Have you received a letter from Davenport Lyons or ACS?

[Kymmy]

Originally Posted by zappagirl

I can't get Legal Aid for this - I've tried everyone and everywhere. For the record, my son had bought Test Drive Unlimited for a different format. He saves up his Christmas and Birthday money and buys original games. In the intervening time he trades them in at Gamestation or such like and gets other pre-owned.

Legal aid is only available in criminal cases I believe, this matter is a civil case.

As for owning the game that fact isn't taken into consideration as the accusation is that you shared the game..If they were accusing you of just downloading the game then all they could charge would be the cost of the game plus costs of finding out your details and administration...

[lilcee]

Hi all,

I've received a letter regarding infringement copyright for the test drive unlimited game. AND yes - i didn't do it!

I've sent a reply to DL in response to their request for payment on behalf of Atari, and I've informed them I dispute this. Our internet connection wasn't secured at the time of the download and apparently the IP addresses, I have been informed by Virgin Media are dynamic and not static - so how can I prove the IP address they've quoted wasn't mine at the time of the download. (surely its the upload not download, so they need to prove its been uploaded from us??, just a thought) The letter was sent 2 weeks ago and I'm still waiting for a response from them. Upon the letter being received they requested that they receive payment within 21days.. So hopefully they will contact me soon. I'm so worried as its been quite a struggle financially lately for us, so we can't afford legal proceedings etc - I just wish they'd reply and let us know whats happening next.

[Kymmy]

Originally Posted by lilcee

Hi all,

I've received a letter regarding infringement copyright for the test drive unlimited game. AND yes - i didn't do it!

I've sent a reply to DL in response to their request for payment on behalf of Atari, and I've informed them I dispute this. Our internet connection wasn't secured at the time of the download and apparently the IP addresses, I have been informed by Virgin Media are dynamic and not static - so how can I prove the IP address they've quoted wasn't mine at the time of the download. (surely its the upload not download, so they need to prove its been uploaded from us??, just a thought)

An unsecured network is no defence...as it's in VM's T&C's that you are responsible for who/what is connected to thier network.

Also the dynamic IP's are logged as to which account had them at any point in time. The request by them to VM for the IP info would detail the exact time that the infraction took place and VM will give them the exact users details..

As for upload that's simple, they just had thier P2P client going and logged every IP/DATE/TIME that could provide them with a segment of the requested file.. Just about anyone with a P2P client can do the same

---------- Post added at 14:02 ---------- Previous post was at 13:59 ----------

The only defence you might have is whether the records show the IP was registered to a local UBR as cloned modems might show up as a seperate UBR out of your area...All you can do is to ask for the evidence that DL possess but that'll probably be in the letter which also should hopefully include the rDNS of the IP

[goggsy0]

has anyone had any replies off davenport lyons,need some more updates to whats happening.

[Noob91]

Originally Posted by Kymmy

An unsecured network is no defence...as it's in VM's T&C's that you are responsible for who/what is connected to thier network.

That's only relevant to your contractual agreement with VM. It has no bearing on the accusation of copyright infringement. Does anyone know if English law has a positive obligation to secure your wireless network? In this case you might be able to cite common carrier provisions of that EU Directive I have completely forgotten the name of. Because in effect, you have infringed content without knowing. Just like the ISP has. Unless there is an obligation to secure your network.

[Hugh]

If your proposition is true, then the insurance companies won't be very happy, as their contracts state (usually) that they won't pay out if you have taken adequate precautions to secure your property/car/belongings. I don't remember anything in English Law (besides common sense, and I am not sure there is a lot of that in law) that states you have to secure your property, etc.

Originally Posted by Noob91

That's only relevant to your contractual agreement with VM. It has no bearing on the accusation of copyright infringement. Does anyone know if English law has a positive obligation to secure your wireless network? In this case you might be able to cite common carrier provisions of that EU Directive I have completely forgotten the name of. Because in effect, you have infringed content without knowing. Just like the ISP has. Unless there is an obligation to secure your network.

They kind of cover your obligation here with regards securing your network


http://allyours.virginmedia.com/html...ble/terms.html

Terms and conditions for your residential customer service agreement

D Using our services

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, or with getting our services without our permission, and to fully repay us if we suffer any costs or losses of this kind. This also applies if you do not meet your responsibilities under this section D.

Fairly clear and points the finger directly at the customer.

[rossdagley]

But only with a view of protecting VM's ass (and rightly so, if I was VM).

