Davenport Lyons hired Swiss company Logistep to collect data about alleged file-sharers with a system called ‘File-Sharing Monitor’ which we investigated for our article ‘This is How We Catch You Downloading‘. Logistep’s system is unlicensed and unapproved by any official independent or government organization. Put simply, anyone could gather this data from the internet and claim that it’s accurate and it’s particularly easy for a company in Switzerland to do this, outside as it is of any European jurisdiction.

In order for Logistep to have any credibility, they should open up their system for independent audit, something they have refused to do so far. Indeed, Logistep and Davenport Lyons have only sent those it accuses a very basic explanation of how their system works and to add insult to injury, the supplied documentation has nothing to do with the system they use to catch alleged BitTorrent infringers – all of the documentation refers to their eDonkey tracking system.

In order to discover the identities of those it accuses of infringement, Davenport had to make ISPs give up their customer’s personal details. It’s interesting that Davenport and Logistep are even still operating in this manner, given that Juliane Kokott, Advocate General to the European Court of Justice said that while it is a requirement for ISPs to divulge personal details in criminal cases, the law does not have the power to force them to disclose the same in a civil case. In Europe, the personal, non-commercial sharing of copyright works is a civil issue yet Davenport Lyons insist that this is a criminal issue, an assertion seriously up for debate, as we will learn later in this article.

It seems that other European country’s legal systems have had enough of Logistep. In Italy during July, the Courts decided that Logistep invaded the privacy of internet users and the information it gathered could not be used in a lawsuit.

In France the Courts ruled that accused citizens were denied “a contradictory procedure making it possible all the interested parties to be represented in front of the judge within the framework of the use of a peer to peer software” and declared that in future, any businesses or individuals wishing to breach standard privacy laws to monitor file-sharers on the internet, must first get their activities sanctioned by a judge.

Quite why Davenport Lyons and Logistep are getting away with actions in the UK that appear to be illegal in other parts of Europe is unclear at this stage but those concerned should present this information to their legal adviser for further investigation.

These issues aside for a moment, TorrentFreak spoke with our own counsel who has examined these lengthy documents (accusing people of sharing the game ‘Colin McRae Dirt’ on The Pirate Bay) and has taken the time to answer questions that could be helpful to all recipients of this Davenport Lyons correspondence.

Firstly, I’m not giving legal advice here, merely general advice that I hope will help people to deal with the demands being issued by Davenport Lyons.

I think few legal professionals would be entirely comfortable with any firm issuing automated threats of civil action to individuals without allowing them any reasonable opportunity to respond, let alone the ludicrous “costs” they are claiming or the absurd claim that anyone who is filesharing for domestic purposes (i.e. not for commercial gain) could be committing any criminal offence.

So you’re saying the letter from Davenport Lyons is wrong, possibly illegal?

No, I’m saying that in my opinion it’s thoroughly unprofessional, wildly inaccurate and totally misleading. It’s for the court to determine that it’s illegal, but so far as I can tell, they haven’t actually sued anyone yet, so I suspect that it may all be smoke and mirrors.

[Note: As far as TorrentFreak is aware, from the hundreds of people threatened in the original 'Dream Pinball 3D' case, no-one has been taken to court. In fact, we are in personal contact with people who refused to pay in this case and they have heard nothing further from Davenport Lyons, supporting the opinion of our counsel]

Let’s start with their presumption that filesharing is a criminal act. Unless you are using filesharing for commercial purposes, it isn’t a criminal act. (s107 of the Copyright Designs and Patents Act) And if someone was doing so for commercial purposes, then it is a matter for police or trading standards officers to enforce, not an invitation for a high street solicitor to start unwarranted demands for money from people with menace.

Let’s then deal with their refusal to enter into any correspondence. This is not only contrary to The Code of Practice for Pre Action Conduct in Intellectual Property Disputes (Section 4) but contrary to the Human Rights Act Article 6 which states the principle that “there shall be no punishment without law” as well as the legal systems own rules, CPR (Civil Procedures Rules). These rules generally state that the person making the accusations must behave reasonably and they must also give the other person a chance to answer. The BBC give an excellent overview here.

Let’s then move on to the matter of their alleged costs which they claim they are simply recovering. It is customary to first write to ISPs and ask them to contact the customer and caution them regarding their use of the internet for filesharing.

