Frequently Asked Questions relating to File Sharing

DISCLAIMER: THIS IS NOT INTENDED TO REPLACE THE OBTAINING OF INDEPENDENT LEGAL ADVICE ABOUT THE POTENTIAL LIABILITIES ARISING FROM FILE SHARING

What is file-sharing all about?
In general terms, file-sharing is the activity of swapping digital files over the internet with other users. Users swap files by uploading (to share them with others) and downloading (to receive) them.#

How is file-sharing carried out?
File sharing occurs in a number of different ways, of which peer-to-peer (“P2P”) is the most common. In order to file-share using P2P users install software on their computer or Network Attached Storage (“NAS”) device. When the software is in use and the user is connected to the internet, it is possible to swap files with others who are online, by either uploading (also known legally as ‘making available’) or downloading them (or both).

Is file-sharing illegal?
Downloading is when an internet user obtains a digital file from an uploader. Unless such downloading or uploading is done with the consent of the copyright owner, it constitutes copyright infringement under the Copyright, Designs and Patents Act 1988 (“CDPA”) and is illegal.

Copyright legislation provides that a person must have the permission of the copyright owner to make a work protected by copyright available for download on the internet. Uploading without the permission of the copyright owner is illegal, irrespective of whether the copyright material was originally obtained legally or illegally by the uploader.

When using P2P file-sharing any files that are downloaded are usually stored in a folder on the user’s computer or NAS, known as the shared files folder. When a file or part of a file is stored in the shared files folder, the software normally makes these files or parts of files available for upload. The effect of each user making his or her own digital files available on the internet to other P2P users creates an enormous and potentially illegal library of digital files available for download using P2P services.

Why is file-sharing using P2P illegal?
Each creative industry invests millions of pounds annually in developing and publishing copyright works for the consumption of the general public, and recovers the monies invested by usually retaining the exclusive right to copy, distribute, publish and make available those works on the internet.

Without copyright protection, there would be no financial incentive for publishers and developers to invest in new titles and the UK would not be one of the leaders in fields such as computer games and music. UK law grants various rights to copyright owners, including the right to communicate or make such works available to the public (e.g. over the internet). Accordingly, anyone distributing copyrighted recordings over P2P networks without the copyright owner’s permission is breaking the law by infringing those rights.

Does file-sharing harm businesses?
If companies cannot make money from selling the fruits of their labours in stores or online because they are being shared for free on the internet, these businesses will not survive for long.

Whilst there is some evidence that a small percentage of file-sharers do download using P2P to “try before they buy”, such a download is as illegal as downloads by the larger number of people who download without the copyright holder’s permission, instead of buying the item in the shops.

How can you tell which websites are legal?
At the moment, there are very few websites where it is possible to file-share legally. There are many websites where files can be legally downloaded (i.e. not obtained through sharing using P2P) in return for payment. We are not at liberty to recommend any site.  In the games world, an example would be www.metaboli.co.uk. In music, iTunes is an obvious example.

With file-sharing services, even more care should be taken. Although file-sharing websites may claim that it is legal to download their software, using their software to upload or download files will almost always involve infringing a third party’s copyright. Paying for P2P software (although we do not believe a charge is usually levied) does not legitimise any uploading or downloading of files which would otherwise be illegal.

I didn’t know file-sharing was illegal. Why should I have to pay for my mistake?
Ignorance of the law is no excuse, otherwise no-one could ever successfully be prosecuted if that was a valid defence. Recent research has shown that seven out of ten people are aware that file-sharing of copyright material belonging to another is illegal.

Most internet sites that provide details necessary to enable P2P file-sharing or provide P2P services do not appear to be adequately explaining to users that making files available to other users using P2P file-sharing is likely to be illegal if the work concerned is protected by copyright. The creative industries are working hard to raise awareness of this.

How does the legal process work?
Copyright owners are able to identify that an act of copyright infringement has been committed by a person or computer using the IP (internet protocol) address (or unique number) of the internet connection identified as being connected with the infringement at the relevant time. The rights owner then has to go to court to obtain an order requiring the relevant internet service provider (or ISP) to disclose the name and address of the owner of the internet account related to the identified internet connection.

