TorrentFreak Email Update |
- ACS:Law Judgment Has Serious Implications for Digital Economy Act
- Makers of ‘The Expendables’ Sue 6,500 BitTorrent Users
- Slammed By Judge, ACS:Law Not Allowed To Drop File-Sharing Cases
| ACS:Law Judgment Has Serious Implications for Digital Economy Act Posted: 09 Feb 2011 01:09 AM PST The battle against ACS:Law, MediaCAT and other companies previously involved in developing the so-called Speculative Invoicing model in the UK, has been fought on many fronts. A key group that has championed the rights of the innocent caught in the dragnet, and indeed introduced the term ‘Speculative Invoicing’ to the legal landscape, is BeingThreatened.com. This compact and highly resourceful team have worked tirelessly to protect innocent members of the public from the predatory tactics we have read so much about lately. 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. a |
| Makers of ‘The Expendables’ Sue 6,500 BitTorrent Users Posted: 08 Feb 2011 01:11 PM PST
This scheme was pioneered in the US by the law firm Dunlap, Grubb & Weaver, aka the U.S. Copyright Group (USCG), but recently it has been replicated by several other lawyers across the country. A few days ago, USCG filed a round of new lawsuits on behalf of another major client, Nu Image, the studio behind the action flick The Expendables. After The Hurt Locker, The Expendables is the first major film release associated with this type of legal action. It is also one of the largest mass P2P lawsuits that was ever started, with a total of 6,500 unidentified defendants (Does). All defendants are suspected of having shared The Expendables on BitTorrent in recent months. The complaint, filed by Dunlap, Grubb & Weaver at the District Court of Columbia, further appears to be copied from previous cases. It starts off with describing how BitTorrent works, and goes on to explain how the defendants have used this technology to distribute The Expendables without permission of the copyright holder. As with previous cases, the true purpose of the lawsuits is not to start a full trial, but to obtain the personal details of the customers who are linked to the “infringing” IP-addresses. A classic pay-up-or-else scheme, or exploiting the legal system for commercial gain as others have described the process. There is no doubt that involvement in this type of lawsuit will lead to the creation of a negative image for the studio among the general public, but on the flip side the revenue potential is enormous. If 80 percent of all defendants pay a $2,000 settlement, the plaintiffs would earn more than $10 million, which equals 10% of the total box office grosses in the US. And there is potential for even more revenue. Even today, five months after a high quality copy of The Expendables became available on BitTorrent, the movie is still being downloaded by a few thousand people every day. This means that there’s enough potential to sue tens of thousands additional BitTorrent users in the future, if the courts permit it of course. The latter is a question that is likely to be answered in the months to come. Already, law firms involved in these mass lawsuits are meeting resistance from consumer rights organisations and judges. With more cases being entered month after month, the pressure on the legal system is increasing at a rapid rate too. In the UK, where these pay-up-or-else practices began back in 2007, legal setbacks, incompetence and pressure from the public eventually led to the fall of the most prominent anti-piracy law firms ACS:Law. With the spotlight now on the US, Dunlap, Grubb & Weaver and the other law firms that are involved better brace themselves. BitTorrent users who receive a subpoena are advised to contact a legal representative, the EFF has some good advice to start with. a |
| Slammed By Judge, ACS:Law Not Allowed To Drop File-Sharing Cases Posted: 08 Feb 2011 07:50 AM PST In a statement read out in the Patents County Court earlier this month, ACS:Law owner Andrew Crossley announced that he had quit the file-sharing claims business. Last week TorrentFreak discovered that he had completely closed down his business, along with his client MediaCAT who had also ceased trading. Nevertheless, the companies still have unfinished business – they can’t run away that easily. 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. a |
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