ACS:Law Judgment Has Serious Implications for Digital Economy Act

Yesterday, Judge Birss QC at the Patents County Court delivered his judgment in the copyright infringement hearing which featured ACS:Law, copyright troll client MediaCAT and 27 alleged file-sharers. While Birss was damning of the process from start to finish, some of key issues he raised could have serious implications for the UK's Digital Economy Act.

The battle against ACS:Law, MediaCAT and other companies previously involved in developing the so-called Speculative Invoicing model in the UK, has been fought on many fronts. A key group that has championed the rights of the innocent caught in the dragnet, and indeed introduced the term ‘Speculative Invoicing’ to the legal landscape, is BeingThreatened.com. This compact and highly resourceful team have worked tirelessly to protect innocent members of the public from the predatory tactics we have read so much about lately.

Following yesterday’s judgment in the Patents County Court, today TorrentFreak is pleased to welcome BeingThreatened.com spokesman James Bench, who will give us more detail about this legal debacle and explain how the judgment has implications for the UK’s Digital Economy Act.

BeingThreatened ON BIRSS’ JUDGEMENT IN Media CAT Ltd v Adams & Ors [2011]

On Tuesday HHJ Colin Birss QC handed down judgement in the hearing for Media CAT Ltd v Adams & Ors a.k.a. the Media CAT 27. The full judgement is well over seventeen thousand words and is a near-encyclopaedic catalogue of the errors, omissions, misrepresentations, factual flaws, and thoroughly insufficiently considered and ill-conceived (supposed) legal stance of Andrew Crossley’s ACS:Law and his associate, pornography licensee Lee Bowden, trading as Media CAT Ltd.

The 117-section judgement thoroughly discusses the events of the hearings that took place at the Patents County Court on the 17th and 24th of January and the extraordinary business model that brought the cases to his courtroom. The judgement dissects, with terminal accuracy, the operational practices that have been employed by ACS:Law (and indeed by the other law firms that have adopted the same model – Davenport Lyons, Tilly Bailey Irvine and Gallant Macmillan).

Despite a thorough search, readers will struggle to find a good word said about the work of the ‘anti-piracy’ lawyers. The judgement, though, is damning with good reason. It is made abundantly clear that HHJ Birss is wise to the genuine motivation behind the actions of these individuals.

He wrote, “Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable. 10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so.”

It has always been clear to unbiased observers that the principal incentive behind speculative invoicing was revenue generation for the lawyers involved. Birss was under no illusions about Media CAT’s claims to be a ‘copyright protection society’. “No copyright lawyer would use that term to describe Media CAT,” he stated. A ‘copyright exploitation company’ would perhaps be a marginally more accurate term but Crossley and Bowden’s single-minded misapplication of copyright law with the intention of extracting cash settlements from threatened broadband subscribers means that a number of the other labels that may also have been applied to them could also be seen as accurate.

While keen observers, amateur adversaries and the personally aggrieved will doubtless be pleased by the terminal judgement on Media CAT and the fate of symbiotic law firm ACS:Law (and inevitably, in the longer term, Andrew Crossley personally) there are bigger issues that arise from Birss’ deliberations and decisions.

The Digital Economy Act (DEA) was pushed through Parliament during the ‘wash up’ in spring 2010 with numerous elemental flaws. This was despite a massive majority of the public responses to the Government’s consultation opposing its underdeveloped ‘anti-piracy’ measures. Now, unsurprisingly, the Act, which was already due to be subject to a Select Committee review, will also be reconsidered in a judicial review next month upon the application of ISPs BT and TalkTalk.

Birss, in his judgement has now judicially questioned the key concept behind the ‘three strikes’ provision of the DEA – casting doubt on theories and assumptions upon which the DEA was unwisely founded and which had not previously seen the light of a courtroom.

In his judgement Birss referred to technical issues raised by barrister Francis Davey for the defence and cast doubt himself as to whether the “process of identifying an IP address [from a tracker system] establish[ed] that any infringement of copyright has taken place by anyone related to that IP address at all”.

Birss also enters into discussion regarding the use of internet routers and difficulties in determining who may, or may not, have carried out (or authorised) an alleged infringement. “… I am aware of no published decision in this country which deals with the issue of unsecured internet connections in the context of copyright infringement…. The point about “allowing” is that the word used in s16(2) of the 1988 Act is “authorising” not “allowing”. They are by no means the same and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties.

“[The claimant’s] monitoring exercise cannot and does not purport to identify the individual who actually did anything. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All [this] monitoring can identify is the person who has the contract with their ISP to have internet access. …[the claimant does] not know who did it and know that they do not know who did it.”

In fact, there are serious doubts as to whether the monitoring has accurately determined ‘if it was done’ at all – and certainly similar doubts may well arise with monitoring that may be commissioned as a result of the DEA, should those provisions ever be realised.

HHJ Colin Birss QC, in these thorough hearings and incisive judgement, has demonstrated that we do have reason to hope that justice may yet prevail. In the event that justice suffers any hiccups, or is delayed, all would do well to remember – public and ‘copyright protection societies’ alike – that the demise of this scheme, and the likely potential fate of future similarly-founded strategies was first and foremost brought about by the people. To everyone that played a part: never forget that you did this, and you can do it again.

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