Computer games industry threat to downloaders: 'pay up or we'll sue'

What follows is a comment left anonymously at The Register in relation to DL and the chasing of alleged copyright infringer's:

What to do if you receive a £300 demand from Davenport Lyons?

What follows is not legal advice. I am posting anonymously and I am pretty sure the Register is not endorsing it.

First: if you really have been doing a lot of file-sharing of copyright material – pay up and learn from the experience.

But if you haven’t, you may want to consider this:

Reply to the letter, do not ignore but simply say: “Please prove you client’s alleged loss”.

You are doing several things: by engaging with the solicitor you are preventing them from going to formal litigation until they can show the court they have exhausted reasonable attempts at settlement.

You are not admitting anything.

The claimant (ie Davenport Lyons’ client) now has to show several things. First they have to demonstrate that an IP address associated with you appears to have been file-sharing. (They will almost certainly be able to do so). Second, and this is much more difficult for them, they have to demonstrate how many copies of the copyrighted item was actually taken away from you by third parties. Third, they have to prove their actual loss per copy – this is of course not the retail price but what they get from their wholesaler, less the unit cost of manufacturing the physical item. Fourth, they have to prove that each downloaded copy represents an actual sale from which they would otherwise have received income. Fifth, if it is being suggested that a copy downloaded from you by one other person could then be further shared and downloaded by others, the claimant has to prove the extent of this – not guess, but prove.

This is a civil matter so proof is on the balance of probabilities.

The problem for the lawyer and the claimant is that proving all the above could be very expensive.

The solicitor could attempt to require disclosure from you of your computer so that it can be forensically examined. The solicitor’s client has to bear the cost of this, including any inconvenience to you, until he “wins” the case. You can argue that full disclosure of a computer for forensic examination may exceed their reasonable needs in the case and violates your privacy rights by virtue of giving them access to information which is personally sensitive (your bank passwords??).

A claimant is under an obligation to keep costs proportionate to the sum in dispute, otherwise the court won’t allow the costs. (Civil Procedure Rule 1). In practice this means that, on receipt of your letter, the lawyer and client have to do a risk analysis – do they think they will be able to prove losses to a scale sufficient to justify the expense involved.

If you follow this line or anything like it, you will need to be robust and focused.

Note: I don’t file share copyright material, I am not even interested in computer games, but I don’t like bullies.

Again, I take no credit for the above comment and give gratitude to the original poster of the comment.

As for copyright infringement, I can think of a much fairer and more just system to license the usage of copyrighted material. I just need to copyright/patent it first to prevent the media industry from nicking it.

BTW, do recording studios/producers or whatever still alter an artist's work by changing/adding a single word, punctuation mark or musical note etc to give themselves copyright rights/interests over the original artist's work? And, how many people realize that music copyright usually covers recreation, reproduction and/or usage anywhere in the Universe? At least, it used to.

A Couple of questions to ponder:

1, If a person/computer only uploads 50% of 100% of copyrighted data, can that person be charged with copyright infringement? After all, 50% of 0's and 1's will not alone allow usage (without the rest of the data to complete item);

2, When a person/computer uploads copyrighted data, were any downloader to receive less than 100% of a download from any one uploader then can any of the uploaders be charged with copyright infringement when only 100% of a download is sufficient to allow usage of said download and no uploader has singularly provided 100% of the full download? and,

3, Could a person's defense be to state that no downloader ever received 100% of any copyrighted material from him/her via any uploading?

Were I to create a P2P program, I would give each uploader an odd or even value status then limit uploads from the odds to one 50% and uploads from the evens to the other 50%.

[edit on 21/8/08 by Rapacity]

Good luck with this. Maybe they should consult with some recording and movie studios to get some tips on prosecuting media pirates.

Nothing substantial is going to come of this. It's a scare tactic, and nothing more. The simple truth is, that it's far too costly to prosecute individuals for software piracy, which is why companies tend to go after the distributers of pirated material rather than the end users. Unfortunately, with the rise of file sharing software like BitTorrent - the end user BECOMES the distributer - and you cannot prosecute the site which hosts the trackers because they're technically doing nothing illegal. I know the Pirate Bay has been raided several times, and they're still going strong. Perhaps if they hosted their servers in America or the UK... but since the country they're located in has very loose anti-piracy laws, there's really not much that can be done.

