Legal Eye: File-sharers under fire

Downloading or sharing pirated materials? You're now more likely to get caught. Lawyer John McKinlay explains why.

In the UK last month, a woman was fined £16,000 for illegally downloading and sharing a computer game and, elsewhere, the Italian authorities have ordered ISPs to restrict access to peer-to-peer website Pirate Bay.

As European governments join the ranks of Hollywood studios and major record labels in ramping up their action against illegal file-sharers, are the results of a common purpose beginning to show?

In a widely reported recent case, Isabella Barwinska was sued for downloading and sharing a computer game called Dream Pinball 3D. For a game she could have downloaded for £10, her actions landed her a £6,000 court fine plus £10,000 in court costs.

Meanwhile Italy's deputy prosecutor Giancarlo Mancusi has ordered the country's ISPs to block access to notorious Swedish file-sharing site Pirate Bay. In reply, the site advised its users to switch to a system that changed IP addresses to avoid ISP filters and circumvent the ban. Despite attention, Pirate Bay continues to protest its innocence and points out that its service allows users to search for torrents and does not itself distribute copyright-infringed material.

In the latest development, users attempting to access the Pirate Bay website are redirected to a site operated by the International Federation of the Phonographic Industry (IFPI) which represents the interests of the recording industry worldwide.

These cases are fast becoming the rule, not the exception. Driven by the huge growth in the number of homes with internet access, research shows that up to six million people in the UK participate in illegal file-sharing of films and music each year.

For a long time, it seemed these downloaders and file-sharers could carry on with relative impunity. Not only did it not feel illegal (at least not in the way that stealing a CD from a high street store does) but the risk of getting caught was negligible. Now, however, a combination of tactics, technology and tenacity has seen the war against file-sharing take a new turn.

ISPs and file-sharing
Key issues

1. Illegal downloading and file-sharing often takes up inordinate amounts of bandwidth - ISPs now understand it's in their best interests to limit the practice

2. Changing perceptions to file-sharing - educating consumers that file-sharing is as illegal as shop-lifting

3. Cost of being caught - prohibitive bans and fines are at last in place

Firstly, the focus has moved away from searching out individuals. Instead ISPs are being targeted and forced to release the names of those who have been illegally downloading. As ISPs control access to the internet, they are under increasing political pressure to assist in policing internet activity on their networks.

Secondly, the same technology that is being used to download files is also the downfall of those being caught. Certain programs leave traces on the internet which can be followed all the way back to the offending computer.

Thirdly, the sheer number of people being pursued has dramatically increased. Solicitors involved in these cases are targeting thousands of file-sharers at once. Court orders are being issued in bulk, which allow aggrieved companies to demand payment or see the infringers face the threat of expensive court action.

Of all the issues the increased co-operation between the content owners and ISPs represents the biggest shift. Until recently, ISPs appeared reluctant to become too involved in such matters. They preferred instead to see themselves as mere conduits of information.

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However, with massive pressure on bandwidth from the likes of YouTube and, more recently, the hugely successful BBC iPlayer, ISPs have recognised that taking action against illegal file-sharers is very much in their interests too. The reason is simple: it is often those who are engaged in illegal activity who are using the largest quantities of this increasingly scarce resource.

A code of conduct has been proposed by government to regulate how ISPs help content owners, which may be backed up by legislation. Recently six major ISPs have entered into a 'memorandum of understanding' under which they have agreed to write to 1,000 subscribers per week to warn them of the law and the risk of being cut off for conducting illegal activity.

With the tools now in place, content owners are stepping up their campaign to persuade people at a basic level that it just doesn't add up to share files illegally. Where fines and costs can easily reach four figures for games, songs or videos costing a fraction of that amount, consumers don't need to be caught every time for the pain to be very real.

With potentially millions of people engaging in illegal file sharing each year, it is clear the battle will not be won overnight. For the first time though, there is a real sense of common purpose across the industry. The odds are turning against the illegal file sharers, and the results are beginning to show.

John McKinlay is a partner in the technology, media and commercial practice at DLA Piper.

DLA Piper is the world's largest global legal services organisation with more than 3,700 lawyers across 64 offices and 25 countries. Its award-winning technology, media and commercial practice employs 70 partners specialising in IT, telecoms, media, sport and IP law. Experts in convergence between the technology, communications and media sectors, it advises some of the world's leading multinational entertainment, media, sport and technology companies.