European Rights Holders Drastically Increase Borderline Extortion Pre-Settlement Letters

from the this-won't-last dept

We've covered in great detail how DigiProtect purposely seeds files of content from its copyright holding partners, in order to send anyone who downloads the content a "pre-settlement" letter that seems not very different from the traditional extortion "protection" rackets ("pay us, or we'll sue.") Those who don't pay are actually discovering that the pre-settlement letters may be handed over to collections agencies despite no agreement to pay nor a court order requiring payment. It turns out this shakedown business is quite profitable but of very questionable legality.

A new report in Germany is suggesting that DigiProtect and a few similar firms in Europe may have sent out 450,000 such letters last year. Unfortunately, NewTeeVee, in reporting on this, claims that each of these are "P2P lawsuits," but that's not true (and a large part of the problem). Nearly every one of these letters are sent without any corresponding lawsuit. The whole idea is to shake people down by threatening a lawsuit, but never having to go through the expense of filing one (or the trouble of actually proving the infringement -- which is a big deal since many, many, many bogus letters have been generated, snaring many innocent users). But, with little in the way of penalties for such bogus pre-settlement letters, there's simply no reason not to keep sending them. Apparently, enough people just pay up to make this an incredibly profitable business.

However, with the massive increase in such letters, and increasing scrutiny about the whole practice, you have to wonder when European governments will start to crack down on this behavior. It's difficult to see anyone defending these actions with a straight face. They clearly have nothing to do with preventing file sharing or unauthorized use of content, but are very much about just getting people to pay up under the threat of a lawsuit.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    IANAL, Jan 12th, 2010 @ 4:54am

    "Those who don't pay are actually discovering that the pre-settlement letters may be handed over to collections agencies despite no agreement to pay nor a court order requiring payment"

    I don't know about Europe, but in the US this would be considered fraud.

     

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  2.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 5:21am

    mike is against rights enforcement

    when you are going to sue someone, you have 1 of 2 options:
    1) send them a nastygram telling them they've violated your rights and that you're going to sue them if they don't pay up.
    2) go out and file the lawsuit.

    since #1 is usually cheaper for both parties, it's considered a common courtesy (and EVERY US court now has at least 1 phase where both parties have to sit down in a room and try to negotiate a settlement). i don't see what the problem is. yes, there are a handful of people who didn't actually do it, but that's exactly what the court is for -- to figure out the facts. what do you want rights holders to do? not enforce their rights?

     

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  3.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 5:30am

    Re: mike is against rights enforcement

    "what do you want rights holders to do? not enforce their rights?"

    Well not trying to extort money from innocent people would be a start.

    Have a look at these stories and see if you think they are behaving ina civilised way.

    http://beingthreatened.yolasite.com/your-stories.php

     

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  4.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 5:30am

    Re: mike is against rights enforcement

    Missed the point, pallie. Go back and read again.

     

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  5.  
    identicon
    You missed a big part of it, Jan 12th, 2010 @ 5:31am

    Re: mike is against rights enforcement

    You missed the part where they claim money owed and involve collection agencies. This is fraud. This is criminal.
    It has nothing to do with rights enforcement.

     

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  6.  
    identicon
    CastorTroy-Libertarian, Jan 12th, 2010 @ 5:39am

    Re: mike is against rights enforcement

    THE ABOVE IS A TROLL, NO THOUGHT REQUIRED, MOVE ALONG

     

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  7.  
    identicon
    MCR, Jan 12th, 2010 @ 5:43am

    Still Confused

    Was DigiProtect hired by the copyright holders to do this? If so, wouldn't that mean they had the legal right to make the copyrighted work available for download, making the download itself legal?

    Have there even been any lawsuits (US or Europe) that involved downloading copyrighted material? I know the high-profile cases in the US were for uploaders.

     

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  8.  
    icon
    The Anti-Mike (profile), Jan 12th, 2010 @ 5:43am

    Re: Re: mike is against rights enforcement

    Actually, sending it to a collection agency isn't fraud.

    If you receive a notice saying "you owe us $500", you have two courses of action: Ignore it, or send back a "I don't owe you a thing". If you fail to act, the bill can be given to collection without needing a lawsuit. Heck, companies do it all the time.