It's not a legal binding contract with regard to third parties claiming copyright infringement - it simply says that VM require that you (the customer) take all responsibility for your connection to ensure VM cannot be claimed against. Otherwise VM would be just as liable as the customer - they "allowed" the network to carry this alledged data.

Where (in UK law) does it state, or where has a precidence been set, where an end customer is responsible for his connection (in a civil case remember - no point compairing this to a child porn download - criminal Vs. civil).

[Kymmy]

Nothing to do with UK law...it's a civil claim so innocent till proven guilty is thrown out of the window in fact it's actually harder to prove your innocence in a civil claim than a criminal one as a criminal one has a standard or proof that needs to be met before you;re found guilty. You can bet for sure that the claimant will be waving VM's T&C's in front of the judge which the judge will not throw out but will include in the case as contractual proof that you were supposed to secure your own network....

Originally Posted by whydoIneedatech

They kind of cover your obligation here with regards securing your network


http://allyours.virginmedia.com/html...ble/terms.html

Terms and conditions for your residential customer service agreement

D Using our services

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, or with getting our services without our permission, and to fully repay us if we suffer any costs or losses of this kind. This also applies if you do not meet your responsibilities under this section D.

Fairly clear and points the finger directly at the customer.

---------- Post added at 18:54 ---------- Previous post was at 18:53 ----------

Originally Posted by Kymmy

Nothing to do with UK law...it's a civil claim so innocent till proven guilty is thrown out of the window in fact it's actually harder to prove your innocence in a civil claim than a criminal one as a criminal one has a standard or proof that needs to be met before you;re found guilty. You can bet for sure that the claimant will be waving VM's T&C's in front of the judge which the judge will not throw out but will include in the case as contractual proof that you were supposed to secure your own network....

That is the point of my post in a Civil Court your more likely to be found guilty.

[Kymmy]

Originally Posted by whydoIneedatech

That is the point of my post in a Civil Court your more likely to be found guilty.

I'd have used the word liable more than guilty as you'd be liable to pay compensation...

Originally Posted by Kymmy

I'd have used the word liable more than guilty as you'd be liable to pay compensation...

I was forgetting it was a Civil court we were talking about, so liable is correct.

[cook1984]

Originally Posted by rossdagley

Where (in UK law) does it state, or where has a precidence been set, where an end customer is responsible for his connection (in a civil case remember - no point compairing this to a child porn download - criminal Vs. civil).

There is currently no president in UK law for this, but rulings in Europe (notably Germany) so far have suggested that having an insecure wireless network is a valid defence. It is most likely acceptable in the UK too - people have been prosecuted in the past for using unsecured wireless networks without consent so it appears to be similar to someone entering your home via an unlocked door.

It's also worth baring in mind that WEP is not secure - it can be broken in a few minutes. Some equipment only supports WEP, and it's difficult to see how a court would rule that someone who set up WEP security and was hacked would then hold them liable.

You would also not legally be liable for failing to secure your network. If someone steals your car and commits criminal damage while joyriding, you are not liable for the damages because you didn't fit an immobiliser. If someone uses your photocopier to copy pages from a copyrighted book, again you are not liable - they are.

Originally Posted by Kymmy

Nothing to do with UK law...it's a civil claim so innocent till proven guilty is thrown out of the window in fact it's actually harder to prove your innocence in a civil claim than a criminal one as a criminal one has a standard or proof that needs to be met before you;re found guilty.

In civil law it is a balance of probabilities, i.e. they need to prove there is a 51% chance or more that you did it. Having dealt with this type of situation before in Small Claims Court (which uses the same system) I can assure you that judges do not simply rule based on some flaky evidence, especially if you have a reasonable argument as to why it wasn't you.

Think about what you are saying for a moment - I could sue anyone for copyright infringement of something I made up, produce a doctored screenshot or two of uTorrent with their IP address (or just frame their IP address, also trivially easy) and force them to give me money.

[Kymmy]

Originally Posted by cook1984

Think about what you are saying for a moment - I could sue anyone for copyright infringement of something I made up, produce a doctored screenshot or two of uTorrent with their IP address (or just frame their IP address, also trivially easy) and force them to give me money.

Very true, probably why they'd have at least some IT expert to swear that the logs is correct and probably confirmed by VM's own logs...

I think that's the major problem here is that the letters are very light on information as to how they've got the IP's and yes the UK does need a court case where the defendant actually shows up and defends themselves thus all the evidence will have to be shown..

[Fairway]

Can I ask a dim question, if someone was using a modem that is not Vm's with all the trimmings and download the game who would get the letter?