In the first ruling of its kind in the UK, Isabela Barwinska was ordered to pay Topware Interactive, owner of the computer game Dream Pinball 3D, damages of £6,086.56 plus costs and disbursements of £10,000.
The Court decision comes as part of a crackdown by the computer games industry in the UK on illegal downloads. Games publishers such as Atari, Reality Pump, Techland and Codemasters plan to take action to recover losses and costs from an estimated 25,000 consumers in possession of illegal downloads in the UK.
All UK claims brought are civil actions under the Copyright, Designs and Patents Act 1988. The award of damages in the UK follows similar actions in other jurisdictions throughout Europe. It also follows years of struggle by the music industry to prevent illegal file sharing.
Some six million people are thought to engage in illegal file sharing in the UK each year, a trend which has cost the music and film industries many millions of pounds in lost revenue. And with the media industry increasingly reliant on digital revenues, increased download speeds and internet penetration are exacerbating the problem.
In an attempt to address this, the UK government recently brokered a deal between the music and film industries and leading internet service providers (ISPs). In disclosure orders against ISPs, the High Court of London has ordered the release of several thousand names and addresses of users to help identify illegal file sharers. And another application is set to be issued at court in relation to a further 7,000 IP addresses.
The Barwinska decision could set an important legal precedent and have serious consequences for those who engage in file sharing activities. But reaction to this week’s decision has been mixed, with not everyone convinced that taking legal action is the best way of tackling the problem.
London law firm Davenport Lyons is acting on behalf of a number of media rights owners who have started proceedings against those they suspect of illegally uploading copyright works. These claims mostly relate to computer games, but also films, software and music.
Partner David Gore said: “The damages and costs ordered by the Court are significant and should act as a deterrent. This shows that taking direct steps against infringers is an important and effective weapon in the battle against online piracy.”
Withers & Rogers patent attorney and IT sector specialist Nick Wallin agreed. “At last file sharing is being exposed for what it is – possession and supply of stolen goods,” he said. “Users of the internet and file sharing networks that help to make copyright protected material available to others for illegal downloading should beware.”
The creative industries have made efforts to raise public awareness of the fact that unauthorised copying and downloading of material protected by copyright is illegal. This is designed to make it difficult for someone downloading a game without paying for it to claim that they did not know they were acting illegally.
But James Castro-Edwards, a solicitor in the IP, commercial and technology practice at Speechly Bircham, said that there was a perception among some that illegally downloading a game was somehow less serious than stealing a physical copy from a shop simply because it was easier. And that this could be explained in part by the fact that the perpetrators were often children.
“This means that there is a significant likelihood that any action taken by a computer games company would be against the parents, rather than the illegal downloader,” he said. “The computer games industry will doubtless be aware of this, and that regardless of its rights against illegal downloaders, aggressive action against them will not endear it to the public.”
Copyright infringement in file sharing occurs when a protected product is copied in its entirety or when a substantial part of it is copied. In the case of illegal file sharing, the downloads are not carried out in a single stream but through file sharing networks. This makes parts of the game available to other users so individuals can construct their own illegal copy of the game on their own PC.
Mike Dager, CEO of Arxan Technologies, greeted this week’s decision with both satisfaction and dismay. He said it was good that game makers like Topware Interactive were taking a strong stance to protect the IP that they have worked so hard to create, but sad that software, games and music were not being effectively protected by developers.
“Historically most anti-piracy and copy protection applications defend the content but not themselves,” he said. “Modern technologies guard the content of software and also work to guard themselves through defending, detecting and reacting against all types of attacks, even healing themselves, calling for help or just shutting the program down.”
This, he added, offered “a far more cost and time effective solution than going to court after the damage is done”.
The Barwinska decision follows the recent decision at the Central London County Court against four people who were found to have infringed copyright by sharing games illegally on the internet.
