Downloading and possible breach of copyright?

[Carlp]

Hi

 

Not sure if this is the correct place for this question but I can't find a more suitable topic so here goes. Today I received a letter from a solicitor representing Atari regarding the downloading of a game in August 2007, the copyright for which belongs to them. I downloaded the file to obtain a working copy of the game which I had purchased prior downloading and only did so because the original disc had become damaged by myself when it fell from a shelf and bounced from it's case and would no longer install. I downloaded the file using a person to person client which I was unaware made the segments of the file that had downloaded to my computer available to other users to download from me. My question is does this still constitute a breach of copyright as I was lead to understand that I was within my rights to download a replacement as I already owned a copy of the original, the only grey area I can see is that I have inadvertently made the file available for others to download. Anyone's help with this would be greatly received as they have offered to accept a one off payment of £530 to lay the matter to rest and if I have no hope of success I would rather avoid the stress of the court process.

 

I should also add that upon completion of the download, I burnt the file to a disc and deleted it from the hard drive of my computer

[Michael Browne]

Davenport Lyons? They have just had their first victory in court, albeit judgement by default since none of the defendants turned up in court:

Court victory for computer games firm in crackdown on illegal downloads; LEGAL ANALYSIS - July 1, 2008 Tuesday - ContentAgenda.com

 

If you still have the original game, I'd say you have a good chance of success. If you google them there are plenty of instances where people have contested their allegations and DL have eventually gone silent. It appears that sufficient number of people are frightened into paying up, that if you fight them they give up and go after easier prey. A bit like Private Parking Companies

[Carlp]

Yes it is Davenport Lyons, from the paperwork they've sent me it appears that the issue they have is the fact that the process of downloading using this client allows others to download the parts of the incomplete file that you have on your computer from you, a fact that I was unaware of.

[havinastella]

what ISP was you using?

[Carlp]

I'm with Orange UK as part of my mobile package but according to the paperwork they trade as Energis Uk.

[havinastella]

I'm with Orange UK as part of my mobile package but according to the paperwork they trade as Energis Uk.

 

PHEW

[Carlp]

It's not just Orange UK though, there's a list of ISP's in the paperwork as follows.

 

BE UN Limited

British Telecommunications PLC

Cable Internet Limited

Easynet LTD

Eurisp LTD

KCom Group PLC

Opal Telecom Limited

Orange Home UK PLC

Pipex Internet Limited

Plusnet PLC

Supanet Limited

Thus PLC

Tiscali Uk Limited

Virgin Media Limited

[crazybadger]

i've had exactly the same letter for 2 different instances

 

totally £1100 damages!!!

 

has anyone any further advice?

 

i have sent an email to citizens advice bureau and am waiting for a reply

[Conniff]

I believe that downloading is not the problem as you are not offering it for sale or broadcast etc.

It would only be available to others if you left it in the P2P program and that program was running on you computer and the computer connected to the internet.

 

I would want proof that they have lost the money they are claiming because it was copied from 'you personally'. These are figures plucked out of the air and they are trying to perpetuate profits on something that has very few sales any longer.

 

They have jumped on the bandwagon started by the music industry who are trying to make us believe that downloading is the reason they don't sell as many as they used to and not the fault of the crap on the cd. It's just another money making [problem].

 

I would definately defend and put them to strict proof that they have lost sales because of you.

[crazybadger]

I have spoken to CBA who are looking into it, the chap I spoke to wasn’t too computer illiterate, so i did my best to explain all I could about p2p and the circumstances.

The question is do they have a right to demand money off me without any warning?

I have never profited or had the intention to make money.

The situation is that they have used a company in Switzerland to track IP addresses.

Then they have obtained a letter from the high court justice to force ISP to hand over details of those IP addresses on the dates they have tracked.

