ACS:Law copyright file sharing claims, Gallant Macmillan - and probably some others along the way...

[Jasper1965]

This is laughable, they try to enforce some kind of duty of care that does not exist upon you and then they reserve the right to bring a claim against you for negligence which presumably can only be in respect of this new found 'duty of care' they think you have. :-|

[Jasper1965]

There has just been a massive filesharing defeat for copyright holders in the British Courts. I'm not sure quite how ACS Law anticipate being able to bring successful legal action against anybody (who defends) when Teeside Crown Court found Alan Ellis not guilty of an offence despite him making 100's of 1000's of pounds through his website (Oink) and provably facilitating in the sharing of more than 21,000,000 copyrighted files.

This is a right kick in the teeth for the copyright owners who still struggle to understand the legalities of file sharing (pre Mandelson anyway ).

 

From "The Times"

 

A man accused of running a sophisticated music piracy website used by more than 200,000 members was acquitted of conspiracy to defraud today.

 

Alan Ellis, 26, was accused of making hundreds of thousands of pounds from the Oink website, which he ran alone from his own bedroom.

 

But a jury at Teesside Crown Court unanimously cleared the software engineer of the charge. Mr Ellis, from Middlesbrough, smiled as the jury foreman returned the not guilty verdict.

 

During the trial, Mr Ellis had told the jury that he set up Oink in his home in an effort to brush up on his computing skills while a student at Teesside University.

Related Links

 

He told the court that he had set up the website “to further my skills. To better my skills for employability”.

 

When police raided his terraced house in October 2007, they found almost $300,000 in his accounts.

 

Peter Makepeace, for the prosecution, said: “At the time this website was taken down, there were approximately 200,000 active members.

 

“Those users had access to about 200,000 audio files.

 

“This site had facilitated a staggering 21 million downloads of those available files.”

 

He added: "This is not about prosecuting some poor minnow who has taped a record one night and circulated it to their friends.

 

“This is about large scale, professional, clever, technical ripping off.”

 

But Mr Ellis said the money was used to pay for the rental of the computers that ran the website, and that any “surplus” was intended to eventually purchase a server.

 

He added that the website was developed from a free template, which included with it a “Torrent” file-sharing facility — a popular method used by some to download music illegally.

 

The court heard that users on the site were required to make a donation to be able to invite friends to join the site.

 

The site did not hold music itself, but it had allowed members to find other people on the web who were prepared to share files with others, allowing people to get hold of music for free.

 

Mr Ellis, who was born in Leeds and grew up in south Manchester, studying A levels in Cheadle, argued that there was no intention to defraud copyright holders. He had a full-time job as a software engineer and said running the site was a hobby.

 

The prosecution said he told police officers: “All I do is really like Google, to really provide a connection between people. None of the music is on my website.”

 

The prosecution said that when interviewed by police, Mr Ellis refused to answer questions about money, and said it was “out of my hands” what his site’s members did.

 

The prosecution argued that none of the cash made by way of donations was going to the music industry.

 

“Every penny was going to Mr Ellis,” Mr Makepeace said.

 

“He hadn’t sung a note, he hadn’t played an instrument, he hadn’t produced anything.

 

“The money was not going to the people it rightly belonged to, it was going to Mr Ellis.”.

 

Mr Ellis declined to answer questions on leaving court.

[Jasper1965]

Its gone so dead on here A.T.M whats up? has evary one give up the fight?

 

It would appear that ACS Law have given up the fight with those who defended thmselves but unfortunately still made enough from those too scared or unable to defend themselves to justify another round of thousands of demands from different people for the same thing.

 

Clearly this Scooter song would have been number 1 in the charts for months such is its alleged popularity, strange then how nobody had ever even heard of it.

[Jasper1965]

 

Does anyone have an opinion on whether they have a case?

 

Yes.

 

No.

[Jasper1965]

Norwich Pharmacal Orders.

 

is it not a prerequisite of such an order that the person(s) applying should normally be making the application with intent to actively pursue the ultimate subject of the order through the Courts and that the applicant should also meet the costs of the middleman (the ISP's) in this case from any amount thus awarded?

