Will you get caught file-sharing?
And so it was that a letter appeared on the Murdochs’ doormat demanding £500. After taking their case to Which?, the couple eventually decided they’d been the victims of Wi-Fi hijacking, with somebody downloading the game using their unsecured wireless connection. This defence, coupled with a hefty dose of bad publicity, convinced Davenport Lyons to drop the case, but according to Smith it isn’t the catch-all defence many like to believe.
“For copyright infringement or defamation, the claimants would almost certainly get access to the defendant’s computer hard drive. That might contain copies of ﬁles, or of log data corresponding with the alleged activity; and even if those had been deleted, forensic recovery techniques might reveal them, or at least might reveal evidence that suspicious deletions had taken place.”
Still, anyone who stood up to the law firm quickly found out that the promised court actions simply weren’t happening. So was it all a bluff?
“Has anybody been taken to court for file-sharing in the UK? The short answer is yes,” said Andrew Murray, Reader in Law at the London School of Economics.
“There is the precedent of TopWare vs Barwinska, in which damages in excess of £6,000 were awarded. However, you should note that this, and subsequent similar cases, were undefended actions where lawyers for the content providers took action against individuals who failed to respond to their initial claims. To my knowledge, there has been no full hearing on the evidentiary value of data supplied by Logistep or DigiProtect before a UK court.”
Which leaves the question of whether Logistep’s evidence would stand up in a courtroom. Michael Coyle, a solicitor with Lawdit, doesn’t believe so. In fact, he offered to represent anybody who received these letters for free to prove it.
“Logistep’s technology has been deemed illegal in France, and is being sniffed at in Spain. The French courts are interpreting it as an invasion of the country’s data-protection principles. There has to be a proportionate element to this, it isn’t supposed to be used for fishing trips,” said Coyle.
“For example, if somebody was suspected of being in a paedophile ring, there’s no reason why the police couldn’t use it to identify people downloading that material. That’s a proportionate use, but in relation to civil matters, the French courts have decided this is way overboard. Over here, nobody’s challenged it, nobody’s interested. It’s a real shame.”
Strong words, and indeed the PR backlash whipped up by the letters led to an official complaint being made by Which? to the Solicitors Regulation Authority about Davenport Lyons. The law firm has now dropped its campaign, but it’s being continued by a firm called ACS:Law, which continues to send out letters in batches of 25,000. The Government is also investigating ways of stymieing illegal file-sharing, such as throttling broadband connections or disconnection after three warnings.
COST OF FILE-SHARING
It’s clear that the chances of being caught file-sharing are low, but if you’re caught the penalties can be high. Coyle relates how a man he was representing was issued a demand for £8,000 by a content provider after downloading only £70 worth of software.
And it doesn’t stop there. In civil cases, such as those brought by Davenport Lyons, an alleged file-sharer can be sued for unlimited damages and ordered to pay the copyright owner’s legal fees, which often work out much higher than the damages awarded.