Davenport Lyons Reported To Authorities; DigiProtect Insists Its Actions Are Aboveboard

from the the-developing-story dept

It seems things kept getting worse for Davenport Lyons and DigiProtect, who have teamed up to threaten an awful lot of people that they need to pay up to avoid getting sued for file sharing, usually on extremely flimsy evidence. That means, way too often, the letters are received by innocent people who wonder why they should pay £500 to avoid being sued for something they never did. It certainly feels like a good old fashioned protection racket, and a UK consumer group has now complained to the Solicitors Regulatory Authority (SRA) in the UK, noting that a number of innocent folks have been apparently bullied by Davenport Lyons into paying up just to avoid being sued for something they never did. The group points out:
Davenport Lyons' letters to alleged file sharers: make incorrect assertions about the nature of copyright infringement; ignore the evidence presented in defense; and increase the level of compensation claimed over the period of correspondence. In addition, the letters threaten, incorrectly, that failing to properly secure an internet connection is grounds for legal action.
Meanwhile, last month we talked about a clause in DigiProtect's contract that appeared to say that the firm promised to upload the content to various file sharing networks, which certainly looked like they were going to spread the content more widely in order to be able to send out more of these "pre-settlement" letters. Considering DigiProtect promotes its service as helping companies profit from piracy, it wouldn't be surprising to find out that in order to increase profit, it has every incentive to first increase the "piracy." However, the company (who has been rather quiet during all of this) has granted an interview to xbiz where it refutes the arguments that it's uploading content, saying that the terms of the contract were simply necessary to transfer the legal rights to DigiProtect. Of course, if that were true, why not say they transferred the actual copyrights, rather than say they had obtained the rights to make content available, along with listing out the specific file sharing networks. Oddly, DigiProtect then goes on to claim that any online distribution of porn is illegal online due to laws against distributing porn to minors. That seems like a total nonsequitor.

The company doesn't explain the claims from its only named client, Evil Angel, about the fact they were told the pre-settlement letters would be for more like $50. It also refuses to name any other customers, though points out that it works with companies besides porn movie makers, specifically noting that it works with software companies too, but it refused to name any. Perhaps that's because software firms like Atari have backed away from these tactics after all of the negative publicity.

In the end, the whole thing seems pretty questionable. Trying to force people to pay up with threatening, misleading letters with extremely flimsy evidence (which has been barred in some countries) is hardly a reasonable business model. Hopefully, companies think twice before signing up for such a program -- and perhaps the SRA will sanction Davenport Lyons for its participation in this scheme.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    micmac, Dec 11th, 2008 @ 9:11am

    What else is new

    How does this activity differ (except in minor detail) from the programs of the RIAA and MPAA in the US?? It looks as if residents of the UK are (very reasonably) expecting government agencies to put a stop to this protection racket, while in the US, we already know that the government agencies are abetting the scam.

     

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  2.  
    identicon
    Which? pwns DP :), Dec 11th, 2008 @ 10:26am

    Re: What else is new

    The problem was Micmac, that they were targeting a 70 year old couple for infringement of copyright on the gay p0rn0 "Army F**kers" and as you can imagine they were pretty upset about that. One of our Consumer watchdogs got involved and after that it escalated :D

    Epic fail on Davenport Lyons, who claim it is YOUR responsibility to secure your wifi or be held liable for any & all actions carried out on it - a 70 year old couple! Not to mention that a well know tracker inserts random IP addresses into the torrent swarm.

    IP addresses are _N0T_ and will _N3v3r_ be proof of anything. Learn the lesson well. Don't believe me? Google IP Spoofing, WEP, WPA, etc. Thats not even counting all the people who have left thier wifi open!

     

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  3.  
    identicon
    Hunty, Dec 11th, 2008 @ 12:31pm

    Just like shop lifting

    It's good that content creators are making a stand against illegal file sharing. There was never going to be a way for this type of activity to continue, particularly when many content creators are struggling financially.

    Yes, perhaps some of those people accused are innocent but that is the whole point of issuing a claim, they can prove their innocence and therefore have nothing to worry about.

    You can bet your money that the majority of those caught by Davenport Lyons are guilty of illegal file sharing.

     

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  4.  
    identicon
    Anonymous Coward, Dec 11th, 2008 @ 12:45pm

    Shouldn't the police be involved in some way?

    I really don't understand law stuff in general, but... shouldn't some form of government authority be involved, somewhere along the line?

    As I see it, a lawyer group has teamed up with some tech company that can... I dunno, track illegal P2P or something, and they're sending out demands for payment straight to the poeple.


    Granted I'm sleep deprived and probably missing something, but shouldn't there be some form of government intervention when it comes to sending demands for payment on the grounds of criminal action?

