The afternoon of Monday 4th October saw an otherwise unremarkable legal hearing become the focus of attention for those concerned about the enforcement of copyright on the Internet. Not only had the Distributed Denial-Of-Service (DDOS) attack on ACS:Law and the consequential data leak of information about alleged file-sharers become front-page news, but for what appears to be the first time Internet Service Providers (ISPs) were actively resisting efforts by rights-holder bodies to compel disclosure of such information.
Part 1 of this blog post will give a quick introduction to the legal background of the hearing. If you’re familiar with Norwich Pharmacal Orders then skip to Part 2, which talks about what happened on Monday afternoon at the Royal Courts of Justice.
This hearing was scheduled to be an application for what is known in English law as a Norwich Pharmacal Order, or NPO. Named after the case in which it was first used, an NPO is a court order used when one person or organisation wants to sue someone, doesn’t know exactly who that someone is, but is aware that someone else does know. NPOs were developed to allow, for instance, a manufacturer who knew that an importer was unwittingly shipping counterfeit goods into the country, to get an order compelling the importer to say who their customer was. Come the digital age, and this is the situation that rights-holders find themselves in when tracking file-sharers. There are online tools that can track the movement of peer-to-peer files over the Internet, but all they do is indicate the IP address of whoever is sharing the file. It’s not hard to look up which ISP owns that IP address, but only that ISP knows which of its customers that address was allocated to at the time in question. So rights-holders, or rather the specialist law firms that have been acting for them (such as ACS:Law and, in this instance, Gallant Macmillan) have taken to applying for an NPO against these ISPs to compel the ISP to hand over this information.
An NPO is obtained by an ‘application’, a sort of miniature court case in front of a judge. For reasons bound up in the complex history of English law, NPOs for copyright cases are granted by a type of specialist judge called a Chancery Master. Chancery Masters sit below full High Court Judges in the hierarchy of the English courts, and their main role is in dealing with procedural and interim matters, so freeing High Court Judges to hear full trials. ‘Chancery’ is a reference to the Chancery Division, the portion of the High Court (and once an independent Court in its own right) that historically dealt with property and land issues. Copyright, as one sort of intellectual property right, has thus ended up within the Chancery Division’s remit, and so an application to court about a copyright issue is likely to be heard by a Chancery Master. In this case, it was the senior one, Chief Master Winegarten.
At the application hearing itself the rights-holders, or their law firm, would appear as ‘Applicant’, naming the ISP as ‘Respondent’. Up until now, few if any ISPs have actively resisted such orders (although TalkTalk has notably stated that it would). In other words, the Respondent (the ISP) probably might not even bother to turn up or would refuse to object if it did, so faced with an unopposed application the Master would grant the NPO. This would be a court order telling the Respondent to hand over certain information (the customer details corresponding to the IP addresses submitted by the Applicant), on pain of Contempt of Court. In other words, if the ISP refused to comply, it could be fined or its directors sent to prison. The NPO might also order certain safeguards, for instance that the data be handed over in encrypted form and that it be carefully protected by the Applicants.
At least, that was how it had worked until very recently. And when Ministry of Sound instructed Gallant Macmillan to seek such an NPO from BT and PlusNet regarding sharing of some of their tracks they presumably thought it would happen again. But in between an initial hearing on 20th September and the scheduled full application on 4th October other events intervened, in particular the DDOS attack on ACS:Law and the subsequent leak of details of alleged infringers (and ACS:Law’s internal emails). As a result BT and PlusNet significantly changed their stance; what exactly happened and how the hearing turned out as a result are discussed in Part 2 of this post.