I think the videogame industry should just be thankful that their products are often several gig in size and can't be shared as fast or as frequently as MP3's. Then again... once the Grid goes online for the rest of the world, size limitations won't really be a problem anymore. It won't be long before even our fastest ISPs now will look like dirt roads in comparison to the coming information superhighway.

In certain select cases, I know piracy has even helped enormously. Phantasy Star Universe was a huge flop outside of Japan, but still gained a decent following (until their customer service went in the tank) because so many people downloaded the product. Since PSU was an online game that carried a monthly fee - Sega actually made far more in subscription costs than they would have if nobody had pirated it. It saved them the cost of advertising, manufacturing, packaging, distribution, and bandwidth they'd normally use if they hosted the game for free download (as they did with PSO Blue Burst). This is, I think, the major reason why PSU was released in Japan with an Activation Key - while no other territories included it. The game was tailor made for a Japanese audience, and they likely suspected it wouldn't be as popular outside of Japan. Not to mention the cost in distribution and advertising would have been far less in their home territory, so it made sense to put anti-piracy measures in it there to increase profit.

[edit on 21-8-2008 by Lasheic]

Originally posted by johnsky
I make music myself. Do I charge people for it? Pffft, no.

Hey there Johnsky.. I knew there was a reason other than a liking for technology that we are friends...

I also write music and I 100% agree with your above statement.

Music production these days has become a joke. I would hazard a guess that over 90% of the so called music written has not been put together by a musician that has a motivation for the music but by a studiuo producer who has manufactured an assembly line of sound that requires very little thought, feeling or inspiration to produce.

These tracks have not been crafted by an artist; they have been put together by a person who understands a mixing desk, no more skilled at writing music than a DJ.

BTW if you want to hear my music you can do so totally free of charge. Here are two tracks from my current project "The Blue Funk Chronicles"

NeoN HaZe - Music

Enjoy!!,

Power to the People!!

NeoN HaZe


[edit on 21-8-2008 by Neon Haze]

neon haze,

As a person who works at a firm that manages high end record producers, mainly for the pop/rock scene I have to agree 100% with what you just said in your last post.

90% of the music is written by producers who put their canned product into every project they work on. The A&R keep re hiring them for many reasons, but one is that they are consistent in their finished product (not surprising since all of their finished products sound the same)and that they know exactly how the album will come out with or without the artists input. A way to protect their investment I guess.

Most producers these days working on all the big projects were/are recording engineers who worked their way from being an engineer giving advise here and there and tweaking things on the recording to a producer who engineers. Not all, but most.

So if most producers are really trumped up engineers than it's no surprise that the songwriting sucks. The artist has limited to minimal control over the songwriting if they are of average talent (basically musically challenged). hell the artist if deemed too risky to record will actually be replaced by other musicians for the recording. the other musicians get a one time fee for their ghost work and the artist gets the royalties even though they are not playing that instrument in the recording.

Part of my job is working out the basic percentages for songwriting the producer will get on certain projects. Most producers get 50 -75 percent of the songwriting credit with rock bands. I know this sounds weird but it's true. The other day a producer of the firm I work at was in the middle of tracking a few songs he was working on with a band hat just recently got signed by a major label. The producer is writing and recording these guys who are an alternative band and in their early 20's. nice kids, great performers but not so good at the songwriting. Our producer and this is in most cases had to hold their hand every step of the way through the song writing process.

So were about halfway through the project but it is by no means complete. I have to deal with the bands manager (not their A&R, the A&R see eye to eye with me on this issue) who is trying to get me to agree to our producer only getting a 25% share of the song writing. I'm in the studio everyday during tracking for this project. I see how the band is. I know that our producer has already written about 50% of the songs, and I know pending whatever polishing up the A&R want our producer to do on the tracks so that they will be more marketable the songwriting is going to be more like 75% producer and 25% band. The bands manager has been doing this for several years and she knows that I am right, and she knows to not even talk about the writing percentages on the album when the project is not near complete. She wants to lock down those writing splits 25-75 in favor of her band.

she's doing this so that she can screw our producer out of the lions share of the royalties and give it to the band. why cause she gets a commission from whatever royalties the band makes. she is being greedy and knows that the project is pretty much being carried by our producer. s for me it's my job to see that justice is done and that the producer gets what he deserves. but this producer is a talented musician too and his songwriting abilities is well respected. other producers i work with I feel are just hyped up engineers and the crap they put out is canned, and that they don't deserve 400K a quarter (the first quarter) per project in royalties.