Litigants are required to mitigate their costs,to act proportionately and to resort to the courts only as a last resort. Davenport Lyons have done everything they can to exacerbate their “costs” without even trying to resolve matters informally, as everyone else does, and most courts would regard that unfavourably.

Civil Procedures Rules (CPR) 44.5 state that costs will be determined by the court on the basis of: a) the conduct of all the parties including conduct before as well as during the proceedings and the efforts made, if any, in order to try and resolve the dispute and (b) the amount or value of any money or property involved. Davenport Lyons have hardly demonstrated reasonable conduct.

Taking someone to court should be a last resort, something to do when all other attempts to resolve a dispute amicably have failed, not a matter of mechanical routine.

So you think these letters are merely a bluff to get people to pay up without fighting them?

I think that could be perfectly likely, although it would be foolish to simply ignore their letter or be rude in response. Even if it did get to court, the fact that you ignored even an inaccurate and intimidating letter such as this could harm your defence

It is important to remember that the courts expect people to behave reasonably, and the way and speed in which someone responds can influence the outcome far more than people may ever imagine. Respect counts for a lot when you’re dealing with a court.

So what should recipients of these threats say in their reply?

I can’t give that guidance, for each case will be different and I’m only answering general questions here.

Anything sent should always be posted by recorded delivery, so that you have proof of posting and evidence of receipt.

[Note: Davenport Lyons didn't send any of this correspondence by recorded delivery requiring a signature, so there is zero proof at all that anyone even received a letter. Given the Royal Mail's record (losing 14 million letters in 2004 for example) one would have thought they would've taken steps to ensure delivery]

What sort of proof do you need to give to them? I thought people were always presumed innocent, why should they have to prove otherwise?

People accused of a crime are always presumed innocent, and the burden of proof rests with the person making the accusation (usually the state) to prove their guilt beyond all reasonable doubt.

And if a person refuses to communicate reasonably either before or at the hearing, then the judge will draw the presumption that the silent person has no defence to offer. It’s hard, but it’s fair.

If I wanted to contest the accusation, what sort of proof would I need to provide?

It very much depends upon your personal circumstances, although generally I would advise that you gather together as many independent witnesses or as much evidence as you can find.

In another example, if a respondent were to claim that he shared a communal internet connection with several others in the same household and was simply the person whose name appeared on the bill, then it would help if he could show rent books for the other tenants or perhaps a copy of the electoral register showing the names of others who lived at that address.

The Copyright Designs and Patents Act in S97 states: “Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy”. If an infringement arose because of an innocent error or an accidental oversight, then the plaintiff isn’t entitled to damages

The grounds for a successful defence are relatively fertile, dependant on the individual circumstances.

So to summarise, what is your advice to recipients of these letters?

My advice is not to panic and never to simply ignore these letters in the hope that the problem will go away on its’ own. Prepare as much of your case as you can in advance, and then speak either with your solicitor or the Citizens Advice Bureau, they give an excellent service for free and their number can be found in your local directory.

Your legal adviser may wish to see this link which details the consequences of anyone making a groundless threat of infringement such as these, and the prospects of suing the people making the threat for costs and damages.

Our counsel is a lawyer with a background in the media industry, recognised by WIPO and has a highly successful track record of defending both site owners and individuals. Whilst the answers given here do not constitute legal advice, they describe the general principles of defence against the sort of demands being circulated by Davenport Lyons. Our counsel regrets that he is unable to answer questions put to him about specific cases, and recommends that you use the information given as a basis for discussion with your own solicitor.

Finally, in a move that is likely to embarrass Davenport Lyons and prove that a lack of human interaction in these bulks legal cases leads to amateur mistakes, many people it accuses have received multiple threats through the mail, each carrying a demand to pay around £500 ($1000).

Many people have received multiple letters relating to a claimed seperate infringement on the same game, turning this ‘legal’ action into a complete and utter farce. To suggest than one individual uploaded the entire game to a single recipient (Logistep) many, many times in succession is ridiculous and is easily proven to be completely false.

Tommorow we hope to bring you interviews with some of the people who have received these letters to hear how they are coping, and we’ll be hearing from one shocked guy who received ten (yes, 10!) infringement notices for the same alleged offence.

