Plagiarism of Blog Articles

[AnnH]

The irony Andy, is that this person works in my profession. And the material he copied consists of a very large article about ...... copyright infringement.

My infringed article describes what copyright is, how to protect your work, and how the public can avoid infringing the work of others by observing some simple pointers.

I'm pretty sure the reason he didn't respond to any of my communications because he felt I'd give up and was unlikely to follow through on court action. But because I did, he's describing me as 'aggressive' and 'intimidatory' because I made reference to court proceedings in the letters (which of course I had to, I'm obliged to warn him of the consequences of failing to address the infringement - the whole point is to elicit a response aimed at averting such action). He is also accusing me of 'using the court system to make as much money as possible.' In fact the invoice I sent him was very modest for the volume of work copied (around 6 pages) and I warned him about the risk of the figure increasing if damages were awarded. He is saying my threats of legal action were aimed at causing maximum disruption and undue stress and that I am wholly unreasonable in seeking settlement.

He says that in my comments section I am offering the article to others for free - that is outright fabrication. Claims that I am publishing a free resource are extraordinary. Free to read on my blog, is not the same as free to take and claim ownership.

He goes on to say my content had become dissociated from its source (my blog) and that my claim for remedy is 'an abuse of the court system' because I was not making a charge for people to read it. More to the point, he's refusing to acknowledge that his unauthorized use of my content is 'an abuse of the law'.

He is still not prepared to name the forum where he says he got my material from. I know a lot of forums link to my articles, that is normal, legal, and encouraged. I'd be surprised if a forum owner allowed 6 pages of text to be put into a post, not that it is a defence even if that happened. No other party can waive away the rights of another. It's also an increasingly common excuse 'I got it from somebody else'.

Andy - am I permitted to write to the court in response to this? I feel his description of my character and his claims that I offer the content for free is going too far. He refused any attempts at dialogue, pushing me into a corner, then asserted that I suffer from poor character when I acted in the only way I could.

[AndyJ]

Hi Ann,

That is indeed ironic. I assume that this person is not being advised by a solicitor since the arguments he is advancing are clearly not going to impress the court. In one respect that is a shame, since I would hope that a legal advisor would advise him of the hopelessness of his case and urge him to settle.

As for his characterisation of your conduct so far, since the case will be decided just on the facts of the alleged infringement, I would say there is little to be gained by responding at this stage. The only time the conduct of the parties becomes relevant is at the point that additional damages are being considered. As you appear to have followed the correct protocols I don't think you need to justify your conduct. He, on the other hand, failed to engage with you seriously in the early stages, meaning that the subsequent steps you have taken were both justifiable and proportionate. By their nature threats of court proceedings will usually antagonise individuals who have a poor grasp of the law around the action they are accused of, and even less experience of how the courts operate. These same people usually fail to understand what strict liability means and tend to resort to the 'it's not fair' response, whereas in fact fairness tends to be the primary reason for bringing the action in the first place, rather than the financial aspect. Put simply, if society didn't think that defending a person's creative rights was important, we wouldn't have a law of copyright.

As far as I can see the idea of alternative dispute resolution (ADR) (ie arbitration or mediation) has not been proposed by either side. Usually the courts like to see that this avenue has at least been considered and so you might wish to formulate you arguments for why you have not suggested this. Clearly his early behaviour in ignoring your correspondence and not even considering early settlement prevented any useful dialogue on the subject at that stage, and his attitude more recently seems to rule out a positive state of mind on his part, which would be a necessary precursor to productive ADR. His failure to enagage with you in any meaningful way at any stage has convinced you that any talk of ADR would merely be used as a further delaying tactic. I hope I am not putting words in your mouth

[AnnH]

Hi Andy, thank you so much for the reply. I think I just needed to have a little rant about what I feel are needless statements on the part of the defendant, given my efforts to encourage him to settle and mitigate the possibility of a larger loss later on.

Regarding mediation, when I filled in the claim paperwork back in the summer and prepared the Particulars I did state that I would be willing to use the services which are offered by the small claims track. In his defence paperwork, the defendant closed by saying that he would be willing to engage with that.

I am a little unclear as to whether mediation only becomes available if or when the court issues a directions questionnaire, where the option is apparently raised on the form. I don’t know if we will even receive a directions questionnaire, or if the judge will simply settle the case on his own without an in-person hearing. Asking the court what to do is no simple matter given how many weeks it took to find out that a defence had been filed!

All that said, I think it unlikely that an agreement could be reached during mediation for the reasons you state. There is a lot of resentment on the defendant’s side which may impede useful dialogue.

