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United Kingdom Piracy The Courts

UK Law Body Targets RIAA-Style Settlement Letters 95

Posted by samzenpus
from the you-are-probably-guilty dept.
PerformanceDude writes "The Register reports that a major UK law firm knew it sometimes had no reliable evidence of unlawful filesharing when it demanded hundreds of pounds in damages from internet users, according to the solicitors' watchdog. London-based Davenport Lyons threatened thousands of people with legal action for alleged copyright infringement between 2006 and 2009. They were told that by quickly paying around £500 damages, plus costs, they could avoid court. Following complaints to the Solicitors Regulation Authority, Davenport Lyons now stands accused of deliberately ignoring concerns over the standard of its evidence."
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UK Law Body Targets RIAA-Style Settlement Letters

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  • Jeopardy (Score:4, Funny)

    by Anonymous Coward on Sunday November 21, 2010 @06:33PM (#34300898)

    I'll take "Barratry" for $1000 Alex.

    • by Pharmboy (216950)

      According to Wikipedia, "In England and Wales the offence was abolished in 1967." [wikipedia.org]

      • by Capsaicin (412918) * on Sunday November 21, 2010 @08:18PM (#34301466)

        Though I can't speak with authority on English law, the fact that 'barratry' per se was abolished doesn't mean that courts are necessary left without remedy against vexatious litigants. For example here in NSW 'rape' was similarly abolished. That doesn't mean you can get away with raping anyone, you'll simply be charged with 'sexual assault,' instead.

        That being said this isn't really barratry (which is not generally as profitable). It is, especially as it is being conducted by a firm of lawyers, something much worse. Perhaps closer to 'extortion' (which they also abolished around the same time as barratry). One hopes the SRA spanks their joint and several botties!

        • Re: (Score:3, Insightful)

          by nosferatu1001 (264446)

          Mainly this is lawyers not acting under direction from a client. Which is entirely against the rules that lawyers are supposed to operate under.

          Fingers crossed ACS Law will also get rapped, as they were doing the same using "assets" from DL

          • by Capsaicin (412918) *

            Mainly this is lawyers not acting under direction from a client. Which is entirely against the rules that lawyers are supposed to operate under.

            Yes, that's very close to what was happening here. Now the copyright holders were clients of the firm, and presumably instructed the lawyers at least in some vague way to protect their interests in the works under question.

            However in sending these notices to specific persons the firm was implying that they were under instruction from their clients to take action

        • Re: (Score:3, Interesting)

          by rtb61 (674572)

          There is also 'The intentional infliction of mental harm' under tort which covers things like invasion of privacy and the threat of being sued, including your court costs and the penalties even when you are innocent.

          So clearly in the case of the threatening letters there was an intention to inflict mental harm upon the victims and thus extort a payment from them, under tort law this should enable a class action lawsuit to be brought against the attorneys for the harm they have inflicted, where evidence w

          • by Capsaicin (412918) *

            There is also 'The intentional infliction of mental harm' under tort which covers things like invasion of privacy ...

            Are you certain such a tort exists at English law?

            • by rtb61 (674572)

              Do you think I could make up something like that, I picked it up at a internet law reference site.

              • by Capsaicin (412918) *

                Do you think I could make up something like that,

                No, I think you could be confusing torts (or species of damage) actionable in US jurisdictions with those available elsewhere in the common law world.

                I picked it up at a internet law reference site.

                A US internet law reference site, or a British one? More to the point, do you have any English curial authority relevant to the tort of "intentional infliction of mental harm."

                When I was at Law School the only "mental harm" recognised in English or Australian

  • excellent (Score:5, Insightful)

    by mirix (1649853) on Sunday November 21, 2010 @06:33PM (#34300900)

    Now if firms responsible will actually be punished for false claims, we might be going somewhere.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      To bad this hasn't happened on the other side of the pond... yet.

      I honestly don't know what's worse here. The lack of ethics in a field which purports to have some level of authority, for justices' sake. Or, the level to which greed will strip so many individuals of some semblence of conscience. Since, essentially, they're willing to ruin average peoples lives financially.....