     

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  5.  
    identicon
    Phil McCraken, Dec 11th, 2008 @ 12:46pm

    Re: Just like shop lifting

    You're an idiot. There I said it.

     

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  6.  
    identicon
    Baloney Joe, Dec 11th, 2008 @ 12:51pm

    Re:

    copyright infringement is not a crime. At least not in the US. It's a civil matter, hence the police don't get involved.

    Now piracy is a crime, where's the line? Where ever they want it to be I suppose.

     

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  7.  
    identicon
    Anonymous Coward, Dec 11th, 2008 @ 12:59pm

    Re: Re:

    The main anti-copyright-infringement... thing in the UK is F.A.C.T

    Federation Against Copyright Theft

    Isn't theft a crime by definition? Can you have civil theft?


    That aside, isn't the entire claim of the various **AAs on both sides of the pond that a downloaded game, movie or song represents a loss of money; or to put it another way, that the downloaders are stealing a "copy" of that game, movie or song rather than paying for it?

    They can't have it both ways, surely. They can't equate downloading to theft for the convenience of making it sound big and bad for the various lobby groups and the media, and then turn around and persue it as if it's a civil matter in order to keep the courts out of it as much as possible.

     

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  8.  
    identicon
    Anonymous Coward, Dec 11th, 2008 @ 1:02pm

    Re: Just like shop lifting

    Hmm... Things must work differently where you live. Here in the US I don't HAVE to prove my innocence - the accuser has to prove my guilt.

     

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  9.  
    identicon
    Anonymous Coward, Dec 11th, 2008 @ 1:05pm

    Re: Re: Just like shop lifting

    Only in criminal court. In civil court it is the other way around.

     

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  10.  
    icon
    Mike (profile), Dec 11th, 2008 @ 3:56pm

    Re: Just like shop lifting

    It's good that content creators are making a stand against illegal file sharing.

    There's quite a big difference between "taking a stand" and demanding money not to sue. Can you tell the difference?

    There was never going to be a way for this type of activity to continue, particularly when many content creators are struggling financially.


    That's pure ignorance on your part. We've demonstrated plenty of business models where it actually helps the content creator to encourage more file sharing to occur.

    Yes, perhaps some of those people accused are innocent but that is the whole point of issuing a claim, they can prove their innocence and therefore have nothing to worry about.

    "Proving your innocence" is not how the world is supposed to work (innocent until guilty). And, with such a threatening letter it's often cheaper to pay up than "prove your innocence" which is exactly the business model that's being worked here. People shouldn't have to waste their time and money to defend themselves against a bogus charge.

    You can bet your money that the majority of those caught by Davenport Lyons are guilty of illegal file sharing.

    Why would you say that?

    And, even if that *were* true, does that make it okay to drag many people's good names, reputation through the mud, forcing them to waste their time defending themselves against a bogus charge, or even paying out their hard earned money against a bogus accusation based on very little hard evidence?

     

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  11.  
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    OMAC (profile), Dec 11th, 2008 @ 8:16pm

    Just liek shoplifting! Except you still are on the hook for legal fees!

    Hunty, the whole point of these scams is that the RIAA/MPAA or whoever sends out a letter claiming you infringed on copyrighted material to the tune of several hundred thousand dollars, but they are willig to settle for say a few thousand. Many people take the cheap way out and pony up the amount indicated in the settlement offer. Some innocents try to defend themselves. Many of those people that have successfully defended themselves and proved themselves not guilty of the crimes they were accused of are still on the hook for legal fees. How can that be justified?

     

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  12.  
    identicon
    robert green, Dec 12th, 2008 @ 4:41pm

    Davenport Lyons

    There is an even more serious story regarding DL...We have an ongoing complaint about senior partner Trevor Sears with the SRA, the Metropolitan Police and Surrey CID relating to a very wide range of crimes committed over twenty years.

    At present we recently uncovered the fact that he has been fraudulently passing himself off as a licensed insolvency practitioner since 2002, when he had his authority terminated by the Law Society. His conduct on this matter alone is of a criminal nature, added to offences including theft, systematic fraud relating to the travel industry, intimidation of witnesses,false allegations to the police, racist abuse and even making a telephoned death threat against a defenceless young woman.

    He has always boasted that he is untouchable owing to his close links with certain senior officers of the Met, especially those connected to Operation Sterling.

    There is much, much more.

     

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  13.  
    identicon
    Anonymous Coward, Dec 12th, 2008 @ 10:22pm

    Re: What else is new

    micmac wrote:

    It looks as if residents of the UK are (very reasonably) expecting government agencies to put a stop to this protection racket, while in the US, we already know that the government agencies are abetting the scam.

    When I put a comment on the previous TechDirt article about Davenport Lyons, I wrote that the UK doesn’t have the concept of class action. Because of this, yes, we rely more on regulation and on government intervention. However, don’t assume the SRA will do very much. They may only require Davenport Lyons to change the wording of their letters, which is primarily what Which?’s complaint is about.