Article from: TorrentFreak, check out our new blog at FreakBits.

Web 2.0 is interactive by nature. People are not only consuming content, they’re creating it too. From uploading photos and videos to sites like Flickr and YouTube to downloading files over BitTorrent and sharing them on P2P networks, traffic flow on the Internet is now bi-directional.

The problem is that most ISPs seem to be completely unaware of this phenomenon. Upload speeds offered are many times less than download speeds. Most ISPs in the U.S. provide largely asymmetric connections, upload speeds are on average 15 times slower than download speeds. Strange since the country seems to be the epicenter of the Web 2.0 boom.

Slow upload speeds directly affect BitTorrent transfers. If users aren’t able to upload bits as fast as they download them, a torrent requires more seeders than leechers to stay healthy. And for there to be enough seeders, a significant number of users have to have already downloaded the file. That’s why the speed at which you download a newly created torrent is normally much slower than a HTTP transfer. The speed of the BitTorrent swarm will always max out on the combined upload speed.

Also, because BitTorrent is a fair trade protocol, what you give is what you get. The more you upload, the more you’ll be able to download from others. So, for example, If you had to choose between a 1Mbit up – 1Mbit down connection and a 0.5Mbit up – 2Mbit down connection, the first option would be a better choice.

The Internet is slowly moving away from central servers that store data, towards P2P powered services like BitTorrent where content is dispersed over a large number of users. ISPs need to understand this and realize that users are soon going to start demanding symmetric connections, with upload speeds equaling downloads. After all, TIME Magazine’s person of the year is “You”. And there wouldn’t be a “You” without YouTube and other such services that allow us to get online and express ourselves.

Creative Commons photograph by Micha Niskin.

Article from: TorrentFreak, check out our new blog at FreakBits.

However, there’s still a lively debate going on in the comment section. I will list some of them so you can see for yourself.

Pro Shaping

Bill says: I’m a network engineer for an ISP. We currently restrict P2P applications to 512kbps for all users. And for good reason. P2P applications can cripple a network, they’re like leaches. They consume all available bandwidth for endless periods of time. What I think will eventually happen is users will start having to pay for transfer. No more unlimited connections, You’ll get a set data transfer limit for the month and if you go over your limits you pay more per byte. They already do such things in Canadian and other oversee’s markets.

Just because you pay 49.99 for a 1.5-3.0mbps connection doesn’t mean your entitled to use whatever protocols you wish on your ISP’s network without them provisioning it to make the network experience good for all users involved. If you want truely unrestricted internet, for the bandwidth advertised, you need to buy a leased line from an ILEC/CLEC. I guarentee the ISP’s will figure out a way to limit P2P use and since they own the network, it is up to them to decide what traffic gets priority for their customers. When one protocol consumes 75% of your bandwidth for hours on end, it inhibits all other protocols running on your network..

klaatu, you don’t seem to understand business very well. There is a lot more overhead to running an ISP than buying and reselling bandwidth. It’s not just simply recouping your bandwidth costs each month, hell I get each 1mb for a little under 200$/month on a fiber MPLS network 1 hop from level3. If I made profits off of everything after that I’d be bloody effin rich. You also have equipment, employees, leases, etc to pay for.

Throwing more bandwidth at P2P is like feeding a seagul a peice of bread. Once you feed one all their buddies come a long and eat your whole loaf of bread. The more bandwidth available, the more that is consumed by P2P. Unless you shape the bandwidth accordingly. Every ISP does this, or should I say successful ISP. It’s just a matter of to what extent they take it.

You have to remember there are two sides to everything. The ISP’s aren’t out to make your life miserable, they’re just looking out for the performance of their networks.

Anyway that’s my 2 cents.

Anti Shaping

KM says: Much of the marketeering going on from ISPs revolves around connection speed, especially in terms of broadband versus dial-up. One of the ways the providers get subscribers is by specifically touting the speed of their service over say dial-up, and talking all about the ability to download content at high speeds. Between Broadband competitors, the advertising usually focuses on better speed/price ratios, or service.
The ads tout content content content, download, download, download…

It’s pretty crappy to then sign on and realize you can’t – cause well, you are downloading -too- much. I simply don’t think packet-shaping is ‘fair’ when you are already ponying up money up front for ‘broadband’ which was marketed to you specifically as a tool to obtain content, then you are restricted on the amount of content you can get.

