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.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

On 17th January at the Patents County Court, Judge Birss QC said he was “astonished” by the conduct of the pair as they tried to discontinue cases against 27 alleged file-sharers at the 11th hour. The hearing was eventually adjourned and everyone returned to court 24th January to find solutions to numerous problems, including the joining of copyright owners to the action and the addressing of various procedural failings. After five hours that hearing was also adjourned for deliberations.

Today everyone returned to court to hear the ruling from Judge Birss QC. As was expected, neither ACS:Law’s Andrew Crossley nor MediaCAT’s Lee Bowden bothered to turn up. While ACS:Law had a new barrister in court, MediaCAT had no representation at all.

The court decided that ACS:Law would not be allowed to drop the 26 cases against alleged file-sharers, an answer to one of the key questions from the earlier hearing. While the copyright holders are being given 14 days to join the action, it is doubtful they will. If this happens, all MediaCAT cases against these defendants will be dismissed in March.

Yet again ACS:Law and client MediaCAT were heavily criticized, with the Judge reiterating that both companies have “a very real interest in avoiding public scrutiny” because of the revenue they generated from “wholesale letter writing.”

“Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court,” said the Judge. “Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?”

The Judge said that the processes employed by the pair were “based on untested legal and factual propositions and issues of technology” and their letters “materially overstate[s] the untested merits of Media CAT’s approach.”

Judge Birss also described ACS:Law’s earlier claim that they could not provide documents for the court’s scrutiny as “extraordinary”.

“A party who keeps key documents which are cited in the Particulars of Claim in storage is not a party anxious to progress their claim in court,” he said.

As reported by Ralli, the lawfirm representing defendants in the case, the Judge was also critical of the involvement of GCB Limited, the company that popped up to carry on the MediaCAT letter writing campaign.

“The GCB episode shows that Mr Crossley’s client had every intention of doing precisely that and that ACS:Law were perfectly well aware of it. It is very difficult not to draw the inference that this was nothing more than a last ditch attempt to make some money from the letter writing exercise.”

The case was adjourned again, this time until 16th March. The issue of wasted costs to be picked up ACS:Law and/or MediaCAT will be heard then.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Crossley, in his usual spin-doctor style, tried his best to blame just about everyone else for his downfall but for those who have followed these cases closely it was clear who was to blame. Crossley and client Lee Bowden, owner of copyright troll MediaCAT, had been the architects of their own doom.

With the Patents County Court hearing adjourned by Judge Birss QC, most observers believed that his ruling, which is now due next week, would be the next significant milestone in this whole sorry affair. But for companies that operate as unusually as ACS:Law and MediaCAT, there’s always a surprise in store.

Since TorrentFreak were the first outlet to report on the activities of ACS:Law back in 2008, it’s perhaps fitting that we should now be the ones to break the news of the company’s ultimate demise.

According to a copy of a document obtained by TorrentFreak, which appears to have been sent out by Crossley during the last week, ACS:Law have not only stopped all file-sharing related work as previously reported, but actually shut down completely 31st January 2011.

Furthermore, the document adds that ACS:Law’s only remaining speculative invoicing client – MediaCAT – has also ceased trading.

“Ahead of Judge Birss’ judgement due on Tuesday, it would seem to some that Mr Crossley and Mr Bowden are attempting to avoid not just ‘judicial scrutiny’ but financial responsibility for the flawed claims that they foolishly decided to issue,” consumer group BeingThreatened told TorrentFreak on hearing the news.

“They perhaps hoped that they might gain a judgement which they could use to threaten future letter recipients, instead their greed has led to the exposure of the significant and manifold flaws in the legal and evidential basis of the speculative invoicing scheme they employed.”

There has been recent speculation that MediaCAT may choose to close their business, particularly since they are now facing an application for “wasted costs” following their recent catastrophic legal venture against 27 alleged file-sharers. But even closure may not save the company’s owner from some hefty payouts.

“MediaCAT’s status as a private limited company may not protect [Bowden] from personal legal liability for the costs that will be demanded by the defendants of the claims MediaCAT brought,” notes Bench. “ACS:Law was not a limited company in any sense. Mr Crossley will remain entirely and personally liable for all the actions of his firm.”

Joe Hickster, the blogger behind the ACS:Bore blog who has worked tirelessly behind the scenes supporting many people who have fallen victim to ACS:Law and similar companies, welcomed the news.

“The news of the pair’s demise is a vindication for the people who stood strong against ACS:LAW/Media C.A.T,” he told TorrentFreak. “The damage they have caused cannot be overestimated, so it’s great news that their campaign of fear against many innocent people seems to be at an end.”

