Wrapping up the last of the United Kingdom's notorious copyright infringement "pay up" letter cases, a UK patent and copyright judge has had a major revelation. Just because some lawyer cites an Internet Protocol (IP) address where illegal file sharing may have taken place, that doesn't mean that the subscriber living there necessarily did the dirty deed. Or is responsible for others who may have done it.

"What if the defendant authorises another to use their Internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright?" asked His Honour Judge Birss QC last Tuesday.

What indeed? The question comes in the case of MediaCAT Limited versus 27 defendants accused of sharing online porn. The copyright holding group is represented by lawyer Andrew Crossley of ACS law. He wants around £500 apiece from the accused, even though most of his cases show little evidence of individual guilt.

That's not the only legal snag Judge Birss noticed. He was particularly irritated over evidence that ACS was trying to withdraw the questionable complaints in a bid to sue the defendants again under better circumstances, and with a new firm: GCB.

"The GCB episode is damning in my judgment," Birss warned. "This shows that Media CAT is a party who, while coming to court to discontinue, is at the very same time trying to ram home claims formulated on exactly the same basis away from the gaze of the court. That will not do."

What does "unsecured" mean again?

But what makes the England and Wales Patent County Court ruling particularly interesting is the jurist's obvious skepticism about what has become the central dogma behind these suits—that a torrent share associated with a specific IP address is grounds for legal action against a specific human being. The lawyers argued that, even if the Internet subscriber hadn't done the deed, he or she had presumably let someone else use their network, and so were therefore responsible for this "authorized" use.

"Does the act of authorising use of an Internet connection turn the person doing the authorising into a person authorising the infringement within s16(2)?" Birss asked. "I am not aware of a case which decides that question either."

"s16(2)" is a reference to that section of the UK's Copyright, Designs, and Patents Act of 1988. We've italicized the key word in play: "Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright." But authorizing a guest to play some online game can hardly be seen as an authorization for that guest to start downloading copyrighted material; if that happens, why would the subscriber be responsible?

Birss had even more concerns:

Then there is the question of whether leaving an Internet connection "unsecured" opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally, what does "unsecured" mean? Wireless routers have different levels of security available and if the level of security is relevant to liability—where is the line to be drawn? No case has decided these issues but they are key to the claimant's ability to... say—one way or another there is infringement here.

Who knew?

All this may seem rather obvious to Ars readers, but these are key principles that are only now finding their way in major judicial opinions. The revelations could have some serious implications for the UK's Digital Economy Act, too. That law requires ISPs to forward P2P warning letters from copyright holders, and it opens the door to throttling and Internet disconnection for repeat infringement.

Central to the Act's enforcement logic is the idea that the activities associated with an IP address demonstrate the culpability of the address owner. Such is the official fealty to this precept that last year one UK government defender of the Act mistakenly called IP your "Intellectual Property" address.

But Judge Birss has clearly discovered that the digital emperor of this assumption has few if any garments. "Proof that a person owns a photocopier does not prove they have committed acts of copyright infringement," he continued:

All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All Media CAT's monitoring can identify is the person who has the contract with their ISP to have internet access. Assuming a case in Media CAT's favour that the IP address is indeed linked to wholesale infringements of the copyright in question... Media CAT do not know who did it and know that they do not know who did it.

Oops. The judge has given ACS:Law two weeks to continue the case or pay the defendants' legal expenses (or "wasted costs" as they're called in the UK). Crossley and MediaCAT have already closed up their operations, but they may still be targeted in a "group complaint" (like a class action here in the US) brought by defense lawyers at the major law firm Ralli.

Update

A reader sent us a clarification about "wasted cost" expenses:

"In UK law there is a distinct difference between being awarded costs and 'wasted costs' which are awarded where a legal firm has acted improperly or merely incompetently (and is clearly seen as such) wasting the court's and others' time. These costs can be punitive. Wasted costs do not reflect on those the law firm represent."