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-   -   Have you received a letter from Davenport Lyons or ACS? (https://www.cableforum.uk/board/showthread.php?t=33611570)

whydoIneedatech 07-10-2008 21:53
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649545)
Shawty, you hit the nail on the head.
The same applies with this case, as applies with registered keepers of cars and other drivers committing offences. If you can't ID the exact person driving the car and committing a speeding offence etc, you (the registered keeper) can't be prosecuted.
If you can't ID the exact person using the computer, and committing the copyrights breach, they can't claim damages and costs against the account holder. As some of the download times date back 1-2 years+, people can not be expected to remember who was at the PC at that time, so the "unknown downloader/unaware of download" defence stands up in a balance of probability;).
It is the responsibility of the account holder because you are the person paying the bill, no comparison can be made to a motoring offence, as any case would be heard in a Civil Court.

photodude 07-10-2008 22:15
Re: Have you received a letter from Davenport Lyons?
 
So if you are paying a bill for a service, you are responsible for the actions of any other person abusing it?
So lets say your electric supplier sends you a bill for £2000, and you find out that your neighbour has tapped in to your meter. That means that it's your fault, and you have to pay, get sent to court and be fined, as you are the account holder:confused: I don't think so

Shawty, what you refer to is section 172 that was changed in 2007. But like I said, if you can't find out who the person was, you can't be prosecuted:
Quote:
(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
Quoted from Road traffic act Here

shawty 07-10-2008 22:22
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649734)
So if you are paying a bill for a service, you are responsible for the actions of any other person abusing it?
So lets say your electric supplier sends you a bill for £2000, and you find out that your neighbour has tapped in to your meter. That means that it's your fault, and you have to pay, get sent to court and be fined, as you are the account holder:confused: I don't think so

Shawty, what you refer to is section 172 that was changed in 2007. But like I said, if you can't find out who the person was, you can't be prosecuted:

Quoted from Road traffic act Here
What we are trying to say is, the offence has still took place, but the only person Davenport Lyons can get intouch with is the account holder. Regardless of who did it, the offence still took place.

photodude 07-10-2008 22:29
Re: Have you received a letter from Davenport Lyons?
 
Doesn't matter if it took place or not. If the person named in the claim is not the guilty party, they can defend against the claim and not pay Davenport Lyons a penny.

Kymmy 07-10-2008 22:31
Re: Have you received a letter from Davenport Lyons?
 
If someone stole your electricity and you couldn't prove it then yes you would be liable for the costs, same with your internet connection....

Having an unsecure network is not an excuse to blame others, not unless you found someone outside of your house with a laptop and called the police and then they were prosecuted then yes that is then an excuse, but only if the prosecution showed the event to be on the date the download took place...

Hugh 07-10-2008 22:32
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649734)
So if you are paying a bill for a service, you are responsible for the actions of any other person abusing it?
So lets say your electric supplier sends you a bill for £2000, and you find out that your neighbour has tapped in to your meter. That means that it's your fault, and you have to pay, get sent to court and be fined, as you are the account holder:confused: I don't think so

Shawty, what you refer to is section 172 that was changed in 2007. But like I said, if you can't find out who the person was, you can't be prosecuted:

Quoted from Road traffic act Here
I'm curious - in what circumstances would you not know who was driving your car (besides it being stolen)? (slightly off-topic, sorry, but I am curious).

shawty 07-10-2008 22:33
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649749)
Doesn't matter if it took place or not. If the person named in the claim is not the guilty party, they can defend against the claim and not pay Davenport Lyons a penny.
How would they prove it was not them that downloaded it then? If the offence did actualy take place how will they defend themselves.

whydoIneedatech 07-10-2008 22:41
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649734)
So if you are paying a bill for a service, you are responsible for the actions of any other person abusing it?
So lets say your electric supplier sends you a bill for £2000, and you find out that your neighbour has tapped in to your meter. That means that it's your fault, and you have to pay, get sent to court and be fined, as you are the account holder:confused: I don't think so

Shawty, what you refer to is section 172 that was changed in 2007. But like I said, if you can't find out who the person was, you can't be prosecuted:

Quoted from Road traffic act Here
In what context can you quote the Road Traffic act, as it would be a Civil proceedings with the onus on you to prove to the Judge it was not you while he is looking at documentary evidence that says on such a date a music track or film was downloaded from your connection.

He reads document that says it was downloaded by your connection, you say no it was not me but I pay the bill, he says thank you I find for the plaintiff.

But of course we do want it to get that far so we send a letter denying it as soon as we get the letter demanding money.

cook1984 07-10-2008 22:51
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by Melidon (Post 34649031)
Good morning, I am new to the forum. I have received one of these letters from Davenport Lyons just a couple of days ago. It came as a bit of a shock.
I am being accused of downloading a car driving game in August of last year, not something a 64 year old lady would be interested in at all. I am going to my local CAB for help and advice. I'm sure though that I have never downloaded this game, and am wondering why I should pay this firm £565.00 and sign a disclosure to say I won't do it again when I didn't do it in the first place. I have found the letters on this forum very interesting. Of the people who have received the letters, how many have paid and why do the payments vary so much. Also why so long in contacting people, 6 months to
contact VM and then 2 months to lodge with court and then a further 6 months before sending out the letter to me. I have to say I am so worried about this, and what happens if I am told I have to pay and don't have the money to do so.
Try not to worry Melidon. If you didn't download the game, you have nothing to fear. They are just trying to scare you into paying, and unfortunately it's a common tactic.

