Wednesday, 8 December 2010

No summary judgment in peer-to-peer filesharing cases

Eight filesharing cases could not be dealt with by summary judgment, the very active Judge Birss ruled on 1 December in the Patents County Court. In Media C.A.T. Ltd. v A and others [2010] EWPCC 17 (01 December 2010) the claimant, saying it represented the owners of copyright in several movies of a type that you won't find on sale in your local DVD shop, asked for summary judgment against eight defendants. they had either failed to acknowledge service or failed to file a defence, so the requests for judgment said, but the judge found that two of the defendants had filed defences. In four other cases there was no evidence of proceedings having been served on the defendants, save that one who instructed solicitors and filed a defence, which rather indicated that service had taken place. In two cases judgment in default was possible, but in all eight of the cases the claimant had asked for an injunction and hadn't done enough to satisfy the judge that the remedy sought had subsequently been limited to damages, so that in itself precluded summary judgment under CPR Part 12.

The judge left no-one in any doubt that he was glad not to have to dispose of the cases summarily. The claims raised controversial issues about the application of copyright law, and he also pointed out defects in the way the law had been pleaded - this is not a simple matter. It was not apparent how the claimant was entitled to bring the actions, as there was no evidence to show that it was either owner of the copyright or exclusive licensee.

Many will be pleased to see the claimant's solicitor, whose handling of industrial volumes of filesharing litigation has itself been highly controversial, fail in these requests, but that's not really the point. There seem to be an inordinate number of requests for summary judgment coming before the courts at present: in Virgin Atlantic Airways Ltd v Delta Airways Inc [2010] EWHC 3094 (Pat) (30 November 2010) the defendants got summary judgment, but it's clear that this is a rare event in the patent world (and, perhaps, by extension the IP world). I seem to have read several judgments recently which go into the rules about summary judgment in great depth. The costs of IP litigation being what they are, even in the new regime in the PCC, shortcuts to a decision (like interlocutory injunctions in the good old days) will be taken wherever possible.

1 comment:

Matthew Taylor said...

I think it's good to see this application fail, but not for ad hominem reasons to do with the defendant's solicitors: I see no reason why IP cases which stand on simple, technical evidence shouldn't be dealt with in bulk, and disposed of by summary judgement, in the same way as straightforward debt cases, but a corollary of this is that those conducting these cases should be held to the same standards as would be expected of specialist debt collection firms. At the very least means complying with the CPR requirements on service!

HH's comments about the BGH jurisprudence to do with wifi security is interesting; I'd certainly assume that the position would be similar in England. The only loose analogy (owner's liability for third party acts) I can think of is the liability of a premises occupier for criminal activities, where a specific law was needed to make an occupier liable in connection with drugs offences (which give rise to some serious and apparently unintended consequences for those operating homeless shelters).


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