It’s bad to share

The British Phonographic Industry is coming down hard on filesharers. Geoff Taylor and Simon Baggs report on the culling of the music thieves

“Piracy is theft, pure and simple.” These were the words of Estelle Morris, Minister for the Arts, commenting on the 7 October announcement by the British Phonographic Industry (BPI), representing UK record companies, that it was commencing legal action against illegal filesharers in the UK.

Peer-to-peer (P2P) internet filesharing has become a serious problem for the recording industry worldwide. Although the Recording Industry Association of America (RIAA) succeeded in closing down the original illegal Napster service in 2001, newer services have emerged, a number of which (such as Morpheus and KaZaA) are the subject of ongoing legal action. The impact on sales has been marked, with worldwide recorded music sales falling from $38bn (£20.45bn) in 1998 to $32bn (£17.22bn) in 2003. In the UK, the singles market has declined by nearly 50 per cent over the same period.

Following similar action in the US, the BPI has now commenced legal action against 26 people in the UK that have uploaded hundreds of thousands of recordings on filesharing networks such as KaZaA, Grokster, BearShare and WinMX, without the consent of the copyright owners. A lengthy public education campaign by the BPI, including sending hundreds of thousands of instant messages to UK uploaders warning of possible legal action, established high levels of awareness of the illegality of unauthorised sharing; but, as in the US, education alone did not prove sufficient. Similarly, the launch of a variety of high-profile licensed online music services, such as the Apple iTunes Music Store and Napster 2.0, with a catalogue of more than a million different recordings available, failed to deter some people from infringing copyright.

P2P networks enable individual computers to communicate with each other and share files via the internet. This direct communication between one user of the network and another enables the millions of users of P2P networks to search for and download files, including files containing sound recordings, from other users anywhere in the world. Users need only download and install the software application. Any user can make sound recordings available to other users on the network by placing the files containing those sound recordings in the ‘shared files’ directory on their computer.

The scale of the copyright infringement inherent in making sound recordings available is massive. Many may well use P2P networks occasionally, but some have taken the practice to another level. The BPI has identified one individual in the UK making 8,966 files available for download, and 7,302 of those were music files. At the time this evidence was obtained, the P2P network that this individual was using identified 2.6 million users online, sharing 1.2 billion files.

To identify who this individual is, and others like them, the BPI’s experts have used the P2P networks to search for and download recordings that were being made available. The BPI has retained downloaded recordings and will be using them as evidence of infringement by the uploaders concerned. The BPI has also retained screenshots for every file that each uploader had in their shared files directory at the time when the sound recordings were downloaded. If an uploader has chosen to ‘share files’ with others, the entire contents of their shared files directory are there for all to see and access.

When recordings are downloaded using a P2P network, they are broken into small parcels of information which are then transmitted over the internet. Each parcel identifies the internet protocol (IP) address for the computer that has transmitted the recording.

This IP address is unique to the person making the recordings available at the particular time and date when the IP address is identified. Internet service providers (ISPs) maintain records of IP address allocation. These show which ISP account-holder was allocated the particular IP address at that time.

To obtain disclosure of the identities from the ISPs, the BPI has recently gone to court to obtain an order that the ISPs give the disclosure that it needs to be able to take action.

On 14 October 2004, the BPI applied in the Chancery Division of the High Court for a Norwich Pharmacal order against a number of ISPs. Wiggin & Co, instructing Richard Spearman QC of 4-5 Gray’s Inn Square and Giles Fernando of 11 South Square, made the application, having served each ISP with the application and boxloads of evidence the previous week.

Mr Justice Blackburne accepted the BPI’s arguments that it had satisfied the three requirements for a Norwich Pharmacal order:

l First, the BPI had established that there is an extremely strong claim for copyright infringement by uploaders, in particular pursuant to the new “communication to the public right” now provided under UK law. This right stems from Article 3 of the EU Directive on Copyright and Related Rights in the Information Society, which was implemented last October. It grants record companies (and other rights owners) exclusive rights over the making available of their copyrights to members of the public by electronic transmission. The BPI’s case is that, by placing copies of sound recordings in their shared files directories and connecting to the internet via filesharing networks without any licence or consent, uploading users of P2P networks are infringing this right. The BPI also noted that there were additional claims against uploaders in respect of the copying of recordings onto their hard drives and the authorisation of copying undertaken during the process of downloading. In granting the order for disclosure, the judge noted that there was indeed a powerful case for copyright infringement.

l Next, the BPI demonstrated that the ISPs were innocently mixed up in the acts of infringement committed by the uploaders, given that the ISPs provide those infringers with internet access.

l Finally, the BPI showed that only the ISPs could identify the names and addresses of the individual uploaders. The P2P services do not require users to give their name and address. Instead, users simply identify themselves by a username that is not unique.

Although not a requirement for Norwich Pharmacal purposes, the BPI also dealt with any privacy considerations that might arise in obtaining disclosure from ISPs. Here, uploaders using P2P networks are anonymous (although they are perfectly happy to share the entire contents of their ‘shared files’ directory with any one of the millions of users of such P2P networks). The BPI noted that some of the directories revealed that the uploaders were sharing pornography as well as music. The BPI relied on the Naomi Campbell case to demonstrate that the correct approach is that the Article 8 rights (to respect for private and family life) must be balanced against other rights, especially other rights contained in the European Convention on Human Rights. In this context, the BPI noted that this balancing exercise had to take account of the need to protect the rights of others and that those rights include copyrights. In making the order for disclosure, Judge Blackburne made it clear that he took full account of privacy considerations.

The BPI has now written to the individuals identified and invited them to stop infringing and to pay compensation for their infringements to date. Initial responses indicate that the large majority accept liability for their infringements and wish to settle the claims against them. Ultimately, it may be necessary to bring proceedings against those that are not prepared to pay an appropriate contribution towards the damage that they have caused to record companies and artists. However, these cases will not be the end of the BPI’s campaign. The organisation intends to continue with further cases against filesharers in the UK until the message gets through: filesharing is illegal, and if you are determined to ignore the legal alternatives, the BPI can and will find you.

Geoff Taylor (left) is general counsel at the BPI and Simon Baggs is a media litigation partner at Wiggin & Co