Sound and (Simulated?) Fury

July 21, 2010

The news that Which? sent me about another law firm sending letters to consumers, accusing them of unlawfully downloading and sharing copyright-protected material over the internet left me cold. Apparently Gallant Macmillan LLP Solicitors have sent approximately 1,500 letters of claim on behalf of its client, the Ministry of Sound Recordings Ltd. When I read that Which? had asked the Solicitors Regulation Authority if they were going to investigate, despite the fact that even Which? describes the letters as gentler in tone than those from firms previously involved in similar volume claims, I did wonder if they had been listening to the Ministry of Sound album involved for too long. The Ministry’s music is after all notorious for being associated with people who are ‘off their heads’ – although there are those who, no doubt quite unjustifiably, mention illicit drugs in the same breath so the music might not be at fault.

I do think there are serious problems with volume litigation. These have been highlighted on this site from time to time (most memorably by {Andrew Murray:}). But if we have reached the stage where a ‘gentle’ letter can lead to the SRA being involved then lawyers might all just as well wind up their businesses and decamp to their villlas for good, not just for the summer holiday. Perhaps seeking £375 plus costs is just plain ridiculous, especially for an album that bears a striking resemblance to traffic noise, road works and domestic violence (it certainly makes my purchase of a vintage copy of American Gothic look cheap) and I’d be happier with the German 100 euro limit but, as my grandmother was wont to say, ‘if you don’t ask, you don’t get’ (though, as my grandfather was wont to add ‘if you don’t ask, you don’t get told to sod off’).

But that’s enough of giving Which? a hard time, and more than enough of my grandparents. My feeling is that Which? have more than made up for any overreaction by getting a QC’s opinion on the vexed topic of liability for failing to secure your w-fi network. Roger Wyand QC is quoted by Which? as giving his opinion that ‘[w]here a third party does manage to use the internet connection of a subscriber without his or her knowledge or consent and infringes copyright, the subscriber will not be liable for copyright infringement. The subscriber could be liable if they knew that a third party intended to infringe copyright and consented to a third party using their equipment to carry out that intention. However, mere negligence in failing to take precautions to prevent such use is not actionable.’

He suggested that as a general rule, it would be sensible for consumers to put in some form of protection – such as password-protecting their wireless network – against unauthorised access.

This is a valuable contribution to the debate and I wouldn’t argue with any of it. But many would. Simon Gallant of the afore-mentioned Gallant Macmillan LLP said he disagreed:
‘In general, wireless routers are supplied with set-up instructions that password protect the wi-fi connection (unless the user chooses to opt out). Furthermore, internet service providers require their customers to password protect their connection as part of their subscription contract. … consumers who fail to secure their connections are acting unreasonably and run the risk of liability if a third party illegally file-shares using that connection. There may be exceptions to this position and we will look at each reply on its merits.’

I strongly object to the idea that I have to act sensibly and avoid acting unreasonably, save where I have a duty of care. The idea that I might have a duty of care to Sony and Cliff Richard is so disturbing that I may have to move planets if it turns out to be true.

But I am deliberately over simplifying. As ever, I would welcome contributions to the debate on the issue. Feel free to oversimplify.