acs:law – Techdirt (original) (raw)

from the some-good-some-bad dept

Earlier this week there was a long and detailed ruling out of the UK’s High Court of Justice, looking into the practice of copyright trolling (suing a bunch of alleged infringers based mainly on IP address info, where the real purpose is to send threatening letters to get people to pay up) and finding it questionable — but still agreeing to force an ISP to hand over some user account information. These kinds of lawsuits certainly feel like a form of legalized extortion, and, over in the UK, ACS:Law and Davenport Lyons each ran into legal troubles for the scheme. A perfect ruling here could have completely slapped down the practice, but instead, it appears the court went for a more nuanced route.

The judge here tries to slice a ruling down the middle — rejecting large parts of this lawsuit for effectively trying to create a “court sanctioned… sale of the Intended Defendants’ privacy and data protection rights to the highest bidder,” which the court finds questionable. It also goes into a discussion about copyright trolling, or, as it calls it, “speculative invoicing.”

However, at the same time, the judge does require ISP giant O2 to hand over data on a bunch of people accused of file sharing to Golden Eye Ltd — but does so with some caveats. While there were many associated cases that all got rejected, the court did pick one, Ben Dover Productions, which it allows to move forward with O2 being required to release a lot of customer data. However, apparently somewhat fearful that such info would be abused to send out shakedown letters, the court wants to “supervise” any “pre-action correspondence” that the companies send. After admitting that this is not “normal,” the court says that the situations with ACS:Law and MediaCAT show “why this is an appropriate course to take.”

the court needs to consider the impact of the letter of claim upon ordinary consumers who may not have access to specialised legal advice, who may be innocent of what is alleged against them and who may be embarrassed and/or distressed by being alleged to have been involved in filesharing involving pornography.

From there, the court actually goes on to critique the “draft letter” — noting that the original letter Golden Eye wants to send is “objectionable in a number of respects,” specifically in misleading recipients of the nature of the threat and their options. It also attacks the specific demand for £700, noting that the amount is “unsupportable.” The reasoning here is quite interesting, with the final reason being the most telling. The judge slams Golden Eye for admitting that it chose £700 because “only a small proportion” of people they send the letter to will actually pay up. As the court notes:

This comes quite close to an admission that the figure of £700 has been selected so as to maximise the revenue obtained from the letters of claim, rather than as a realistic estimate of the damages recoverable by the relevant Claimant from each Intended Defendant.

The judge also points out that each defendant may be a different situation, and some may not have infringed at all. Having a blanket settlement fee simply is not appropriate, and clearly is not an accurate representation of damages. Additionally, the court notes numerous other problems with the nature of the shakedown letter:

First, the reference to the Code of Practice is inappropriate both for the reasons given by HHJ Birss QC and because it was not designed for letters to ordinary consumers.

Secondly, the draft letter does not make it clear that the fact that an order for disclosure has been made does not mean that the court has considered the merits of allegation of infringement against the Intended Defendant.

Thirdly, the draft letter asserts under the heading “Infringing Acts” that the Intended Defendant is liable for infringement. Although the last paragraph under that heading implicitly acknowledges the possibility that the Intended Defendant may not be the person who was responsible for the infringing acts, this acknowledgement is not sufficiently explicit. Furthermore, the reference under the heading “Proposed Settlement” to “inaction, by permitting a third party to use your internet connection” undermines the effect of the implicit acknowledgement. As HHJ Birss QC has explained, nothing less than authorisation suffices for infringement, at least in the context of a claim for damages.

Fourthly, the second paragraph under the heading “Legal Consequences” is too one-sided in that it sets out the consequences to the Intended Defendant of a successful claim without acknowledging the consequences to the relevant Claimant of an unsuccessful one. Fifthly, the reference to “other intellectual property” under the heading “Proposed Settlement” is unjustified. There is no evidence that any other intellectual property rights of the Claimants have been infringed.

Sixthly, I consider that requiring a response within 14 days is unreasonable given that the Intended Defendants are consumers and that there is no urgency in the matter. 28 days would be reasonable.

