back to article Patent judge hits out at legal tactics used against file-sharers

A senior patent court judge has heavily criticised a law firm that pursued online file-sharers with threatening letters and then ditched its cases against 26 defendants. ACS:Law and its client Media CAT had fired off thousands of threatening legal missives to alleged illegal file-sharers, offering them the chance to pay a £495 …

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Wow, good judge.

Wow, a judge who has not had the wool pulled over his eyes due to technology and the demonizing of anything to do with copyright, where an allegation equals you did it.

All through this he has been very fair minded and shown ACS and the ilk for what they are. Will other judges be as fair for these kinds of cases. If they have good evidence against someone, then great, roll on the punishment. But maybe the IP address equals infringement and is as good as a DNA match, argument is being shown not to be enough anymore.....

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Re: Wow, good judge.

Finally a judge that sees the scams as they are.

Bogus copyright infringement cases skirt the boundaries of the law. Any company with a Dun & Bradstreet account can claim anyone, anywhere is guilty of copyright infringement and with manufactured evidence and no due process whatsoever, can threaten a person's credit rating via D&B unless the mark pays up.

It's an extension of the old "bill for paper & toner" scam that went around ten years ago. Corporate purchasing gets a bill in the mail for paper and/or toner they never bought. Purchasing sometimes blindly pays the bill. Copyright infringement scams take this up a notch with the real threat of credit rating damage.

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Fantastic...

...barring the fact that their dissolution probably protects them from being declared vexatious litigants or having to defray the costs of the people that they were effing over. Still, result, eh?

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awarding of costs

In the BBC's coverage of this case there have been comments from the Judge about assessing whether costs should be awarded against the partners of ACS Law. Going out of business first won't protect them unless they choose to go personally bankrupt.... obviously we know that they are morally bankrupt already.

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Go

Forced to continue (and reveal)!

The Beeb says the court is not allowing the firm to "drop the cases to avoid public scrutiny":

http://www.bbc.co.uk/news/technology-12396443

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Pint

Indeed...

Finally looks like the wheels are going wonky, if not starting to come off the 'Sue everyone for copyright infringment' bandwagon.

When the copyright holders are distancing themselves from the law firms, something has gone seriously right with the world!

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right...

now lets get every penny returned to those who caved in when acs started demanding money witn menaces...

plus interest

plus say, 50% uplift for 'buggerance'

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Huh?

Stupid people should be rewarded for their stupidity?

Surely any money going round should be handed to those who held their nerve and demanded they be taken to court, have the case proven against them, had to suffer the stress and strain of that - you never can tell which way a court will judge even when innocent. They were the ones who have ultimately brought theses shysters down.

Sorry, but if you 'plead guilty' to a crime you did not commit you have to take the consequences of that. Yes, they were placed in a 'plea bargaining' position - pay or go to court - but they decided which way they wanted to play it, decided which was the better option. You don't get to decide which way to bet when the dice have already fallen.

I do have some sympathy, but not a lot.

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Anonymous Coward

right? wrong?

"now lets get every penny returned to those who caved in when acs started demanding money witn menaces..."

That isn't how the law works. If you pay up you are admitting liability.

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WTF?

Fraud?

Unless of course it becomes apparent that you were - hypothetically - defrauded by a crook into paying him a fee that was not due?

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nuh huh

Don't equate stupidity with a lack of basic knowledge. The majority of the people that pay up immediately are those that simply aren't very knowledgeable, a large number of them of the opinion that copying a file via the internet is most definitely NOT akin to shoplifting. Those people, when suddenly confronted by an accusatory letter from a legal firm simply assume that the lawyers must be right, and generally speaking there's no reason for them to think otherwise (basic lawyer jokes aside).

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Big Brother

The title is required, and must contain letters and/or digits.

Ever heard of Nolo Contendere? It is not an admission of guilt, nor is paying a fine or penalty.

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speaking as...

one of the many who recieved one of these missives - from davenport lyons or some such (totally innocent of course, i mean could this face lie, etc etc etc)

I did have, as Conan Doyle one puit it "an evil five minutes" of considering the 500 squid now, with NO admission of guilt (please note), as opposed to a £15,000 award against me in court upon conviction, which they went to grat pains to point out they would easily win.

