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Davenport & Lyons/ACS Law to get their very own warning letter?

Could this be the sound at the Davenport & Lyons office? Who knows, but it certainly again muddies the waters in the file sharing issue.

In news that will certainly make for happy reading for some, its being reported that the SRA has sent two Davenport & Lyons Solicitors to a disciplinary tribunal allegedly following complaints from letters sent demanding payment (or court action) for infringement of copyright via file sharing.

The SRA is reportedly not stopping there and its reported that ACS Law is also being investigated re: complaints of similar nature.

Now for me personally (and in addition to the previous article on piracy) I cannot condone file sharing, however the allegations of the behaviour of these two firms in particular leave a lot to be desired and in my opinion certainly do not put them in the position of having the moral high ground or have a prospect of getting support towards the anti-piracy view.

Looking at the Davenport & Lyons website and it’s “news” section, there appears to be no mention of these recent “troubles” so I can only quote from the Which? article reported on ZDnet:

….a message to law firms like ACS and TBI that they can’t make a quick buck by accusing people of copyright infringements they haven’t committed

and in respect of the letters sent:

made incorrect assertions about the nature of copyright infringement; ignored the evidence presented in defence; and increased the level of compensation claimed over the period of correspondence

and

We now want to see some decisive action to stop these bully-boy tactics

Source: http://news.zdnet.co.uk/communications/0,1000000085,40072976,00.htm

It should be noted though that apparently this is not the first time that Which? has been involved in the file sharing debate and back in 2008 Which? made a complaint to the SRA which resulted in the following statement from Davenport & Lyons:

We’re baffled as to why this sort of action warrants their attention. Essentially they’re doing the work of the illegal file-sharers for them. If the SRA want to investigate then we are happy to co-operate – we’ve got nothing to hide..

Source: http://www.thelawyer.com/which?-makes-formal-bullying-complaint-about-davenport-lyons/136039.article

Which won’t be quite true if the allegations that Which? has made saying Davenport Lyons’s letters had also stated that failing to secure a broadband connection was grounds for legal action.

Lets make this clear, there is no offence for failing to secure your broadband and no specific civil action either, it could be used as “evidence” to further a case, but merely leaving your broadband open is no issue in itself (certainly in the UK).

Now on the other side of the coin, one has to look at Which?

Surely this is not a consumer problem since if the alleged file-sharer proclaims innocence, then he/she is hardly a consumer of a product and this is more a human rights issue or a data protection issue (in respect of the ISP sharing the details of the alleged infringer) its certainly in my opinion not a consumer one.  So why is Which? getting involved? – Maybe someone can answer that question.

Whilst the act of file-sharing cannot be condoned in respect of copyrighted material, neither can the actions of firms who attempt to make money off the back of it.  A little like the ambulance chasing “claims” we see in the civil courts and those that sit behind a desk dribbling at the thought of being able to help you make some money out of nothing.   Ever wonder why there is so much bureaucracy, paperwork, health and safety?  It’s all back covering to prevent the vultures from suing.  Next time you hear someone quote health and safety which is so silly it’s embarrassing, remember to mentally thank the vultures we see advertising their “skills” on the TV.

I digress.  I refer you back to my article here where I propose the Digital Economy Bill be changed as I think that this type of conflict will only become bigger and more costly as a government imposed 3 strikes policy investigates an area which in my view requires so many resources to be fair and effective that it will do more harm than good.  Let’s face it, if the “experts” can find themselves referred to the SRA, what hope is there for anyone else?

I keep repeating myself when I write about this topic and it seems always a case of one step forward two steps back.  Whilst it seems to me we also have FACT basking in the glory of removing DVD sellers from the streets, the real issue, the real damage to the industry in being done online by the file-sharer.  Even the price of a “pirate” DVD can’t compete with free file sharing, especially when the material is often newer and far better quality than the things you can buy at a “dodgy” market. – Food for thought that not only do the entertainment industry suffer as a result of file sharing, but also your average pirate DVD seller on the street!