Lastly, the threat to make “an application to your ISP to slow down or terminate your internet connection” is unjustified. Counsel for the Claimants accepted that the word “application” was inappropriate, and said that “request” would better convey what was intended. I do not agree that a threat even of that nature is justified in a letter of this kind, however.

All in all, it’s good to see the court recognize how such copyright trolling can and is abused, and try to limit that. It’s too bad that it still comes down on the side of having O2 give up a bunch of user information, still knowing that this is likely how it’s going to be used. However, at least it’s trying to minimize the abuse.

Filed Under: copyright, speculative invoicing, trolling, uk
Companies: acs:law, ben dover productions, golden eye, o2

from the paying-attention dept

To the various lawyers in the US who have been jumping on the mass copyright infringement/pre-settlement shakedown bandwagon, you might want to pay attention to what’s happening in the UK, where the guy who really made this strategy famous has been found to have breached the solicitors code of conduct with these lawsuits. Yes, ACS:Law’s Andrew Crossley has not received a kind reaction from the judge who was already troubled by the way these cases had played out:

Ruling in the Patents County Court in London on Monday, Judge Birss QC described ACS:Law’s pursuit of illegal filesharers as “amateurish and slipshod” and said it had “brought the legal profession into disrepute”.

Birss said Crossley had breached the solicitors code of conduct because he was responsible for the licence agreement between Media CAT and the original copyright holders, and stood to profit from it. The code of conduct states that “you must not enter into an arrangement to receive a contingency fee for work done in prosecuting or defending any contentious proceedings” before the court.

The judge said: “I am quite satisfied to the standard necessary for this stage of a wasted costs application that Mr Crossley is responsible for the basic agreements [the licence agreements between Media CAT and original copyright holders] and has thereby acted in breach of the solicitors rule 2.04.

“In my judgment, the combination of Mr Crossley’s revenue sharing arrangements and his service of the notices of discontinuance serves to illustrate the dangers of such a revenue sharing arrangement and has, prima facie, brought the legal profession into disrepute. It may be better placed under the revenue sharing heading in this judgment but it is, prima facie, improper conduct in any event.”

It’s nice to see court systems on both sides of the ocean not taking kindly to this sort of clear abuse of the judicial system as a part of a business model.

Filed Under: andrew crossley, uk
Companies: acs:law

Judge Not Amused By ACS:Law Stunts; Forcing Cases To Continue

The saga of ACS:Law and its mass P2P user shakedown campaign continues. Despite claiming to have shut down completely in an attempt to avoid any possible sanctions for its disastrous strategy, the judge is forcing the cases to continue, saying that ACS:Law and its partner MediaCAT cannot just drop the cases in an attempt to “avoid public scrutiny.” The judge clearly sees the shakedown scam for what it is:

I cannot imagine a system better designed to create disincentives to test the issues in court…. 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 appears to have also slammed ACS:Law and Andrew Crossley for claiming that one reason for dropping the cases were that necessary documents were in storage and they didn’t want to retrieve them. The judge saw through that excuse:

“If true, it is extraordinary,” said the ruling. “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.”

Once again, those firms in the US copying this strategy should probably take note of what’s happening over in the UK.

Filed Under: copyright, pre-settlement, uk
Companies: acs:law, mediacat

from the brothers-in-arms dept

ACS:Law wasn’t the first law firm to try the “send tons of ‘pre-settlement’ letters to people we accuse of file sharing in hopes they just pay up,” business model. In fact, ACS:Law got all of its initial paperwork from another law firm, Davenport Lyons, who was trying to get out of that business. However, ACS:Law was the firm that really got much of the attention over the past few years. Just about a year ago, that business model finally jumped to the US, initially from an outfit called US Copyright Group, which was really an operation run by a tiny DC law firm called Dunlap, Grubb and Weaver along with an online monitoring company. However, with the latest news that ACS:Law and its online monitoring company MediaCAT have completely gone out of business — perhaps in a weak attempt to avoid sanctions for their disastrous attempt to finally bring some cases to court, it makes me wonder if this is a precursor of things to come for US Copyright Group/DGW. It certainly looks like DGW has been a bit more careful with its strategy than ACS:Law (where it really seemed like Andrew Crossley got in way over his head), but it certainly should be a warning sign to all those law firms who think this sort of shakedown play is easy money.

