ACS:Law made controversial payment demands to thousands of suspected filesharers ? but such tactics could be on the way out
The London-based law firm at the heart of a huge row over illegal filesharing this week turned off its overworked photocopier, and vowed to no longer pursue the tens of thousands of Britons it suspects of copyright infringement.
From its Hanover Square office, ACS:Law has led the charge in sending letters demanding payment from alleged illicit filesharers, attracting unwanted attention from online activists, industry regulators and privacy commissioners along the way.
In a matter of months, the Andrew Crossley-fronted firm may have singlehandedly changed the game for prosecuting infringers in the UK, experts say.
The controversial method of so-called "speculative invoicing", in which law firms acting on behalf of copyright owners demand payment from thousands of people accused of illegal filesharing, has found itself in the dock as the industry and law courts scrutinise closer the process of bringing copyright infringers to justice. Judge Birss QC, currently ruling in the case against 27 people brought by the pornography licensee MediaCAT, this week toyed with the unprecedented idea of banning indefinitely that company ? and, by implication, its client ACS:Law ? from sending out such letters. It would be an "extraordinary order" in "extraordinary circumstances", he said.
"The interesting legal point here is that the Solicitors Regulation Authority [SRA] and the judges are seemingly uncomfortable with the speculative invoicing idea and it actually looks as if that route will be closed off altogether," says Sarah Byrt, an intellectual property partner at the law firm Mayer Brown.
"The technology has made it easy to infringe without fear of being caught which in turn is harming creative industries. The SRA and the courts will want to avoid lawyers pursuing a course of action that looks heavy handed."
The SRA is presently investigating the practice as employed by ACS:Law ? but speculative invoicing is by no means unique to Crossley's solicitors. Davenport Lyons, Gallant Macmillan and others have in the past 12 months targeted thousands of suspected infringers on behalf of their media clients. A large number of the accused claim to be wrongly identified, though it is not clear how many have paid up to avoid the potential for further prosecution.
Only 27 of the "tens of thousands" of those accused by ACS:Law have been brought to court, and MediaCAT even attempted an 11th-hour abortion of these Patents County Court proceedings earlier this month. Judge Birss called the situation "absolutely extraordinary", and pointed to the law firm's lucrative commercial arrangement with MediaCAT. ACS:Law keeps 65% of the fines paid by accused infringers, while MediaCAT takes the remaining 35%, it was revealed in court (hours before Crossley revealed his company was quitting copyright litigations altogether because of "death threats" to his family).
"The court was told [on Monday] that ACS:Law, GCB Ltd and all other companies have stopped sending out letters to consumers. This is a welcome step forward, but we also need some comfort for the many people who have already received a letter and continue to protest their innocence," said Michael Forrester, a partner at Ralli Solicitors, which is advising a number of the 27 defendants in the ongoing case.
"The court may find a way of permanently stopping these firms from pursuing claims of copyright infringement in this way," he said. "We are dealing with cases where consumers have explained how they cannot possibly have uploaded or downloaded copyright protected material, but they are still pursued.
"The legal basis for the claims made against these alleged file sharers involves complex legal and technical principles. These are extremely difficult for a lay person to understand and can mean an innocent person is being pursued."
But it's not just the courts and regulators that are looking closer at these methods. Most of the UK's largest internet providers, including BT and Sky, threw a significant stumbling block into the law firms' paths in October, when they refused to hand over more customer information to law firms after the personal details of thousands of Britons leaked online during a crippling attack on ACS:Law's website. The leak, which is being investigated by the information commissioner, exposed the details of people suspected of illicit filesharing of music, films and pornography.
Behind the scenes, these providers are showing a rare united front against such practices, and believe that more needs to be done before Norwich Pharmacal Orders (NPOs) ? the court orders used by these firms to obtain customer information for invoicing ? become once again viable methods for pursuing filesharers.
Firstly, they say, more needs to be done to show that these firms genuinely intend to take the cases to court ? not just extract as many fines as possible and drop the rest. Secondly, that the customer information received by these companies is held safely and securely. Thirdly, the thousand-strong "speculative invoicing" claims need to stop ? they should focus on the serious infringers, those whose IP address is linked to a generous amount of unlawful uploading/downloading, rather than the odd Lady Gaga number.
So, what next? Well, the patents court is expected to rule later this week on whether ACS:Law and MediaCAT should be allowed to discontinue those 27 cases, and whether the copyright owner ? understood to be Sheptonhurst, the owner of the UK's biggest sex shop chain, Private ? has to join proceedings as a claimant. That could really change the game.
After that, there's the small matter of the Digital Economy Act's judicial review, expected 22-24 March. Sit back and enjoy.
Source: http://www.guardian.co.uk/technology/blog/2011/jan/27/illegal-file-sharing-acslaw
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