photo use copyright issue case 3 - Defendant applies to set judgment aside

[schwepppes33]

Here's a good one.

 

• I send a letter of claim to the Defendant, a company, on the 5th of December 2016 which is ignored.
  
• I sent a follow up letter on the 31st of January which is ignored.
  
• I issue proceedings on the 27th of February which are deemed served on the 3rd of March.
  
• The Defendant files an acknowledgement of service saying they will file a defence within 28 days of service.
  
• They fail to file a defence.
  
• I apply for judgment on the 4th of May and judgment is issued on the 5th of May.
  
• Defendant pays judgment on the 22nd of May.
  
• Defendant writes to me on the 22nd of June saying that they want to overturn the judgment as they always intended to file a defence.
  
• Defendant says they will sue me for the judgment money unless i accept their offer of paying them back 75% of it and the entire thing is wrapped up in a Thomlinson Order.
  
• Incidentally, despite all this, the Defendant continues to do the wrongdoing I sued them for.
  

 

What do people suggest I do?

[dx100uk]

nothing you can refuse tomlin.

and object to the set aside.

 

 

seems like the ccj is doing its job and hurting them.

 

 

dx

[schwepppes33]

Do you suggest that I could make an offer to set aside for more than the cost of the judgment? This is a company with a turnover of millions of pounds.

[dx100uk]

can you hit your username and list your threads and tell us what ones all need merging please

here that are to do with this threads background?

 

 

dx

[schwepppes33]

There are no background threads to this.

 

I am somewhat surprised that if the jugdment is hurting them (I assume credit checks etc as they paid it late), that they would offer me a quarter of the judgment to overturn it.

[BankFodder]

If you issued a claim, obtained a default judgement and they have paid the judgement sum, then there is really nothing they can do. It is scarcely imaginable that set aside possibly succeed – although we would have to have a look at their set-aside application to see if there were some exceptional circumstance.

 

You say that they are continuing to do the wrong for which you originally sue them.

 

Maybe you had simply better lay it all out here so we can understand the story. You could always see them again.

 

Tell us what is going on

[schwepppes33]

I'm a photographer. They used my photographs without license or permission. Photographs were visually watermarked, had the copyright information embedded in them. They ignored me, continued to infringe etc. Still continue to infringe today. Not really consumer stuff this I know.

 

I know the law on IP fairly well (147 cases won and counting), but this stuff they sent me seems to be completely mad. There doesn't seem to be any exceptional circumstance, just constant tardiness and unreasonable behaviour on their part as you can tell from the case calendar above. I've permitted Defendants to overturn judgments before if they have been generous, and objected if they haven't but no one ever has tried to get their money back too!

 

Tactically speaking I seem to have several options.

1. Offer to let them overturn the judgment for a sum greater than the judgment.
   
2. Fail to object properly to them overturning the judgment and then ambush them in court over the continuing infringement.
   
3. Object to them overturning judgment and issue proceedings again.
   

[mariner51]

Let them continue to seek an overturn. They will have to file reasons. If they lose, sue them for further infringements of your Copyright.

[dx100uk]

There are several threads of yours that relate to taking people to court for copyright infringement

So these are all different companies?

[Ganymede]

Here's a good one.

 

• I send a letter of claim to the Defendant, a company, on the 5th of December 2016 which is ignored.
  
• I sent a follow up letter on the 31st of January which is ignored.
  
• I issue proceedings on the 27th of February which are deemed served on the 3rd of March.
  
• The Defendant files an acknowledgement of service saying they will file a defence within 28 days of service.
  
• They fail to file a defence.
  
• I apply for judgment on the 4th of May and judgment is issued on the 5th of May.
  
• Defendant pays judgment on the 22nd of May.
  
• Defendant writes to me on the 22nd of June saying that they want to overturn the judgment as they always intended to file a defence.
  
• Defendant says they will sue me for the judgment money unless i accept their offer of paying them back 75% of it and the entire thing is wrapped up in a Thomlinson Order.
  
