The case centres around a video made by Bristol Film Studios (BFS) for one of Mr. Soloman's (aka Mr. Sullivan's) tracks. The video was uploaded to YouTube by BFS upon its completion. Mr. Soloman did not approve of the video and asked the company to remove it; it was taken down about 5 days after its initial posting. YouTube counted about 100 (non-unique) views of the video before it was removed. Mr. Soloman subsequently claimed that BFS owed him damages in the order of hundreds of thousands of pounds for those views. His claim was struck by the High Court, his appeal was dismissed.

In calculating the potential damages, the judge of first instance was generous: he assumed a maximum number of unique viewers (about 50), and that 80% of those might have bought the track had they not seen the video. He nonetheless dismissed damages for which there was no evidence.�� This led to a maximum claim of about £50.

At a first glance at the decision from the Court of Appeal, it might appear that Soloman's claim was struck out merely because of that court's agreement with the court below, that the most generous measure of damages on Mr. Soloman's claim would be in the order of about £50.�� Lewison L.J. points out that the high court is not required to use its resources to entertain claims of such magnitude, and the other Lords concur on this point. If the court's analysis were complete at this point, one might reasonably conclude that any small copyright claim may simply be seen by the courts as trivial or an abuse of process (as was found here). However, there are some important points made by the court in reaching its conclusion:

1. It is made clear early in the decision (though briefly) that Mr. Soloman has no remaining possibility for injunctive relief: the video was pulled upon his request, and BFS retained only one MP3 copy of his track (for litigation purposes). Additionally, BFS was willing to undertake not to make use of the track for any purpose other than litigation without leave of the court.

2. Much of the discussion in this decision focused on the idea of a proportional response. As Lewison L.J. put it "it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process." (Emphasis mine.) This comment has particular resonance in the current landscape of IP litigation: Sullivan was decided a short time after the UK's formation ofAs well, in January, the U.S. copyright office for suggestions on how to handle smaller IP claims in the U.S. In Canada, litigants already have this option.

3. Mr. Soloman agreed with the proposition that the court should strike his claim if the damages were in the order of £50.

One question that arises from the court's calculation is whether their methods of calculating the measure of damages may be used by future claimants as a way of maintaining a relatively large claim (in this case, for instance, if the video had gone viral, the judge might have been looking at 1,000s of presumed unique views). In fact, whether this calculation is used by a future claimant may have to be a deciding factor in whether her claim is tenable. In this case, the court points out that had Mr. Soloman known more realistically the scale of damages, he might have had his case streamed into small claims initially - a proportionate response.

In my reading this case, it seemed that another very important factor affecting the outcome of the case was the fact that BFS had complied with Mr. Soloman's requests in a reasonable amount of time. This was not a case where a copyright holder's rights were flagrantly disregarded by another party. Here, BFS complied with Sullivan's request to take the video down and agreed to limit their future use of the copyrighted material forming the basis of the dispute to litigation purposes only (or where the court was otherwise amenable). I was left with the feeling that any remaining possibility for injunctive relief would have meant that Sullivan's claim might have been deemed appropriate for the high court stream.

Hayden McGuire is a JD candidate at the University of Saskatchewan, Faculty of Law.

The post Copyright Lightweights: When 50 Pounds in Damages Might be Abuse of Process appeared first on IPOsgoode.

The Court noted that the BitTorrent technology involved in this case brings about complex concerns.�� Since torrent files are based on the idea of a “swarm” of users uploading and downloading pieces of one file simultaneously, there are potentially many more users downloading and sharing than in the more straightforward peer-to-peer process or single website hosting files.�� Some of the ways that were suggested to the Court, on behalf of the claimant, for at least curbing the prevalence of the photos were tracking the IP addresses of those sharing the torrent, filtering the claimant’s name from search engines in connection with torrent sites, or having ISPs block access to those torrent sites hosting the file.

