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back to article Court slaps UK BitTorrenters with landmark damages award

The Central London County Court has ordered four BitTorrent users to pay a video games company £750 interim damages following a landmark victory by no win, no fee copyright lawyers. The final damages could run to £2,000, plus costs of up to £1,500, the Evening Standard reports. The decision will cause salivating among …

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I can't wait for one of these cases to actually come to court

Especially as the main offenders would be kids under the age of 16

They would obviously have to be very young, no one with any sense would have botherd downloading that POS

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Fines were too small, otherwise good news

I hope this becomes commonplace. Piracy is theft and it hurts the IP owners and everyone involved in the development, distribution and sales process, especially the smaller players and micro ISVs. I've heard the tired arguements about people wouldn't buy it anyway so it's cost nothing to the developers and how people would just use a free alternative instead. Well, guess what - by pirating commercial software, you're also hurting the makers freeware by not adopting their products!

I'll doubtless be flamed by small-minded, selfish thieves. I couldn't care less about their criminal opinions.

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At Least

They only want them to pay up the once. That's playing fair. The RIAA would rather they paid up 10 times per song along with a number of consecutive life and death sentences and an infinite fine on everyone from their town or who shared their forename. Even if they were dead. Oh, and the corpses would be branded "THIEF" and then ridden hard by the same people who are riding the bloated carcass of their current business models.

Meh, they downloaded a £9 game, they got charged £700- enough to ensure that you'd think twice before doing it again, not enough to drive most people into ridiculous amounts of despair and poverty. So the chances of them reoffending has been limited without taking a sledgehammer to their rights, lives or to common sense.

Thumbs up relative to the other copyright cases in recent memory.

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Whatever happened to established case law?

Irvine vs Talksport established this supposedly once and for all. The judgement in the case says that "It is clear from Lord Wilberforce�s speech in General Tire that a reasonable endorsement fee in the context of the instant case must represent the fee which, on a balance of probabilities, TSL would have had to pay in order to obtain lawfully that which it in fact obtained unlawfully (see in particular the passage from the judgment of Fletcher Moulton J in the Aluminium case, quoted by Lord Wilberforce). It is not the fee which TSL could have afforded to pay: hence the judge was correct to conclude (in paragraph 16 of the second judgment) that TSL�s financial situation is irrelevant. "

Meanwhile...

"The level of damages indicates UK judges are sympathetic to the view that copyright infringment via peer to peer networks can cause greater damage to rights holders than the retail cost of their product, because the number of times it has been shared by an individual is unknown."

The article says that it costs £8.99 which tells us that the average has been distributed a whole 55 times in its entirety???? Are we honestly expected to believe that the average bittorrent user could have uploaded a total of 37.5 gigabytes of this game, particularly with upload speeds in the UK being less than the download speeds?

I should make this argument every time a company nicks one of my photographs and then sticks it on the internet. After-all, there's no way of telling how many thousand people download it then from the website without permission and then reuse it elsewhere but courts would never agree to that so I can only claim the license fee even though it's a commercial, not non commercial copyright infringement.

Can someone please fix our legal system so that either commercial copyright infringement is treated worse than file sharing, or file sharing is treated better. I don't care which as long as they are proportionate.

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Stop

a bit steep

so they could be looking at a £3.5k fine for an £8.99 game? how does that work then?

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Go

Ambulance chasing lawyers & freetards

They deserve each other

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Alert

Proven technology?

I used to knock a few bits of software off, but this stuff is finally having an effect on me. I don't bother anymore, it's not worth risk getting caught either actually doing it or getting caught in a net when you're completely innocent and have to waste time and money proving your innocence. Somehow, over the last 10 years, the law seems to have been changed from "innocent unless proven guilty" to "guilty until proven innocent".

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Pirate

How long before...

... the Davenport Lyons servers get rooted?