• Incidentally, despite all this, the Defendant continues to do the wrongdoing I sued them for.
  

 

What do people suggest I do?

 

 

I'm not sure they understand why they want a set aside.

 

As they have paid in full within 28 days of the judgment then it can be cancelled and come off their credit file as it it never happened in the first place.

[schwepppes33]

There are several threads of yours that relate to taking people to court for copyright infringement

So these are all different companies?

 

Yes. I have won 147 cases and counting representing myself.

 

I'm not sure they understand why they want a set aside.

 

Me too. It is very odd. And I marked the judgment as settled ASAP too.

[dx100uk]

wow good work

[schwepppes33]

This is a new one. Send Letter of Caim to defendant. All sorts of details in the Letter of Claim....

 

Defendant's response is to demand that I attend their London headquarters, at my own expense, to prove my identity. I have never encountered such a response ever.

 

They demand I bring passport, utility bills, etc... because I wouldn't want to be a victim of identity theft (!)

 

They then conflate this with ADR saying that as I have agreed to ADR I should do this, even though it isn't ADR.

 

Oh and to top it all off, they ask for my bank details already even though I haven't confirmed my identity

 

Any suggestion in this matter? I am assuming that the Defendant's response is completely unreasonable. My identity can be easily verified through a number of sources like whois, companies house etc.

[BankFodder]

Well this is a bit of a garble. I think you ought to tell us what it is about.

 

When you say you have sent a letter of claim, does this mean that you have sent an LBA or you have actually issue the claim

[schwepppes33]

Thanks. And of course help run an email list to provide advice to other photographers who have been similarly ripped off

[schwepppes33]

According to the relevant pre-action protocol, a letter of claim was previously known as a letter before action. It is not now. I have not yet issued a claim.

 

Example here from the government - note the title.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/contents/form_section_images/pre-action_protocol/disease_and_illness_pdf_eps/prot_disease_anx_b.pdf

 

The point is that the Defendant is refusing to deal with the LoC until I visit the Defendant's office at my own expense to prove I am who I am.

 

Has anyone here every sent out a LoC or LBA or whatever you want to call it and had a Defendant act this way and if so, is it justified?

[BankFodder]

Thank you.

 

In that case, I wouldn't worry about it. You've issued your letter of claim – letter before action. As long as you are satisfied that you got a good case then if the defendant is not responding properly and reasonably – instead of trying to impose unreasonable obstacles/conditions then I would just go ahead and issue the claim.

 

Your property find that once you receive the court papers he will shape up.

 

It would still help us if you told us a bit about the story

[schwepppes33]

Same as usual... in this case a billion quid firm uses photographs without permission. I write to them. Their lawyer demands that I visit their HQ at my own expense to prove I am who I say I am and bring at least three different pieces of identity. Their lawyer claims that because I have agreed to ADR I am required to do this.

 

The question is this - is the defendant responding properly or reasonable in demanding what they are? My thoughts are they are not as the entire economic system would collapse if we demanded that everyone ever who sent us a letter or email attend our address in person to prove they are them.

 

The entire thing can easily be verified online.

 

I am interested though in the thoughts of others.

 

I find it very amusing that although they have sent me an email that literally says "Clearly you would not want to be the victim of identity theft." in the very next sentence they ask for my bank details. A real WTH moment there.

[BankFodder]

So I gather this is an intellectual property case.

 

Do you know about this - https://www.gov.uk/guidance/take-a-case-to-the-intellectual-property-enterprise-court ?

 

Although they appear to be being fussy, you should certainly verify that you are indeed the owner of the Works in question. Have you thought about putting the hosting company on notice? Hosting companies often react very dramatically to these kind of things and remove infringing items.

 

You could even threaten the hosting company to make them second defendant.

 

What is the value of the claim?

 

Which companies it which is apparently infringed the rights in your Works?

[schwepppes33]

Yes it is IP.

 

I know about the IPEC and apparently, according to court staff, I am the single most prolific litigant of the small claims track.

