In 2008, lawyers Davenport Lyons courted the mainstream media with the news that a court had found a woman guilty of sharing the game Dream Pinball 3D, an action which cost her around £16,000. Anyone with an understanding of these cases knew that something was wrong and now, thanks to yet more information from the leaked ACS:Law emails, we learn that this ‘conviction’ was built on foundations of sand.
In August 2008, we read the news here in disbelief. The BBC was reporting that Topware Interactive had won more than £16,000 following legal action against Isabella Barwinska of London, who shared a copy of their game Dream Pinball 3D using P2P.
“The damages and costs ordered by the Court are significant and should act as a deterrent,” said David Gore, a partner at Davenport Lyons who pioneered the “pay up or else” schemes multiplying in the UK and elsewhere.
Had the UK gone mad? £16,000 for sharing a single game? Why hadn’t we heard about this case in advance? Surely this wasn’t a ‘proper’ defended case? According to the “independent” IP barrister David Harris quoted by the BBC, it was just that.
“This is a proper Intellectual Property (IP) court that has made this judgement,” said Harris. “The previous ones were default judgements where defendants never turned up.”
So who exactly was this David Harris and who prompted him to make this announcement to the BBC? We don’t know, but one thing is certain – something felt wrong with his comments.
The hearing in the IP court meant the case had been rigorously analysed and the law properly understood, said Mr Harris, as quoted by the BBC. “It’s a much more interesting case in that respect,” he said.
It was indeed interesting, but for all the wrong reasons. It has long been suspected that far from it being a contested case, Miss Barwinska never turned up to defend herself and we now know for sure that she didn’t. Contested case? Not at all Mr Harris, whoever you are. There was absolutely zero defense.
Nevertheless, in common with Davenport Lyons before them, ACS:Law used the Barwinska ‘precedent’ in their ‘marketing’ to show what happens to people who choose not to settle for a few hundred pounds and cases end up in court.
But far from being a perfect illustration of a successfully litigated case, according to an advisor to ACS:Law’s Andrew Crossley the entire process was built on perilously weak foundations that only stood up because there was no defense. How do we know? From the emails that ACS:Law accidentally published on their website last week, of course.
In an email dated 19th August 2010, Adam Glen, who advises Andrew Crossley at ACS:Law, explained to him in no uncertain terms how weak the Barwinska case was.
He began with a statement that we have known to be true for a long time – it is almost impossible to prove damages to a copyright holder beyond an infringer making a single copy of a work on his hard drive. Under UK law, this is a big deal as damages awarded must reflect a proven loss.
“Unfortunately, except for Barwinska, there have been no cases involving P2P based infringement, except for those involving statutory damages, which provide some direction as to the method of calculation,” wrote Glen to Crossley.
“I have always been [of] the view that Barwinska is a difficult judgement and should not be relied upon for a number of reasons.”
The Barwinska case has always been completely shrouded in mystery, but Glen clearly knows it inside out. The reasons he gives for not relying on it are listed below and make quite remarkable reading:
a. The claim was not defended so there was no challenge to the submissions by Davenport Lyons
b. The court accepted the Davenport Lyons quantum calculation without challenge
c. The model submitted by Davenport Lyons was based upon, in my opinion, an extremely poor understanding of the underlying technology of P2P interaction
d. The Davenport Lyons model, in my opinion, failed to apply accepted and fundamental mathematical principals in its calculation, including queuing theory, and would have difficulty in passing an applied mathematics assessment if submitted in an “A level” statistics paper.
e. There are a number of factors in any model for calculation of the quantum of damage resulting from a making available via P2P which it is impossible for the monitoring software to establish and the model relies upon unsubstantiated, and in some cases erroneous logic, assumptions.
f. There are a number of factors in any model for calculation of the quantum of damage resulting from a making available via P2P which, for technical and commercial reasons, that the monitoring software fails to record and the model relies upon unsubstantiated, and in some cases erroneous logic, assumptions.
g. There are a number of factors in any model for calculation of the quantum of damage resulting from a making available via P2P which, for commercial reasons, means that legal disclosure has not been requested that could substantiate the multipliers and the model relies upon unsubstantiated assumptions based upon seriously flawed logic, to complete other assumptions necessary for predictive analytics and the quantum is predicated on the results of all these assumptions.
h. The Davenport Lyons model was developed by a person with no academic qualifications or experience, of a technical or mathematical nature, that would be accepted by the courts as being of a standard sufficient to be classified as “Expert”.
And Glen’s damning assessment goes even further.
“I believe that Barwinska should not be used as a reference to justify a quantum of damages as, it is my opinion that, a first year undergraduate learning applied statistics could easily challenge the model to a level which would create sufficient doubt in the court’s mind that the court would ignore or substantially discount the Davenport Lyons model. This may also risk the courts view of other evidence,” he told Crossley, adding:
“Barwinska might make nice headline reading but it has, in my opinion, about as much legal force as a Sun newspaper headline regarding the licentious behaviour of a D list celebrity.”
Glen then goes on to explain in detail that it is hugely problematic to prove any damages to rightsholders other than the single copy an infringer has on their machine and being made available on BitTorrent.
“Even this is problematic as the monitoring software was the agent of the rightsholder and therefore no damage can be established,” he notes.
“Because of all of these factors I believe that it would be extremely difficult to establish with any accuracy that there has been sharing except with the monitoring system which is an action by the infringer for which no damages can be accrued.”
Just in case you missed that – “no damages can be accrued.”
“Therefore, it is my belief that the rights holder can only rely on the damage resulting from making a single copy of the work in infringement of the rights granted to the rightsholder under s16(a) of the CDPA 1988.”
So, while Andrew Crossley talks of people making available his clients’ copyright works to “potentially thousands” of other people, according to his advisor he can’t even prove a single filesharing-related infringement which results in a loss.
Furthermore, while he also endlessly speaks of taking cases to court (but never does), we now know why. It’s just too damn risky, costly and for what best result?
Recovering the price of a single DVD or music track.