Is this right? In a free society?

Question

Davenport Lyons are threatening to issue proceedings against me. Allegedly, my 13-year-old son downloaded a game illegally. I have spoken to him, he didn't know he was doing anything illegal. He didn't install the game and never played it, so he derived no benefit from it. Davenport Lyons are claiming £565 from me. I'm a single mum with two children, now 14 and 4, struggling on benefits. There are no childminders to collect my daughter from school so my employment possibilities are limited. Why do Atari and Davenport Lyons need £565 more than I do? Is this how our legal system is organised? To allow predatory lawyers to trawl through records to persecute a child for a genuine mistake?

They have tried this money-making operation before until the country got sick of it, apparently:

http://torrentfreak.com/youre-caught-dow...

To add insult to injury, if I settle out of court and pay the minimum £10 a month they are prepared to accept, the total amount repayable is £656.00. In addition to this, I have to answer a detailed questionnaire and provide them with a statement of means to prove that I cannot afford their original, and in my opinion, extortionate, claim.

I felt that this should be brought to the attention of the public, don't you agree?

http://techdirt.com/articles/20080825/23...

http://www.eurogamer.net/forum_thread_po...

http://www.slyck.com/forums/viewtopic.ph...

http://www.slyck.com/forums/viewtopic.ph...

http://www.slyck.com/forums/viewtopic.ph...

http://technology.timesonline.co.uk/to

Answer 1

Why do they need the money more then you? Because like it or not your son broke the law. He didn't know? Pull the other one. Whether he used the game or not, he still downloaded it. That to me says he was going to use the game, or he wouldn't have downloaded it!

So tough. It sucks you have to pay that since you are struggling, but tough. If everyone had that excuse, then they would change the law wouldn't they as it would be pointless. Putting a sob story out there, doesn't change the fact he did something illegal. Why should you be any different to someone else who got caught because of your situation? Your situation doesn't make you so special you don't have to pay.

Perhaps you should keep an eye on your son from now on!

Answer 2

If you let them take you to court you may well be able to agree with the judge  the figure at £1 per week or even less. Assuming they want to appear in court because the publicity will be bad for them.

Also since your son is 13 and presumably the computer is his, their action should be against him rather than you.

I think your best bet is to go to the citizens' advice bureau where a lawyer will discuss what you can do. There is no charge for this.

In the meantime admit and sign nothing.  The lawyers get paid on retainer by the companies so they don't get any extra money for suing you.

At the moment they are only threatening to go to court. Whatever one thinks, a civil action (which this is) is almost a lottery regarding the outcome. This winning case depends on what the judge thinks is right and proper, not the lawyers.

If lawyers can settle out of court they are ahead of the game.

See the CAB lawyer yourself. Do not do fight this  alone unless you have experience.

I agree with the other posters that downloading copyright material is immoral and illegal. However;- how did he manage to download this game?  Did he hack into it or did someone let him have a copy?   And how did the company discover the download?

Your aim now is damage limitation.

.

Answer 3

You need to fix your links

Answer 4

Honestly, I read your post and thought you need to get a moral compass.  You seem to think that a "free society" means you can take what you want for free.  You also seem to think that being responsible for your (and your son's) actions is dependent on your financial situation... no money = no blame.  It's not who needs the money, it's the copyright infringement that's the point.

However, as much as you seem to feel that your son shouldn't be penalized for trying to steal a game (and that's what p2p downloading is, when you are deliberately avoiding paying for something that is NOT provided free of charge), I think that Davenport Lyons uses tactics that are more than questionable.  So, I suggest looking into the firm referenced on this site:

http://torrentfreak.com/alleged-uk-games...

He may not be willing or able to take your case, since it doesn't seem that your son is blameless, but he might be willing to at least send an email.  And just looking like you're ready to fight back might be enough to make DL back off.

Answer 5

I swear that there is something where children under the age of 14 could not be held responsible for their actions, as they were not able  to fully differentiate between right and wrong. This was reduced to 10, as an 11 year old was shown to know that what he did had been wrong, so was punished (it was murder i believe).

In your case, this Law that your son may have broken is part of a much more complicated piece of legislation, and the difference between right and wrong is much more grey than murder. I think that you could easily argue that in this case your son could not know that it was illegal, he did not hack a system, take anything from anyone (i.e. conventional stealing), all he did was press download. I think you could hold that up in court with a lawyer. Using common sense, doing what he did would not harm anyone else, depending on the exact circumstances (i.e. if it said "click here for free stolen software" this argument would not be valid)..

