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Patent judge hits out at legal tactics used against file-sharers

ACS:Law ceases trading

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A senior patent court judge has heavily criticised a law firm that pursued online file-sharers with threatening letters and then ditched its cases against 26 defendants.

ACS:Law and its client Media CAT had fired off thousands of threatening legal missives to alleged illegal file-sharers, offering them the chance to pay a £495 settlement rather than face going to trial.

At the end of last month, solicitor Andrew Crossley, who founded ACS:Law – and is currently being investigated by the Solicitors Regulation Authority – said he was quitting the cases that went to trial in a patent court in London last month.

However, Judge Colin Birss QC said in his Tuesday afternoon ruling that the process of linking copyright infringement to a named individual by pinpointing an IP address associated with that person was extremely problematic.

“It is not at all clear to me that the person identified must be infringing one way or another,” he noted.

“The fact that someone may have infringed does not mean the particular named defendant has done so.”

He also questioned the methods employed by ACS:Law and was critical of the fact that the firm took the majority of the fines collected, with a small percentage going to unnamed copyright holders.

"Media CAT's financial interest is actually much less than that of ACS:Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court," he said.

"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?"

Late last week, Media CAT wound up its operations and said it had “ceased trading”. In effect, ACS:Law and Media CAT tried to back out of taking action in court.

According to the judge, Media CAT asked Crossley to “notify the court that it had ceased all activities and will not at any time in the future be sending letters or pursuing anyone in relation to the alleged infringements of copyright”.

Separately, ACS:Law said it would “close permanently” at the end of last month.

“Media CAT and ACS:Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 26 court cases, a wholesale letter-writing campaign is being conducted from which revenues are being generated. This letter-writing exercise is founded on the threat of legal proceedings such as the claims before this court,” said the judge.

Ralli, a law firm that represented some of the defendants in the cases, said it was pleased with the outcome for its clients.

“It was important for all the defendants in these matters that discontinuance was properly obtained so no collateral advantage could be obtained against them by anyone not a party to these proceedings,” said solicitor Michael Forrester in a statement.

“The judgment highlights a number of legal and technical difficulties with these cases which we had advised our clients of throughout.”

The two firms have 14 days to involve the copyright owners in the cases. If they fail to do this then the proceedings will be dropped.

Forrester said Ralli expected another hearing to take place to deal with legal costs and to discuss whether ACS:Law should be required to pay a proportion of those costs.

“We are dealing with cases where consumers have explained how they cannot possibly have uploaded or downloaded copyright protected material, but they are still pursued," said Forrester.

“The legal basis for the claims made against these alleged file sharers involves complex legal and technical principles. These are extremely difficult for a lay person to understand and can mean an innocent person is being pursued.”

The Register contacted Crossley, asking him to comment on the ruling.

We got this email response – in caps lock and bold font – back:

THE PRACTICE OF ACS LAW SOLICITORS CEASED PRACTISING PERMANENTLY ON 3RD FEBRUARY 2011.

THERE IS NO SUCCESSOR PRACTICE. NO FURTHER CORRESPONDENCE OR COMMUNICATIONS WILL BE ENTERED INTO AND NO PAYMENTS WILL BE ACCEPTED ON BEHALF OF ANY FORMER CLIENTS. THANK YOU.

Arguably, the weak representation made by ACS:Law could have implications for the yet-to-be-enforced Digital Economy Act. Birss's judgment threw up lots of unanswered questions about how the cases against the alleged file-sharers could proceed given the evidence used:

What if the defendant authorises another to use their internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright?

Does the act of authorising use of an internet connection turn the person doing the authorising into a person authorising the infringement within s16(2) [of the Copyright Designs and Patents Act 1988]? I am not aware of a case with [sic] decides that question either.

Then there is the question of whether leaving an internet connection 'unsecured' opens up the door to liability for infringement by others piggy-backing on the connection unbeknownst to the owner.

Finally what does 'unsecured' mean? Wireless routers have different levels of security available and if the level of security is relevant to liability – where is the line to be drawn? No case has decided these issues but they are key to the claimant's ability to solve the Saccharin problem* and say – one way or another there is infringement here.

®

Bootnote

*The Saccharin problem, or Saccharin Doctrine, is a famous issue in patent law. You can read about it here.

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