      Alas, my faith in humanity retains its below normal level.

      • >>>The lack of ethics in a field which purports to have some level of authority, for justices' sake. Or, the level to which greed will strip so many individuals of some semblence of conscience.
        >>>

        "Ambition and avarice... when united in view of the same object, they have in many minds the most violent effect." - Benjamin Franklin was discussing government when he wrote those words. - "And of what kind are the men that will strive for this profitable preeminence, through all the bustle o

    • by Anonymous Coward

      I don't believe much will change even if they're punished this time, if press coverage is needed for someone to take action it won't do any good in the long run. The Register's report wasn't a shocker, everyone knows claims like these aren't backed up by solid evidence. Everyone knows who the corporate mafia is and what it does, but nothing is done.

    • by zmollusc (763634)

      Yes, we will be going along the happy-sunshine road in make-believe-land.

    • by kegon (766647)

      Don't get your hopes up. This is regarding some action being taken by a watchdog body. We don't know what the outcome is yet, we don't know if they will take any action or how strong any reprimand, if any, will be given. Furthermore, this won't be enshrined in law or necessarily have any relevance to future cases. I believe there is a very high chance they will get a light slap on the wrists and a don't do it again.

      • by jabuzz (182671)

        The partners of the firms in question are significantly at risk of being disbarred.

    • Re:excellent (Score:5, Informative)

      by Have Brain Will Rent (1031664) on Sunday November 21, 2010 @10:51PM (#34302276)

      Over many years I have spent much more time with various lawyers than I ever wanted. One of the most valuable things I learned is that when a lawyer sends you a letter saying something like "In our opinion XYZ..." you should pay very close attnetion.

      XYZ usually involves some sort of claim to back up a demand and not only is XYZ frequently untrue but it would be almost impossible for a practising lawyer to believe XYZ is true. That is why it is presented as an opinion rather than as a fact from an expert [the lawyer] ... so that when Mr. ABC goes before a judge he can't say "Boondoggle and Co. claimed it was illegal for me to not pay them..." then Boondoggle can defend themselves with "that was just our opinion at the time, we made no claims as to its accuracy and Mr. ABC is responsible for obtaining his own legal advice." Boondoggle and Co. are simply hoping that Mr. ABC will assume a lawyer would not outright lie or that he can't afford a lawyer of his own, or both, and will pay up without determining the truth.

      This just sounds like more in the same vein but they stumbled a wee bit far over the line - smarter lawyers would have done it in such a way as to be beyond meaningful discipline.

      • Re:excellent (Score:4, Interesting)

        by jimicus (737525) on Monday November 22, 2010 @05:03AM (#34303898)

        One assumes there comes a point where if a solicitor's (UK term equivalent to "lawyer") entire business plan is based around sending out letters that begin "In our opinion..." - while making a statement that cannot possibly be the opinion of a qualified solicitor because there's no evidence to favour that opinion and plenty of evidence against it - it becomes an issue.

        Of course, what TFS doesn't say is that solicitors are essentially self-regulating - the SRA is just another bunch of solicitors.

        • Re: (Score:2, Informative)

          by 91degrees (207121)
          the SRA is just another bunch of solicitors.

          This is true. They o have an incentive toact if the entire profession is being brought into disrepute though, and threatening hundreds of people for filesharing is such a small part of the overal profession's income (which is presumably mostly property, wills and small business contracts) that there's not a lot of harm to putting a stop to it.
  • Excellent advice (Score:5, Insightful)

    by $RANDOMLUSER (804576) on Sunday November 21, 2010 @06:33PM (#34300904)

    (UK Law) (Body Targets) (RIAA Style Settlement Letters)

    Double tap to the body, then the kill shot to the head.

    • by rts008 (812749)

      Double tap to the body, then the kill shot to the head.

      LOL!
      That took me back 30+ years, to Urban Warfare training.
      *Big Scary Drill Sergeant® yelling at us*
      "Two in the chest, and one in the head,
      and even the Jolly Green Giant will fall down dead!"

