Sharing Bullies

Speculative invoicing might be returning to the UK, thanks to a High Court judgment last week. The practice, all but abandoned in the UK in the wake of the ACS:Law fiasco, has restarted but with conditions. Meanwhile, over 9,000 people could get letters from the plaintiff, Ben Dover.

The UK's High Court approved a case involving UK pornographer Ben Dover (Stephen Honey) and his company Golden Eye International.

Now, ISP O2 will have to release the details of up to 9000+ subscribers listed in the document for Dover and Golden Eye. The precise number is unclear, as other companies that attempted to send letters through Golden Eye were denied the opportunity.

Despite a strong defense, including pointing out all the issues with these kinds of actions, Weingarten approved the order, but with conditions.

In perhaps a first for this sort of litigation, the court will be supervising the content of letters sent out to the alleged infringers, partly because of the ACS:law debacle.

The following points from the ruling should address some of the unfairness from previous schemes:

1. Fair letters to alleged infringers

The new ruling means that letters sent by copyright-owners or their representatives will have to properly safeguard the legitimate interests of consumers, in particular those who are innocent of wrong-doing. The Judge found that the draft letters Golden Eye proposed were objectionable in a number of respects in a number of ways, including the claim that an application could be made to the ISP to disconnect the users' internet account.

The judge also agree that the proposed demand for £ 700 from alleged infringers is unsupportable .

This should significantly restrict the ability of such companies to send out intimidating pay now -- or else letters in the future, such as those seen in the high profile case of ACS Law. In a separate hearing soon, the High Court will impose conditions on the wording of the letters.

2. Standards of evidence

One of the biggest concerns about the pursuit of alleged infringers is the proof required against them. IP addresses can be a fallible way of identifying a subscriber, because there can be errors not only in matching IP addresses to the user, but also because identifying a subscriber does not mean you have identified an infringer.

The judgment highlights the need for Ofcom to check that allegations of copyright infringement under the DEA by copyright owners (in the for of copyright infringement reports ) is supported by reasonable and robust evidence that there may have been copyright infringement on that connection. Ofcom need to set a strong standard of evidence in the forthcoming Initial Obligations Code, and make provisions on the means of obtaining evidence.

Who defends the publics' interests?

In this case, the court asked Consumer Focus to act on behalf of the consumers who would be affected by the release of the data - which saw the request examined and led to the detail of the examination. They've done a fantastic job and deserve much credit.

But there's one final point to mention. We can't expect Consumer Focus to do this each time a case comes before the court simply because ISPs don't want to spend time and money ensuring their customers' details aren't handed out too freely.

When ISPs receive these applications in future, we should expect that they check that the application is supported by evidence and that the evidence justifies the order sought.

...Read the full articles at:

See  article from  torrentfreak.com
See  article from  openrightsgroup.org

Two lawyers who were responsible for the introduction of so-called Speculative Invoicing into the UK, have both been found guilty of professional misconduct by a tribunal. Among other charges, the Solicitors Disciplinary Tribunal found that the pair from law firm Davenport Lyons knowingly targeted innocent people.

The two solicitors from law firm Davenport Lyons sent letters to thousands of individuals alleged to have carried out unlawful file-sharing, a story first broken on TorrentFreak.

The letters sent out by David Gore and former partner Brian Miller claimed that evidence showed that the letter recipient was guilty of copyright infringement and demanded around ?500 in compensation to make highly expensive legal action go away.

However, the highly controversial scheme was drawn to the attention of the Solicitors Regulatory Authority (SRA) by consumer magazine Which? when it became clear that the letters, which made some baseless and outlandish claims, were targeting innocent people and were bullying in nature.

The subsequent SRA investigation found that Gore and Miller knowingly targeted innocent people, failed to act in the best interests of clients and acted in a way likely to diminish trust in the legal profession.

The hearing ended with the Solicitors Disciplinary Tribunal finding both Gore and Miller guilty of professional misconduct on all six counts presented. The fate of the pair, which could range from monetary penalties to being disbarred, will be announced next month.

Hot on the heels of the recent announcement in court that ACS:Law will stop chasing alleged file-sharers, comes an even more dramatic development. According to a document seen by TorrentFreak, both ACS:Law and their copyright troll client MediaCAT have just completely shut down their businesses. The news comes just days before a senior judge is due to hand down a ruling on the pair's activities.

According to a copy of a document obtained by TorrentFreak, which appears to have been sent out by Crossley during the last week, ACS:Law have not only stopped all file-sharing related work as previously reported, but actually shut down completely 31st January 2011. Furthermore, the document adds that ACS:Law's only remaining speculative invoicing client -- MediaCAT -- has also ceased trading.

Ahead of Judge Birss' judgement due on Tuesday, it would seem to some that Mr Crossley and Mr Bowden are attempting to avoid not just 'judicial scrutiny' but financial responsibility for the flawed claims that they foolishly decided to issue, consumer group BeingThreatened told TorrentFreak on hearing the news: They perhaps hoped that they might gain a judgement which they could use to threaten future letter recipients, instead their greed has led to the exposure of the significant and manifold flaws in the legal and evidential basis of the speculative invoicing scheme they employed.

...Read the full article

Offsite: Another dressing down

9th February 2011. See  article from  torrentfreak.com

The Patents Country Court began yet another hearing to announce how more than two dozen previously filed cases should be handled. Judge Birss QC slammed the scheme operated by the pair and denied them the opportunity to drop the cases.

The court decided that ACS:Law would not be allowed to drop the 26 cases against alleged file-sharers, an answer to one of the key questions from the earlier hearing. While the copyright holders are being given 14 days to join the action, it is doubtful they will. If this happens, all MediaCAT cases against these defendants will be dismissed in March.

