The English High Court has ordered 10 ISPs, including BT, Tiscali and Telewest, to reveal the identities of 150 file-swappers accused by the Federation Against Software Theft (FAST) of illegally uploading software to networks such as Kazaa.
The ISPs have 14 days to comply. Once FAST receives the data (customer names and addresses) it will decide whether to sue for damages or bring private prosecutions that could result in prison sentences of up to two years and/or unlimited fines.
A 12 month investigation by FAST into the covert sharing of software by PC users highlighted 150 suspected "uploaders" – people who put copyrighted software on to internet file-sharing networks, including Kazaa, and offered them to others without permission from the copyright owners.
To catch the uploaders, the investigator conducted searches in the peer-to-peer networks for popular software products. When product name matches were found, downloads of the infringing software were completed to check it matched the descriptions. FAST recorded the providers' IP addresses ready for the application for Disclosure at the High Court.
FAST does not know how many people downloaded the software. The copies might have been downloaded by one person (there was at least FAST's investigator) or a million people. Legally, it does not matter: the Copyright, Designs and Patents Act of 1988 was amended by a Directive from Brussels to suggest that uploading such material to Kazaa is a criminal offence:
"A person who infringes copyright in a work by communicating the work to the public … otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright … commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work."
Certainly there are millions of users of Kazaa, although only those searching for particular products are invited to download the infringing works.
This law has not been tested and an argument might be made over the interpretation of the word "communicating". Is it enough that the software was offered to millions? Does it also need to be shown that it was downloaded by several people, not just one individual? Forensic evidence from the uploading PC, if it can be recovered, could be used to measure the volume of downloads.
The Orders of Disclosure were granted on Friday by Judge Raynor who described FAST's case for granting the orders as "overwhelming". The orders require the ISPs to disclose the full personal details of their users.
Judge Raynor's ruling follows similar Orders of Disclosure granted in actions filed by the British music industry over the file-sharing of music. By coincidence, the BPI also made progress last Friday: it won its first awards of damages against identified file-sharers.
FAST has not yet decided how many cases to bring or of what type. It says it will see what comes from the ISPs – and some ISPs will likely find it easier than others to provide the information requested.