UK Game Piracy: Propaganda, Evidence and Damages
Written by enigmax on August 21, 2008This 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 £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 £6,086.56 plus costs and disbursements of £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 £6000 ($12,000) - raises a few questions.
The final claim is for the damages, plus interest, plus costs, which can come to around £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.
Previously: The Pirate Bay Appeals Italian Blockade
Next: Comcast vs. BitTorrent, What’s Next?
45 Responses
dang
What bullshit….
Trying to take advantage of the fact that they can do “anything” cause a judge hasn’t seen or approved it…
To those who didn’t pay up: Good job. Don’t EVER pay.
It’s disgraceful anti-pirate tactics again as always…
Although to not show up in court is always a stupid idea, so part of me can’t help but blaim them for all the stupid news coverage.
They are walking a very fine line, especially since the have shit to back up their cases… i think its just a matter of time before group of people push them into a corner and one case gets heard, won by the “sharer” and davenport kicked to the curb… where they belong.
Hey, check out this article about what Def Leopard said about piracy, he said, “Piracy is what keeps us Rocking”
http://3news.co.nz/ScienceTech/Story/tabid/412/articleID/68081/cat/73/Default.aspx
He aays it helps him find a younger audience who might not have heard of him if not for file-sharing.
Go Def Leopard!
Really though.. this is typical for the UK. Its the largest home for scammers and thieves (Im not saying pirates). They have computer pubs where people actuley make there job to sit on a computer and scam people online all day, and there’s nothing you can do.
So its to be expected that the lawyers do it too, and im sure theres nothing you can do about it. UK is a toilet.
This is going to backfire on Davenport Lyons. The courts will wise up to what they’re doing now that they’re trying it on a much grander scale. It’s hopefully going to end like the Call of Juarez issue in France.
I bet Atari are after the people who downloaded Alone in the Dsrk then. It’s been 3 months, probably more since it was actually leaked.
If you get a letter, I suggest you come back here and research the Colin Mcrae and Call of Juarez cases in particular, and also don’t forget to do some research on Logistep. The best way to get Davenport Lyons to back off is to write a long, civil, rebuttal qouting various EU and UK laws, and how Logistep is acting illegally. It’s important you use the example of what happened in Italy in this case.
Have a response in your letter ready for every point they make. Make it clear that you are taking this very seriously, and you are not taking lightly to this scam.
The whole point of this is to make it clear that you WILL defend yourself. As soon as Davenport Lyons gets this impression, they will back off. They are not interested in a legal fight, they are looking for easy money, relying solely on bullying tactics.
Don’t ignore the letters if you’re guilty.
as a former cop i would love for them to send me a later…rofl…man would i fuck them up in court!First thing i’d get out of the way would be “one download=1sale” er…no….your game sucks which is what has lead people to download it in the first place!!!Never purchase from these companies and ALWAYS seed there stuff!when you get the letter simply send it back asking for it to be written in Urdu, Spanish or Japanese…see if they reply!
This is interesting has NOT been reported in the UK media (Strangely _N0T_).
I wasn`t aware that she didnt turn up & this was a default judgement.
Ah well fukk em, i`d go to court & push it ;)
All of the so-called ‘victories’ so far have been default judgements whereby the accused failed to turn up to the hearing. This includes Isabelle Barwinska.
Davenport Lyons know exactly who to pick on when it comes to court cases because they have either not responded at all to the letters or they have vowed against succumbing to DL’s monetary or court threats. Those who responded denying the claim(s) are probably safe from the court room, especially if they used a solicitor to correspond on their behalf. DL could fight trained solicitors or they could fight an unemployed, possibly non-national mother-of-two. The choice is simple.
These aforementioned ‘victories’ will probably be used as ammunition in future DL infringement letters that they are planning to send out, or to reinforce claims that they have already mailed.
Once someone turns up to court to face DL with a solicitor and at least 2 brain cells, the flaws and illegality of Logistep’s ‘evidence’ system will become apparent. It will be interesting to read the (lack of) DL press statements as they either burrow their heads in the sand or the court system buries their heads for them. Allegedly, this happened in Germany and France where their judicial systems eventually cottoned on to this sort of scheme and ordered the legal firms to close up shop for unlawful practice. The UK is just a stepping stone whereby they will exploit these legal grey-areas until the legal system becomes fed up with hundreds or thousands of these infringement cases.
The predator will then move on to new feeding grounds. Maybe they will try to extort £500 from Ghanaian or Ethiopian people
yeah said: “this is typical for the UK… They have computer pubs …”
I like computers and I like beer and I’m in the UK. I’ve not seen a computer pub before, but I’d love some directions.