The ISP has handed over that info, following that Davenport Lyons have sent letters threatening court proceedings or an alternative of a written agreement stating that

1. Never to download, share distribute in the future

2. To delete any digital or hard copy files

3. to Davenport hundreds of pounds in damages

If this payment isn’t made in 28 days then they will continue with court proceedings stressing that this will run into thousands of pounds!

Also they only give the option of payment in one lump sum, (which I now lawfully they cant do, if you cant physically pay more then say £10 per month then they have to except that offer)

They have sent a copy of the high court justice agreement to me requesting the ISP (almost all of them) hand over address details

I need to know where I stand legally and what I should say in response to them.

I have a wireless modem the orange livebox, would this have any affect on the situation?

The date of the downloading was in Dec 2007, could I expect more of the same?

I’m worried as I don’t have a great understanding on law or how serious this is or whether Davenport Lyons are just trying to bully people out of money.

Do I deny all knowledge and demand detailed evidence?

Note*

Just to inform you all will writing this I have spoken again with CBA who have told me to speak with consumer direct and trading standards

I will let you know how i get on

[Conniff]

I was lead to understand that I was within my rights to download a replacement as I already owned a copy of the original,

 

What lead to your understanding of this ?

 

Do you have an invoice or receipt with the date you purchased the game ?

[crazybadger]

Just to update you the more I look into this the more it seems a [problem] to scare people into giving money away or face legal proceedings.

I’m checking with my ISP if they have received a court order and if that turns out to be false then I will ignore it completely

I will however get a an hours free consultation from a solicitor

In a court of law they will have to prove that they have evidence that it was you (personally) who downloaded and shared information.

So far as far as I can see this would be impossible as no internet connection is completely safe so impossible to prove unless you have a static IP address.

Also they would have to seize your hard drives for evidence in a court of law and this would be impossible, only people like Trading standards can do that, and that would be under a criminal conviction not a civil dispute.

Still waiting to hear from my ISP and will be speaking with a solicitor soon!

[Conniff]

So far as far as I can see this would be impossible as no internet connection is completely safe so impossible to prove unless you have a static IP address.

 

And even that is not proof. The op is using a wireless modem, so it wasn't him, it was someone across the road sitting in their car with a laptop.

 

It's good that someone is taking legal advise with this as I have always maintained that it is profiteering and nothing to do with loss of earnings.

 

Can they prove that they have lost earnings by it - no

Can they prove that anyone else downloaded from you - no

 

These are just arbitrary figures plucked out of the air.

 

Because figures of $20,000 have been bandied around the states, they probably think the £600 will make

people think they have got away lightly and pay.

Edited July 10, 2008 by Conniff

[Carlp]

Aside from the other issues, does owning an original copy of the game not lawfully give you the right to download or copy another disc if the original develops a fault?. And surely you would have to make the complete game in it's entirety available to download from yourself to quantify distributing the game to others?. My issue is that the entire game would never have been available to any individual person for complete download from me, therefore only portions of data would have been, that data being exactly the same programming code as used in countless other programs lawfully available for free download on the internet.

Edited July 10, 2008 by Carlp

[locutus]

Almost on topic here (sorry if it's straying 2 far )I remember a friend of mine had a similar issue, and it turned out someone had connected using his wireless network. When he explained this there were no further actions.

 

re "does owning an original copy of the game not lawfully give you the right to download or copy another disc if the original develops a fault?"

I'd feel a whole lot better for you if someone had extensive knowledge of copyright law to answer that one, as I feel that if the answer is that you are within your rights, then I don't feel this would be pushed in the courts.

[Carlp]

I like other people seem to get the impression that this "one off payment" offered is given with the intent of scaremongering people into parting with their money to draw the matter to a conclusion.

 

What grieves me is that they expect me to pay this amount due to the laws regarding copyright for obtaining a working copy of software the use of which I had already paid for.

[locutus]

yes and no... the thing they are complaining about is the fact that you uploaded, not downloaded.

