Wednesday 8 December 2010

ACS:Law come unstuck

Earlier this month ACS:Law suffered a set-back in their campaign against alleged copyright infringement through peer-to-peer file sharing. ACS:Law (or more pedantically, their clients) had tried to obtain judgments in default against 8 defendants, but failed for a variety of reasons in each case. The judge in the Patents County Court criticised the nature of their claim and the way in which the applications were brought — reported as Media C.A.T Limited v A (and others) [2010] EWPCC 17.

Default judgment is a speedy way for claimants to obtain judgment without a trial. In most cases a defendant served with a claim form and particulars of claim is supposed to acknowledge service and then file a defence. If not acknowledgement or defence is forthcoming the claimant can ask the court to give it judgment in default.

This is where ACS:Law start to come unstuck. In 3 of the cases a defence had been filed in court. So default judgment does not apply. In a further 3 of the cases there was no evidence on the court file that the claim form and particulars of claim had been served on the defendant. It is ordinarily the court's job to serve these documents, but there's no presumption that it has. In my practice I have come across situations where some administrative mistake has been made and the court has failed to do so. Whatever the reason, it is bad practice to issue requests for default judgment without checking with the court that no defence has been filed. A slap on the wrist for ACS:Law in my view. As the judge said "The requests for judgment should never have been filed."

There is an easy way and a not so easy way to ask the court for a default judgment. The easy way simply requires the claimant to file a request to the court. The defendant does not have to be informed of the request and will ordinarily know nothing about it. The not so easy way requires a formal application, with evidence, to the court, which must be served on the defendant, who will therefore have an opportunity to defend against it.

The "easy way" is only available where the claim is for one or more of: a specified amount of money, an amount of money to be decided by the court, delivery of goods where the claim form gives the defendant the alternative of paying their value (CPR 12.4). In each case, the claim was not only for damages for copyright infringement (including additional damages for flagrant infringement), interest and costs but also for:

"a permanent injunction pursuant to the inherent jurisdiction of the Court; ordering the defendant to take reasonable steps to safeguard their internet connection being used, either through the defendant's personal computer and/or third parties taking advantage of the defendant's unsecured wireless connection to repeat the infringement of the claimants copyright in the Work(s)."
Ooops. That doesn't appear to comply with CRP 12.4. The judge thought not. ACS:Law ought to have made a formal application rather than merely filed a request and that would have alerted the defendants to the possibility of default judgment and given them an opportunity to respond. The judge had serious doubts as to whether, in peer to peer file sharing cases, default judgment ought to be given on request without a formal application. He said:
In all these circumstances, a default judgment arrived at without notice by means of an essentially administrative procedure, even one restricted to a financial claim, seems to me to be capable of working real injustice.

Most interesting for me are the criticism that the judge made of the way in which the case was pleaded (one assumes by ACS:Law, but certainly on their behalf).

  • The particulars of claim stated that the claimant "represents" the owner of copyright in the films that were the subject of the claim. Only the owner of the copyright or a licensee (and for a non-exclusive licensee only if certain conditions are met) has a right to sue for copyright infringement. Thus the pleadings were defective.
  • The allegations relate to unsecured internet connections. It is unclear whether the owner of (say) an open wifi can be held responsible for copyright infringement effected using that connection.
  • The claimant's plea was that the defendant was guilty of "allowing" copyright infringement, which, as the judge put it, "is simply wrong". The term used by the act is "authorising", which is rather different.
and more of the same. In short: even accepting all of ACS:Law's allegations, they do not appear to have a proper case. To succeed they would at least have to amend their claim, assuming they have a case at all.

A health warning: this decision is made by a county court. It is not, strictly speaking, binding on any future court. It does however illustrate the extremely dubious nature of the claims being put before the court by ACS:Law and will, I hope, encourage defendants to be more confident in resisting them. The list of defects in the pleadings might make a useful basis for an application to strike out against the claimant.

Hat tip to Philippe Bradley for pointing this case out to me.


Phil B said...

If I'm not mistaken, the defects in the case which you bulleted might not actually be relevant to the new measures brought in by the Digital Economy Act?

Anonymous said...

@ Phil. This case was tested against the CDPA, your reference to th DEA is irrelevant.

Francis Davey said...

So, when the Initial Obligations Code of the DEA comes into force, apart from putting the frighteners on subscribers and causing everyone a lot of hassle, copyright owners won't get any new stick to beat alleged infringers with. They will still have to take legal action, although the Copyright Infringement Lists may give them a new starting point. So unless/until technical measures appear on the horizon (and that will be a way off if at all), firms like ACS:Law will probably still try thinly disguised speculative bidding and will come increasingly unstuck if defendants resist them and they fail to up their game in response.

Unknown said...

I think many people, myself included, would be eager to contribute to a fighting fund to pay the legal costs of any defendant accused by ACS:Law.

I find it troubling that a default judgement could have potentially robbed me of the opportunity to have donated money to protect someone against the unjust bullying that ACS:Law engage in.

Francis Davey said...

@Matt as I understand it, ACS:Law are not pursuing cases any further than default judgment (possibly for fear that they will suffer an adverse decision that might then set a precedent).

Clearly some people are getting good advice and resisting these claims properly and the good news of this decision is that default judgment requests filed by ACS:Law are being scrutinised.

I suspect there are still many people who simply pay up out of fear of things going any further.