Marketing an ‘unlimited’ service should simply be that – unlimited – and let people pay what they will… I’d happily pay ‘overuse’ charges if it would give me more bandwidth.

One could argue ‘if yer willing to pay more, upgrade your service.’ Well, my particular annoyance at my ISP is that my pipe is supposed to be 1.5mbps and my speeds in terms of d/l tend to be slower than friends on slower rated connections just down the street. I want the bandwidth I’m paying for, and I damn well wouldn’t be happy if I not only got screwed outta bandwidth on the one end, but got charged or penalized for too much downloading on the other with a pipe that’s already slower than it should be.

On top of that, if I ‘overuse’ my connection by say downloading movies at google video and then get my ability to DL WoW content over say BT neutered, what was the point in subscribing to broadband?

I believe eventually ISPs will develop the bandwidth to accomodate heavy widespread use of BitTorrent simply because of stuff like IPTV and HDTV (think FIOS), and the fact that each newer generation of users will grow up more technoligcally inclined and therefore more likely to be a heavy downloader, and this whole problem of BitTorrent might simply go away on its own as the net continues to mature. But that’s a ways away and does nothing to help the short term users of packet shaping ISPs. If encrypting BT helps out short-term I’m all for it.

Pro Shaping

iNET says: As is usual with life, everyone sees things from there own perspective. That’s not a slam against anyone, or anyone’s point of view – it’s just a fact.

I’m an ISP as well, and the fact is, P2P is (from my point of view) a plague – a cancer, that will consume all the bandwidth that I can provide. It’s an insatiable appetite.

The Corvette example was maybe off base, the way we explain it to our customers is like an ‘$5.99 all you can eat buffet’. If you pay your $6, and eat a reasonable amount, no problem. That’s what it’s for. Some customer’s have big appetites, and some have small appetites, and in the end, it’s all supposed to average out. No problem. :)

Where this falls apart with internet usage is that 10% of your users belly up to the salad bar, pay their $6 and then eat 1000 lbs of food. It’s not that the restaurant is mean or evil or stupid, but that’s just not a sustainable business model. If you were the business owner, you’d have an ‘acceptable use policy’ for your All-you-can-eat-buffet, and that’s really no different that what the ISP’s are trying to do.

Where I’m located, T1’s are $1760 per month. We certainly have users who simply can’t understand / believe / fathom that we need to limit their bandwidth in any way, shape or form. However, MOST users also want our network to be fast and responsive, and frankly, if I allow that 10% of users to use up 90% of my network resources – then I’m not doing my job for the other 90% of paying customers that want good, reliable service.

Certainly, if it was just a matter of wiggling my nose and magically adding more bandwidth from upstream, all ISP’s would do it. The fact it, for me to add another T1 is a major expense, and as long as there is the perception that little Johnny should be able to pay his $35 and download at 2Mbs 24 x 7 – that’s a problematic business plan. I understand we’ve all been trained to think that we should get everything for free – but as long as business’s have to pay for their bandwidth costs (or their food costs), they are going to be watching their customers for over-use.

For what it’s worth, we’re clear with our customers on signup – no Server Privileges. We certainly loose some customers, but the ones we have (mostly) understand that we have a finite amount of resources and that we’re wanting to make the whole network as fast and good as we can for all users.

Anti Shaping

By C-Man says: Traffic shaping is not good. If you pay for an internet connection, that’s what you should get from your ISP — an internet connection. Not a connection that will let you browse the web and check email, but little else. If an ISP has issues with the amount of data a customer is transferring, then the ISP needs to address that issue with that customer, and not restrict every user in one class of traffic.

It’s akin to the phone company trying to prioritize phone traffic , e.g., telling you that you can’t call and chat with your friend down the street because Joe Blow has a “better” use for those network resources (say, calling to order something from the phone company).

The ISPs need to keep their hands off content for more than just this reason. If the ISPs can and will throttle bandwidth based on protocol, how can they disclaim any liability for the content travelling through their pipes? If you open the pipe to see what is going through you take on a responsibility for that traffic – and ISPs may start to find themselves being held responsible for their customers conduct.

More here

Article from: TorrentFreak, check out our new blog at FreakBits.