    • Known as the Mozambique drill, invented for close quarters combat (CQB) by Mike Rousseau (added/refined with moden combat drills by Jeff Cooper) for use against the highly drugged opposing force at the time of it's "invention".
  • by Toy G (533867) <toyg&libero,it> on Sunday November 21, 2010 @06:36PM (#34300926) Homepage Journal

    Davenport-Lyons was the legal firm who started this racket, which was then relaunched under ACS:Law; Gallant-Macmillan was the third entity to try it.
    Only the first group of evildoers has been obliterated; the second has been damaged, but it's still in the game; the third one is still cranking out letters, although in a fairly restrained manner (in this case, it's really their customer who is pushing hard). And, eventual enforcement of the Digital Economy Bill, currently expected for late January 2011, will probably open the floodgates to hordes of copycats.

    There's still a long way to go for the legal situation around UK filesharing to get back to anything resembling sanity.

    • by Anonymous Coward on Sunday November 21, 2010 @07:50PM (#34301308)

      And, eventual enforcement of the Digital Economy Bill, currently expected for late January 2011, will probably open the floodgates to hordes of copycats.

      Don't worry. Before the election, the Liberal Democrats promised to fight against the DEB. I think we can rely on them.

      • by L4t3r4lu5 (1216702) on Monday November 22, 2010 @05:25AM (#34303982)
        I have a letter from my local MP (Lib Dem) stating she would tow the party line and vote against the DEB when it was introduced during the wash-up.

        She didn't turn up.

        When the local elections come around again, I'll be sure to send her a copy of the letter with a copy of the list of those in attendance, and a scrap of paper saying "Lying politicians lose votes."
        • by tehcyder (746570)
          In five years time (after the next election), LibDems will be extinct like the Dodo, except in their case it will be entirely their own fault. I

          I wouldn't vote for a LibDem now if the two other names on the ballot paper were Rosemary West and Myra Hindley.

          • Re: (Score:1, Interesting)

            by Anonymous Coward

            God, that election couldn't have gone better for Labour. They manage to torpedo a leftist coalition, sit in opposition for five years while necessary cuts are made, all the while squawking about how the Lib Dems are traitors, and utterly destroy the only credible third party, much more of a threat to them than the Conservatives.

            I voted Lib Dem to get election reform. By entering a coalition, they got a referendum on election reform. That's a fucking success. If doing that destroyed their political careers,

    • The Digital Economy Act has been in force since June. However, the Initial Obligations Code (the first step to cutting people's Internet connections) is now set to be finalised in April (due to the Government being slow, not due to concerns over a lack of consulting or research time).

      However, before it comes into force it needs to be approved by both Houses of Parliament and the European Commission. There's a slight chance that any one of these might kick up a fuss about it. Having read the draft code and s

    • Re: (Score:3, Insightful)

      by Gordonjcp (186804)

      Only the first group of evildoers has been obliterated; the second has been damaged, but it's still in the game;

      It's worth pointing out that legal firms that are *not* currently involved in this nonsense are scurrying around trying to consolidate their position of "Too hot, wouldn't touch it with someone else's stolen ten-foot shitty stick". If *lawyers* are prepared to stay away from a money-making scheme because it's too dirty...

  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Sunday November 21, 2010 @06:39PM (#34300942)

    As long as an effective defense is more expensive than out of court settlement, this type of harassment will exist. Even though Davenport Lyons may have known that some of the recipients of the letter were not guilty of anything, it would have been time consuming to figure out which ones they were. And with the state of the courts these days, it was more effective to take a wide view and hit everyone they could.

    Until the government provides basic defense in all cases, this type of thing will continue.

    • by pookemon (909195) on Sunday November 21, 2010 @06:43PM (#34300962) Homepage
      "harassment"

      I'd call this "Black Mail" or "Extortion". Even if the person is involved in the file sharing, and there is evidence as such, this is still black mail.
      • by jimicus (737525)

        Thing is, the legal system sees itself as an independent arbiter of disputes - which, indeed, is its purpose in civil cases. It's not meant to be the hired thug for some big company. (We'll let the fact that this is frequently exactly what corporates use the legal system for slide...)

