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.