    Mike wrote:

    Oddly, DigiProtect then goes on to claim that any online distribution of porn is illegal online due to laws against distributing porn to minors. That seems like a total nonsequitor.

    The legality of online distribution can be taken further than the question of minors. Army Fuckers has a BBFC rating of R18, which means it may be supplied only in a licensed sex shop. While remote distribution is allowed in some other European countries, it is prohibited in the UK. This is much more clear-cut than trying to show the file has been shared with a minor. When Davenport Lyons send out a letter accusing a UK account holder of uploading Army Fuckers, they are accusing them of committing a criminal act. Are Davenport Lyons passing on their evidence to the police? There’s nothing to suggest this is happening. It’s unlikely that the police would want it. The police know that an IP address alone is meaningless and using it as the basis for raiding the home of a pensioner couple would be a bad idea.

    Mike wrote:

    It also refuses to name any other customers, though points out that it works with companies besides porn movie makers, specifically noting that it works with software companies too, but it refused to name any.

    DigiProtect and others have been undertaking actions in Germany for longer than in the UK. Some Germans have been cataloguing this. There is a list of works. The list appears to be correct, in that it is consistent with all the reports on letters from Davenport Lyons. For example, DigiProtect do also hold rights to a Scooter song. Davenport Lyons letters for Scooter’s Jumping All Over The World have been reported on the Slyck.com forum and in the press. This is also the work referred to in the complete Davenport Lyons letter on Wikileaks (PDF and eye strain).

    It should be possible to deduce other parent rights holders from that list of works. The record label Kontor/Sheffield Tunes seems a likely candidate for Jumping All Over the World.

     

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  14.  
    identicon
    Hunty, Dec 14th, 2008 @ 11:44am

    The world as we know it is changing.

    Content creators and other rights holders are perfectly within their own right to demand money to not sue. There is nothing wrong with this since you have nothing to worry about if you were innocent. An offer to settle is exactly that, it's saying, lets not go to court - if you did it, own up. If anything, this is the right thing to do. Look at it like this - would you prefer court papers to land on your doorstep with a court date?

    I do believe content creators are struggling financially because of this. For example, my friend works at EMI and around 800 people just got laid off because profitability was down. The creative industry is struggling because people are stealing from them. Also, why does it matter if a content creator has not taken advantage of a particular advertising channel? That content is not there for you to take in the first place, regardless of what channel you choose to market it in.

    Let's not kid ourselves here, at least 70% of the population uses filesharing software and now they might get caught. Those people accused probably did it. 20 years down the line, I firmly believe that this sort of thing will be viewed as 'just like' walking into a shop and stealing.

     

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  15.  
    identicon
    mr t, Dec 14th, 2008 @ 5:51pm

    hunty you broke into my car. now prove it aint you or pay me ÂŁ500

    They have not got any right to demand money. It is for the courts to decide and to date they are so unsure of the EVIDENCE that out of literally hundreds of people (Possibly a couple of thousand) they have taken as far as i know 3 people to court and we are not even sure anyone turned up at court (as summery judgments were issued) and perhaps these people hadn't actually been contacted by them (ie had moved.) and therefor didn't even know of the court case. They have basically threatened people with bullshit in order for them to pay. ie quote American law which has no bearing on english courts and have actually written "if we take you to court we will win".... huh... are they paying the judge or something. There are certain things they should do when they send a demand (which is regulated by the law society) and 1 is send the evidence and 2 is time for the accused to get help and reply usually a month. I was one of the original (back nearly 2 years ago) and they gave no information and i had 1 week to reply with money or else. I was going on holiday the next day and worried about it all week as i intended not to pay. In my mind davenport lyons are a bunch of professional conmen who have gone outside the law to extort money out of people.
    Even by your standards 70% file share so 30% of innocent people should have to pay ÂŁ500.

     

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  16.  
    identicon
    Acerimmer1, Dec 16th, 2008 @ 5:15pm

    I predict this will end badly for Davenports clients and I would guess that they are ultimately damaging the whole argument for copywright holders.

     

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  17.  
    identicon
    wilson, Feb 4th, 2009 @ 9:37am

    Hello i just recived a letter from this company asking for 500 pound compensation for me downloading a film help advice what should i do thanking you. wilson .?

     

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  18.  
    identicon
    bernard wallace, Apr 20th, 2009 @ 10:49am

    copyright infringement

    Draconian use of Copyright Acts by the entertainment industry possibly opens a Pandora’s Box.

    The original Copyright Act of 1842, and the International Copyright Act, 1886, the Berne Convention and the Copyright Act 1911, the Copyright Act 1956, the Universal Copyright Convention, and the Copyright Designs and Patent Act 1988, were, in 1995 extended to grant copyright protection from 50 – 70 years, and were again amended and strengthened by The Copyright and Related Rights Regulations of 2003.

