Mark's Musings

A miscellany of thoughts and opinions from an unimportant small town politician and bit-part web developer

The ACS:Law saga rumbles on


Here’s the text of the latest judgement:

You need to read it carefully to get an idea of what’s actually going on here, as it isn’t obvious. And this is by no means the end of it – all that this is is the judge’s decision not to allow ACS:Law and MediaCAT to discontinue the cases. So, eventually, there will be a real case in which the substantive matter will be heard. When that will be, I have no idea. I suspect that the actual case will be a bit of a damp squib, as it’s looking increasingly unlikely that MediaCat will actually bother to try to win, which will obviously mean the judgement going against them. What really matters is what happens after that, if the judge decides to award costs against them.

Some things are worth noting, though. Although the judge avoids using emotive language and does his best to adopt a neutral line throughout, he makes it absolutely clear that both MediaCat and ACS:Law have deliberately and knowingly misrepresented the facts in the documents they have sent out. A few sections in particular are worth repeating:

The letters assert Media CAT is a copyright protection society (which it is not) and the exclusive territorial licensee of rights granted by the copyright owner (which it is not).

In my judgment, in the light of the material now available and the parties’ submissions, the letter of claim does misrepresent Media CAT’s standing to bring proceedings.

The judgement also mentions the Barwinska case, as reported at the BBC and elsewhere, which appears to have been used by the plaintiffs to try to scare recipients into paying up. As it happens, the BBC report is inaccurate, as, contrary to what was widely reported at the time, it was a default judgement rather than a contested case. Nevertheless, the plaintiffs refer to it as if it were contested. The judge in this case points out that

Anyone involved in the Barwinska case must have known that the statement quoted in the news report, that the judgment was not a default judgment, was wrong.

From the judge’s comments, it’s hard to avoid the conclusion that the plaintiffs were telling deliberate porkies.

Paragraphs 99 and 100 (yes, it really is that long, and that’s not the end of it) are also worth quoting:

Media CAT and ACS:Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 26 court cases, a wholesale letter writing campaign is being conducted from which revenues are being generated. This letter writing exercise is founded on the threat of legal proceedings such as the claims before this court.

The information annexed to Mr Batstone’s letter refers to ACS:Law having “recovered” £1 Million. Whether that was right and even if so whether it was solely in relation to Media CAT or other file sharing cases I do not know. Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable. 10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so. Note that ACS:Law’s interest is specifically mentioned in the previous paragraph because of course they receive 65% of the revenues from the letter writing exercise. In fact Media CAT’s financial interest is actually much less than that of ACS:Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court. Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?

And, in paragraph 102:

The GCB episode is damning in my judgment. This shows that Media CAT is a party who, while coming to court to discontinue, is at the very same time trying to ram home claims formulated on exactly the same basis away from the gaze of the court. That will not do. I find that these notices of discontinuance are indeed an abuse of the court’s process.

The conclusion of this judgement isn’t in itself particularly noteworthy as it merely ends with the judge’s decision not to allow MediaCat and ACS:Law to discontinue their claims. Combined with the decision by both MediaCat and ACS:Law to cease trading in advance of the widely-expected ruling that they’re going to have to see this out to the bitter end, it’s looking more and more likely that this is going to end in a crushing defeat for them. But all that is yet to come. This one will run and run.