This week, alleged game pirates in the UK have been condemned to the ruination of huge fines and misery. Well, not quite. See, if defendants don’t turn up in court, it’s easy to get a default judgment and huge damages because no-one contests the evidence. So what’s the truth and what evidence do the lawyers really have?
First things first. Remember the single mother-of-two in the news this week who picked up a Â£16,000 fine for sharing Dream Pinball 3D? You must’ve heard about it – it’s touted as a ‘landmark decision’ in dozens of redundant news articles, which indicated the world caving in on file-sharers in the UK and signaling that everyone contacted by lawyers Davenport Lyons (working for the games industry against alleged sharers) over the last year or so were doomed to a huge fine.
Let’s get something clear. The defendant, Isabella Barwinska, didn’t turn up in court – that’s according to Simon Perry over at Digital Lifestyles: “The text [in the article] was from the official comment that I received from Davenport’s PR company Bell Pottinger,” he told us. And here it is:
The initial default judgment was made against her was at the London County Court on 27 May. Subsequently the Patents County Court in London handed down damages of Â£6,086.56 plus costs and disbursements of Â£10,000.
For those still unconvinced, this Channel4 news report states clearly that Miss Isabella Barwinska, the recipient of this huge penalty, did not defend herself, she did not respond to letters and her side of the story has never been heard. Thankfully, not every news outlet fell for the ‘landmark victory’ line.
Just in case this still isn’t clear (please forgive me for this reiteration but it’s vital): It was impossible for her to win her case so this defeat (default judgment) means little for the other people facing these accusations who actually have a defense.
Davenport Lyons picked on six individuals who didn’t mount a defense, and so far, they have default judgments from four of them at least. Many of those that responded and denied the claims, just as we previously reported, have been left alone.
It seems likely that yesterday’s announcement that Davenport Lyons will now go after 25,000 other alleged sharers was perfectly and deliberately timed to ride on the momentum from the news of this ‘landmark’ win, which in reality, was the legal equivalent of shooting a dead fish in a barrel.
Evidence and Damages
So what do Davenport have in their evidence arsenal? Well, not enough to take on someone who is prepared to defend themselves, or so it seems. Also, how do they calculate these crazy damages? Well, they claim damages of whatever they like and with no-one there to challenge them, its simple to get stupid amounts awarded. TorrentFreak has received information which lay everything bare and of course, we share it with our readers.
Let’s start with what Davenport Lyons don’t know, because their highly controversial (1, 2, 3, 4) anti-piracy tracking company Logistep can’t tell them:
Davenport doesn’t know if the defendant copied the work to his hard drive or allowed someone else to do it for him. They have no idea (and admit it) how many times the game was uploaded to 3rd parties on P2P networks, or even if it was at all.
They admit to not knowing how long the defendant made the work available and actually admit that it may have been only made available for a second, which is interesting since we have seen documents where Davenport claim that Logistep download a full copy of each game in every case. At the time, we thought that to be completely unfeasible and it now seems that was indeed the case. This adds weight to the theory that Logistep didn’t even verify that the file offered for download was the actual file in question.
Based on information provided by Logistep, they say they can prove one second of ‘making available’. However, they multiply this out to a whole day of ‘making available’ for the purposes of damages calculation, while insisting on the one download = one lost sale argument. Interestingly, defendants don’t have to be seeders to get logged since Davenport state that by default, every downloader is also an uploader, a mistake we have reported on before.
Davenport’s damages formula
The calculation for damages is entirely based on the data provided Logistep after they recorded users sharing Dream Pinball 3D during the monitoring period between 24th September 2006 and 6th November 2006, a period of 43 days.
The calculation for damages is made as follows:
(A) Estimated number of days file was uploaded by the Defendant x (B) Estimated number of downloaders Defendant made game available to per day x (C) Profit lost per download = total damages
It is assumed by Davenport that one download equals one lost sale.
In the case of Dream Pinball 3D, Logistep monitored for a total of 42 days (1 day of the 43 was discounted on database issues), gathering around 22,500 IP addresses. Logistep logged all the countries of people in the swarm and added up all the IP addresses over the monitoring period. It then singled out the IP addresses located in the UK (around 800), but when Davenport went to court to force the ISPs to hand over the details of the alleged sharers, they discovered that due to dynamic IP addresses, less than half were ‘unique’ users. This means that all the headlines of Davenport nailing 800 so-called pinball pirates were actually inflated by 100%.
Interestingly, it’s also been revealed that some ISPs couldn’t supply the information Davenport asked for, so these cases were dropped.
As only around 50% of the IP addresses were unique, for the purpose of damages calculation the number of IP addresses collected during the monitoring period was cut in half. This amount is then divided by the number of days monitored (42) to get the number of daily downloaders. It is claimed that the profit lost on each game is 10 Euros.
So the formula for calculating damages is: Estimated total days file was uploaded by the defendant multiplied by the average number of downloaders defendant (could have) made work available to per day, multiplied by the profit it claims to have lost on each download (10 euros). Note that the first two variables are estimates, not backed by any evidence. It’s unclear whether or not a user logged for multiple ‘seconds’ on multiple dates would incur more damages, but the size of the damages element awarded against Miss Barwinska – more than Â£6000 ($12,000) – raises a few questions.
The final claim is for the damages, plus interest, plus costs, which can come to around Â£16,000 ($32,000) if you don’t bother to defend yourself, as Miss Barwinska has discovered.
For all the other recipients of these letters, little has changed as a result of this default judgment. None of the evidence has even been contested in court, which considering its nature is probably a good thing – for Davenport at least.
Andrew Murray, senior lecturer in Law at the London School of Economics earlier referred to Davenport’s tactics as “bullying“. Now it seems that the people Davenport picked on for these cases never tried to defend themselves, the word “bully” seems more appropriate than ever.