Porn gets in on the Act

28 November 2008

Lawyers instructed to clamp down on file sharing porn.

So imagine you are 15 male and gay. It is a tricky time of life, school, family, friends etc. Some know you are gay, a few close friends mum and dad are clueless. You have decided that this weekend will be DD day. You will sit mum and dad down and tell them you are gay. They will be okay with it. You have a good relationship- they will be shocked and concerned but once it is thought through and discussed and they know you are happy then life will continue as before. No big deal. So now imagine getting home ready to break the news, sweaty palms how will they take it etc when you see mum you know something is wrong. She knows already- but how? Spiteful kid brother? School?

Neither.

A letter from a firm of Solicitors has landed on the door step addressed to your mum (her name is on the phone bill) informing her that she had downloaded a gay porn film Army Fuckers some months before. Your mum is pretty sure it is not her or dad, who downloaded the film, so attention is focused on you. You deny that you have downloaded the film (which is true) and that you are gay (not true). But you had a party last week and remember some guys were connected to your mum's internet connection over the weekend- they had their own laptops. You presumed this must be when the film was downloaded. So who is liable? Not your mum - not for copyright infringement anyway. Not you. So why are you facing such horrible accusations and having to deal with a distressed mum and dad who are fearful that they could find themselves in court and potentially lose their home. The evidence provided by the lawyers is based on an IP address.

It is assumed that as the IP address determines that your connection has been used then you are liable for copyright infringement. Your parents now assume you are gay via a Solicitor's letter. You do finally come out and tell them but you feel angry and betrayed that such sensitive information had to come out through a letter from a London law firm. We have reached a stage in this debacle where porn companies are selling their rights in the porn films to companies who then go and instruct Lawyers to police the network looking for individuals who download porn.

We are in possession of a pdf contract between the porn company Evil Empire and a German company Digiprotect which allows the latter to upload the films to the file sharing networks. We presume the contract is authentic and no denials have been made by either party.

Clause one of the agreement defines its objective "Licensor [EVIL EMPIRE] is a film maker and proprietor of the rights of use and enjoyment and exploitation of pornographic movies. Licensor suffers economic damages as a result of the illegal exploitation of the movies on so called peer-2-peer networks. The object of this agreement is the appointment of Digiprotect by licensor to implement suitable measures to prevent the economic disadvantages licensor is suffering. "

Clause two explains how Digiprotect is to go about its business:- "To achieve the purpose outlined in clause 1 Licensor grants Digiprotect the exclusive right to make the movies listed in Appendix 1 worldwide available to the public via remote computer networks so called peer-2-peer and internet file sharing such as eDonkey, Kazaa, BitTorrent etc for the duration of this agreement". Now either clause two, can be interpreted as Digiprotect being both poacher and gamekeeper - which if true would make their attempts at protecting copyright ludicrous. The teenager if he had downloaded the film may be able to argue that he had downloaded it with the implied permission of the rights holder. After all why was it posted there in the first place?

The other interpretation is that Digiprotect has been granted an exclusive licence to distribute the films over P2P networks not so that it will actually do so but so that it can bring proceedings for copyright infringement in its own name against third parties distributing the films over P2P networks. This set-up allows Digiprotect to enforce while the porn owner gets on with making films. Take your pick which one to choose!

Unsurprisingly the Information Commissioner has been useless. If it is accepted that an IP address is personal information then such information should not be disclosed where the evidence is based purely on an IP address. The last few months have shown that too many innocent people are being caught by the disclosure and the tactics used to catch the filesharers is wholly disproportionate to the evidence in the rights holders possession.

Michael Coyle is a Solicitor Advocate who specialises in information technology law and intellectual property law. He can be contacted on michael.coyle@lawdit.co.uk, his office number +44 (0) 2380 235979 or mobile 07976 724258