Beware the contractual agreement: Copyright owners and Law Firms
By: Emma Peart
It has come to light through accidental disclosure of files that a UK law firm, ACS: Law has been sending letters on behalf of its client MediaCAT to suspected illegal file sharers. This in itself has raised a number of questions as to any such action by a firm. The letters themselves offered the suspected illegal file-sharers the choice of either paying a £500 fine or face court action. The matter has now reached the courts.
Ralli, instructed by those having received these letters by ACS: Law, have firstly stated that ACS: Law may face possible for harassment. Therefore firms must think carefully as to how they pursue any such relevant action on behalf of their clients in light of any harassment claim. Furthermore, the main Solicitor, Mr. Crossley, stepped down, citing that he has received death threats due to the action being made public knowledge. This begs the question on whether it is worth the risk of harassment on all levels. The firm itself also requested that it wanted to stand down.
The agreement between ACS:Law and MediaCAT has also been subject to scrutiny. However Judge Birss has raised an interesting point about the legality of such action. It has been questioned how such actions could be halted without the consent of the actual copyright owners being given. Judge Birss questioned whether it was fair to leave the threat of action being taken by the copyright owners hanging over the Defendants.
The letters of claim provoked an argument because hundreds of the accused claimed that they had been wrongly identified. The claims had been made on tracing the illegal downloading to IP addresses and issuing a claim against those seen to be linked to the IP address.
However can it be seen that an IP address is secure enough that any illegal downloading must be within the knowledge of the owner and therefore they are liable? Judge Birss pointed out that with Wireless routers having different levels of security, how could it be decided which level of security should be appropriate. Judge Birss said he was not aware of a published decision in the UK which dealt with the issue of unsecured internet connections in the context of copyright infringement.
The validity of such an agreement offering such a service may also raise another issue. The agreement stated that ACS:Law would take 65% of any revenue retrieved. Could this potentially be seen as contractual term that is seen as unfair/exploitive?
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The issue has been adjourned to resolve the issue of the claimants confirming whether they want to continue actions by making any necessary application for a claim by 22nd February 2011. If no additional applications have been by the claimants, the case will resume on 16 March 2011, when the first stage of applications for wasted costs on behalf of the defendants will be considered.
