This is the first music industry legal action in the UK to target individuals for file-sharing. But the industry does not yet know who the individuals are – only their ISPs. The relevant ISPs are today being notified that applications are being made to the High Court for Orders of Disclosure. If obtained, these will require the ISPs to reveal their users' identities.
The cases, a combination of criminal and civil suits, target major "uploaders" – those people charged with putting hundreds of copyrighted songs on to internet file-sharing networks and offering them to thousands or millions of people worldwide without permission from the copyright owners.
The defendants, from Italy, Denmark and Germany and, for the first time, from the UK, France and Austria, are expected to face compensation payments averaging several thousand euros.
Announcing the suits this morning, the International Federation of the Phonographic Industry (IFPI) warned that the rolling campaign will be further escalated and extended into new countries in the coming months. It called on music fans to buy their music on-line legitimately, rather than risk the legal consequences of illegal file-sharing.
Today's action is the largest single wave of lawsuits to be announced outside the US since the industry in Europe began suing for illegal file-sharing in March 2004, according to the IFPI. It brings the total number of cases so far launched in Europe to more than 650 across six countries.
It is also the first time that the UK's music association, the British Phonographic Industry, has sued file-swappers in the UK, where file-sharing is outlawed under the recently amended Copyright, Designs and Patents Act of 1988. The BPI is relying on two key provisions:
Section 16, which reserves to the owner exclusive rights to copy and to communicate their works to the public; and
Section 20, which says communication to the public includes "the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them."
In March this year the BPI began an instant messaging campaign over the internet, warning uploaders that they faced court action if they did not disable file-sharing software on their computers. However, according to the industry body, the campaign has had little effect on the 15% minority of file-swappers who upload 75% of the illegal digital music files.
Today the BPI announced that it had been forced to take legal action against 28 UK file-swappers, including users of the Kazaa, Imesh, Grokster, Bearshare and WinMX networks, seeking damages and injunctions to stop these file-sharers illegally uploading recordings on to file-sharing networks. More cases are expected to follow.
BPI spokesman Matt Phillips told OUT-LAW that one of the individuals was sharing up to 9,000 files. "We know that copyright infringement on a grand scale has been committed from 28 IP addresses," he said. "The ISPs have to date been very co-operative." However, the ISPs have not revealed their user details yet.
Geoff Taylor, the BPI's General Counsel, explained to OUT-LAW that a small number of ISPs are involved. He said that the BPI's team had downloaded a sample of infringing tracks from file-sharing networks and, using publicly available software, traced the IP (Internet Protocol) addresses of the computers that were sending the files.
These addresses will be presented to the ISPs which have the choice of whether or not to contest the court applications. "There is a good chance that they won't contest the applications," said Taylor. "ISPs get such applications all the time – whether it's for a copyright infringement action or a defamation case."
He added that the ISPs will know that the music industry's actions are legally sound, but said that they have a policy against disclosing user details unless a court order is obtained. The lawsuits themselves will be in the name of 15 member record companies, not the BPI.
"We have been warning for months that unauthorised file-sharing is illegal," said BPI chairman Peter Jamieson. "These are not people casually downloading the odd track. They are uploading music on a massive scale, effectively stealing the livelihoods of thousands of artists and the people who invest in them."
"We have resisted legal action as long as we could," he added. "We have done everything we can to raise awareness of this problem. We have encouraged legal services and launched an Official Download Chart."
According to the BPI, litigation elsewhere in the world – mostly the US, where the Recording Industry Association of America has sued over 3,000 file-swappers since September 2003 – has successfully deterred major uploaders.
Research by the IFPI shows that the number of files illegally available on file-sharing networks has declined by 30% – from one billion in June 2003 to 700 million in June 2004, said the BPI. Meanwhile, the number of FastTrack users (the most popular P2P network – accessed using Kazaa) fell by 40% from June 2003 to September 2004.
"We would be derelict in our duty to protect and promote British music were we not to take action to demonstrate that this activity is illegal and harmful to every aspect of the creative British music industry," said Jamieson. "We believe we have no alternative other than to enforce our rights through the courts."
Arts Minister Estelle Morris commented: "The Government supports the principle of proportionate legal action against the worst offending uploaders. I hope it will stop in their tracks the habitual offender who uploads to make a quick buck out of other people's talent."