i) Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all. The technical issues raised by Mr Davey (and Mr Stone) relate to this point. [See para 7 of the judgment.]TorrentFreak says that the judgment has implications for the Digital Economy Act as right owners will be relying on similar processes to identify infringements before sending out reports to ISPs. However, it would not be correct to say that the architects and implementers of the Digital Economy Act have been oblivious to questions of evidence.
ii) Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement then encounters the Saccharin problem. It is not at all clear to me that the person identified must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so. Perhaps the holder of the account with the ISP has a duty to assist along the lines of a respondent to another Norwich Pharmacal order but that is very different from saying they are infringing. [See paras 27–31 of the judgment.]
iii) The damages claimed deserve scrutiny. If all that is proven is a single download then all that has been lost is one lost sale of one copy of a work. The sort of sum that might represent would surely be a small fraction of the £495 claimed and the majority of that sum must therefore be taken up with legal costs. If so, a serious question of proportionality arises but again this has not been tested. Clearly if the defendant has infringed on a scale as in the Polydor case then would be a very different matter but there is no evidence of such infringement here.
Ofcom’s draft code states: ‘For the notification process to be credible, effective and fair for consumers it is essential that the allegations of copyright infringement are evidentially robust and accurate … We are also proposing that Copyright Owners must act on an Ofcom direction to take specified steps in relation to the maintenance or enhancement of the evidence gathering procedures.’ The Patents County Court says that it has not yet investigated whether Media CAT’s processes were adequate but insisted that it would be perfectly able to do so. Ofcom is also presumably able to carry out such an assessment. However yesterday’s judgment certainly emphasizes the need to justify why a particular process of identifying an infringer may be considered sufficiently reliable and what evidence a right owner will have to produce to convince the appeals body that a subscriber has infringed copyright. Presumably the detection process wouldn’t need to be 100% watertight, but reliable on the balance of probabilities?
Last week, Ofcom was asked to investigate whether the DEA’s s. 17 site-blocking provision is practically feasible and the copyright provisions of the Digital Economy Act are also to be judicially reviewed, so these are just a few more questions to which a plausible response may be required.