 

The images have been taken down.

 

They aren't actually interested in verfifying I am the owner of the works which is bizarre to say the least. They just want me to turn up at their HQ with my passport, driving license, and utility bills. None of this verifies I am the owner!

 

I quote

 

"Our client has asked that you attend at their offices in ANYTOWN with proof of ID as of course anyone could send an email or letter pretending to be Schweppes33."

 

Incidentally the email address they are emailing me on is embedded in the original copies of the images as part of the copyright information and also says to contact that precise address about licensing details.

 

The value of the claim is a couple of thousand, but will rapidly grow.

 

Right now though I am interested in knowing whether they are being reasonable or not. If it is reasonable behaviour then a claimant in Penzance would be in huge trouble if the Defendant was in Berwick.

[BankFodder]

I fully understand that they're not really interested in verifying you. There simply interested in placing obstacles and making it as difficult as possible. Because you are a litigant in person they reckon that they can dominate you with imaginary procedure.

 

I certainly wouldn't bother going to the office. I wouldn't bother giving them all the information they are asking for. They certainly don't need your bank account details. They can simply send you a cheque.

 

The only thing they can legitimately ask for is some kind of evidence that you are indeed the owner of the rights in the work.

 

As I have said, they will start to take you more seriously once you have issued the claim – although I would still expect them to be playing fun and games. Apart from anything else, if they decide to say that you are a trader, they will require that the case is transferred to their local court and this might pose some difficulty for you.

 

I'm assuming that you are simply an individual who had some pictures published – not a professional photographer. If that is the case then when you issue the claim I would emphasise this. On the other hand if you are a professional photographer, then you can look forward to some journey time.

 

If you want, you can even respond in a letter that all of their requirements are unreasonable and you will point this out to the judge when the matter comes to trial.

 

In terms of any requirement that you submit yourself to ADR, I don't see that there is anything which requires you to do this – but of course I have no idea of the dialogue which has occurred between you till now

[schwepppes33]

Thanks. That's exactly the way I read it too... I've never had anyone ask before for me to visit their office. It's an unfair and unworkable proposal, and one which I am expected to do at my own expense. They falsely claim that it is ADR.

 

I am a professional photographer, member of the NUJ, EPUK etc My work is registered with the American Copyright Office. My personal contact details are embedded in the images they used. My details are on Companies House, and on Who Is. They could find me on linkedin. My photograph of my face is on my personal website. Basic due diligence by them would resolve the issue if they were worried about my identity.

 

I even sent them with the LoC a copy of the last judgment I'd won which of course has my name and address on it and says "After hearing evidence from the Claimant in person..."

 

IPEC cases are always heard in London incidentally. The cases cannot be transferred to another court except in a very specific set of circumstances because those courts do not have jurisdiction usually. This might be of interest to others.

 

I am deaf. In the past there has been the offer to use the court appointed arbitration system over the telephone. They do not however support those of us who are deaf. As a result I cannot use the court arbitration system. Because of this, to make a reasonable adjustment, IPEC cases are always transferred to my local court.

[BankFodder]

It sounds if you have it completely under control. Bravo.

 

I really think it would be a good idea if you would tell us who it is you are dealing with – apart from anything else, as a warning to others. Tell us the name of their solicitors as well.

[schwepppes33]

Thanks. Just wanted another opinion about whether I am unreasonable. I never trust my own judgement the first time a situation occurs. What I believe is right, or correct, or legal, or procedural, may not be.

 

I can't name them right now... if we go for a settlement then I may charge them an extra grand for confidentiality I'll revisit this thread at the relevant time otherwise.

 

Their solicitor isn't actually a solicitor but rather a "consultant" working for a solicitor.

[miteaide]

Just to chip in, if you were using ADR, the 2015 Alternative dispute resolution for consumers act allows you escalate to Ombudsman online so I don't know how they would manage the ID process online.

The FOS have a tendency to do this ID process with consumers they don't like every time you interact with them.