Filed Under: pre-settlement, uk, us
Companies: acs:law, dunlap grubb & weaver, mediacat, us copyright group

ACS:Law Apparently Gives Up For Real

from the will-it-last? dept

This was suggested in our recent post about the “fake company” used by ACS:Law’s Andrew Crossley suddenly telling people to forget the letters demanding payments, but Andrea See lets us know that Crossley has announced he’s “ceased” his work on shaking down alleged file sharers. Of course, he can’t resist playing the victim in doing so:

“I have ceased my work…I have been subject to criminal attack. My e-mails have been hacked. I have had death threats and bomb threats,” he said in the statement, read to the court by MediaCAT’s barrister Tim Ludbrook.

“It has caused immense hassle to me and my family,” he added.

If it’s true that he’s had death threats and bomb threats, that’s really unfortunate, and hopefully those who were involved in such activities also get tracked down. No matter how ridiculous one is abusing the legal system for profit, that’s simply no excuse for death threats. That said, Crossley has waged a years-long campaign shaking people down for money, threatening them with massive legal fines if they don’t pay up, frequently accusing people with little or illegitimate evidence. And after multiple setbacks and questions about his activities (including an investigation from the regulatory body that oversees lawyers), that he’s only now realizing it’s best to get out of the business seems like he stuck at it way beyond what most folks would consider reasonable. It’s also why I wonder if he’ll really stay away for that long. I imagine this is not the last we’ll hear of Andrew Crossley.

Filed Under: copyright, shakedowns, uk
Companies: acs:law

Mysterious Non-Company 'Helping' ACS:Law Collect Fines Now Says Forget The Whole Thing

from the moving-on... dept

As ACS:Law’s legal mistakes mount, there was a recent story about how the company had passed on some collections efforts to a firm called GCB, but the details suggested another total screwup. People tracked GCB back to an accounting firm, which quickly put on their website that while GCB was formed by it, it “appears to be being misused by some third party,” and that it was “taking urgent steps” to end this. The details suggested some odd maneuverings:

When PC Pro spoke to McLean Reid partner John Champion, he told us that GCB had been registered at that address on behalf of one his clients, David Fisher.

Champion said that Fisher had lent his dormant company to an associate, who had been collecting the file-sharing money without his knowledge. “He just decided to help a friend out,” Champion said. “He wanted a dormant company, and he said ‘Oh I’ve got one that’s not doing anything, you can have that’.”

“I know Dave Fisher is put down as a director [of GCB], [but] this activity was done without him knowing what activity was happening,” Champion added. “I think he’s taking steps to make sure all that money’s been repaid.”

The “friend”? Yeah, according to PCPro, it turns out that it was Andrew Crossley, the guy from ACS:Law. Either way, it seems that all this attention has scared Fisher off. An anonymous tipster alerts us to the news that if you call the phone number that GCB tells you to call to pay up, you get the following message:

“If you have received a letter from GCB Ltd please disregard this letter as GCB is no longer pursuing the matter stated in the letter.”

Seems like Crossley and ACS:Law are going to have to try the next option.

Filed Under: andrew crossley, copyright, fines, shakedowns, uk
Companies: acs:law, gcb

ACS:Law Continues To Screw Up In Court; Judge Not Happy

from the comedy-of-errors dept

Watching ACS:Law continue to struggle to figure out how the law actually seems to work in the UK is becoming an amusing pastime. The firm, which was one of the earlier “pay up or we’ll sue” mass copyright infringement houses, had (for years) avoided actually taking anyone to court, but tried and failed to do just that late last year. TorrentFreak has been covering the details of how this comedy of errors involving ACS:Law and its partners went down, that appears to involve mistake after mistake after mistake, which left the judge claiming he was “astonished” at ACS:Law’s “unprecedented” claims, and may leave ACS:Law facing champerty charges at a later date.

