25,000 letters at £300 a pop = £7.5m
Trebles all round!
The copyright ambulance-chasers at Davenport Lyons have a High Court order demanding 25,000 UK ISP subscribers' names and addresses, it emerged today. Davenport Lyons will send letters to the addresses it obtains demanding £300 to avoid a potentially costly court battle. The London law firm hit headlines on Tuesday when it …
Trebles all round!
demanding money with menaces illegal? Can these victims' of Davenport Lyons suspect practices not counter sue?
Ah, this is the UK and the new order in this country is that one is guilty until proven innocent, so I guess not.
Hmm, sounds like a new business model – make a crappy game, ensure it is self contained and easy to copy, then assign a mid-level price to it. Wait for file sharers to put said crappy game on P2P networks, let it get copied for a year or so, then sue everyone involved for “lost revenue”. Never mind that almost no one would pay good money for your POS game – it has a price point and a number of copies – so you can calculate “actual” damages. Throw in some punitive damages and even a real dog of a game can turn a profit.
“A lawyer with his briefcase can steal more than a hundred men with guns.” Don Corleone, The Godfather.
A German court recently ruled that ISP should not release identities corresponding to IP addresses unless it was to the police or similar authorities for a criminal investigation. Their reasoning was that, as the EU had ruled that a citizen's IP address could be considered as personal information, the ISPs would be in breach of data prtoection law if they gave such information to third parties without the permission of the citizen/user concerned.
I am a bit puzzled how German and UK courts end up with such different decisions, given they are apparently working with the same European Rights charter and EU rulings.
It was no accident that Robert de Niro was cast as a law firm CEO in that movie with Mr Wooden actor in it...what was it? Oh Yeah, the Devil's advocate! They make a mockery of what they claim to represent in order to turn a 6 figure sum and corrupt everything they touch. What about the data protection act? Also they are snooping on potentially innocent people...what if some granny got snooped/zombied or her grandson did it once? Will Mssrs Snatch and Pilfer apologise? What will they do with the data of those not proven guilty?
This is a slippery slope and I wanna get off now!
What to do if you receive a £300 demand from Davenport Lyons?
What follows is not legal advice. I am posting anonymously and I am pretty sure the Register is not endorsing it.
First: if you really have been doing a lot of file-sharing of copyright material – pay up and learn from the experience.
But if you haven’t, you may want to consider this:
Reply to the letter, do not ignore but simply say: “Please prove you client’s alleged loss”.
You are doing several things: by engaging with the solicitor you are preventing them from going to formal litigation until they can show the court they have exhausted reasonable attempts at settlement.
You are not admitting anything.
The claimant (ie Davenport Lyons’ client) now has to show several things. First they have to demonstrate that an IP address associated with you appears to have been file-sharing. (They will almost certainly be able to do so). Second, and this is much more difficult for them, they have to demonstrate how many copies of the copyrighted item was actually taken away from you by third parties. Third, they have to prove their actual loss per copy – this is of course not the retail price but what they get from their wholesaler, less the unit cost of manufacturing the physical item. Fourth, they have to prove that each downloaded copy represents an actual sale from which they would otherwise have received income. Fifth, if it is being suggested that a copy downloaded from you by one other person could then be further shared and downloaded by others, the claimant has to prove the extent of this – not guess, but prove.
This is a civil matter so proof is on the balance of probabilities.
The problem for the lawyer and the claimant is that proving all the above could be very expensive.
The solicitor could attempt to require disclosure from you of your computer so that it can be forensically examined. The solicitor’s client has to bear the cost of this, including any inconvenience to you, until he “wins” the case. You can argue that full disclosure of a computer for forensic examination may exceed their reasonable needs in the case and violates your privacy rights by virtue of giving them access to information which is personally sensitive (your bank passwords??).
A claimant is under an obligation to keep costs proportionate to the sum in dispute, otherwise the court won’t allow the costs. (Civil Procedure Rule 1). In practice this means that, on receipt of your letter, the lawyer and client have to do a risk analysis – do they think they will be able to prove losses to a scale sufficient to justify the expense involved.
If you follow this line or anything like it, you will need to be robust and focused.
Note: I don’t file share copyright material, I am not even interested in computer games, but I don’t like bullies.
