Senior Judge Warns of End To File-Sharing Cash Demands

A senior judge has given the clearest indications so far that patience could be running out with "pay up or else" letters currently being sent out in their thousands to alleged file-sharers. At a hearing to authorize yet more, the judge called the schemes "a huge sledgehammer to crack a nut" adding that once the Digital Economy Act is in force, further applications may not be successful.

After tens of thousands, maybe even hundreds of thousands of letters sent out to alleged file-sharers demanding cash settlements, there are some early signs that the practice is starting to grind gears in the UK.

On Monday, lawyers Gallant Macmillan were in court on behalf of their client Ministry of Sound, a huge independent music label, to extract yet more identities of alleged file-sharers from UK ISPs.

The hearing, Ministry of Sound Recordings Ltd v Plusnet Plc, went ahead at 2:30pm in London before judge Chief Master Winegarten (CMW). Other ISPs detailed were BT, Sky and O2/Be Unlimited.

Among those who have been tirelessly campaigning against these actions, it’s long been hoped that CMW, a senior high court judge with a wealth of experience in this area, would take a more critical approach with these cases than he has done in the past. On Monday, for once, things didn’t go quite to plan for the applicants.

Although it’s thought that more than 100,000 identities have been handed over to lawyers like Gallant Macmillan and ACS:Law, worryingly CMW confirmed during the hearing that he didn’t possess the technical expertise to assess the nature or reliability of the evidence being used in the cases.

Not only that, CMW also told the court that he had been surprised at the amount of mail he had received from concerned individuals and remarked that this wouldn’t happen if there wasn’t a large degree of misaccusation.

“There wouldn’t be this hue and cry unless you were pursuing people who were innocent,” he told the applicants.

Condemning the actions as a “huge sledgehammer to crack a nut”, CMW pondered, “I can’t understand why in these thousands – hundreds of thousands – [of letters sent out] no-one has been sued.”

Of course, anyone following these cases knows why. This is all about money and one successfully contested case means the whole scheme comes to an end and these companies aren’t going to risk that.

However, there could be a light at the end of the tunnel. Chief Master Winegarten told the court Monday that once the Digital Economy Act is fully in force, further applications for court orders of this nature may not be successful.

CMW also refused to grant Ministry of Sound’s (MoS) application for a court order. He explained that he had received by letter “concerns from the public” that must be addressed before he could agree to it. The applicant (MoS) must respond on that by 27th September. The hearing itself was adjourned to be concluded 4th October 2010.

This decision to delay by CMW is particularly unusual and suggests that he is becoming more concerned by these actions. It is, however, commendable that he is doing so because without him trying to at least offer some protection to the public, these court orders would simply be granted.

The reason? Almost universally the UK’s ISPs have shown absolutely no desire to protect their customers, despite being well aware that people are being wrongfully accused. As an example, let’s look at Plusnet, the ISP shown as the primary target in this application by Ministry of Sound.

For months now there has been a storm brewing among Plusnet’s customer base. Dissent against the company’s approach to its handling of these court orders and particularly its relationship with ACS:Law has generated a near 40 page and often heated discussion on its customer service forums.

TorrentFreak has been in contact with Richard Fletcher of Plusnet previously but it seems that for legal reasons, whatever they might be, he hasn’t really been able to answer either our questions or those posed by Plusnet customers. Today there will be many more.

Despite promising that a member of their group’s legal team would be present in court to hear this Ministry of Sound application Monday, no one with any legal ability was sent, just a single observer who sat at the back in silence. On Monday evening, Richard Fletcher posted the following response:

I know a number of you have expressed disappointment at our approach, and that we are co-operating wholly with ACS:Law – I wish to be clear that Plusnet consider each application for Norwich Pharmacal Relief [court orders to reveal customer identities], however the decision as to whether a Norwich Pharamcal Order should be made, or not is a decision for the Court and Plusnet only disclose information when it is compelled to do so by the Court.

However, as TorrentFreak pointed out to Richard in an email yesterday morning (we also asked several questions and provided a summary of what happened in court Monday but have yet to receive a reply), this statement is missing the point somewhat.

The facts are that the judge hearing this case cannot find against the applicant (Ministry of Sound) because the ISP (Plusnet) is the defendant and Plusnet as a company are privately agreeing not to contest these court orders even before they are formally asked for in court. This type of agreement was illustrated very clearly when Plusnet didn’t even bother to send a lawyer.

While we all know that an ISP must comply with a court order once it’s issued, Plusnet and virtually every other ISP in the UK are giving the likes of Gallant Macmillan and ACS:Law a free ride by agreeing not to contest in advance.

But it doesn’t have to be this way. ISP TalkTalk have told TorrentFreak time and again that they refuse to cooperate with these companies and – surprise, surprise – TalkTalk are never required to hand over the details of their customers since they are never included on a court order application. All this despite being one of the country’s largest ISPs.

While the dawning of the Digital Economy Act may put an end to the schemes of ACS:Law and Gallant Macmillan, that time is still a while off and in the meantime many more thousands of people will receive letters and untold numbers of those will be wrongly accused as has been the case up to now.

It is clear. The country’s ISPs, Plusnet included, have the power to do something about this. Do the ISPs share the reservations of Chief Master Winegarten? Will they have the courage to add momentum to his concerns?

Will any UK ISP have the courage to oppose the next court order application based on Chief Master Winegarten’s concerns? If you are one such ISP, tell us. We’ll be happy to let the world know about it.

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