TCYK LLP v British Sky Broadcasting Ltd featured a company behind the Robert Redford movie The Company You Keep and ISP Sky. The former claimed that some of Sky’s Internet subscribers had infringed TCYK’s rights and should be pursued for damages.
That TCYK were testing the waters in the UK wasn’t a surprise. In the United States, TCYK LLC previously filed dozens of copyright infringement lawsuits against Internet subscribers in several states including Illinois, Colorado, Ohio, Florida and Minnesota, demanding cash settlements.
TCYK prevailed in its case against Sky, and the ISP warned its customers that some of their details would be handed over based on alleged infringements carried out in 2013.
“A company called TCYK LLC, which owns the rights to several copyrighted films, has claimed that a number of Sky Broadband customers engaged in unlawful file-sharing of some of its films,” Sky told those affected.
“In support of this claim, TCYK LLC says it has gathered evidence of individual broadband accounts (identified online by unique numbers called IP addresses) from which it claims the file sharing took place,” Sky told those affected.
In 2015, TorrentFreak became aware of letters sent to Sky customers with TCYK, in conjunction with London-based firm Hatton and Berkeley, demanding a few hundred pounds to make supposed copyright infringement cases go away. It is unknown how many people paid up but at least one hopeless case was settled by a defendant.
As is often the case, many letter recipients decided to ignore the settlement demands in 2015, perhaps believing it was some kind of scam, perhaps believing the cases would go away. For more than three years, that’s exactly what happened.
However, during the past couple of weeks, TCYK and partners Hatton and Berkeley took a second bite of the cherry, writing again to non-responsive letter recipients in the hope they’ll now pay up.
Letters reviewed by TorrentFreak were sent by Catherine Hyde who is a Consultant Solicitor at Birmingham-based law firm My Business Counsel. The letter says that Hyde is acting on behalf of H&B Administration LLP and TCYK LLC. Hyde is also listed as “Legal Counsel” for Hatton and Berkeley.
“I have recently taken over the conduct of the above matter from and on behalf of my clients with regard to the copyright protection of their interest in the Work,” Hyde begins.
“Following my file review, I note that the last correspondence that was sent to you was in 2015 when my client notified you that there has been an instance of copyright infringement of the Work via your Sky Broadband router. Your response was never received.”
Hyde states that her client “does not wish to pursue this matter through the courts” and prefers to deal with the matter amicably, if possible.
Offering up contact details, the solicitor then asks letter recipients to get in touch, to either admit to the offense of downloading the work and/or making it available to others, or to deny the offense and provide an explanation.
Those who want to admit to the offense (which allegedly took place more than five years ago) are invited to sign an undertaking to secure their Internet connection and/or prevent other people in the house from “illegally downloading in the future.”
Unless the person signing is prepared to monitor every user in the household at all times and/or ban them from the Internet completely, that, of course, is an impossible request.
But what Hyde is really looking for on behalf of her clients is a cash settlement, and this is where things begin to get interesting. While demands three years ago tended to hover around the several hundred pounds mark, TCYK and Hatton and Berkeley now have a new idea up their collective sleeves.
Demanding amounts that invariably exceed £1,500, the letters take the price of the DVD at launch and use the size of the torrent swarm at the alleged time of infringement as a multiplier.
“The expert in this instance has ascertained that the swarm size you were involved in is [redacted]. The loss in this regard is therefore [£ redacted] (swarm size x £9.99 (sale price at first release (less taxes)),” the letter reads.
So, if a swarm size was 100 at the time of the alleged infringement, the settlement amount is 100 x £9.99 = £999. A swarm size of 200 would be double that.
This type of damages calculation is the first we’ve seen and upon initial view, seems a potentially reasonable way of putting a figure on precise losses, as UK law requires. However, it is potentially flawed, given the way BitTorrent works.
When people join a swarm (say of 100 users, or ‘peers’ as they’re known), they will connect to other users who are all sharing the same movie. The damages claim indicates that since there are 100 peers, then the defendant must have connected to each of them, in order to share the full movie with them all. Proving this, however, is extremely difficult.
When a torrent client connects to a swarm, it will obtain the IP addresses of potentially connectable peers, but it is extremely rare for the client to connect to them all. Some clients will reject the connection request and it’s likely that of the 100, only a dozen or two will actually connect. It is also possible that only a handful will connect.
Perhaps more importantly, an outsider monitoring the swarm cannot see how many or which other clients any particular client is connected to and/or whether they actually shared any content with them. The theoretical position changes for an initial seeder of content (given their importance to the entire swarm), but that’s not being claimed here.
Connections between peers are direct and outsiders cannot intervene. The only thing a monitoring company can potentially prove is that an IP address was in a swarm at a particular time and/or connected to THEIR torrent client, which is what tends to happen at the evidence-gathering stage.
While this is generally enough to prove on the balance of probabilities (the threshold in a UK civil case) that some infringement has taken place, the difficult-to-prove calculation presented in the letters suggests that the alleged infringer connected to 100 to 200 peers and sent each one a full copy of the work, valued at £9.99. The chances of this happening are slim to none since all peers connect to each other and take whichever missing pieces they need.
The letter goes on to suggest extreme action for those who deny the claims as set out.
“In the event you deny the infringement, my client reserves the right to seek an Order that you provide up all equipment (including PCs, laptops, and mobile phones) with previous or current access to the IP address for forensic analysis. Alternatively, you can arrange your own forensic analysis at your own expense,” Hyde adds.
A recent case in the United States saw a judge pour cold water on this type of aggressive discovery, noting that all computers, phones, and tablets belonging to the owner of the home and anyone who used its Internet connection would need to be examined to find someone who could be sued.
While “reserving the right” and actually seeking an order are two entirely different things, it will be interesting to see if a judge in the UK would be willing to sign off on such a request after five years have passed.
Depriving everyone in a household of every Internet-enabled device used in the last half-decade is a staggeringly big ask, particularly when the claim has been dormant for so long. The letter claims the issue is “urgent and serious”, however.
Speaking with TorrentFreak, Hatton and Berkeley founder Robert Croucher confirmed that the involvement of H&B Administration LLP is to provide an “insured and administrative wrapper”.
This mechanism, which helps to the limit the plaintiff’s exposure in the event of an adverse court ruling following a fight with an alleged infringer, was detailed in our earlier article.
“I can say that these type of proceedings are to be wrapped with an insurance policy hereon providing a level of risk mitigation to rights holders seeking reparation for damages sought at trial,” Croucher said.
To see how this particular ‘wrapper’ was formed, one only needs to query Companies House in the UK.
H & B Administration LLP (the wrapper) is a partnership involving Robert Croucher, partner Brigitta Kudor, plus TCYK LLC, which is the US company involved in similar copyright cases.
In accounts dated December 31, 2017, H & B Administration LLP was declared as having £558 in the bank. Given the idea is to limit the liability of the partnership to the money invested in the LLP by the partners, £558 (perhaps conveniently) doesn’t stretch very far in the event of a legal disaster for the partnership.
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