BPI sues file sharers

The BPI has issued proceedings against six of the file sharers it alleges have infringed copyright by uploading music to P2P networks.  More than 60 file sharers have already settled out of court for up to £6,500 each.

The BPI has stated that it believes that unauthorised file sharing is an intellectual property infringement on the basis that it breaches the owner's exclusive right to copy works and communicate them to the public, where communicating 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", as introduced by the Copyright Directive.

BPI General Counsel Geoff Taylor stated: "we will be seeking an injunction and full damages for the losses they have caused, in addition to the considerable legal costs we are incurring as a result of their illegal activity."

The BPI appears to have a strong case, but it will be interesting to see what defences the file sharers put forward.  A high-profile victory for the BPI would be a further boost to the record industry's policy of challenging P2P use through the courts, following the recent Grokster judgment in the US; some critics of the policy argue that it will drive P2P use further underground with the use of so-called "anonymous P2P".

Comments

[Chris Lightfoot]

"full damages for the losses they have caused"

-- how are these likely to be computed? The usual gag from music-industry types is to assume that each infringing copy corresponds to one lost sale, but of course there's no evidence that this is accurate, and plenty that it isn't. So what's the basis on which the court would compute the damage done?

[Peter]

In short, we don't know because these are the first cases of their kind. Usually, there would be the option of claiming an account of profits, but obviously these are free downloads so that won't apply.

The general rule is that the successful claimant is entitled to be put in the position it would have been if the infringement had not taken place. The court will often look at the likely price of a licence at the going rate - so that might well mean looking at the price of downloads and the number of downloads made. There is also the option of claiming additional damages for deliberate infringement, and the legal costs of bringing the action. However, as you say, the defendants will probably argue that this is not an accurate measure of the income the record companies would have received if the downloading hadn't taken place.

If these cases do not settle earlier (and I expect that they will), it will be interesting to see how the court resolves this.