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Alert

An interesting defence

would be to prove your upload/download ratio, and the number of users that connected to you. if for the sake of argument you set your prefered torrent client to only accept one in coming user, and you set the upload limit sufficiently low, then couldn't you argue hypothetically that you shared half the game to two people and thus should only pay a £16 fine + costs?

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Anonymous Coward

>a bit steep & Case Law

It's a 2K fine, there are 1.5k costs which represent the expense of bringing the case (lawyers etc).

The damage is not the rights to one copy of the game, it is because they have taken rights beyond the normal licensing. Which would normally carry a greater price tag than £8.99. Not 55 uploads, the _right to upload_.

>I should make this argument every time a company nicks one of my photographs and then sticks it on the internet.

Indeed you should, by the looks of it, it'd cost about 1.5 grand for a decent solicitor.

Ideally always put a price tag on your photo's (so you can demonstrate the value, keep it sane) and water mark them to prove they're yours.

It's a shame no defence was offered, the costs seem excessive, there's a strong argument that the damage is more like £10 rather than £2K, and the insecure router defence needs testing in court.

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Anonymous Coward

@ fines were too small

Try looking up some facts! What we're discussing here is copyright infringement.

As pointed out in the article, you need a boat to be commiting piracy and you cannot steal something that is not there. If they'd taken the CD/DVD from a shop, that would be theft but a download has no substance and cannot be stolen.

Just because copyright infringement is wrong, does not mean the methods employed by these leeches are acceptable. The sooner they're made to prove their case in court, the better. It would only take someone marginally technically savvy to tie this up for so long that their fees go out the window and there;'s no guarantee they'd win.

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Happy

Criminal opinions

Anon Coward: "I'll doubtless be flamed by small-minded, selfish thieves. I couldn't care less about their criminal opinions."

That's OK - I couldn't care less about yours either :)

No flaming - just pity.

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Anonymous Coward

@AC a bit steep

It woerks like this.

Topware Interactive £8.99

Davemport Lyons £3491.01

How else?

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Anonymous Coward

Re: AC @ 13:54

Is that the best you could do. I've seen more tempting bait skwered on a fish hook.

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Unhappy

Surely...

...the 1689 Bill of Rights comes into act here (the UK one, not the USA one) that prevents "cruel and unusual punishment" or "freedom of fines and forfeitures without trial*"? I assume that a £3.5k punishment for a £9 offence is unusual?

*I am sure that the Prosecution received confirmation from the Defence that they contest the crime but chose not to appear therefore this doesn't strictly apply... they did, didn't they?

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Anonymous Coward

seeding ratio

I wonder what the fine would be if you could prove that your seeding ratio was, let's say, 1.0 -- so one copy of the downloaded file was uploaded from your computer?

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Naive kids and parents pay the price

Gordon Pyra, in case you didn't read the article, the case did come to court but the defendants didn't show up. It wasn't a criminal prosecution therefore the age of the defendants is irrelevant. Bad luck again kids!

As mummy and daddy will no doubt be lumbered with paying damages and costs, perhaps disconnecting the kid's bedroom internet link would be a good idea.

But until the vast IT community comes to understand that file "sharing" other people's work is wrong, this problem will continue. These people are petty criminals in the same ilk as shoplifters. There is no moral or legal defence for this. Bring on the flaming!

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One more thing

How do they obtain a court order with evidence such as

[user agent, timestamp, file name, IP address].

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Confused

I still don't get how they can prove what it was you down loaded by the filename? If i down load the Simpsons movie but it turns out to be 3 weddings and a funeral who gets to sue me?

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Anonymous Coward

Absolutely

Buy a pirate copy off Ebay for £2 and get off scot free or download it and pay £3K? I'll take Ebay thanks.

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@gothicform

Your logic doesn't quite work - the point about the filesharing is that a large number of copies have been pirated. It's more analgous to a company nicking your photo and then including it in a distribution of their product...

I imagine you charge a different price for one print of your photo as compared to the right to use it on a public website...

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Sophistry ahoy!

