Discussion in 'Serious' started by matthew223, 9 Jul 2008.
Looks like they've got the stones to show up to a court now, albeit when they know the defence won't turn up.
Only when they know that the defense won't turn up. It seems to me that they are just on a fishing expedition.
Just in case them sending me "invitation" to court, can i defend myself?
Yes, you can represent yourself.
That would be quite interesting, you turn up and they run out of the room screaming.
there clearly is..... i doubt you would get taken to court or get fined £2000 if you were caught stealing a dvd from hmv
No, you'd be prosecuted for theft ("intent to permanently deprive") instead - which results in a criminal record, and bye-bye to several career paths. There's always the possibility of jailtime, too.
All in all, it'd make the £520 fine for downloading a pirated game seem like child's play.
I believe the reason for the high value of the fine is that you are, essentially, paying for the fact that on a peer-to-peer network, it's not only you downloading the game, but others downloading from you too: so you are, in effect, distributing the game which is, I think, the legal definition of piracy (not the act of copying the game, as such, but the act of distribution).
Of course, IANAL applies in buckets here.
depends on were you live....
dam are you kidding me. For downloading they want you to pay arround 1000$. THAT IS crazy ****. What the hell.
Most of people downloading and nothing happen why you?!
I received a nice letter from Davenport Lyons last week as well, stating I had made available the game ‘The Witcher’ on a P2P network and that I can choose to pay them 870£ now or be prepared to get sued. I have now finished some extensive reading on the internet and got a ton of information thanks to guys like you who all shared their knowledge. Just wanted to say thanks at this point, you’re fantastic!
To the point: I am now most definitely not going to pay anything to them if I am not advised to do so by a court order. Not only is their ‘Letter of claim’ in itself very dodgy, but their forensic analysis is widely discredited across the EU and their claim presented to court to obtain personal information from the ISPs is very questionable. For all who are interested in this or who are in the same position as I am I will post all the interesting reads I found so far on the subject (some of the links might be already in this thread or on this forum, I just wanted to summarize it, all my thanks go to the original posters):
http://torrentfreak.com/uk-bittorrent-users-under-more-pressure-from-lawyers-080111/ (11 Jan 08)
http://torrentfreak.com/codemasters-set-lawyers-on-bittorrent-colin-mcrae-071129/ (29 Nov 07, containing interview of TorrentFreak and probably a lawyer going through the dodgy parts of the letter)
http://www.theregister.co.uk/2008/07/02/davenport_lyons_dream_pinball_win/ (2 July 08, recent case brought to court against 4 of the accused who didn’t turn up)
http://www.theregister.co.uk/2007/03/28/uk_share_hunt/ (28 March 07)
http://community.plus.net/blog/2007/11/28/file-sharing-letters/ (28 Nov 07, PlusNet’s file sharing letters)
http://torrentfreak.com/youre-caught-downloading-dream-pinball-settle-now-or-go-broke/ (31 March 07, German ruling on Dream Pinball)
http://www.theregister.co.uk/2007/12/07/davenport_lyons_codemasters_statement/ (07 Dec 07)
http://torrentfreak.com/anti-piracy-company-breaches-privacy-080123/ (23 Jan 08, Logistep and the data protection commissioner in Switzerland)
http://torrentfreak.com/lawyer-who-threatened-file-sharers-banned-6-months-080405/ (5 April 08, similar case where a lawyer has been banned)
http://virtuallawatlse.blogspot.com/2007/03/davenport-lyons-pursues-500-file.html (29 March 07)
http://www.theinquirer.net/en/inquirer/news/2007/03/29/pinball-software-in-p2p-legal-row (29 March 07)
http://torrentfreak.com/victims-of-wifi-theft-not-responsible-for-illegal-uploads-080709/ (9 July 08, German ruling)
http://torrentfreak.com/court-hits-bittorrent-users-who-failed-to-appear-080702/ (2 July 08, on the recent case against 4 not appearing sharers)
http://torrentfreak.com/vigilante-group-threatens-p2p-lawsuit-lawyer/ (2 May 2007, comment of ‘Davenport Cats’ further down, as well as here: http://uk.mailarchive.ca/legal/2007-05/1083.html )
Following are some facts I gathered from all the input (please bear in mind that I am no lawyer and that the following points are just recalled from memory, so they might not be 100% true in each case, but you can read all of this on the above links):
1. The so called ‘forensic analysis’ by Logistep is widely discredited as evidence in courts in the EU (Germany, France and Italy if I remember correctly)
2. Logistep has been instructed by the data protection commissioner in Switzerland to stop snatching off IP addresses or they will face legal action (I still have to research as to what has come out of that)
3. Logistep seems to be a subsidiary company of Davenport Lyons in some way
4. A lawyer who used Logistep or is associated with Logistep has been banned from conducting her profession temporarily due to form and content of the initial letter (quite similar to the one I received) sent to the accused
5. In Germany around 500 people accused of file sharing are represented by a single lawyer and have won all cases against them so far. The judges in Germany made some devastating rulings against the claimants. A final ruling is yet to come as far as I know.