We will then write to the individual concerned and give that person an opportunity to settle the claim made against him or her before issuing proceedings. This will usually be by way of a nominal payment for damages, legal and ISP costs (usually around £600-£800 in total) involved in obtaining details of the IP address and writing to that person.  That person will then have an opportunity either to settle our client’s claim or to make written submissions to us as to why he or she considers that they are not responsible for the infringement concerned.

If an individual decides not to settle our client’s claim and we consider from all the evidence that that person may still be responsible for the infringement, we will have no alternative but to take our client’s instructions with a view to issuing proceedings. If this happens, a much larger sum for costs may be awarded against the person concerned, in addition to any damages, should this matter proceed to court and our client is successful in its claim.

Is it illegal to obtain personal data relating to the IP address of the infringer?
The IP address of the internet connection of any person file-sharing on a P2P site is visible to our client’s investigators and is therefore in the public domain already.

The name and postal address relating to that IP address is held under a duty of confidentiality by the internet service provider concerned and is not normally disclosed without the copyright owner obtaining a court order against that ISP, known as a Norwich Pharmacal order. An ISP is legally obliged to provide this information, once a court order has been obtained.  Please note it is perfectly legal for a copyright owner to obtain disclosure of personal data, provided it can establish that an infringement of its copyright may have occurred, under an exception set out in section 35 of the Data Protection Act.

How much file-sharing do I have to do to be at risk?
Even sharing part of a work belonging to a copyright owner and without its consent is illegal, and there is no minimum number that will avoid legal action. Obviously, sharing a large number of copyright works or parts of different copyright works will put a user at greater risk of being caught (and therefore of legal action) than one who only does it on a single occasion, but no distinction between a single or serial uploader is usually made in terms of a copyright owner’s decision to take legal action.

Why are your clients suing its customers?
A customer is somebody who buys something from a business. Somebody who takes goods from a company (and worse still, shares them with other people) is not a customer of that business, and never will be. It’s a bit like going into a pub and, when the barman is not looking, leaning over the bar, grabbing a few bottles of beer, and handing them out to your mates.

Where can I find a copy of the ’Code of Practice for Pre-Action Conduct in Intellectual Property Disputes (January 2004)’ referred to in the letter of claim?
You can download a copy from this website.

Can a child be liable for copyright infringement?
Whilst there is no official age below which copyright infringement becomes legal, the courts will generally not recognise a child below a certain age of being capable of understanding the effect of what it is doing.

If the holder of the internet account claims that a young child in their household was responsible for the copyright infringement concerned, it is possible that our client may seek to hold the parent or guardian responsible on the basis that the account holding parent or guardian should have been supervising the activities of the child.  It is therefore very important that a parent or guardian supervises a child’s use of the internet to ensure that it is not carrying out any illegal activity.

Are these Proceedings Criminal?
The proceedings we bring against file sharers of copyrighted works are civil proceedings.  It is possible to bring criminal, rather than civil, proceedings against an individual for copyright infringement, but we only have instructions from copyright owners to bring civil actions.

Why don’t you shut the illegal file-sharing websites?
Action continues to be taken around in the world (including in the United Kingdom) against illegal file-sharing sites and we also receive instructions from clients to do this from time to time. This does not however change the fact that uploading copyright material is contrary to law, and one of the best ways to bring this to the public’s awareness is to pursue actions against individuals to ensure that people know what the law is.

What is the best way to avoid being caught file-sharing?
You should not share files belonging to a third party on P2P networks unless you are sure that you have been authorised to do so by the copyright holder. If you have doubts or are unsure if you are authorised, then check with the copyright holder before you attempt to file-share. Buying the copyright work you desire at a retail store or online from an authorised vendor is the best way to avoid being pursued by rights-owners.

Why don’t the creative industries supply to file-sharing networks?
Many creative industries are very interested in P2P as a distribution technology, provided it can be employed in way that allows authors, artists, developers, publishers, producers and anyone else in the creation of a copyright work to be paid for their work and to stay in business. Now that technology is available that can filter out unlicensed content, copyright holders are looking very closely at ways in which their copyright materials can be file-shared legally.