"you cannot steal something that is not there"

Can you steal electricity? I believe you can be convicted for that form of theft.

However, they were not being prosecuted under the Theft Acts. This was a civil case, not a criminal one. The claimant sought and was awarded damages. There was no prosecution, defence or possible jail time at stake.

The claimant would have a tougher time in court if the defendant turned up to defend themselves. That speaks volumes about the strength of their case.

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Hmmm

Strikes me that this is the least nasty end of the "make the punishment really severe and hope it acts as a deterrent" stick. Which is a bit of a crap notion, unless considered from the perspective of trying to protect the interests of the UK as a whole by protecting the interests of IP holders and enforcing those rights through punitive damages. (An arguable motivation, but given the transition of UK business towards the creative industries it's a notion that makes a certain amount of sense).

I'm not too keen on this, chiefly because the law should be about converting criminals into functional members of society, not about punitively recovering piracy-related losses from individuals. In this case it's not too bad, but as a general principle I question the value of putting individuals into massive debt as a means of preventing re-offending. (Sure, they might be careful not to fileshare in future but can we guarantee they won't end up turning to other forms of crime in desperation? Or do we not care about that because protecting IP is the only issue we're considering right now?)

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To the AC

Do please elaborate on the harm to freeware developers. If I choose to nick a VLK copy of Windows from the office, I'd love to know how I'm screwing up ReactOS.

I appreciate your point, but - quite correctly - under nobody's laws is breaching copyright identified as theft. Theft deprives the owner of the right to enjoy something - see under pretty much everyone's statute books.

Calling it `piracy` is an insult to those murdered at sea by real, proper, machine-gun wielding pirates, who kill, rape, and maim, in order to steal. Face a real pirate, 500 miles from land, with no effective means of defending yourself, then draw a comparison to someone warezing your poxy software.

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Anonymous Coward

What do you expect if the defendant doesn't turn up?

Previous case law is only relevant if the defendants turn up and point it out to the court. If the software company gives some evidence of the size of its supposed loss, and the court has no evidence to the contrary, and no-one to argue against it, then the company gets what it asked for. Such is the nature of the adversarial system.

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Anonymous Coward

They aren't fines

This is a civil case for damages, not a criminal one. What the court has ordered the filesharers to pay is damages (and costs) - not a fine.

And that's where I have a problem with this. If you take someone to court to seek damages you have to show that a specific financial loss has occurred, and that the loss is the fault or responsibility of the party from whom you seek damages. So if I buy a washing machine which has an electrical fault which causes a fire that burns down my house, in order to be awarded damages I've got to be able to show that is was the washing machine that caused the fire.

How do you demonstrate that someone filesharing has caused x copies of your copyrighted work to be downloaded? How can you prove that they caused you ANY financial loss at all?

If it was a fine, then that's the court saying "you were guilty of a criminal offence, here's your punishment," which is fair enough. In this case, the court is saying, "you caused the plaintiff to suffer a financial loss, so you will compensate them by paying £x". Whatever this might turn out to be, it's a lot of copies at £8.99 each if you take £750 as a starting point.

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Anonymous Coward

"No money down" vs "no win no fee"

Notice the solicitor is the driver for this, they're the ones seeking out people they can portray as victims in court....

I reckon that the whole 'no win no fee' is the problem again. I would prefer 'no money down' replace 'no win no fee'.

So a plaintiff can sue, even if they don't have money, but if they lose they pay the costs. So they won't bring lawsuits unless they REALLY have damages they want redressed, and the lawyer won't take the case unless the case REALLY has merit and he's likely to win.

It would stem these frivolous lawsuits.

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Stop

@Gordon Pryra

"I can't wait for one of these cases to actually come to court"

Read the article; it did come to court, the accused didn't bother to turn up to defend themselves and the court found against them!

The actual offenders might be kids under the age of 16, but the persons taken to court would be adults (probably the parents/legal guardians) as you can't get a broadband subscription if you're under 18 (check the small print, technically it's a credit agreement).