6. There is apparently an EU directive/law stating that IP addresses have to be treated as personal data and can in so far not be gathered randomly nor given to a third party.
7. Concerning the court order for ISPs to disclose personal data relating to IP addresses:
a) As I have currently only the ruling I can’t see if the claim/petition was made in order to pursue criminal or civil action. It seems to be the case that the ruling would not have been so easy or at all possible if Davenport Lyons filed it under civil action, but then again there is no criminal case here nor was there ever; this will be seen when the original claim has been disclosed after applying to the court in question.
b) When disclosing personal data – even due to a court order – doesn’t the ISP have at least the obligation to inform their customer of doing so? I have not yet received any correspondence from my ISP.
c) Just a general wondering: the ISPs have apparently the right to oppose the disclosure, and from what I have heard this will be granted unless there is a very strong (probably criminal) case. Why did only one ISP on the whole list of ISPs make use of this right?
8. Concerning the ‘Letter of claim’:
a) The letter was not sent recorded signed for, which is highly unusual and probably done to save costs.
b) The letter uses “Dear Sir/Madam” and is only machine signed
c) The letter contains a lot of information on what will happen if you don’t pay the amount. This seems to be used to intimidate the accused.
d) The letter does not inform you about the further consequences of you signing the attached form. One of the consequences will probably be that if you receive another letter of Davenport Lyons in another case and this time are not prepared to pay you will lose a lot of credibility in court.
e) The letter gives the impression that their evidence is absolutely waterproof and that a court will probably rule to 99% in their favour even before any hearings. This is certainly part of their intimidation tactics, but I doubt very much that this is all in all legal.
f) The letter states that Davenport Lyons is not able to correspond to any other letters apart from the returned form, on the grounds that they can’t get in any lengthy debate considering the amount of sent accusations. As I understand it this goes against any right of a citizen and would probably be in itself enough to take legal action.
g) The letter states that file sharing in the UK is illegal. In my humble opinion this is not correct since there is no court ruling so far on this matter.
h) The letter states that in case of a negative answer from the recipient (in other words: he does not want to pay) Davenport Lyons will ‘will be seeking as a minimum from you an interim payment of at least 1,000$’. Coincidentally the value is just a little bit higher than the claimed amount and has in addition the status of being only interim, meaning there is more to come. First of when reading the whole paragraph the reader gets the impression that it won’t be a problem at all for them to get this interim payment and that secondly it is only a matter of time when the outstanding amount is calculated. This gives the clear impression that your case is lost either way before it even began and that you better pay up now.
i) The attachments hold just enough information for the reader to see that the IP address on the first page is matched together with his name and contains the letter to the ISP including the empty return form plus the ruling of the court to disclose the personal information from the Internet Service Providers. The letter states in addition that they hold so many pages of evidence against the recipient that DL can’t send it all. Further information upon the disclosure of personal information of the ISPs can only be retrieved by appealing to the court, for which probably a solicitor is needed, which basically means additional costs.