SO just my 2 cents not sure if I added anything to the conversation or if even anything I posted made any sense.

Neon Haze,

Just checked out your link to your music. pretty cool. thats the type of stuff I like to listen to when I'm relaxing or when I'm driving. Seriously, I gotta stop listening to infected mushroom while I drive before I get a speeding ticket or something. So maybe a little more ambient trance is what I need. very cool. Good music for lots of other things too that one would do while relaxing.

As for the video game lawsuit craze, I say ignore the law firm and they will go away. they know they have a poor case and that scare tactics might dredge up few who are scared enough to do anything the shady lawfirm says.

The other day I got a letter in the mail from a law firm. they were collecting and outstanding debt I owe. THe debt amount .64 cents. but If I act now within 30 days they'll reduce my debt by 50% so that I'll only owe .32 cents. which is more than the stamp I would need to send the check. screw em. if thats their tactic that they are using than I know that they have no case.

Music production these days has become a joke. I would hazard a guess that over 90% of the so called music written has not been put together by a musician that has a motivation for the music but by a studiuo producer who has manufactured an assembly line of sound that requires very little thought, feeling or inspiration to produce.

Really?

Can I give you a nice big list of bands and ask if you can find out for me who wrote everything by them?

90% of music? Are you really aware how enormous of a blanket that is? I mean, ginormous. Huge. Really flippin' big.

If we're so much for the artist here, why make a slam like that?


Once again... people...


Not...Everything.....Is Like... The Mainstream. Not Everything... Echoes.. What You Hear And Know...From The Big Record Companies.


Deny ignorance?

I think he was talking about major labels and their affiliates. I was. But you'd be surprised how little mainstream bands actually do in their bands. they are just figureheads and puppets in a much larger machine.

No I wouldn't. I am fully aware. I certainly hope he was just referring to the flavors of the month. Really, I wouldn't be posting so much in this thread if I didn't know what I was talking about. Strange but true.

I have to admit that for metal most of the songwriting is done by the musicians in the band. But even then the producer is needed to cut out the fat and to do a lot of arrangement work.

But for metal music the future is in europe and in parts of asia. but even there it's not a huge money maker. But as for me I like most metal. Grew up listening to 80s metal, and at Berklee I met and jammed with a whole lot of shredders. I would be playing under a glass moon with some guitarist in the morning in some ensemble and Vai, and racer X covers for dinner. SO I appreciate good metal.

Start making good movies and music , and maybe some will think about paying for it.
The only ones who are starting to worry about the quality of their product are the game developers , that have been trying to refresh the game industry , but i cant say the same about cinema or music.

I agree with the last poster. movies are literally all the same. I could flip channels on my tv from one movie to another and not know that I am watching a completely different movie. movies are very very trite these days. they need some new DNA thown into the Movie Gene pool.

Same thing with mainstream music. It needs to move forward too. Personally I think the internet is going to bring about this big change.

The internet is about niche marketing. The mainstream idea doesn't work, neither does top 40. Nobody will be listening to the same group/artist in mass the way it used to be during the last century. On the internet you don't listen to what is forced upon you. you get to search around and listen to exactly what you want. this means that music will be diversified and will flourish due to the net. It's just that the slices of the pie for each music type and artist will get smaller. Being a musician will not be some glam socialite celebutard life style but a more honest one where the music rules. not the corporate labels and their chairmen.

reply to post by wheresthetruth


I'm glad to hear this. Hopefully, it'll get people to stop stealing, music, movies and video games off the internet. Yes, it's STEALING when you downloading a game, movie or song without paying for it. Don't think that just because you didn't go into a retail store and physically walk out with that cd, game or movie, that you aren't stealing it.

The only thing that would top this is if prosecutors would file criminal charges against each and every one of these illegal downloaders.

reply to post by dracodie


I agree with you when you say that if companies need to put out quality products (ie games, movies, music) if they want people to buy it. That goes without saying. My problem is with the people who say such and such isn't worth buying, but they have no problem downloading it for free and using it. If it wasn't worth your money why are you bothering dowloanding (stealing) it?