Why not, for example, customers of virgin media- I would have thought that out of 25000 people illegally downloading, some will have been from virgin? Should the companies named in the order be avoided like the plague now?
One of Davenport Lyons' ambulance chasers was interviewed on Channel Four News yesterday lunchtime. Krishnan Guru-Murthy asked him about unsecured (wireless) networks & how they could prove any wrongdoings. The guy basically said "if you tell us someone else might have had access to your network we won't pursue you"! Remarkable thing for him to admit, I thought
In cash. Loads of 1p, 2p, 5p, and maybe a few 10p coins in one big mixed bag.
£100/hr lawyer can count it, don't worry. I've got the time and I'm sure your client has the money.
the judge should have made them fill out an application for each IP address... not a job lot.
The High Court of England & Wales has no jurisdiction over subscribers in Scotland... we await the application to the Court of Session, which - on the basis that an IP address can't do any wrong, only humans - will toss this action on the scrap heap, with a bit of luck...
The idea that the subscriber is liable in (Scots) law to a litigious third party, with not a shred of evidence that the individual concerned is responsible, should get short shrift....
Can we have list of IP addresses please? Would be fun to search for friends and our own ones. Not that I play *ANY* games, as most of them are shite anyway!
Although I'm waiting for Fallout 3. Sad, I'll need to upgrade my hardware and downgrade my software to Windows...
“A lawyer with his briefcase can steal more than a hundred men with guns.”
Wasn't that Tom Hagen?
Mine is the one with the marionette controls sticking out of the pocket.
1. Shouldn't the Data Protection Act prevent disclosure of identity?
2. Nobody 'Forces' file-sharers to share files. Those that do so should expect to be clobbered.
3. Notice that the Legal eagles make 66% more than the game's Publisher.
with corrupted judges and courts laws. a log file, a bunch of RANDOM IP address is no proof of any wrong doing.
Shady company that collect more in FEE then what the defendent get should not be take seriously by any non-corrupted court of law
companies who illegally break and enter on personal computers should be force to shutdown and they onwer jailled.
Any proofs obtained illegally (such as taping soneone internet connection by someone who is not a LAW enforcement officers (with a court order)) is not admissible in court.
in short the only reason 25,000 peoplkes will be victime of extersion because the UK justice system is corrupted by shady law firm and no longuer serve it's citizens
how much money did that judge get to ruines the lifes of 25,000 peoples?
>demanding money with menaces illegal?
Not when the threat is one of legal action.
The costs associated with these cases are ludicrously high. There must be some mechanism for controlling the legal expenses people claim?
Pirates killed that machine, way before the internet
£300 strikes me as a firm clip around the ears, the alternative, to do nothing will possible make games slowly disappear
Me? I use steam and maybe play.com
Be interesting (although probably not possible) to determine who first put said game onto the p2p network in the first place. They stand to make a lot more money by abusing copyright law than by creating a good product in the first place.
Of course, can they prove that the IP address is associated to an individual? Or is it automatically "guilty by association" for the owner of that IP now?
Was hoping that the british courts would have a more realistic take on this compared to the USA but obviously our judicial system is the same easily manipulated crock as the US one is
As Adnim so eloquently put it "Ah, this is the UK and the new order in this country is that one is guilty until proven innocent, so I guess not."
So sad but so very true :(
Although it seems a little excessive to try for 25,000 people in this round, people should be more responsible with their concept of 'fair use' or 'try before you buy'.
File-sharers (of the illegal variety) re-examine your excuses and grow up a bit.
I thought it was interesting that the pinball game was priced below 10 quid and sold 750 copies and was shared to an alleged 12,000 people.
However you count those 12000 people (i.e. as 100% lost sales or something more reasonable such as 50% lost sales and 50% people who would not have bought it at any price),.. it is still a major loss to the developers.
Most games developers are not like EA they are small and made or broken on one game.
Maybe courts and lawyers are not the way to go, but if no-one pays for stuff then no-one will make it, simple.
Yes, I believe they can counter-sue at which point they commit to fighting in court and if DL win about 1 in 3 they still probably break even.
