Revealed: the Costs of the Digital Economy Act Judicial Review

Royal Courts of Justice
Image courtesy Carl D. Patterson

The Digital Economy Act 2010 was signed into law on 8 April 2010 following just two hours of debate in the House of Commons.

Including such provisions as the notification scheme commonly known as ‘three strikes’ and website blocking, the Digital Economy Act has been very widely criticised as an ill-developed piece of legislation pushed through during a parliamentary wash-up as the result of extensive lobbying of parliamentarians and with no genuine evidential basis of any economic benefit (the plans said to cost more for ISPs to implement than the total financial damages the music industry claims to suffer from piracy in the UK).

In particular there was disapproval of the twice-forced-to-resign Lord Peter Mandelson, at the time the Secretary of State for Business, Innovation and Skills – who pushed the Bill following dinner with copyright lobbyist and DreamWorks billionaire David Geffen.

It has also since become apparent that the public ‘consultation’ on the then Digital Economy Bill was a sham, Mandelson having decided to approve the Act before the consultation was complete.

In fact, as early as November 2009 BIS was receiving emails from an individual that had responded to the consultation, pointing out the disparity between the consultation replies and Mandelson’s public comments:

15 November 2009

Dear Michael Klym / Adrian Brazier,

I, along with many others, wrote to you in September replying to the department's public consultation on legislation to address illicit peer-to-peer file-sharing.

I note that last month Lord Peter Mandelson made some public announcements regarding planned legislation in this area. For example see: http://news.bbc.co.uk/1/hi/8328820.stm

Can you please confirm if Peter Mandelson has yet seen the complete consultation and the relationship between his statements and the responses to this consultation.

Can you please additionally confirm when the official government response to this consultation and the replies to the consultation document will be published.

and

20 November 2009

Dear Michael Klym / Adrian Brazier

I see that the responses to your department's consultation on legislation to address illicit peer-to-peer file sharing have today been published.

I have reviewed these. It now occurs to me why you did not comment in your previous email replies to my questions, as to the relationship between Peter Mandelson's public statements and the responses to this consultation. His, and your department's, announcements appear not to have been shaped, influenced or informed on any level by the public's responses to this consultation.

I note that there are 116 files consisting of replies from the public most of which are exceptionally salient, and a very significant number of which have been provided by very well informed and intelligent individuals arguing excellent points. A good number could be considered experts. There are 77 files related to responses from companies and organisations - a significant number of these are ISPs and Consumer Rights Groups and these replies do not correlate at all to the stance made clear in the response your department has chosen to publish. A fair portion, but probably less than 50 of the 'corporate' responses are from the Creative Industries which stand to gain increased powers and profit from the legislation proposed. They are far in the minority of the responses and yet appear to have carried disproportionate sway with the outcome of the consultation.

It has now also become clear that of two of the most controversial measures in the Act, neither is likely to be effective. It has been realised that one - website blocking – would have been likely to have little, if any, effect. The ease of circumvention of website blocking is known to the Department for Culture, Media and Sport (the Government department now responsible for the DEA); in fact, this week they inadvertently published instructions for doing so. Website blocking has therefore been ditched.

The lack of efficacy of ‘three strikes’ can be seen in France’s implementation of the similarly flawed ‘Hadopi’ – their own flavour of the scheme.

But - to business. In November 2010 two UK ISPs, BT and TalkTalk, were granted a judicial review of the Digital Economy Act by the High Court. The review found in favour of the Government on the majority of the issues raised.

The Government’s use of five defence barristers was commented on by several of those that attended the review and I thought it might be interesting to see just how much public money the Government was prepared to wager on defending this flawed, unjustifiable and likely to be largely ineffectual Act.

A few days ago I got the answer to the FoI request I made to BIS (which was subsequently answered by DCMS). Their response is below:

The information you sought is given below. Please note that some of these are “best estimates”, particularly relating to time of civil servants spent on the work, as it is not possible to provide accurate and definitive answers to some of the information you requested.

The total expenditure by the Department for Business, Innovation and Skills in the period 1 July 2010 until the current date [14 May 2011], including any outstanding invoices or other liabilities yet to be met, on legal counsel and other costs directly incurred in defence of the Government’s position in the judicial review of the Digital Economy Act 2010.

The total expenditure on legal counsel and other costs directly incurred in the defence of the Government’s position in the Judicial Review of the Digital Economy Act 2010, from 1 July 2010 to 14 May 2011, as far as we are able at this point in time to calculate it, was £115,482 (excluding VAT) on legal fees on matters involved in the judicial review.

Please note that these are our best estimates and consequently merely indicative figures. They should not be regarded as definitive, as not all costs have yet been calculated, but we are not currently aware of any particular costs that would fall within this definition that are not included here.

The breakdown of actual legal costs to date (being the date of this letter) is set out below:

Counsel’s fees (ex VAT)                     £71,548

Law stationer’s fees (ex VAT)             £ 1,934

To date, we estimate that the costs payable to Treasury Solicitors (TSol) for their services to be approximately £42,000 (ex VAT).

Consequently, based on the information we have located to date, we estimate that BIS has paid at least £115,482 (ex VAT) on legal fees and other costs directly incurred in R (on the application of British Telecom and TalkTalk Telecom Group) v the Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin).

It is important to note that this figure merely reflects external costs and does not include the internal cost of BIS staff’s time spent on work surrounding the judicial review.