Now if FACT are correct and pirate DVD’s help fund all manner of naughty behaviour, they surely celebrate file sharing as it takes away the revenue from the criminal.  What do you think? ;)

Goblin – bytes4free@googlemail.com

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About Tim Sparrow

Online tech writer, novelist/author of sci-fi literature and co-host of the TechBytes Show! I believe in multi-culturalism & diversity. Luton Town FC supporter.

Discussion

26 thoughts on “Davenport & Lyons/ACS Law to get their very own warning letter?

  1. Whilst the act of file-sharing cannot be condoned in respect of copyrighted material

    Horse Shit. Of course it can be condoned WHEN THE COPYRIGHT OWNER ALLOWS IT. I do recording for musicians, and one of the best ways of getting attention is to give away your music. You do this, you get attention, people show up at your concerts, and they buy tee-shirts, CD’s, DVD’s, etc. File sharing is the playing field leveler, that allows the small independent artist to make a decent living.

    The stuff I record goes up on the file sharing networks immediately after we finish editing it. It’s the greatest way of advertising I’ve ever seen.

    The reason that the RIAA/MPAA don’t like file sharing is that it allows the independents to compete, without the RIAA/MPAA member companies getting their share. MAFIAA, remember?

    Posted by The Mad Hatter | March 7, 2010, 11:26 am
  2. “WHEN THE COPYRIGHT OWNER ALLOWS IT”

    I think that would be a given. Obviously if you have permission to share it then its not a problem, but this article (and indeed the filesharing argument that the RIAA engage in) is not about sharing that which you have permission to do so, is it?

    Quote ” I do recording for musicians, and one of the best ways of getting attention is to give away your music”

    I couldn’t make a comment since I wouldn’t know, what I will say though is regardless of if file sharing is good or not, its an act which is contrary to copyright laws (without permission) and ends up (sometimes) in a court case.

    Now I don’t think that the copyright laws are perfect (Ive detailed them before) however law is not something which we can “cherry pick” the bits we like and disregard those we don’t.

    Unfortunately the unauthorised sharing of material is not “good” for everyone and you cannot blanket comment. I cite crayon physics made by a bedroom coder and spread throughout the trackers…..where is the “good for the artist” there. In that case the software had been downloaded a few million times (not the free demo he offered but the full package)…..I didn’t see him become a Steve Ballmer overnight.

    The idea that file sharing is good for music is a no win one because for every Mad Hatter support of it, there is a another in the music industry who disagrees. This article is more to do with D&L getting a little comeback and infact Ive stated repeatedly that I think there is room for improvement and refinement both within the Copyright and Patents Act 1988 and the Digital Economy Bill.

    Quote “The reason that the RIAA/MPAA don’t like file sharing is that it allows the independents to compete”

    That might well be the case, unfortunately they have the backing of copyright law to support their opinion (in respect of taking some filesharers to court). The pirate bay certainly didn’t…for example.

    *** I think we can all accept that I am talking about unauthorised file sharing when I say file sharing, I hope I don’t have to repeatedly put “without permission” next to every “file sharing” comment.

    Posted by openbytes | March 7, 2010, 11:48 am
    • I think that would be a given.

      But that isn’t what you said. You said that sharing copyrighted material on a file sharing network was not legal. This is the same argument that Microsoft and the RIAA make.

      What they are trying to do is making sharing illegal. This would wipe out Free Software, which Microsoft (and Apple) would love. It would also wipe out the independent music artists, which the RIAA would love.

      Posted by The Mad Hatter | March 7, 2010, 8:23 pm
  3. Quote “You said that sharing copyrighted material on a file sharing network was not legal. This is the same argument that Microsoft and the RIAA make.”

    I think the other readers are quite clear on what was meant. Since the article was linked in “related” on Torrentfreak.com and having over 1200 visits in the last couple of days I think it was clear to everyone, including regular readers of this blog.

    Quote “for infringement of copyright via file sharing.”

    In the first paragraph. You can hardly infringe on copyright by file sharing if you have permission of the owner, thats why I said it would be a given what I was talking about.