To me, it just sounds like people justifying their actions.

Start making good movies and music , and maybe some will think about paying for it.
The only ones who are starting to worry about the quality of their product are the game developers , that have been trying to refresh the game industry , but i cant say the same about cinema or music.

One more time: This is the WWW. You and others like you have complained forever about MSM shoving things down your throat, now you have unlimited choices and full control but you still complain. If I tossed band names at you, would you recognize them? Would you have heard them? If not, how can you even make this argument? Do you seriously know how many bands are out there? You cannot objectively say what you're saying, I've been through this before. Take for instance what I'm involved in, which would be heavy metal, very specifically European metal. Did you know that the metal-archives, a user compiled database of every band in the genre and subgenres within, contains 62,214 bands? Sixty-two THOUSAND. I've seen your lists and I know what you like. Why don't you do some research? Look up bands you like, and recommendations from others, sort through them yourself and listen yourself on Amazon, MySpace, etc, and decide what you like. Heck, I could do it for you just sitting here if I wanted to. Furthermore..................................why would you want something at ALL if it wasn't any good? That in itself makes no sense. Hey, this movie is a crappy piece of garbage. I want it, though, so I'm going to steal it so I can have it, I hate it so much. Huh? In other words....it's a whitewash.

That last part I just said, about it being a whitewash... THAT'S what the big problem is, really. Regardless of what evils Hollywood and the RIAA and everyone else have committed, none of which I have denied (I'm sticking up for the little guy in case nobody has bothered to notice). It's that very attitude people have that is wrong. Man, people wonder why the corporations treat them like babies? Stick them on the Internet with every piece of info they could ask for at their fingertips and they are flabbergasted. Maybe those companies are perfectly aware a huge amount of the population is gonna be victimized no matter what. Until that changes, be prepared to bend over and take it.

reply to post by Orion Crystal Ice


To be certain i hate it i must watch first , so i must download it , who knows i might find a good movie from the recent ones , but that lately has not been happening.

I really doubt you know what are the bands i like , the ones i posted in the other thread are some thta most know of, i certainly would not post for example Switchtense , a band that most dont know about.

Im just bitching because the companies are bitching , how can they complain if they dont decide to sell a good product , instead of crap that sells only thru advertising.
I give tumbs up to the game industry because they realized soon enough that what is happening to cinema was happening to game industry , and game companies like EA decided to refresh their products and inovate instead of selling the same crap with different names.

Nah but you don't get it.This is LOGISTEP.
This is what this is based upon.A virus program a Trojan that steals people info.
Its banned in Europe.And lawyers have been disbarred for being involved in it.
They will make a tonne of money and probably get banned from practicing law.
Just like the ones in France Switzerland etc.
Basically the game makers are angry people copied there games.
And these lawyers got the details using Logistep.
And went to game makers said if you allow us to work on your behalf it wont cost you a cent and we will keep the profits.
And the game makers are like yeh great make all those people pay.
But they wont actually get anything.

It was based on the ''fact'' that people would download instead of buy right? (The big rage against downloaders)

Well consider me one of those people who wouldn't have bought it anyway, and if I would have I probably have bought it at a later date.

At least with me playing it and people seeing me play it it's free advertising, rather than me not saying anything at all about it because ''it's too expensive''.


[edit on 21/8/08 by -0mega-]

I sympathise with the company's facing piracy as long as their not putting out bugged junk which most of them actually do you can never be sure a game is actually in a playable state.

But I've read some dodgy stuff about the law firm doing this on different forums and in a lot of cases the people being sued had never even heard of the game they were accused of.

If you're going to start sending people extorting letters you had better well have the evidence to do it in this case I think their methods are obvious very flawed and possibly even Illegal.

If someone does actually take them into court which I think would be unlikely as this seems to be a case of trying to threaten people into paying. The Accused stand a very good chance of winning against whatever evidence they have as it can't be very reliable not to mention the number of possible defences (hacking, IP Spoofing, who was on the computer etc.).

If it was me I'd tear up the letters and if they persisted sending them I'd look into legal action myself also if you're ISP gives out your information as is claimed here they are breaking the Data Protection Act so take action against them as well

[edit on 21-8-2008 by Teknikal]