The only people who can tell you that you have to pay are judges in a court of law. Until then, it is merely a claim and not in any way legally binding, and it won't affect your credit rating or anything like that.

Write them a letter explaining that they are mistaken. Request any evidence that they have. That will probably be the end of the matter, but if they do respond please let us know. Generally they are only looking for people who either just pay up out of fear or who don't respond at all so they can get a default judgement. If you write back, they will usually just leave you alone.

photodude 07-10-2008 22:52
Re: Have you received a letter from Davenport Lyons?
 
This is just going round in circles, and drifting off topic, but to answer the questions:
1/ Kymmy: So you would have to prove someone (an actual person) stole your electric, but Davenport Lyons don't have to prove that you (the account holder) stole the game??????????
2/ foreverwar: Shared family vehicle, and nobody knows who was driving at that time. Or shared house, and keys were there for several people to pick up and use the car.
3/ shawty: They don't have to prove it, all they have to do is show that on a balance of probability they, did not physically download it themselves. eg: more than one person uses the PC. They have no knowledge of p2p networks or downloading. They have no trace of the file on their system, and do not play PC games.
4/ whydoIneedatech: Your connection may be guilty of the actual download, but that does not make that account holder guilty of copyrights breach. As I stated several posts back, replying is the first thing to do.

shawty 07-10-2008 22:58
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649773)
This is just going round in circles, and drifting off topic, but to answer the questions:
1/ Kymmy: So you would have to prove someone (an actual person) stole your electric, but Davenport Lyons don't have to prove that you (the account holder) stole the game??????????
2/ foreverwar: Shared family vehicle, and nobody knows who was driving at that time. Or shared house, and keys were there for several people to pick up and use the car.
3/ shawty: They don't have to prove it, all they have to do is show that on a balance of probability they, did not physically download it themselves. eg: more than one person uses the PC. They have no knowledge of p2p networks or downloading. They have no trace of the file on their system, and do not play PC games.
4/ whydoIneedatech: Your connection may be guilty of the actual download, but that does not make that account holder guilty of copyrights breach. As I stated several posts back, replying is the first thing to do.
So will the same happen for child porn? Because the person who owns the account denys it, so the case just gets dropped, even though there is child porn on the PC.

photodude 07-10-2008 23:16
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by shawty (Post 34649779)
So will the same happen for child porn? Because the person who owns the account denys it, so the case just gets dropped, even though there is child porn on the PC.

Here is a case found at random with google, and there are 1000's more like it
http://it.slashdot.org/article.pl?sid=08/06/18/2213232

shawty 07-10-2008 23:19
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649784)
The case in Dewsbury of Shanon Matthews comes to mind. Her mother was the internet account holder, registered tenant of the house, and bill payer (I know, because I know her neighbour). Yet it was her ******* boyfriend who downloaded the child porn. Did they arrest her for child porn offences? NO. WHY NOT? Because she did not commit the offence (though she was guilty of plenty of other things).

Here is a case found at random with google, and there are 1000's more like it
http://it.slashdot.org/article.pl?sid=08/06/18/2213232
Isnt this what I have been saying. They will go after the account holder first as thats the first contact, but just because they are innocent, the offence has still took place on the computer, so they shouldnt just let it drop. What you just said backs this up as they arrested him for the child porn offences.

photodude 07-10-2008 23:32
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by shawty (Post 34649786)
Isnt this what I have been saying. They will go after the account holder first as thats the first contact, but just because they are innocent, the offence has still took place on the computer, so they shouldnt just let it drop. What you just said backs this up as they arrested him for the child porn offences.
I never said Davenport Lyons should just let it drop. What I've said is, they can't make the account holder pay up, if they can't prove who committed the breach. And if the account holder can't tell them who created the breach, they have to drop the case.
Lets just see what happens when and if Davenport Lyons actually take someone to court, who is going to defend their case. They wouldn't be going for default judgements if they thought they could win cases.

shawty 07-10-2008 23:35
Re: Have you received a letter from Davenport Lyons?
 
Quote:
Originally Posted by photodude (Post 34649790)
I never said Davenport Lyons should just let it drop. What I've said is, they can't make the account holder pay up, if they can't prove who committed the breach. And if the account holder can't tell them who created the breach, they have to drop the case.
Lets just see what happens when and if Davenport Lyons actually take someone to court, who is going to defend their case. They wouldn't be going for default judgements if they thought they could win cases.
Hmmm, Ive already tried explaining this. If the account holder of the broadband did not download child porn and can not say who did, the case does not just get dropped.


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