    Of course filesharing per say is not illegal…btw in the UK I would consider the mere act (when there is no permission) an unlawful one not illegal. Theres a difference. Thats why filesharers are taken to civil courts and not criminal (unless other offences are at play).

    Quote “What they are trying to do is making sharing illegal.”

    I don’t see how and I don’t see any evidence of that here. Even FACT don’t bother with the file sharer…they are interested in the seller of counterfiet DVD’s at local markets.

    Sharing has always been around, even the now humble Amiga has a vast number of BBS’s and infact public domain sharing was a business for some people. Sharing itself cannot be wiped out by the RIAA or anyone else, its been happening for too long and people are not that silly as to believe any cock and bull story of sharing itself being illegal said by the RIAA or anyone else.

    Posted by openbytes | March 7, 2010, 8:43 pm
    • I think the other readers are quite clear on what was meant.

      I’ve seen attempts to misread statements too many times to agree with you, which is why I try to be very definite, so that I cannot be mis-quoted.

      In the first paragraph. You can hardly infringe on copyright by file sharing if you have permission of the owner, thats why I said it would be a given what I was talking about.

      Of course filesharing per say is not illegal…btw in the UK I would consider the mere act (when there is no permission) an unlawful one not illegal. Theres a difference. Thats why filesharers are taken to civil courts and not criminal (unless other offences are at play).

      At present it isn’t. Just as uploading a video you’ve made of a family party. Unless you are in Korea, where the laws have been changed to make ISP’s liable for what their users do, and where YouTube will no longer let you upload videos.

      The RIAA/MPAA/BSA would like to make it illegal elsewhere too.

      Quote “What they are trying to do is making sharing illegal.”

      I don’t see how and I don’t see any evidence of that here. Even FACT don’t bother with the file sharer…they are interested in the seller of counterfiet DVD’s at local markets.

      But you see the dangers of Mono. It’s a variation on the same thing.

      Sharing has always been around, even the now humble Amiga has a vast number of BBS’s and infact public domain sharing was a business for some people. Sharing itself cannot be wiped out by the RIAA or anyone else, its been happening for too long and people are not that silly as to believe any cock and bull story of sharing itself being illegal said by the RIAA or anyone else.

      That’s where you are wrong. There are a lot of articles about the fallout of the changes that were made to Korean law after they signed a new trade deal with the United States. While sharing isn’t illegal per se, it has been made virtually impossible.

      Posted by The Mad Hatter | March 7, 2010, 11:09 pm
  4. In respect of an example of the RIAA wanting to convince people/remove ALL filesharing I don’t think for one minute could happen.

    They would be trying to convince people that their holiday snaps/vids couldn’t be shared. Do you really think they could either ban this through legislation or convince people it is wrong? My point is they can’t people are not that stupid.

    Quote “That’s where you are wrong. There are a lot of articles about the fallout of the changes that were made to Korean law”

    But hang on a minute I can only comment for what I know, that being UK law. I cannot comment on any variations of any other countries. Since the article about Davonport & Lyons is in respect of the UK. The RIAA was more brought up in the previous article where I only make the comment that if people are going to download a charity album for free, they cannot point the finger at people who make money out of it.

    You say yourself that sharing isn’t illegal in Korea so what is your point and how am I wrong? More importantly how has it been made “virtually impossible”. Its these points which I would be interested in an answer to.

    Posted by openbytes | March 7, 2010, 11:29 pm
  5. And in respect of your Mono point:

    Quote “But you see the dangers of Mono. It’s a variation on the same thing.”

    Yes, but where is my view similar? My worries about Mono don’t stem from a patent action that may or may not happen, my issue with Mono is that it chases the tail of its more developed/advanced brother from Microsoft, its based on a Microsoft tech (and I have little love for them after my years of bad computing experiences), it has no killer app which make it mission critical to the end-user and in my opinion offers a layer bloat which doesn’t seem to be convincing devs in the main and more than it does get an enthusiastic response out of the average end user who I don’t even think knows or cares what Mono is. (oh and also when a package developed with Mono is compared like for like with a more traditional language, Mono comes out lacking)

    I don’t see how those reasons for not wanting Mono have any similarity to the RIAA or anything else.

