Davenport Lyons going against file sharers

[Hamurabi]

I received a nice letter from Davenport Lyons last week as well, stating I had made available the game ‘The Witcher’ on a P2P network and that I can choose to pay them 870£ now or be prepared to get sued.I have now finished some extensive reading on the internet and got a ton of information thanks to guys like you who all shared their knowledge. Just wanted to say thanks at this point, you’re fantastic!
To the point: I am now most definitely not going to pay anything to them if I am not advised to do so by a court order. Not only is their ‘Letter of claim’ in itself very dodgy, but their forensic analysis is widely discredited across the EU and their claim presented to court to obtain personal information from the ISPs is very questionable.

[Here should be a list of around 20 links to news sites and other forums, but I can't post them here because I need at least 5 posts (which is actually not a bad rule, I have to admit). Please write me a PM and I will send you the list.]

Following are some facts I gathered from all the input (please bear in mind that I am no lawyer and that the following points are just recalled from memory, so they might not be 100% true in each case, but you can read all of this on the above links):
1. The so called ‘forensic analysis’ by Logistep is widely discredited as evidence in courts in the EU (Germany, France and Italy if I remember correctly)
2. Logistep has been instructed by the data protection commissioner in Switzerland to stop snatching off IP addresses or they will face legal action (I still have to research as to what has come out of that)
3. Logistep seems to be a subsidiary company of Davenport Lyons in some way
4. A lawyer who used Logistep or is associated with Logistep has been banned from conducting her profession temporarily due to form and content of the initial letter (quite similar to the one I received) sent to the accused
5. In Germany around 500 people accused of file sharing are represented by a single lawyer and have won all cases against them so far. The judges in Germany made some devastating rulings against the claimants. A final ruling is yet to come as far as I know.
6. There is apparently an EU directive/law stating that IP addresses have to be treated as personal data and can in so far not be gathered randomly nor given to a third party.
7. Concerning the court order for ISPs to disclose personal data relating to IP addresses:
a) As I have currently only the ruling I can’t see if the claim/petition was made in order to pursue criminal or civil action. It seems to be the case that the ruling would not have been so easy or at all possible if Davenport Lyons filed it under civil action, but then again there is no criminal case here nor was there ever; this will be seen when the original claim has been disclosed after applying to the court in question.
b) When disclosing personal data – even due to a court order – doesn’t the ISP have at least the obligation to inform their customer of doing so? I have not yet received any correspondence from my ISP.
c) Just a general wondering: the ISPs have apparently the right to oppose the disclosure, and from what I have heard this will be granted unless there is a very strong (probably criminal) case. Why did only one ISP on the whole list of ISPs make use of this right?
8. Concerning the ‘Letter of claim’:
a) The letter was not sent recorded signed for, which is highly unusual and probably done to save costs.
b) The letter uses “Dear Sir/Madam” and is only machine signed
c) The letter contains a lot of information on what will happen if you don’t pay the amount. This seems to be used to intimidate the accused.
d) The letter does not inform you about the further consequences of you signing the attached form. One of the consequences will probably be that if you receive another letter of Davenport Lyons in another case and this time are not prepared to pay you will lose a lot of credibility in court.
e) The letter gives the impression that their evidence is absolutely waterproof and that a court will probably rule to 99% in their favour even before any hearings. This is certainly part of their intimidation tactics, but I doubt very much that this is all in all legal.
f) The letter states that Davenport Lyons is not able to correspond to any other letters apart from the returned form, on the grounds that they can’t get in any lengthy debate considering the amount of sent accusations. As I understand it this goes against any right of a citizen and would probably be in itself enough to take legal action.
g) The letter states that file sharing in the UK is illegal. In my humble opinion this is not correct since there is no court ruling so far on this matter.
h) The letter states that in case of a negative answer from the recipient (in other words: he does not want to pay) Davenport Lyons will ‘will be seeking as a minimum from you an interim payment of at least 1,000$’. Coincidentally the value is just a little bit higher than the claimed amount and has in addition the status of being only interim, meaning there is more to come. First of when reading the whole paragraph the reader gets the impression that it won’t be a problem at all for them to get this interim payment and that secondly it is only a matter of time when the outstanding amount is calculated. This gives the clear impression that your case is lost either way before it even began and that you better pay up now.
i) The attachments hold just enough information for the reader to see that the IP address on the first page is matched together with his name and contains the letter to the ISP including the empty return form plus the ruling of the court to disclose the personal information from the Internet Service Providers. The letter states in addition that they hold so many pages of evidence against the recipient that DL can’t send it all. Further information upon the disclosure of personal information of the ISPs can only be retrieved by appealing to the court, for which probably a solicitor is needed, which basically means additional costs.
“To not give a complete account of all the necessary information regarding something is called lying, at least in some cultures.” The ‘evidence’ provided is just enough to suggest a certain image of being trapped on all sides. Once any question is raised in regard to the evidence it becomes immediately clear that a lot more is needed to support a full case.
j) The last paragraph states that both content and actual documents of the letter are copyright Davenport Lyons and that any unauthorised use (especially posting on websites) will result in proceedings against the recipient. I am very unsure about this part, since the only really interesting information one can get out of the documents is the personal data of the recipient. So why do they not want their letters to be published?

