Polydor & Ors v Brown & Ors
Reference:  EWHC 3191 (Ch); (2006) 26(3) IPD 29021
Court: Chancery Division
Judge: Lawrence Collins J
Date of judgment: 28 Nov 2005
Summary: Copyright - Making available - ss.16(1)(d) & 20 Copyright Designs and Patents Act 1988 - Internet - Music - File-sharing - Peer-to-peer software - Ignorance of distribution - Summary judgment - Real prospect of success
Instructing Solicitors: Claimants in-house; the second Defendant did not appear and was not represented.
The Claimants were a number of record companies, six of whom were members of the British Phonographic Industry. They claimed that the Defendants, a number of individuals, had used peer-to-peer software to download and make available to others sound recordings in which the Claimants owned copyright. The Defendants had been identified after the Claimants had obtained Norwich Pharmacal orders against their Internet Service Providers. The evidence in relation to the second Defendant was that he was running Limewire software on his computer and was making available more than 400 audio files to other users of the Gnutella peer-to-peer network. He admitted using the software, but claimed that he was unaware that by doing so he was distributing music. The Claimants sought summary judgment against the second Defendant.
Whether the defence had any real prospect of success.
Granting summary judgment; by ss.16(1)(d) and 20 of the Copyright, Designs and Patents Act1988 the copyright owner has the exclusive right to communicate the work, including sound recordings to the public, where such acts include 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. Connecting a computer to the Internet, where the computer is running peer-to-peer software, and in which music files containing copies of the claimant’s copyright works are placed in a shared directory, constitutes an infringing act. As a primary act of infringement, it does not matter whether the person knows, or has reason to believe, that what they are doing is an infringement. There was no defence with any realistic prospect of success.
As the judge said, “ignorance is no defence”. Unlike in cases of secondary infringement, the state of mind of a primary infringer is irrelevant. The judge ordered that no action be taken to enforce payment for two months, and that in the absence of agreement as to a payment schedule, the second defendant could apply to the court. The hearing at the end of January 2006 at which costs and payments were dealt with was widely reported (see links below) as a significant victory against filesharing for the BPI.