So the following advice applies:

Parents, check what your kids are up to, you might end up paying for it!

Freetards: read your mail, it might be important!

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Commence the Attacks

On this companies network by disgruntled script kiddies.

LOL

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Burden of proof

I personally would have turned up and asked them to prove how much data was shared. The burden of proof is on who ever is doing the accusing correct? So they'd have to have data that proved *how much* you shared??

Or has UK law being bastardised so much that people are now guilty until proven innocent?

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@ Sophistry ahoy!

invisible != non-existant

Using energy prevents anyone else using it and you are therefore depriving somebody of something. That is why you can be convicted of theft.

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Anonymous Coward

£9 offence? whats the true cost of the loss?

Now i'm all up for software writers getting due recompense for their efforts, but my issue is that if i download something for free, does that immediately mean that i would have bought it if it weren't freely available?! My guess is that these miscreants would never have bought it, but hey if they get it free... in which case surely the damages is zero! I'm sure the music industry have made a significant sum from those who download something they've never heard of, then subsequently buy it.

as for me, if i get it free, it may influence a business purchase further down the line. If i don't then i'll probably never buy it, never see it and never give a toss. Lets not forget that m$ world dominance came from win98 being freely available/copyable!!! IMHO bittorrent/filesharing is a clever marketing tool if used right!

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Injustice

Unsurprisingly, the court found in favour of the plaintiff in the absence of the defendants. The injustice was that they were almost certainly innocent of illegally downloading Dream Pinball 3D. Reasoning being as follows:

It's Dream Pinball 3D, ffs.

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its actually being sold for 8.99

lol, people are buying that game.... It's free in vista.

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Anonymous Coward

How do you show that x copies of your work has been downloaded?

It's not the number of copies though, it's the _right_ to distribute the work, that is to give it away on bit torrent.

2K Seems reasonable for that.

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@Proven technology?

Don't you mean:

Innocent until proven guilty

Guilty unless proven innocent

You need to take more care, innocent unless proven guilty has never existed (witch hunts always have), and the latter comment of yours implies the person WILL be proven innocent, which give the general theme of my post, I'm not holding out on that one.

Although I don't approve of illegal greed I hope they are only targeting people who keep the games etc up for uploading and do actually rack up comparable seed ratios (against fines). Face it, they are the ones who can afford faster/bigger broadband, they can afford the fines more. Else, if you only have a seed ~1 then I'd recommend writing a very friendly letter, with a good bit of maths, in their favour. Plus an offer of say an extra £30 for the hassle of them having to write the letters. But, remember to be honest and willing to fight in court. Should keep the cost <£100 and should keep them happy (okay, 2 licenses + letter is closer to £50, but try and keep them sweet eh).

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Stop

*Cough*

PeerGuardian *cough*

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Anonymous Coward

Stealing electricity?

The offence is actually 'Abstracting electricity' which returns us to the fact that you cannot steal something that has no substance. My previous comment was aimed at the previous AC that screamed 'Theft!'

As for being the penalties being awarded by a court. The solicitors still have not proved their case as it was undefended and therefore just a rubber stamp exercise.

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I don’t even use BitTorrent*, but would probably pay

I’d pay £750 rather than have the prospect of a judge agreeing with Davenport Lyons that I must hand over all my hard disks and other storage media, and therefore a very great chunk of my life, for forensic examination. I assume the court would expect all my encryption keys be handed over also, with refusal meaning almost certain victory for Davenport Lyons.

*or any other P2P software, apart from Kontiki that powers iPlayer, etc.

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Unhappy

@JimC

actually gothicform's logic /does/ work. if someone nicks an image off his site and sticks it on theirs, every visitor has 'downloaded' a copy to their PC (remember, a copy in your cache is still a copy).

@ the AC saying you can't steal nonmaterial stuff... find out what "dematerialised" means with respect to securities, money and shares.

