Lawyers Davenport Lyons are fast becoming a thorn in the side of alleged UK file-sharers. Having cut their teeth threatening alleged sharers of ‘Dream Pinball‘, they more recently moved on to those alleged to have shared ‘Colin McRae Dirt’.
Now they have obtained a court order to force ISPs (Be Un, BT, Easynet, Eclipse, Entanet, Eurisp, Fasthosts, Kcom, Opal, Orange, Pipex, Plusnet, Supanet, TalkTalk, Thus and Tiscali) to reveal the names and addresses behind an unspecified number of IP addresses alleged to have shared the game ‘Two Worlds’ from publisher ‘Reality Pump‘. Reality Pump are linked with Zuxxez, publishers of Dream Pinball.
The modus operandi is the same as before: Use an unaudited, untested p2p tracking system to capture IP addresses, use lawyers to imply a criminal offense has been committed (which is not the case) to obtain a court order, which is then used to force ISPs to give up customer data which is never used in a criminal case. At this point the account holder receives a threatening letter demanding around Â£700 ($1,400) stating “pay up or else we’re going to sue you” – except on track record, they never do.
Legal recommendations from TorrentFreak’s counsel suggested that ignoring such letters is a bad idea, in that if the case actually went to court, the court wouldn’t appreciate the ignoring of paperwork. While this remains true for cases eventually going to court, it seems that cases are not doing so. After hearing of many hundreds of instances of threatening letters being sent, we have not heard of a single case going to court and now there seems to be a building feeling amongst people who have received the letters that the best thing to do with them is to ignore them.
One person who received a letter about his alleged sharing of Colin McRae told us: “I got the letter through the post on a bad day and just panicked. I wrote to them denying their claims and giving them as many facts as I could to show it wasn’t me but they haven’t left me alone since. Other people i’m in touch with who ignored the letters haven’t heard anything back at all so i’m kicking myself for contacting them. They say I have just days to pay the full amount.”
Another person involved in the Colin McRae case says he responded to Davenports using the ‘wireless defense‘ – i.e he had an unsecured router that someone accessed without his permission. After some delay a letter was received from Davenport which states that he is responsible for what is done on his connection. It is noteworthy that they have not stated any relevant UK law to back this up – we are not aware of any precedent under English law that they could state, which probably explains why they didn’t.
Applying German law to English file-sharing cases backfires
In their letters, Davenport Lyons state that under German law, a user is responsible for what happens on his connection. They state: “We believe that a UK court would take the same position.” Oh really?
Ok, just for fun, let’s try applying German law to the UK cases and see what we come up with:
According to a great post on P2P Blog, a fireman who was accused of sharing stuff illegally in Germany claimed that he had nothing to do with this sharing. The record companies used an argument they had success with in past cases (possibly the German cases referred to by Davenport), i.e, as the owner of the connection, he was liable for the infringing actions of others. In this case the ‘others’ were members of his family – children etc.
This time, the courts weren’t so sympathetic. They have just decided that this man CAN’T be held responsible for the infringing actions of others, just because his name was on the bill. The court decided that as the record companies could neither prove that the fireman shared the material nor that he knowingly failed to prevent infringement, he could not be held liable. The decision in Frankfurt stated that adult family members don’t even have to be instructed or controlled by the connection owner unless they are suspected of committing any file-sharing activity. Another court has rejected the liability of a company in case an employee committed copyright infringement using the company’s internet connection.
It is of MY view, Davenport Lyons, that a UK court would take the same position. An IP address alone does not identify an infringing individual, so get used to it.
Stay tuned over the weekend for our interview with a lawyer helping to defend 500 file-sharers.