by Mike Masnick
Wed, Mar 28th 2012 10:36pm
by Mike Masnick
Wed, Mar 28th 2012 7:36pm
The History Of Sealand, HavenCo And Why Protecting Your Data Needs More Than Being In International Waters
from the fascinating-read dept
It's a fun story, though I'm sure some critics will use it to suggest that any attempt to create any kind of "offshore" data haven is doomed to fail. I think that what it does show is that setting up such a solution is extremely difficult, involves a number of difficult to control variables, and needs a lot more than just "hey, we're sorta (but not really) in international waters!" The end result shows that there were problems with Sealand itself, separate from HavenCo, which had its own problems. Combine them all and it's a complete recipe for disaster. This doesn't mean that an offshore data haven couldn't work, but as Grimmelman correctly notes, the appeal of such a thing is actually pretty limited. In a world where the internet really is everywhere (even if some governments try to limit it), the way to route around censorship tends to have more to do with hiding digitally (hello encryption) than physically. Either way, I figured many folks here would get a kick out of the story. Here's the intro to get you interested:
In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo—and examines what they have to tell us about the nature of the rule of law in the age of the Internet.
The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law” that was supposed to keep HavenCo safe was law only in a thin, formalistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered.
by Michael Ho
Wed, Mar 28th 2012 5:00pm
from the urls-we-dig-up dept
- A giant 45-foot long paper airplane was released from a helicopter over the Arizona desert, promoting the PIMA Air and Space Museum. It didn't fly for very long, but it was big enough that the helicopter pilot jettisoned the big paper plane slightly earlier than planned because it was pulling on the helicopter a bit too much. [url]
- A Japanese engineer, Takuo Toda, flew his paper airplane which stayed aloft for 27.9 seconds -- setting a world record in 2009. But for Toda, 28 seconds is nothing compared to his dream of launching a paper plane from the edge of space.... [url]
- Throwing a paper airplane that can fly over 226 feet isn't easy, but it can be done -- and it beats the previous record of just over 207 feet (set in 2003). Hmm. How far can a robot arm throw a paper airplane? [url]
- To discover more cool sites about aviation, check out what's currently flying around StumbleUpon. [url]
by Mike Masnick
Wed, Mar 28th 2012 4:19pm
New Bill Seeks To Let DHS Agents Coordinate More With Private Companies In Seizing Property (Like Domains)
from the this-again dept
One of the ones that didn't show up in SOPA has now made its way into a new legislative proposal, H.R. 4216: Foreign Counterfeit Prevention Act, introduced by Reps. Ted Poe and Steve Chabot. The text of the bill seems simple enough. It changes 18 USC 1905, which currently forbids federal officials from revealing to private parties' information that they come across during investigations. The new bill seeks to make an exception to that: allowing Homeland Security/Customs & Border Patrol agents to share pre-seizure info or products with trademark and copyright holders.
Now, on its face, this might make sense. It's a way for CBP officials to ask copyright and trademark holders if their rights are being abused by potentially infringing products. But, as we noted when the White House first asked for this law, this hasn't always worked out so well in the past, in part because copyright and trademark holders are often not particularly truthful when asked if they infringe -- and they rarely, if ever, give any thought to fair use or other legitimate uses of their copyrights and trademarks. In fact, one of the reasons why the federal government screwed up so badly in seizing Dajaz1 was because it relied on bad claims by the RIAA, who insisted that works that were not infringing were infringing. Organizations like the RIAA have little incentive to get these things right. And this bill encourages greater coordination with those private parties?
The simple fact is that infringement is determined not by the copyright or trademark holder, but through a court process and adversarial hearing. Having Homeland Security sharing more info with private companies seems like a situation that is ripe for abuse. We've already seen how Homeland Security sometimes appears to act as the the private police force of certain private companies. Are we sure that we really want to create a situation that encourages more such activities?
