March 28, 2011 | Jagdeep Bahra

DEA Judicial Review - Day 4

The final day of the DEA judicial review was split between the Defendants concluding their submissions and the Claimants’ reply.

Counsel for the defendants stressed the importance of the fundamental right to property and that copyright is necessarily included within this. The protection of copyright is a legitimate aim to be pursued and this must be held in high regard when considering whether any restrictions are proportionate.

The Judge recognised the clear difference between identifying subscribers and identifying infringers, but stated that he could see how the DEA measures might be more proportionate than a “scatter-gun approach” which did not distinguish between repeat and first-time infringers.

The defendants raised the point that ISPs had previously recommended a notification regime as the most effective way to reduce online infringement.

Counsel then went on to assert that there was no evidence that the Act would cause any chilling effect. It was even suggested that the measures may have a “counter-chilling effect” as receiving a first-time infringement letter would be far less intimidating for consumers than being faced with a letter notifying them of imminent court action.

With regard to the cost-benefit analysis it was contended that even if the identification of potential benefits was wrong, an important policy decision had been made which should not necessarily be undermined as a result.

The Judge stated that the Government would be “subjecting itself to ridicule” if it were to take into account a loss of social welfare suffered by copyright infringers. He also acknowledged that the issue of whether current Copyright law strikes the right balance would be “an entirely separate debate”.

In the claimants’ reply submissions Mr White QC contended that - as pointed out by the Defendants - it is the “legal effect” of the Act that is paramount, however there was no requirement for such effect to be “current” or “immediate” and this was a crucial distinction to be drawn.

It was also pointed out that the action of the DEA meant that Ofcom was now imposing obligations on ISPs. The Defendants acknowledge that the Act has had an effect on Ofcom and from this Mr White concluded that the Act was therefore already having an effect on ISPs. The Defendants interjected, claiming that Ofcom’s draft information requests were not mandatory and therefore this could not be considered a real effect on ISPs.

It was stressed once again that these issues must be dealt with now, rather than in several years’ time when any damage will have already been done and subscriber appeals will have to be brought.

Judgment will be handed down as soon as is reasonably practicable, but given the complexity of the arguments presented it is likely that this will be some time.

Jag Bahra / Eugenio Quintieri

Comments (4)

  1. John:
    Mar 31, 2011 at 01:44 PM

    In the draft code, OFCOM set out evidence which would be required to support allegations and then say

    "This list is based on the information currently produced by agents working on behalf of Copyright Owners. We believe that this matches the standard of evidence required by the courts in relation to civil proceedings by Copyright Owners for copyright infringement."

    Yet in the last of the MediaCAT judgment trilogy, HHJ Birss said (of the point about IP address identification)

    "Polydor v Brown shows that P2P software can be used in such a way as to infringe copyright but it does not show that the material relied on to support the Particulars of Claim in these proceedings establishes any such thing. Mr Davey's submissions may be all wrong but the fact remains that the point has not been tested. It would require significant technical evidence to do so. The Chancery Division of the High Court and this Patents County Court are well able to handle evidence of that kind as and when required but as yet it has not happened."

    Either the Judge is wrong, or OFCOM believe something they have been told that is wrong. Has this issue been pursued with OFCOM? What is the basis of their "belief"?

  2. Simon Hopkins:
    Apr 01, 2011 at 10:20 AM

    Judge Birss is clearly right in this case.

    What a lot of people are failing to see is we are putting the cart before the horse.

    That is, we are spending a lot of time and expense on creating legislation which depends heavily (currently) on a flawed evidencial system, we need to resolve copyright abuse detection to move forwards, that will include detecting if use is legitimate or not, we have not got there yet.

    It's currently legal (and a right) to move purchased copyright material between one playing device and another which can involve some form of network, eg: iPod to PC, as far as we are aware there is nothing wrong in doing this over any network (eg: internet) providing it is legitimate.

  3. Francis Davey:
    Apr 01, 2011 at 12:28 PM

    HHJ Birss made clear that he was not going to decide whether the evidence used by Media C.A.T was adequate or not. The evidence before the court (though suggestive) was itself not sufficient to make that determination. The way in which the case turned out meant that the court never needed to look at the quality of the evidence.

    So, strictly speaking, there's no conflict between what OFCOM are saying and what the court has said.

    To our knowledge the quality of evidence has never been tested by a court, so OFCOM may well have a belief as to what it is courts will require, but it will be a belief based on no actual experience.

    So what OFCOM say might be misleading, but it need not be untrue.

  4. Simon Hopkins:
    Apr 04, 2011 at 10:24 AM

    It seems technology has just raced past some of what is being discussed.

    Amazon has just launched an online media locker service which allow users to upload and play copyright media anywhere from the locker on any device.

    This will keep the copyright material scanners very busy and make it necessary to prove that the copyright material did not originate from a locker service (Amazon or otherwise).

    Here part of section 2.1 of the Amazon terms:

    "...You may copy, store, transfer and burn the Digital Content only for your personal, non-commercial, entertainment use..."