Attempt by Hollywood studios to identify illegal downloaders dismissed by the High Court

Attempt by Hollywood Studios...

Background

In August 2016, Hollywood film studios QOTD Film Investment Ltd and Voltage Pictures, represented by Samuel Seow Law Corporation (SSLC), applied for a court order to compel local Internet Service Providers (ISPs) to release information about subscribers who allegedly infringed their copyright by illegally downloading their movies. The movies in question are Queen of the Desert and Fathers & Daughters, and copyright in these movies are owned by QOTD Film Investment Ltd and Voltage Pictures, respectively.

ISPs such as Singtel, Starhub and M1 are companies that provide Internet access to their subscribers. Such an order, if granted, would compel ISPs to provide the film studios with the particulars of its subscribers based on the infringing Internet Protocol (IP) addresses available. The film studios will then be able to commence copyright infringement proceedings against these registered subscribers based on the information provided by the ISPs.

In 2015, a similar application was brought by Voltage Pictures, the owner of the movie Dallas Buyers Club. The High Court allowed its application and ordered Singtel, Starhub and M1 to provide Voltage Pictures with the details of their registered subscribers who allegedly downloaded the movie. SSLC, which represented Voltage Pictures, then sent out letters of demand, requesting for offers of damages and costs. These controversial letters caused much unhappiness among the recipients of these letters and the general public, with many accusing Voltage Pictures and their lawyers of utilising bullying tactics by scaring recipients into hasty settlements. The Internet Society even filed a complaint with the Law Society of Singapore against the lawyers who issued the letters for making threats of criminal proceedings in their letters.

Given the negative backlash that arose from the Dallas Buyers Club incident, it comes as no surprise that this time, and for the first time ever, the Intellectual Property of Singapore (IPOS) and Attorney-General’s Chambers (AGC) applied to intervene in the proceedings to avoid allegations of abuse.

The High Court’s dismissal

The application by the film studios was eventually dismissed by the High Court on 17 April 2017. This was on the ground that the film studios had failed to show a connection between the infringing IP addresses and the persons who downloaded the movies. In other words, they had failed to prove who the exact copyright infringers were.

Such proof is difficult to establish. While an IP address may provide an indication of who may have illegally downloaded the movie, it does not identify the exact downloader. It merely shows that the infringing acts took place through a particular internet service connection. However, internet connection can easily be shared among several individuals at any single time. This then leaves open the question of the type of evidence that would suffice to establish such a connection between the IP addresses and the downloaders.

The significance of this dismissal lies in the contrast between the High Court’s approach in this case, and its position in the Dallas Buyers Club incident. In the present matter, apart from taking into account IPOS’ and AGC’s concerns that film copyright owners may abuse the court process to enforce their copyright, the court also made clear that a higher evidentiary threshold must be satisfied for such applications to succeed. The present dismissal of the film studios’ applications suggest that while copyright owners are entitled to enforce their rights, they are only entitled do so in accordance with the prescribed procedure.

What now for copyright owners?

Instead of attempting to sue individuals, which has proven to be an unpopular and a problematic course of action, film copyright owners could instead turn their attention to website owners or ISPs.

Website owners

Film copyright owners can sue website owners that make available copyrighted films. Under section 103 read with section 83 of Singapore’s Copyright Act, causing a film to be seen in public and communicating a film to the public constitutes an infringement of copyright in cinematograph films, if these infringing acts were done in Singapore.

However, where the website owners are located overseas, commencing copyright infringement proceedings against them may be cumbersome. Further, identifying the owners can be challenging where website owners register their domains through proxies.

ISPs

Film copyright owners can also apply for court orders to require ISPs to block access to websites that host infringing content. Section 193DDA of Singapore’s Copyright Act enables copyright owners to bring an application for an order against ISPs, requiring them to take reasonable steps to disable access to any flagrantly infringing websites. This was done for the first time in 2016, when the High Court ordered ISPs in Singapore to block access to online streaming website Solarmovie.ph.

However, copyright infringing websites can easily change their domains to circumvent website blocking. They may also launch proxy websites to enable access to blocked websites.

Conclusion

The High Court’s position in the Dallas Buyers Club incident was clearly in favour of copyright owners, but its present dismissal of the applications brought by the film studios indicates a more balanced approach that is fairer to Internet users. That being said, downloading movies from the Internet does amount to an infringement of the film studios’ copyright, and it may just be a matter of time before advancements in technology and the law enable film copyright owners to identify and sue downloaders for infringing their rights. For now, it remains to be seen exactly how such copyright owners can successfully enforce their rights against illegal downloaders.

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