Not a Good Week for Andrew Crossly

Andrew Crossley, Principal of Volume Litigation Specialists ACS:Law (NB Link may be down for reasons which follow) has not had a good week. Fortunately for me though his bad week gives me the perfect case-study to illustrate many of the arguments I have made in both of my books and in many articles in recent years.

Let's start with who ACS:Law are and what they do. They are a volume litigation practice - for a full explanation of Volume Litigation see my Computers & Law article or these earlier Blog posts - here, here, here and here. In short it is a system of litigation in which a number of small claims for copyright infringement are bundled together in a way that makes the recovery of damages economical. Thus up to 20,000 IP addresses are captured using automated software which looks for pre-determined file names or content such as "Pinball Wizard" or "Ministry of Sound" on popular P2P sites. These IP addresses are then bundled together into a single Norwich Pharma application (actually this step will become redundant under the Digital Economy Act - A DEA request may be made instead) which requires ISPs to reveal the customer details of the individual assigned that IP address at the time in question. Using this data the firm representing the copyright holder  (ACS:Law are the leading UK proponent following the withdrawal of Davenport Lyons) then sends out thousands of Part 35 letters offering to settle for a fixed sum of anything between £350 and £1000 per infringement. As many as 5000 letters may be sent at a time. As you can see if everyone paid £350 this would be £1.75m recovered for the minimal cost of paying for the IP address harvesting, one Norwich Pharma application and then a lot of stamps...

Unsurprisingly firms like ACS:Law attract a lot of ire. Many people like to categorise them as no better than organised criminals demanding money with menaces and many believe their scheme is a scam (see this forum discussion). It should first of all be made clear neither of these are true. What they are doing is completely legal and is not a scam. There is a separate question of morality but surely a lawyer's primary duty is to their client - this is what ACS:Law fulfils. If there is a question about the procedure on moral grounds this is something your MP should be looking in to. There are though massive problems with the procedure which I have written about extensively in my Computers & Law article. Generally though the main problem ACS:Law have is a public relations problem. People see them as bullying, inconsiderate and generally immoral.

Symbiotic Regulation in Action

In my 2007 book The Regulation of Cyberspace I introduced the concept of symbiotic regulation.  The basic principle of this is that regulation is a two-way process (a symbiotic process) between the regulator and the regulatee, and that in Cyberspace where greater communications options are open to individuals, allowing for the formation of micro-communities, people would react of unjust forms of control or regulation through a number of methods up to and including civil disobedience. In my book one such case-study was the eBay Live8 tickets response where community members disrupted ticket sales even though eBay threatened to terminate their accounts. Now though I may have a better case study. The 4chan community has decided to take direct action against ACS:Law for what they see as immoral actions. An ongoing Distributed Denial of Service Attack DDOS has prevented access to the ACS:Law website for several days. This was being perpetrated in clear breach of s.3 of the Computer Misuse Act 1990 which carries the potential penalty of a ten year prison sentence. Thus to sum-up what ACS:Law were doing was legal what the 4chan community were doing was illegal. The point here though is not who is legally correct but the effect of civil disobedience. The 4chan community see ACS:Law as being morally bankrupt hence their actions. Last week Andrew Crossly inadvertently escalated the actions of 4chan from being a nuisance to a problem. The whole story is told by The Register - I hope they don't mind me quoting extensively:
The events of the past few days may come to mean that ACS:Law boss Andrew Crossley's comments in a brief phone conversation last Wednesday are remembered as some of the most ill-advised in internet history. When The Register caught Crossley on his mobile, he singled out ACS:Law for extra punishment. "It was only down for a few hours. I have far more concern over the fact of my train turning up 10 minutes late or having to queue for a coffee than them wasting my time with this sort of rubbish," he said. Posts on 4chan show this was all the encouragement members needed to redouble the attack.
In redoubling their efforts 4chan members came across the details of several thousands of individuals who have been or still are subject to a claim from ACS:Law. Mostly these were customers of Sky Broadband or BT, two of the UKs largest ISPs. Acting irresponsibly (but completely within keeping of the "mob" mentality that is so often prevalent in large scale civil disobedience actions) someone made this information available via The Pirate Bay. There is some dispute as to how this data entered the public domain ACS:Law claim it was illegally obtained by a "hack" in breach of s.1 of the Computer Misuse Act 1990, 4chan claim it was left in an open directory by ACS:Law when they "made a bungled attempt to restart the site". It may never be clear which is true. What has happened though is that the UK Information Commissioner has launched an investigation of ACS:Law's security procedures which he feels may not have meet the requirements of the Data Protection Act and in particular Principle 7 that "appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data." 

The outcome at this point in time therefore is:

(1) The ACS:Law site is still offline at this time.
(2) ACS:Law have been the subject of intense and unflattering media scrutiny
(3) Their clients have similarly been subject to scrutiny in the media and the blogosphere
(4) They are subject to an Information Commission investigation.

Remember, as the law currently stands ACS:Law were doing something legal, 4chan something illegal. Despite this the major winners seem to be 4chan and others campaigning against ACS:Law. The major losers ACS:Law - This is the lesson of symbiotic regulation!