Editorial on Davenport Lyons

Posted by Dan on August 22, 2008

Gamesindustry.biz has a followup editorial on the Atari/Codemasters + Davenport Lyons mass litigation. It’s probably nothing new if you’ve been following our coverage, as we broke the report that Davenport Lyons attorneys (or more likely, barristers since they’re a UK organization), had been disbarred in numerous countries in Europe for misconduct in attempting to extort settlements. Our editorial opinion follows after the jump.

From the article:

What takes a little more stone-turning to uncover is the fact that Davenport Lyons – and by extension, their clients in this matter – appear to be using data from a company called Logistep. This is an anti-piracy company which uses a variety of methods to extract user information from peer to peer file sharing services, and claims to be able to identify which Internet users have been sharing specific files.

This raises two problems. Firstly, there have been serious concerns over the legality of Logistep’s methods in several European states. In the company’s home country of Switzerland, it stood accused of violating the law in its pursuit of pirates, by pushing for the initiation of meaningless criminal cases against sharers and then dropping them once their ISPs had coughed up personal data on their customers. Needless to say, the Swiss authorities weren’t best impressed when this behaviour came to light.

Concerns have also been raised in other European countries. In France, a lawyer who was working with Logistep was recently banned from practising law for six months for almost exactly the same behaviour which Davenport Lyons has just demonstrated in the UK. Her letters, which demanded 400 Euro from alleged sharers – while scaring the recipients with the implication that a failure to pay this money and subsequent court appearance could cost “hundreds of thousands of Euros” – were deemed to be, in essence, extortion.

It should be noted that this same pre-action settlement practice is, while technically probably legal in the US, is both ethically and morally frowned upon by members of the bar. Only the largest consumer agencies, such as the RIAA (who recently sent one of their attorneys to head up the ESA’s General Counsel, in a hypocritical turn of events) can get away with it. Is it Rule 11 sanction worthy? Probably not, though take it with the caveat that we haven’t taken the time to conduct full research into that direction. It is, however, morally unacceptable.

Let’s be very clear here to avoid confusion: we’re talking about mass litigation pre-action demand letters. Not targeted demands to a single person, with a calculated number, demanding a settlement to avoid filing of an action. The difference here is that the target is 25,000 people, with the number not individually calculated for each one. That’s where the moral boundary (if not an ethical one) is crossed. It’s common legal practice to do it for a single person. It’s not when you’re throwing an arbitrary number out at a vast array of people.

I want to reiterate again that the objections to this conduct are moral (i.e. it’s wrong to do it) and to an extent, ethical (i.e. it is an abuse of the attorney’s membership at bar), though the latter depends by state rules and is far more of a “stretch” argument. They are NOT legal objection. As far as we can tell, in the U.S. Davenport Lyons would have every right to pursue their demand letters.

There is another interesting pair of points to be made in this essay by GI.biz

Yet those debates, despite their relevance to the situation in the UK, pale in comparison to more serious problems with Logistep’s methods. There is, quite simply, a vast gap between what Logistep can prove technologically, and what a court of law requires for a case to be proven.

From the documentation I’ve seen, it appears that all Logistep can do is link an IP address (and hence a broadband connection) to the sharing of a file with a certain filename, at a certain time. That’s to be expected – there’s not much other data they can collect. However, even without legal training, it’s clear to me that there are huge holes in this approach. How do you prove, beyond reasonable doubt, who was using the computer in question? How do you prove, beyond reasonable doubt, that the file contained the data its filename suggested?

There are two issues at hand here. First, GI is correct that Logistep cannot do much more than link an IP address to the file, and time. However, that may be enough, depending on the ISP. That information can be used to adequately state (enough for subpoena purposes) that at XX:XX, IP address YYY.YYY.YYY.YYY assigned to this particular ISP, did in fact download the file in question. The ISP might then be required (depending on country, state laws, policies etc.) to turn over their internal information as to what person was assigned that IP address at that given time. Of course, we’ve seen in the past, notably with the RIAA (doesn’t it always come back to that?) that this practice is not foolproof, even if the ISP can target the IP to a single household. One can definitely expect to see more 80 year old grandmothers and 3 year old children named in the forthcoming law suits.

The second issues stems from the “reasonable doubt”. Simply put, it’s applying an American criminal law standard of proof to something that does not necessarily use that system. We don’t know what country these suits will be filed in, nor whether they be civil or criminal, or both. The standard of proof in a civil case may be significantly less than “beyond all reasonable doubt”, and may be “preponderance of evidence”. If it’s in the U.S. there may be various standards that give a legal presumption of a prima facie case once the plaintiffs can show that the downloading did in fact occur. It all depends under what country’s law and what statute they file the complaint under. We simply don’t know at this point, so speculating on burdens of proof is unproductive.

But the article continues:

This isn’t to say that the majority of those who receive letters from Logistep will be innocent. In fact, the vast majority will probably be guilty as charged. However, a significant minority will genuinely be innocent – and frankly, even in the cases of the guilty parties, it seems to me that Davenport Lyons will have a tough day in court proving their claims if those involved find a decent, clued-up lawyer.

That’s seems to be why the shock-and-awe tactics of this mass mailing are being employed. £300 or thereabouts is a nice figure – enough to sting badly, probably enough to cover the costs of the operation, but not enough for most people (innocent or guilty!) to be willing to go and hire a lawyer and fight the case. Moreover, once you’ve paid the £300 and admitted your guilt, you don’t really have any comeback. This looks like a legal dragnet, designed to haul in as many people as possible – with little regard to whether they’re actually guilty, or whether there’s enough evidence for a real court case.

The problem is not whether people are innocent or guilty. The question is a matter of equity. Even if someone is guilty, is £300 really an appropriate repayment for a game that costs probably less than 1/10 that amount?

Furthermore, what about the population of people who pirate games because they cannot afford the high prices of games bought from most retailers? What are the odds they can afford an attorney? They’re the ones most likely to pay the settlement and go away; most likely without actually getting any favorable terms in the settlement either (such as disposing of all future claims against them). It almost seems like a pound-of-flesh revenge tactic to hit the people that “hurt” them the most (by that, we mean hurt them morally, not monetarily). It’s almost devious in its simplicity.

Once again, we’ll continue to bring you coverage of this as we hear more news.

Gameslaw would like to highlight for anyone reading this, especially anyone targetted by these letters, that nothing in this post or on this site should be construed to be legal advise, or as advocating a particular course of action, nor should any communication between you and GamesLaw come with the expectation of attorney-client (or any other kind of) privilege. If you are the subject or recipient of one of these letters, you should immediately contact a licensed attorney, preferably one with experience in the field of video game law.

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