|Using UK small claims court for copyright infringements|
Can that be done?
We just caught someone selling our PDF file on Ebay. Silly boy. Ebay took it straight off, but the "even sillier" boy is not taking it lying down. We are going to have sooo much fun if he sues us for the £30 he paid for the file, but since he probably hasn't got millions to spend in legal fees, it will be more fun in small claims... But can we also use the small claims court to sue him for copyright infringement or does copyright law need to go through the county courts?
Anyone tried using the UK small claims court for a copyright case?
As I unserstand the Small Claims Court he can take you to it to claim back his money but you cannot take him to it to sue for copyright imfringement.
Small Claims covers debt recovery and personal injury claims... more or less.
The Small Claims people are generally very helpful, so ask them and/or the Citizen's Advice Bureau.
PS. Don't believe what people on messagebords tell you ;)
PPS. I don't think his case would stand-up in court, unless he bought you product on the clear understanding that he could resell it, ie. you granted him title.
We aren't worried about him suing us (which presumably would be in small claims, but would never get there if he takles legal advice) - it doesn't help him that he bought the file from us less than a month ago and described it in details on ebay saying how great it was.
But yes - I thought that small claims might not be able to handle copyright law. Oh well - he's going to have a mother of a legal bill if we counter claim and frankly, it'll be good publicity for our affiliates.
Read the fine print about the court's jurisdiction. I'm in the States so I don't speak with authority but I'll suggest that the court's jurisdiction might not be constrained by the nature of the claim for damages (car accident, you smashed my store window, you broke my vase, etc.) BUT INSTEAD by the amount being sued for.
Well, so much for pure speculation. All I'm suggesting is that you read the jurisdiction rules to see if they speak in terms of the "cause of action" or simply the amount in controversy.
There are specialty courts in most jurisdictions for matters such as tenancies, divorce, criminal, juvenile, and probate, but there tends to be one other court of generalized jurisdiction which then will break down along the lines of 'amount in controversy' and whether you get a trial by jury or a bench trial (judge only). Small claims tends to be judge only with a money limit, i.e., speedy economical justice in the people's court. In the people's court you can pretty much sue for anything that is not otherwise specifically assigned to another division of the judiciary.
Well - Here's interesting. He's planning on suing ME for stopping him from reselleng my game on Ebay.
he is caliming he has every right to resell "his" game second hand - as if it were reselling, say, a book. He's planning to sue me for UK£23.50 plus costs.
Anyone know of UK case law that he might use to back his case? He seems pretty confident. If he has a leg to stand on, it will be interesting as it kind of ruins my business model.
I think that unless anyone knows UK law here, best not to muddy the waters. Clearly it is copyright infringement if you apply common sense, but we are not using common sense here... only UK law.
Can anyone help out with the info?
Actually, at least in the US, he could very well have the right to sell the product second hand under the "first sell doctrine".
They would have to destroy all other copies, and I'm not so sure how it applies to a bunch of bits. But you just might want to consider that they could certainly have a case against you, and possibly even for mor than the 30 he paid you.
I'm not claiming that there *is* a case, I'm just saying that there might be more of a case than you think.
You can actually file a small claims case in the UK online [moneyclaim.gov.uk]. That's actually part of the UK's Court Service (at first glance it doesn't look like it though).
Looking at the details on the site, you can only use it to claim a specific amount of money owing to you, rather than make a general claim for damages. So in this case, you could possibly make a claim for the value of the goods unlawfully sold.
Apparently in Europe, the equivalent of the First Sale Doctrine is known as Exhaustion of Rights.
If you sold the work instead of licensing it, you just might be SOL. Of course, it might be clouded by other copyright issues.
I suspect the cheapest option would be to offer a refund for the PDF with a guarantee that they destroyed all copies.
The standard advice would be to check with an local IP attorney (or whatever you call them), but that would cost more than paying the guy off.
Even if you fight and win, you might find that it still would have been cheaper to just give back the money.
|The standard advice would be to check with an local IP attorney (or whatever you call them), but that would cost more than paying the guy off. |
To be honest, if he does have that right (and he may...) then paying him off doesn't fix my problem, since it undermines the business model fundamentally.