@the guy saying its civil so kids tough luck - er not quite; children have a sliding-scale of responsibility based on age. Lawyers would be SOL trying to sue a 5-year-old but a 15-year-old would be fair game.

As for the original tale, the damages are outrageous and would probably be overturned on appeal. The costs, unfortunately, will have to be eaten due to the no-show.

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Joke

download haven

"some of the net users accused of infringing Codermasters' copyright last year received more than half a dozen separate demands for cash" and probably deleted these automatically as these might have been marked as SPAM!

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Flame

Blah blah blah..

Pirates deserve jail... Sue everyone to hell and back! You have no rights..! No such thing as unfair... Blah Blah! BLAH!

Whatever. Idiots. As someone pointed out court cases external to software/media downloads have historically required proof of damages/loss. What proof would be required here? Probably none as they don't seem to understand what the real value is.

Putting a value of the item as its value of the right to re-sale would assumedly also mean a transaction would take place with the reseller taking profit, not just passing it on.

I'd be willing to bet these guys went US StylinZ by suing people as they were probably near best and this was a way to getcashquick! without actually having to have a decent product.

But yeah lets say all the downloaders spread say 10 copies each, thats 10x9, $90!, not bloody 2-4k! That's the only loss i'd consider 'acceptable' as a penalty for illegal redistribution. But as others pointed out whose to say they'd have bought it anyhow, the revenue of the company may have not have changed regardless? And what if of those X number who downloaded it, Y then went and bought it, that means they are actually profiting from that sharing!

Anyhow if you disagree with this you are being pedantic and disregarding perspective, but either way, rock on!

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More case law

"I imagine you charge a different price for one print of your photo as compared to the right to use it on a public website..."

Yes however if you need to read NOTTINGHAMSHIRE HEALTHCARE NATIONAL HEALTH SERVICE TRUST vs NEWS GROUP NEWSPAPERS LTD.

If someone takes a photo and sticks it on a website they are then distributing it to numerous different people, each of which is an individual infringement according to this judgement. This judgement indicates that with the internet, because you cannot tell how much something has been distributed, you should get a multiple of the typical fee.

My own experiences though in court from suing people for doing precisely this is that this is not solid case law. The judge who decided these damages has made a huge huge mistake as a result.

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Coat

Reviews of Dream Pinball 3D

"What would be your dream pinball game? If it's a handful of generic tables with poor ball and flipper physics, SouthPeak games just made your dream come true"

"Dream Pinball 3D fails at reproducing realistic physics, rendering it pretty much useless. Even if the player was given a sense of the weight of the ball and the flippers reacted like they should, you'd still have some pretty generic tables. There are many, better pinball games available for the PC. This is a dream you probably don't need to follow."

etc...

Is it really a surprise they are stooping to sueing people when their game suxs this badly??

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@ JonB

I don't recall having to pay for a right to distribute... I don't think Walmart pays xxxSoft $3000 for the _right_ to sell Space Monkey Pinball 4. Are you talking about breaking the EULA or something?

What is my comment worth? yeah..... -2 cents probably. Dream Pinball 3D?... probably about $10 + $400 (time, lawyers etc.) = $410 per case?

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ben

If only they had waited for the review

Disturbing as it may be, Dream Pinball 3D isn’t even worth a rental unless you’re some sort of diehard pinball fan. Even if you are, why the hell would you pay for this? There are better free pinball games out there. Even at a budget price, Dream Pinball feels like a ripoff. The interface is amatuer-ish. There are only six tables, and they’re basically identical (and identically bad). The themes are wacky, but they don’t justify the $20 price tag. I can’t even recommend it to those desperate for a pinball game. The Williams Collection that was recently released seems far better than this piece of shovelware.

The defence team should have let the jury play it.

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Flame

No-one on here heard of retailer margins...?

