30 May 2012
While recent case law has focused upon copyright owners seeking to hold ISP providers liable for the infringing acts of its customers, copyright owners can seek relief not from the ISP itself, but from its customers who are infringing their copyright. While cases such as this have been successfully run in the US, such applications have been rare in English and Australian courts. How does the copyright owner find out who the customers are?
In a recent English case, Golden Eye (International) Limited v Telefonica UK Limited  EWHC 723 (Ch), the High Court recently made a Norwich Pharmacal order against the sixth largest ISP in the UK, in favour of a number of owners of copyright in pornographic films.
A Norwich Pharmacal order requires the disclosure of documents or information to a requesting party when it can be shown that the documents in question would be useful to a party seeking relief in cases of infringement of intellectual property rights.
Golden Eye (International) Ltd and 13 other claimants sought a Norwich Pharmacal order against Telefonica UK Ltd trading as O2 to obtain disclosure of the names and addresses of O2 customers who were alleged to have infringed the claimants' copyrights through peer-to-peer filesharing using the BitTorrent protocol.O2 did not contest the claim. The court did however ask Consumer Focus (a statutory body representing consumer interests) to make representations on behalf of the persons who would be identified if the order was granted (the "Intended Defendants"). It was not in dispute that O2 was "mixed up" in the infringements.
In considering whether to make the order, Justice Arnold was required, among other things, to consider the manner in which a Norwich Pharmacal order might be applied to file sharing cases and the appropriate proportionality test to be applied.
He concluded that to the extent that the copyrights had been infringed, it was plainly necessary for the information sought to be disclosed to Golden Eye to enable it to be able to protect its rights by seeking redress for any infringements of its copyright. The mere fact that the copyright works were pornographic films was no reason to refuse the grant of relief. Rather, Golden Eye had a good arguable case that many of the intended defendants had infringed Golden Eye's copyrights and he was satisfied that Golden Eye did intend to seek redress for those infringements. Accordingly, disclosure of the details of the intended defendants was necessary for them to do so.
Justice Arnold looked at the proportionality of the proposed order, which required a balancing of the interests of the claimants against the interests of the intended defendants. In the circumstances, Golden Eye's interests in enforcing their copyrights outweighed the intended defendants’ interest in protecting their privacy and data protection rights, and thus it was proportionate to order disclosure in accordance with a Norwich Pharmacal order.
However, the order was made on the condition that the order and the proposed letter of claim to be distributed to the intended defendants were properly framed so as to safeguard their legitimate interests, in particular the interests of those who might have been erroneously identified as infringers. These rights included their data and protection rights.
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