So - I guess it better get tested in court. Thanks for letting me know about "exhaustion of rights". I'll look that up. I can't see how he can "unmemorise" a password though, but I guess a court will have to find out. No point in giving away £20 when it means also giving away what has been a fair and honest internet business for 5 years in the bargain.
1. He can take you to the Small Claims Court. They accept anything. Seriously. Anything (subject to the legal exception on ££ limit allowed/personal injury/death). Try filing a case that your grandmother won't let you sell her ... and they'll accept it and send your grandmother the paperwork to prepare a defence
2. He will win unless you do some things, like preparing a lengthy defence document (very, very lengthy. The longer the better. The more irrelevant stuff you have in there the better) and attending in person.
3. You will lose if you don't turn up in person. Period. The "judges" who sit in these courts are small time guys who get peeved if you don't give them the respect due a Law Lord. They take it as a personal affront if you don't attend in person. Even if you've engaged counsel to act for you. If your grandmother doesn't arrange for special transport and a postponement of the hip operation she waited two years for - she'll lose and you will have full, unrestricted rights to selling her.
4. Small Claims Courts' sittings are pretty pathetic if you bring up any technical issues. eBay? You'll have to spend a few pages explaining it in your defence document. These guys are geriatric technophobes. And they have an inherent dislike for those smartasses who "get" the internet and stuff
1. Court staff are largely illiterate and incompetent. Feel free to assume that they'll post the documents to you within 2-3 days of the deadline to submit your reply (14 days). So have your defence pre-prepared.
2. Be ready to travel to the claimant's local court because that's where it'll be heard.
3. Disclose all documents. You bring a copy of eBay's T&C's to the court to help you answer questions and bingo they've got you! Why didn't you submit that with your defence?
4. Expect the court to be biased against businesses in favour of whom they see as "the small guy".
5. Find someone who's experienced at the SCC system. Very few lawyers are. An experienced SCC litigant is better than the best lawyer. I don't tolerate smartass customers "trying it on" because they are confident that businesses are more likely to pay up than go to court. I take them on, and usually win. Know the system inside out. Hope this helps [number7.demon.co.uk]
> 2. Be ready to travel to the claimant's local court because that's where it'll be heard.
Are you certain about this?
My experience, some years ago, suggests the opposite, that if you take action against me then you have to come to where I am.
|My experience, some years ago, suggests the opposite, that if you take action against me then you have to come to where I am. |
I certainly do not know about UK law, but in general it is the plaintiff's choice of where to file as long as the court has some claim to the juristiction. And the one that generally gets to decide is the judge where the case is filed, so no matter what, you are going to have to deal with that court anyway.
A private individual suing a business will get to have it at his local court.
Like, I said, the system is tilted towards favouring the "small guy". It doesn't matter if he's a multimillionaire and your business turnover is just enough to keep you above the poverty line; he's still the small guy and you are BAD because you run a business.
>>My experience, some years ago, suggests the opposite, that if you take action against me then you have to come to where I am.
>> Don't believe what people on messagebords tell you
Maybe you trusted the information from those half-wits who man many of the small claims courts' offices. :)
Small Claims court is time consuming, tedious and a complete waste of your time
I sued a client who paid me by cheque, then stopped the cheque (you can do that in the UK).
A rock solid case. It was held in the Small Claims court near me. The other guy, for reasons I will never fathom, traveled 400 miles each way to attend the hearing.
I won the case, but they could not award costs then (that may have changed now) and I got my money
If it happened again, I would not bother with the law, just forget the principal and walk away.
My advice is to wait till he actually files any papers at the Small Claims Court, then pay the £23.50. Given that there is a fee he has to pay to file papers, I doubt that it would ever get that far though, just sabre rattling!
The online service avoids the need for an actual court hearing, I believe it is all done on line, but is designed just for simple debt recovery, rather than copyright which probably would require a hearing.