[AnnH]

I've just found the mediation details in the IPEC small claims track guide:

"The Small Claims Mediation Service is free. It is conducted by telephone. Parties can also mediate through the Small Claims Mediator without speaking to each other if they prefer. Mediation can take place at any time from issue of the claim up to 10 working days before the final hearing of the case. To arrange this call: XXXX XXXXX."

Confusingly on the specific mediation page (https://www.smallclaimscourtgenie.co.uk ... n-service/) it states that it is arranged after directions questionnaires are sent out, the box is ticked by both parties and the court then gets in touch to arrange the mediation.

[AndyJ]

Hi Ann,

There is no need to wait until the Directions Questionaire arrives, if you would like to give mediation a try. In fact the earlier you start down that route, the better since setting up a mediation session can involve even longer delays than you have experienced with the court. The website you linked to in your last posting gives a fair summary, as far as I can see, of all the main aspects of the process. However be aware that the site is not accredited by HM Courts and Tribunals, and that you should use the gov.uk/ipo website to set up the mediation. Also, other than making an initial inquiry, I suggest that before going ahead and booking a session, you might wish to double check with the other party that they are willing to give it a try.

If/when you have something under way with mediation, let the Court know so that they can put things on hold. This is to avoid unnecessary work on the case which may not be needed if the mediation is successful and you are able to settle.

Just one word of warning. Although I don't wish to denigrate mediation, its ethos is largely about seeking a compromise rather than justice.

[AnnH]

Thank you Andy, that is very helpful. I don’t really want to go down the mediation route for the reasons already stated, and as you say it can cause yet more delays. But I feel something of an obligation to. I’ve been told elsewhere that the court expects it and may look poorly on me if I refuse dialogue, and the defendant has said in his defence summary that he would be willing to go down that path.

That said, I don’t think it will achieve anything because I’m not prepared to simply revert to the original invoice now that I have invested countless hours in bringing the case. I think the best offer I could consider making to the other side is the value I placed on the claim paperwork at the outset (which was the invoice x3 as being a recognised starting point). If he settled at that level he would have no further costs to pay and he would not risk the judge increasing quantum, which may be a distinct possibility in light of flagrancy.

I would see the mediation interview as more of an opportunity to explain to the defendant why we ended up at this point and how the figure was calculated. Given his complete lack of interest during the pre-action phase I think any significant compromise on my part is too much for him (or the mediator) to expect.

I’ve been told that the results of the mediation discussions are not transmitted to the judge, so any reasons for failing to move forward would not be brought into the hearing.

Lastly, I am surprised that his defence is even being considered, given that he failed to notify me that he was submitting a defence. That has caused considerable delays and further wastage of my time writing letters to the court to try to find out the status of the case. I did raise that in writing with the court clerk a few days ago but I have not had a reply.

[AnnH]

Andy, please forgive me but I have another question and I would be grateful for your opinion.

I’ve had time over the weekend to properly digest the Defence. It is nonsense, filled with the usual excuses and more besides. The defendant is also demanding proof that I have charged for the infringed piece of work in order to justify my issuing him with an invoice. He is asserting that because I do not (in his view) normally charge for my articles then I cannot reasonably apply a charge to him.

As I understand it, an originator has every right to insist on payment for their work whether or not it has been sold in the past.

I can in fact offer proof that I have charged for that very same feature – an infringement case in fact. But in doing so I would be supplying the defendant with names, addresses, email data, and financial details involved in the transaction. I’m reluctant to do this unless ordered by the court. Should I ignore his request for evidence?

Whilst I was initially open to mediation I have now entirely changed my mind. Our views sit at opposite ends of the spectrum and I see no prospect of reconciliation. Then there are the unnecessary delays he has caused throughout the process. These delays have been detrimental to my business since I was due to launch my new re-branded website last week and I can’t as yet because I presume the judge will want to go online to see the infringed article exactly as it appears in the original environment from where it was copied. I'm not sure if the Judge would be prepared to rely on the screenshots. I’ll have to continue paying for my old hosting and also my current development platform where the new site will have to sit on hold until the case is determined. As yet, the judge hasn’t even seen the case file.

I will put my reasons for refusing mediation to the court and frankly I don’t care if they penalise me for it.

[AndyJ]

Hi Ann,

Don't worry, there is no requirement for you to justify your fees at this stage. Since he is apparently unwilling to settle with you at the moment it's of academic interest anyway. The court will, in due course, probably want to hear how you arrived at fee, but unless the amount is clearly unreasonable, I don't think you will face much pressure from the court to justify your fees. Take a look online to find examples of fees for freelance writing/photography to provide some context for your fees. Places like the Association of Photographers and NUJ Freelance Fees Guide are useful starting points, but you may find others more relevant to your particular articles.