by Mike Masnick
Wed, Mar 28th 2012 3:21pm
Righthaven Case Gets Even More Bizarre: CEO Files Statement About How Righthaven's Own Lawyer Won't Respond To Him
from the you-can't-make-this-up dept
For a rather complete takedown of Gibson's filing and why it may create significant legal problems for Gibson later, I recommend Patrick Anderson's vicious dissection of the filing. Gibson, a lawyer now working for a big law firm, claims that he's a "non-party" in this lawsuit, despite being the CEO and key officer in the company in question. He insists that, despite being a lawyer, as the CEO he cannot act as a lawyer for the firm. However, as Anderson notes, in the early days, Gibson did exactly that and signed various filings for Righthaven:
I have attempted by way of letter, telephone and electronic mail to contact Mangano in order to receive updates on the statuses of all cases to no avail. Mangano has been entirely uncommunicative. Mangano cannot complain of non-payment, as Righthaven made all required payments, until such time as Mangano became entirely uncommunicative.Anderson, however, notes a bizarre contradiction within Gibson's own filing. He notes both that Gibson states that "Righthaven has no funds" to order a copy of the transcript which the court is demanding of him... but then also notes that Mangano shouldn't fear not getting paid for working for Righthaven because "one or more of Righthaven's parents" would likely "continue to make capital contributions." In other words, Gibson appears to both plead poverty in paying for a copy the court has ordered him to get and the fact that it has access to money to pay lawyers to get that same document in the same filing. Wow.
As Chief Executive Officer (“CEO”) of Righthaven, I do not have any means to effect compliance with the Minute Order but stand prepared to assist within the province of the law and not in a manner that causes me to engage in personal efforts above and beyond that which the CEO of Righthaven is capable of doing with the limited resources currently available to Righthaven, assuming I receive notice of same.
Therefore, Gibson hereby respectfully requests this Court to order Mangano to appear before the Court and effect compliance with the Minute Order. Gibson further requests this Court order Mangano to reinvigorate Mangano’s representation of Righthaven until such time as this Court would find appropriate the withdrawal by Mangano.
Anderson also mocks Gibson for later "apologizing" in the filing for not having access to specific case citation page numbers, noting that while this is a minor point, earlier in the filing Gibson admits that he is employed as a lawyer at a giant law firm, and is filing this particular court filing via his CM/ECF login (Case Management/Electronic Case Files), which he has because of his employment at that law firm. Anderson cuts through the crap and points out that Gibson must be hoping the judge is a complete moron:
So “convenience” allows Gibson to use his ECF account, but apparently does not allow him to use an actual law library to read the cases cited against him and respond with accurate page numbers.Anderson, a patent attorney who often writes about how companies can use patents to make money, worries that Righthaven and Gibson's crazy antics will come back to haunt patent trolling firms:
When Gibson eventually defends himself in an argument over whether he should be protected by the corporate veil, his opponents will make sure each little infraction comes back to bite at his credibility. If Gibson loses, and becomes personally liable for actions of his LLC, that decision becomes reported and used as precedent in other cases. At minimum, that’s going to raise legal costs and uncertainty for LLC owners everywhere, particular in the IP arena because every patent monetization company is going to be compared to Righthaven, and even the owner of a patent who loses on a good faith argument of infringement or validity may end up having personal assets at least threatened as a result.I assume that some folks around here don't think that's a particularly bad result. And even though I'm not a fan of Righthaven or patent trolling companies, I do think that we should be pretty careful about under what circumstances the corporate veil should be pierced (though I know many here disagree). To be honest, the more we see about the way Righthaven acted, I think there is growing evidence that it was abusing the corporate structure to do questionable things -- and thus, this might be a case where corporate veil piercing makes sense. As long as other trolling operations aren't doing that, then perhaps this won't be as big an issue.
by Mike Masnick
Wed, Mar 28th 2012 2:44pm
from the join-in dept
Separately, we've already received a bunch of requests to take part in future Step2 Startup posts, but if you've got a startup and want to get feedback from the Techdirt/Insight Community, please send us a note (use the "Step2 Startups" option in the pulldown).
by Mike Masnick
Wed, Mar 28th 2012 2:10pm
from the not-everything-is-just-a-story dept
Of course, as someone who likes to tell stories, I also love listening to stories -- both for the stories themselves, but also for the craft of storytelling. In the last few years, in particular, I've been listening to lots of podcasts that really focus on storytelling -- The Moth, This American Life, Snap Judgment, Radiolab. They're all fantastic. Of course, if you're just doing pure storytelling for the sake of amusing or entertaining people you're talking to... a certain amount of embellishment can happen. Hell, it can be common and almost expected. Not all my stories do that, but there are a few that would be just that much better if you change a little thing here or there. I once thought it might be fun to put a bunch of my usual stories (the "date stories" I guess) into a book, in which each story would include one exaggeration or outright falsehood -- and the final "chapter" would be to explore what was not quite true in each story, and why I used it (and if it was really necessary). I still think this would be fun to do if I ever actually had the time (I don't).
