Merely allowing others to infringe is not an infringement

Linsey Dawn McKenzie,
hiding behind a tree

Media C.A.T. Ltd v A to H [2010] EWPCC 17 is a series of eight actions brought against unidentified file-sharers who are alleged to have indulged in activity which infringes the copyright in ""5 Linsey Dawn McKenzie Films on Tape", said to be a pornographic film featuring an actress described by Wikipedia as being "known for her naturally large breasts".  In each instance Media CAT was applying for judgment in default under the Civil Procedure Rules, CPR r.12.4(1). In the particulars of each claim in each action, Media CAT asserted that it represented the owners or exclusive licensees of copyright works of a pornographic nature and maintained that the relevant defendant had been engaged in peer-to-peer file sharing which involved copyright infringement. Damages and an injunction were sought.

Sitting in the Patents County Court, Judge Birss QC refused all eight applications. Concluding that it would be inappropriate to give judgment in default, the judge observed that in three cases the defendant had filed a defence and in three others there was nothing to show that the proceedings had been served. While the defendants in the other two actions appeared to be in default the claims did not fall within r.12.4(1) since Media CAT was asking for an injunction as well as damages and the application should have been made under Part 23 of the Rules.

Obiter, Judge Birss QC considered the nature of the alleged infringing act and added:

" ... 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. ...

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.

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".

How times change. A hundred years ago, no plaintiff in copyright infringement proceedings would have dared confess to attempting to enforce rights in a pornographic work.  Even if the subject was not raised by the parties, the court might sua sponte deem a work obscene and decline to enforce copyright in it. See for example Glynn v Weston Feature Films [1916] 1 Ch 261.