“With Crossley’s upcoming appearance at the Solicitors Disciplinary Tribunal, a warning has been sent out to those Solicitors who think they can pick up the poisoned baton of Speculative Invoicing.”

Perhaps the big question now is how the closure of ACS:Law and MediaCAT will affect next Tuesday’s court hearing where Judge Birss QC is due to deliver a ruling on the pair’s activities.

“The timing [of the closures] will be no coincidence, but while these actions may have been conceived as a damage limitation exercise, they will do nothing to appease Judge Birss who is already wise to the ‘twists and turns’ of this scheme and who is unlikely to let the duo’s plan work out quite as they perhaps intend,” concludes BeingThreatened’s James Bench.

So, the show isn’t over yet. Be sure to tune in here on Tuesday to hear what Judge Birss has to say. And bring some popcorn, this should be very interesting indeed.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

In a hearing punctuated by mounting criticism of both ACS:Law and their client MediaCAT, Judge Birss found himself “astonished” by their conduct as the pair tried to discontinue cases against 26 alleged file-sharers at the 11th hour.

Yesterday all parties were back in court again to find solutions to various problems, including the joining of copyright owners to the action (see previous articles for detail) and the addressing of various procedural failings.

Today we bring you our report with the invaluable help of consumer group BeingThreatened.com, who were present at the hearing and have been supporting victims of ACS:Law’s predatory legal actions since they began.

Perhaps the biggest news is that if ACS:Law is to be taken at its word, the company is now done with trying to extract money from alleged file-sharers.

After beginning with owner Andrew Crossley and a couple of assistants, in order to cope with the huge amount of settlements the company grew out to employ around 16 people. Following the catastrophic email leak, those people have either left or been made redundant by the firm. Rising insurance costs have also taken their toll since the leak, from a low of £15,000 to a crippling high of £120,000.

Crossley did not deliver this welcome news to the court in person. While present in the court during the morning session, in common with last week’s hearing he claimed he needed to help family members who had been involved in a recent accident.

The court carried on with its afternoon session without him, with Judge Birss QC condemning the conduct of ACS:Law and MediaCAT, accusing the pair of “trying to minimise the amount of [judicial] scrutiny” placed on their work, a reference to the failed default judgment attempts earlier this year.

It has long been suspected that ACS:Law and MediaCAT pursued this “speculative invoicing” business purely for profit purposes. Judge Birss QC put it to MediaCAT that their attempt to withdraw the previously mentioned 26 cases was so that the scrutiny of “inconvenient judges” could be avoided which would enable them to go back to sending pay-up-or-else letters.

The ever problematic issue of MediaCAT not being the copyright holder of the works they seek settlement on raised its head again. Judge Birss QC asked MediaCAT’s barrister Tim Ludbrooke if he accepted that his client has no right to bring infringement proceedings without joining together with the copyright holders.

“There was little doubt among those present in the courtroom that MediaCAT was lacking the appropriate rights to proceed — which might include the step of discontinuation — alone,” BeingThreatened’s spokesman James Bench told TorrentFreak.

Judge Birss QC noted that if MediaCAT was allowed to discontinue the outstanding cases, it could simply pick up where it left off and continue sending letters. Then the rather inconvenient specter of GCB Limited raised its head.

As detailed in our earlier article, GCB Limited burst onto the scene a couple of weeks ago claiming to be MediaCAT’s new ‘agent’ in these settlement letters matters. ACS:Law, it was declared by company owner Andrew Crossley, had absolutely nothing to do with them.

GCB’s exit was as quick as their entry. The company controversially aborted their business with MediaCAT within a couple of days. Nevertheless, Judge Birss QC mentioned the company in court and this led to a revelation – Crossley was forced to admit that GCB Limited had been set up by two of his former employees.

“If I had a suspicion before, seeing the GCB letter makes it plain,” said Judge Birss QC.

“Aren’t you flirting with abuse of the court?” he asked MediaCAT, while going on to describe these events as “mind boggling”.

According to James Bench, things then took a turn for the bizarre. In an attempt to distance himself from the “inept” settlement letters, MediaCAT barrister Tim Ludbrook told the court: “I promise that I had no part in writing either of these documents,” a statement which led to laughter in the courtroom. Those present knew who had likely drafted them.

After five long hours, Judge Birss QC announced he would deliver his ruling later this week on whether or not MediaCAT can discontinue the cases without being joined by the copyright holders and whether there has indeed been an abuse of process.

“Solicitor Andrew Crossley’s statement that this work has brought him ‘immense hassle’ should sound alarm bells with others that might have considered similarly exploitative schemes,” said BeingThreatened’s James Bench in a statement last night.

“The problems he has brought upon himself however, pale into insignificance against the distress caused by the campaign of legal threats that he has carried on against innocent broadband account holders for his own personal profit.