    The people sending out the notices must feel they have enough proof to support their invoices, or have enough backing information to support their claims.

    I have to say that I don't think we are getting the whole story here.

     

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  9.  
    icon
    dkazaz (profile), Jan 12th, 2010 @ 6:17am

    @The Anti-Mike

    Companies send bills to customers and if not paid to collection Agencies. But if a company you have no official dealings with sends you a legal threat and then without having proved that you owe them anything sends a collection agency after you, that is GROSSLY illegal.

    If you really believe it's OK, make sure you transfer $5K to my account by Friday for using one of my products without being authorized to by me. If you don't I'll be sending a collection agency after you.

     

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  10.  
    identicon
    DH's love child, Jan 12th, 2010 @ 6:25am

    Re: Re: Re: mike is against rights enforcement

    In the US anyway (and before you spew that the US isn't the rest of the world, I'm fully aware of that hiving travelled several times to other countries), this would be fraud, becuase there is no contract with a presettlement letter - both sides agree, OR a court of law (remember those?) rules. So this is in fact NOT a legal debt. Ergo (you can look it up at dictionary.com), it it not a legal course of action to pursue this "money we think you owe us but you never agreed or were forced to pay" through a collection agency.
    Now, I suspect that this happens in other countries PRECISELY for the reasons that hev been stated here before - if they tired this in the US, they would be sued into oblivion.

    Even if we're not getting the whole story here, can you at least try to be lees obviously a shill?

     

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  11.  
    identicon
    DH's love child, Jan 12th, 2010 @ 6:52am

    Re: Re: Re: Re: mike is against rights enforcement

    please forgive the typos

     

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  12.  
    identicon
    fishbane, Jan 12th, 2010 @ 6:55am

    Re:

    How long do you think it would take for a mere mortal to be turned into a smoking crater if they sent a "pre-settlement letter" to the execs of DigiProtect for harassment and emotional suffering (or whatever the German equivalents may be), and then sold off the "rights" to collections agencies?

     

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  13.  
    icon
    The Anti-Mike (profile), Jan 12th, 2010 @ 7:06am

    Re: Re: Re: Re: mike is against rights enforcement

    downloading the file is the "contract".... the act that starts the process.

     

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  14.  
    icon
    The Anti-Mike (profile), Jan 12th, 2010 @ 7:19am

    Re:

    These letters start when the user downloads a file illegally. It isn't just random stuff, if I understand correctly.

     

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  15.  
    identicon
    vyvyan, Jan 12th, 2010 @ 7:33am

    Re: Re: mike is against rights enforcement

    You know what I feel? We, the reader of techdirt, must have an option to see comments without 'Anonymous Coward' comments. Press the genie button and puff, troll comments are invisible!

    It's so damn irritating to look for real comments in cesspool of troll comments.

     

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  16.  
    identicon
    ?, Jan 12th, 2010 @ 7:46am

    Re: Re:

    Please explain how the file is illegal when Digiprotect has been authorized by the rightsholder to put it out there for downloading.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Shawn, Jan 12th, 2010 @ 8:19am

    Re: Re:

    What files are illegal to download? Is there some new law that was passed somewhere?

     

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  18.  
    identicon
    Luci, Jan 12th, 2010 @ 8:21am

    Re: Re: Re: Re: Re: mike is against rights enforcement

    A fact not in evidence. Since it was not proven to have happened... Oh, why am I bothering? You're just making this shit up as you go along.

    There is no contract, no matter how much you might insist there is. This is pure extortion and fraud, no matter how much you insist it is not.

    Careful, your affiliations are showing (like we hadn't figured them out).

     

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  19.  
    identicon
    Luci, Jan 12th, 2010 @ 8:23am

    Re: Re:

    You do misunderstand. Nothing has ever been proven. An IP address is not proof, which has been explained time and again. This is pure misunderstanding of the technology.

     

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  20.  
    icon
    AdamR (profile), Jan 12th, 2010 @ 8:33am

    Re: Re:

    How do you prove that the person who received the letter is who downloaded it?

