Judge dismisses ACS:Law file-sharing cases

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  • Interesting to note that, once again, the courts hold a different view from the Law Society/SRA.
    Elements of the Law Society took the view that enforcement of the ban on referral fees was unlawful. The ban was upheld by the courts shortly afterwards but by then itt had been abolished.
    Now it would appear that the SRA bowed to consumer pressure, notably from a former head of legal at Tesco (that whiter than white firm which sacks people for taking too much time off sick) and started to prosecute persons who sought to enforce the copyright law over file sharing by sending out letters before action.
    It is time the SRA stopped "playing politics" and got on with more pressing problems, namely, dealing with the fallout from the coming collapse of the high street.

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  • If you look at the case verdict, or the blog here http://courtno83.blogspot.com/ , it's a bit different. ACS went for default judgment against defendants who had filed defences, which you may think a bit careless, and it didn't win against those who did not file defences because they applied under the wrong CPR. The judge was not happy with ACS...it's not surprising the SRA is investigating.

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  • ACS has been in the press quite a bit recently regarding the letters before action. It is interesting to see that the judgment could not be entered because of procedural isuues with the way the claims had been issued and served. If you are going to litigate like this and you know that the matter might be reported, especially in the legal press, you'd think the firm would get the procedural issues right?

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  • This paragraph misrepresents the text contained in the actual judgment. It joins text from two separate paragraphs, excluding vital intervening text:

    "Judge Birss concluded that he was “not at all sorry” to reach his conclusions. “Peer to peer file sharing which involves copyright infringement is an important and serious matter and claimants with a proper claim are entitled to use the full machinery of the courts to enforce their rights,” he said."

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  • The full judgment is on bailii. It doesn't establish anything, beyond the facts that (a) the claims were not very well pleaded, (b) the correct procedures for obtaining default judgment in the Patents Court were not followed properly and (c) there is no English authority on the question of the subscriber's liability for copyright infringement which occurs through an unsecured internet connection.
    If claimants with a proper claim are entitled to use the full machinery of the courts, it must equally be the case that they are entitled to follow the standard pre-action procedures, which include sending letters of claim and making settlement offers.
    As far as the SRA investigation is concerned, the SRA's policy is (according to its website) not to publish a decision to prosecute before the SDT until the SDT has certified that there is a prima facie case. Is it disapplying that policy in this instance? Or has the tribunal certified that there is a case to answer?

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  • I assume that a practicing solicitor should possess basic competence when undertaking litigation on behalf of a client, including posessing sufficient knowlege of the law to correctly advise his client as to who can (and cannot) be a Claimant. (See para. 19 of the relevant judgment.) I would also assume that such competence would include making reasonable efforts to ensure that no defence had been filed with the Court, before requesting a default judgment (para 34). I wonder whether such omissions are more than merely "technical issues" to be corrected after the fact.

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  • These cases involved eight parallel actions brought by Media C.A.T against separate defendants under the Copyright Designs and Patents Act 1988 ("the 1988 Act"). These cases involved allegations of copyright infringement against each Defendant for allegedly sharing titles on Peer to Peer networks.
    The cases are particularly interesting as they mark one of the first know determinations by a Court in England and Wales of a case brought on these grounds. However, they need to be viewed correctly as a procedural application on paper by the Claimant for Default Judgment with no written or oral submissions from either party. This is basically a mechanism utilised in Court for a Claimant to enter Judgment against a Defendant who has not provided a Defence within the time limits.
    His Honour Judge Birss QC, the Judge of the Patents County Court, gives a detailed 48 paragraph Judgment on the key issues. Most strikingly for consumers, the cases are repeatedly referred to as 'unusual', and the Claimant's right to claim is 'unclear'. The claimant's contention that 'allowing' another person to infringe is an act restricted by s16 (1)(a) and 17 of the 1988 Act is described as 'simply wrong'.
    Overall it appears that HHJ Birss QC considered these cases of such importance that they were not suitable for a procedural application in this way, noting that "these are specialist intellectual property claims raising difficult and potentially controversial legal issues."
    These cases provide a useful initial indicator on how cases of this nature may be handled by the Court. However, the position will become clearer once a Court has ruled on the detailed legal and technical matters raised by such claims after considering written and oral legal argument from both parties. Only then will a clear marker on the treatment of claims alleging copyright infringement on Peer to Peer networks be established."
    Ralli urge any innocent recipients of copyright infringement letters or those who have had claims issued against them to contact the firm on harassment@ralli.co.uk for a free assessment of their potential claim.
    Michael Forrester
    Solicitor
    Ralli

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  • The Patents County Court has, on its own initiative, ordered a directions hearing on January 17th 2011, for the 27 of these claims that have been filed. The directions hearing includes the 8 where default judgment was refused - including the two that were in default which did not qualify for the request procedure.

    http://www.bailii.org/ew/cases/EWPCC/2010/18.html

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