 

I suggest that garnishing tens of thousands of names without obtaining a single provable Court judgment against any, indeed without even a single provable case having ever even been brought to Court, the actions of ACS Law might appear to be systematically abusive of this particular legal process.

[Jasper1965]

Pub 'fined £8k' for Wi-Fi copyright infringement - ZDNet.co.uk

 

 

Solicitor fined £1000 plus costs for failing to file his accounts three times in a row. LINK

[Jasper1965]

What credibility should a Court give to ACS Laws supposed evidence when the man responsible for producing it in the remote eventuality of a case actually being instigated was twice hauled before tribunals by the SRA (13-12-2002 and 02-02-2006) for failing to file accounts for the years ending 1999, 2000, 2002 and 2003?

 

"the Tribunal could not allow the current failures on the part of the Respondent to continue indefinitely. For this reason, the Tribunal ordered that the Respondent be suspended from practice for an indefinite period to commence on the 31st January 2003 but confirmed that should he regularise his position and file his outstanding annual Accountant’s Reports with The Law Society by that date then the sanction imposed upon him by the Tribunal would be that of a reprimand and not a suspension. It was right that the Respondent should pay the Applicant’s costs and the Tribunal ordered that these be paid in the fixed sum of £1,250 plus VAT, a figure with which the Respondent agreed.”

(The Respondent did regularise his position and was reprimanded)

 

It would appear to anyone that Mr Crossley has some very serious issues where numbers are concerned.

[Jasper1965]

Wow got my letter through on Friday on behlaf of Media Cat asking for £1200 for a Porn film British Granny ****!!! needless to say that's not really my thing!

 

 

Peer-to-peer Stand Off - Tiscali goes against the British Pornographic Industry - Softpedia

[Jasper1965]

i have also received a letter from ACS Law. very shocked. a little scared and completely bewildered.

 

there is some great advice here. thanks tp123.

 

i have looked at this on wikipedia. here is what it says there-

 

Digital Download Controversy

 

In May/June 2010 this track became the latest digital content to be used by Uk solicitors ACS Law in a speculative invoicing campaign. ACS Law are already under investigation by the SRA (Solicitors Regulatory Authority) over this practice which was first instigated in the UK by Davenport Lyons (SRA investigation results pending). ACS Law use a Switzerland based company to harvest ip addresses of UK internet users and then target those users with claims for money running into several hundreds of pounds for alleged copyright infringements conducted over peer to peer networks. The ip addresses are presented to a Court in the UK under a Norwich Pharmacological Order and the ISP's holding those ip addresses are forced to reveal who their records state held the ip address at that snapshot in time. It is worth noting that this method of harvesting ip addresses remains wholly untested under UK law but has been outlawed in several EU member countries. Anybody contacted by ACS Law is advised to seek help either through a qualified solicitor or one of the many reputable self help sites available on the internet.

BBC watchdog, Which magazine, several national newspapers, the SRA and other regulatory bodies are all aware of the conduct of this company.

 

i will not be paying. no way. i will be using a template as a guide to create my own reply and send this vie recorded delivery soon.

 

the scary thing is, if it wasnt for sites like this i would probably be scared into paying.

 

 

Great that was me and I'm glad you've either as a result or subsequently found help to deal with this.

 

Maybe if we add such an article to all wikipedia entries relating to the affected media more people will find out about this practice as the Wiki pages do tend to come out pretty high up on the google rankings?

 

Keep it clean and accurate and then it can be contested if certain people try to get it removed.

[Jasper1965]

I spoke to someone from Lawdit Solicitors the other day (as I have still been freakin out over the whole situation) and I asked how many times do they need to write to ACS (the LoD) before ACS back off...and the solicitor said that they'll send off the LoD on behalf of client and then ACS may respond saying that they're sending a template and cannot be accepted (!) and then if neccessary, a 2nd letter is sent and ACS stop chasing after that.

 

 

I'm surprised a legal firm would feel the need to counter any accusation of a default letter being sent tbh. Still any business must be good business and the lawyers don't seem to be doing too badly on either side of this farce.