The same chap said: “So its to be expected that the lawyers do it too, and im sure theres nothing you can do about it.”
That’s not entirely true. With their colours showing quite vividly now, I’d be surprised if a phonecall to the Law Society, the regulatory body of solicitors in the UK, didn’t harbour some kind of result.
And more: “UK is a toilet.”
Spoken, I assume, by someone who doesn’t live here, given the lack of knowledge displayed.
i would pay £535 i am asked for something I DIDN’T DO! to the first guy who makes an organization gathers lawyers and sues DL for an eternity! the list is quite long… bullying, damages to the person (depression), money racketeering… money we pay for lawyers… all that and more! i had a layer look at the documents she started laughing when she saw what bull***t documents they had! make a face book group if u have to! and finally i just want to say… TF has earned more than my gratitude! thank you!
@12/13 Plz can you translate….
ingnore that, hmm somthing odd going on with my puter :S
Think people should just boycott this company make a stand…
Lets try to work this out. £6000 in lost sales, lets say £6 per copy (roughly €10), means this poor lady allegedly shared 1,000 full copies of the game. Now, each copy is how big? maybe 100Mb?? that’s 1,000 x 100Mb = 100,000Mb or 100Gb of uploaded data!!
How long will it take to upload 100Gb of data?? Lets assume an average *upload* speed of 128kb on broadband. Much slower than the download speed obviously. Hope I don’t get it wrong, but 100Gb = 100,000Mb = 100,000,000Kb / 128kb = roughly 9 full days, 24 hrs a day of only uploading the game non-stop, no other uploads taking place.
Yeah. Right.
Dream Pinball 3D owners didn’t spend 300GBP on it, so how that old mother damaged 16,000GBP ?
For sure, this is another tactic of game companies, making a useless game like Dream Pinball 3D which doesnt cost even 300GBP, making huge $ from it.
For God Sake, Dream Pinball 3D is a useless game, as i installed it, after 2 minutes i removed it from my PC.
Dream Pinball 3D just a SH*T game, it’s not even worth of 1GBP, i highly request UK GOV to stop these game companies and their F*ckin money making tactics.
My solicitor is sending my rebuttal. Suggest anyone in the same boat as me to do the same. And then
https://www.relakks.com/?cid=gb
lol
17 - you’ve already received a letter?
@15 - I assume you were estimating 100MB (megabytes) per copy not Mb (megabits), 8 bits=1 byte
so 100GB = 800Gb … 800 million bits being downloaded at a rate of 128 per second MAX (could be less for all we know, making that over 72 days of solid 24/7 uploading by my (admittedly usually suspect) arithmetic …
Like you said - yeah right!
has anyone in the UK recieved letter from there ISP yet? I haven’t and feel a little left out (yeah right…)
@ 16
Actually it’s a little over £6000 for ‘compensation due to sales lost’ and the other £10,000 for legal fees… tho how it costs that much when people don’t show up then I don’t know…
Well I have had a whole host of letters one regarding Two Worlds and the other regarding Pinball, However the 2nd letter they sent said I didnt download pinball and just the other one. Nobody in my household knows anything about them so wtf, I went to citizens advice and they said ignore the letters until you actually get a court order and then get a solicitor and see them in court. Which I fully intend to do because I have not downloaded anything. The other thing about these letters is they address them to the account holder with the ISP and address them Dear Sir or Madam, so the proof they have is pretty wobbly. Like I said I didn’t download anything but I shall challenge them in court and counter sue them for slander and wrongful accusation if there’s such a thing.
@9: I think you will find it WAS reported in the UK on the BBC 6 O’clock news. The neglected to mention the defendant did not turn up but (thankfully) showed to pro-piracy side of the story with Peter Sunde (brokep) describing TPB situation.
These people disgust me. Them and anyone who would hire them. They expect me to feel sorry for them?
Err, seems to be some difference of opinion regarding this. To quote bbc:
Some of those accused of sharing the game chose to fight the legal action and it was in one of these contested cases that Topware Interactive won its claim for damages.
“This is a proper Intellectual Property (IP) court that has made this judgement,” said independent IP barrister David Harris. “The previous ones were default judgements where defendants never turned up.”
http://news.bbc.co.uk/2/hi/technology/7568642.stm
Can anyone refute this?
I’m still quite prepared to goto court and defend myself, I’m damned if I do and damned if I don’t it would seem so I might as well turn up if I get an order to. I haven’t done anything wrong so I can’t quite see what they are accusing us of. I’m on benefit so if they find me guilty of something I haven’t done, what are they going to do ? I’m not going to pay for something I haven’t done now am I ?
I think funkytorrents servers got siezed..
can anyone confirm that?