"In possibly related news, customers of Be Unlimited, BT, Easynet (Sky), Entanet, KCom (Karoo and Eclipse) Orange, Plusnet, Thus (Demon) and Tiscali were all fingered for filesharing in an application for personal details granted by the High Court on 30 June. IP addresses were seen participating in peer-to-peer networks sharing copyright material."
so... anyone using a p2p app would have their details passed on? or is this only for those who the court supplied ip addresses of, or who actually shared the game? Considering there are legitimate uses of p2p, the article isn't very clear over what they were asked for and how, though this may not be fully known....
... Hopefully we'll have 25,000 people all writing back pointing out the fantastic built-in security that Wi-Fi offers...
... Or wait until you go to court and download the game (which shifted a staggering 800 copies in 2 weeks... Halo 3 it ain't...) through the courts Wi-Fi (after performing a staggeringly complex WEP crack </sarcasm>) and explain to the judge that he should expect a letter himself in the coming months...
So the copyright holders provide no substantial evidence of losses, the lawyers benefit from an effective class action-type economy of scale in getting names from the ISPs (without the people whose private information is being disclosed being notified), and then the lawyers will threaten expensive legal action if £300 is not paid by each of them, without having provided any watertight evidence... most IP addresses not being used by a single machine, but re-used, many households having multiple people sharing one net connection, potential illicit use of the network not having been ruled out, and the presence of the file being listed on a p2p site providing little proof of any loss to the company... where can I get some of this action, it sounds like the kind of thing that the Crays would have been muscling in on, yet instead of cracking down on the use of minimal evidence and threats to secure easy money, the government is supporting these leeches by talking about increasing the penalty.
Note that I am a developer, and have some vested interest in works not being universally pirated, but recognise that free sharing doesn't significantly reduce the funds an individual has available for recreation, so the likely damage from any such piracy may be very different to commercial copying and sale - it's far more akin to sharing mix tapes in the playground (as I'm sure many of my age remember as something that was technically illegal but not prosecuted or overly worried about).
As if the credit crunch wasn't hitting households enough, without tens of thousands of households being slapped for another £300 by lawyers because their son (or daughter) download a copy of a game when their parents had to withdraw their pocket money to pay for food. Of course, that's slightly exaggerating things, but there is the serious question of how many people will find precarious finances tipped over the edge by greedy lawyers?
I do hope Davenport Lyons have thoroughly checked their computers for unlicenced software. After all anything found on their network must have been put their by them and not some some hacker who's found a weakness in their network security...
I had my life ruined by a judge who refused to acknowledge written evidence, an expert witness report that he'd ordered (costing £10,000), two witnesses for the claimant lying on oath (contradicted by their own written records) and forged evidence presented by the claimant (which they actually admitted doing at the trial).
As far as the above posters comments on Civil Procedure Rules, this judge said they were irrelevant and also this was his courtroom and there was no place in it for litigants in person. The costs in this case amounted to 6 times the amount claimed or in real terms £75,0000.
In our wonderful court system you are now guilty unless you can prove your innocence. You cannot bring a complaint against a Judge's actions or judgement unless you are prepared to waste another £100,000 on going to the court of appeal and then well... they ain't going to rule against one of their own.
Anyone can file a case like this based on the flimsiest of concocted evidence and you're on a hiding to nothing if you defend it.
if everyone who gets the "fine" sends in the £300 in unsorted 1p pieces
Is there any info about the prosecuted???
How do we know that the prosecuted person is not one of their undercover operators and the case has gone to the courts just to set a sample case to scare anyone else and make sure they pay-up the £300.
What if you get one of these letters and have nothing to do with downloading. I recently was sent a charming e-mail from Pipex informing me that I had downloaded something from the Learning Channel on a P2P network I had never heard of let alone used. I sent a reply to them stating as such and informing them that if they pursued the matter I would take legal action against them for their libellous claim.
It has been months now and surprise surprise no reply from them.
actually it was Pacino in Devils Advocate :D
Paris, because shes good with films :)
what happens when you request to see the evidcence? and ask for the fact that much of the data they claim you 'shared' must have been in the case already covered? and hence they have already been paid for it?
would claiming again count as unjust enrichment?
They just need to claim that they had a WiFi router on their network and it was not secured - they have no idea who used their Internet connection.
I wonder how many will think of that or just admit guilt by paying the 300 quid,
as £300 in *sorted* 1p pieces?
