ACS:LAW JUDGEMENT HAS SERIOUS IMPLICATIONS FOR UK’S DIGITAL ECONOMY ACT

February 14, 2011 – 3:19 am

On February 8, 2011, Judge Birss QC at the Patents County Court in the UK delivered his judgement in the copyright infringement hearing which featured ACS:Law, copyright troll client MediaCAT and 27 alleged file-sharers. While Birss was damning of the process from start to finish, enigmax of TorrentFreak reports that some of key issues the judge raised could have serious implications for the UK’s Digital Economy Act.

The battle against ACS:Law, MediaCAT and other companies previously involved in developing the so-called Speculative Invoicing model in the UK has been fought on many fronts. A key group that has championed the rights of the innocent caught in the dragnet, and indeed introduced the term ‘Speculative Invoicing’ to the legal landscape, is BeingThreatened.com. This compact and highly resourceful team have worked tirelessly to protect innocent members of the public from the predatory tactics we have read so much about lately.

Following February 8’s judgement in the Patents County Court, TorrentFreak is pleased to welcome BeingThreatened.com spokesman James Bench, who will give us more details about this legal debacle and explain how the judgement has implications for the UK’s Digital Economy Act (DEA).

BeingThreatened On Birss’ Judgement In Media CAT Ltd v Adams & Ors [2011]

On Tuesday HHJ Colin Birss QC handed down judgement in the hearing for Media CAT Ltd v Adams & Ors a.k.a. the Media CAT 27. The full judgement is well over seventeen thousand words and is a near-encyclopaedic catalogue of the errors, omissions, misrepresentations, factual flaws, and thoroughly insufficiently considered and ill-conceived (supposed) legal stance of Andrew Crossley’s ACS:Law and his associate, pornography licensee Lee Bowden, trading as Media CAT Ltd.

The 117-section judgement thoroughly discusses the events of the hearings that took place at the Patents County Court on the 17th and 24th of January and the extraordinary business model that brought the cases to his courtroom. The judgement dissects, with terminal accuracy, the operational practices that have been employed by ACS:Law (and indeed by the other law firms that have adopted the same model - Davenport Lyons, Tilly Bailey Irvine and Gallant Macmillan).

Despite a thorough search, readers will struggle to find a good word said about the work of the ‘anti-piracy’ lawyers. The judgement, though, is damning with good reason. It is made abundantly clear that HHJ Birss is wise to the genuine motivation behind the actions of these individuals.

He wrote, “Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable. 10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80 per cent of the recipients refused to pay and only the 20 per cent remainder did so.”

It has always been clear to unbiased observers that the principal incentive behind speculative invoicing was revenue generation for the lawyers involved. Birss was under no illusions about Media CAT’s claims to be a ‘copyright protection society’. “No copyright lawyer would use that term to describe Media CAT,” he stated. A ‘copyright exploitation company’ would perhaps be a marginally more accurate term but Crossley and Bowden’s single-minded misapplication of copyright law with the intention of extracting cash settlements from threatened broadband subscribers means that a number of the other labels that may also have been applied to them could also be seen as accurate.

HHJ Colin Birss QC, in his judgement, has now judicially questioned the key concept behind the ‘three strikes’ provision of the Digital Economy Act - casting doubt on theories and assumptions upon which the DEA was unwisely founded and which had not previously seen the light of a courtroom.

While keen observers, amateur adversaries and the personally aggrieved will doubtless be pleased by the terminal judgement on Media CAT and the fate of symbiotic law firm ACS:Law (and inevitably, in the longer term, Andrew Crossley personally) there are bigger issues that arise from Birss’ deliberations and decisions.

The Digital Economy Act (DEA) was pushed through Parliament during the ‘wash up’ in spring 2010 with numerous elemental flaws. This was despite a massive majority of the public responses to the Government’s consultation opposing its underdeveloped ‘anti-piracy’ measures. Now, unsurprisingly, the Act, which was already due to be subject to a Select Committee review, will also be reconsidered in a judicial review in March 2011 upon the application of ISPs BT and TalkTalk.

Birss, in his judgement, has now judicially questioned the key concept behind the ‘three strikes’ provision of the DEA - casting doubt on theories and assumptions upon which the DEA was unwisely founded and which had not previously seen the light of a courtroom.