We estimate that the time spent by internal BIS staff from 1 July 2010 to 14 July 2011 on all the work involved in the Digital Economy Act, including the Judicial review to be as follows:

Legal staff                                 0.5 full time employee

Policy staff                                1.5 full time employees

Communications staff                Less than 0.1 full time employee

These are estimated figures, given in good faith and should not be regarded as definitive or binding.

July 2011: A Busy Month for a Bankrupt Solicitor

ISPAs 2011
Andrew Crossley: Internet Villain

You’d think that once a solicitor had closed down his business and been declared bankrupt he’d probably enjoy a fairly quiet life, right? Wrong.

July has been an unusually busy month for Andrew Crossley.

In 2010 Crossley as ACS:Law was nominated in the Internet Service Provider Association Awards’ (ISPAs) for ‘Internet Villain’. On that occasion he made it to the finals but was pipped at the post by the thoroughly deserving Peter Mandelson who completely ignored a public consultation and, supported by a lot of other people who also ought to have known better, forced through the ill-formed, ineffectual and costly Digital Economy Act** apparently because he was mug enough to believe the unsupportable claims of the media industry.

Not many people get nominated two years running for an ISPA, but Crossley went one better and in 2011 made it again to the finalists. But this year, at the ISPAs dinner (where, incidentally, HHJ Colin Birss – the judicial superhero who annihilated the Crossley-led MediaCAT copyright claims - was a finalist for Internet Hero) Crossley triumphed over his adversaries (a first time for everything then) and was announced the recipient of the award for Internet Villain 2011.

Crossley wasn’t present in person to collect the award - probably wise as the dinner reportedly included fruit kebabs that were served on devastatingly sharp skewers – but it was collected on his behalf by BeingThreatened, the grassroots support group that has been among those leading the campaign against speculative invoicing.

James Bench of the group made light of the occasion. He quipped that he’d heard about ‘a copyright lawyer joke’…

…‘Andrew Crossley’ – badum tish, and went on to comment that he fully expected Crossley to be promoting himself the next day as an ‘award winning solicitor’.

The attendees – largely senior managers from ISPs – seemed amused, some them perhaps forgetting their own industry’s role in speculative invoicing. While it’s easy to joke about the demise of speculative invoicing in the UK and Crossley’s ungracious downfall it’s important that the very real impact of speculative invoicing is not forgotten. The tens of thousands of members of the public that were harassed by Crossley will not quickly forget the episode. His pursuit of innocent individuals for his own financial gain is something which was far from amusing and while the Digital Economy Act still lives on the harassment of innocent members of the public on the whim of the copyright lobby is a likelihood which remains a great concern.

Writing of Crossley’s own financial gain (and his bankruptcy) it’s also worth mentioning, in case anyone missed it, the report from the day prior to the ISPAs, which made public the Information Commissioners Office’s doubts that Crossley would pay the £1000 monetary penalty issued in respect of his staggering September 2010 DPA breach. This was the breach that the ICO saw fit to reduce to 0.5% of the intended penalty of £200,000 since Crossley was in some financial difficulty (later revealed to be his bankruptcy).

Later in the month ACS:Law’s name again surfaced in the news. What transpired to be a scam, operating with apparently mischievous but no financial motive, involved sending emails to Greeks accusing them of copyright infringement – in much the same manner as ACS:Law’s own speculative invoicing operation – and indeed using ACS:Law’s letterhead (which leaked, along with everything else, in his September 2010 data mishap).

Crossley was quick to respond to the reports telling PC Pro, “This is obviously a scam. ...it is not a demand made by me and it is quite clear from the way it was written that it was not.”

Crossley appears to have forgotten surprisingly quickly how readily a legal operation with serious intent can appear to be a scam – including his own (didn’t he shut down a website because he didn’t like his operation being thought of as a scam?). The only give away clue from the letters that they aren’t indeed from the bankrupt closed-down solicitor is that they request payment to an address which doesn’t exist. Assuredly Crossley would never fail to supply a valid address to which payments should be sent.

You might think, after such a month, that it might start to dawn on Crossley the error of his ways. And you’d be sorely mistaken. But you didn’t really expect him to see the error of his ways; if you’ve followed this nonsense for any period of time, you’d know that that part of Crossley’s brain just ain’t wired that way.

No, instead Crossley recently contacted V3, despite being slated by HHJ Colin Birss in the court cases he foolishly started, despite facing numerous charges at a disciplinary hearing later this year (charges which, at the hearing of his predecessors at Davenport Lyons, were upheld), despite being named Internet Villian 2011… and stated "I still maintain the work I did was compliant, lawful, measured, appropriate and needed.”

Compliant: no – that’s why the ICO fined him. Lawful: no – that’ll be why his indemnity insurers had to settle in the claims he took to court. Measured, appropriate and needed: just pfft! His half-baked scheme was needed like blowtorch to the eyeball.

He also said, “I no longer read what is out there about me anymore. Life is too short." Does that mean that I can write here that I think he’s an unprincipled, unethical idiot* and he won’t whine about it?

(* I toned that down, in the interests of a family audience)

(** I recently found out, via an FIOA request, just how much the Government spent defending this monstrosity of a waste of space in the judicial review. I might share that with you at some point in the near future, if you're interested.)

