More Legal Shenanigans In Britain – Which? vs ACS:LAW “The UNUSUAL suspects”

ACS:BORE has a new article, which is a reprint from Which? on the legal letter scam used by ACS:Law to attempt to collect large amounts of money from accused file sharers titled Which? vs ACS:Law “The Unusual Suspects”. ACS:BORE didn’t add any commentary, but the article in from Which? was detailed, describing cases where people who received letters from ACS:Law were extremely unlikely to have downloaded the things that ACS-Law accused them of downloading.

The point of the article was to call into question the system that ACS:Law is using to target people who they are claiming are downloading the products of their customers. If the article is accurate, ACS:Law is taking action with incorrect information. In at least one case it is claimed that ACS:Law had to back down on their accusations because the information was proven incorrect. ACS:Law has claimed that their system of gathering information is correct all of the time, so if it is true that they have been wrong, it is a strong indictment of their methods. Note that these appear to be the same methods used by Davenport Lyons before them, methods which have caused Davenport Lyons problems with the legal authorities in Britain, with more than 280 complaints being filed. ACS:Law is reported to be under investigation as well. It has also impacted customers of ACS:Law where the owner of a string of sex ships has had problems with a business license renewal. Another law firm which also became involved in a similar scheme dropped their participation after receiving complaints from clients, but not until after they were caught editing their own Wikipedia page. You’ve got to love British English – where else could you find an article titled ‘TBI Solicitors lost its bottle?

The legal profession has a fiduciary duty to their clients. But the legal profession also has duties as ‘officers of the court‘ to operate within certain tightly defined parameters. While the sending of letters does not involve the courts per se, the threat of court action does involve the courts. How this will play out in Britain is no known as yet, as the original complaints about Davenport Lyons are still wending their way through the Solicitors Regulation Authority and Law Society. It also appears that the Consumer Action Group may be involved. If the actions of Davenport Lyons are found to not be proper, this would put ACS:Law in a difficult situation, especially since there are links between the two firms, which give the appearance that when action was started against Davenport Lyons, that ACS:Law was chosen to continue the actions for Davenport Lyons customers, and a transfer of staff was effected.

Lord Clement-Jones has labeled the Davenport Lyons/ACS:Law scheme ‘A Scam & Legal Blackmail‘ and ‘an embarrassment to the creative rights industry‘ in the House of Lords. Adam Liversage, a representative of the British Phonographic Industry stated ‘We don’t favour the approach taken by ACS:Law to tackle illegal file-sharing‘ to BBC News.

It has been claimed that the program that is used to determine Internet Protocol Address (IP Address) was purchased for less than $750.00 US, and possibly as little as $250.00 US. While some of the basics of such a program could be found online, most often licensed under the BSD, MIT, Apache or GPL licenses, it is hard to see how a reliable system could be built for only $750.00 US, since this is less than one day’s billing for an experienced programmer. Also if code that was licensed under the GPL was used, the program itself would be a case of copyright infringement, which would be exceptionally embarrassing to ACS:Law. Since over two thirds of freely available source code is licensed under one or another version of the GPL, the odds of this being the case are very high.

Unfortunately this situation looks likely to drag on for some years. The law firms involved appear to be fighting to avoid having to appear before a tribunal, which likely means that the are aware that they may be in legally difficult circumstances. However they are still sending out ‘settlement letters’, and anyone who does settle is unlikely to be able to retrieve their money if the law firms actions are found to be incorrect. However if the recipient of the letter is required to appear in court, the cost of a solicitor would likely be higher than the cost of settling, and even if they won, it might not be possible to get the judge to rule that ACS:Law should pay costs.

From this side of the Atlantic Ocean it appears the biggest problem is the English authorities lack of speed in dealing with the case. Either it’s a scam as claimed in the House of Lords, or it’s legal, and British internet users need to know.

Wayne Borean

Thursday May 20, 2010

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