law of Defamation

Wednesday, January 31, 2007


Slipping through the net

Music firms will find it hard to establish a case against illegal downloading

Richard Colbey
Saturday October 30, 2004
The Guardian

The music industry has got considerable publicity for its drive to prevent unauthorised downloading of music from the internet. Trade association, the British Phonographic Institute (BPI), claims to have details of the computers of the 28 most serious abusers of the intellectual property rights of record companies and is threatening to sue those people, once it finds out who they are.

The BPI faces a number of legal and technical hurdles in this battle. Even if computers used have been correctly identified, it will next have to force the internet service providers (ISP) to give it their subscribers' names. The courts will probably order this on the basis that the ISP is facilitating the illegal activity.

This principle was established in 1973 when Norwich Pharmacals brought an action against the Customs & Excise which had allowed the import of drugs which were allegedly infringing patents. The case was followed against the Motley Fool, an ISP whose customer had committed libel pseudonymously in 2001. Most file swappers will be using broadband paid for with a credit card, which is more traceable than dial up services, but some will prove untraceable whatever a court orders.

It is only once such an order is obtained that those targeted by the industry will find out what is going on. It is possible that the BPI will then go on to get search orders from the High Court which would enable them to raid premises where the computers are kept and, under strict supervision, inspect the equipment for evidence of wrong-doing.

These orders are discretionary and judges may well take the view that they are disproportionate and that the BPI will have to prove its case in other ways. Establishing a case against a teenager using a family computer - probably the typical culprit - will be virtually impossible. People under 18 can be sued but there is no realistic way of enforcing a judgment against them.

Parents are not liable for their children's actions, and neither does merely being the owner of a computer on which someone has committed an illegal activity create liability. It is doubtful that an ordinary civil injunction can be made against a child.

While suggestions that anti-social behaviour orders might be available are a bit far-fetched, it is unlikely that the courts would allow youth to be relied on by someone to deliberately flout the law. Anyone receiving a letter from the BPI or its solicitors demanding information about who uses a computer should not reply without taking their own legal advice. There will be many circumstances where the most effective form of defence is to remain absolutely silent.

It may well be that the BPI is making its present public pronouncements more with a view to deterrence than actual court proceedings. The entertainment industry is forever promising legal action against those who breach its rights.

Even the relatively low tech breachs committed in my teenage days - recording a track off the radio, which was usually spoilt by the DJ talking over it anyway - were subject to such threats.

Those who read last month's Jobs & Money, which exposed of the lengths some artists have to go to to secure royalties from record companies, will find a certain poetic justice in the industry being ripped off by the public.

BPI's chairman Peter Jamieson claim that file sharers stealing the livelihood of "thousands of artists", will in that context seem hypocritical. It is companies such as EMI which are able to pay £80m to Robbie Williams, ironically himself a supporter of file sharing, on whose behalf this battle is being fought. The amount of damage that is caused to the music industry is in any case debatable.

A study by academics - including Felix Oberholzer-Gee of Harvard - which examined sales trends on heavily-downloaded files found the impact of downloading on sales was "statistically indistinguishable from zero". While this research has been attacked by the BPI and its American counterpart, it is probably more reliable than surveys which have simply asked downloaders whether they buy less music as a result.

A British survey last year by Music Programming Limited actually found that file sharing stimulated off-line sales. The fact, for instance, that record companies were illegally retaining over $50m royalties until an investigation by New York's attorney general ordered them to hand it over last year is of little relevance if the battle is to be fought in the courts.

If the real battleground is the media, the industry's PR machine should not prevent as much attention being paid to the dishonesty of the industry as of its customers.


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