How to avoid falling victim to online pirates

Illegal downloading can have serious repercussions for organisations and individuals

Online copyright infringement has become an increasingly important and contentious issue, but one all too often obscured by misunderstanding, lack of awareness and confusion, particularly as to who is liable.

Much has been made of the impact of piracy regulations on individuals sitting in their bedrooms downloading films and music, but less insight has been given on the liability of those who make internet access available to others who illegally download and file share.

This could be private individuals allowing family members or guests access, businesses offering customers an internet connection or those whose wireless has been hijacked by neighbours or passers by.

Infringement
If done without the licence of the owner, downloading, uploading and sharing copyright software, music and films will infringe copyright. This could not only result in civil infringement proceedings, it can be a criminal offence.

While most non-commercial copyright infringement is not a criminal offence, non-commercial file-sharing to such an extent as to prejudicially affect the copyright owner is, assuming the offender knows or has reason to believe that doing so is an infringement.

Where the offence was committed by a company with the consent or tacit understanding of a director, manager or secretary, that person will also be guilty of the offence.

Caught in the net?
It is not just the actual infringers who find themselves in the sights of copyright owners and their lawyers. Although the personal details of internet subscribers are protected by the Data Protection Act 1998, and ISPs cannot disclose these on demand by copyright owners, they can be required to do so by court order.

It has therefore become increasingly common practice for copyright owners to ascertain the IP addresses of copyright infringers, and then apply for a court order requiring the relevant ISP to disclose personal details of the subscribers using those IP addresses.

The subscribers identified will receive a lawyer's letter demanding undertakings and payment of a specified amount (typically between £300 and £1,200) to avoid being sued for an injunction and damages.

The effect of this is that any subscriber whose internet connection was accessed by someone, with or without permission, who then engaged in infringing activities online, could find their IP address made available to copyright owners and then be on the receiving end of an infringement claim.

Even if the subscriber was not responsible for the download in question, it could be difficult to prove that they did not infringe if the material was downloaded on to their computer.

These tactics of copyright owners have proved controversial as subscribers may take the view that it is cheaper simply to pay the demanded amount, rather than cough up legal fees to fight the matter.

Digital Economy Act 2010
The Digital Economy Act 2010 proposes technical measures which would oblige ISPs to restrict the internet speed or capacity of infringing subscribers, thus limiting their access to particular material, or suspend their internet service altogether.

This would also affect subscribers who have simply allowed other people to use their internet connection, with or without their permission, who have then committed online infringement.

An 'internet service provider' is defined by the Act as a person who provides an internet access service. There is concern that the wide scope of this definition could mean that all businesses offering an internet connection to their customers, including internet cafes, libraries and coffee shops, may also be subject to the obligations and penalties imposed by the Act on ISPs.

How to avoid being caught out
Private individuals, and businesses that do not wish to provide free Wi-Fi access, should ensure that their wireless internet connection is sufficiently secure to prevent unauthorised access.

In addition, private individuals should ensure that their computer is password protected and be sensible about who they allow to access their computer. If you don't trust someone, don't give them access; otherwise, keep an eye on what they are doing.

Firms should ensure that appropriate internal IT policies and security measures are in place to discourage employees from engaging in illegal downloading and file sharing, and to prevent unauthorised persons from accessing their systems.

Businesses wishing to make internet access available to the public, such as hotels or libraries, can restrict capacity, prevent or limit access to particular material, or prevent users from downloading any material without this first having been approved.

Richard Plaistowe and Toby Smith are senior solicitor and trainee solic itor at Mills & Reeve LLP.