Which? has complained to the Solicitors Regulatory Authority about letters from Davenport Lyons, describing them as ‘bullying’ letters. They say that these letters have gone out to ‘hundreds of innocent consumers’. Which? say that the alleged file-sharers received letters from Davenport Lyons demanding payment of £500 compensation for copyright infringement. There is no dispute that the firm has been engaged in a large-scale operation to stop file-sharers in the UK; as Davenport Lyons put it ‘we have been instructed by a number of media clients who own the intellectual property rights in music, film and games to help them curtail the significant losses they are suffering as a result of people illegally downloading copies of their products’.
A recent Which? Computing investigation found that while working with games firm Atari, Davenport Lyons wrongly accused a Scottish couple, aged 54 and 66, of infringing copyright of a game ‘Race O7’. Since then, Atari is said by Which? to have severed ties with the law firm. But Which? Computing claims to have evidence from a number of other people who, after repeated letters from Davenport Lyons, have been ‘scared’ into paying compensation for something they didn’t do.
In a letter sent to the Solicitors Regulatory Authority on 9 December, Which? says it believes the conduct of Davenport Lyons, while acting for its clients, has been ‘bullying’ and ‘excessive’. Which? Claims that the Davenport Lyons’ letters to alleged file sharers:
- make incorrect assertions about the nature of copyright infringement;
- ignore the evidence presented in defence;
- increase the level of compensation claimed over the period of correspondence.
- allege that failing to properly secure an internet connection is grounds for legal action.
Deborah Prince, Head of Legal Affairs, Which?, said: ‘We think the SRA needs to take urgent action against Davenport Lyons. In the current financial climate, we expect an increase in the action that companies may want to take against individuals. The SRA must investigate all such allegations and take decisive action where necessary.’
Davenport Lyons itself issued a statement on 9 December, but the principal focus of this is the stories circulating on the BBC web site and an item on BBC’s Watchdog programme (http://news.bbc.co.uk/1/hi/technology/7763185.stm) about their actions, both of which predate the Which? letter to the SRA. That statement does however deal with the main complaints echoed by Which? and is set out in full below.
As to the specific points made by Which?, we asked Davenport Lyons to comment and also requested that SCL’s readers might see a standard letter. There was no response to the request to see the letter but the firm did release a statement as follows:
We have seen the press release put out by Which? stating that they have written to the Solicitors Regulation Authority (‘SRA’) complaining of our conduct in relation to the file sharing litigation we have been undertaking for various copyright owners.
Subsequently we have seen the letter that Which? has sent to the SRA. We do not propose to comment directly on this letter as we do not want to prejudice any SRA investigation with which we will fully co-operate. We are confident that we have not breached SRA rules. What we will say is that Which?’s letter to the SRA contains a number of errors, misstatements and assumptions that are simply incorrect.
We cannot speculate on Which?’s decision to take this course of action but note that the letter to the SRA specifically states their intention to engage with the media. We are surprised that Which?, a consumer group, should wish to attack so strongly a scheme which is designed to protect copyright, the theft and/or unlawful misappropriation of which costs consumers each year. Which? says it is acting on behalf of consumers generally, but we wonder how many consumers are frustrated that they continually purchase music, film and games legally while others make that copyright material available for others to download for free. The honest consumer ends up paying in the end.
The starting point for our actions is that our clients have a legitimate right to protect. Our clients own copyright in works that are made available on peer-to-peer networks where they are downloaded by others for free. This practice is causing our clients significant loss and to combat it they have engaged experts to identify, using reliable methods of detection, the IP addresses used at the time our clients’ copyright material was made available on peer-to-peer networks. Acting on instructions, when those IP addresses are supplied to us, we apply to the High Court for an order that the relevant internet service provider discloses the name and address of the individual responsible for the IP address.
We then write to the individuals whose IP address has been identified, setting out our client’s claim which, as it is a civil action, we will need to prove on a balance of probabilities. We give those individuals to whom we write the option of settling the matter for a sum which is a fraction of the loss suffered by our client. We explain that if the early offer to settle is not accepted, we will issue proceedings subject to any submissions the individual may wish to make. We take full account of those submissions before deciding our next step. Which? has accused us of ignoring evidence in defence. This is untrue and we wonder how Which? could purport to know this or our state of mind.