Then in the sixth minute I did some sums

and in the 7th to 350-odd-th minute did a bit of googling

and in the 350-odd plus1-th minute drafted my considered response

dear davenport lyons

go fuck yourself, me and the 17000 other defendants will see you in court.

that was 3 or 4 years ago, no response.

I was in a fortunate position:

I understood a bit about the tech.

I was able to research what was going on elswhere (the french equivalent of these highway men almost went to jail!")

I was able to work out that a 2 bit firm like the one that wrote to me would never in a month of sundays be sufficiently resourced to take even 10% of those cases to court.

And if they did, after the first 100 or so cases the judges would be gunning for them for wasting all their time.

Plus, and most importantly, if I was wrong in all the above and it went tits up I could pay the fine.

The poster child for these prosecutions was a single mother from brum i think, who panicked and failed to show at court and had a default judgement against her.

Sure she should have excersised more supervision about what her offspring were doing online, but not everyones priorities in life are the same as ours. We are all techeads here (exept the masochist mactards, who come here for a kicking) so to us using something ant not having some idea what goes on under the bonnet in anathema.

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WTF?

does this get him off the hook?

So he saw things weren't going his way, so he dropped the charges and folded his company. Nice tactic! Does that mean that he cannot be held liable? Can't the innocent victims sue him for harrassment and defamation of character? Sorry but I don't think I've seem him suffer anything like enough for what he has done here. I want to see an example here for any other two-bit organisation that thinks can use tactics like this for personal/corporate gain.

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Probably not harrassment . . .

. . . but I suspect they could make a case for attempting to obtain funds through deception, possibly racketeering, reasonable chance you could go for fraud. Pretty certain there will be an ambulance chaser or two that will smell blood and offer a pro bono case.

Theres also the chance that the law society could sue for bringing the organisation into disrepute (laughable I know, but we can but hope).

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No it doesn't

ACS:Law is not a limited company, so Andrew Crossley is personally liable.

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WEP

I'd be interested to know if someone could feign innocence and create reasonable doubt simply by being sloppy with their security. e.g. if they "secured" their wifi with WEP. Unless the premises were raided and equipment were seized, how are they going to prove it was you and not somebody else who pirated something?

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@DrXym

>>"Unless the premises were raided and equipment were seized, how are they going to prove it was you and not somebody else who pirated something?"

Quite.

Though I'd imagine that in a civil/criminal-action-based system, a rash of people claiming 'but someone must have been using my network!' would lead fairly swiftly to pressure for better evidence-gathering to separate the people claiming that honestly and those claiming it dishonestly.

A potential loophole isn't likely to be left open forever.

In a multiple-warning-based system I'd imagine that part of the function of the warnings would be to give innocent people an opportunity to secure their network.

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@ Fuzzy Wotnot...

Agree with you, but your second point relies on their actually being any aggrieved copyright holders behind any of this in the first place. The facts that Media CAT and ACS Law have effectively wound up operations at the same time, and that no actual copyright holders have been identified suggests that this is nothing but a fraud designed to scare people into paying out - rather than any real intention of ACS to proceed with these cases to court.

Hopefully the defence will pursue this rigorously and get to the bottom of the well in terms of truth.

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"Saccharin problem"

What is the "Saccharin problem"?

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Happy

Burden of Proof for Freetards?

Good riddance to ACS Law. This is very relevant to the Digital Economy Act, where real infringers will be under suspicion.

"The fact that someone may have infringed does not mean the particular named defendant has done so.” - the Judge.

No, but civil law doesn't require it to be "beyond reasonable doubt". A quick examination of the defendant's comic collection or porn habits should be enough to establish that they, are in fact, the infringing Freetard.

So don't get your hopes up, lads. If you do the crime, you have to do the time.

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However,

Wouldn the Digital Economy Act make such things a criminal offence, as opposed to a civil one? in this case, the burden of proof would be 'beyond reasonable doubt'.

