UK Judge Not Impressed By Mass Copyright Pre-Settlement Campaigns

from the cracking-a-nut dept

Thu, Sep 23rd 2010 4:06am — Mike Masnick

We recently wrote about yet another law firm in the UK jumping on the "pre-settlement" letter setup, which is designed to misuse the legal system to send "pay us or we'll sue you for copyright infringement" letters. However, it appears that a judge in the UK is not at all impressed with such a misuse of the legal system and has made that point clear to the law firm Gallant Macmillan. While the judge, Chief Master Winegarten, notes that he doesn't fully understand the technical issues, he does point out that he's concerned about the overall process -- and has heard plenty of complaints about such pre-settlement letters. According to TorrentFreak:

"There wouldn't be this hue and cry unless you were pursuing people who were innocent," he told the applicants.

Condemning the actions as a "huge sledgehammer to crack a nut", CMW pondered, "I can't understand why in these thousands -- hundreds of thousands -- [of letters sent out] no-one has been sued."

An interesting side note, is that the judge also seemed to indicate that with the Digital Economy Act, these sorts of pre-settlement situations may no longer be reasonable, since the whole "three strikes" process may take over instead. I don't know enough about the DEA to know if it really precludes such lawsuits (or even threats of lawsuits), but it would surprise me if that were true.

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Filed Under: copyright, digital economy act, judge, pre-settlements, uk
Companies: gallant macmillan

16 Comments

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cc (profile), 23 Sep 2010 @ 4:19am

The DEA doesn't preclude these lawsuits. It's simply the judge's opinion that if there's an official government-assisted racket going on, these small fry will no longer be necessary.
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Lisae Boucher (profile), 23 Sep 2010 @ 5:00am

Sledgehammer to crack a nut?
Well, the way to use a huge sledgehammer to track a nut is by putting the sledgehammer on the ground, then hit it with the nut until one of them breaks...
But I doubt if the recipients of these notices will be hitting the sledgehammer...
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BruceLD, 23 Sep 2010 @ 5:07am

Subject
He'll change his tune once the corporations contact him directly, wine, dine and bribe him handsomely...and then he'll be singing about how wonderful copyright is and how everyone who is against it is an evil criminal t*rrorist.

Same ole same ole.
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Richard (profile), 23 Sep 2010 @ 5:08am

Re: Sledgehammer to crack a nut?
Well - one of the nuts tried - and it was the (supposed) sledgehammer that cracked

Maybe we have the nut and sledgehammer analogy the wrong way around?
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Spointman, 23 Sep 2010 @ 5:18am

Re: Re: Sledgehammer to crack a nut?
If the forum timestamp is to be believed, that post is more than two years old. Still, it's an interesting strategy.
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abc gum, 23 Sep 2010 @ 6:03am

This is gonna be great - and you know it's gonna happen.
Someone who does not own a computer, was kicked off with 3strikes, receives presettlement letters and loses in court by default. This stuff writes itself.
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Karl (profile), 23 Sep 2010 @ 7:17am

UK First Amendment
It's really ironic, in my book, that UK law actually is more on the ball about this than US law.

Especially since the US has an absolute "freedom of speech" and the UK doesn't.

Maybe the US just needs some time to catch up. One can only hope.
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Richard (profile), 23 Sep 2010 @ 7:21am

Re: Re: Re: Sledgehammer to crack a nut?
Yes - it happened a while back - in the days when Davenport - Lyons were the main protagonists. However it does show that if you stick to your guns and fight back you can win (at least in the UK legal system).

I wonder if this case had anything to do with Davenport Lyons backing out of the business?
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Richard (profile), 23 Sep 2010 @ 7:30am

Re: UK First Amendment
I think this is mostly about the fact that ACS law haven't actually prosecuted any cases.

If you look up the rubrics of Norwich Pharmacal Orders (the mechanism that ACS law uses to force ISP's to disclose the user information) you will see that the judge has to be satisfied that the plaintiffs are actually going to proceed with the case. To quote this site.

"The person seeking the court order must have a genuine intention of commencing proceedings. "

Seeing as ACS law haven't commenced proceedings against anyone - after identifying hundreds (thousands?) of defendants you can see why the court's patience is wearing thin.
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Richard (profile), 23 Sep 2010 @ 7:44am

Re:
The DEA doesn't preclude these lawsuits.

Actually it probably does in the UK. The key point is that these lawsuits rely on the so called Norwich Pharmacal Order . The general gist of these orders is that they are a "last resort". It may be difficult to argue for such a last resort when the DEA makes another option available.
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Anonymous Coward, 23 Sep 2010 @ 8:08am

They will find the so called 3 strikes method will fail and the government will be sued forever because basic Internet access has become a right needed to survive in the modern world. It has become a utility like Electricity, Telephone, Water and Sewer and needs to be managed as such.
Do you forbid a person from ever receiving Electricity because they stole some? That would be inhumane to deny any person access to basic utilities.
Will this law apply equally to all people, Rich and Poor alike? Are there legal loopholes in the law that can only be manipulated by Attorneys? Sounds like a loser and the beginning of a Fascist State. But the UK has always been extremely socialist.
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Duke (profile), 23 Sep 2010 @ 2:54pm

Re: Re:
...Except that the process in the DEA (particularly the initial obligations code) still requires a NPO for any legal action to be taken. All the IOC does is make it easier for copyright owners to find out which IP addresses they are repeatedly accusing of copyright infringement. Once they have the list of "frequently-infringing users" they still need to sue the names and addresses out of the ISP using an NPO.
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Niall (profile), 23 Sep 2010 @ 3:11pm

Re:
And as usual, FAIL on equating socialism with fascism.

And no, don't quote the Nazis because that was NOT actual socialism, especially not as we in Europe understand it.

Also for extra fail points, fascism technically was the Italian extreme right-wing movement...
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The eejit (profile), 24 Sep 2010 @ 1:46am

Fascism is the extreme of order. Socialism is the idea that Society knows best.

So there's an epic fail here somewhere. And I don't think it's the Society that's failing.
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Richard (profile), 24 Sep 2010 @ 5:48am

Re: Re: Re:
Yes - but surely all this would only happen after the whole 3 strikes thing...
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Idobek (profile), 30 Sep 2010 @ 3:17am

Re: UK First Amendment
Like many rights in the UK freedom of speech was thought so fundamental that it didn't need writing down.

As I understand it this was the position of the Founding Fathers when writing the constitution. There was also concern when drafting the Bill of Rights that only the rights specified would be deemed to exist.

Ironically it is the human rights movement in general that has nicely destroyed that concept by insisting that fundamental and social rights are equal. Social rights (education) have to be written down to have any standing, fundamental right (life, speech) should never have to be "granted" by the state - they simply are (and the state can only take away that right not grant it).
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