File-sharing: ‘Allowing Infringement’ and Default Judgment

Media CAT Ltd v A to H [2010] EWPCC 17 involved a series of requests for judgment made by the claimant in eight parallel actions. The actions are for breach of copyright in respect of pornographic films. Damages and an injunction are sought. The Particulars of Claim in each case include a claim to the effect that ‘The defendant, someone authorised by him to use his internet connection, or someone who gained access to the defendant’s internet connection due to the router to that connections having no or no adequate security was at all material times a user of the peer-to-peer (“P2P”) file sharing software known as BitTorrent … which allows the user to share digital media content files on a network with other users (“P2P network”).’

As His Honour Judge Birss QC observes in a judgment given on 1 December (at [19]):

It will be apparent that the claim has a number of unusual features, leaving aside the nature of the films themselves:

i) The claimant’s right to be a claimant at all is somewhat unclear on the face of the pleading. A copyright case can be brought by the owner of copyright or an exclusive licensee (see s101 and 102 of the 1988 Act) but the Particulars of Claim does not allege the claimant is either of those. The allegation is that the claimant “represents” such persons. There is a plea that the claimant has an agreement with the Rights Owner to identify, pursue and prosecute instances of copyright infringement but no plea that the claimant owns the copyright or has an exclusive licence.

ii) The Particulars of Claim include allegations about unsecured internet connections. I am aware of no published decision in this country which deals with this issue in the context of copyright infringement. The German Bundesgerichtshof (BGH) dealt with a similar case in its judgment of 12^th May 2010 – I ZR 121/08 – Sommer unseres Lebens (Summer of our lives). According to the court’s press release the German Supreme Court decided that the owner of the unsecured wireless internet router accused of being involved in a sharing network on the internet could be subject to an injunction to secure their router but was not liable to pay damages. I mention this decision not to decide the point but simply as an illustration of the complex and significant legal issues arising.

iii) The plea that “allowing” others to infringe is itself an act restricted by s16 (1)(a) and 17 of the 1988 Act is simply wrong. The term used by those sections of the Act is “authorising” and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties.

iv) The injunction claimed in the prayer is unusual too. There is no claim for an injunction to restrain copyright infringement, as one would ordinarily expect to see in a copyright claim. The injunction claimed relates to “safeguarding” the defendant’s internet connection. This relates to the previous points.

In six of the eight cases brought, the judge found that the defendant was not in default, either because there was no adequate evidence of service or, in three astonishing instances, because a defence had been filed. In the remaining cases he refused default judgment as it was not appropriate given the nature of the claim. His Honour Judge Birss QC concluded:

45. I should end by recording that I am not sorry to have reached the conclusion I have in refusing all the requests for default judgment. The nature of the allegations made in the Particulars of Claim are such that it seems to me that it would be unfortunate if it were possible to obtain a default judgment without notice using the Request for Judgment procedure in rule 12.4(1) even if the claimant had abandoned all remedies save for the claim for an enquiry as to damages. The Request for Judgment procedure is an essentially administrative procedure and plays an important role in court procedure in the vast majority of cases in which it is used. However these are specialist intellectual property claims raising difficult and potentially controversial legal issues.

46. Rule 12.11 provides that where the claimant makes an application for a default judgment, judgment shall be such judgment as it appears to the court that the claimant is entitled to on his statement of case. This rule is expressed in such a way that it applies to applications (under part 23) and therefore not to requests such as are before me. This provision appears to me to be another important difference between the request procedure and the procedure by application. In the present case it is not clear what judgment the claimant might be entitled to on the Particulars of Claim. The claimant’s right to bring these claims at all may be entirely solid but that does not emerge clearly from the statement of case. A key part of the plea of infringement rests on an assertion that “allowing” others to infringe is itself an infringing act, when it is not. There is no plea that the works qualify for copyright protection at all. If the claim were to be restricted to damages in order to avoid the part 23 procedure, it is all the more striking that the German BGH allowed an injunction but refused damages in a similar case.

47. In all these circumstances, a default judgment arrived at without notice by means of an essentially administrative procedure, even one restricted to a financial claim, seems to me to be capable of working real injustice.

48. Peer to peer file sharing which involves copyright infringement is an important and serious matter and claimants with a proper claim are entitled to use the full machinery of the courts to enforce their rights. Default judgment is an important part of the court’s armoury in order to ensure that defendants engage with the legal process properly but it would not be a significant burden on claimants in cases like these to be required to use the part 23 procedure in all such cases.