[Jasper1965]

And a little something to chew over....

 

Why Switzerland?

 

Of course had ACS Law conducted this IP harvesting in the UK they would have been subject to the conditions of the RIPA 2000.

 

This raises a few points which I'll cover briefly:

 

1) Is there a treaty or agreement in place between Switzerland and the UK relating to the interception of electronic communications.

1a) If yes then the terms of the RIPA 2000 should be extended to cover ACS's behaviour in a participating state ergo ACS must have a warrant issued in accordance with the law such:

 

Application for issue of an interception warrant

 

(1) An interception warrant shall not be issued except on an application made by or on behalf of a person specified in subsection (2).

(2) Those persons are—

(a) the Director-General of the Security Service;

(b) the Chief of the Secret Intelligence Service;

© the Director of GCHQ;

(d) the Director General of the National Criminal Intelligence Service;

(e) the Commissioner of Police of the Metropolis;

(f) the Chief Constable of the Royal Ulster Constabulary;

(g) the chief constable of any police force maintained under or by virtue of section 1 of the [1967 c. 77.] Police (Scotland) Act 1967;

(h) the Commissioners of Customs and Excise;

(i) the Chief of Defence Intelligence;

(j) a person who, for the purposes of any international mutual assistance agreement, is the competent authority of a country or territory outside the United Kingdom.

 

1b) If no then the data was gathered unlawfully and can be contested as such.

 

 

If the data was gathered lawfully under Swiss law but not UK law then the place to bring proceedings is surely Switzerland and the admissibility of evidence can be contested under UK law.

 

I don't have the time or resources to spell it out long hand but an electronic interception is an electronic interception and governed by statute.

 

And by request for the layman:

 

If the police and security services require permission to monitor electronic communications in the UK for national security, what gives Andrew Crossley the right to do the same for profit?

 

kopp Vs. switzerland 1998 and trawling outwards is a good starting place for budding lawyers with time on their hands.

[Jasper1965]

QC's view raises doubt on online piracy cases - Which? News

 

That's interesting.

 

{From ACS Law website}

 

 

1. It is suggested that I never issue any claims. This is not true. It is fair and correct to say that I try to avoid litigation wherever possible and exhaust all other avenues falling short of litigation prior to proceedings being issued (open offers of settlement, extensive correspondence, CPR Part 36 offers, final warning letters and so on), but proceedings have been and will continue to be issued in appropriate cases. Litigation has always been the final option in the processes I invoke on behalf of my clients and the number and frequency of such actions is shortly to increase significantly. However, each case will be assessed on its individual merits before a decision is taken to issue proceedings.
   

Andrew J. Crossley

1st May 2010

 

 

Which? responds to Wyand's opinion

 

Deborah Prince, head of Which?’s legal affairs, welcomed the legal opinion. ‘This provides an insight into where UK law stands on this issue,’ she said.

‘Only one case on this issue has reached the courts [brought by a client of Davenport Lyons] in 2008 where the defendant did not turn up so a default ruling was made. It's still unclear where the law stands on this issue.

 

 

Who to believe eh?

[Jasper1965]

Hmmmm, I wonder if it's worth sending a message to these solicitors informing them that their private messages including personal details of their clients are now open for everyone to see!!

 

 

Through the tears of laughter I couldn't help but notice that the ACS outward bound emails contain the following footer:

 

This e-mail is confidential and may well be legally privileged. If you

have received this mail in error, we put you on notice of its status,

please notify us immediately by reply e-mail and then delete this

message from your system.

 

Looks like I've a lot of emailing to do then.....

[Jasper1965]

Well..first of all you would of thought (or at least hope) that the ISP's involved (is it BT or O2) will question the whole process, many legal people believe that the Norwich Pharmacetical order is flawed right from the begining, it was a case many years ago that has no relevance to handing over of bulk personal data where it is very dubious that there is any wrong-doing.

 

It is clear that when ISP's have stood upto it (TalkTalk and Virgin) then they are not pursued any further, I'm sure there are now many people who believe that this is a stance that the other ISP's should of taken all along, instead of handing over our data willy-nilly and making money out of it !