        Therefore, as far as the system is concerned, writing a letter containing legal threats is broadly equivalent to writing a letter saying "I think you've done this thing, and I'm happy to take this to an independent arbiter an

      • by tehcyder (746570)

        "harassment" I'd call this "Black Mail" or "Extortion". Even if the person is involved in the file sharing, and there is evidence as such, this is still black mail.

        No, there is a different question if the person is, in fact, involved in file-sharing, namely if they were sued and found liable, what would a UK court actually make them pay? Has this been tested in court yet? Someone like the Pirate Bay should fund a test case.

        One thing is for sure, it wouldn't be the tens of thousands of dollars that you get in US cases.

    • by Anonymous Coward
      How about the government not provide grounds for such imaginary property in the first place? Let them sue for actual physical things stolen, then it's hard to fabricate evidence in the first place.
    • Re: (Score:3, Insightful)

      by sjames (1099)

      Yes, in much the same way it's more effective if I just steal what I want. There are minimum standards to how sure you need to be before you demand settlement under threat of lawsuit. While that standard falls well below absolute certainty, they were nowhere near meeting it. Unfortunately, a rule with no enforcement is no rule at all and there are always bottom feeders out there ready to take advantage of it.

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Until the government provides basic defense in all cases, this type of thing will continue.

      I think you're wrong. This kind of thing will continue until there are actual consequences (i.e. hard prison time) for deliberately falsely accusing someone.

    • by mpe (36238)
      As long as an effective defense is more expensive than out of court settlement, this type of harassment will exist. Even though Davenport Lyons may have known that some of the recipients of the letter were not guilty of anything, it would have been time consuming to figure out which ones they were. And with the state of the courts these days, it was more effective to take a wide view and hit everyone they could.

      Whilst this may be the case in the US it probably isn't the case in the UK. For the amounts inv
      • Are you sure about all of that? I've been looking into a small claims action recently, and the form you put in does have a box for fees for the lawyers, for example. I get the feeling it's more of a cultural thing, where if an individual is up against a company and the company shows up with £10,000 of lawyers to defend a £100 case then the court is unlikely to award costs. I'm not sure your description of where the case would be heard is entirely consistent with what I've been reading either.
      • Yup. A different, but similar vein, is that a lot of debt collection agencies have been buying up old [alleged] debts and trying to collect on them. I've had a couple of letters over the past few years demanding payment + interest for a phone bill I allegedly didn't pay years ago. Both times I've written a polite letter back asking for copies of the bill and stating that I would happily pay on sight of those copies - both times the company backed down. If I ever had a Davenport Lyons letter I think I wo

        • by stupid_is (716292)

          One interesting thing is that, AFAIK, under British law you have to prove the person not just the address for an alleged crime. For instance, more than a few people have defended a speeding ticket by stating something along the lines of "I own the vehicle, four of my family members are insured to drive it, I wasn't driving it that day and wasn't at home, and I cannot tell who was the driver". Unless the photos clearly show the driver's face or other distinguishing feature, you can't prosecute.

          That loophole is now closed [thisisbristol.co.uk] for speeding tickets - if the registered keeper can't say who was driving, then they still get slapped with at least the fine and, in this case, all 6 points. I've seen other articles where the fine and points were divided between potential drivers (in the case where they said "it was a long journey and we alternated, but can't say who was at the wheel at the time"). There's been quite a few cases of this nature getting thrown out.

        • by tehcyder (746570)
          Bollocks, in the UK the registered keeper of the vehicle is responsible for crimes committed by/in it unless he can prove otherwise. Otherwise everyone would just say "oh, that morning I actually let some bloke in the pub borrow my car, so you can't do me for speeding, but no I don't know his name or anything."
          • No, that's not true, although you're right that the loophole is gradually being closed. The registered keeper is obliged to provide information about who was driving the vehicle at the time. If they genuinely don't know (e.g. a company car shared between several employees) then they can't be prosecuted for a crime they didn't committ. They can be prosecuted for failing to give information - so you're not responsible for crimes commited by/in your vehicle, but you are responsible for providing information
    • by sorak (246725)

      This is what tort laws are for. These people weighed the benefit of following the law against the benefit of breaking the law, with fines, penalties, and lawyers fees being just variables in an equation (and the moral implications of trying to shake down innocent people possibly included as a PR expense). They then decided that they were better off violating the law.

