“The damages and costs ordered by the Court are significant and should act as a deterrent,” said David Gore, a partner at Davenport Lyons who pioneered the “pay up or else” schemes multiplying in the UK and elsewhere.

Had the UK gone mad? £16,000 for sharing a single game? Why hadn’t we heard about this case in advance? Surely this wasn’t a ‘proper’ defended case? According to the “independent” IP barrister David Harris quoted by the BBC, it was just that.

“This is a proper Intellectual Property (IP) court that has made this judgement,” said Harris. “The previous ones were default judgements where defendants never turned up.”

So who exactly was this David Harris and who prompted him to make this announcement to the BBC? We don’t know, but one thing is certain – something felt wrong with his comments.

The hearing in the IP court meant the case had been rigorously analysed and the law properly understood, said Mr Harris, as quoted by the BBC. “It’s a much more interesting case in that respect,” he said.

It was indeed interesting, but for all the wrong reasons. It has long been suspected that far from it being a contested case, Miss Barwinska never turned up to defend herself and we now know for sure that she didn’t. Contested case? Not at all Mr Harris, whoever you are. There was absolutely zero defense.

Nevertheless, in common with Davenport Lyons before them, ACS:Law used the Barwinska ‘precedent’ in their ‘marketing’ to show what happens to people who choose not to settle for a few hundred pounds and cases end up in court.

But far from being a perfect illustration of a successfully litigated case, according to an advisor to ACS:Law’s Andrew Crossley the entire process was built on perilously weak foundations that only stood up because there was no defense. How do we know? From the emails that ACS:Law accidentally published on their website last week, of course.

In an email dated 19th August 2010, Adam Glen, who advises Andrew Crossley at ACS:Law, explained to him in no uncertain terms how weak the Barwinska case was.

He began with a statement that we have known to be true for a long time – it is almost impossible to prove damages to a copyright holder beyond an infringer making a single copy of a work on his hard drive. Under UK law, this is a big deal as damages awarded must reflect a proven loss.

“Unfortunately, except for Barwinska, there have been no cases involving P2P based infringement, except for those involving statutory damages, which provide some direction as to the method of calculation,” wrote Glen to Crossley.

“I have always been [of] the view that Barwinska is a difficult judgement and should not be relied upon for a number of reasons.”

The Barwinska case has always been completely shrouded in mystery, but Glen clearly knows it inside out. The reasons he gives for not relying on it are listed below and make quite remarkable reading:

a. The claim was not defended so there was no challenge to the submissions by Davenport Lyons

b. The court accepted the Davenport Lyons quantum calculation without challenge

c. The model submitted by Davenport Lyons was based upon, in my opinion, an extremely poor understanding of the underlying technology of P2P interaction

d. The Davenport Lyons model, in my opinion, failed to apply accepted and fundamental mathematical principals in its calculation, including queuing theory, and would have difficulty in passing an applied mathematics assessment if submitted in an “A level” statistics paper.

e. There are a number of factors in any model for calculation of the quantum of damage resulting from a making available via P2P which it is impossible for the monitoring software to establish and the model relies upon unsubstantiated, and in some cases erroneous logic, assumptions.

f. There are a number of factors in any model for calculation of the quantum of damage resulting from a making available via P2P which, for technical and commercial reasons, that the monitoring software fails to record and the model relies upon unsubstantiated, and in some cases erroneous logic, assumptions.

g. There are a number of factors in any model for calculation of the quantum of damage resulting from a making available via P2P which, for commercial reasons, means that legal disclosure has not been requested that could substantiate the multipliers and the model relies upon unsubstantiated assumptions based upon seriously flawed logic, to complete other assumptions necessary for predictive analytics and the quantum is predicated on the results of all these assumptions.

h. The Davenport Lyons model was developed by a person with no academic qualifications or experience, of a technical or mathematical nature, that would be accepted by the courts as being of a standard sufficient to be classified as “Expert”.

And Glen’s damning assessment goes even further.

“I believe that Barwinska should not be used as a reference to justify a quantum of damages as, it is my opinion that, a first year undergraduate learning applied statistics could easily challenge the model to a level which would create sufficient doubt in the court’s mind that the court would ignore or substantially discount the Davenport Lyons model. This may also risk the courts view of other evidence,” he told Crossley, adding:

“Barwinska might make nice headline reading but it has, in my opinion, about as much legal force as a Sun newspaper headline regarding the licentious behaviour of a D list celebrity.”

Glen then goes on to explain in detail that it is hugely problematic to prove any damages to rightsholders other than the single copy an infringer has on their machine and being made available on BitTorrent.

“Even this is problematic as the monitoring software was the agent of the rightsholder and therefore no damage can be established,” he notes.

“Because of all of these factors I believe that it would be extremely difficult to establish with any accuracy that there has been sharing except with the monitoring system which is an action by the infringer for which no damages can be accrued.”