Why does everyone keep badgering on about how multiples of £9 are the appropriate compensation. That is the price a reseller is retailing at. The profit that the developer will receive from a sold unit is considerably less than that....

Anyway, besides that any moron who actually ignores a court summons in this way deserves to lose their cash, and in honesty, I think that a few £k is a pretty damn cheap getaway.

However, anyone who does get summoned to court should really hop along and ask just how their case can proceed when the evidence submitted to the court against them was illegally attained. Unless the police have a criminal investigation against an individual and have demanded information from the IP that they use, harvesting of IP addresses/information in this manner is a patent infringement on data protection, and doubtless human rights.

My defence would therefore take on the offensive position of counter-suing the logi-wankers and the ambulance-lawyers for colluding in an illegal activity that was set to defame my good name. This may or may not be backed up by a request to the plod that they be investigated for such actions.

Of course, this would develop into a paradox in which the police could then decide to legally attain your IP records, though how this could then be cross referenced against the illegally attained P2P logs, I don't know.... I'm not a lawyer.

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Bronze badge

Civil vs Criminal law...

I sometimes wonder about our education system. The number of people here who can't tell the difference between criminal and civil law...

Firstly this is not a criminal case - it's a civil case. Civil cases are essentially arguments between private individuals or other "legal entities" that sue each other under the law of the land for damages. Cases are decided on the balance of probability and the loser isn't "found guilty". They are generally found liable. There is no assumption of innocence until proven guilty as there is no guilty verdict. You just lose the case, albeit that it might be through breaking an explicit law (as with copyright) or possibly just causing loss to somebody accidentally. Civil cases cannot land you in prison (although failing to follow the court's rulings could). Damages and are decided on the basis of compensation to the injured party - unlike the US, the UK does not have a system of punitive damages.

The winners in this case would not have been entitled to received damages beyond the damage done to them. It doesn't matter if the product costs a penny or a thousand pounds, save that you'd have to prove the loss of a lot of penny sales. WIth nobody in court to challenge the basis of the damages, the method of calculation is, of course, untested. Note that this doesn't mean the judge has to agree to the damages - although they are likely to in this case. If the claim had been for a million pounds it would have been different. However, I'll guess that the level of damages requested was carefully judged by the plaintiffs to be a deterrent to others, but not so high as to warrant a defense given the loser would have to pay legal costs. That's quite a clever thing to do - it will have a few parents worried enough to start investigating what their kids are up to, not to mention those old enough to know better. However, it's not such a huge amount of money that it will attract massive adverse publicity or public sympathy.

Criminal cases are different - there is a presumption of innocence until proven guilty. That's something that is being eroded by this government by pseudo-judicial penalties being decided outside of the court system (e.g. barred from working in certain areas based on what might be deemed "intelligence" rather than a court verdict; in fact in some cases, despite a court verdict; but that's a different issue and that is where the slippery slope truly lies).

For the most part copyright is not a criminal matter, although this is changing (partly through EU changes, partly through US pressure). Engage in wholesale commercial exploitation of copyright material, faking of products and you could find yourself up against a criminal charge. However, I don't see many of those affecting private individuals. No doubt somebody at some point in the future will raise a legal challenge to this type of case, probably on the reliability of the evidence. Possibly somebody will start a fighting fund (although be warned, contribute a large sum of money to the legal costs to fight a civil case and you can be deemed as being one of those jointly and individually liable for any damages as you can be seen to be part of the defendant's side; it has happened).

Of course the civil law isn't fair - those with deep pockets can afford it better. Robert Maxwell essentially brow-beat any number of journalists by threatening legal action for libel. In general there is no legal aid for civil cases, and the costs can be hugely higher than criminal ones.

As far as the principle is concerned, well I don't have a great deal of sympathy for anybody who was genuinely and knowingly involved in this sort of thing. It's dealing with other's intellectual property that, in many case has cost a lot of effort and time. I have some sympathy with those who complain about rip-off prices, but I think that's more an issue for failure in competition law.

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