Yet again ACS:Law and client MediaCAT were heavily criticized, with the Judge reiterating that both companies have a very real interest in avoiding public scrutiny because of the revenue they generated from wholesale letter writing.

Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court, said the Judge. Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?

...Read the full article

Update: Lawyer suspended

21st January 2012. See  article from  torrentfreak.com  

Lawyer Andrew Crossley from the now defunct ACS:Law faced the Solicitors Disciplinary Tribunal over his disastrous foray into speculative invoicing -- the chasing down of alleged file-sharers with the sole aim of receiving cash settlements. In a surprising turn-around from previous displays of bravado, Crossley contested only one of the seven charges against him. The Tribunal suspended him from acting as a lawyer for 2 years.

In the High Court, UK ISPs BT and Plusnet have refused to hand over subscriber data to lawyers acting for independent record label, Ministry of Sound.

Their objections followed the catastrophic subscriber data leak from ACS:Law.

Lawyers Gallant Macmillan hoped that the Court would order the ISPs to hand over the identities of hundreds of alleged filesharers so that Ministry of Sound can prise a cash settlement out of them.

However, in contrast to their earlier stances, BT and and their subsidiary Plusnet refused to cooperate. Chief Master Winegarten, who hears most if not all of these types of cases in the UK, granted BT's request for an adjournment of the hearing.

In a statement, Plusnet's COO Richard Fletcher wrote: The incident involving the ACS:Law data leak has further damaged people's confidence in the current process.

We're pleased that the court has agreed to an adjournment so that our concerns can be examined by the court, this will then act as a precedent/test case for the future.

We want to ensure broadband subscribers are adequately protected so that rights holders can pursue their claims for copyright infringement without causing unnecessary worry to innocent people. We have not simply consented to these orders in the past, we have asked for stricter terms as public concern has risen. The data leak with ACS:Law prompted us to take further action today.

The hearing will continue on January 12th 2011. At this stage it seems unlikely that any more court orders of this type will be granted in the meantime.

Consumer magazine Which? has complained to the solicitors' watchdog about a London law firm that sent bullying letters to hundreds of innocent consumers.

Davenport Lyons has been hunting for internet users who it believes have illegally shared copies of video games and gay pornography. The alleged file-sharers received letters from the law firm demanding payment of £500 compensation for copyright infringement.

However, letters sent out rely on IP addresses and with so many unsecured wireless networks and file sharing sites which spoof IP addresses, serious questions are being asked about the validity of evidence put forward by Davenport Lyons, evidence already discredited by at least two other European countries.

The case was featured on BBC's Watchdog programme this week, and both Watchdog and The Real Hustle have highlighted the relative ease with which many home networks can be breached. Many of those wrongly accused by Davenport Lyons say that their claims of innocence are ignored completely and simply followed with continued demands for money.

Michael Coyle, solicitor advocate with Lawdit who is currently representing hundreds of UK citizens who have received threatening letters, says that using IP addresses alone to pinpoint file sharers is a nonsense and that Davenport Lyons are using heavy-handed tactics.

Which? has written to the Solicitors Regulatory Authority complaining about what it describes as bullying and excessive , pointing out that during a recession, more and more companies will be looking to make money from individuals and that the SRA should take decisive action. Which? has invited anyone wrongly accused by Davenport Lyons to contact whichcomputingnews@which.co.uk.

A number 10 petition has also been created.

Steve Lawson, editor for Hellmail the postal industry news site said: Its a disgrace that an apparently respected firm of solicitors is relying on such poor evidence and sending out letters to frighten the wits out of people that in many cases have done nothing wrong at all, and then for those people to discover that they are not even being listened to.

Innocent people are getting letters from lawyers claiming they should pay for films they've never seen.

A Hertfordshire couple in their 60s were horrified to receive a letter last week from lawyers at Davenport Lyons accusing them of downloading a hardcore gay porn movie. It demanded they pay £503 for copyright infringement or face a high court action. The 20-page pre-settlement letter from Davenport Lyons, acting on behalf of German pornogaphers, insisted they pay £503 to their clients for the 115 minute film Army Fuckers which features Gestapo officers and Czech farmers.

The bewildered couple contacted Guardian Money. We were offended by the title of the film. We don't do porn - straight or gay - and we can't do downloads. We have to ask our son even to do an iTunes purchase.

But this Hertfordshire couple are not alone. A large number of people have received this letter, provoking a massive outcry on web forums such as slyck.com and torrentfreak which estimate 25,000 of these letters have been sent out. If all the recipients paid up, it would net £12.5m - more than almost any porn film has made.

Media expert Michael Coyle at Southampton-based solicitors Lawdit, is fighting on behalf of individuals who have received the letter from Davenport Lyons. Owners of films, music and computer games obviously have to protect their rights and prevent illegal copying, otherwise everyone would get all sorts of content for free.

"But many of these letters have been sent to people who have no idea what a download is. We've had straight pensioners complain, and a mother who had the shock of having to question her 14-year-old son about gay porn because he was the only apparent user of the internet connection that was registered to her.

Coyle says Davenport Lyons represent DigiProtect, a German company with rights to both pornographic films. He questions the amount demanded and methods used to identify computers alleged to have downloaded material. He believes the sum demanded is out of all proportion to the alleged injury. In one case, Davenport Lyons wanted £500 for a £20 game. The alleged file-sharing would have cost only about £50 - the rest is legal costs.

Coyle offers a £50 service for those who refuse to cave in to the demands as he believes some of the firm's successes are due to consumers paying up because they cannot afford the legal costs of defending themselves. They have won court cases including a high-profile £16,000 on a games download. But these have not been defended. My advice is to deny file sharing to any such request.