ACS:Law's Andrew Crossley Tells Tribunal 'I Will Fight This Tooth and Nail'

Friday was expected to see the MediaCAT v Adams & Ors cases back at the Patents County Court. Otherwise known as the ACS:Law cases, lead by Andrew Crossley - the solicitor that has since been forced to close down his law firm and been declared bankrupt, the cases have been ongoing since January this year.

However, despite on Thursday evening and during Friday the court’s cause list showing the hearing as taking place, it was evident on the internet elsewhere (primarily Twitter) that the hearing was cancelled, possibly to be rescheduled.

The primary source of the information that the hearing on Friday was cancelled was Ralli - the firm solicitors leading the case for the defendants (MediaCAT being, in case of any doubt, the prosecution). It’s not yet apparent as to the cause of the cancellation or if it is likely to be rescheduled.

For those of you that have thus been denied your expected ACS:Law news I thought I’d write a short post.

I was picking through my notes from the short appearance of Andrew Crossley before the Solicitor’s Disciplinary Tribunal a couple of weeks back (prior to his hearing proper, expected in October), and found a few bits I’d not previously blogged that I thought I’d share.

Here they are:

In discussions around his requests to the tribunal Crossley stated that while he inherited the ‘processes and procedures’ of his speculative invoicing scheme from Davenport Lyons he had adapted and improved upon them. Crossley told the tribunal that his operation was ‘far superior’ to that of David Gore and Brian Miller at Davenport Lyons. Evidently his recent experiences (ie. the collapse of the claims he started, the failure of his firm and his own bankruptcy) have failed to have any impact on his lack of humility.

Crossley also said that the allegations of the Solicitors’ Regulation Authority (SRA) ‘verge on implying criminality’ and observed that ‘it would appear that my practising certificate is on the line’.

However while arguing that he would struggle to fight the case given the ‘inequality in arms’ of his resources versus those of the SRA he came out with a turn of phrase which gives every indication of an interesting hearing in October, declaring of the case against him: ‘I would fight this tooth and nail’.

As he might’ve said in a website statement in the past, ‘exciting times ahead’.

ACS:Law Data Breach: How the ICO Took Eight Months to Reach a Conclusion

In September 2010 ACS:Law published a backup of its email system to its public-facing website. The emails were subsequently downloaded and made widely available on the internet. Contained in the emails were a massive amount of confidential information. Most seriously the emails contained the names and addresses of many thousands of individuals that ACS:Law alleged had made unlawfully copyright works (often including pornography) available on peer-to-peer networks.

It has since been heard in court that the evidence upon which these accusations were based was extraordinarily unreliable and often simply wrong. Exactly how prone to failure these systems were is unknown but suffice to say that for a single law firm to generate in excess of five hundred complaints to its regulatory body in under two years indicates quite some significant degree of error.

The data leak was the singular most serious breach of personal data ever seen in the UK. The Information Commissioner’s Office began investigating the breach on Monday 27th September 2010, shortly after it took place. It was on 9th May 2011 that the ICO issued a Monetary Penalty Notice to Andrew Crossley, the sole solicitor, owner and data controller of ACS:Law. The amount of the penalty had initially been determined at £200,000 – to have been the largest ever issued, determining Crossley’s number-one spot in the list of unlawful breaches of the Data Protection Act. This was subsequently reduced by the ICO to just £1000; it transpires that a petition was filed for Andrew Crossley’s bankrupty by HM Revenue & Customs in December 2010 and the bankruptcy order was granted in May 2011.

Some, though, have questioned the delay the ICO took in reaching their determination. Following a series of requests of the ICO under the Freedom of Information Act there is some light to be shed.

What follows is a timeline of the events between the breach and the issue to Andrew Crossley of the Monetary Penalty Notice:

27/09/10                first ICO case file created (COM0351377)

28 & 29/09/10        ICO to ACS Law - initial enquiries asking for response by 12/10/10

08/10/10                response from ACS Law to ICO

13/10/10                ICO to ACS Law requesting more information

13/10/10                response from ACS Law

20/10/10                ICO internal meeting – establishing further information required

29/10/10                ICO to ACS Law requesting more information

09/11/10                ACS Law to ICO – response to further enquiries

01/12/10                ICO site visit to ACS Law offices

21/12/10                Internal meeting to discuss decision and amount of any CMP

23/12/10                Enforcement case created (ENF0366446)

19/01/11                Notice of Intent sent by ICO to ACS Law

28/01/11                ICO to ACS Law agreeing extension of time to make representations until 01/03/11

01/03/11                ACS Law to ICO – representations in response to Notice of Intent

09/03/11                internal ICO meeting to discuss representations

21/03/11                ICO to ACS Law asking for further financial information and enclosing blank form to be completed

07/04/11                ACS Law to ICO returning financial information

14/04/11                ICO Internal meeting to discuss CMP

20/04/11                ICO to ACS Law – advising will reduce penalty but requiring sworn affidavit

03/05/11                ACS Law to ICO sending affidavit

09/05/11                ICO to ACS Law sending Monetary Penalty Notice (MPN) (dated 09/05/11)

06/06/11                Any appeal to the MPN should be lodged by this date as stated at the end of the MPN. Any extension of time to appeal is the decision of the Tribunal. The ICO will likely be informed of any appeal directly by the Tribunal.

I have carried out a little statistical analysis (download the spreadsheet here - feel free to add comments) of the periods of delay / waiting in this timeline in order to determine which parties are accountable for the time taken in reaching a conclusion. It is evident that both Andrew Crossley and the ICO have dragged their heels on this case.