     

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  21.  
    identicon
    (the same AC as above), Jan 12th, 2010 @ 8:42am

    Re: Re: Re: Re: Re: mike is against rights enforcement

    (i'm the AC who started this thread).

    you had me on your side until you made this post. unauthorized copying does not create a contract. no mutual consent and no consideration = no contract.

    however, i don't practice debt collections law (i'm an IP guy) and don't have the time to look it up. you're clearly not required to possess any sort of judgment before you report some collections... people/companies send others to collections pre-judgment all the time. i suspect that all you need is merely a good-faith basis to claim that the target entity owes you money. unless there's some statute saying you can't do it for alleged torts (or that you can only do it for lending/credit disputes), there's no reason why you can't legally do it for alleged copyright infringement.

    what this really comes down to is the copyright liability and whether stings are legal evidence of infringement (thus forming a good-faith basis of debt). in the US, stings are valid, admissible evidence for criminal infringement cases, but no cases have ruled on [downloader] stings for civil infringements (uploader stings are the making available debate, and that's still unsettled). the downloader will argue that the rights holder made the file available in a black market channel with every expectation that people would download it... and thus it would be authorized/noninfringing. the rights holder will argue that private stings are authorized for criminal, and civil should be no different.

    a lot of people in this thread are saying "it's illegal" and only say that because they either heard it from a friend or don't like the sound of what's going on. people make up law like this all the time. when you were in high school, you probably heard that you can drive above the speed limit as long as 3 other cars are also driving above the speed limit in the vicinity... or other stupid non-laws.

     

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  22.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 8:44am

    Re: Re: Re: mike is against rights enforcement

    because "Castor-Troy-Libertarian" and "vyvyan" are so much more identifying than AC?

    what if i made an account name "Shmanonymous Shmoward"? all three of us would still be just as anonymous.

     

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  23.  
    icon
    drewmerc (profile), Jan 12th, 2010 @ 9:05am

    i so want ne of these letters just so i can sue them back

     

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  24.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 9:12am

    Re: Re:

    You don't, as usual.

     

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  25.  
    icon
    btr1701 (profile), Jan 12th, 2010 @ 11:16am

    Re: Re: Re: mike is against rights enforcement

    > I have to say that I don't think we are getting the whole story here.

    That seems to be your reply to every article that details bad industry behavior that can't reasonably be defended by anyone who isn't a sociopath.

    You've set yourself up as "the Anti-Mike", so you feel obligated to be contrary for its own sake. If Mike claimed that water is wet, you'd feel perversely compelled to argue the point. But at the same time, you can't actually defend the idea of sending out extortion letters by the thousands to innocent people, so we get your standard canned response of "I don't think we are getting the whole story here".

    This allows you to implicitly criticize Mike and live up to your namesake without having to actually defend the indefensible.

    Neat trick if you can find someone stupid enough to fall for it.

     

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  26.  
    icon
    btr1701 (profile), Jan 12th, 2010 @ 11:18am

    Re: Re: Re: Re: Re: mike is against rights enforcement

    > downloading the file is the "contract".... the
    > act that starts the process.

    You must have gone to a different law school that I did, because that's not the standard for a valid contract under any definition I've ever seen.

     

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  27.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 12:08pm

    Re: Re: Re: Re: mike is against rights enforcement

    No one falls for it because the only people who would are illiterate.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 12:09pm

    Re: Re: Re: Re: mike is against rights enforcement

    TAM is just as anonymous. Sure, TAM has a profile but how much do we really know about TAM?

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 12:10pm

    Re: Re:

    Maybe we could close down the internet to find out?

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    Mike Masnick (profile), Jan 12th, 2010 @ 12:42pm

    Re: mike is against rights enforcement

    when you are going to sue someone, you have 1 of 2 options:
    1) send them a nastygram telling them they've violated your rights and that you're going to sue them if they don't pay up.
    2) go out and file the lawsuit.


    First off, you make the assumption that you have to sue. Why?

    But the bigger point is that this not the company "going to sue someone." It's the exact opposite. They haven't sued. They're sending HUNDREDS OF THOUSANDS of letters with NO INTENTION of ever suing all but a handful of them.

    So your entire premise is flat out wrong.

    since #1 is usually cheaper for both parties, it's considered a common courtesy (and EVERY US court now has at least 1 phase where both parties have to sit down in a room and try to negotiate a settlement). i don't see what the problem is

    Again, this was not a nastygram telling people to stop -- in which case you might (sorta, but not really) have a point. It was a demand for money. Do you really not see the difference?