We requested some information from Which? as soon as we became aware of their press release but we are yet to receive a substantive response to our request. We will await such a response before deciding on the steps that we take next.
Davenport Lyons expanded on this by commenting on a draft of this article specifically, as follows:
‘First, we deny it is a money making scheme because that gives the impression we are trying to collect money from individuals regardless of the evidence. We accept that as lawyers we make money from these actions of course.
Dr Prince says we miss the point. We don’t. Which?’s opinion is that our letters are bullying. We do not agree. The issue is that Dr Prince then goes on to make a number of statements of fact (such as we ignore evidence) which we have asked Which to substantiate.
We have asked Which? to give us their evidence that we:
- make incorrect assertions about the nature of copyright infringement;
- ignore the evidence presented in defence;
- increase the level of compensation claimed over the period of correspondence.
- allege that failing to properly secure an internet connection is grounds for legal action.
Despite a number of exchanges Which? have refused to do so’.
People who have received a letter from Davenport Lyons and believe they have been wrongly accused are asked by Which? to contact them at whichcomputingnews@which.co.uk.
Laurence Eastham comments:
It is worth stating the obvious first, especially as all other comment on the topic is dangerous. I appreciate however that a number of people will disagree with me about even the most obvious points.
It is inevitable that those who see themselves as suffering losses through the activities of file-sharers will seek to take some form of action against those who are responsible for those losses. Indeed, it is A Good Thing if those responsible are made to pay compensation for a number of reasons – at its lowest one might endorse it because it relieves me of paying a hidden cost every time I legally download or buy material that is targeted by file-sharers.
It is A Bad Thing if unnecessary worry is caused to people who have had no involvement in file-sharing because they receive letters threatening action. Since the majority of readers of the material on this site are lawyers, it is worth stating that letters from solicitors are worrying for the majority of the population; few can easily dismiss them when the facts alleged within them are plain wrong.
Two of the allegations made by Which? scarcely merit the name. The supposed ‘ignoring’ of evidence presented in defence probably means that Davenport Lyons do not believe the people concerned. Moreover, increasing the claimed compensation with each letter sounds perfectly sensible, provided that the compensation which can properly be claimed (and attendant costs) exceeds both figures.
If it was indeed suggested that failing to secure one’s Internet connection (without more) can somehow give rise to liability for losses, I think that is plainly wrong. Dogs and bites spring to mind – one would need some indication of improper use for a duty to take extra care to arise. Failing to secure against misuse cannot be equated with allowing misuse. But I am mindful that people tell lies about such things – look at the astonishing defence of Grant Raphael in Applause Store Productions Ltd and Firsht v Grant Raphael [2008] EWHC 1781 (QB (click here for SCL’s report). Obviously someone else might use one’s computer for unlawful activity but sometimes the excuses will have the sniff of lost homework about them. On the same topic of exaggerated liability, I am also concerned about some of the very convenient statements that are made by copyright owners about a parent’s liability for the online activities of his or her child – often a supposed contractual liability would not stand up in court.
There is a real issue arising from all this about the usefulness of IP addresses in locating copyright infringers. I feel that the IP address is an obvious starting point and the suggestion (made on BBC’s Watchdog report on file-sharing enforcement) that the only real evidence is a computer’s hard drive is highly questionable. If we don’t use IP addresses as a starting point we might as well give the pirates the keys to the copyright library.
I am somewhat surprised that Davenport Lyons has refuted the allegation that they are involved in a money-making scheme. It is like my butcher denying consorting with dead animals. Practically everything I do in working hours (including this) is a money-making scheme and I see no problem in a firm of solicitors using the law for such a purpose. That does not of course stop them from claiming that there may be wider benefits to the enforcement scheme than their own enrichment.
Original Statement from Davenport Lyons (issued 9 December 2008)
Davenport Lyons is a leading law firm with highly specialist intellectual property lawyers.