      Strong tort laws exist not to reward people for falling down or burning themselves, but to punish those who would ignore the law because of a c

  • by syntap (242090) on Sunday November 21, 2010 @06:45PM (#34300974)

    Seems fair for their side, triple refund plus an apology in the Daily Mail if the victim wants it.

  • Perhaps I'm misinterpreting the law here, but this may actually be a plus for ACTA since it would require legitimate, gov'tal authority to investigate infringement.
  • by Anonymous Coward

    It's purely greedy lawyers who decide to put profit over doing the right thing. These are the ambulance chasers and injury fakers of the world, and how they act has nothing to do with any merits the RIAA may or may not have.

    They'd be doing the exact same damn thing if they could get money from the GPL, from Ponzi Schemes, or deeds to the Brooklyn Bridge.

  • by Alain Williams (2972) <addw@phcomp.co.uk> on Sunday November 21, 2010 @07:17PM (#34301138) Homepage
    and don't get caught: was how a legal person explained to me about lying in court. Basically some solicitors will do anything to line their pockets.
  • How would the recipient know that the firms hold or do not hold any evidence against them? And because of that uncertainty most would just pay up rather than risk a court hearing. This is under the assumption that at least the people here at least once in their life did participate in illegal file sharing
    • by tehcyder (746570)

      How would the recipient know that the firms hold or do not hold any evidence against them? And because of that uncertainty most would just pay up rather than risk a court hearing. This is under the assumption that at least the people here at least once in their life did participate in illegal file sharing

      As someone has mentioned above, the first thing you do is write to them asking for details/proof of the alleged copyright infringement. After that, even if you have done some file sharing, you just spin it out as long as possible and hope they give up. Just before finally going to court, they will probably make an offer, at that stage it might be cheaper than actually going to court (for example, is it worth having to take a day of work to avoid a £50 fine?). Although even if you do lose in court,

  • by laughingcoyote (762272) <barghesthowlNO@SPAMexcite.com> on Sunday November 21, 2010 @07:39PM (#34301258) Journal

    Apparently, English civil courts require real evidence when you bring a case before them.

    It's kind of a neat idea. Here, it's "Well, we have an IP address that we think the defendant used around that time!" We should adopt that standard here in the good old US. Actual, hard evidence. What a great idea!

    • by Mouldy (1322581)
      That hard evidence is not actually that hard. It doesn't have any weight behind the idea of who committed the act using the IP address. Consider this scenario;

      A teenager, Bob, downloads a few albums off the web. Bob's dad, John, is the account holder with the ISP. When lawyers go poaching and tell John's ISP that xyz IP address was used to download copyright content, the ISP gives them John's details. After getting a letter from the lawyers, John, denies downloading the content. Because he didn't. Or may
      • I'd love to hear of one of these cases going to court and someone tries the "I'm sorry, but I don't know who was using the computer then" defence.

        Wilful negligence is generally not accepted as a defence. In most cases, laws only allow specific listed types of defences. As the primary account holder, the dad takes responsibility for whatever happens on the account that he could "reasonably" control. (Reasonable in the eyes of a 70 year old judge.)

        (IANAL, IANYL.)

        • I don't think that's true. I think negligence would only be an issue for something that someone could reasonably be expected to control, e.g. if you owned a gun and left it lying around you might have some culpability if a murder was committed using it (though you probably wouldn't be guilty of murder). I don't think you could be expected to control something that has both legal and illegal uses where it's difficult to tell what use is being made of it.
      • by tehcyder (746570)
        It's a civil matter, the court doesn't need evidence "beyond a reasonable doubt" only on the balance of probabilities

        Trying to get clever and saying that, yes that was your IP address at the time and oh look there's the file on your computer, but it was possible that a tramp sneaked into your house and downloaded it that night, won't get you very far.

