A United States film studio, Dallas Buyers Club LLC, made news last year for commencing legal proceedings against internet subscribers for copyright infringement for downloading the movie “Dallas Buyers Club”.

The film studio had commenced legal proceedings against internet service providers (ISPs) in Singapore to compel ISPs to provide details of subscribers associated with certain Internet Protocol (IP) addresses.

Thereafter, the film studio issued letters of demand to the subscribers alleging copyright infringement.

Presumably, the film studio had employed technology that allowed them to trace the download or upload of the film on the internet to an IP address associated with an ISP. An IP address is only an internet address that does not identify the individual who performed the actual upload or download.  For the rights owners to assert their copyright, they need to know who to assert their copyright against. The film studio therefore had to take proceedings against the ISPs in order to obtain information from the ISPs to identify the subscribers associated with those IP addresses.

Is the internet subscriber liable?

The case raises the interesting question of the extent of a subscriber’s liability at law for copyright infringement committed through his internet subscription.

Under the Copyright Act, assuming that a person does not have the requisite permission from the copyright owner, he can be liable for copyright infringement in two scenarios:

• First, when he commits the infringing act of copying the copyrighted work (in this case, a film) himself, in Singapore.
• Second, if he does not commit the infringing act of copying himself, but authorises the act of infringement by another party, in Singapore.

If the subscriber is in fact the person committing the infringing act of making an unauthorised copy of the film (by downloading or uploading the film), the subscriber would of course be liable for infringement.

Based on an IP address alone, it is not possible to know for sure whether it was the subscriber who has committed the infringing act and is liable for infringement, or whether it was some other individual whom the subscriber had allowed to use his/her internet connectivity. It is commonplace for the internet subscription of a subscriber to be shared with multiple individuals. For example, a landlord could be providing internet connectivity to his tenants using his internet subscription, or a member of the same household may connect to the internet on a single family member’s internet subscription.

One would be hard-pressed to say definitively that the subscriber is authorising another individual’s infringement of copyright simply by having allowed that other individual to use his internet connectivity. There is yet to be any decided case in Singapore where the courts have decided that a case of authorising infringement can be made out against a party that merely provides the internet connectivity used by the infringer to commit the infringement. Past decisions by our courts suggest that the following factors are relevant for determining whether a person has authorised the infringement of another:

• whether the “authoriser” had control over the means by which infringement was committed and hence a power to prevent the infringement;
• the nature of the relationship between the “authoriser” and the actual “infringer”;
• whether the “authoriser” took reasonable steps to prevent or avoid infringement; and
• whether the “authoriser” had actual or constructive knowledge of the occurrence of the infringement or the likelihood of such infringement occurring.

Evidence of a subscriber merely providing the internet connectivity used to commit the infringement, would at best satisfy the first factor and is hardly determinative of the subscriber authorising any infringement.

Accordingly, there is little legal basis to impute liability for copyright infringement on a subscriber merely because his IP address (and his internet connectivity) has been used in the commission of an infringing act. A demand letter issued merely on this basis could be considered speculative. If the subscriber is not the infringer, the rights owners could also be liable for making a groundless threat of legal proceedings.

In the Dallas Buyers Club case, the Law Society issued a warning against the lawyers for sending letters threatening criminal proceedings, which is against ethical rules.

If a case of infringement cannot be made out against the subscriber, what recourse does rights owners have? Similar to the process that the rights owners have taken against the ISP for information on the subscriber, rights owners can also seek information from subscribers to ascertain the party responsible for the infringement. For instance, the subscriber could be compelled to provide information on the identity of the users that were allowed access to his internet connectivity at the relevant time. With the information, rights owners can then determine the parties responsible for the infringement. Undoubtedly, taking this approach creates additional obstacles for rights owners in enforcing their rights. However, it will ensure that the demand is made against the right person and subscribers are not unduly threatened with speculative demands.