We have been instructed by a number of media clients who own the intellectual property rights in music, film and games to help them curtail the significant losses they are suffering as a result of people illegally downloading copies of their products from file sharing networks.
Illegal downloading of copyrighted works is a major issue costing rights’ holders tens of millions of pounds in revenue. The issues first came to the public’s attention in the well-known legal cases involving the then illegal file sharing platforms Napster and Grokster, whose activities were threatening to destroy the legitimate music industry. The magnitude of the problem is such that legislation is being proposed in Europe, which would mean that users would be banned from the web if they fail to heed three warnings about putting copyrighted works on file sharing internet sites.
In France similar laws have already been passed and just over a year ago a Belgian court ordered the internet service provider Tiscali to block users from file sharing. The idea that file sharing of copyrighted works is an innocent pastime that does no damage is completely wrong.
While downloading copyrighted material illegally is bad enough, uploading it onto a file sharing site where it is made available to countless others to download is far worse. The BBC is careful on its iPlayer site to make clear that ‘the distribution of programmes by users on any unlawful sharing site ‘is illegal’. The BBC elsewhere also makes clear in its online editorial guidelines that it will protect its copyrighted material and asks users to contact its Legal and Brand enforcement team if they see a site exploiting BBC material.
The BBC as well as our clients, recognise that legal action is sometimes the only way to protect its rights. The damage done to the rights holder by illegal file sharing is significant as it allows its product to be copied by many different individuals who otherwise would have had to pay to purchase it legally. Our clients are pursuing those that upload their copyrighted material in order to make it available to others to copy without paying what the copyright owners are entitled to receive.
To protect their rights our client’s expert provides evidence of internet protocol addresses (‘IP address’) that have been used to upload our client’s copyrighted material onto an illegal file sharing site. This evidence is used to apply to the High Court for an order to require that the relevant Internet Service Provider provide the details that identify who owns that IP address only once the High Court has accepted the evidence before them is sufficient in an order made that the ISP disclose the subscriber details. We write letters of claim to the individuals identified pursuant to an Order of the High Court.
Our letter of claim sets out clearly the evidence that has been collected which identifies the subscriber as the owner of the IP address used to upload our client’s copyrighted material. It explains why this activity is illegal and that if proceedings are issued there will be cost consequences for the losing party. The letter of claim offers to settle with the individual identified.
The terms of settlement are primarily to seek undertakings not to make that copyrighted material available again plus compensation of approximately £500. How this sum is made up is set out in our letter of claim but consists mainly of the cost of the considerable work (legal and expert) required to identify the owner of the IP address. The sum in the settlement is a fraction of what would be ordered by a court if an individual were found liable after a trial. There is no compulsion on the individual to accept this settlement. Our letter makes clear that proceedings will be issued if the settlement is not accepted ‘subject to receiving any submissions you may wish to make to us’. Where submissions are made (such as someone claiming that have not uploaded the copyright material or that the ISP has wrongly identified them as the owner of the IP address) we look into these carefully and thoroughly before deciding whether to proceed. This is the same as in the case of all legal actions where a potential defence is raised after a letter of claim is sent.
The steps we take on behalf of the owners of copyrighted works are an entirely legitimate process to protect our clients from infringement. In a large number of cases the offer to settle is accepted because the individual identified accepts responsibility for what they have done and agrees not to do so again in the future
We cannot respond in detail to specific points because client confidentiality prevents disclosure of a comprehensive list:
1. The lawyer representing people who have received correspondence from us and who says this is a money making scheme is simply wrong. This action is designed to prevent further illegal exploitation of our client’s copyrighted material. The settlement sum sought in no way compensates for the loss suffered or the cost of getting the settlement.
2. The experts who identify the IP address use highly sophisticated software. Our principle expert systems have been the subject of the scrutiny of the Swiss TS (part of the ISO Certification process) and have received ISO Certification numbers 9001 and 27001)
3. Courts in Europe have confirmed the efficacy of our leading expert’s process.
4. When an individual enters into a contract with his ISP they agree to ensure that they will not allow others to use their internet connection for unlawful purposes (such as illegal file sharing) and that they will not do so themselves.