Channel 4 with “4 On  Demand” and BBC with “BBC iPlayer” are two, amongst others, who use P2P as a distribution technology. However, this is done by using specialist P2P software from the BBC and Channel 4. The material made available on these networks can only be accessed and viewed using that software and a user must agree to and abide by the terms and conditions provided which accompany it.

The subscription I pay to my ISP for broadband services allows 'unlimited' downloads, so why should I pay for individual works? Are these not included in my monthly subscription?

Your subscription with your ISP, and any associated costs, relates only to your internet access, content provided by your ISP and any periodical data allowance you may be entitled to. Having no cap on your download limit does not entitle you to download any work the copyright in which belongs to another.

I've bought the CD/video/computer game, so why can’t I share it?

Purchase of the work, either before the date of an infringement or subsequently does not provide you with a licence or permission to distribute the work on a P2P network or in any other way.

I have received a letter and have contacted my ISP, but they have no record of you obtaining my personal details subject to a court order.  Have they made a mistake?

If you believe you personal details have been supplied in error in relation to an alleged infringement of copyright, you should first contact your ISP.  We can supply their contact details to you, if necessary.

Can I pay over the telephone?

We do not have the facility to accept payment over the telephone. Please fill out the payment form at the back of the letter of claim and return that to us. If you require another payment form, please send us an email using the address given in our letter of claim.

Letter of Claim Enquiries 

This section is specifically designed to answer questions from people receiving a letter of claim from one of our clients.  It is intended to give general advice to questions that are likely to be specific to certain cases.

Disputing the allegation

1.    I don’t understand what the letter of claim is talking about, what should I do?

Please refer to our list of frequently asked questions (FAQs).  If your queries still have not been answered after reading this, please put your submissions to us in writing within the twenty-one day period stated in the our letter.  Ideally, you should seek legal advice as soon as possible. 

2.    I didn’t know that file-sharing was illegal. Why should I pay?

Ignorance of the law is no excuse, otherwise no-one could ever successfully be prosecuted if that was a valid defence. Recent research has shown that seven out of ten people are aware that file-sharing is illegal.

None of the file-sharing services appear adequately to explain that making use of P2P software is likely to be illegal if files, the copyright in which is owned by a third party, are made available to other users. Various industries are working hard to raise awareness of this.

3.    Is this a scam?

We can assure you that this is not a ‘scam’. This firm is regulated by the Solicitors Regulation Authority. Further information can be found on the Law Society’s website at:

http://www.lawsociety.org.uk/choosingandusing/findasolicitor/view=lawfirmdetails.law?orgid=437813&searchType=L

4.     Surely it’s illegal to obtain personal data relating to the IP address of the infringer?

The postal addresses relating to the IP addresses are held under a duty of confidentiality by the internet service providers and are not normally disclosed without the obtaining of a court order for disclosure by the ISPs concerned.

In order to obtain personal data we obtain what is known as a pre-action third party disclosure order pursuant to Part 31 of the Civil Procedure Rules (which is known as a ‘Norwich Pharmacal Order’), which enables parties to gain access to certain information necessary in order to pursue civil claims. The obtaining of such an order and disclosure of your name and address by your ISP is clearly permitted under section 35 of the Data Protection Act 1988.

5.    Is this a civil or a criminal claim?

Whilst it is possible to bring a criminal prosecution for infringement of copyright on a P2P network, we have no instructions from our clients to bring criminal proceedings against individuals at this time.

6.    How can you prove that the file in question is on my computer?

We do not claim that your computer was used to commit the infringing act (although we do not exclude this possibility), nor do we claim that you downloaded our client’s work. Our claim is that your internet connection was used to make our client’s work available via one or more P2P networks.  The file may not, therefore, be on your computer.

7.    Why does my current IP address not match the one given as evidence in the letter of claim?

Your ISP may have assigned a dynamic IP address to your Internet connection, which can change over time for a variety of reasons. This may explain why you may not now have the same IP address as any of those listed on page one of the letter of claim. The fact remains that at the time in question, your ISP has identified you as being the internet subscriber linked to that address.