    I stress, I don’t hold the patent issue as a reason not to use Mono, I never have.

    Posted by openbytes | March 7, 2010, 11:34 pm
  6. Yes but this is in respect of file sharing that infringes copyright, not filesharing in the spirit of something which you either have permission to share or own. I don’t see how this is making all filesharing illegal. Again though, this in hardly relevant to the UK and D&L since there is no criminal legislation for fileharing (infringing kind or not). The act of merely sharing copyrighted material without permission coming into a civil remit and thats why it was firms like D&L that are reported.

    The RIAA/MPAA feel that if there was no file sharing, there wouldn’t be any infringement via file sharing. A simple answer for simple people. And it is applicable to the UK, see Peter Mandelson’s Digital Economy bill.

    Filesharing is not a crime against the state, the CPS would not entertain a case on the mere sharing of copyrighted material without permission. In the rare cases that the CPS has, I think you will find that there were aggraving factors that created other offences…i.e countfeit/fraud/deception or money related.

    Tell Alan Ellis this. CPS went after him. It cost him his job, and god knows how much to defend himself. Tell that to the admins of TV Links who’s only offense was to think that linking to Dailymotion and YouTube was legal. Which it is, but they CPS still attempted to prosecute them.

    I’m afraid that the UK is at the center of the ‘Entertainment Industries’ attempt to re-write copyright law so that it becomes a criminal matter.

    Posted by The Mad Hatter | March 8, 2010, 2:55 pm
  7. Quote “The RIAA/MPAA feel that if there was no file sharing, there wouldn’t be any infringement via file sharing. A simple answer for simple people. And it is applicable to the UK, see Peter Mandelson’s Digital Economy bill.”

    That may be the case (although the DEB is more to do with intrusive observation of packets in order to determine the nature of the data. I have already criticised the bill in respect of the end-user and offered what I think would be the better alternative. In a nutshell ISP licensing.

    Quote “Tell Alan Ellis this. CPS went after him. It cost him his job, and god knows how much to defend himself. Tell that to the admins of TV Links who’s only offense was to think that linking to Dailymotion and YouTube was legal. Which it is, but they CPS still attempted to prosecute them.”

    Ive already covered this, proven or not there were other offences attached to this. There is no proportionate remit in criminal law for the mere act of sharing a file (with permission or not). In the case of TPB and Oink I the believe the issue was over monies (ads etc) now whilst they may not have been proven, that was the issue here. Thats why in the UK the filesharer without permission gets a civil case and its only admins and those associated with groups believed to profit that get arrested. Whether they do or not is a matter for the courts but never the less, I repeat, merely sharing a file which infringes on copyright does not result in a criminlal case unless it has other offences (suspected or substantiated) attached to it.

    Quote “I’m afraid that the UK is at the center of the ‘Entertainment Industries’ attempt to re-write copyright law so that it becomes a criminal matter.”

    I really can’t answer that and to be fair, this article and my opinions are based on the matter at hand which is the D&L investigations. I certainly won’t second guess the direction the government may take in respect of copyright, but this is all “jumping the gun” anyway since we have a general election coming up and we have no idea what the future holds.

    Posted by openbytes | March 8, 2010, 6:44 pm
  8. and because I’m superstitious I am making this post so the responses don’t = 13

    Posted by openbytes | March 8, 2010, 9:08 pm
    • You said that you didn’t know about the attempts to make changes to UK regulations about copyright. It just so happens that Corey Doctorow posted this to twitter a couple of hours ago. You (and everyone else in England) should read it.

      Wayne

      *****

      In this leaked, six-page email, Richard Mollet, the Director of Public Affairs for the British Phonographic Institute (the UK’s record-industry lobbyists), sets out the BPI’s strategy for ramming through the Digital Economy Bill, a sweeping, backwards reform to UK copyright law that will further sacrifice privacy and due process in the name of preserving copyright, without actually preserving copyright.