The ICO unnecessarily delayed matters by, among other issues, agreeing (at Andrew Crossley’s suggestion) on the 11th November not to visit ACS:Law’s offices to progress the matter until the 1st December and extending the 21-day period for written representation in response to the Notice of Intent (to issue an MPN) by an additional 18 days; almost doubling the period laid down in statute.

A pie chart sets out where the delays happened. You can draw your own conclusions on this one:

Kettling & A Generation We Can Be Proud Of

In November last year there was, in among all of the other protests that have become increasingly frequent in the last year, a protest against the increase in university tuition fees and the scrapping of the EMA (Education Maintenance Allowance), among other educational issues.

At that demonstration a large number of people including many school children were kettled by police for up to eight hours; this despite the High Court ruling in April this year that police have previously used the tactic when there was  “no reasonable” justification for doing so.

Photo credit: bobaliciouslondon

The regular kettling of protestors at demonstrations and the apparently unjustified detention of individuals in London on the day of the royal wedding appear to be just a couple of indications that the Metropolitan Police are increasingly protective of government policies and the image of senior figures, rather than the security and interests of the general public.

There is good news however. While some would deride the students that chose to protest for their right to an education (probably a tosser at the Daily Mail or Conservative Cllr Andrew Mennear, who described the day of action as “organised truancy”) I congratulate them on standing up for their beliefs and values. It is deeply regrettable that they were kettled as a punishment for doing so.

Last week though, a few of the students kettled at that protest announced that they will be dragging the Metropolitan Police back to the High Court to account for their actions. Good for them.

I’m sending them a letter (and my very best wishes):

Will Gilmour

* ██████████@gmail.com

: http://willgilmour.blogspot.com

Adam Castle, Rosie Castle and Sam Eaton

c/o Acland Burghley School

93 Burghley Road

London

NW5 1UJ

12 June 2011

Dear Mr Castle, Miss Castle and Mr Eaton,

I wanted to write and commend you for your commitment and chutzpah in seeking a judicial review of the kettling tactics employed against children by the Metropolitan Police at the education protest in November last year.

It was important that the BBC reproduced your statement on their website that, "As children we can't vote, so one of the best ways for us to voice our opinion is through protest and if that's stopped or inhibited by kettling then where are we left?" It is essential that the freedom to protest is recognised and protected.

I think your observation that, “It seemed like a punishment [for attending a] protest” is very accurate and is one which is both fully understood and fully intended by those that sanction such measures. Clearly this is unacceptable.

There appears recently to be a trend against lawful protest. Actions taken at the anti-cuts and the education protests, and the arbitrary arrests (detention and subsequent release without charge) on the day of the royal wedding are damaging to a developed and democratic society.

It disturbs me, as it evidently does you, that the police seem to be willing to misapply certain powers, intended to protect the public, to an extent that they are used as a punishment. Such actions are carried out without a determination as to if they are just. It could easily appear to some that the police are acting to quell the intent of the public to protest (and to punish those that peacefully do so) in the interests of certain political interests rather than the protection of the general public.

It is high time that the police should be held to account for such actions and I am delighted that we have a generation who is prepared to voice its opinions and act on those beliefs in order to ensure that those responsible for unjust actions are answerable.

I read in your school’s newsletter your statement that you, “will not sit back and do nothing. We will defend our freedom to protest. We will defend our human rights.”

Good work! I hope that July goes very well for you. Good luck also, Adam and Sam, for your GCSEs.

Yours sincerely,

Will Gilmour

The case is due before the High Court for a two-day hearing starting on Tuesday 5th July.

ACS:Law, Davenport Lyons and the Ability of Solicitors to Self-Regulate

So, it’s Friday, time for the weekend and just over half way through the Solicitors’ Disciplinary Tribunal (SDT) considering the conduct of Davenport Lyons lawyers Gore and Miller.

This morning the SDT also played host to Andrew Crossley who was listed for a ‘directions’ hearing. Essentially this means sorting out some housekeeping business so that everyone knows how the next stages will play out.

Andrew’s hearing was due to start at 9.30am but actually didn’t kick off until 9.45am. A representative from consumer group Which? who’d been present at 9.30am was told by court staff that it didn’t start until 10am and thus ended up missing the first 15 minutes (when the key substance of the hearing was itemised). Thankfully, Peter Steel, the solicitor heading the disciplinary action for the Solicitors' Regulation Authority, was kind enough, when asked during a break in the proceedings, to re-enumerate the points. More on those and the outcome later on.

Meanwhile, on to the one-day slice of the seven-day hearing that is Gore and Miller’s conduct under the microscope.

Today was concerned with expert testimony (and toward the tail end of the afternoon, the refuting by the counsel for Gore and Miller of the key grounds for disciplinary action). It was evident that there had been, earlier in the week, other (‘non-expert’) witnesses in the shape of some of those innocents accused in the speculative invoicing scheme that the two solicitors have created and pioneered. Some might argue that they are actually likely to be the most ‘expert’ of all those that the court will hear, but they were all done with prior to today.

Today it was the turn of two expert witnesses who had worked together and produced a report that they agreed upon. The witnesses were then each cross-examined in order to find the subtle (or not so subtle) differences in their opinions. An expert witness had evidently been supplied by each side. Andrew Clark had been retained for the SRA and Professor Peter Sommer for Gore and Miller.