I've been thinking about this a bit following all of the controversy over This American Life's big retraction of the Mike Daisey episode, in which he used that storyteller's license to exaggerate key parts of the story about what he saw in China when he went to check out the Foxconn factories where Apple products are made. On Sunday, Daisey finally gave the apology he should have given a week ago, in which he admitted that he fabricated and exaggerated in the interest of the story, and that in doing so he didn't live up to his own standards.
But what's interested me even more is that I've seen a few different people call attention to the fact that others have called out This American Life in the past for supposed "true stories" that turned out to be anything but. Four years ago, for example, Jack Shaffer at Slate called out Malcolm Gladwell and TAL for a story that Gladwell did on TAL about his "experience" as a young reporter at The Washington Post (now the owner of Slate). That story was actually done for The Moth -- a regular storytelling event/group/thing, where the key thing is the story, not so much the truth. Almost exactly a year before that, there was a similar article in The New Republic, by Alex Heard, calling out TAL and contributor David Sedaris in a ridiculously long article highlighting a bunch of fact checks that suggest Sedaris' famed stories aren't always in the same time zone as the truth. There have also been other "memoir"-type stories on TAL that I would be willing to bet were similarly exaggerated.
Some have questioned why This American Life did a full hour episode on the Mike Daisey situation, but brushed off the criticism of Gladwell and Sedaris. And I think what it comes down to is exactly the reason it took Daisey so long to come to terms with why people were so upset about his story. Daisey comes from a tradition that is much closer to where Gladwell and Sedaris' stories came from: to entertain people, not to make a larger point. Daisey has been an active public storyteller for a decade or so (he's also active in The Moth). The problem was that with The Agony and the Ecstasy of Steve Jobs, he went past storyteller into advocate.
He wasn't just trying to entertain. He was trying to make people "aware" and to make a difference. When you shift from one mode to the other, the rules change. And Daisey missed that.
The thing is, it's really not hard to separate the two. I don't tell exaggerated stories on Techdirt, in part because this isn't a "storytelling" forum, but also because this site depends on everything on it being as credible as possible. It's quite easy for me to understand the context and when the discussion is real and important, and when I'm just talking with some friends about a funny story. Similarly, I have no reason to doubt Gladwell's detailed research works (even if there are reasonable complaints about his occasional mistakes) include purposeful embellishments "for the story." Context matters and I think most people can separate them when talking about different subjects.
The issue with Diasey was that he took the storytelling tradition, and tried to make it out to be a "news" story in which he was really seeking to get things to happen. And that's where things fell down. If you're going to do that, your story has to check out. I'm not bothered by Gladwell or Sedaris' exaggerations (though I must admit to not finding Sedaris that entertaining -- but Gladwell's WaPo story is hilarious). If Daisey was just telling stories for the sake of storytelling, there wouldn't be an issue. But as soon as he made the story part of a campaign to create change, he had a responsibility to be factual. That he couldn't separate the two was a major mistake, and it's not even clear that his apology fully recognizes that fact.
Storytelling is a useful tool for entertainment. Storytelling can also be helpful in the interest of causing people to change behavior or to become aware of some real situations, but there are different standards that people expect in that kind of storytelling, and failing to live up to those ideals has serious consequences, as Daisey is starting to figure out now.
by Leigh Beadon
Wed, Mar 28th 2012 1:13pm
from the getting-a-bit-overzealous dept
By now, you've probably heard the news that the FAA is reconsidering its policies on using electronic devices on airplanes. In truth this is primarily a technical issue, coupled with an administrative question of who will pay to actually test devices, but that hasn't stopped some people from expressing their support or opposition on a variety grounds. Peter Bright at Ars Technica is one of those people, offering a defense of the existing gadget ban that I honestly thought had to be a joke—but the punchline never came. The crux of Bright's vague argument is two-fold: that there is still a valid safety concern even if the devices cause no interference, and that we should support the ban for "spiritual" reasons.
There is still a small safety argument that resonates. ... If something goes wrong—which is admittedly rare, but not unheard of—it is probably to the advantage of all involved that they're paying at least some attention to what is going on around them. As safety measures go, they don't get much cheaper or more inoffensive.
But the more important reason to preserve the current rules is a spiritual one. There is something to be said for not being transfixed by an electronic gizmo. These devices have encroached on almost every aspect of modern life. Even in places that should be sacrosanct—at the cinema or theater, for example—sporadic buzzing, bleeping, and illumination courtesy of pocket-sized gizmos is abundant. I freely admit, I'm no angel here. Many's the time that I've interrupted a romantic meal at Buffalo Wild Wings to investigate a surprising Buzztime answer.