Here’s just a snippet (yes, there’s actually more) of what went down:

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.

[…]

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.

If you want to read even more gory details, go check out the full TorrentFreak story. That said, it’s somewhat amazing how ill-prepared ACS:Law and its various partners appear to have been before going into court. It certainly lends more credibility to the idea that the operation was built on the plan of never, ever setting foot in court.

Filed Under: copyright, uk
Companies: acs:law, media cat

ACS:Law's Epic Failure In Trying To Take File Sharing Cases To Court

from the impressively-bad dept

One of the key jokes concerning ACS:Law, the shakedown legal outfit in the UK which sends “pay up or we’ll sue” letters to those it claims infringed on one of its clients’ copyrights, is that it’s never actually taken anyone to court. Apparently, the firm thought it was finally time to fix that — and tried to carefully pick defendants who simply wouldn’t respond, in the hopes of getting an easy default judgment, which it could then tout as proof that it would take people to court — and that people would be found guilty. Unfortunately, it appears that just about everything in that plan failed. First of all, ACS:Law brought the suit with a front company, Media C.A.T, rather than with the actual copyright holder. You can’t do that. On top of that, the judge found all sorts of problems with the cases, including the fact that it wasn’t clear all the defendants were actually served and notified of the lawsuit. But the key part, was that the judge slammed ACS:Law for lying and claiming that simply letting others use your network connection to infringe is restricted. The judge said that’s not what the law says:

“The plea that ‘allowing’ others to infringe is itself an act restricted by s16 (1)(a) and 17 of the 1988 Act is simply wrong,” noted Judge Birss. “The term used by those sections of the Act is ‘authorising’ and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties.”

Judge Birss later noted: “A key part of the plea of infringement rests on an assertion [by ACS:Law] that ‘allowing’ others to infringe is itself an infringing act, when it is not.”

Another amusing bit is that the judge noted how odd it was that in the requested injunctions with the lawsuits, the injunction was not to have the individuals stop infringing on those copyrights — which is the standard request. Of course, that seems to be a rather straightforward admission that ACS:Law isn’t trying to reduce infringement at all. Either way, the judge rejected all of the requests for default judgment. This is pretty stunning, because getting default judgments often seems like it’s only a formality. And ACS:Law couldn’t even do that right…

Filed Under: copyright, default judgment, uk
Companies: acs:law, media c.a.t.

UK ISPs Refusing To Hand Over Subscriber Data To Pre-Settlement Lawyers Due To ACS:Law Data Leaks

from the oh,-now-they-decide-this? dept

The fallout from the ACS:Law email leak continues. Law firm Gallant Macmillan, who only recently jumped into the pre-settlement shakedown game, went to court this week to seek the names of various people it wanted to send such letters to and UK ISPs BT and Plusnet — who had previously cooperated with such requests — refused to hand over the information, citing the privacy issues raised by the fact that ACS:Law did not properly store and privatize the information it received on subscribers. Of course, it’s a bit weak to wait until now to make this complaint. These ISPs should have been standing up for their users from the beginning. Still, better late than never.

Filed Under: pre-settlement, privacy, uk
Companies: acs:law, bt, gallant macmillan, plusnet

Privacy International Plans To Sue ACS:Law For Mishandling Information On Those It Threatened

from the oops dept

A bit more fallout from the ACS:Law email leak. In the comments on our last post, cc pointed out that one of the discoveries in the leaks is that ACS:Law did not properly protect the private information of those who paid up after receiving a pre-settlement threat letter. In fact, the email leaks apparently revealed over 10k names, addresses and credit card details in some cases. Because of this, Privacy International is planning to file a lawsuit against the company, for not living up to EU privacy regulations on such information. PI is claiming that the company violated data protection laws by allowing sensitive information to be stored on a public-facing server, and not taking the “appropriate technical and organisational measures” to protect the data.

Filed Under: data protection, privacy, uk
Companies: acs:law