Clark was first to stand and was questioned by each of the barristers: Tim Dutton QC for the SRA and a gentleman whose name I didn’t catch for Gore and Miller. The lady from Which? that was present and myself both used the same word to express our opinions of his testimony: ‘measured’. He did really only say exactly what he wanted to and was evidently very well briefed. Very experienced as an expert witness, Clark has worked on over 100 (albeit criminal) cases with these sorts of issues. He’s also worked extensively with the Federation Against Copyright Theft (FACT).

Sommer was a ‘chattier’ gentleman but in so doing was more inclined to express a personal opinion outside of the plain facts of the case. As a professional expert witness his lack of bias or otherwise was questioned by Dutton for the prosecution. The answers Sommer gave certainly created, at least to this observer, a distinct impression of bias.

When asked about the evidential reliability of the systems and data supplied by DigiRights, Sommer volunteered that they were, he thought, adequate for the writing of a ‘first letter’; despite having not been asked any question framing it in such a manner - but obviously a viewpoint Gore and Miller would be happy for the court to hear.

He did appear to be very much framing answers in a the manner of a politician, answering the questions he (or the defence) would have hoped to have been asked, rather than strictly providing the strictly factual responses which would have been appropriate.

I found myself repeatedly flinching at the inadequacies of the ‘expert’ testimonies even despite my own limited knowledge of the technologies and processes under discussion.

There was repeated discussion of the immediate re-sharing of ‘pieces’ of data in a bittorrented file. I was resigned that the technical possibility of a leeching-only bittorrent client was not even going to be mentioned. It was 12.43pm before the possibility eventually got mentioned in a chance exchange.

There were other alarming evidential discussions which caught my attention:

There was considerable discussion about the size of game and film files (ie. generally comparatively large files) and the time taken to download these. This was discussion in the context of the plausibility or ease with which a person (other than the subscriber) using a connection for unlawful filesharing might be discovered by the subscriber.

Repeatedly it was stated (by both experts) that a game or film file would take ‘many hours’ to download. An exchange took place discussing a hypothetical download whereby the connection at a café might be used for the downloading of such a file. The expert witnesses contended that it would take ‘many, many hours’ to do so and would effectively be implausible. That was bad enough (I’ll explain why in a moment if you didn’t already catch on)...

A while later, one of the tribunal members asked of the experts if it was possible to make the download in parts; in other words, if the download of a game could be started in one place then paused and continued elsewhere. Someone’s thinking, I thought! – the very possibility I’d mentioned to my neighbour in the courtroom. To my horror though, Sommer responded that while it was ‘theoretically possible’ in practical terms it would not stating that instead of ‘many hours’ you’d be talking about ‘weeks’ to complete the download!

What neither ‘expert’ witness observed, and which is the reason I’ve made use of those inverted commas around that word, is that the speed with which a bittorrent download completes is highly dependent on the number of peers making that file available. THIS MASSIVE AND FUNDAMENTAL FACT WAS NEVER MENTIONED! In fact, if a plentiful supply of people are making a file available then the only limits to your download speed are likely to be either the settings in your bittorrent software or the limited bandwidth of your internet connectivity. The suggestion that it would take ‘weeks’ to complete even a large download simply because you chose to make the download in several stages at different locations is absurd and erroneous – and in expert testimony, sworn under oath in a courtroom that’s simply not good enough.

The lack of consideration given to the number of peers sharing a file also led to the stated misinformation that downloading a large file (such as a game or film) takes longer than a small file (such as a single audio track). In fact an obscure MP3 might take far longer to download than a freshly pirated and widely shared game. The tribunal knows none of this – and that’s a third of the reason I’ve titled this blog post as I have. This tribunal isn’t effective because the evidence it’s hearing (and I’ve only seen one day of seven) is flawed. How can it be just? How can it be effective regulation of the profession if it’s based on incorrect testimony?

The second third of my concerns comes back to some further examples of Sommer’s apparent lack of impartiality.

Sommer at one point suggested that, given that the identified IP address (upon which letters of claim were based) can only identify a router/subscriber and not an infringing individual, that it ought to be down to the subscriber to ask of his/her ‘near neighbours’: “Have any of you got file sharing software? Have any of you been – quote unquote – ‘naughty’?” Quite how such an assertion is within his remit as an 'impartial' expert witness is beyond me. He also seems to have overlooked how entirely inappropriate it might be for a person to ask of their neighbours if they’ve been piggybacking their internet connection for the purposes of downloading pornography. Would he really expect an honest answer if they had; and would he really expect to speak to those neighbours ever again even if they hadn’t?

Sommer’s final calamity came when he so readily agreed with an ‘explanation’ to a problem presented by one of the panel of the tribunal. She drew attention to a letter of claim sent by Davenport Lyons and asked how it would be possible (there having been earlier discussion of potential reasons for misidentification of letter recipients as infringers) for there to be FOUR IP addresses associated with the SAME SUBSCRIBER (and indeed listed in the letter) at the SAME MOMENT IN TIME. The moment-in-time part of the question didn’t get posed until the late stages of the enquiry and it was apparent that Sommer was going to rely upon dynamic IP addressing for his reply. When she pointed out that all four addresses were given the same time stamp he was momentarily stumped until the counsel for the defence volunteered ‘mistranscription’ as an explanation which Sommer went on to swear under oath as a reasonable explanation.

