Earlier on this year we reported many times about UK law firm Davenport Lyons threatening hundreds of people it accused of sharing the Zuxxez game, Dream Pinball 3D.
Davenport Lyons hired Swiss company Logistep to collect data about alleged file-sharers with a system called ‘File-Sharing Monitor’ which we investigated for our article ‘This is How We Catch You Downloading‘. Logistep’s system is unlicensed and unapproved by any official independent or government organization. Put simply, anyone could gather this data from the internet and claim that it’s accurate and it’s particularly easy for a company in Switzerland to do this, outside as it is of any European jurisdiction.
In order for Logistep to have any credibility, they should open up their system for independent audit, something they have refused to do so far. Indeed, Logistep and Davenport Lyons have only sent those it accuses a very basic explanation of how their system works and to add insult to injury, the supplied documentation has nothing to do with the system they use to catch alleged BitTorrent infringers – all of the documentation refers to their eDonkey tracking system.
In order to discover the identities of those it accuses of infringement, Davenport had to make ISPs give up their customer’s personal details. It’s interesting that Davenport and Logistep are even still operating in this manner, given that Juliane Kokott, Advocate General to the European Court of Justice said that while it is a requirement for ISPs to divulge personal details in criminal cases, the law does not have the power to force them to disclose the same in a civil case. In Europe, the personal, non-commercial sharing of copyright works is a civil issue yet Davenport Lyons insist that this is a criminal issue, an assertion seriously up for debate, as we will learn later in this article.
It seems that other European country’s legal systems have had enough of Logistep. In Italy during July, the Courts decided that Logistep invaded the privacy of internet users and the information it gathered could not be used in a lawsuit.
In France the Courts ruled that accused citizens were denied “a contradictory procedure making it possible all the interested parties to be represented in front of the judge within the framework of the use of a peer to peer software” and declared that in future, any businesses or individuals wishing to breach standard privacy laws to monitor file-sharers on the internet, must first get their activities sanctioned by a judge.
Quite why Davenport Lyons and Logistep are getting away with actions in the UK that appear to be illegal in other parts of Europe is unclear at this stage but those concerned should present this information to their legal adviser for further investigation.
These issues aside for a moment, TorrentFreak spoke with our own counsel who has examined these lengthy documents (accusing people of sharing the game ‘Colin McRae Dirt’ on The Pirate Bay) and has taken the time to answer questions that could be helpful to all recipients of this Davenport Lyons correspondence.
Firstly, I’m not giving legal advice here, merely general advice that I hope will help people to deal with the demands being issued by Davenport Lyons.
I think few legal professionals would be entirely comfortable with any firm issuing automated threats of civil action to individuals without allowing them any reasonable opportunity to respond, let alone the ludicrous “costs” they are claiming or the absurd claim that anyone who is filesharing for domestic purposes (i.e. not for commercial gain) could be committing any criminal offence.
So you’re saying the letter from Davenport Lyons is wrong, possibly illegal?
No, I’m saying that in my opinion it’s thoroughly unprofessional, wildly inaccurate and totally misleading. It’s for the court to determine that it’s illegal, but so far as I can tell, they haven’t actually sued anyone yet, so I suspect that it may all be smoke and mirrors.
[Note: As far as TorrentFreak is aware, from the hundreds of people threatened in the original ‘Dream Pinball 3D’ case, no-one has been taken to court. In fact, we are in personal contact with people who refused to pay in this case and they have heard nothing further from Davenport Lyons, supporting the opinion of our counsel]
Let’s start with their presumption that filesharing is a criminal act. Unless you are using filesharing for commercial purposes, it isn’t a criminal act. (s107 of the Copyright Designs and Patents Act) And if someone was doing so for commercial purposes, then it is a matter for police or trading standards officers to enforce, not an invitation for a high street solicitor to start unwarranted demands for money from people with menace.
Let’s then deal with their refusal to enter into any correspondence. This is not only contrary to The Code of Practice for Pre Action Conduct in Intellectual Property Disputes (Section 4) but contrary to the Human Rights Act Article 6 which states the principle that “there shall be no punishment without law” as well as the legal systems own rules, CPR (Civil Procedures Rules). These rules generally state that the person making the accusations must behave reasonably and they must also give the other person a chance to answer. The BBC give an excellent overview here.
Let’s then move on to the matter of their alleged costs which they claim they are simply recovering. It is customary to first write to ISPs and ask them to contact the customer and caution them regarding their use of the internet for filesharing.
Davenport Lyons have chosen not to do as everyone else does, instead relying on a so called “forensic analysis” from a person who is not even recognised as an expert witness in the English courts, based within a country that doesn’t even lie in any European jurisdiction to obtain an order forcing the ISP to identify the subscriber.
Litigants are required to mitigate their costs,to act proportionately and to resort to the courts only as a last resort. Davenport Lyons have done everything they can to exacerbate their “costs” without even trying to resolve matters informally, as everyone else does, and most courts would regard that unfavourably.