“The speculative invoicing of Andrew Crossley and his counterparts which have dropped by the wayside, Davenport Lyons, Tilly Bailey Irvine and Gallant Macmillan, was never about protecting copyright; this was never about piracy. We have heard in court today about the 65% of proceeds that Mr Crossley earned from each letter of claim. This scheme was simply an attempt by Mr Crossley and his conspirators to get-rich-quick in an exploitative scheme where the vulnerable were targeted with unfounded accusations and demands for cash in settlement of claims which had no basis in law.

“In addition to his upcoming appearance at the Solicitors’ Disciplinary Tribunal, Judge Birss will now also consider if Mr Crossley is guilty of entering into a champertous agreement with rights holders.

“The public, and today the justice system, have demonstrated that they will not tolerate
attempts by the greedy and unprincipled to bully the public for their own personal gain, and under the banner of copyright protection.”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

As detailed in TorrentFreak’s report last evening, things did not go well, with ACS:Law again managing to surprise even seasoned legal professionals with their behavior.

Today, with the help of consumer group BeingThreatened.com, who were present at yesterday’s hearing and have been supporting victims of ACS:Law predatory lawsuit activities, we look at what happened and where the cases go from here.

Late last week, ACS:Law business partner MediaCAT, the middle-man company who claim to have rights over dozens of movies, tried to pull the rug from under yesterday’s proceedings. Last Thursday, with only a single working day left to go, it wrote to the 27 file-sharing defendants informing them it would discontinue the cases against them.

The defendants, some of them prepared to head off to court on Monday, reasonably thought their case was now over and that they did not have to attend. However, thanks again to ACS:Law’s apparent misreading of the law, MediaCAT were actually not authorized to drop the claims without the court’s permission.

The problem lies in the strange fact that MediaCAT aren’t the copyright holders of the works they are using to extract payments out of file-sharers. Another company, the David Sullivan-owned Sheptonhurst Ltd is believed to be, but even that is yet to be proven.

It was at this point that confusion set in with MediaCAT’s counsel, Tim Ludbrook. The man-in-the-know, ACS:Law owner Andrew Crossley, wasn’t in court on the back of claims of a “family car accident” at the weekend and had simply ordered Ludbrook to seek an adjournment of proceedings. This is where events took yet another turn for the unusual.

While MediaCAT had indeed tried to discontinue the cases against the 27 alleged file-sharers, last Thursday ACS:Law told the court that they intended to refile them all at a later date, apparently after correcting the numerous errors that were present when they were originally filed.

Noting that five of the defendants had already filed defenses, Judge Birss QC said he was “astonished” at the refiling notion and described it as “unprecedented in his personal experience and career at the bar.”

At his discretion the Judge allowed one of the defendants to have his case discontinued but refused 26 others noting complaints that by filing and then discontinuing cases, Crossley had obtained an unfair advantage by seeing defenses.

Another allegation was levelled at Crossley in court by defense lawyers, one which raised eyebrows with Judge Birss QC. With reference to the earlier Solicitors Regulatory Authority investigation into his affairs, it was alleged that Andrew Crossley is “involved in a champertous agreement” in breach of the solicitors’ code of conduct.

The actual agreement between MediaCAT and Sheptonhurst was produced which showed, to the apparent surprise of the Judge, that ACS:Law is contracted to take 65% of the revenue and that rights to the movies in question had been allocated purely to prosecute and that no exploitable rights had been transferred.

Defense lawyers pushed for an order to force Andrew Crossley to file a defense against the champerty, code of conduct and civil procedure rule breaches. At this stage the Judge refused – the issue will be dealt with at a later hearing.

For MediaCAT, however, the situation they find themselves in with ACS:Law is nothing short of a mess. Lawyers representing some of the defendants are seeking ‘wasted costs’ “off the scale”, a reference to costs which are punitive and a reflection that there has been wrongdoing.

“MediaCAT’s attempt to discontinue all twenty-seven cases and pay costs to the defendants shows how fundamental ACS:Law now consider the problems in these claims,” said BeingThreatened.com spokesperson James Bench.

“It has been clear since the speculative invoicing scheme first made an unwelcome appearance in this country, that there were massive and fatal flaws in the model. It does not provide a solution to copyright infringement, it is apparent that the evidence is untrustworthy and the laws and precedent which ACS:Law believe underpin its work do not support their position. It is good news that Judge Birss has seen fit to put this practice under the spotlight and expose it for the unsupportable and flawed legal shambles it is”.

The Judge said that two further hearings are likely to be required. One to resolve the problems with the joining of the copyright owner, and another to discuss the procedural failings and decide on ‘wasted costs’.

The hearing in the remaining cases will recommence 24th January.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.