      Mollet’s memo, entitled “Digital Economy Bill weekly update 11 March 2010,” appears to be a weekly status report on the DEB’s progress. On the CC list are executives from major record labels, staff at IFPI (the international record industry lobby), PR agents from The Open Road, and others I don’t recognise (if you can identify others on the CC list, please post to the comments).

      In the memo, Mollet identifies Britain’s top spies as being a stumbling block to the bill’s passage — worried, apparently, that creating a Great Firewall of Britain will make it harder for spies to spy on naughty sites (someone should tell MI5 about Ipredator, the excellent proxy service from the Pirate Bay; after all, that’s the same proxy that everyone else in Britain is likely to use to get at the blocked sites if the BPI gets its way).

      Mollet also implies that Britain’s spy agencies might have paid for a Talk Talk survey in which 71% of 18-34 year olds said that they would simply evade the DEB and go on infringing.

      Mollet claims that Britain’s ISPs have already caved into their duties to spy on and censor network connections, claiming that there is a sense of “settled will” in the “ISP community.”

      On the other hand, he identifies Members of Parliament as being “resigned” to the fact that they will not be allowed to debate the bill or give it “detailed scrutiny” (heck of a job, MPs!). He cites an expert on legislation as saying that the bill will likely die if MPs insist on their right and responsibility to examine this legislation in detail before voting on it.

      Article Link Here
      PDF link here

      Posted by The Mad Hatter | March 14, 2010, 12:56 am
      • Quote “You said that you didn’t know about the attempts to make changes to UK regulations about copyright”

        Only in that it would be difficult to predict or assume keeping in mind that there is a general election.

        And whilst I have always stood by my anti-piracy stance, even if the deb came into effect there are so many ways (technologies) to circumvent it. We are not talking 1 or 2 people here, we are talking millions of people. To cite just a few examples, you have XDCC and the nzb index sites which facilitate the same “act” of downloading, difference being would be that there is no “share” elememnt for the downloader, making ANY legislation impossible to encompass.

        Imagine if there was legislation to attack the mere act of downloading copyrighted material without permission….every single VCR, Sky+ box and DVD recorder would be outlawed, on top of that how many homes do you think record material from the TV which is essentially the same act as a mere download of it.

        The DEB continues to huff and puff, it will never work, that why time and again I suggest that the ISP are licensed and take the responsibility away from the user. (In respect of copyright infringement)

        Posted by openbytes | March 14, 2010, 6:42 am
      • Heh – you gotta read this one.

        Posted by The Mad Hatter | March 16, 2010, 12:40 am
  9. We should get in touch. Are you an active user on social networking sites like Digg, Fb, or Stumble Upon? If so, what is your username so we are able to get in touch to share ideas.

    Posted by Leif Fickett | March 13, 2010, 8:09 pm
    • As you can see “Leif” I have removed the link to your advert.

      The only reason I allowed your message through my spam filter was because I found some humour that you were trying to pimp a shaving product, either you have a very clever bot (which identified my beard in my picture) or you are targeting me directly.

      Thanks for the laugh…..Sorry no advertising here for you though.

      Posted by openbytes | March 13, 2010, 8:17 pm
  10. OK, some news. The Lords have passed the controversial Digital Economy Bill.

    And here’s an excellent article about ‘Free’ as a business model from artists, which is aimed at small independents.

    Posted by The Mad Hatter | March 17, 2010, 9:13 pm
  11. OK, so we now have 28 comments. Do I hear 30 from anyone?

    Posted by The Mad Hatter | March 17, 2010, 9:14 pm
  12. I am glad that this topic was discussed on this blog, totally agree with all the above, but there are some problems in the legal regulation in the light of recent changes in legislation. I would not wish to write here in great detail, much is written on the site http://moslegist.ru … But thanks anyway!

    Posted by JBernoulli | March 21, 2010, 4:01 pm

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about.me

Tim Wilson

Tim Wilson

Writer/Novelist of many facets both in the world of technology and fantasy/sci-fi. Co-host of the TechBytes audiocast and writer for both OpenBytes and Goblin's Domain. Supporter of free and open source software.

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