The claim was brought against “Persons Unknown”, since none of the users who seeded the files were identified by their IP addresses.�� Claiming against users yet to be identified was required, AMP argued, because the number of seeders, and therefore potential defendants, would be constantly increasing over time.�� The reasoning is that “by identifying the class of persons unknown by reference to their particular characteristic, namely any person in control of any part or parts of the relevant files containing the relevant digital photographic images, would be a sufficient description of the Defendants to enable them to be served with any order which the court might make.”�� The Honourable Mr. Justice Ramsey was persuaded by this argument, and agreed that the case was appropriately brought against “Persons Unknown”.

AMP was seeking injunctive relief under two separate acts dealing with invasion of her privacy (the ) and harassment (the ).�� In regards to the claimant’s privacy, Mr. Justice Ramsey had to consider whether she had a reasonable expectation of privacy when it came to the photos on her phone.�� Mr. Justice Ramsey stated that “in this case the circumstances in which the photographs were taken, the nature and purpose of the intrusion caused by the distribution of the photographs, [and] the absence of consent” all made a strong case for AMP having a reasonable expectation of privacy.�� This expectation of privacy, however, still needed to be balanced with the freedom to receive and impart information without interference which is also provided by the Human Rights Act.�� ��For Mr. Justice Ramsey, it was clear that the claimant’s right deserved to take precedence in this situation.�� Furthermore, since AMP was found to be “likely to establish at trial that publication should not be allowed” she was granted interim relief through an injunction.

Regarding the harassment claim, Mr. Justice Ramsey felt that the situation was such that it met the six factors previously established in to make out a claim of harassment:

(1) conduct which occurs on at least two occasions,
(2) targeted at the claimant,
(3) calculated in an objective sense to cause alarm or distress and
(4) objectively judged to be oppressive and unacceptable,
(5) “oppressive” and “unacceptable” depending on the social or working context in which the conduct occurs
(6) with special consideration of the difference between conduct that would actually be harassment and conduct that is simply unattractive or unreasonable.

Mr. Justice Ramsey therefore concluded that the claimant was to be granted relief both for breach of her right to privacy and harassment.�� This entitled the claimant to an interim injunction to prevent the distribution of her images via any torrent site or through any other use�� of a BitTorrent program.

Perhaps the most newsworthy part of this case is in the terms of the interim injunction that Mr. Justice Ramsey ordered, since those terms apply to the still unidentified “Persons Unknown”.�� The order requires such persons to:

(1) immediately cease seeding any BitTorrent containing any part or parts of the files in question
(2) not uphold or transmit to any other person any part or parts of the files
(3) not create any derivatives of the files
(4) not disclose the name of the claimant or information that may lead to her identification, or the names of the files.

Professor Andrew Murray, who actually provided witness statements in the case, , largely based on the assumption that most of the seeders would be within the jurisdiction of the Court.�� Professor Murray has some reservations, however, about whether the decision means that BitTorrent content can be regulated.�� A sees a possibility of users of social networking sites like Twitter and Facebook being impacted by this decision in the future.

What remains to be seen is whether the order does in fact deter users from downloading the torrent in question.�� Practically speaking, such a deterrent effect would be difficult or impossible to actually measure.�� The goal of the Court in this case may have really been to scare away potential offending users, while not necessarily expecting to reveal IP addresses and track down seeders.

Another issue may be the fact that the Court’s jurisdiction cannot possibly cover all possible seeders, as anyone with an Internet connection and the proper software can download the torrent file in question.�� Professor Murray has stated that the goal is not to “close down all seeders[,] just enough to turn the tap to a trickle.” The underlying assumption is that most of the seeders will be people with connections to AMP, and therefore within the jurisdiction of the Court.�� It would seem that, while this decision may act as a deterrent in this particular instance, its applicability may be limited when a torrent file attains global popularity, (such as in the context of a world-renowned celebrity).

Brent Randall is a JD candidate at the University of Ottawa.

The post Court Decision May Be Closest Thing To BitTorrent Regulation appeared first on IPOsgoode.