    These law created the offences for which Napster, Pirate Bay and a whole host of individual domestic down-loaders have been successfully prosecuted.

    The lobbyists of the film and entertainment industry by intensive, prolonged, aggressive and determined lobbying, have earned millions of dollars during the last ten years from their clients in order to convince the various lawmakers of their client’s copy rights. Universal, SonyBMG, EMI and Warner would appear to have been the largest contributors and will doubtless be the greatest beneficiaries. Both lobbyists and industry CEO’s correctly claim that millions of dollars worth of revenue have been lost to the industry because of piracy; the unlawful downloading of copyright material. The combined turnover of the film / movie and entertainment industries runs into billions, but any loss of revenue is a loss, and they have now proved, and are continuing to prove their point with regard to the Napster and Pirate Bay websites, various P2P (peer to peer) sites, and now hundreds, or possibly thousands, of private people are threatened with court action.

    In their desire to prohibit the unlawful use of copyright material, and to impose drastic fines, and or imprisonment, on any and all offenders it is just possible that the entertainment lawyers may have overlooked the entertainment industry’s own use, possibly unauthorised, and7or illegal, of images of property or location or real estate which require Location Release Agreements; the use of shop fronts or advertising hoardings, which require Material or Trade-Mark Releases, and the inclusion of petrol pump, garage or other illuminated displays, or company vehicles and which display logos on the sides of vans, lorries, etc etc. which require similar Agreements. Model Releases are required for “extras”, who are willing or unwilling participants in a filmed or recorded image. Location Releases are also required for any images made from any third party property. Making a recording, a film, of the house next door, No 4 perhaps, from the garden of No 2, or No 6 or even No 46, or making this image from a hired vehicle, which is a third party property, or possibly a bus or train, or a hired scaffolding or crane or helicopter, constitutes a breach or infringement of copyright and various licences, permissions, agreements or contracts need to have been made prior to publication/showing or distribution of these images in any form.

    According to the various Acts it seems that;
    Without written confirmation of each separate permission in respect of the locations, models, materials and works all other acts are prohibited including, but not limited to, the following:
    · reproduction of any kind in any medium.
    · storage in any medium including extraction into any other medium.
    · public performance, broadcast or display.
    · rental, leasing or lending.
    · extraction, manipulation or altering in any respect.
    Therefore any showing of any film/movie in which the client’s property is shown; without a clearly defined contract covering such showings; is clearly an infringement of client’s copy rights.

    Is it therefore possible that the large entertainment companies are using the criminal law to close pirate companies whilst at the same time, possibly infringing the rights of various individuals who, doubtless, have similar rights under these new laws.

    The relevant provision states;
    "A person who infringes copyright in a work by communicating the work to the public –
    (a) in the course of a business, or
    (b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work."

    And it has been suggested that
    “For a film company to have used a location, with or without a Location Release then subsequent use of the images of the location or property in a film/movie become subject to one or more of the above Copyright Acts”

    The various Broadcasting Acts are also concerned with the unauthorised use of images; those without a location, trade-mark, material or model release(s) whilst The Human Rights Act 1988 is concerned with unauthorised use of personal images and model releases.

    Any real or imagined action for infringement of copyright is of course subject to the various Laws of Limitation, or Statutes of Limitation, which, in most countries is a period of time of some six to eight years. The various Acts have determined that each subsequent publication of a copyright work requires a separate permission. Therefore the transfer of the original images from 35mm film stock; possibly in use until the 1970’s; to video tape, until the 90’s, to DVD, hard disc, laser disc, electronic media etc., all required a renewal of any existing contract or agreement, or the preparation of a new licence. Should any of these agreements be lacking then the film, company would appear to be in primary infringement of copyright.

    Secondary infringement may well also have been perpetrated by various intermediaries; “soft targets”; cinemas, broadcasters, wholesalers, shops, distributors and agents, printers, producers of VHS / DVD etc., tapes and discs. Secondary infringement of copy rights, due to the strength of the laws brought into being by the entertainment industry, also carry unlimited fines and the possibility of incarceration.

    Sub-titled, re-titled or dubbed films as well as digitally re-mastered or digitally coloured movies are obviously re-publications and therefore probably represent a further infringement.

    The most recent developments in cinema entertainment encompass the codified hard drive distribution of films for digital projection in specially equipped cinemas. This will shortly be followed by live digital screening fed by fibre optic cable or satellite connections from a central distribution point to allow world-wide same-day release of the latest blockbuster, which is of course a further publication of any films made and stored on any other form of media.

    Copyright Bernard Wallace,
    Torre San’Angelo, Montone, PG, Italia, April 2009

     

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