![handle is hein.journals/convrg12011 and id is 1 raw text is: Media CAT scratches the Norwich
Pharmacal Order - James Tumbridge
Wednesday 29 June 2011
Media CAT scratches the Norwich Pharmacal Order
By James Tumbridge
Barrister; Counsel to Gowlings, London
iames.tumbridae(Waowlinas.com
In MediaCAT vAdam and Others, His Honour Judge Birss QC considered the appropriateness of the Norwich
Pharmacal Order and when it should be used, as he noted that there is a potential difficulty with the Norwich
Pharmacal process; in short, the judge was concerned about the lack of safeguards on the use of information
obtained under these orders. In this case, MediaCAT and their lawyers, ACS:Law, conducted a letter-writing
campaign alleging infringement of copyright, when they knew they could not be certain the named user of the
address was the infringer. The infringer, if any, could be someone else in a home or office, or indeed a total
stranger if they had accessed a wireless network, in short, as HHJ Birss QC said in paragraph 28 of the
judgment: 'MediaCAT don't know who [infringed], and know they don't know who [infringed].' Consequently, the
judge was critical of the use of the Orders and has urged better controls.
Background
MediaCAT Ltd vAdam and Others [2011] EWPCC 6 came before the Patents County Court following ACS:Law's
sending out of 'speculative invoicing' letters to people accused of illegally downloading content on behalf of its
client, MediaCAT. The recipients were known to MediaCAT only through the unique internet protocol (IP)
addresses that are assigned to particular internet connections. Having used a monitoring service to link each IP
address to an illegal downloading of copyrighted films, an application was made for Norwich Pharmacal Orders,
to have the Internet Service Providers (ISPs) disclose the actual names and addresses of the people who used
the IP addresses. Chief Master Winegarten granted the Orders and MediaCAT, through ACS:Law, began a
letter-writing campaign to tens of thousands of names identified through the Orders, claiming £495 from each
individual for breaching copyright. In 2009 and 2010 MediaCAT, acting on behalf of the copyright owners for an
adult film, began the letter-writing campaign to the names identified through the Orders. In that process ACS:Law
wrote letters to tens of thousands individuals, naturally causing great distress to the recipients. Indeed as HHJ
Birss QC noted in paragraph 21 of his judgment: '[The Patents County Court's] office has had telephone calls
from people in tears having received correspondence from ACS:Law on behalf of Media CAT.'
The letters asserted that MediaCAT was a copyright protection society (which it is not and was therefore
misleading) with exclusive rights granted by the copyright owner to bring proceedings (again this was misleading
because MediaCAT did not have the rights purported to be held). As HHJ Birss QC noted the letter would be
understood by many people as a statement that they have been caught infringing copyright in a pornographic
film, that MediaCAT has evidence of the infringement and that a court has already looked into the matter (a copy
of the Order of Chief Master Winegarten having been provided with the letter). The letters also stated that; '[O]ur
client's evidence shows you are responsible for committing one or more of these infringements whether directly
yourself or by you authorising (inadvertently or otherwise) third parties to do the same.' Finally, the letter ended
with a statement that: '[T]his letter complies with the Code of Practice for Pre-Action Conduct in Intellectual
Property Disputes (January 2004) a copy of which is available on [ACS:Law's] website.' However, as the judge
noted, there is in fact no formal Pre-action Protocol for Intellectual Property and thus, again the letter was
misleading.
As is apparent from even a short review of the judgment, HHJ Birss QC was not impressed by the conduct of
either ACS:Law or MediaCAT. In short, the claimant and their legal advisor were all too happy to intimidate the
defendants into payments for alleged copyright infringements when they could not prove they were pursuing the
correct people. Whilst the claimant had sought to determine the identities of alleged infringers, their method of
doing so only took them so far. Claimants wanting to sue someone whose identity is uncertain have, since the
mid-1970s, been able to discover that identity using a Norwich Pharmacal Order, and this was the device used.
However, as noted by the judge in this case, the claimant did not know who the infringers were, even after
obtaining the disclosure under the Norwich Pharmacal Orders.
Norwich Pharmacal Orders](ViewImageLocal?handle=hein.journals/convrg12011&div=1&collection=&method=preview&ext=.png&size=3)
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