Just in case you missed that – “no damages can be accrued.”

“Therefore, it is my belief that the rights holder can only rely on the damage resulting from making a single copy of the work in infringement of the rights granted to the rightsholder under s16(a) of the CDPA 1988.”

So, while Andrew Crossley talks of people making available his clients’ copyright works to “potentially thousands” of other people, according to his advisor he can’t even prove a single filesharing-related infringement which results in a loss.

Furthermore, while he also endlessly speaks of taking cases to court (but never does), we now know why. It’s just too damn risky, costly and for what best result?

Recovering the price of a single DVD or music track.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

However, the thought of Miss Isabella Barwinska picking up a £16,000 bill from the civil courts recently for sharing one £10 game is outrageous too, but maybe even more so. Miss Barwinska didn’t turn up or defend her case, no-one seems to know why, but for a lot of people facing similar actions, the prospect of facing a legal system they don’t understand and can’t afford to participate in, financial issues are at the forefront of doing nothing about the threatening letters.

These people simply cannot defend themselves and this is why it might make sense to criminalize personal-use file-sharing. In a criminal case if you can’t afford a lawyer, one will be provided for you by the state and you get the benefit of proper justice at least, a right of reply within a proper structure, not grubby threatening letters designed to wear people down.

I’ll let you into a little secret. When people say file-sharing is “as bad as shoplifting”, in the UK that comparison is pretty ridiculous. Many shoplifters are let off with a simple caution and even the most persistent would have to be uniquely unlucky to get fined £6,000 (plus £10,000 costs) for a £10 game. If Miss Barwinska had been caught physically stealing it, a police caution would be likely, or perhaps a very small fine. In the ‘real-world’ she’d need to smash through the storefront with a truck to end up with a fine the size of the one she got.

The other reason why there might be benefits in bringing file-sharing out of the civil domain and into the criminal is because even fairly large-scale commercial piracy on and off the Internet is treated with extreme leniency in the UK.

Last week we reported that the UK’s Hull city council said it had such a massive piracy problem at its biggest market in Walton Street, it had to ban legitimate traders too in order to stamp it out. Well, it seems that a part of this ‘problem’ was one Robert Guiness.

Mr Guiness had been using the Internet to download movies, music and computer games which he then burned onto DVD and CD and sold them at Walton Street market. When the police searched his van and raided his house, they found over 10,000 pirate movies, more than 600 audio CDs, a couple of hundred DVDs filled with MP3s and 283 computer games. He was a commercial pirate and his long-term considered actions certainly contrast nicely with Miss Barwinska’s civil tort involving a £10 game uploaded for one second.

So, taking Miss Barwinska’s punishment as a guide, presumably Mr Guiness should enjoy a minimum fine of 283 games at £6,000 each? Plus the movies and music. Oh boy, Mr Guiness would be in some big kind of trouble if Davenport Lyons had got to him first. Luckily for him, he got arrested by the police instead and had the good fortune of having a criminal trial.

Due to the “exceptional circumstances” in the case (“i’m but a small cog in a big machine guv’nor”), he was given a suspended sentence and walked out of the court a free man. No fine.

Just to be clear, I don’t really want file-sharing criminalized and I certainly don’t want the UK courts jammed full of petty file-sharing cases. For their part, the police don’t even have time to come to household burglaries or car thefts, so we could never waste their time on non-profit file-sharing issues. However, I wonder how many of the UK’s ‘pinball pirates’ would wish they could be labeled a criminal in order to be excused a massive fine, picking up a criminal record in the process but walking away a free person instead? Desperate people will do desperate things – people have committed suicide over smaller debts than this. No-one in financial difficulty should ever have to aspire to criminal status in order to mount a defense, or aspire to a criminal conviction like that of Mr Guiness, in order to be treated with leniency.

But hold on just one moment. What about the OiNK users that are currently the subject of police criminal action for uploading ONE album each. Has petty file-sharing already become a criminal offense? The Crown Prosecution Service seems to think so.

In a country like Britain, which prides itself on its sense of justice and fairness, it can’t be right to have such a huge imbalance in the legal system, where an ordinary single mother of two making a single mistake is treated more harshly than a for-profit criminal like Mr Guiness. Equally, how can one set of file-sharers be the subject of a simple ISP ‘warning letter‘, another pick up a £16,000 bill and others get hauled off to the police station for interrogation, fingerprinting, DNA sampling and subsequent trial, for the same offenses?

It’s crystal clear – to the man in the street the legal system to deal with file-sharing right now in the UK seems just about as clear as mud and maybe, just maybe, it’s time for the government to step and decide once and for all. Should file-sharers be warned, bankrupted or jailed? Don’t forget Mr Brown, there are an estimated 6 million of them. Choose wisely.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.