8.     How do I know someone has not “faked” my IP address and I have been caught in error?

Whilst we understand it is possible for an individual to create a false IP address, we have received advice from our experts which has confirmed that it is not possible using the methods employed by our clients’ investigators for either a user or our client’s monitoring software to enter into a successful transaction on a peer to peer network whilst using a fake IP address.

9.     Can a child be liable for copyright infringement? 

Whilst there is no age below which copyright infringement becomes legal, the courts will generally not recognise a child below a certain age of being capable of understanding the effect of what it is doing, as far as the tort (i.e. civil wrong) of copyright infringement is concerned.

If the holder of the internet account claims that a young child in their household was responsible for the copyright infringement, a court is likely to take an unfavourable view of such an argument, as the account holding parent or guardian should have been supervising the activities of the child.  Our client may therefore hold the parent or guardian responsible, depending on the circumstances.

It is important that a parent or guardian supervises a child’s use of the internet to ensure that it is not carrying out any illegal activity.

Payment

1.    How much is owed?

The amount owed by each recipient of a letter of claim will be different. The amount that you are required to pay is clearly stated on page 3 of the letter of claim. If, after reading the letter thoroughly, you still do not understand how much to pay, please contact us and we will endeavour to explain it to you.

2.    How is the amount claimed in the letter of claim broken down?

The sum is calculated as follows:

a)    a contribution to the damages claimed by our client for lost sales of our client’s copyright work which our client alleges has been made available for others to download via your internet connection.  Depending on the copyright work the subject of our client’s claim, the work’s retail price in the UK would not have exceeded £50 in the case of computer games or film, £15 in the case of an album or £1 in the case of a single musical work available for download at the time of its release.  You should be aware that on P2P networks any work file shared is made available to hundreds, if not thousands of persons, thereby giving rise to potential claim of damages in respect of multiple copies of our client’s work being made available to third parties.

b)    The costs involved in:

i)              obtaining evidence of the infringement;

ii)             writing to your ISP to ask for your details and if it refuses (which it normally does, for reasons of data protection), preparing an application to court for an order that it must provide the details;

iii)            preparing a witness statement and draft order in support of our application;

iv)           sending our application to your ISP and dealing with its queries or those its lawyers;

v)            attending Court to apply for the order;

vi)           drawing up the order and lodging it with the Court;

vii)          sending the order to your ISP or their solicitors;

viii)         ensuring that the ISP complies with the order;

ix)           paying your ISP’s administrative (and where applicable, legal) charges for releasing your name and address pursuant to the above order; and

x)            corresponding with you about our client’s claim.

Our client’s claim is not a precise calculation (although your ISP’s charges have been calculated quite precisely based on the administrative and legal costs levied by your ISP).  Damages and costs are likely to be much greater than that sum, if the matter proceeds to court. It is however the sum that our client is prepared to accept to settle its claim early without the need for legal proceedings.

3.    How can I settle the claim?

The amount is set out on page 3 of the letter of claim. Payment can be made by cheque, bank transfer, credit card or switch/delta. A payment form accompanies the letter of claim.  Please use this when making payment.

4.    I am on income support and/or suffer from disabilities and cannot afford to pay. What should I do?

You need to write to us stating this. We will then send you a statement of means form which you need to complete and return to us, together with evidence of any benefits you are receiving and why. The evidence we require is stated on the form. If you satisfy our client’s criteria, our client may agree for you to make payment by instalments, but you will still have to pay unless there are very special circumstances.

5.    What happens if I do not pay?

If you do not pay within the twenty-one day period stated in the letter of claim or provide satisfactory reason(s) as to why you do not consider you or anyone in your household is liable for the infringement concerned, it will be necessary to take our client’s instructions with a view to issuing proceedings against you.  Should proceedings ultimately be issued against you, the damages and costs will increase substantially after that point, owing to the costs which will be incurred in issuing proceedings, together with the damages which may be awarded by the court. The amount our client is offering to you now in payment of its damages and costs is in order to settle early.

