By: MarkJ - 23 September, 2010 (7:34 AM)
p2p copyright uk ISP file sharing lawgallant macmillan uk isp internet copyright lawSeveral UK broadband internet providers, including PlusNet , BT , O2 ( Be Broadband ) and Sky Broadband , were in court (London) at 2:30pm on Monday as part of attempts to combat an "illegal" copyright file sharing (P2P / BitTorrent) related Norwich Pharmacal Order (NPO), which had been brought by media lawyers Gallant Macmillan on behalf of the Ministry of Sound ('Ministry of Sound Recordings Ltd v Plusnet Plc'). Surprisingly they had some success.

The presiding judge, Chief Master Winegarten (CMW), noted that he had received a huge amount of letters from people with concerns. He also pointed towards another crucial factor; out of all the threatening letters demanding payment, sent as a result of such NPO's, apparently nobody has ever been sued. The judge also admitted to not possessing the necessary technical knowledge to assess the "evidence" provided by Rights Holders and their lawyers.

TorrentFreak quoted Chief Master Winegarten as saying:

"There wouldn’t be this hue and cry unless you were pursuing people who were innocent. I can’t understand why in these thousands – hundreds of thousands – [of letters sent out] no-one has been sued."

An NPO allows a court jurisdiction to order persons (or ISPs) who have information that may lead to the identification of the defendant to disclose their personal details. In other words, the ISPs were ordered to reveal customer information for those that Gallant Macmillan "suspected" of involvement with unlawful music file sharing.

Law firms typically track alleged abuse by monitoring the Internet Protocol ( IP ) addresses of online users, which are assigned to your computer each time you connect to the internet and made public on P2P networks. This is not an effective way of determining a computer user’s true identity and on several occasions innocent people appear to have been incorrectly targeted.

IP's can easily be faked, hijacked, redirected and generally abused or used in ways that the systems employed by such trackers cannot detect. Furthermore the owner of a particular connection/IP, such as in case of a hotel, business or shared public Wi-Fi network (secure or not), may not be the individual responsible for the actual act itself.

Irrespective of this, once law firms have obtained the data they usually begin a process of sending demands for big settlement payments to those identified. People who refuse to pay are often threatened with legal action, which in reality rarely ever reaches the courts. It's usually both too costly and difficult to prove such cases.

In addition, over the past 12 months, several controversial solicitor firms, including ACS:Law (Andrew Crossley) and Davenport Lyons, have been sent to Disciplinary Tribunals (here and here) by the UK Solicitors Regulatory Authority (SRA) for sending "bullying" letters like those described above.

Subsequently, Chief Master Winegarten (CMW) has decided to refuse the Ministry of Sound’s (MoS) request for more personal details of UK broadband ISP customers, stressing that the public's concerns must be addressed before they could proceed. The hearing has consequently been adjourned until 4th October 2010.

CMW also noted that the forthcoming implementation of the equally controversial Digital Economy Act 2010 (DEA) would, he believed, prevent future such legal requests for personal details from being successful. That's true, but perhaps only because it would now be so much easier to obtain the data outside of a court.

It should be noted that ISPs do not escape some of the blame for issues like this, with many failing to contest evidence that they know to be flawed. In the case above it may surprise some to learn that PlusNet didn't even send a lawyer.

A PlusNet Community Staffer said yesterday:

"Customers have asked why we don’t take the same approach as TalkTalk on NPO requests for disclosure. My understanding is that TalkTalk to date have not challenged applications legally, i.e. they have not been in court to oppose an NPO, rather they have said they would do so if brought to court.

Digital rights holders do need a method to protect their rights online, and at the moment the NPO process is one of the few ways for them to do so. However, as we stated in our blog in 2007 there are issues with the process around wireless security etc, which potentially could lead to false allegations. While we might not wholly agree with the processes involved neither are we pro piracy.

Meanwhile the reported comments by the judge (Chief Master Winegarten) at the hearing on Monday 20 September clearly sound interesting and will be borne in mind as we develop our position."

Many of PlusNet's customers are clearly unhappy with how the ISP has approached this situation and a huge 40+ page forum post on the matter can be found on their community site.

UPDATE 1st October 2010

Gallant Macmillan has said that they still plan to go to the High Court on 4th October 2010 to seek the personal details of hundreds of PlusNet users, despite the recent ACS:Law email leaks. PlusNet promised to take a more rigorous stance against such requests and they will soon be tested on that.
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