Law Students

Leaked E-Mails From DigiProtect & Davenport Lyons on Cease & Desist Letter Costs

By C. C.

Having forced tens of thousands of P2P users to pay up for costly pre-settlement notices, a number of European law offices and and anti-piracy companies suddenly find themselves on the other side of the gun: The German scene news site gulli.com asked local authorities to start criminal investigations against a well-known anti-piracy law office.

German news-outlet gulli.com has received information from inside DigiProtect/Davenport Lyons about so called ?Cease&Desist? letters, says WikiLeaks, going on:

?The most likely audience will be filesharers, who received a cease & desist letter by Davenport Lyons, ACS:Law, Kanzlei Kornmeier or any other lawyer, who works together with DigiProtect & Davenport Lyons. The leak happened through an unknown source from within DigiProtect / DavenportLyons.

The documents are the basis of the latest stories on gulli.com about Davenport Lyons/DigiProtect.

In this document, you can see correspondence of german lawyer Dr. Udo Kornmeier with Brian Miller from Davenport Lyons. The content of this fax is focused on managing: money. Who gets it, how much, and how is it all handled.

And in German:

(de) Das deutsche News-Portal gulli.com hat einige Information aus den Reihen von DigiProtect/Davenport Lyons in Bezug zu P2P-Abmahnungen erhalten. Sie ist am interessantesten fuer Filesharer, die ebenfalls von Davenport Lyons, ACS:Law, der Kanzlei Kornmeier oder jeden anderen Kanzlei, die mit DigiProtect zusammenarbeitet, abgemahnt wurden. Der Leak geschah durch eine unbekannte Quelle innerhalb DigiProtect / DavenportLyons.

Die Dokumente bilden die Grundlage der Artikelserie zu Davenport Lyons/DigiProtect auf gulli.com.

In diesem Dokument sieht man Korrespondenz zwischen dem deutschen Anwalt Dr. Udo Kornmeier sowie Brian Miller von Davenport Lyons. Der Hauptdiskussionspunkt des Faxes ist Geld. Wer bekommt es, wie viel und wie wird alles verrechnet.

Now the German edition of Britain?s prestigious Financial Times has picked the Gulli story up.

The issue at heart could not only derail current anti-piracy campaigns, but potentially even lead to disbarment of the lawyers involved with these cases.

Here’s what happened: Two weeks ago, an internal fax with details about the business of Germany’s anti-piracy company Digiprotect turned up on Wikileaks.org. The document was supposedly sent by German lawyer Udo Kornmeier, who has been assisting Digiprotect in hunting down thousands of German P2P users, to the U.K.-based law office Davenport Lyons, which has been doing the same thing in the U.K. with evidence provided by Logistep. Both Kornmeier and Digiprotect have publicly declined to comment on the authenticity of the document.

Digiprotect, Logistep, Davenport Lyons and even Kornmeier are well-known for their anti-P2P lawsuits, which typically work like this: A company like Digiprotect or Logistep logs the IP addresses of P2P users that share certain movies or songs. This type of evidence is then used to get ISPs through various legal measures to reveal the identity of these file sharers. Davenport Lyons or Kornmeyer then send out cease and desist letters complete with a pre-settlement offer. Pay 450 Euros, and we won’t sue you. The demand came from Davenport Lyons, hired by ?protection? companies in Europe, and which also fronts for DigiProtect in Britain. Davenport Lyons was fired by Atari after making a gross mistake by targeting a completely innocent UK husband-and-wife.

This type of enforcement for cash has been going on for years, and some companies involved have in fact started to use bar codes on their pre-settlement notices to more efficiently deal with thousands of claims. Critics have long suspected that rights holders and the companies involved use P2P as a sort of mass lawsuit cash cow, and in fact another leaked document recently revealed that suing a user for file sharing can be 150 times more profitable than legally selling your work to the same user. British consumer rights lobby Which? filed an official complaint against Davenport Lyons for its, ?campaign of letters alleging illegal filesharing,? said The Register.

The document states that “the whole project is kind of a joint venture where no party charges the other party with any costs.” The problem with such a set-up is that the pre-settlement offers are usually based on costs incurred by retaining a law office to pursue the claim. File sharers are asked to pay 450 bucks for a porn movie because it costs money to investigate their IP address and send them the cease and desist letter.

However, German law specifically states that these costs can’t be based on the success of the claim. In other words: In order to invoice file sharers for lawyer fees, these fees have to occur and be paid by someone no matter whether a file sharer pays up or not. Invoicing someone for costs that haven’t actually occurred could be seen as fraud.

That’s exactly what German lawyer Thomas Stadler believes to be going on here. He recently analyzed the work of Digiprotect and Kornmeier on his blog and concluded that it “violates existing laws.” Kornmeiers answer? He send Stadler a cease and desist notice, demanding to take down the blog entry in question. Stadler responded by asking other lawyers that have been defending file sharers for assistance, and he’s been compiling further evidence against the parties involved. I wouldn’t be too surprised if more documents make their way to Wikileaks as well.

Stay tuned.

[thanks to rinzewind, p2pnet, and Janko Roettgers via cc]

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Full post as published by Law Vibe on December 02, 2009 (boomark / email).