22-02-06

Ignorance No Excuse for Copyright Infringement: Polydor Ltd v Brown A private individual has been found liable for copyright infringement despite being unaware of his actions. In Polydor Ltd (and others) v Brown (and others), six record companies sued various defendants for copyright infringement, including a Mr Bowles resulting from his use of peer-to-peer ("P2P") software. The record companies together obtained a summary judgment against Mr Bowles, who was held liable for distributing music files without authorisation. In one of the very many "file-sharing" cases being run by record companies in the UK and other countries, it was alleged that Mr Bowles had made available more than 400 music files to users of the Gnutella P2P network (unfortunately referred to as "Nutella" in the reported judgment). Mr Bowles admitted that he had used P2P software but maintained that he was unaware that by doing so he was distributing music. The court held that "connecting a computer to the Internet, where the computer is running P2P software, and in which music files … are placed in a shared directory" is an infringing act. Mr Bowles' defence was that he did not know he was doing anything wrong or illegal, that as soon as he did know he stopped, and that he had not made any money from his actions. The court found him liable and held that "it does not matter whether the person knows or has reason to believe that what they are doing is an infringement because innocence or ignorance is no defence". The mere fact that the files were present and were made available means infringement took place. This case serves as a useful reminder that copyright infringement can be accidental and inadvertent. Websites that rely on disclaimers or notices stating that no "offence" or "infringement" is intended - or even that the site will "take down any material which is objected to" - should be warned that they run a very real risk and cannot hide behind such a policy regardless of whether or not any profit is made from the images or music files used without proper authorisation. In short, clear it before you post it. The full text of the judgment may be accessed via: http://www.lawtel.com/~43e7b37086324d5b82ed1f87d993d04d~/content/display.asp?ID=AC0110363ChD.pdf
Article by Tom Frederikse