Of course, I could be wrong here, IANAL, etc. etc.

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Digital Economy Act

I thought the Digital Economy Act removed the need to bother with all that tiresome legal wrangling, and that an accusation (or three) was all that was needed to have 'technical measures' taken against the internet connection used in the alleged offence.

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@Loyal Commenter

>>"Wouldn the Digital Economy Act make such things a criminal offence, as opposed to a civil one? in this case, the burden of proof would be 'beyond reasonable doubt'."

If a criminal offence was strongly suspected, wouldn't that make intrusive evidence-gathering somewhat easier for various people to argue for?

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Could it be ...

... that "AC" here actually stands for "Andrew Crossley"? I don't see many other people making that argument with that self-satisfied tone of voice.

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What about the data breach fine?

What about the fine? Are these lawyers still on the hook for the half a million pound fine for data security lapses?

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Anonymous Coward

Finally...

Someone in authority taking this travesty seriously rather than 'talking tough' and uncritically backing the so-called creative industries to the hilt. Some of the language Judge Birss used was pretty choice and I imagine Crossley must've felt his blood run cold. The real injustice is that this has gone on for so long, and that some of society's most vulnerable members have been singled out for bullying precisely because they are the least likely to fight back.

Unprincipled, parasitical bullying like this, greedy and backed by law has more place in the 18th century than the 21st, but it makes you wonder whether that's we're headed. I can only wish Crossley and his ilk every personal ill fortune life can deliver.

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Ding dong, the witch is dead ?

There's an ongoing debate on usenet (uk.legal) about this case. It seems the legal minded folks suspect that Mr Crossley could try the whole exercise again ... he really needs someone keeping an eye on him.

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Grenade

Dealing with Lawyers

I have found that sending the following, immediately by first class post, usually does the trick:-

Sir,

Your letter dated XXXX is to hand this day. I have noted its contents.

Yours faithfully,

This is lawyer speak "for go fuck yourself."

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I thought the correct response was

I refer you to the response made to the plaintiff in the case of Arkell vs Pressdram

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Happy

Judge smarter than police and CPS

"the process of linking copyright infringement to a named individual by pinpointing an IP address associated with that person was extremely problematic."

Finally!, a judge has worked out a key fact that still manages to elude most police forces and the CPS.

See the system does work (occasionaly)

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Media CAT wound up

'Media CAT wound up its operations and said it had “ceased trading”.'

MediaCAT (04426555) is still listed as 'active' at Companies House. No voluntary or involuntary liquidation has been filed. There is no notice in the London Gazette that they are going to be struck off.

Technically, that means they have not wound up or ceased trading at all.

See http://wck2.companieshouse.gov.uk/

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Ceased trading.

This could mean they have just gone dormant, there is nothing in the companies act that requires them to notify Companies House when they stop trading.

Also, if they are solvent then liquidation has nothing to do with this.

There is also nothing compelling them to close a limited company as long as they keep filing dormant accounts and annual returns with CH

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Happy

Encoraging

This, along with a number of interesting cases around the world, suggests that judges are finally getting up to grips with the Internet and IT in general.

Interesting times ahead methinks.

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@despairing citizen

>>"Finally!, a judge has worked out a key fact that still manages to elude most police forces and the CPS."

Do the police have systematic problems on that score?

Surely, in the case of criminal investigations, they just make an early morning call and collect the necessary evidence?

For anything significant, I'm sure they'd rather have the PC itself than some remote logs of what may or may not have been sent from it or received by it.

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Happy

Police have difficulties collecting "evidence"

"Do the police have systematic problems on that score?"

Yes, and a frequently raised topic at security conference debates.

Part of the problem is that our national police e-crime unit has a whole 20 officers, of which 2 are trained for computer crime, the rest are "knock on door" & interview types.

Other forces are shall I say "variable", one has an officer doing a PhD in a computer forensics field, through to, they "use a computer at home" level of training.

Computer crime doesn't get votes, hence the police do not get the budget to systematically train officers, etc. (expect things to get worse)

The good news is that some officers are interested in this aspect, and spend thier time and money to become experts in the relevant skills. The bad news is that once they are experts, they can earn multiples of a police officers pay in a comercial security job.