The list will probably go on and on, as a whole it is just too much to be ignored. I actually feel intimidated. Suing someone for copyright infringement is one thing, trying to intimidate, even harass someone, probably violating the data protection act plus providing misleading information is another one. This manner of behaviour is in my opinion not okay and has to be stopped, not least because of all the ones who already paid up, probably not for the last time. It could be even considered as some kind of blackmailing, albeit this will not stand it court, but this is basically how I feel.

Therefore have I decided to get legal advice and consider the counter actions available to me. I am willing to pursue this until my resources run dry. As DLs tactic is to target only individuals and get them down on their knees it only makes sense to concentrate forces by working together with others who are in my position. That works so far very well in Germany where 500 accused are represented by one lawyer together.

If you are in the same position as I am please get in contact with me (e.g. write a PM). If you know of any others who have already formed a kind of alliance please let me or they know. I am very grateful of every bit of information that will help me in this case, so please don’t hold back. I am also on the lookout for a good lawyer who deals in copyright infringement cases and has ideally also an idea of file sharing and the technical concepts thereof (no offence, most of the lawyers I know don’t have a clue about the technical bit, which doesn’t mean that lawyers in general don’t know anything about technical stuff), so if anyone has some names popping up in their head please let me know as well.

At last: sorry for letting this get out of hand concerning the size of my post, I just couldn’t get it any smaller without leaving some interesting bits out. This is also meant for someone who is currently not sure if he would rather pay up and gets it over with. Unfortunately I haven’t spoken to a solicitor yet, so the above is broad speculation of course. I would also like to apologize for the many mistakes I have made, I am also living and working in the UK for a good year now. And thanks for your time reading this and any comments that might follow.

[barracad]

Right, if we cut to the chase, I'm going to make the assumption that you have been sharing/distributing the game via P2P. Let me say immediately it is not for me to judge or question, but from reading your post if you were falsely accused one would expect this to be your main gripe whereas you instead get drawn into legal technicalities.

We may all have our own opinions on what is right and wrong when it comes to file sharing... but that is somewhat irrelevant here and so I'd like to offer you my view of what I think will happen if you don't pay what they're asking.

In the first instance, they will completely ignore you when you try to maintain that because they have insufficient evidence so you don't have to pay them. They'll keep sending you the nasty letters, until eventually they'll sue you.

When this happens, you'll go to court (possibly Fastrack - they may claim damages far in excess of what they are requesting at this stage).

They incontrovertible evidence that you made the game available for sharing. You will provide evidence that states the ISP should not have released your personal information to advise it was you who shared the file.

At this point, the only thing the judge will be particularly interested in is whether you shared the file or not. He'll probably ask you that question quite bluntly. Now you have a choice. You can either try to pretend that you didn't share the file - in the face of all the documentary evidence, or you can agree that you did do so. In either case you lose the case and end up liable for costs.

This is all just my opinion, and you should feel entirely free to ignore it. May I suggest however that you at least have a quick chat with a lawyer before you embark on something which could very well end up being ruinously expensive.

[nicolee2931]

Okay both of you may have a point, but the way I see it is two wrongs don't make it right. Firstly if this guy did fileshare then quite simply he broke the law, but on the other hand we have a company who is using questionable methods to obtain personal data in order to bring a case to court. Logistep have been told to stop collecting IP addresses or face legal action themselves, and only recently had it been decided that one's IP address is private information and should be treated as such. All sounds a little grey to me and until Davenport Lyons actually bring a case to a UK court and someone sucesssfully defends a claim, thats the way it will remain, my view is the same as with private parking companies, just ignore them I think a strongly worded letter outlining their failures and questionable methods on data collection should be just enough to move them onto their next victim, but be prepared to defend a claim just in case they do file in court.

[Dimlo]

Hi,
My mum has also received one of these letters demanding a settlement fee of £515, or further court action will be taken. The letter was very intimidating and stated that if she did not pay the settlement fee within 21 days, court action would be taken against her; and the impression from the letter is that this would cost her much more.

I have researched this for her and have found numerous reports of other incidences where people were threatened with court action. My research has found that the method in which Logistep collect their data is questionable and not 100% accurate.

I use the same wireless network as my mum (in her house), but it does only have basic security. I have heard of this game before, but do not remember ever downloading it or allowing other people to download it from me (I'm pretty sure my mum doesn't file share as she doesn't even know what it is).

I will be researching this further and will post anything else that I find, in the meantime is there a group set up for this, or does anyone have any more information about this?
Hamurabi, have you heard anything more from Davenport Lyons and secondly, have you been able to seek legal advice?

[legalpickle]

See an article on Times Online about this saga:
Hundreds sued for sharing video games - Times Online

Good luck people!

