Monday, November 15, 2010

TorrentFreak Email Update

TorrentFreak Email Update

Suing Blind and One Legged Pirates is Bad PR

Posted: 14 Nov 2010 01:21 PM PST

When in court it is the job of the defense lawyer to cast doubt on the credibility of the prosecution's case. Finding and highlighting those details which show the defendant to be misleading or unreliable can be the make and break of a case. Unfortunately for ACS:Law's Andrew Crossley, that is a knife that cuts both ways as yet again he is shown to have misled a reporter.

When ACS:Law burst onto the file-sharing litigation business scene in mid-2009, the similarities between their modus operandi and that of Davenport Lyons, the company that had pioneered the ‘pay-up-or-else’ scheme, were clear.

Since we were interested in his work, TorrentFreak gave ACS:Law owner Andrew Crossley an opportunity to tell everyone about his business. Our very first question was this: “What is your connection with Davenport Lyons?”

The answer from Crossley was plain and straightforward.

“None,” he told us via email on 8th May 2009.

Having followed these cases for some time, we immediately suspected that we were being misled. At the time, however, we had no hard evidence to prove it.

But now, as confirmed by these previously unpublished excerpts from the Solicitors Regulation Authority report into Crossley’s activities, it is clear that four days after he spoke with us he was telling the SRA investigation a completely different story.

During a telephone conversation between Mr Roberts [of the SRA] and Mr Crossley on 12 May 2009, Mr Crossley confirmed that all of the non-contentious work in relation to each of Davenport Lyons' remaining four clients had been transferred to ACS:Law.

Furthermore, Crossley also employed two staff directly from Davenport Lyons to carry on the file-sharing settlement work. The best known recruit was Terence Tsang and as confirmed by another extract from the SRA investigation report, the second was Adam Glenn.

During the Davenport Lyons investigation, the Investigation Officers interviewed the supervisor of the P2P file sharing department, Adam Glenn. Mr Glenn joined ACS:Law as a senior supervisor in May 2009 and it is understood carries out broadly the same duties at ACS:Law as he had undertaken whilst employed by Davenport Lyons.

As if Crossley’s reputation hadn’t already taken a big enough battering from the recently leaked emails, an article published this week in The Telegraph illustrated yet again that at times this man has difficulty playing a straight ball.

The article, ‘ACS Law: Are you a middle-class pirate? This lawyer would like a word with you…’ details an extended personal interview conducted with Crossley just a week before his company emails were spilled out onto the Internet.

“When we spoke he [Crossley] had portrayed himself as a pauper, telling me that 'less than a month ago' he had been wandering around an air show with no money in his pocket and not a 'penny to my name',” wrote Telegraph reporter Paul Kendall a short way into the article.

Sadly for Crossley, the leaked emails painted a different picture.

“….[Crossley] had just bought a Bentley Arnage, was considering buying a Ferrari F430 Spider 'in a couple of months' and was hoping to move into a new home with 'five double bedrooms, three bathrooms and four reception rooms',” noted Kendall, quoting from the leaked emails.

It’s worth bearing in mind that Crossley admitted he could go bankrupt without the file-sharing work, so there’s little doubt where this money was coming from.

Of course, at the time when Crossley made his ‘pauper’ comments he would’ve had no idea that the leaked emails would later show that he had been misleading a reporter from a national newspaper. However, at some point Crossley changed his mind about his position before The Telegraph published their article, and then made an unsuccessful attempt at censoring it.

“Hi Paul,” wrote Crossley in an email to Kendall. “One thing I wanted to scratch from the interview was I said I had no money recently. That was not an accurate reflection of the position.”

“Accurate reflection”? I think we’re starting to get the hang of this “legal jargon”….

The Telegraph article raises some other interesting issues, particularly where one thing is being said by ACS in public but differing conclusions and other motivations are being discussed in private. They weren’t detailed in the piece, but we’re happy to help.

When Kendall visited ACS:Law’s offices he saw two rows of crates carrying documents labeled 'First Bare Denial', 'Second Bare Denial', 'Admissions and Settlements', 'Drop Claims', and 'Complex and Sensitive'.

“I make a mental note to ask Crossley about the latter, but before I get the chance, I'm distracted by one of the paralegals on the phone,” wrote Kendall. “For most of the time I've been in the room he's been taking a steady flow of payments, but this time I hear him tell the caller that their case has been dropped.”

Kendall asked Crossley why they took this action.

“The woman I was talking to had just come off chemotherapy,” said Crossley. “She's on disability allowance and says she can't afford to pay.”

What’s this? Compassion from ACS:Law? Hardly. Maybe this internal email describes their motivations a little more clearly.

Date: Mon, 30 Nov 2009 17:30:56 -0000

Fellow Paralegals,

From now on, if you find a response to a third party letter, do not send a security letter. Instead, please move the letter into the ABANDON HOPE folder in General Paras.

This is because Andrew and Adam will be drafting a new letter so we can drop a couple of hundred cases over the next couple of weeks, putting pressure on those who we do not drop to settle.

If you find someone who is blind, one legged and dying, and you think they are not worth pursuing due to the possibility of bad PR, please also put them in there. However, the majority of cases will be continued.

Those following ACS:Law closely will remember Crossley making rather a big thing about dropping cases, even announcing that he was doing so on his now defunct website. We now have an insight into why, but Crossley doesn’t miss an opportunity for some good PR.