If you are eager to donate, you could talk to the Open Rights Group and see if they know of any fighting funds and who (if anyone) is coordinating the defence of people accused.

Anonymous said...

The particulars of claim stated that the claimant "represents" the owner of copyright in the films that were the subject of the claim. Only the owner of the copyright or a licensee (and for a non-exclusive licensee only if certain conditions are met) has a right to sue for copyright infringement. Thus the pleadings were defective.

If the above is true, why were Norwich Pharmacal Orders successfully applied for by MediaCAT against the ISPs?

Jason said...

@Anonymous - I would guess because the NPO's were unopposed and the judge has little leeway to introduce a defence when the defendant themselves (the ISP in the case of NPO's) doesn't want one. However in the case of a default judgement, I would further guess that a judge is required to ensure that a default judgement is correct.

Anonymous said...

The decision of HHJ Birss QC does no more than establish that, if you plead your client's case poorly and do not follow the relevant procedures, you are likely to come unstuck.

The judge does not criticise the "nature of the claim"; and the judgment does not illustrate "the extremely dubious nature of the claims". Indeed, HHJ Birss QC concludes the judgment by making clear that copyright owners are entitled to use the full machinery of the courts to enforce their rights. In order to do that, of course, they need to get the pleadings right and follow the correct procedure.

As far as "thinly-disguised speculative bidding is concerned", a lawyer's job is to put forward the settlement offer which his client instructs him to put forward. If "speculative bidding" means making settlement offers, it is a process enshrined in Part 36 and encouraged by numerous authorities.

On what basis is it said the ACS Law "are not pursuing cases any further than default judgment"? If (as is clearly the case) ACS Law are issuing proceedings, they cannot know whether or not the defendants will serve a defence. Are you suggesting that, if a defence is served, ACS serve notice of discontinuance?

Jason said...

@Anonymous I think you need to read more abut ACS.

They, and all the people previously and currently in their business, persue a letter writing campaign against various members of the public.

To date, the only proceedings that have actually gone before a judge have been defaults.

Basically, if you file a defence they just continue to write letters to you.

They are not doing this work pursuant to their clients instructions, they actively tout their business to potential clients and offer them a revenue share scheme.

Either youve posted without actually reading or knowing much about ACS:Law and what they do, or your ACS:Law yourselves, it wouldn't be the first time ACS:Law employees have posted on forums and blogs trying to legitimise their business.

Francis Davey said...

I think Jason puts it better than I am able to. The dubious nature of the claims is this: it is not pleaded (and as far as we can tell it is not the case) that the Claimant represented by ACS:Law is entitled to sue (the pleadings do not identify them either as owner or licensee with a right to sue). That is the thrust of paragraph 19(i) of the judgment.

See also 19(iii) where the plea is "simply wrong". Again, I doubt that the Claimant has or can have any evidence to substantiate a claim of "authorising" so the very basis of the claim seem to me to be questionable.

Again, the injunction claimed as final relief seems (to me) to be wrong in principle.

There's a considerable literature online about ACS:Law, their strategy and tactics. I have not read a great deal of it but as far as I know (and others I hope would tell me) none of the ACS:Law cases have reached any kind of substantive contest.

To an outside observer it looks very like speculative invoicing. If anyone is aware of a case that has progressed further I would be very interested to hear.

Anonymous said...
This comment has been removed by a blog administrator.
Francis Davey said...

An anonymous poster left a reasonable enough comment which contained material that might be defamatory, so I've had to remove it (sorry anonymous poster - if you feel aggrieved email me directly about it).

The comment began:

"Anonymous said...

The other issue is the "evidence" your IP address is assigned by your ISP but will change over time. The method acs law use to capture the data and record it is questionable. They then need to tie that date and time to match the date and time the ISP has recorded your IP address. Tracing a transaction like that through the servers within an organisation is difficult enough due to server times being different. To match to an ISPs servers in a different country is a big ask. We then need the ISP to provide accurate data, this from an industry that can't get the IT for their customer billing systems accurate; it is another big ask to believe that they matched the data correctly anyway."

It also said:

"I think acs law have found they are swinging a tiger by the tail and now don’t know how to let go."

a matter of opinion on which I have no view.

Anonymous said...

It will be interesting to see how the Court deals with the evidence in a defended case such as Mr. Billington"s: a 'bare denial' (supported by a statement of truth?) where the IP address may be linked to a particular computer (if I understand it correctly) but not to the individual denying infringement. And as you say, there is doubt "that the Claimant has or can have any evidence to substantiate a claim of "authorising".

Anonymous said...

The only IP evidence that this sort of activity can gather (if it is accurate) identifies the connection, and therefore the subscriber. It is not capable of identifying a particular computer connected to the connection or a user.

Anonymous said...

Some ISP's are questioning the reliance on matching IP's to subscribers at all.

BT have raised the issue with OFCOM, that reliance should not be placed on an IP actually implicating the connection it was allocated to at the time. They do not explain why, but in their repsonse to the Draft Code for the Digital Economy Act, they made the following statement:

There needs to be a clear understanding by all parties involved in the DEA – whether as ISP, subject of an infringement allegation, regulator or hearer of appeals – that the fact that an IP address is picked up by copyright owners detection methods is not, of itself, proof that the IP address or the person that it was allocated to was involved in copyright infringement activity. The information goes no further than being an indication that a particular IP address may have been involved.