[skbuncks]

Davenport seem to acting a bit dodgily in this IMHO. There are a couple of things which concern me about their approach.


1. The amount of the claim. Surely as this is a civil claim they can only claim for actual loses. So for instance if the game costs £2.00 and they are asking for £1000 pounds compensation they would have to be able to demonstrate that you had downloaded the game once and then shared it 499 times. I think it may get more complicated than that as well for my understanding with P2P is that you dont download the game from one source, you will get different bits of it from different places depending who is online at any given time. It therefore wouldnt be clear cut how much money they have lost from one person sharing the game on a P2P network.

2. ISP address. Whilst they have the ISP address of the computer which downloaded the game they cannot prove who was using it. I have heard somewhere that the account holder can be held liable for any unauthorised downloading but I dont know if this has ever been decided in a court. It is entirely possible, say, to hyjack your neighbours wireless network for all your P2P file sharing making it very unfair on the account holder if they get prosecuted for such use. I think you do have a responsibility to take reasonable securty precautions but there is no 100% foolproof method for protecting yourself from being hacked.

skb

[Dimlo]

As well as the fact that IP addresses can be faked by a process called spoofing. It fools programs into thinking your IP is actually something completely different. So could look like you were in another country altogether.

[legalpickle]

Two articles in two days on Times Online about this!
Computer games industry threat to downloaders: 'pay up or we'll sue' - Times Online

[patrickq1]

any updates on these jokers yet any defence strategy ?
patrickq1

[mozzer67]

Hi,

I have received one of these letters yesterday and am worried sick of it due to the 500 plus they are asking from me, thing is I actually did download the film they are accusing me of downloading.

Can anyone please give any advice regarding this or shall I just try and pay up? I've had one of the worse nights sleep over this, I've been always told that anyone who downloaded copyright infringement would be given a 3 strikes scenario to stop doing so.

They say I have 21 days to settle but the weird thing is there isn't even a phone number to call to try and arrange a settlement or payment scheme, on my low salary there is no way I can afford to pay out over 500 in one lump.

Any help would be much appreciated.

Thanks,

Mark

[dave pp]

xxx

[martin2006]

in my home i have 2 computers and 6 people living here.
i am connected wirelessly which could be hackable.
both comps use the same ip address.
how, is anyone going to prove that I downloaded anything. could have been one of the kids, could have been a hacker.
Surely they would have to prove that i was sat in front of the pc at the time of the download?

[toxicdebt]

Ive just had one too. I dont use P2P sharing as professional newsgroups are faster.

However I run an IT Support business and at any one time I have many customers PC's sitting connected to my network whilst being scanned for virus's / services etc which can take hours and hours - even days in extreme cases.

Most P2P progs auto start when the PC is booted up, and one could have been uploading / downloading whilst on my premises. I have no way to prove this but surely being am IT Support company handling many other peoples PC's should prevent blame lying on my shoulders??

[Conniff]

Originally Posted by mozzer67

Hi,

I have received one of these letters yesterday and am worried sick of it due to the 500 plus they are asking from me, thing is I actually did download the film they are accusing me of downloading.

Can anyone please give any advice regarding this or shall I just try and pay up? I've had one of the worse nights sleep over this, I've been always told that anyone who downloaded copyright infringement would be given a 3 strikes scenario to stop doing so.

They say I have 21 days to settle but the weird thing is there isn't even a phone number to call to try and arrange a settlement or payment scheme, on my low salary there is no way I can afford to pay out over 500 in one lump.

Any help would be much appreciated.

Thanks,

Mark

If you really feel you must pay this, then let them take you to court and you will have the priviledge of all the evidence that they have against you.

Don't just pay because they say so.

If you are ordered to pay by the court then you can ask for time to pay by submitting an income and expenditure sheet to the court and telling them you can only afford £1 per month.

You would then be able to come back here an show everyone else what evidence they had.

This is supposing they did go as far as court, if they don't have definate proof, (and just an IP is not proof), then it is just a try on and you will probably hear no more from them.

[funkyparott]

Dangerous game in my opinion. How are you going to make the court only allow £1 a month payments? Are you planning on lying in court (contempt of court)?

Even if they did get an order against you and you managed to convince a court you could only afford to pay £1 a month, what would happen if you owned a house?

You may end up with a charge registered against your property. Should they find out you are working, you could end up with an attachments of earning order against you.

Fastrack claims can end up in large fees if you lose.

I think you need proper advice from a solicitor or even a barrister.

Originally Posted by Conniff

If you really feel you must pay this, then let them take you to court and you will have the priviledge of all the evidence that they have against you.

Don't just pay because they say so.

If you are ordered to pay by the court then you can ask for time to pay by submitting an income and expenditure sheet to the court and telling them you can only afford £1 per month.

You would then be able to come back here an show everyone else what evidence they had.

This is supposing they did go as far as court, if they don't have definate proof, (and just an IP is not proof), then it is just a try on and you will probably hear no more from them.