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]
Strange but true.