The Monitoring Process

1.            How has my data been captured?

Our expert IT consultants (the “Monitors”), use a sophisticated software program (the “Monitoring Program”) to locate an individual’s IP address in circumstances where the Work (as defined in the Letter of Claim) is being made available by an individual (the “User”) from his or her personal or office computer and which is connected via the internet to a peer to peer network.

The Monitors are not only able to monitor activity solely relating to the Work, but also, to filter the results of their searches to IP addresses in a given territory. In the present case, our client asked the Monitors to monitor UK-based IP addresses offering the Work for download during a period of several weeks.

The Monitoring Program does not provide the name or contact details of any subscriber whose IP address it has identified.  These details are only available from the ISP in question.  We write to your ISP setting out the basis of our claim and invite them to provide the details behind your IP address.  Because of data protection law, the ISP will normally require us to apply to the court for a so-called Norwich Pharmacal (or disclosure) order.  Full evidence of the nature of our claim against you is provided to the Court, which is then invited to order your ISP to disclose your contact details.  This enables us to write to you.

2.            Why has it taken such a long time to notify me of your client’s claim?

There are many reasons for this, as follows;

i)              Once the monitoring process is finished (which can last up to eight weeks, and sometimes longer, in order to gather all the necessary evidence), the data is then sent to us for processing.  Processing can take up to one week.

ii)             The data is then sent to your ISP, which is put on notice of our intention to apply to court for an order and is given an opportunity to say whether or not it will oppose our client’s application. It can take up to four weeks to gather responses from all ISP’s concerned.

iii)            We then apply to the court for a hearing date and over a month can elapse before the court hears the matter. Depending on the number of IP addresses your ISP is asked to deal with, the court may allow it several weeks or even months to comply with its order (the usual period is twenty-eight days),

iv)           Once we have received back all the names and addresses from your ISP (including yours), it can take up to two weeks to organise the data and prepare the letter of claim which is then sent to you.

The above sets out all of the reasons why there can be a substantial delay between the date or dates on which evidence was obtained and the date on which you receive our client’s letter of claim. Our client does at law have up to six years to bring a claim against you, but in the interests of all parties, makes every effort to do so as soon as reasonably practicable.

Glossary

Civil Law: the branch of law dealing with disputes between individuals and/or organisations, in which damages may be awarded to the claimant (or person bringing the claim).  This is in contrast to criminal law, where penalties such as a fine or imprisonment are available to the court and it can affect the accused’s criminal record if found guilty.

Copyright: a form of intellectual property which gives the creator of an original work exclusive rights in relation to that work including its publication, distribution (including ‘making available on a network’) and adaptation.

Copyright infringement: the unauthorized use of material that is covered by copyright law and in a way that violates one of the copyright owner’s exclusive rights.

Downloading: accessing and obtaining (including saving, if required) a file from a remote computer connected to the same network as the downloading computer.

Encryption: A way of coding information in a file or email message so that if it is intercepted by a third party as it travels over a network, it cannot be read. Only the person or persons that have the right type of decoding software and associated keys can unscramble the encryption.

File-sharing: Making files available for distribution to others over the internet, usually via a P2P network.

IP (Internet Protocol) address: an IP address is a numeric code that uniquely identifies a particular computer on the internet. Every computer or network on the internet has its own address. Internet addresses are assigned to your computer by a company called InterNIC.

ISP (Internet Service Provider): An organisation with a permanent (backbone) connection to the internet, and which provides user accounts allowing the account holder access to the internet (usually via a telephone line).

Peer-to-peer (P2P) networks: A network in which each computer is capable of being both a server and a client; typically used to share files over the internet.

Torrent file: a file used on certain types of peer-to-peer networks (usually those using ‘bittorent’ technology) which contains the IP address and any other required information of the person making the file available (‘uploader’) in order to direct the computer searching for a particular work to the uploader’s computer(s).

Uploading: Often confused with downloading, uploading a file means sending a file from one computer to another usually via the internet or over a network.

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