Bearing in mind that Davenport Lyons sent 6113 letters of claim I consider it unlikely that the IP addresses and times were manually transcribed. I’ve never yet seen a mail merge that was capable of ‘mistranscribing’ anything; certainly not something which would account for an error of this nature. Far more likely an explanation in my mind is a poorly managed spreadsheet, erroneous data collection or a malfunctioning untested version of a certain proprietary monitoring software.

The final third of my concerns about the failure of the SRA to regulate the profession falls to timing. It’s now June 2011. How slow can this process be? It’s all far too little, far too late. It’s not ‘regulation’ at all. To regulate something is to control something; to prevent it from doing what it otherwise naturally might.

The reliance of the Solicitors’ Regulatory Authority on the Solicitors’ Disciplinary Tribunal to keep its members in check is ineffective. If they were called the Solicitors’ Disciplinary Authority it might be a match of name to function, but as it stands it is not. Punishment after-the-fact is not helpful and does not protect the public from the likes of Gore, Miller and Crossley. All of the hurt, harassment  and damage caused by these individuals were caused in the past – years in the past (though continue to affect individuals). The years taken to try to address these problems, coupled with the glaring lack of efficacy of the process itself can only mean that the SRA and the legal profession are failing badly to self-regulate.

I wanted to end on some good news to this post. So I’m happy to report some positive outcomes from the Andrew Crossley directions hearing.

It transpires that the application for directions was actually brought by him (rather than the SRA - the prosecution). He had a number of requests which he wanted the court to order. They were:

1. He wanted SRA to fund his costs (as he’s lacking finance and was afraid he’d suffer an ‘inequality of arms’ against the SRA’s budget for his prosecution apparently set at £85k)
2. He wanted to exclude all expert evidence, again on the grounds of expense
3. He wanted an order to prevent the SRA making any further requests for disclosure of documents from him
4. He wanted copies of all of the files concerned with the current Davenport Lyons (Gore / Miller) tribunal and…
5. …a delay on proceedings on his case at least until the DL tribunal is concluded.

The tribunal did extend slightly some of the timescales (for the exchange of documentation) from the dates initially suggested by the SRA. There are a whole list of dates they have now ordered starting from the 30th June (tribunal to be in receipt of statement setting out facts and matters in dispute) right through to 30th September (content of court paper bundles agreed). The final pre-court stage will take place no less than ten days prior to the hearing and that will be the submission to the tribunal of the skeleton arguments (ie. the outline cases, pre-court-cross-examination).

These dates make it very apparent that the hearing is likely to be some time early to mid October, so keep your eyes peeled.

As to the outcomes of Crossley’s five applications for directions: every single one was refused. No SRA funding, no exclusion of expert testimony, the SRA are free to request disclosure of further documents from him, he can’t have the Gore/Miller documents and there can be no unwarranted delay just because the Gore/Miller case is ongoing.

At least they did something right eh.

Davenport Lyons' Solicitors Disciplinary Tribunal: A Second Post

I'm adding a few details to supplement the one I made a couple of days ago about the Davenport Lyons solicitors Gore and Miller appearing before the Solicitors Disciplinary Tribunal this week (and next week). There's also a directions hearing regarding Andrew Crossley of ACS:Law this Friday.

I know that some journalists and other interested parties are considering attending, particularly at the tail end of this week. The court rooms of the SDT themselves appear to be rather inconspicuous so I thought as part one of this short post I'd provide a link to a Googlemaps shot honed in on the building in question.

The address for the court rooms is given on the SDT site as:

3rd Floor, Gate House
1 Farringdon Street
London EC4M 7LG

In the view below, Gate House is apparently the entrance with the triangular architectural details on each side of the entrance, bang in the centre of the shot. Given the anonymity of the building (check for yourself; zoom in - there're a couple of number ones and nothing else I can see!) I've cross-checked the address with the neighbouring bike shop and tanning salon and it does check out as the correct venue.

Those that have attended these kind of things before might want to note that the location is essentially just a little further along the Strand / Fleet Street than the Royal Courts of Justice and the Patents County Court.

If you're walking up from the west end of the Strand / Fleet Street, walk past the Royal Courts of Justice and keep going; once you reach Fetter Lane (home of the Patents County Court) you're half way between the RCoJ and the SDT court at Gate House.

Essentially, keep walking up the Strand and you can't miss it. It's right on the junction of Farringdon Street and Fleet Street.

There's a short direct URL link to the map / photo just underneath the embedded one; in case you want to pass it on / tweet it etc.


View Larger Map

http://bit.ly/mLjmkz

Part two of this rather dry (sorry) post is about tweeting / twitter as a matter of fact.

It's not certain that court room tweeting will be possible, but journalists in attendance at such events have been known to tweet even if only sometimes during breaks in proceedings.

ACS:Law had an easy enough hash tag to track - #acslaw, but it's tricker for Davenport Lyons, 'dl' is too short, 'sdt' is already in regular use and 'davenportlyonssolicitorsdisciplinarytribunal' doesn't leave you many characters for the tweet itself!

I therefore propose: #dlsdt for the sake of uniformity and brevity. Sound reasonable?

