Have you received a letter from Davenport Lyons or ACS?

[Toto]

A lot of talk here, but the only people winning are the copyright owners where evidence is supplied that an ISP connection was used to breach current copyright law. Until somebody can prove that they have had a successful defence of the claim against them, or some news on a pending court case where the defendant is actually going to fight the claim, that's all it is......

Talk.

It's a shame really, because I'm sure there are people out there who could use some help in this matter, not personal opinion from people who don't understand copyright law.

[Melidon]

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.

[photodude]

For all you guys with letters:
Send in your defence/denial of the copyrights breach, and request their evidence of the breach. (Important you do this, as they are only taking none responders to court, as these are the only cases they can win by default)
If they reply with their evidence, look through it, and see if your defence still stands on a balance of probability.
If they give you a court date, here is the solicitor representing the respondents for free:
http://www.lawdit.co.uk/reading_room...fringement.htm
If you or your solicitor don't turn up, a default judgement will be made in their favour.

On checking, I've now read 2 cases where people paid up (out of fear of court action), and then got demands for more money, for other claimed breaches.
Whatever you do, do not pay a single penny, or say anything in your replies that could be turned against you.

[Kymmy]

Originally Posted by Melidon

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.

Can you honestly say that you had no-one else use your internet connection?? For example a niece/nephew/grandchildren staying with you for the weekend?? I only ask as that'll be the first question the courts or Davenport-lyons would ask you do disprove Can you also honestly say that you do not have any P2P software installed.... One point that people don;t realise is that you might actually download software called one thing that is actually something else.. As you download it it shares that software out...It's only when it's fully down or you actually bother to look at the Hash for it you realises that you've done it...

The letters have probably taken so long as it would have been on a schedule that started off with monitoring the P2P network for a few months gathering data... Then they would had to ask a court to grant them rights to the account details of all those recorded...This then would have taken time for the ISP's to respond

[photodude]

I don't get why people are pushing this " it's your connection used, so the account holder is the guilty party"
The terms of the agreement with VM state that:
"You agree to take responsibility for all liabilities, claims and losses which are in any way connected with misusing the services supplied to you under this agreement"
This contract term is there to take VM out of any claims like this, and make the claimants go directly to the account holder. It is not a term that can be used in a court to make you pay for someone else's downloading activity (be it family, friends or someone abusing your wireless), unless it is VM taking you to court for a breach of their contract. It is a contractual term between you (the account holder) and VM, not between you and any third party who claims you have broken copyrights laws. This is why the claims are address to the account holders, and not any other member of the household.

[shawty]

Originally Posted by photodude

I don't get why people are pushing this " it's your connection used, so the account holder is the guilty party"
The terms of the agreement with VM state that:
"You agree to take responsibility for all liabilities, claims and losses which are in any way connected with misusing the services supplied to you under this agreement"
This contract term is there to take VM out of any claims like this, and make the claimants go directly to the account holder. It is not a term that can be used in a court to make you pay for someone else's downloading activity (be it family, friends or someone abusing your wireless), unless it is VM taking you to court for a breach of their contract. It is a contractual term between you (the account holder) and VM, not between you and any third party who claims you have broken copyrights laws. This is why the claims are address to the account holders, and not any other member of the household.

Its got nothing to do with Virgin Media. If someone in the household has downloaded something illegaly, then they will set out to find out who, or in this case, the account holder, due to the fact thats who pays the bill. I guess its just the same as a car, the owner of the car is responsible for knowing who is driving it at any given time. Im guessing the same applies here. Someone is the quilty part in the household, so they go for the account holder due to the fact he is responsible over the internet connection.

[Melidon]

Thanks for the info Photodude. I have contacted the solicitor for advice and am now awaiting a reply.

Kymmy, no nieces etc visiting as they all live locally and have their own computers.

My husband, bless him, would be hard pressed to find the on/off switch on a computer.

[Kymmy]

And no P2P software on your PC???

If not then you might just be the test case that everyone is waiting for.....

A pensioner who doesn't have any P2P software on thier PC and has always been in control of her own PC... If you went through the whole court scenario, won the case then probably all the letters would then stop for everyone.....

But doubtful if Davenport Lyons would be stupid enough to take it that far....

[annstitchen]

Hell I am new and have had a letter from Davenport Lyons for downloading drive test have been to CBA and a solicitor who recommended writing a letter first as 4 people live in the house and not sure who down loaded drive test as it was so long ago Feb late at night I have checked computers and this game is not on any of them. Has any body got any advice what to put in the letter as the solicitor could not help as she did not know what to do as this is the first letter she had seen. Any advice please

[Toto]

Originally Posted by annstitchen

Hell I am new and have had a letter from Davenport Lyons for downloading drive test have been to CBA and a solicitor who recommended writing a letter first as 4 people live in the house and not sure who down loaded drive test as it was so long ago Feb late at night I have checked computers and this game is not on any of them. Has any body got any advice what to put in the letter as the solicitor could not help as she did not know what to do as this is the first letter she had seen. Any advice please

See post #183, link in there.

[annstitchen]

Thank you will phone them tomorrow.

[photodude]

Originally Posted by shawty

Its got nothing to do with Virgin Media. If someone in the household has downloaded something illegaly, then they will set out to find out who, or in this case, the account holder, due to the fact thats who pays the bill. I guess its just the same as a car, the owner of the car is responsible for knowing who is driving it at any given time. Im guessing the same applies here. Someone is the quilty part in the household, so they go for the account holder due to the fact he is responsible over the internet connection.

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.

[shawty]

Originally Posted by photodude

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.

But as far as Im aware and like I said in the post you replied to, the law has changed so the owner of the car can get done for not knowing who was in charge of the owners car. Wether this relates to anything else, im not sure.

[photodude]

The law changed so that the owner had to offer up details and/or show they had made a "diligent and documented search" to ascertain who the driver was. If they can not provide a definite answer, the charges are dropped. Only exception to this rule is company cars Note that the police must make this request within 14 days of the offence, not 6 months to 2 years after the event, like Davenport Lyons are doing.
A defence that stands up in a criminal court, will stand well in a civil court

[shawty]

Originally Posted by photodude

The law changed so that the owner had to offer up details and/or show they had made a "diligent and documented search" to ascertain who the driver was. If they can not provide a definite answer, the charges are dropped. Only exception to this rule is company cars Note that the police must make this request within 14 days of the offence, not 6 months to 2 years after the event, like Davenport Lyons are doing.
A defence that stands up in a criminal court, will stand well in a civil court

No, the offence is not knowing who was in control of the vehicle (as far as Im aware) if the owner can not state who the driver was.