Frequently Asked Questions: File Sharing

28 November 2008

By Michael Coyle

If you have received a letter from Lawyers claiming that you have you illegally downloaded copyright material please read the text below:

1. I have received a letter from Lawyers claiming copyright infringement. Do I pay them the money? The letter is legitimate. It is usually written on behalf of a computer game, film or record and now porn company. The lawyers have been appointed to act on behalf of their client. These clients range from Codemasters, Atari to Digiprotect. So they need to be treated seriously. It is a Letter of Claim it does not mean that court action will follow or you will lose your home or it is a criminal offence. It is a warning letter telling you that if you do not pay then court action will follow. In our view it is most unlikely that you will be sued. So please do not worry, speak to a Solicitor and get advice.

2. Your options are as follows:-

> Do nothing. This is not advisable. Ignoring letters will send out the wrong signals and encourage the Lawyers to seek an early kill and issue proceedings against you.

> Write a letter of response. The claim is usually based on an IP address alone. It seems that a robust response telling them politely to go away will work. Most of the cases we have seen are based on an IP address and it is highly unlikely that a claim will be issued. While the letter of claim needs to be treated with respect it is a threat which is for the most part an empty threat. The bottom line is that in the absence of inspecting your hard drive, it is difficult to prove copyright infringement.

> Pay. Notwithstanding above if you have downloaded the game/film/song etc and it is sitting on your hard drive (even if you have deleted it) then you need to consider your position. We are of the view that the evidence provided is insufficient to prove you have downloaded the file- even if you have. If you pay the money the matter will go away and you can forget about the whole thing. Even if we are of the view that the sum claimed by the Lawyers is too high (the only person who can say that it is fair or too high is a Judge) - if you want peace of mind then perhaps pay up. Alternatively send the Lawyers a cheque for the price of the game say £20.00 and see if this is accepted in order to resolve matters.

3. What action can Lawyers take against me?

The Lawyers options are:-

> To issue a claim in the Copyright Courts for copyright infringement. Legal costs and damages will be in the region of £10-20,000 which you will be responsible.

> Continue to write threatening letters.

> Nothing. From experience point 1 does not happen very frequently and has only occurred where a) The letter of claim is ignored or b) The evidence in the possession of the Lawyers is more than an IP address. Perhaps evidence of the user name and password file sharing software. If you have been targeted simply because of your IP address then we advise you to instruct us to write a letter of response.

4. What will I have to pay Solicitors?

We have helped many people for free and will continue to do so by telephone but if you wish us to write a letter we have had to charge a one off fee of £50+VAT. The letter in response (depending on your facts) will usually work. We take the case over from you and deal with any further correspondence or the matter simply goes away. The fee will not be increased unless you instruct us to write further or the Lawyers issue proceedings. Again this is unlikely to happen if all they have is the IP address.

5. Which option should I choose?

In order to assess this you must ask yourself the following questions:

> Have you downloaded p2p software on your computer and if so which one?

> Have you downloaded the film/game in question?

6. Can the Lawyers come after me again if I decide to pay?

This is unlikely; however, there is no certainty here. If new evidence suggests that your IP address has made available another copyright work available to third parties then there is every possibility that another letter of claim is sent to you.

7. Am I liable for someone else in my household who has downloaded the game?

On the evidence before us to date if the IP is all they have then it will be difficult to prove that there has been an infringement. However if you admit that you have downloaded the software and have downloaded the copyright work then connecting a computer to the Internet, where the computer is running P2P software, and in which files containing copies of the copyright works are placed in a shared directory, falls within the infringing act. This is a primary act of copyright infringement, and it does not matter whether the person knows, or has reason to believe, that what they are doing is an infringement, because innocence or ignorance is no defence. The mere fact that the files were present and were made available is sufficient for the infringement under s.20 of the Copyright Act 1988 to have been committed. They will claim you are an infringer by making the work available to the public, and authorising the performance of the infringement. You had the Internet account; have admitted using the P2P software and had control over the computer. If you admit to using the software it may makes your position untenable. If your child is entirely responsible, then the Lawyers ought to writing to your child and not you. Your child will be liable for the infringement not you.

8. What is your advice?

Our advice will differ in each individual case. Please contact one of the team at Lawdit so that we can assess your case and advise you on the best way to proceed.

Lawdit Solicitors