Civil Procedures Rules (CPR) 44.5 state that costs will be determined by the court on the basis of: a) the conduct of all the parties including conduct before as well as during the proceedings and the efforts made, if any, in order to try and resolve the dispute and (b) the amount or value of any money or property involved. Davenport Lyons have hardly demonstrated reasonable conduct.
Taking someone to court should be a last resort, something to do when all other attempts to resolve a dispute amicably have failed, not a matter of mechanical routine.
So you think these letters are merely a bluff to get people to pay up without fighting them?
I think that could be perfectly likely, although it would be foolish to simply ignore their letter or be rude in response. Even if it did get to court, the fact that you ignored even an inaccurate and intimidating letter such as this could harm your defence
It is important to remember that the courts expect people to behave reasonably, and the way and speed in which someone responds can influence the outcome far more than people may ever imagine. Respect counts for a lot when you’re dealing with a court.
So what should recipients of these threats say in their reply?
I can’t give that guidance, for each case will be different and I’m only answering general questions here.
One person may admit the allegations, and may be perfectly willing to sign an undertaking never to do so again. I would never recommend signing anything without proper legal consultation.
Another person may prefer to simply pay but not make any promises, and therefore I suggest they clearly mark the undertaking as being “signed under duress and without prejudice” above the signature line.
Others may wish to dispute the allegations. If so, they should demonstrate how reasonable they are being by documenting a reasonable response, in which they will include some proof of their position.
Anything sent should always be posted by recorded delivery, so that you have proof of posting and evidence of receipt.
[Note: Davenport Lyons didn’t send any of this correspondence by recorded delivery requiring a signature, so there is zero proof at all that anyone even received a letter. Given the Royal Mail’s record (losing 14 million letters in 2004 for example) one would have thought they would’ve taken steps to ensure delivery]
What sort of proof do you need to give to them? I thought people were always presumed innocent, why should they have to prove otherwise?
People accused of a crime are always presumed innocent, and the burden of proof rests with the person making the accusation (usually the state) to prove their guilt beyond all reasonable doubt.
People accused of a civil “offence”, and that’s all that personal and private or domestic filesharing amounts to, are subject to a totally different burden of proof. The accuser merely needs to prove that they did what they are accused of doing on the balance of probabilities. The respondent merely needs to prove that they didn’t in response. The judge will balance the two arguments against each other and will decide who is most probably right based on the evidence presented to him.
And if a person refuses to communicate reasonably either before or at the hearing, then the judge will draw the presumption that the silent person has no defence to offer. It’s hard, but it’s fair.
If I wanted to contest the accusation, what sort of proof would I need to provide?
It very much depends upon your personal circumstances, although generally I would advise that you gather together as many independent witnesses or as much evidence as you can find.
For example, if a respondent (defendant) was claiming that he had opened up his wireless network on the grounds that BT recommended that people did so then it would be helpful to have a witness see how many others were using this connection, prepare a screen grab and sign a statement confirming that there were numerous other users of the PC’s wireless network.
In another example, if a respondent were to claim that he shared a communal internet connection with several others in the same household and was simply the person whose name appeared on the bill, then it would help if he could show rent books for the other tenants or perhaps a copy of the electoral register showing the names of others who lived at that address.
The Copyright Designs and Patents Act in S97 states: “Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy”. If an infringement arose because of an innocent error or an accidental oversight, then the plaintiff isn’t entitled to damages
The grounds for a successful defence are relatively fertile, dependant on the individual circumstances.
So to summarise, what is your advice to recipients of these letters?
My advice is not to panic and never to simply ignore these letters in the hope that the problem will go away on its’ own. Prepare as much of your case as you can in advance, and then speak either with your solicitor or the Citizens Advice Bureau, they give an excellent service for free and their number can be found in your local directory.
Many people have legal advice covered as part of their insurance, Barclays Bank amongst others offer this as part of their student package, and that will cover the cost of professional advice.
Very few intellectual property cases ever make it to court in the UK, and I would be extremely surprised if Davenport Lyons managed to win a defended action given their pre action conduct.
Your legal adviser may wish to see this link which details the consequences of anyone making a groundless threat of infringement such as these, and the prospects of suing the people making the threat for costs and damages.
Our counsel is a lawyer with a background in the media industry, recognised by WIPO and has a highly successful track record of defending both site owners and individuals. Whilst the answers given here do not constitute legal advice, they describe the general principles of defence against the sort of demands being circulated by Davenport Lyons. Our counsel regrets that he is unable to answer questions put to him about specific cases, and recommends that you use the information given as a basis for discussion with your own solicitor.
Finally, in a move that is likely to embarrass Davenport Lyons and prove that a lack of human interaction in these bulks legal cases leads to amateur mistakes, many people it accuses have received multiple threats through the mail, each carrying a demand to pay around Â£500 ($1000).
Many people have received multiple letters relating to a claimed seperate infringement on the same game, turning this ‘legal’ action into a complete and utter farce. To suggest than one individual uploaded the entire game to a single recipient (Logistep) many, many times in succession is ridiculous and is easily proven to be completely false.
Tommorow we hope to bring you interviews with some of the people who have received these letters to hear how they are coping, and we’ll be hearing from one shocked guy who received ten (yes, 10!) infringement notices for the same alleged offence.