"Surely, in the case of criminal investigations, they just make an early morning call and collect the necessary evidence?

You need to tie the person to using the computer at the time the crime was committed, and then obtain evidence of the crime, even then you have to aviod the "trojan" defence. (i.e. the crime was done using a trojan on this computer to hide the details of the real criminal.)

E.g. If you have a house with 4 people in it, how do you prove who was using the computer?

Beyond reasonable doubt is a tough standard when applied to computer crime, but the police and CPS need to be doing better at collecting evidence and presenting the cases.

e.g. when asked a senior police thought deleting a corporate CRM system, and corrupting the backups was "criminal damage", the computer misuse act never even entered the conversation

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@despairing citizen

>>"You need to tie the person to using the computer at the time the crime was committed, and then obtain evidence of the crime, even then you have to aviod the "trojan" defence. (i.e. the crime was done using a trojan on this computer to hide the details of the real criminal.)"

Yet they seem to manage to get a fair number of people convicted for child porn possession despite the theoretical possibility of a trojan defence.

Surely, arguing there must have been a trojan must be a bit tricky if there was recent activity, but no signs of a recent actual trojan?

And that's assuming there was no obvious user action (filing things in some neat collection on the hard drive, records of accessing the stuff in one or other media viewer/player, etc.)

>>"E.g. If you have a house with 4 people in it, how do you prove who was using the computer?"

Wouldn't you generally have a pretty good idea from who the main user of the machine was, times of use, etc, whether the household was 4 adults house-sharing, or people still living with their parents, even *before* you started getting people pointing the finger at each other?

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Pint

Remember the name "Andrew Crossley,"

I *guarantee* he will be back.

Either on the letterhead of some company doing this or behind the scenes as some kind of "consultant" or "non-executive Director."

He's tasted easy money from a bulk mail operation (it would be libelous to call it a scam).

Put him on the list of just-this-side-of-the-law types whose businesses tend to run for a few years then shut down, next to the likes of "Geoff Stevens." He ran an operation promising SME's help to get UK government grants. Now he runs Harrison Black, which promises to help UK businesses lower their business rent.

Stevens was banned from being a UK company director for 11 years. Partnerships and sole traders are not regulated by companies house.

Glass because I'll drink to any judge who can look past the technology BS and see the real case.

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Clued-up judge

Certainly does sound like this judge knows his stuff. Do we have his age? Could have some bearing on it!

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His age ...

... was 45 as of last September (http://www.justice.gov.uk/rss/judicial-200910-075.htm).

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Joke

hope no-one thinks of this problem...

we have here a ruling that seems to imply that the owner of an internet capable system cannot be proven to be the guilty party for any (and therefore all) material that may (or may not) legitimately reside on their computer.

Is this only for copyrite material, or is it okay to start up my kiddiporn collection again?

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@AC

>>"we have here a ruling that seems to imply that the owner of an internet capable system cannot be proven to be the guilty party for any (and therefore all) material that may (or may not) legitimately reside on their computer."

The judgement seems to be mainly about linkage of a supposedly/suspectedly? infringing IP to a person's actions, rather than liability for things actually found to be on a PC.

In /criminal/ cases, there was nothing to stop defence lawyers in the past arguing that the owner of a machine wasn't responsible for what was on it, whether as a result of an abuse of trust by a third party or some nefarious hacking by persons unknown, if they thought that stood a chance of being believed.

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AC

"is this only for copyrite material, or is it okay to start up my kiddiporn collection again?"

The correct answer is your despicable collection remains illegal and its possession a strict liability offense.

You should therefor find some gullible person who is completely clueless on internet security and set up a private server of your vile material for your continued "enjoyment" on one of their machines, you sick pervert.

I think there's an MP in Devizes who will suit your needs perfectly.

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@ replies to ac (kiddiporn)

Cheers peeps - sad to see the 'joke icon' was overlooked

(need i add <sarcasm> to my posts too)?

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FAIL

Some things just aren't funny

No matter how you signpost them

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