Davenport Lyons' Solicitors Due to Attend Disciplinary Tribunal

Tomorrow (Tuesday 31st May 2011 at 10am) will see the start of a seven-day hearing before the Solicitors' Disciplinary Tribunal in London. The solicitors concerned are Davenport Lyons partner David Gore and former partner Brian Miller.

Davenport Lyons were the firm that pioneered the 'speculative invoicing' scheme, later adopted by ACS:Law among others, that purported to be a business model designed to reduce unlawful copyright infringment via peer-to-peer filesharing but was viewed by many as an unethical practice in which innocent persons were wrongly targeted for cash 'settlements' in respect of alleged infringments of which they had no involvement or knowledge.

The heavy handed approach of firms using this model has been widely condemned by many including consumer rights groups, the House of Lords and the senior judiciary.

The hearing is expected to last until Wednesday 8th June. The hearing will be open to the public and the Tribunal's court rooms:

3rd Floor, Gate House
1 Farringdon Street
London EC4M 7LG

This hearing is a substantive hearing.

There is a slight overlap with a hearing for Andrew Crossley (of ACS:Law) concerned with broadly similar issues. A directions hearing will take place at 9.30am on Friday 3rd June at the same address. If a substantive hearing is required (which is widely anticipated) this will take place at some future time.

Links:

SDT site: http://www.solicitorstribunal.org.uk/
Cause list: Davenport Lyons substantive hearing: http://www.solicitorstribunal.org.uk/31_05-08_06_11.pdf
Cause list: Andrew Crossley (ACS:Law) directions hearing: http://www.solicitorstribunal.org.uk/31_05-08_06_11.pdf
Relevant story on the Solicitor's Journal: http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=18333&c=3&eclipse_action=getsession
Further information #1: http://www.slyck.com/forums/viewtopic.php?f=66&t=44092
Further information #2: http://beingthreatened.com/
Further information #3: http://acsbore.wordpress.com/
Further information #4: http://torrentfreak.com/search/davenport+lyons
Further information #5: http://torrentfreak.com/search/acs

The Ministry of Truth - A reality? Propaganda from the copyright advocates

When you were at school it was probably not uncommon to see (or participate in) an exchange something like this:

Teacher:   What were you thinking of? Why did you do it?
Child:       Well, John did it first.
Teacher:   And if John stuck his hand in a fire I suppose you’d copy him?

As adults it’s plain to see that, actually, the teacher’s argument is pretty baseless. The childhood acts of throwing acorns / squirting the water fountain  / putting pencil sharpenings down a fellow pupils shirt are entirely incomparable with an act of self harm likely to result in hospitalisation.  


The inspiration for Orwell's 'Ministry of Truth' -
London's Senate House
Credit: ruben i

None-the-less it would appear that certain pro-copyright advocates are happy to employ similarly ill-founded analogies. Mix in some simple deceit and some PR manoeuvring and you create a heady mix of misinformational propaganda, and if you say something often enough some people will start to believe it’s true.

In the past the heavyweight ‘copyright compliance’ organisations were keen to utilise their finances and legal firepower to attempt to overwhelm those firms, organisations and individuals that operated in a manner that they felt was contrary to their aims. In recent years it would seem that those that feel they are acting legally (while perhaps not in alignment with the wishes of the pro-copyright groups) are more inclined to defend their position.

Technology news sites now frequently carry stories of David vs. Goliath stories where a copyright trade body has been forced to drop a case against a person who it transpires was acting legally. Such cases naturally generate much adverse publicity for the pro-copyright groups, particularly when it may be revealed that they have not acted entirely professionally or honourably, or have indulged in practices of dubious legality in attempting to build a case.

Increasingly often then, in the light of the lack of a legal standing against many of their staunchest adversaries, it seems that copyright advocates are now favouring propaganda as a way to achieve their objectives.

In the past week or so no less than three examples have come to my attention of materials put out by pro-copyright advocates; every one of them is ridiculous.

James Gannon, a lawyer based in Toronto with “a fervent interest in intellectual property,” wrote what he no-doubt thought was a very witty and wry blog post in which he declares:

“I was wrong. The fight against illegal copying is one that cannot be won. I can no longer deny the simple truth that it is ultimately futile to try to create artificial scarcities in what would otherwise be non-scarce goods. The digital revolution has allowed us to copy and share media for free and we should not let our antiquated laws stop us from enjoying these incredible technologies. It is time to fully embrace the digital revolution.”

What might then have gone to be an insightful article instead attempted to draw parallels between the hypothetical use by an individual of file-sharing technologies and his announced ‘intention’ to counterfeit $1 million in Canadian dollars.

Let’s look at a comparison between a legitimately obtained Canadian $20 bill and a music file legitimately purchased from Amazon.com.
 

	Canadian $20 bill	Digital content*
It can be returned at any time for the same face value as when I obtained it	Yes	No
I can loan it to a friend	Yes	No
If it becomes damaged it is still usable and can be replaced free of charge	Yes	No
It’s up to me how I use it	Yes	No
Contains information that identifies when I obtained it, the transaction details, the name of the supplier and part of my email address	No	Yes
If I want to get rid of the original I can sell it on to anyone for the face value	Yes	No
It is readily and legitimately obtainable in most developed countries	Yes	No, unavailable in the UK

(* Dave Grusin ‘History Lesson’)

The two are as comparable as Rebecca Black and Aretha Franklin. The fact that it is possible to make a copy of each is as far as it goes. Forgery of currency is very obviously not outlawed with the primary intent of protecting the interests of ‘content creators’ (the artists that design bank notes), or ‘copyright owners’ (the Bank of Canada); there’s a rather larger reason that monetary counterfeiting is forbidden. The same cannot be said of copyright.