 

However if downloading as a backup is legal, then you cannot know if other people downloading are not doing so for this purpose. Especially as that is the reason you were downloading it!

 

Like I said, I'd feel a whole lot more confident if it can be confirmed that downloading a backup is legal.

[Jackath]

I have received, what sounds like, the exact same letter from Davenport Lyons regarding copyright claims from Atari...

 

They claim that all or part of the work has been made available from two IP addresses with time stamps of a months a difference; only one statement report is supplied for just one of the IP addresses however. Was catching me once not enough? I don't fully understand that...

 

Who are Cable and Wireless Telecommunication Services GmbH? and where do they fit into this? Im quite confused.

 

In the "Computer Analysts" (Evidence) report it goes on to explain my IP address was obtained using sophisticated monitoring software. It also explains the trace (Hit) was made from Switzerland. If anyone has read into this a little bit like I have then I can assume they will agree that this points to Logistep...I have briefly looked into Logistep and right away I am just not happy with them and what has been said about them. It sounds so very, very grey.

 

I am quite confused as to what make of this too...

[Conniff]

Gmbh is Germany.

 

Just as a side - everyone will know everything about everyone if PHORM is allowed to be introduced.

 

http://www.consumeractiongroup.co.uk/forum/broadband-other-internet-issues/132887-phorm.html?highlight=phorm

[daKlone]

This seems to explain the situation:

 

Copyright law on backing-up videogames

 

I'd say that downloading a copy using a P2P client is almost certainly not legal, regardless of what you already own, especially if the client uploads data at the same time (which as far as I know they all do).

[locutus]

Not sure if it helps much, but it is interesting tho.

Section 50(A) of the Copyright, Designs and Patents Act 1988:-

It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use.

 

As you said daKlone the P2P uploading aspect of this is the problem.

[crazybadger]

I’m still trying to speak with orange's legal department.

After which I will try to get that hour’s free consultation from a law firm

Just to let anyone know if you do receive these letters it is better to consult someone on a legal basis just be sure.

Remember! You are dealing with what can only be considered a shady law firm and there’s nothing worse then that!

Speak with citizen’s advice bureau, (check website for local numbers)

They might be hard to get hold of and will probably advise you to speak with consumer direct 08454 040 506

Explain the situation and they will contact Trading standards swell

Then speak with your ISP legal department to gather whether they have given your details over to Davenport Lyons

finally go on line and check 'community legal services' its a website that will give you local solicitors in your area, a lot of them will give you a hours free consultation, this should be enough for you to find out where you stand

Also if you really do think you need further legal aid but can’t afford it, the Citizens advice bureau has links on their website for you to apply for free legal aid, (not everyone is entitled to it)

I will keep you posted on any developments

Please remember I’m in the same boat, don’t just assume anything find out where you stand in all this

If people on here have successfully ignored Davenports Threats then that’s great but they seem to be people who where threatened last year. Some on here like I have only just been threatened and are unsure if there have been any new developments in the law

A few thoughts though............

Don’t you think it’s strange that all of these incidents are to do with letters sent from the same law firm?

Why aren’t there any reports of people receiving letters from other law firms who represent other computer developers?

Why haven’t orange notified me in person or by letter regarding my contact details being passed on?

It’s always Davenport Lyons!

I still smell a rat!

Regards

Crazybadger

[crazybadger]

Another thought is that if there is no evidence that Davenport gained lawful access to your contact details, you can make a complaint on the Information Commissioners Office website.

*update*

Orange’s legal department are looking into it as we speak

[Bookworm]

I hope that you let us know what happens in the end, I think this could be very useful for a lot of people.

[crazybadger]

i will do my best

 

The info online at the moment from people with previous accounts of Davenport Lyons is a bit inconclusive.

 

i will however do my upmost to put people at ease if i can ( and just as importantly myself)

 

i must admit that since having researched this i am a lot more less worried of going to court then i was when i first opened the letters two days ago!

 

Crazybadger