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Judge rules in file-sharing case

IP addresses ‘not enough’ for legal action

Scales of justice

A judgment issued today by Judge Birss in the Patents County Court has derailed the threatening letter-writing activities by legal firms such as ACS:Law in pursuit of illegal file-sharers.

ACS:Law – which closed on January 31 – had sent thousands letters to alleged file-sharers accusing them of downloading pornographic films, and demanding £495 to settle out of court. The judge speculated that ACS:Law might have collected as much as £1m using threatening letters from April 2010 and, if so, that the law firm could have received 65% of the revenue.

ACS:Law was acting on behalf of MediaCAT – which also closed down in January – and had presented 27 cases to the Court, and then asked the Judge to discontinue the cases, prompting today’s judgment.

Desire to ‘avoid scrutiny’

Judge Birss found today that the discontinuation request was an abuse of the Court, and prompted by a desire to avoid judicial scrutiny of the evidence behind the legal threats.

He said: ‘MediaCAT and ACS:Law have a very real interest in avoiding public scrutiny of the course 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.’

The Judge noted that Andrew Crossley – head of ACS:Law – had been referred to the Solicitors Regulation Authority. Which? referred Andrew Crossley to the SRA in 2009 on behalf of innocent consumers who had received ‘threatening and bullying’ letters. Andrew Crossley was referred to the Solicitors Disciplinary Tribunal and that investigation is on-going.

In his judgment, Judge Birss questioned whether IP addresses could be used as sound evidence in identifying someone and accuse them of illegal file-sharing. He reasoned that IP addresses were not enough, citing unsecured home wireless networks and the fact that an IP address doesn’t identify the individual that is alleged to have illegally file-shared.

False claims

The Judge took issue with the letters used by ACS:Law demanding recipients pay up. He found that the letters made claims that were false regarding copyright protocols, and that they made false claims that MediaCAT was a copyright protection society. He questioned whether MediaCAT even had the right to sue for infringement.

He said that the letters – with accompanying Norwich Pharmacal order – gave the impression that concrete evidence and clear identification of the recipient had been made – possibly prompting people to pay up.

He also noted that many people had contacted the Court in tears, unclear how to defend themselves and distressed by the accusations, and that ‘it is easy for seasoned lawyers to under-estimate the effect of a letter of this kind’.

Damning judgment

The judgment was damning about how MediaCAT moved, through ACS:Law, to discontinue the cases, yet in parallel initiated a new round of threatening letters via the firm GBC – further reinforcing that the move to discontinue was a desire to avoid scrutiny, regroup, and continue activities at a later date.

The judgment could prove a watershed moment in the use of both IP addresses and the issuing of threatening letters of the type from ACS:Law in identifying alleged file-sharers.

The judge says the cases should proceed, giving MediaCAT and the copyright holders two weeks to join the action before it faces being struck out.

Which? says

Deborah Prince, head of legal affairs at Which?, said: ‘Which? has always believed that ACS:Law had no justification for persecuting people as illegal file sharers simply for owning an IP address. We’re delighted that Judge Birss has supported this view today.

‘This is the latest stage in our long campaign on behalf of those unfairly accused of illegal file sharing. Many people have suffered enormous stress after receiving a ‘pay up or else’ letter and we hope this is the beginning of the end of such bullying tactics.’

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