BMI/ISP agreement; costs in the PCC

What have the BMI and ISPs agreed?

Yesterday the IPKat (in slightly sleepy state) was greeted with the news that British Music Rights (BMI) and the 6 leading UK ISPs (Tiscali, Virgin Media, BT, Orange, Carphone Warehouse and Sky) had reached an agreement on tackling illegal downloaders of copyright content. The IPKat thought it was a little odd that no one really seemed to be saying much on what the parties were actually agreeing to do, and then he went about his business.

It seems that the IPKat wasn't the only one who was confused. Today PC Pro reports that Carphone Warehouse has said that it will neither cut off their customers' internet access, nor will it divulge customer details without a court order. Instead, a Carphone Warehouse spokesman said:
"What we have agreed to do is to write to our customers and advise them there's been an alleged infringement. We're very clear that we don't know if that's the case or not, we've just been told there has been and we want to advise them of that".
The IPKat is rather suspicious of voluntary codes of practice like this one. It's one thing if an industry is agreeing to self-regulate. It's quite another if an industry is agreeing to self-regulate for the benefit of another industry, but the people who are really bearing the brunt of this are the ultimate consumers. The IPKat also wonders, what's in it for the ISPs here?

The desk drawer worth £100,000

Over to a costs cases in the Patents County Court. Anglia Autoflow Ltd v Wrightfield Ltd was a copyright case concerning ownership of a bespoke piece of software. The case was eventually abandoned by the claimant after a DVD came to light which showed early development stages of the defendant's software which indicated that it had been independently created. The said DVD was found by an employee of the defendant well into the litigation in his desk while he was looking for something else.

HHJ Fysh QC SC found that the defendant had failed to make a reasonable se
arch since 'his material was where one would expect it to be; it was not hidden away in some unexpected place. Moreover the file suffix ('.cxp') is the suffix for an Omron programme and the earlier version could I think, have been found in response to a search under 'Okeford', 'Faccenda', 'Easyload' or '.cxp'. The file name itself, I would have thought, would have been indicative of potentially relevant material for disclosure.' Additionally, the defendant had been rather 'cavalier' in preparing for the litigation, and had made (possibly by inadvertence) a number of misleading statements. Both of these factors justified a reduction in costs payable by the claimant of 20% (a claimant that abandons a case would normally be liable for 100%).

The thing that struck the IPKat though was the quantum of costs involved. Although the program cost the claimant £10k, the costs incurred in this case were almost £1million. The IPKat (perhaps naively) thought that the PCC was meant to be a less costly venue for IP litigation.
BMI/ISP agreement; costs in the PCC BMI/ISP agreement; costs in the PCC Reviewed by Unknown on Friday, July 25, 2008 Rating: 5


  1. On the question of the ISP/content owners agreement you comment "but the people who are really bearing the brunt of this are the ultimate consumers"
    I have been an avid, admiring but silent reader of the IPKAT blog for some time, but I am moved to comment by what must have been written while you had not fully recovered from your "slightly sleepy state". What kind of a brunt to bear is a letter from your ISP pointing out that your account has been used to infringe copyright? No lawsuit, no handing over to the rotweilers, just a polite warning that something may be amiss.
    WHAT the ISPs and content owners have agreed (and it is not a lot)is far less important than the fact that they have agreed at all, after many years of feuding and sniping. Rather than seeing this as a new but undefined burden for the long suffering freeloader, do you not perhaps think that this new spirit of co-operation might result in the two sides delivering on their commitment to produce new models to deliver content that is of a higher quality, more convenient and not only inexpensive but free (from viruses, spoof files, ad-files and all the other flotsam and jetsam of the P2P file-sharing world)?
    This is what it promises for me. I think we may yet look back and see what appears to be a fairly innocuous deal as a very significant turning point which resulted in a boon, not a burden to the ultimate consumer.

  2. I agree with the IPKAT that the gentleman`s agreement between the 6 biggest ISPs in the UK and the government to tackle online illegal file sharing is flawed in many respects. In addition, the lack of clarity of the agreement as well as the sanctions beyond the step (the letter) is not a promising start for what aims at being the regulatory framework for illegal file sharing. I discuss this matter in more detail on my blog so you can check it out for more on this.


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