Default judgement FAIL: ACS:Law muffs up in court ACS:Law, the much-criticised scaremongering law firm, is famous for firing out thousands of threatening letters to alleged file sharers. The firm has previously tried to squeeze settlements out of accused people rather than going to trial. But this week it did actually try to take eight cases to court – but all were dismissed by …
linsey dawn mckenzie films? they're trying to sue people for downloading linsey dawn mckenzie films?? they should bloody pay them not sue them...
deary me...who the fuck downloads linsey dawn mckenzie films??
i'm gonna check some out later for shits and giggles. quite likely to be the least sexy thing on the net.
As someone who has to deal with the courts, I have some sympathy for them on the points relating to service and filing of the defences. It simply isn't the fault of the litigant (no matter what you think of his case) if the court hasn't done its job properly by serving the claim, properly recording the fact and sending out the filed defences to the claimant.
On the other hand, there is really little excuse for the pleading errors and the pretty obvious failures to follow procedure on the judgment requests. These are things litigators deal with on a daily basis, and they shouldn't be getting them wrong.
"he said it was uncertain that the owner of an unsecured Wi-Fi connection could be held responsible for any copyright infringement that might take place over that connection"
So I conclude that if one were engaging in illegal filesharing it would be better to leave one's Wi-Fi connection unsecured.
>>"Secondly, he said it was uncertain that the owner of an unsecured Wi-Fi connection could be held responsible for any copyright infringement that might take place over that connection."
That would always seem likely to be a tricky issue, especially if someone hasn't had prior warnings that something dodgy may be being done with their network.
In fact, that'd be the case whether the network was supposedly secured or not, given the limited security of some secured networks, and the fact that it'd be difficult to prove at a later date whether a network was actually secured at some earlier time.
Any sensible system would have some process for giving warnings before taking serious action, to protect the innocent and give them a chance to check their security, and to give other people a chance to stop and think.
I wondered about BT FON after a previous article on filesharing, so I connected to my own wireless router via FON and checked the internet IP address.
It looks like the FON connection has a different IP and subnet from LAN connections. Presumably, since the FON connection uses an authenticated BT account, you could be traced even if you fileshare via FON.
I can't believe I'm posting a reply which could be read as defending ACS:Law, but.....
maybe, just maybe, the case WAS given to the office junior/bitch boy, and wasn't handled personally by the senior partner.
Sesame Street - brought to you today by the letter P and the numbers 4 and 5.
Well done by everyone involved in pushing these cases back to ensure they are properly tried (or better still, dropped).
(but now having thought about it, the Senior partner was the one who complained how it was more inconvenient queueing for coffee in the morning. Right before 4Chan took him out. FAIL)
you missed some good lines:
"The requests for judgment should never have been filed."
"In this case .. there is no record to indicate that the claim form has been served"
"in three others there is simply no evidence proceedings have been served"
"I should end by recording that I am not sorry to have reached the conclusion I have in refusing all the requests for default judgment."
and an interesting last statement:
"Peer to peer file sharing which involves copyright infringement is an important and serious matter and claimants with a proper claim are entitled to use the full machinery of the courts to enforce their rights. Default judgment is an important part of the court's armoury in order to ensure that defendants engage with the legal process properly but it would not be a significant burden on claimants in cases like these to be required to use the part 23 procedure in all such cases."
In other words, stop trying to short-circuit the legal process and do things the lazy way. There is a way for you to do this; this is not it, and by trying it this way you're telling me you're as well-trained a lawyer as that Double Cheeseburger over there. Apologies to the Double Cheeseburger for the insulting comparison; at least it isn't a useless parasite.
I especially liked this bit: "It will be apparent that the claim has a number of unusual features, leaving aside the nature of the films themselves:" - a judge with a sense of humour! :-)
But seriously, as a lay person whom has actually taken someone to court myself, and won, the procedures aren't THAT difficult, and HMCS provide plenty of helpful and clearly written guides to assist. I'd have thought even the most junior solicitor would have been able to cope.
"The Particulars of Claim goes on to plead that the Work "embodies sound recordings, films, broadcasts or cable programmes" and gives the relevant British Board of Film Classification certificate number. A copy of the Work is available for inspection from the claimant's solicitors."
Now, I'm positive that I wouldn't get this through on expenses, but this strikes me as an ideal time to demand to see said work as a matter of public record. In their offices. With the volume up high. Preferably whilst they're meeting clients
Judges might often be considered out of touch with the man in the street but one thing for sure is they usually won't let 'scam artists who try to play the system' get their way.
I've sat in civil cases where the judge has pretty much taken a four-by-four to claimants and this must have been a gem to see. The judgement may not carry precedent weight but it is clear that the courts and Judges know all about these cases and the reputation of ACS:Law must be in the gutter.
ACS:Law seems to be behaving no different to any number of Debt Collection Agencies who terrorise their clients while relying on their lack of legal knowledge and fear to extort money from them where there is no case to be found. The courts are well familiar with the tactics and don't usually let them get away with it.
In this case the Judge has sent a clear message of valid defence to everyone facing charges; "Allowing" is not "authorising", and that message will go round the court circuit. That may not be upheld if pursued in higher courts but it's a clear signal that ACS:Law likely doesn't have a leg to stand on and all defendants may have a legitimate defence.
I'll raise a glass to the Honourable Judge.
So does that mean me running Fon on on my Wifi gives me an excuse? Although I'd imagine BT know what times people are using it but the complication is probably enough to make for a convincing defense to the likes of ACS.
Then again I'm not daft enuff to use torrents anyway... There are many other ways to download illegal files if you really want to that are pretty untraceable, this P2P purge is only going to hit the non-technical out there.
Glad to hear ACS failed big time, couldn't happen to a nicer bunch.
About time we saw some common sense here. The analogy I like to use is a car - if someone nicks your car and uses it to commit a crime, there is just no way you should be held responsible for that crime. Even if you left the door of your car open and the keys in the ignition. It might be a stupid thing to do, but you're NOT RESPONSIBLE FOR THE ACTIONS OF OTHER PEOPLE!
Score 1 for common sense
before these clowns either find one who isn't, or corner the court into accepting the petitions.
Essentially the judge took a look at the claim and decided this wasn't the right place for it. It had little (or nothing) to do with what was or wasn't filled out properly -- he used that as an excuse to toss the cases.
The next step here will be when one of these goes through -- and sooner or later, one will. Then we'll see what happens...
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