In his judgement Birss referred to technical issues raised by barrister Francis Davey for the defence and cast doubt himself as to whether the “process of identifying an IP address [from a tracker system] establish[ed] that any infringement of copyright has taken place by anyone related to that IP address at all”.

Birss also enters into discussion regarding the use of internet routers and difficulties in determining who may, or may not, have carried out (or authorised) an alleged infringement. “I am aware of no published decision in this country which deals with the issue of unsecured internet connections in the context of copyright infringement… The point about ‘allowing’ is that the word used in s16(2) of the 1988 Act is ‘authorising’ not ‘allowing’. They are by no means the same and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties.

“[The claimant’s] monitoring exercise cannot and does not purport to identify the individual who actually did anything. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All [this] monitoring can identify is the person who has the contract with their ISP to have internet access… [the claimant does] not know who did it and know that they do not know who did it.”

In fact, there are serious doubts as to whether the monitoring has accurately determined ‘if it was done’ at all - and certainly similar doubts may well arise with monitoring that may be commissioned as a result of the DEA, should those provisions ever be realised.

HHJ Colin Birss QC, in these thorough hearings and incisive judgement, has demonstrated that we do have reason to hope that justice may yet prevail. In the event that justice suffers any hiccups, or is delayed, all would do well to remember - public and ‘copyright protection societies’ alike - that the demise of this scheme, and the likely potential fate of future similarly-founded strategies was first and foremost brought about by the people. To everyone that played a part: never forget that you did this, and you can do it again.

+ + + + +

Slammed By Judge, ACS:Law Not Allowed To Drop File-Sharing Cases

On February 8, 2011, despite the apparent closure of both anti-piracy law firm ACS:Law and its copyright troll partner MediaCAT, the UK Patents Country Court began yet another hearing to announce how more than two dozen previously filed cases should be handled. Judge Birss QC slammed the scheme operated by the pair and denied them the opportunity to drop the cases.

In a statement read out in the Patents County Court earlier this month, ACS:Law owner Andrew Crossley announced that he had quit the file-sharing claims business. Last week TorrentFreak discovered that he had completely closed down his business, along with his client MediaCAT who had also ceased trading. Nevertheless, the companies still have unfinished business – they can’t run away that easily.

On January 17, at the Patents County Court, Judge Birss QC said he was “astonished” by the conduct of the pair as they tried to discontinue cases against 27 alleged file-sharers at the 11th hour. The hearing was eventually adjourned and everyone returned to court January 24 to find solutions to numerous problems, including the joining of copyright owners to the action and the addressing of various procedural failings. After five hours that hearing was also adjourned for deliberations.

On February 8, everyone returned to court to hear the ruling from Judge Birss QC. As was expected, neither ACS:Law’s Andrew Crossley nor MediaCAT’s Lee Bowden bothered to turn up. While ACS:Law had a new barrister in court, MediaCAT had no representation at all.

The court decided that ACS:Law would not be allowed to drop the 26 cases against alleged file-sharers, an answer to one of the key questions from the earlier hearing. While the copyright holders are being given 14 days to join the action, it is doubtful they will. If this happens, all MediaCAT cases against these defendants will be dismissed in March.

Yet again ACS:Law and client MediaCAT were heavily criticized, with the Judge reiterating that both companies have “a very real interest in avoiding public scrutiny” because of the revenue they generated from “wholesale letter writing.”

“Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court,” said the Judge. “Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?”

The Judge said that the processes employed by the pair were “based on untested legal and factual propositions and issues of technology” and their letters “materially overstate[s] the untested merits of Media CAT’s approach.”

Judge Birss also described ACS:Law’s earlier claim that they could not provide documents for the court’s scrutiny as “extraordinary”.

“A party who keeps key documents which are cited in the Particulars of Claim in storage is not a party anxious to progress their claim in court,” he said.

As reported by Ralli, the law firm representing defendants in the case, the Judge was also critical of the involvement of GCB Limited, the company that popped up to carry on the MediaCAT letter writing campaign.

“The GCB episode shows that Mr Crossley’s client had every intention of doing precisely that and that ACS:Law were perfectly well aware of it. It is very difficult not to draw the inference that this was nothing more than a last ditch attempt to make some money from the letter writing exercise.”

The case was adjourned again, this time until March 16. The issue of wasted costs to be picked up ACS:Law and/or MediaCAT will be heard then. - enigmax of TorrentFreak

+ + + + +

Note: Visit TorrentFreak.com for more updates.

Post a Comment