That would be Al Pacino, not Robert DeNiro
the legal system in this country is SCREWED. for many years we've been brought up with this colonial notion of our legal system being the best in the world. well it sucks. gawd help the rest of the world.
after having been involved in a legal battle over my mother's estate i learnt a lot of things.
#1 solicitors and (expensive) barristers may think your circuit judges are incompetent or insane but are powerless to do anything about it.
#2 the legal aid system, although whinging about being short of cash DOES NOT PROSECUTE in cases where it has been defrauded. Doesn't even ask for its money back. We proved the litigant in our case lied to obtain aid, and he fucking well got away with it.
#3 no provision is made to say that if you were to proceed to court even with a flimsy claim, you'd have to have enough money to pay the other side's costs should you loose. this is a speculative litigant's dream. if you've got fuck all, you can't really go lower so take the chance that the incompent/insane judge may side with you. the legal aid system you have defrauded has paid for most of the discovery phase. what have you got to loose?
#4 adverts/people that tell you about making a will and how it means you can dispose of your assests how you like are charlatans and need to be themselves sued into oblivion. if my mother's solicitor wasn't a friend of the family that's what I would do. there are many ways of challenging a will and to not make them clear to a punter is in my mind, criminal.
and @bloke talking about paying in 1ps, you need to look up the term legal tender.
Check the definition of legal tender
If you send in 1p coins without their prior agreement they can refuse to accept it and still legally chase you for non payment (and iven you have attempted to pay you will have already accepted liability).
Also to the moderators the post:
By Anonymous Coward
Posted Wednesday 20th August 2008 18:39 GMT
really should have not passed even the most rudimentary moderation by any moderator who can actually read.
I am sure what DL is doing is illegal and an infringment of human rights, I will be pursuing this abgle with a human rights lawyer in the next week.
On receiving a letter reply. Any correspondence should contain as much waffle as possible. On behalf of their client they have to read everything - and charge them for it.
If they got a number on the letter they send you call them up and ask them to explain it to you perhaps a few times over. They'll probably tell you to seek the advice of a solicitor anyway but 25,000 5 min calls can add up. Speak in a foreign language if possible.
Tell them you'll pay, send them a cheque, incorrectly dated, not signed, etc... when they send it back to you, say you've sort legal advice and changed your mind.
Let it go to court, turn up and let them go through the evidence bit by bit.
once they 'proved' it was your broadband connection. In your defense, the last thing you mention is that you have an unsecured wireless network.
mine's the one with the round tin glasses and walking stick.
To everyone bleating about privacy and the decline of human rights....Of course your ISP cant give out personal details to 'anyone', but with a court order its a different story. The court order is granted on the basis that people appear to have commited a crime here - and yes despite your whinging and bleating copyright infringement is still a crime.
The ISP will likely charge them a fee for each IP they look up, as it can be a time consuming and costly business, restoring historical records, matching a username to an ip/time/time zone and then looking up the users details, doubly so if you have wholesale providers, and downstream providers - the former only having a username, and so has to request that the court seeks further info from the downstream provider.
Once they have this info, they send you a letter, and 'Not Legal Advice' is bang on the money with a good strategy, especially when he/she says
"if you really have been doing a lot of file-sharing of copyright material – pay up and learn from the experience."
The "But my network/wifi is insecure anyone could have downloaded these files" defence is going to mean you have to have to go to court and will almost certanly loose. Precidents have already been set around this sort of argument both in the UK and overseas, (the cheerleader defence springs to mind) and unless you own a web cafe (and are permited to onsell your service by your ISP) you are going to fall way short here and end up paying a lot more.
This has been a long time coming, and was entirely predictable given what has been going on in the US. I expect Australia to be the next.
What exactly is the evidence which is provided in such a court case by the plaintiff?
Don't they have to have some evidence that you have done what they say - a seized hard drive or something?
Otherwise, I'm sure I could come up with a lot of random IP addresses and a bit of software I wrote...
Pirates, the lot of them
You're wrong about the unsecured Wi-Fi defense. Given that: they all come unsecured out of the box; securing them is not mandatory in order to connect; your average user probably couldn't anyway (or couldn't give a toss - it's not illegal just yet); and WEP is insecure anyhow; it is a very valid defense.
Ignorance of the law is not an excuse, ignorance of technology is commonplace.
In order to sue you they have to prove on the balance of probabilities that it was you.