My suing someone for £500 was not worth the effort, so £23.50 certainly isn't ;)
cornwall, whether it's worth the effort or not is an individual call. Practically and financially it may not be worth pursuing. It usually makes no sense whatsoever. Sometimes, though, a principle needs to be established (especially where you may have others who'll follow suit - excuse the pun).
And, yes, they have to pay the court fees but...the court then sends you papers where you can accept the claim or fight it. If you choose to accept the claim you'll end up reimbursing him for the fees.
If this guys does it, he'll be using County court. It is principal for both of us now, so my only "win" here is establishing legal proncipal - that an individual is NOT allowed to take my game download and resell it on ebay running roughshod over abundandly clear terms of business.
Looking at the exhaustion principal, it seems to me that this applies to goods - physical items like books and arguably DVDs but not to services and especially not to online services.
In particular, he never owned a file to sell - only a limited licence to use the electronic file for non-commercial purpose. I am not sure on what grounds he will be suing me, but I don't plan to defend our actions on the basis of the sales of goods act.
Anyway - I agree - I think there is much sabre rattling here and little legal substance. A little legal knowledge can be a dangerous thing - either for me or for him!
The Government site is a right **** to see what it costs him..
..but as far as I can see, if he fills in the on line form, and sues you for the cost of his purchase (ie a fixed amount) then it costs him a £30 court fee (as he is suing you for under £300).
You have to respond to that, otherwise you are liable for his original sum plus the court fee.
If you respond and counterclaim, it costs you nothing, but the matter is then transferred to the County Court for hearing.
After that the sky is the limit in legal fees. If you do get costs on winning the case, they are set in an odd way, whereby they do not actually cover the costs you have paid out.
At the point of going to the county court is is a game of chicken, he who blinks first looses all! Cannot see the guy going that far, but when principal is involved on either side , who knows?
Good Luck with it, its time consuming and annoying. (and I hate lawyers as much as twits like this who try it on)
>> I hate lawyers as much as twits like this who try it on
Me too. That's why you should take the time and trouble to teach them a lesson :)
>>You have to respond to that, otherwise you are liable for his original sum plus the court fee.
Not to forget the CCJ. Very important point. It will affect your business very badly. Do NOT ignore the claim or put it off. Deal with it immediately it arrives. Ignore the claim and he'll get a default judgement and it will go on your credit file even if you are willing and able to pay all the claim + costs.
[edited by: Macro at 1:46 pm (utc) on Jan. 18, 2005]
Well - I'll go for £5 grand and see where that gets me. After that I may as well go for broke, literally. If the company loses the case company arguably isn't worth continuing so actually, I have little to lose and everyhthing to gain.
As you say - I doubt he'll do it.
Check the maximum allowed.
I mean I'll set a legal defence budget of £5000 - he's suing me, not vice versa.
Thanks for all your UK input by the way guys.
It didn't twig.. you're the outfit just down the road from me.
I'm assuming that the no-resale is made clear in whatever license agreement is needed to get the PDF, but to be honest this sounds like barratry from the other party. I don't like to countenance spending large sums of money on legal fees, but I think your analysis of the threat to your business sounds feasible.
I've dealt with people like this before, and often they threaten legal action to try to frighten you off because they *know* they've done something wrong.
Incidentally, have you checked out the sellers previous auctions? Have they been doing this on a regular basis? They could owe you a substantial sum of money.
|Incidentally, have you checked out the sellers previous auctions? Have they been doing this on a regular basis? They could owe you a substantial sum of money. |
Good thought. If he does try anything I'll check that out.
I prefer "honourable local business" :)
A minor but vital point. There is not such a thing as UK Law. Scotland has a different legal system and many different laws.
Small Claims is one area of major difference
In either winning at SC does not set a precedent. Recovery of costs in England are very limited.
The Judge MAY allow
a the court fees
b Not more than £260 for legal advice if your claim includes an application for an injunction or order for specific performance
c Up to £50 per day each for you, and any witness you may have for loss of earnings due to attending the court hearing
d any additional travelling and overnight expenses.
e Up to £ 200 if the judge has given permission you permission to use a expert witness.