Deleted customer data halts Ministry of Sound legal action – but CEO vows to continue to pursue illegal uploaders.
Ministry of Sound have had to put on hold their plans to send warning notices to 25,000 illegal uploaders on BT’s broadband network after discovering that the ISP has deleted over 20,000 of the records that Ministry of Sound had asked them to save pending the resolution of a court application.
Ministry of Sound launched a campaign in July targeting the illegal uploading of their music on the UK’s digital network. This work was undertaken by lawyers Gallant MacMillan and technology provider DigiRights Solutions who identified over 150,000 UK addresses from where Ministry of Sound’s copyrighted material was illegally uploaded on the internet.
Since July, Ministry of Sound has been applying to the High Court to require ISPs to provide them with the customer data of the illegal uploaders. This process had been working smoothly and seen over 5,000 warning letters and settlement notices sent to illegal uploaders requiring them either to confirm that they had infringed Ministry of Sound’s copyright and make an out-of-court payment of £350 or risk legal action. Since this campaign was launched a large proportion of those contacted have settled out of court.
Last month BT decided to challenge this process following a security breach by an unrelated firm, ACS Law, and convinced a Master in the courts to require Ministry of Sound to provide additional information to ensure that the privacy of BT customers would not be breached. Ministry of Sound were happy to do this despite the substantial costs that were going to be incurred and in spite of the fact that the ACS Law security breach bore no relation to this application.
However, subsequently in legal correspondence it was revealed that BT has failed to preserve over 20,000 of the 25,000 customer records which Ministry of Sound had originally requested and which they had agreed to do their best to preserve. Whilst Ministry of Sound were happy to incur substantial legal costs to access 25,000 names it is simply not economic to pursue the 5,000 remaining illegal uploaders.
Ministry of Sound CEO Lohan Presencer said: “It is very disappointing that BT decided not to preserve the identities of the illegal uploaders. Given that less than 20% of the names remain and BT costs have soared from a few thousand pounds to several hundred thousand pounds, it makes no economic sense to continue with this application. We are more determined than ever to go after internet users who illegally upload our copyrighted material. We will be making further applications for information from all ISPs. Every time that a track or album is uploaded to the web it is depriving artists of royalties and reducing the money which we can invest in new British talent.”
Ministry of Sound is a flagship for British youth culture; an iconic brand that includes a club, the world’s largest independent record label, and a multimedia entertainment business, all directed from the company’s South London home.
The IP addresses of illegal uploaders are identified using the same technology as is used for identifying other illegal activity online. An application is made through the courts to have ISPs hand over personal information relating to those customers. This process is known as a Norwich Pharmacal Order after a 1974 case where the House of Lords determined that:
“where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers.”
For the application to be granted by a court the victim, in this case the copyright holder, must demonstrate:
… a reasonable basis to allege that a wrong has actually been committed
… the disclosure of documents or information from the third party is needed to enable action against the wrongdoer
… the respondent is not a "mere witness", but is sufficiently mixed up in the wrongdoing so as to have facilitated it, even if innocently, and therefore be in a position to provide the information
… the order is necessary in the interests of justice on the facts of the case