Those brief stints in which we must turn off our machines—the few minutes between push back from the gate and the extinguishing of the seatbelt sign, and the corresponding blackout at landing time—are something almost unique in modern life. Those rare moments in which our entertainment must come from within, not without. This is a perfect time to reflect on the journey ahead or the trip just taken. An all-too infrequent opportunity to quietly contemplate the world we live in and our place in the universe. A brief calm juncture in our otherwise hectic lives.
I'm not sure I'm convinced that the 0.5 seconds it takes to drop a Kindle and start screaming is going to cost anyone their life in a plane crash, but at least Bright admits that's the "small" argument. Unfortunately the only thing that's "big" about his other argument is the ego it must have taken to make it. I too think there's "something to be said" for switching off your gadgets once in awhile, but I'm not about to tell anyone it's necessary for their spiritual health, and I fear declaring cinemas to be "sacrosanct" is a bit much.
But even if you subscribe to this school of thought in full—and are the type of person who isn't satisfied with turning off your own gadgets, instead needing to tell other people to turn theirs off too—what does any of this have to do with airplanes? Every time a new technological tool is adopted into a new part of the average person's routine, someone is out there complaining that it "encroaches" on our lives, and those people have yet to accomplish anything except making themselves look increasingly foolish as time goes on. Many of us still know at least one holdout who bizarrely refuses to even own a cellphone (but will gladly borrow them from others when the need arises), and regardless of whatever "spiritual" benefits they think they are reaping, it generally hasn't delivered them to nirvana. Just because airplanes happen, randomly, to be one of the places that people are forced to tear themselves away from their gadgets, it doesn't make them temples of the Luddite religion. Philosophical questions didn't enter into the inception of the FAA's ban, and they shouldn't enter into the debate about its future.
by Leigh Beadon
Wed, Mar 28th 2012 12:12pm
from the they-only-have-as-much-power-as-we-give-them dept
There's been a bit of a kerfuffle in Hollywood lately surrounding the documentary Bully, which has drawn attention to the ridiculousness of the MPAA's movie ratings system—and may even indicate the first real erosion of the organization's power in that area. The documentary—which has been well-received as an accurate depiction of real problems, and a potentially important film for parents, teachers and kids to see—was rated R by the MPAA for harsh language, which would stop kids under 17 from seeing it in theatres alone. This sparked a massive push-back from the studio and the anti-bullying activist community, but the MPAA refused to budge, so the studio announced that it would release the film as unrated by the MPAA (though they do include the much more reasonable "Pause 13+" rating it received from Common Sense Media, a non-profit children's advocacy group).
This can confuse people, because it's a common assumption that movie ratings are required by the government. In fact, the MPAA's rating system is unregulated and entirely voluntary, and was created as a way to avoid government intervention. The rating from CSM carries no more or less legal weight than an MPAA rating—but participation by studios, cinemas and retailers in the MPAA system has been so widespread for so long that their ratings are the de facto standard, and essentially mandatory. Any film can be released without a rating, but traditionally that has been commercial suicide, since theatres would treat it as NC17, a rating under which success is nearly impossible since most theatres won't show such films at all. But that's where things with Bully get interesting: AMC has announced that its theatres will show the movie and make it easy for kids to see it. In a unique move, they are providing a parental permission slip on their website for kids to print, get signed, and bring to the theatre:
“AMC will be presenting Bully…as not rated,” said the theater-chain in a statement. “Guests younger than 17 can see the film if they are accompanied by a parent or adult guardian, or if they present a signed parental permission slip.”
That permission slip will be available on Wednesday at this link on AMC’s website. ... (A rep for the company declined to comment on the Parent’s Television Council’s statement that screening Bully at AMC’s theaters “threatens to derail the entire ratings system.”)
That last bit is interesting, because it shows that the Parents Television Council (notorious moralist meddlers in the free speech rights of others) knows exactly what's happening. The power of the MPAA and groups like PTC relies entirely on momentum and force of habit. Nobody is beholden to them, but for a long time it seemed like everyone forgot that. That let the MPAA warp the rating system and use it for their own purposes such as playing politics, screwing over indie filmmakers, and even punishing a documentary that criticized the rating system itself. But now people are remembering that they don't have to play by the MPAA's self-serving rules. In their statement, PTC neatly predicts the future, though they rail against it:
"This move, regardless of intentions, sets a precedent that threatens to derail the entire ratings system," said PTC head Tim Winter in a statement."If a distribution company can simply decide to operate outside of the ratings system in a case like Bully, nothing would prevent future filmmakers from doing precisely the same thing, with potentially much more problematic material."