Additionally, if you are going to download such material, use some common sense and download in a VM or live disk and they're fucked if they can't find the media you wrote it to - which you'll naturally get rid of when approached.
These parasites are working on the balance of probabilities - i.e. the ones which state a large percentage will shit themselves and pay up - as it has nothing whatsoever to do with having a strong case, legal precedent or otherwise.
I had a ZX Spectrum and swapped hundreds of copied game tapes copies with my friends.
I then had an Atari ST, but was never able to successfully copy game disks and never had access to 'pirated' games.
I owned each of those machines for an equal period. Yet, in during ownership I bought roughly the same number of games for each machine (about 2 dozen for the Spectrum, slightly less for the ST).
So, how does that FACT fit in with the theory that all copies equal a lost sale? Tell me!
What amazes and disgusts me is that a court would order
1. question. Such disclosure shall be in an editable electronic text format by way of Microsoft Excel file in the form submitted by the Applicant to the Respondents.
the disclosure in (WTF else is meant by "by way of") a specific - commercial - file format, rather than in plain readable text or at least something open like ermm. Open Office.
That ought to be illegal!
New Headlines: "Courts order use of Microsoft products", "Courts ban use of Linux", "Courts ban plain English".
How about sending 161 cheques for differing amounts which adds up to £300.01?
"....copyright infringement is still a crime."
No it isn't - it is a civil matter i.e. "Litigant versus Some Guy", not "Police arrest Some Guy" followed by "The Crown versus Some Guy."
The courts in this sceptred isle have NEVER used plain English.
Why, I hear you ask?
If they did use plain English, then even the most simple-minded man in the street would have sufficient grasp of the legal processes and terminologies and the need for expensive solicitors, barristers et al would be removed almost entirely, and their well paid, cushy little niche would only be open to the few required in the most complex of cases!
Vested interest my friend.
My machine is seeding NeoOffice (The Mac port of OpenOffice) over Bit Torrent pretty much 24/7 (I'm lucky enough to have a 2Mbit upload band).
I'm just waiting to be mistakenly targetted by one of these letters, based on my (static) IP address appearing on some tracker somewhere.
Its unnerving to know that in this age of so called democracy that you have money in order to defend yourself...
This is not legal advice – I am not a lawyer and this is just my opinion which may be wrong but it is worth investigating. If you are accused, get a good solicitor and barrister.
"...as the EU had ruled that a citizen's IP address could be considered as personal information, the ISPs would be in breach of data protection law if they gave such information to third parties without the permission of the citizen/user concerned."
In the UK the Data Protection Act 1998 exists to protect the personal information of individuals. This corresponds to the EU Directive. There are, however, exemptions to this Act and one of them (S35) allows for the release of personal information in support of legal action even if the organisation itself is not involved in the proceedings. The organisation can refuse but seeing as DL got a court order, it may mean that they tried that route already. Also, exemptions mean that the data controller i.e. the one holding the personal info is exempt from the non-disclosure provisions so the first you hear of it is when you get the demand.
My concern is that to prove someone is file-sharing, DL are getting the IP addresses. I’m not a techie so this might be wrong but I assume that, in order to prove the filesharing, they have to examine the user’s browser history which will turn up their other interests. These aren’t part of the court case so this is still protected. Basically it seems like a fishing expedition which is illegal. If you get such a demand, demand in return , as part of disclosure, how they established you were sharing because if it shows they visited other sites you could counter-claim that they breached your DPA rights. You could claim the evidence is inadmissible as it was obtained illegally.
Also, as the IP address covers the one connection and others, including your family, are using at the same time, they would have to avoid digging into their history and they should be named in the court order otherwise it would breach their own DPA rights. All living individuals are covered by the Act so this covers the children as well as the parents. They could make a claim about their rights being broken. This might not stop a court case but, because they have to deal with all the issues, this could tie them up in knots and could at least throw doubt into the mix.
If you’re unsure about how the DPA protects you, go to the Information Commissioner’s site – www.ico.gov.uk – and there is good advice there.
"Check the definition of legal tender
If you send in 1p coins without their prior agreement they can refuse to accept it and still legally chase you for non payment (and iven you have attempted to pay you will have already accepted liability)."
Quite, and indeed pretty much any court in the land will throw your ass in prison for contempt for even trying something so stupid.
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