Wintord
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I dont think that really matters as the monitors are based outside of the uk and are not bound by uk laws. Now if this evidence can be used if it is breaking uk laws is a diffent matter, as they will never be seen in front of a judge, so we may never know.
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The thing with not replying in a civil case, is it could go against you, as the courts (as if its ever going to get there) like to see you have tried to resolved the matter before being taken to court. I have kept all my replies as simple as I could along the lines of. I did not commit or knowingly let anyone else commit the offence you claim happened. I have also yet to see any proper evidence from you reguarding this matter other than a seemingly random generated IP address, When I see proper evidence from you reguarding this matter, including the methods of obtaining my IP address, I will then anwser your letters properly. And till I recieve this information, any replys I send to you will be a photocopy copy of this reply.
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This current run seems to be slowing. But it is just what had happened with DL they milked all the cash they could get out of it at the time, it stopped for awhile for another company to continue where it left off a few months later (ACS in this case) and it seems to be at that stage now they have got as many as they could to pay up and are winding it down, with a few left they think they may be able to get to pay up. Give it a few months since anyone has heard anything from ACS and some other solicitor will have taken over from MR C, and the process begins again. The laws Mandelson wants to bring in will force the IP providers to monitor there networks (at a cost to its customers), but they still leave the option open for these monitor companys, to continue what they are doing and taking people to court. (sorry I ment to say send letters claiming they are going to take you to court)
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I was right have had it confirmed on another forum, someone did take DL to court over the matter has they were fed up with it all. They would have got the costs back eventually, but he still had to pay out to get the matter to court in the first place, even though there was a very, very, very small risk that he could have lost.
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If I remember rightly and I might not have, But I think someone did take it to court when it was DL running this crap, They did win the case, but the problem is it cost him a fortune in doing so.
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Carefull ACS might take that as an admission of guilt, they like to bend the rules a little.
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ACS have never at any stage accused you of having or sharing the file (though they state they do not rule that out) what they are doing is holding the person who has there name on the bill associated with that IP address liable for the infringement. Thats why they will never take anyone to court who does not say something ACS can use, because they cannot hold you liable for something someone else did without your knowleadge (if it ever actually happened in the first place). In the long run they will never take you to court, but you cannot force there hand in this, for exactly the same reasons they wont take it to court. I did read abit ago that someone in germany got took to court and the judge made them and over the details of the tracking systems used and it got chucked out because it was proved the IP harvesting was inacurate, from what I could understand. It was a straight google translation of the court papers from german and not easy to follow.
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It was worded wrong looking at it again and it was a responce to Mr Toms suggestion of taking ACS to court, You would need to remove any probabilities out of the case if you were to do so. The only thing I had to do that was my hard drives, but then they would argue the alleged offence was to long ago to use these. I wish it was a simple case of taking them to court and getting a win. Alot would have already done so, if it was a simple thing to do. But if you went after them with nothing but probabilities it could go massivly wrong, the same as it could for ACS if they actually decided to take you to court. There is no actual evidence either way other than probabilities at this stage, its just down to the judge on the day who he decides to side with (remember there clients have won and lost cases in other countries based on these seemingly random IP address there monitor has picked up with nothing to back it up), I know I cannot afford to put a massive amout of money in to getting ACS to court andless I was 100% going to win.
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I was refering to the account holder and yes your right it could be anyone but you would have to prove that someone else did it, same as they would have to prove it was proberly you who did it, but thats the thing they only have to convince the civil court judge 51% that it probably was you who did it and you have lost, if it was criminal cases they would have been stopped along time ago. I dont even live at the address where the alleged infringment took place the bill is just in my name, but the solicitor still turned round and said if you get a judge that is supportive of the music/games/porn industry methods (bit like the one allowing the NPOs in the first place) you would have a hard job convincing him/her you did not do it. ACS know full well there evidence would not stand up in court without something to back it up, But has my solicitor said what actual evidence do we have to prove we did not, the alleged offence happened to long ago for our hards drive to be of any use to anyone (for evidence or defence). Thats the main reason ACS wait months before they issue the claims, they can base there whole case on probability if you did the offence or not, so they know people are not going to push this matter for fear you might get the wrong judge on the wrong day and it goes horribly wrong for you, not matter if your guilty or not, the same has he wont push court action because it could go against him.
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The problem with taking them to court is that the evidence is based on proberbility as would be any defence you put up due to it being so long after the alledged infringement. They know full well these facts, thats why they dont take people to court because it could go either way if they took someone there, they could lose alot of money, as could someone if they decided to counter claim against them and get the matter to court. I looked into taking it to the small claims court to force there hand not long after my second letter and my solicitor advised against it, has he said it would be 50/50 if I won or not, due to its a civil case, they do not have to prove beyond resonable doubt (like if it was a criminal case), just that you proberly did it.
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what you should be doing is logging all your time spent researching to reply to him and put a charge on the letters, I think legally it is a max of £50 per letter (but that would be decided in court) you have to inform ACS that you are doing this. That way if you ever recieve court papers you fill it in saying you want to counter claim for your time and expences against him, the court will decide how much he then has to compensate you if you win. (Sorry when you win)
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The SRA are still investigating DL from when this first started that was almost 2 years ago when they started looking at them, I would not expect a quick decision by them on this. All they would be able to do anyway, is give him a slap on the wrist for the mistakes he is making, he is not breaking current UK laws with sending out these original claims (other solicitors dont like what hes doing, has it is against there way of working, but there is not much they can do to stop him sending these out , because he is operating inside the law sending these out JUST) , the problem the SRA will have is what he is doing after he has issued them. If they stop him from doing it because of how hes handled it, someone else will just take over, as ASC did from DL, there will always be someone looking to make money for doing as little work as possible (I bet MR C has hardly touched any of the claims being sent out and hes just the one going to court to get your details). This will be ongoing till the consultation on these matters has been sorted and new laws are sorted to hopefully stop this happening. But at least now those who have contacted there MP's nearly all have there backing in the matter and in the long run they are proberly the most important people we can get suppoting us as it will be them (politicians) that have the most say in future laws regarding this, we cannot sit and do nothing and let them be bullied by the music industry on this, we must keep on there backs.
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They are still investigating DL
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Putting demands on the time they have to reply would not go down well in court (if it ever happens), just the same as them making demands for payment in 7 days. There are pre action protocals that both partys should be following. If they chose to constantly ignor these rules, then it can only help us, but we should not reply putting demands on them ignoring the pre actions procedures required just because they ignor them does not mean we should. We can put all the demands we want in the letters, they will just be ignored. Currently they have 6 years to deal with it and theres nothing we can do about it for now, it does not matter if its right or wrong, were in this for the long run.
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They know what is happening and in there recent draft of the consultation for these type of claims they were making it so these types of things can be done, let hope they took notice of all the people who responded to the consultation and changes are made or this could get very messy for innocent people.
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