If you would like to print this information or save it for later, please use this printable single page factsheet (pdf).

Our response to the recent e-mail leak can be found here.


Background

Two law firms have been sending out letters [1] claiming that the recipients have illegally made available, on filesharing networks, certain computer games, music and even pornographic films. An estimated 25,000+ letters have been sent [2] with many more sure to follow Many agencies who can help may have received one or two letters from, or had meetings with, worried recipients. They will have seen documents directed at individuals but may have scant information on the scale of the operation.  A brief outline of the affair follows.


Letters were first sent in early 2007 [3] and typically threaten the recipients that, if they do not pay a sum of money (in the region of £500-£600), they may be taken to court. In fact, not one case has been contested by both sides in a court of law, only a few default judgements have been awarded because the accused did not defend [4][5]. The big problem with this is that a significant proportion of the recipients never downloaded the works, and in some cases were not aware of the technology they are accused of using. Even pensioners have been targeted [6].


Collateral damage

It is important to highlight the considerable hurt inflicted on those that are innocent and get caught up in this scheme.  No one should have to cope with the stress of anticipation for the 6 years set out in the statute of limitations. Having a potential lawsuit over your head for this time, especially one regarding pornography, is understandably causing many people a lot of stress.  Should you be in any doubt to the impact, several people have written about their personal experiences, including several cases of anxiety and insomnia that have resulted from these letters.


Profits from fear

According to one of the law firms, 15% to 40% of letter recipients pay up [7]. That amounts to millions of pounds. It is estimated that 10% of the money goes to the publishers. The remainder goes to the for-profit 'data monitoring' companies and the solicitors. Millions for the cost of a mailshot; it is only a matter of time before other opportunists jump on this particularly profitable bandwagon [8].


In early June 2009, thousands of new letters were sent out accusing people of making available graphic pornography titles such as 'Army F***ers', 'Russian Teen Obsession' and 'Bareback Sailor Pimps'.  While this dragnet undoubtedly brings up some who are guilty of filesharing, there are also lots of innocent people who pay: people who are intimidated by the threat of legal action, people who are too scared to talk about hardcore gay or 'barely legal' pornography with their spouse, and people who just want it to go away and pay up even if the accusation is entirely unfounded. Despite a complaint having been filed with the Solicitors Regulation Authority (SRA) by the consumer magazine Which? in 2008 [9], the bullying letters continue unabated.


Flawed evidence

Data is provided by two private monitoring companies: Digiprotect and Logistep based, respectively, in Germany and Switzerland. They harvest IP addresses (unique internet addresses which identify a connection) from filesharing networks. The solicitors, instructed by the game, music and movie publishing companies, then use a Norwich Pharmacal order (NPO) [10] to get subscriber data for the IP addresses from the internet service providers (ISPs).


Many people are able to see the likely evidential flaws in the methods. However, there is frustration that, in the absence of a contested case, the only evidence released is simply a list of dates, times, and IP addresses and therefore people are unable to seek expert advice or address the evidence of claims alleged. There is clearly potential for misidentification of individuals between the IP address and the data kept by the ISP. This is in addition to spoofing concerns and general doubts in the whole chain of custody. Indeed, the ISPs Association has admitted that ISPs aren't convinced that the right people are identified.


It should also be noted that an IP address can only be traced to a connection and there is no guarantee that the account holder was responsible. In June 2009, a court in Italy ruled that an IP address can only identify a connection, but not an infringer [11]. Indeed, due to the poor default security found on wireless routers, it is entirely possible that a neighbour, or a malicious third party is responsible for the infringing act [12]. There is no precedent in UK law for the account holder being held liable for unauthorised use of their connection [13].



Timeline

June 2006: Judge Kokott of the European Court, in a Spanish court case involving Telefonica, encouraged member states' high courts to reject the release of IP addresses to pursue civil infringement cases [14].

March 2007: The first letters of claim received from Davenport Lyons (DL), mainly for 'Dream Pinball' (alleged infringements dated September 2006; NPOs are likely to have been requested in December or January).

Febuary and March 2008: a lawyer in France, Elizabeth Martin, was struck off by the French legal regulators [15] for attempting the same schemes pursued by DL (and now by ACS:Law).  Authorities in Switzerland, Germany and Italy banned Logistep, under privacy laws, from collecting details within their own country, requesting deletion of data relating to their citizens and blocking release of personal details.

Throughout 2008: DL are granted uncontested NPOs for the release of at least two additional data batches.

July 2008: Case brought before the Patents County Court. This decision has no bearing as a precedent. Although first reported as a contested case [16], later information states that it was either settled prior to court consideration, or else was defaulted. 

November 2008: ACS:Law are granted their first NPO in the Chancery Court.

December 2008: Which? submit a formal complaint to the SRA regarding the bullying nature of the letters.  BBC's Watchdog covers stories of accused individuals, including forensic examination, which predictably finds no sign of the infringing files.  Atari states they have ended their association with DL.

March 2009: ACS:Law are granted their second batch of data from an NPO.

May 2009: the first accusatory letters from ACS:Law are sent out (including several titles already pursued by DL). ACS:Law formally register with the ICO under the obligations laid down in the DPA more than a week after these letters are sent (and more than 6 months from the first NPO granting them access to private data). Davenport Lyons appear to back out of all previous cases. No further correspondence has been received from DL to date.

Later in May: ACS:Law send out a second batch of letters responding to denials sent to their initial letter.  BBC Radio 4's 'You and Yours' cover the ACS:Law claims, Andrew Crossley sounds hesitant against the challenge of a letter recipient and states that people are under no obligation to pay, in contrast to the nature of the message in the letters.

June 2009: ACS send out letters alleging the making available of pornographic material.  One week later a new batch of letters goes out concerning music by popular artists 'Scooter'.




Links:

[1] Example of a letter (game), example of a letter (porn, first page only)
[2] The Register - Copyright lawyers accuse 25,000 UK filesharers
[3] Torrentfreak - "You're caught downloading 'Dream Pinball', settle now or go broke"
[4] Torrentfreak - Default judgments and huge damages for uncontested filesharing cases
[5] Topware Interactive vs. Isabella Barwinska court order
[6] Guardian Money - Porn bill for couple who can't download
[7] BBC Radio Four - You and Yours 3 June 2009, interview with alleged filesharer and solicitor
[8] The Register - Phone phishers hop on filesharing legal threats bandwagon
[9] Legal Week - Davenport Lyons rapped for 'bullying' letters
[10] Where is my data? - Civil Law: Norwich Pharmacal Order
[11] Torrentfreak - IP address alone insufficient to identify pirate, court rules
[12] Torrentfreak - UK file-sharers and the 'wireless defense'
[13] OUT-LAW - Wi-Fi providers not liable for others' infringements (UK comparison in 2nd half)
[14] European Court ruling on the retention and release of personal internet data for civil action
[15] Torrentfreak - Lawyer who threatened file sharers banned
[16] BBC News - Game sharers face legal crackdown



More information

Please have a look a the Reading room and the threads linked from the Forum links for more background information. For real stories from letter recipients, please have a look at the Your stories page. Recent media coverage can be found on the In the media page.

If you have further questions or would like to contact us, please e-mail us on press [at] beingthreatened.com.

 

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This consumer information website is for informational purposes only. This website does not accept any responsibility or legal liability resulting from the use or misuse of the information presented in any of the pages or linked resources. The views and opinions in these pages and in the linked resources do not necessarily represent the views of the site author.

 
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