Can accused file sharers ignore demands for £600?

 

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By Stuart Turton

Posted on 1 Jul 2008 at 14:56

Lawyers have started carpet bombing alleged illegal file sharers with demands for hundreds of pounds - but do they ever take those who refuse to court? Stuart Turton investigates

In 2007, Davenport Lyons, a law firm acting on behalf of German game company Zuxxex, sent out letters to more than a thousand people, accusing them of illegally downloading games from the internet.

The letters offered the accused a choice: pay a £600 cash settlement sometimes for downloading no more than a single game or risk being dragged into court. It was the beginning of a practice the law firm describes as "volume litigation", and one set to become more prevalent in the UK as music, movie and games companies attempt to staunch losses inflicted by online piracy.

However, after visiting forums and interviewing people who've contested these letters, we've yet to find anybody who's actually been taken to court, and it's not hard to understand why prosecutions are far more expensive than letters, and potentially much less profitable.

"On an individual case basis, if somebody is hard to find and makes you go to an internet service provider to get their details, then every stage is sucking resources for the claimant," explains Iain Connor, a partner with Pinsent Masons, and a specialist in intellectual property law. "A simple court case, if it goes all the way to trial, is likely to cost £100,000 or more."

In contrast, the process of carpet bombing alleged file-sharers with threatening letters is relatively simple and, if the £600 payoff is any indication of the costs involved, relatively cheap.

Indeed, the biggest hurdle at this stage is getting an ISP to hand over the name behind an IP address. And even that, as it turns out, isn't such a big hurdle.

"The ISPs will say, 'get a court order and well comply with it' and that is typically what happens," explained Graham Smith, a partner with Bird & Bird, a law firm that represents the Internet Service Provider Association.

"The rights owner will apply to court for the order and it'll serve its evidence on the ISP, and the ISP will consider it. The evidence presented needs to back up the claim that somebody is at least arguably infringing. If the evidence is in any way vague, or it isnt obvious what the ISP is being asked to do, it may take issue with it, but typically an ISP wouldn't actually oppose it."

Flaky evidence?

In cases of defamation, the 'evidence' is usually as simple as showing the court the offending chunk of text, whether that's a blog post or forum comment. In file-sharing cases, there's greater variety. The British Phonographic Institute, for example, "simply connects to a host computer offering files and downloads them in the same way that any other peer-to-peer user would, capturing evidence as it undertakes the download".

Others use third-party firms, which monitor networks such as Gnutella, logging IP addresses, file names and sizes, as well as times and dates of illegal file-sharing activity.

This information is then compiled into a report and presented to the court alongside a witness statement from the agency that carried out the investigation. But do the courts ever challenge the accuracy of these reports? As with ISPs, it appears to be an exception rather than a rule.

"They will reject them if theyre pure fishing trips," said Connor. "They wont let you go there and just say 'look, there's a lot of traffic from the city of London and we believe some of this is file-sharing, give us a list of all your customers'. You need to show some specific knowledge."