Oh, out of interest, James’ blog post includes a photograph of a press printing currency. The illustration is a Reuters photograph, uncredited and apparently used without licence. It’s a wonder that James hasn’t been lifting $20 bills from the wallets of Reuters photographers; perhaps he has, who knows.

So, rattling on…. (with apologies for the rather long post but it’s a necessary consequence of these people publishing so much idiocy in such a short period of time)

Exhibit number 2 is a video unveiled on World Intellectual Property Day by the department of the United States Immigration and Customs Enforcement (ICE) purporting to be a ‘Public Service Announcement’. It was linked on a number of domains that the department had seized as part of its (legally doubtful) “Operation In Our Sites” campaign.

The video shows an actor offering ‘free movies’ to actors in the role of passers-by. Upon expressing interest the ‘public’ are told by the man offering the DVDs of the caveat, “if you take these movies, this nice woman right here, loses her job.” He goes on to ‘explain’ that, “these are illegally downloaded movies, and because of that, people like her, are losing their jobs.” One passer-by questions if it’s “that literal,” another asks “if I take this, she loses her job?” and the man responds “that’s right; it’s real”. A man that opts to takes some DVD’s despite the serious implications that have been made clear to him is asked “You have no soul?” and told, “You’re what’s wrong with everything.”

Here are some thoughts:

How does a lady lose her job (evidently as a boom mike operator) by the man with the DVDs giving her the ‘illegally’ downloaded copies?

There is at least a fair chance that the lady passer-by had never seen the film in question and had never intended to, let alone to buy the DVD. The scenario presented in the ‘public service announcement’ takes as it as a given fact that the lady had fully intended to purchase on DVD the films that she was given by the man, thus depriving the film studios of such income that the employment of the sound recordist was no longer tenable.

The flawed 'one download = one lost sale' logic is a claim that the content industries state they don’t rely on. Geoff Taylor, the CEO of the UK’s BPI said late last year:

“Sometimes it’s put against us that we treat all those illegal downloads as if they’re a lost sale. We don’t.”

This video goes one stage even beyond claiming that every download (which people would have had to seek out) equates to a lost sale. It now claims that even if you were given a DVD you hadn't asked for, that equates to a lost sale, which is plainly nonsense.

If a person had the money, desire and inclination to purchase a DVD, but simply did not, and instead chose to obtain the film via peer-to-peer filesharing or some unauthorised and unlawful means, and never went on the buy the DVD, that might legitimately be counted as a lost sale.

It cannot count as a lost sale where:

• The person never had any prior interest in obtaining the content.
• The person does not have the monetary resources to pay for a legitimate copy of the content.
• For some other reason the person would never have purchased the DVD even if a torrent, or other means of obtaining the content, were unavailable.

It is clear that a very large quality of copyright protected content is downloaded unlawfully. I don’t think anyone could dispute that. To conclude that as a direct result of this the industry would be forced to make a large number of lady sound recordists any others in the profession redundant is naïve. There is no trustworthy evidence to support the position that unlawful filesharing via the internet has led to any net loss in the incomes of the creative content industries. Here are a couple of reasons why:

1. The dissemination (by any means) of creative content inevitably means that a greater audience is aware of it, and it will reach a larger number of appreciative consumers. That will result in an increased number of legitimate purchases. This is precisely why the music industry spends a good deal of money in employing ‘pluggers’ who work to have the works of their artists played on radio stations. To fail to acknowledge that the unlawful dissemination of creative content results in purchases which would not otherwise have been made is either a deliberate omission or else a demonstration of cultivated naivety.
2. Year-on-year the creative content industries, despite global recession, achieve increased profits. Quite simply the claims of ‘lost revenue’ don’t hold water. If a lady sound recordist loses her job, it’s not because of a loss of income; perhaps it’s the bloated salaries of executives or excessive expenditure on groundless lawsuits or immoral lobbying activity.

And to finish, on to the video by Shawn Goldberg, ‘The Idea Thief,’ again promoted as a ‘public service announcement,’ which somehow equates downloading with depriving a person of their own thoughts.



There’s very little that needs to be said about this. A five year old could spot the lack of anaology. If I unlawfully download a copy of ET does that leave Spielberg unable to think for himself? Perhaps too many people downloaded that Paris Hilton sex tape.

The film was originally posted by Goldberg to Vimeo under (ironically) a Creative Commons licence. Comments were disabled on the upload apart from those from Goldberg’s personal contacts (he has 30). It's a day since he added it and there are just two comments. The first, from the only person to have ‘liked’ the video remarks, “Well made, but... really?” Comment enough perhaps, but the second person to give feedback was a little more explicit about the shortcomings of the short film:

“Piracy is not theft. The difference is that when you steal something, it's gone. When you copy something, it's still there. But of course, the big companies refuse to accept reality and [because of] that they are going down.”

I’m not pro-piracy but equally I can recognise that that the copyright laws are stupidly outdated and that the creative industries are fighting a losing battle. The sooner that they realise that and address the fact, the better. At the moment they seem to be intent to rely upon their outmoded business models and continue to produce this nonsense propaganda. Does it really fool anyone?