 

Andy

 

Well said.

 

There's a very well informed blog on the matter here http://www.wiredvc.com/acslaw-159and-the-33norwich-pharmacal-orders/

 

We can only hope that the legal system wakes up and realises they've been duped, that would probably put this approach to bed once and for all.

[Jasper1965]

Look at the unsubstantiated legal proceedings which could be disrupted if these cyber chappies were to concentrate their efforts on MCOL until such time as Bryan Carter and select others were held to account.

[Jasper1965]

What is MCOL and who is Bryan Carter?

 

Thanks to Cerberusalert for responding sooner.

 

Although ACS and GM etc are getting the headlines there are thousands of unsubstantiated cases causing misery for people pushed through the County Court system every day in this country, many using the MCOL service which has the rather handy feature of not requiring the claimant to serve supporting documentation (ie proof of debt).

Northampton Bulk centre runs at a rate of approx 90% default judgments ie undefended judgments.

the unscrupulous litigant can use these services as a far more effective speculative invoicing operation than anything Crossley and Co could come up with.

[Jasper1965]

But as blashey has already admitted guilt the argument over the cost of damages would likely have needed to involve a legal professional, which would far outweigh the cost of making their agreement at £200. I agree the actual damages would likely have been in single figures, but to argue it in court whilst paying by the hour would have been more costly.

 

 

This is quite inaccurate, for the legal company to get this money through the Courts they would have to issue proceedings and claim an amount "£".

 

Even if one pleaded guilty to the downloading in Court they could still contest the amount claimed and put the claimant to proof that this amount claimed is fully justified and not some figure plucked out of thin air to unjustly enrich the claimant.

 

As Bashey has formally offered £100 which represents 140 times the cost of a song downloaded legally on itunes, I believe Bashey has a good case for putting to any judge that 140 times the amount the track should have cost (don't forget the artist would only get a %age of the itunes fee anyway not the full amount) probably represents 200 times the perceived loss to the claimant and was a fair and very generous offer.

 

If I were Bashy I would now write back stating that his initial offer 200X the rights holders perceived loss was a most generous offer, but the claimants representatives greed in asking for several times this amount now leads him to formally recind this offer with immediate effect and invite them to put the matter before a judge where you will take some pleasure in presenting a copy of this most generous of offers which the claimant has greedily refused.

 

Don't think you would see a summons in a hurry.....

Edited October 26, 2010 by Jasper1965

[Jasper1965]

Cheers dx.

 

Might be worth pointing out that under "The Bill of Rights 1689"**:

 

"That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void";

 

** BOR 1689 is Constitutional law ie takes precedence above statutory law unless the statute expressly revokes such rights (copyright laws don't btw).

BOR1689 is still in force and was famously used in the Metric Martyrs case.

 

IMO and this is only IMO:

 

BOR is quite clear, speculative invoicing may not be unlawful but fining somebody without first obtaining a conviction is "illegal and void".

 

Would it be difficult to persuade a judge that the other £499.11 or similarly large sums (left on the claim after deducting the actual cost of a song) that these companies wanted represents a penalty or fine rather than a fair and proportionately representative compensatory demand????

 

A problem ACs etc have is that they have asked everyone for a similar sum not for downloading but for UPLOADING the media.

let's pretend for a minute that *li's software is accurate and two fictitious letter recipients really did download the media. One must assume that these recipients would only download the media once but that's not an offence so look at the uploading for which they claim these vast sums.

recipient one downloaded once and it uploaded once

recipient two downloaded once but left the file on his pc for six months and uploaded over 100 times.

recipient one is asked for £500

recipient two is asked for £500

 

To be proven proportional recipient two must be asked for £50,000.

By asking for a flat rate sum regardless of how many times an offence was committed ie the multiple of perceived damages suffered by the rights holder, it must hold that the sum requested does not represent compensation but is instead a penalty charge or fine.

 

Of course their logging software isn't capable of proving how many uploads either recipient made so no wonder none of these Co's can afford to step near a Court and have it put to forensic analysis.

Edited October 26, 2010 by Jasper1965