    • Pfffffffft. Everyone knows that copyright lawsuits have nothing to do with evidence!!!
  • Nothing less... (Score:3, Insightful)

    by JockTroll (996521) on Sunday November 21, 2010 @07:40PM (#34301262)
    ... Than civil death will do. Have all the lawyers involved permanently disbarred, charge everyone down to the cleaning lady with being accessory to blackmail and extortion. Permanent mark on their criminal record, so they will have to struggle mightily even to get a job flipping burgers. Let's see how those crooks like it, having to say goodbye to their fine houses and expensive cars and having to move to cheap flats while their kids say goodbye to Eton and become shank fodder in the mean streets of Old Blighty.
    • Re: (Score:3, Interesting)

      by rts008 (812749)

      ...charge everyone down to the cleaning lady with being accessory...

      While I agree with rest of your comment, I feel this might be over-reacting by including the 'cleaning lady'.

      Most likely, the cleaning staff is an employee of a cleaning service company that was hired by the law firm.

      You would be better off recruiting them as spies.

      1. They usually have, or can get access to most areas of a building, mostly unsupervised!- a lot of fun can be had here!
      2. You would be amazed at what they can find in the trashcans they are emptying!- a veritable goldmine of data/info
      3. People

      • by mpe (36238)
        3. People ignore them and act like they are part of the furniture...they overhear things, a lot of things!

        Cleaning staff might overheard even more if they talk amongst themselves in a foreign language.
      • Ladies who do! (Score:3, Informative)

        by AliasMarlowe (1042386)

        You would be amazed at what they can find in the trashcans they are emptying!

        And this was the core strategy of a trader in "Ladies who do", a 1963 comedy http://uk.imdb.com/title/tt0057241 [imdb.com]. He collaborated with a group of cleaners to make a fortune in which they all shared, based on access to inside information.

  • http://news.slashdot.org/article.pl?sid=10/11/19/1339220 [slashdot.org]

    Anti-Piracy Lawyers 'Knew Letters Hit Innocents'
    Posted by Soulskill on Sat November 20, 0:31
    from the collateral-profit dept.

    nk497 writes "A UK legal watchdog has claimed lawyers who sent out letters demanding settlement payments from alleged file-sharers knew they would end up hitting innocent people [pcpro.co.uk]. The Solicitors Regulators Authority said the two Davenport Lyons lawyers 'knew that in conducting generic campaigns against those identified as IP ho

  • by jelizondo (183861) <<jerry.elizondo> <at> <gmail.com>> on Sunday November 21, 2010 @09:27PM (#34301814)

    Getting an advert [elizondo-family.net] for a $99 DMCA takedown notices in a RIAA article...Priceless!

  • I am nephew of most glorious king of Nigeria. We have on good authority that by electronic means you having received illegal copy of wedding video featuring your music stars performance of Britney Spears. Wire $1,000US to account now to avoid embarrassing expensive litigation.
  • by 91degrees (207121) on Monday November 22, 2010 @05:10AM (#34303920) Journal
    In fact one of the regular concerns in British civil law seems to be being too American. The heavy litigation culture in the US is generally seen as a warning.

    As mentioned in the article, a law firm is required to act in the best interests of its client. I'm sure this is the case in the US as well, but in Britain it's taken very seriously. But there are other factors to consider.

    There are no statutory damages in English copyright law (as far as I'm aware. IANAL). The damages that can be claimed are the ones that can be demonstrated on court. Litigation should in general be avoided. After a settlement letter, it would be quite reasonable for the recipient to request a justification of the charge. Since legal fees can not be claimed for small claims, this would have to be based on actual losses. Now, assuming you want to accept responsibility (perhaps you actually did share the file) presumably offering to pay the actual retail cost of the infringing file would be a reasonable counter offer. If they reject that they'll need to justify the amount they're charging. £500 for writing a letter does not look like a reasonable cost.
  • Without reference to any particular case, it is good to know that cases where demands have been made in bad faith are being properly investigated.

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