Also, if you find your determination flagging at any stage, raise your spirits by reading the account of a case brought by Jonathan Webb who specialises in aerial photography, against a company who infringed his copyright photographs on a grand scale and then tried to duck their liability. You may even note a few similar responses from the defendants in that case.

I have already covered my reasoning for why you might not wish to waste more time and effort on mediation. Once again, I don't think the court are likely to pursue this issue to any degree, provided that you did at least consider the possibility and then discounted it.

[AnnH]

Andy, thank you so much for your extremely helpful advice. I did indeed find the case you highlighted interesting and it does demonstrate how irrational some infringers can be. I can’t fathom how anyone could allow a case to go to court when they are undeniably guilty - their outlay will be very much higher than if they had simply paid the modest figure being asked at the start. And in my case it was modest, at the lower end of three figures.

My infringer is exhibiting a blame complex in that he feels I am the one at fault for putting my work online and then expecting payment for it. He is resentful that I was not satisfied simply with the removal of the work and an apology based on ‘innocent infringement’. He is also manipulating his view of copyright, very naive given that he is a photographer.

I'll now await directions from the Court.

[AnnH]

Can anybody confirm if evidence from the Wayback Machine can be presented to a court in the UK? I understand that Wayback material is admissible in the USA but I haven’t been able to find anything on the Internet about its use over here.

The reason I ask is that the defendant in my case has accused me of offering the infringed article for free in the comment section attached to the article which he stole. That is a complete fallacy and a vexatious statement. I feel it has put me into the position of having to disprove that allegation.

Obviously the court is in possession of screenshots (of both the article and its reader comments) which I took from my website the day I found out about the infringement. It is clear from the comments therein that I have made no such offers to give the article away (the defendant can only be referring to one of the commentators saying she will link to my article). I feel this particular defendant is trying to make things as difficult as possible for me as the case progresses. By using the Wayback Machine I can show the court the comment section exactly as it was when the infringement took place over a year ago, and it will match the screenshots in the Particulars.

[AndyJ]

Hi Ann,

Yes, evidence from the Wayback machine (the Internet Archive.org) has been used in many previous cases* in the UK. That said, if the defendant is saying that you previously offered the article for free, the onus is on him to provide evidence to support that statement, not the other way round. It is hard for you to prove a negative. However if you can produce Wayback machine screenshots that show there was no such offer on the forum and at that time he alleges, then clearly he would be wise to withdraw that allegation at an early stage.

*eg: National Guild of Removers & Storers v Christopher Silveria [2010] EWPCC 15 paragraph 33,
Gama Healthcare Ltd v PAL International Ltd [2016] EWHC 75 (IPEC) paragraph 41 and,
Argos Ltd v Argos Systems Inc [2017] EWHC 231 (Ch) paragraph 50.

[AnnH]

Thank you so much for that Andy, very useful indeed. And also for the reminder that it is up to the defendant to prove his assertions, rather than the claimant disproving them. I think he's just trying to wind me up, I'll try not to let it affect me so much.

[AnnH]

I now have a trial date through from the court for mid-February.

Directions have noted the defendant’s late acknowledgement of service. My request for Judgement in default has been refused, citing Unilever PLC v Pak Supermarket [2016] EWHC 3846 IPEC.

I’ve been asked to deliver to the court and to the defendant all of the documents on which I intend to rely appearing. I’m guessing this will not be the documents included in my Particulars, but anything additional I now feel should be examined.

I also know which Judge will be hearing the case.

[AndyJ]

Hi Ann,

Thanks for the update. It must be a relief to see some progress at last. I'm not familar with the case of Unilever PLC v Pak Supermarket [2016] EWHC 3846 IPEC (which doesn't appear on BAILII) but I think that it will probably have involved the defendant filing a defence late together with a plausible reason for the lateness. Unilever have used the IPEC on a number of occasions and so I suspect that case may have been about trade mark infringement.

[AnnH]

It is a relief, Andy. In a sense I'm pleased it's going to trial as there will be a more thorough examination of the facts.

In the Webb vs Cardiff Steel case I note the claimant was able to obtain additional costs for his time at an hourly rate. That was raised briefly in this thread so it's something I will ask the judge to consider when I respond to the Directions. Bringing a case has been more time consuming than I anticipated in terms of reviewing the rules and filling out forms and particulars etc. I intend to go to the trial which is a business day lost, though I realise it isn't mandatory to attend.

May I ask another question please Andy. In the Directions I have been told I can supply the Court with any further evidence relevant to my claim. I will supply evidence that I have charged for this same body of work in the past (another infringement, unsurprisingly) and I can also supply evidence where I have refused to allow publication of the work when asked. Obviously those documents contain names and email addresses of the parties concerned. I’ve been told I have to send copies of everything to the defendant as well, and my thought is that I should blank out this kind of personal data on the defendants copy - would that be correct?