Furthermore, the case could be compared to being given stolen goods. Assuming he downloaded it from a 3rd party site, then it could be compared to buying stolen goods. However, so long as he didn't KNOW they were stolen goods, not his fault, it is the supplier. Therefore the company must sue the website he downloaded it off, not your son.

All said above is in my own humble opinion. My advice to you is to get a lawyer, and argue some of the cases above.

Answer 6

Hi.

I was reading something about Davenport Lyons quite recently. Games companies are using them to get prosecutions. And they are hitting the UK and winning cases .

(very strange if you ask me, even the record industry hasn't been that successful here)

QUOTE:

"A woman who put a copy of Dream Pinball 3D on a file-sharing network must pay £16,000 to the games maker and its lawyers.

Games maker Topware Interactive was awarded £6,086.56 in damages and £10,000 in lawyers' fees by the Patents County Court in London. Lawyers Davenport Lyons said there are more cases to come - the firm claims to have identified thousands of file sharers."

.........................................

You can read about it from the link pasted. And that is a pinball game that probably no-one has even heard of. They probably made more profit in court that day than the entire sales of the game (its absolutely ludicrous.)

This is a first for the UK and its not going to be the last. In all honesty your better off paying the £10 per month, than suffering the embarrassment of going to court and no doubt being in your local newspaper. And possibly getting fined 'thousands' of pounds. You 'might' win your case, but i personally would not take the chance. Unless you extremely clued up in such matters.

News story > http://www.theregister.co.uk/2008/08/19/...

Related story >

http://www.theregister.co.uk/2007/03/30/...

P.S. - WE DONT LIVE IN A FREE SOCIETY.

Answer 7

If your child is truly innocent, then get a lawyer and fight it (get the TV media to help too).

But remember this: It is a free society, but folks should get paid for their work (or their products). Thirteen is "old enough" to know right from wrong, but getting a "free" game is tempting.

Answer 8

Sorry to tell you this but your son is liable for theft or something along that line. The age where people can be sued is actually 10, but he cannot be put under a contract unless it was not an luxury item. As your son did not need the game for school/ work or anything of that sort then I do not now think he can be put under contract. However... I do not think your son was in a contract to start with.

Anyways its your duty as a mother to teach your kids of things like that. Ignorance of the law is no excuse... just ask the court to let you pay a couple of pounds a week.

Answer 9

How does a 13 year old not know he is doing something illegal. Ah nevermind it doesn't matter...

Is it right? Depends how you look at it. If your kid walked into the market and walked off with a bunch of stuff you'd be expected to pay restitution. I don't see the difference between that and online.

Answer 10

Let them try to sue  your 13 year old son.

It can't be done and if you do end up in court tell them all you have said here.

Also, if there was a charge for the game, a legitimate company would require a credit card # or some form of advance payment before allowing the download.

A 13 year old cannot legally be bound to a contract, they are just trying to bluff you!

Answer 11

I believe the link below is what you were trying to copy and paste. I read through it,specifically the claims aginst UK folks - and the short answer is this - it is a scumbag lawfirm who milked the German market dry and are on to Italy and the UK now - using legal letterhead and lawyer threats to black mail you into paying a sum of money that has neither been validated in court, a court finding and most importantly - zero audit of said activity your son apparently did.

It is a threat and nothing more. I would wait until a firm court order/notice has been sent and/or if you are served in person to attend a court hearing. Until then - its nothing more than arm twisting. Additionally - if it does go to court, there is no way they can justify the amount claimed as a "loss".

That is why these scumbags do not want it to go to court - for they need to prove a tort, computer audit of the file download, distribution, etc. to make the monetary claim they are making. Take note of why the German courts basically said bugger off "too many claims for too much money (over 3,700)" so all bets were off in Germany, hence their move to UK/Italy. Also interesting - Davenport is using the German court decisions as precedence for the UK - of which is legally null and void, i'e' UK courts haven't even made a decision as to the file sharing/theft to this specific case, if so - they clearly would use a UK decision to make said claims.

Heres a tid bit also - if they do actually go after you legally - I would be all over Atari, not the law firm - as a negative PR campaign. Atari NEEDS FAMILIES TO BUY THEIR GAMES. Since you are a Brit - look up the famous "McLibel" case, where 2 bartenders embarrassed McDonalds and their 20 lawyers so badly, McD's tried to do everything to get away from the case, even though a court found them "right".  

Answer 12

It does seem excessive, even for greedy lawyers.  At most, they would be entitled to the value of the software; it was downloaded, whether or not it was used, and there's no way to prove beyond doubt that it wasn't used.  Still, that's nowhere near the amount being demanded.