“We drop many cases,” Crossley told Kendall. “I've dropped cases where people have sent money in. To give you just one example, a chap wrote in. He said: ‘I don't know what this is about, but, unfortunately, your letter arrived a week after my wife died. I'm in no fit state to deal with this so I'm just paying it.’”

“I sent the cheque straight back. I said: ‘We're not here to pursue people who aren't in a position to consider it properly.’”

But people who were in a position to “consider it properly” were still hounded by the company. One accused individual wrote back to ACS:Law with the following defenses which were logged in company files as follows:

Defence 1: CATEGORICALLY DENIED

Defence 2: HAS NOT INFRINGED COPYRIGHT OR AUTHORISED ANYONE TO DO SO

Defence 3: NO UK LAW WE CAN USE TO PROSECUTE HIM

In reference to item 3, the letter recipient resides in Scotland (London Patent County Court used by ACS only has jurisdiction to hear cases from England and Wales). Coupled with items 1 and 2, that should have been the end of the case. Instead, the following email was written in response:

Date: Wed, 2 Jun 2010 16:25:38 +0100

Dear Leyla,

I have drafted a final warning for this infringer as he resides in Scotland. He sent an internet template letter in response to our letter of claim.

Other emails reveal that other Scottish cases are also given special treatment. In one case it was felt that sending a ‘Final Warning Letter’ might not be appropriate, not because the letter recipient’s claims of innocence had been accepted, but because they had engaged the assistance of the Citizens Advice Bureau. The defenses lodged by the accused and listed by ACS:Law were as follows:

Defence 1: Responded with template letter
Defence 2: Categorically denies infringement
Defence 3: No UK law we can prosecute her with

So with the one-legged, dying, disabled and Scottish out of the way, what about children? The Telegraph raised this with Crossley.

“Later, when I suggest that parents can't be held responsible for everything their children do online, [Crossley] seems to change his position on this, arguing that the children themselves – 'after the age of 10 or 11' – should be sued, but I suspect this is just bluster,” wrote Kendall.

Bluster indeed. Yet again, this seems to be a case of Crossley saying one thing in public, but his expert Adam Glenn advising him differently in private.

From: “Adam Glen”
To: “‘Andrew Crossley’”
Cc: “‘Jonathan Miller’”
Subject: RE: SCTR_30001607 – BORRIE – JMM
Date: Tue, 8 Dec 2009 21:53:08 -0000

[...]Section 97 provides for the damages in an infringement action. In determining damages s97(1) provides an effective mens rea component to the infringing act. This means that it is not the equivalent of a strict liability offence.

The Act asks if the defendant knew if copyright subsisted in the work at the time and whether they had reason to believe that it subsisted in the work. If it can be shown that that knowledge and belief did not exist then the rights-holder "is not entitled to damages".

The question is therefore whether the child, aged 14, had such knowledge or belief. On the basis of settled law, using either criminal and tortious precedents as a guide, I would submit that it is likely that the courts would make a decision on the basis of the capability of the child and any expectation of whether a child of that age would have such knowledge or belief. I would caution that that would be a difficult presumption for us to sustain on current case law.

Thus if we cannot show, on the balance of probabilities, that the daughter had knowledge and belief then, under the act, we are not able to claim damages.[...]

But this is probably moot since ACS:Law would never pursue a case against a child in court, because if the letter recipient refused to pay, the case would almost certainly be filed in the ‘Drop Claims’ or 'Complex and Sensitive' crate.

Finally, we’ll just touch on the confidence ACS:Law have in the evidence they use to prise settlement from individuals.

“Our evidence is pretty compelling,” Crossley told Kendall. “Everybody says it's not, but it really is.”

“Every time an application is submitted to court for disclosure from ISPs, there is an independent expert's report analysing and reviewing the integrity and accuracy of the data that's being captured,” he later added.

Independent expert? That does indeed sound quite compelling. ACS:Law must be very happy and completely convinced that their “expert” knows what he’s talking about? As it turns out, they aren’t at all.

In an email dated August 24th 2010, Adam Glenn runs the idea past Crossley of getting an “Alternate Expert Witness”. It contains a line which suggests serious concerns exist with their current ‘expert witness’.

You know my view on the quality of Clem Vogler's expert witness statement and what I perceive as the opportunity it provides to serious challenge.

The Telegraph interview took place before the hugely damaging email leaks and a number of publications have been trying very hard hard to get a comment out of ACS:Law ever since. They got one line.

“It’s business as usual at ACS:Law,” Crossley told the media at the end of September.

These were the last public words of ACS:Law, either through the press or via their now defunct website. Both ACS:Law domain names are currently parked.

The company sent out a flood of letters warning recipients that they have 14 days to pay up or see their papers filed out court. Some papers have indeed been filed at court, but that means little and is being seen as a last throw of the dice to get people to pay up. There is no indication of mass panic setting in among the accused.

While ACS:Law and Andrew Crossley have made many questionable statements in the course of their settlement letter business, there is one big one that still hasn’t come to fruition. Time and again they promised to bring a case to court – a full, proper, bona fide contested case against one of the dozens of innocents they have wrongfully accused.

It’s sad that they didn’t do that and we maintain today, as we have done all along, that it will never happen. We’ll also go out on a limb with an even bigger prediction. The ACS:Law settlement business is over.

“Business as usual?”

Sure.

Article from: TorrentFreak.
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