As with most of the disruption happening in the entertainment industry, this has a lot to do with the internet. In the past, if everyone played by the rules, there was basically no such thing as "unmet demand" for a film with a bad rating. Once the MPAA handed down its death sentence, nobody would touch the project, and it would receive no promotion or screen time, so nobody outside film circles even knew about it. Now lots of people are plugged into the festival circuit and the inside world of film, so a movie like Bully can generate plenty of buzz before it even hits Hollywood. The demand for the film was there, the studios were able to gamble on that demand, and AMC could see the advantage in breaking the rules to meet it. If the film is a success (which seems likely) it will deal a powerful and much-needed blow to the MPAA's ratings regime.
by Mike Masnick
Wed, Mar 28th 2012 11:13am
from the interesting-strategy dept
I don't quite get the claims of the judge, either:
Sentencing Stacey at Swansea Magistrates' Court, District Judge John Charles told him: "In my view, there is no alternative to an immediate prison sentence.Of course there are alternatives. There are tons. And you'd think a judge would recognize that. Separately, even if "everybody" (minus Stacey, clearly) was praying for his life, what does that have to do with anything legally speaking? Stacey may not be the kind of person worth defending, but his right to speak his mind (no matter how ridiculously ignorant and obnoxious he comes across) should be defended.
"It was not the football world who was praying for [Muamba].... everybody was praying for his life."
by Mike Masnick
Wed, Mar 28th 2012 10:14am
from the don't-mess-with-the-first-amendment dept
by Mike Masnick
Wed, Mar 28th 2012 9:13am
from the good-point dept
Last month he went on Jerry Brito's Surprisingly Free podcast where he talked more about both of those things, as well as his general thoughts on his career and related issues. Where it got especially interesting was a bit further into the discussion, where he admits that he certainly still has an emotional reaction to finding out someone downloaded his music without paying for it, which makes his relationship with copyright more "complicated." However, he then talks about how important the internet is to him, and how in the long run, if it comes down to the internet or copyright law, he's got to side with the internet:
... where you fall on this issue, a lot of the time, comes down to how much you value things like a "free and open internet." And, for me... if, as a consequence of nurturing this amazing thing, called the internet... if as a consequence of letting that do what it wants, we destroy a number of industries, including the record business, and maybe even including the rock star business, I think that humanity will be better off. I, for one, think that the internet is one of the greatest human achievements, ever. It's an amazing tool and we have only just begun to explore the possibilities. To me, it feels like it's a part of our evolution as a species. I value it as much as I value the Bill of Rights....He later says (as we've talked about over and over again) that there are all sorts of ways to compete with infringement -- and offering all works at a reasonable price in the formats people want, is a really, really good way to compete and get people to actually buy.
Towards the end, he also points out that the research still hasn't really shown that piracy has harmed artists:
You need to reassess whether or not piracy is actually a problem. A lot of people assume it is... and they could be right. But I don't think we've really determined the answer to that question. And I don't think we can make smart policy decisions until we know the answer to that question. If, in fact, there is some small harm or no harm, then we need to look and see: what do we want to do with this society? Is it better for us to have some small amount of piracy, in exchange for all the other goodies we're going to get if we stop spending so much time and effort trying to squash things.... We make decisions all the time about what we think is morally right and wrong, and more and more people are making decisions that are out of step with the laws. And that's an interesting phenomenon, and we haven't really unraveled what it means yet.Again, this isn't some "freeloader" as critics often like to label all sorts of folks who make these kinds of arguments. This is a very successful professional musician, whose success hasn't come from the traditional gatekeepers, but from embracing the internet and what it allows, and developing new business models.
by Mike Masnick
Wed, Mar 28th 2012 8:12am
from the this-is-not-the-way-things-should-work dept
It really does reflect poorly on the state of intellectual property law today that this is what people feel compelled to do.
