A copyright troll that failed in its quest to target Virgin Media customers earlier this year is having another bite at the cherry against a different ISP in Belgium. This time, however, a local court has referred several questions to the European Court of Justice, specifically related to the BitTorrent mechanism and EU privacy law.
During the summer we reported on the renewed efforts of Golden Eye (International) and Mircom, companies with a track record of targeting alleged BitTorrent pirates with demands for cash settlements to make supposed lawsuits disappear.
After filing no complaints in the UK for years, the pair teamed up in an effort to squeeze the personal details of thousands of Internet users from the hands of ISP Virgin Media. Somewhat unusually given previous compliance in alleged anti-piracy matters, Virgin put up a pretty big fight.
In the end, the cases brought by Golden Eye and Mircom were proven to be so lacking in evidence that a judge in the High Court threw out the companies’ claims. Nevertheless, there are more countries than just the UK to target.
Cyprus-based Mircom (full name Mircom International Content Management & Consulting) has another case on the boil, this time against Telenet, the largest provider of cable broadband in Belgium. In common with previous cases, this one is also about the unlicensed sharing of pornographic movies using BitTorrent.
Mircom says it has thousands of IP addresses on file which can identify Telenet subscribers from which it wants to extract cash payments. However, it needs the ISP’s cooperation to match the IP addresses to those customers and the case isn’t progressing in a straightforward manner.
As a result, the Antwerp Business Court (Ondernemingsrechtbank Antwerpen) has referred several questions in the matter to the European Court of Justice. As usual, there are several controversial as well as technical points under consideration.
The first complication concerns how BitTorrent itself works. When a regular user participates in a BitTorrent swarm, small downloaded parts of a movie are then made available for upload. In this manner, everyone in a swarm can gain access to all of the necessary parts of the movie.
Anyone who obtains all of the parts (and therefore the whole movie) becomes a ‘seeder’ if he or she continues to upload to the swarm.
However, a question with three parts sent to the EU Court appears to seek clarity on whether uploading small pieces of a file, which are unusable in their own right, constitutes an infringement and if so, where the limit lies. It also deals with potential ignorance on the user’s part when it comes to seeding.
1. (a) Can the downloading of a file via a peer-to-peer network and the simultaneous provision for uploading of parts (‘pieces’) thereof (which may be very fragmentary as compared to the whole) (‘seeding’) be regarded as a communication to the public within the meaning of Article 3(1) of Directive 2001/29, (1) even if the individual pieces as such are unusable? If so,
1. (b) is there a de minimis threshold above which the seeding of those pieces would constitute a communication to the public?
1. (c) is the fact that seeding can take place automatically (as a result of the torrent client’s settings), and thus without the user’s knowledge, relevant?
While the above matters are interesting in their own right, it’s Mircom’s position that perhaps provokes the most interest and has resulted in the next pair of questions to the European Court of Justice.
To be clear – Mircom is not a content creator. It is not a content distributor. Its entire purpose is to track down alleged infringers in order to claim cash settlements from them on the basis that its rights have been infringed. So what rights does it have?
Mircom claims to have obtained the rights to distribute, via peer-to-peer networks including BitTorrent, a large number of pornographic films produced by eight American and Canadian companies. However, despite having the right to do so, Mircom says it does not distribute any movies in this fashion.
Instead, it aims to collect money from alleged infringers, returning a proportion of this to the actual copyright holders, to whom it paid absolutely nothing for the rights to ‘distribute’ their movies via BitTorrent.
Interesting to say the least, a situation that has resulted in a second question with two parts being referred to the EUCJ;
2. (a) Can a person who is the contractual holder of the copyright (or related rights), but does not himself exploit those rights and merely claims damages from alleged infringers — and whose economic business model thus depends on the existence of piracy, not on combating it — enjoy the same rights as those conferred by Chapter II of Directive 2004/48 (2) on authors or licence holders who do exploit copyright in the normal way?
2. (b) How can the license holder in that case have suffered ‘prejudice’ (within the meaning of Article 13 of Directive 2004/48) as a result of the infringement?
A third question asks whether the specific circumstances laid out in questions 1 and 2 are relevant when assessing the correct balance between the enforcement of intellectual property rights and the right to a private life and protection of personal data.
Finally, question four deals with a particularly interesting aspect of BitTorrent swarm data monitoring and subsequent data processing in respect of the GDPR.
4. Is, in all those circumstances, the systematic registration and general further processing of the IP-addresses of a ‘swarm’ of ‘seeders’ (by the licence holder himself, and by a third party on his behalf) legitimate under the General Data Protection Regulation and specifically under Article 6(1)(f) thereof?
There are already considerable concerns that the tracking data collected and processed as part of the case in hand may not have been handled as required under the GDPR. That, on top of the conclusion that Mircom fits the ‘copyright troll’ label almost perfectly, makes this a very interesting case to follow.