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Jan 12th, 2010 @ 6:22pm

    Re: Re: Re: Re: Re: Re: mike is against rights enforcement

    citation needed

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Dont be a sucker, Jan 12th, 2010 @ 6:34pm

    It is Fraud

    I noticed that several commenters here have assumed that the recipient of the extortion letter was downloading something. This may not be the case. In fact there are many cases where the recipient did not own a computer, was too young or old to use one or was a laser printer. So, your assumption is incorrect. There is no presumed guilt.

    People get all sorts of crackpot mail every day. They should not be subjected to collections harassment just because they threw away some bogus letter.

    If this starts here, it will certainly attract the attention of some DA and or AG.

     

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  33.  
    icon
    Thomas (profile), Jan 12th, 2010 @ 7:33pm

    governments want..

    a cut of the money. If they get a cut they will turn a blind eye on it; it's much easier than raising taxes.

     

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  34.  
    identicon
    Rixque, Jan 28th, 2010 @ 6:20am

    So the ISP gave them Name and Physical Address that corresponds to the IP-address ...

    Isn't the ISP obbliged to give the Name and Physical Address behind an IP-address only after an official complaint has been filed or (even better) only on court order? I believe that the ISP's should't immediately give my details to whoever asks for it ...

     

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  35.  
    identicon
    simlawstu, Jan 28th, 2010 @ 6:04pm

    I actually have one of these letters

    Right then guys lets see if I can settle this argument for you. I have actually received one of these letters from DigiProtect and as such have been thouroughly researching wether or not they have a case to make against me.

    Firstly I was in fact downloading the alleged file illegally. Now i don't care about the moral implications, it is in fact illegal to make copies of someone elses intellectual property.

    The company that is serving these letters is actually a law firm called ACS-LAW who are working for DigiProtect. Sending a pre-lawsuit settlement letter is in fact standard practice in these situations.

    According to information from ACS-LAW website 80% of people when threatened with legal action opt to settle. It also states that they have never taken a single case to court. This means there is no precedent set and a court battle could go either way. I myself intend to attempt to take this through the courts.

    The evidence that is collected by DigiProtect is not planted as that would require trojan horse viruses to send results at the end of each download. That would be illegal.
    Instead the company are using a bit of software called Logistep which accesses the bittorent peer to peer networks and then searches for files that DigiProtect have been told to search for. When found the program attempts to download. If it is succesful it will log the IP address and time.

    ACS then went to the European High Court and got a court order for the eight largest ISPs to release details of account holders matching the gathered IP addresses at the times noted. These details were then sent back and are being held as "Evidence" of the infraction.

    Because the software used attempted to download off of the user they can actually be held to of been "using p2p protocol(s), specifically for the purpose of being provided to third parties".

    They are asking for the user to sign a document stating that they will never do this again and will pay a £400 settlement.

    The legal grounds being stated are sections 16(1)(d) and 20 of the Copyright, Designs and Patents act 1988. These refer to broadcasting copyrighted work or inclusion in a cable program service.

    This is actually very shaky legal ground as there is no precedent and some very ambiguous wording in sections 8 and 9(2)(a) mean that you can actually say that the copyrighted material is neither being broadcast or included in a cable program service. This means that you would have to be tried under section 18 which covers providing copies to the public. In this case you are covered by section 18(2)(a) which states that you are only infringing copyright if you are introduing these copies and not if you are in fact several copies down the line.

    TO RIXQUE
    There was a court order unfortunately. However according to the citizens advice bureau the account holder should be made aware of this. I was not and this is another area I will hopefully be taking to court.

    Wish me luck in defending the rights of the common internet user. Now all i need is a solicitor who will take my case.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Ben, Jan 29th, 2010 @ 3:55pm

    Re: I actually have one of these letters

    I too have received one of these letters. I did download the file, but i also OWN a copy of the cd (i have a netbook with no cd drive and an ipod)! I know its probably still illegal, but i feel i own my copy.

    I have no idea what to do, but certainly can't afford to pay £400 within 21days. I just don't have that kind of money!

    I'm desperate for more information, but can't seem to find much concrete stuff, just conjecture.

     

    reply to this | link to this | view in thread ]


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