That said, I still don't understand why she's applying for these marks, or even if the marks are valid. A lawyer for the family makes it clear that she's not looking to make money from the marks, which raises the rather simple question of how they are being "used in commerce" for the sake of a trademark. Separately, you don't need to register for a trademark to have a trademark -- so if the point is just to stop others from profiting off the name, there are ways to do that. But, frankly, why should trademark enter into this discussion at all?
by Mike Masnick
Wed, Mar 28th 2012 7:06am
from the how-does-that-make-sense dept
In this case, that is the one questionable part of the ruling. While the court does not say that Rapidshare needs to police uploads, it does say that the company needs to police external links to the site and then disable the files if they are obviously infringing. This doesn't make much sense if you think about it. It seems odd that Rapidshare should be forced to monitor what third party users on fourth party sites are doing, and then take action based on that. But, it appears the company may appeal that part. And, for the time being, a ruling that acting as a hosting provider/cyberlocker is legal is an important and useful ruling, in a court not known for handling copyright cases very well.
by Leigh Beadon
Wed, Mar 28th 2012 5:47am
from the community-service dept
by Mike Masnick
Wed, Mar 28th 2012 2:43am
from the some-good-some-bad dept
The judge here tries to slice a ruling down the middle -- rejecting large parts of this lawsuit for effectively trying to create a "court sanctioned... sale of the Intended Defendants' privacy and data protection rights to the highest bidder," which the court finds questionable. It also goes into a discussion about copyright trolling, or, as it calls it, "speculative invoicing."
However, at the same time, the judge does require ISP giant O2 to hand over data on a bunch of people accused of file sharing to Golden Eye Ltd -- but does so with some caveats. While there were many associated cases that all got rejected, the court did pick one, Ben Dover Productions, which it allows to move forward with O2 being required to release a lot of customer data. However, apparently somewhat fearful that such info would be abused to send out shakedown letters, the court wants to "supervise" any "pre-action correspondence" that the companies send. After admitting that this is not "normal," the court says that the situations with ACS:Law and MediaCAT show "why this is an appropriate course to take."
the court needs to consider the impact of the letter of claim upon ordinary consumers who may not have access to specialised legal advice, who may be innocent of what is alleged against them and who may be embarrassed and/or distressed by being alleged to have been involved in filesharing involving pornography.From there, the court actually goes on to critique the "draft letter" -- noting that the original letter Golden Eye wants to send is "objectionable in a number of respects," specifically in misleading recipients of the nature of the threat and their options. It also attacks the specific demand for £700, noting that the amount is "unsupportable." The reasoning here is quite interesting, with the final reason being the most telling. The judge slams Golden Eye for admitting that it chose £700 because "only a small proportion" of people they send the letter to will actually pay up. As the court notes:
This comes quite close to an admission that the figure of £700 has been selected so as to maximise the revenue obtained from the letters of claim, rather than as a realistic estimate of the damages recoverable by the relevant Claimant from each Intended Defendant.The judge also points out that each defendant may be a different situation, and some may not have infringed at all. Having a blanket settlement fee simply is not appropriate, and clearly is not an accurate representation of damages. Additionally, the court notes numerous other problems with the nature of the shakedown letter:
First, the reference to the Code of Practice is inappropriate both for the reasons given by HHJ Birss QC and because it was not designed for letters to ordinary consumers.All in all, it's good to see the court recognize how such copyright trolling can and is abused, and try to limit that. It's too bad that it still comes down on the side of having O2 give up a bunch of user information, still knowing that this is likely how it's going to be used. However, at least it's trying to minimize the abuse.
Secondly, the draft letter does not make it clear that the fact that an order for disclosure has been made does not mean that the court has considered the merits of allegation of infringement against the Intended Defendant.
Thirdly, the draft letter asserts under the heading "Infringing Acts" that the Intended Defendant is liable for infringement. Although the last paragraph under that heading implicitly acknowledges the possibility that the Intended Defendant may not be the person who was responsible for the infringing acts, this acknowledgement is not sufficiently explicit. Furthermore, the reference under the heading "Proposed Settlement" to "inaction, by permitting a third party to use your internet connection" undermines the effect of the implicit acknowledgement. As HHJ Birss QC has explained, nothing less than authorisation suffices for infringement, at least in the context of a claim for damages.
Fourthly, the second paragraph under the heading "Legal Consequences" is too one-sided in that it sets out the consequences to the Intended Defendant of a successful claim without acknowledging the consequences to the relevant Claimant of an unsuccessful one. Fifthly, the reference to "other intellectual property" under the heading "Proposed Settlement" is unjustified. There is no evidence that any other intellectual property rights of the Claimants have been infringed.
Sixthly, I consider that requiring a response within 14 days is unreasonable given that the Intended Defendants are consumers and that there is no urgency in the matter. 28 days would be reasonable.
Lastly, the threat to make "an application to your ISP to slow down or terminate your internet connection" is unjustified. Counsel for the Claimants accepted that the word "application" was inappropriate, and said that "request" would better convey what was intended. I do not agree that a threat even of that nature is justified in a letter of this kind, however.