“To not give a complete account of all the necessary information regarding something is called lying, at least in some cultures.” The ‘evidence’ provided is just enough to suggest a certain image of being trapped on all sides. Once any question is raised in regard to the evidence it becomes immediately clear that a lot more is needed to support a full case.
j) The last paragraph states that both content and actual documents of the letter are copyright Davenport Lyons and that any unauthorised use (especially posting on websites) will result in proceedings against the recipient. I am very unsure about this part, since the only really interesting information one can get out of the documents is the personal data of the recipient. So why do they not want their letters to be published?
The list will probably go on and on, as a whole it is just too much to be ignored. I actually feel intimidated. Suing someone for copyright infringement is one thing, trying to intimidate, even harass someone, probably violating the data protection act plus providing misleading information is another one. This manner of behaviour is in my opinion not okay and has to be stopped, not least because of all the ones who already paid up, probably not for the last time. It could be even considered as some kind of blackmailing, albeit this will not stand it court, but this is basically how I feel.
Therefore have I decided to get legal advice and consider the counter actions available to me. I am willing to pursue this until my resources run dry. As DLs tactic is to target only individuals and get them down on their knees it only makes sense to concentrate forces by working together with others who are in my position. That works so far very well in Germany where 500 accused are represented by one lawyer together.
If you are in the same position as I am please get in contact with me (e.g. write a PM). If you know of any others who have already formed a kind of alliance please let me or they know. I am very grateful of every bit of information that will help me in this case, so please don’t hold back. I am also on the lookout for a good lawyer who deals in copyright infringement cases and has ideally also an idea of file sharing and the technical concepts thereof (no offence, most of the lawyers I know don’t have a clue about the technical bit, which doesn’t mean that lawyers in general don’t know anything about technical stuff), so if anyone has some names popping up in their head please let me know as well.
At last: sorry for letting this get out of hand concerning the size of my post, I just couldn’t get it any smaller without leaving some interesting bits out. This is also meant for someone who is currently not sure if he would rather pay up and gets it over with. Unfortunately I haven’t spoken to a solicitor yet, so the above is broad speculation of course. I would also like to apologize for the many mistakes I have made, I am also living and working in the UK for a good year now. And thanks for your time reading this and any comments that might follow.
just thought... cant you use the freedom of information act to request all the data they have about you? wouldnt this give you a fairly good idea what you are dealing with?
Whoa - welcome to the forums MrX, and thanks for that informative post.
You should be able to. I've had concerns about the legitimacy of this DavenPort company from the beginning though...
Personally, I simply would not pay it.
It's a civil case, not a criminal case. If you lose, the worst that can happen is that they can send the bailiffs after you.
Though that may affect your credit rating.
If you actually go to court, though, I'm sure you will be found not guilty. Surely they need irreputable proof that you are the person who did it?
if you really want them to get hit hard, just say that you aren't planning on showing up and look through the court calender to see when your date in court actually is, then show up with an attorney (or yourself) with your hard drive as evidence. then if they try to call off the lawsuit, sue them for emotional trauma caused by reckless use of evidence.
HAHA, sounds like a plan...
...or does it. That could be anyone's hard drive, and who's to say even if it is yours you didn't deleted the file and write zeros over it several times. I personally think it is like saying "I didn't steal that money you think I might have done judging by your flimsy evidence, look its not in my hands now is it?". But while that invalidates your point, it also proves your another one, there really is no proof that you did it. Bringing your whole PC along and acting the fool would work much better. Anyone seeing you bring in your hard drive will play on the public's view of computers being complicated and scary, and that if you can take your hard drive out then you are "clever" enough with computers to download a game.
get them to prove it to you, its still an innocent till proven guilty system, which they cant unless they seize your equipment (rawr) and have conclusive proof. not a chance, and for a measly £500 is basically a scam. make sure you counter sue for damages/liable/slander and also "emotional" stresses caused.
Separate names with a comma.