@18 Anon
Yes, DL in their lunacy thought I’d stump up over £500 2 line the pockets of themselves, Atari, Logistab & my ISP 4 admin.
Take the fight 2 them I (under advice)say. You will have 2 pay 2 do so, but the sooner the courts\judges get wise the better.
I’ve been following this story since
it first broke on Slyck.com in March
2007 when Davenport Liars, uh I mean
Lyons began threatening people they
claimed to have been sharing Dream
Pinball 3D.
To me it seems like an elaborate scam,
and until there is official court
documentation that they won a default
judgement, anything said by the media
is parroted DL fake PR.
Logistep’s method of determining
who the infringers are is ar best
inaccurate; this is supported by the
study the University of Washington
did where printers got DMCA notices.
And anyway, an IP address is not a
person, despite what DL or the MAFIAA
may claim otherwise.
Some choice words about all this:
Who DL are: Ambulance Chasers
What they are doing: Vexatious
Litigation/Barratry/Malicious
Prosecution (this last one sounds
like it would be used in a criminal
case, but it has been used to
counter some of the RIAA’s legal
attacks.)
What DL deserve: Disbarrment
@27, Anonymous
What game are they trying to claim “damages” for? I can only find sources regarding codemasters (colin mcrae) and Topware (pinball faggotry).
Atari stopped publishing decent games 3 years ago.
And good on you for fighting this bullshit.
the court case info here
h**p://www.giuristitelematici.it/modules/bdnews/doc/logistep_doc.pdf
@18 Anon
The “Work” I apparently infringed was Race 07.
Mine seems 2 b the latest ambulance out of the A+E, even though thier so called “evidence” relates 2 last year.
Another forum (that led me here) is talking about a ame called “The Witcher” being the current favourite.
It should also be noted that the Daily Mail reported that Miss Barwinska moved from Leytonstone to Canning Town between the date of the alleged infringement and the date of the judgement. The piece by Channel 4 News suggests that Davenport Lyons had no idea if they’d managed to successfully contact Miss Barwinska. If she moved before Davenport Lyons’ paperwork turned up, she can apply to the court to have the judgement set aside. What a great victory that would be for Davenport Lyons.
after reading alot about this case i have came to the conclusion that this game was not ever meant to sell. I believe it was leaked purposefully onto the net and the intention was to make the mass of profits from file sharers in the first place. Its just all far too convieniant!
@6 - wtf r u talkin bout? Weirdo wanker
Yet more bollocks coming out of the UK.
16 grand is probably the most profit they will ever make on that game: if they ever get it.
Seems farcical that a company can accuse you of anything they like with no credible evidence and actually win damages that are way out of line with reality.
Had someone had their arm blown off in Iraq they would probably get about 10 grand.. but for seeding Dream Pinball 3D…
http://beascener.com
UK is the best country in the world!
Their calculations are a joke. Let’s see, they get 30,000 CDN$ and you get a crappy game. Seems fair. I would just stop enriching the games marketeers, Stop buying their products. Of course the problem with that is some gamers are so addicted to their juice, that they’d never show solidarity against manufacturers. But I would try all the same. 14 yr old boys don’t really have society on their list of priorities and as such can’t be relied upon to stick it to the man.
Read me
http://news.spong.com/article/16057/Five_Top_Publishers_Crack_Down_on_Piracy
Correct me if I’m wrong, but doesn’t Logistep collect the IP addresses and THEN sell them to the game publishers?
Therefore this surely means that if Logistep did indeed download the torrent files in question then they did it without authorization, and thus committed copyright infringement.
That’s something worth pointing out in a rebuttal if you get a letter. You could also make some comment about how they were profitting from this piracy.
I received a letter quite some time ago about Call of Juarez. Didnt respond and havent heard anything since. It stated that I had downloaded the game in December 2006 I think.
Has anyone received more than 1 letter about Call of Juarez?
Like I said, I’ve received about 3 letters the last one threatenin civil action but no more heard of since. The first letter was regarding Two Worlds and Pinball. Then the 2nd said we allegedly downloaded only Two Worlds and not pinball and the last letter just mentioned Two Worlds. I shall still turn up in court if I get requested to do so. We haven’t responded to any as citizens advice just said not to and if we got summoned get a solicitor which I fully intend to do because I havent found any traces of it on any computers.
I didnt know that access logs could be treated as real evidence as they can be quite easily faked/mistaken for somebody else. Proxy/Hacked wifi etc.
6 Aug 21, 2008 at 16:35 by yeah
You are being mistaken for Nigeria there. We are not a country of scammers. We are a country of being scammed by our goverment and the big companies
People should start a protest and stop buying games entirely until companies give up trying cashing in on damages.
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