Written by Michael Coyle on 22 November 2014« Return to Reading Room
Lawdit has for many years advised hundreds of clients over rights owners concerns that its copyright was being infringed as these individuals sought to download and upload shared various games, movies, songs, books and software.
How do you advise the rights holders?
For those individuals downloading from a torrent web site AND they use Tor or other anonymous browsers the likelihood of preventing someone via a court injunction from downloading a movie is unlikely based against factors such as legal and court costs and the likely damages one would be able to claim balanced against the chances of identyfying the individual responsible.
The bottom line for rights holders is that you cannot succesfully bring a claim against an allege infringment of copyright if you have no evidence. The rights holder wont be able to obtain an IP address as the browsing was anonymous. The download could well have been activated in London but the IP address via say Tor will indicate its being downloaded from Germany. So there is little point. To be frank the only way to establish an individual's liability is for the rights holder to a) inspect the harddrive or b) the individual accepts the infringment.
For those who don’t use anonymous browsers. The rights holder needs to do the following:-
1. Contact the ISP. Explain who they are, what they want and what evidence they have. Based on the evidence ie IP address – they believe Mr D. Ownloader is downloading Harry Potter and you want his address.
2. The ISP will say ‘ no’ & ‘get a court order’. You in turn say ‘ok’ and issue an application at the High Court for a Norwich Pharmacal Order seeking an Order for disclosure of the IP address and the person’s address on the ISP bill, ie the ISP’s customer’s name and address. If you use a Tor Browser then the IP address is masked and its harder to identify the person.
3. Once you have the name and address you can then write a Letter of Claim seeking damages.
4. If this does not work then you have to issue a claim and seek damages. However further potential problems are as follows:-
• Will the damages be more than £10,000? No? Then the claim will have to be issued in via IPEC. The rights holder if it instructs solicitors will need to pay its own costs which will be in the region of £7-15,000.
• Damages are notoriously difficult to prove especially in file sharing cases where packets of files are downloaded and uploaded ( seeded) and it is a hot potato when you argue as to the level of damages incurred. The rights holder will claim a Harry Potter film uploaded by the Defendant was downloaded some 58 times. The retail price of the film was £19.99 so they have lost 58 x £19.99 but its not as easy at that as a) the £19.99 does not reflect profit or actual damage and perhaps only a part of the film was downloaded.
So even if you scour the Internet looking for people who share their movies via a Torrent website right holders need to ask – are we going to achieve what we want ie a final injunction to prevent the download continuing? For those who use anonymity then my advice for rights holders is to forget it. Move on and concentrate on the more naïve filesharers, like poor Mr Brown.
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