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DRAFT Particulars of Claim

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DRAFT Particulars of Claim IN THE HIGH COURT OF JUSTICE CLAIM NO. HC11_____ CHANCERY DIVISION INTELLECTUAL PROPERTY BETWEEN: (1) TWENTIETH CENTURY FOX FILM CORPORATION (2) UNIVERSAL CITY STUDIOS PRODUCTIONS LLC (3) WARNER BROS. ENTERTAINMENT INC. (4) PARAMOUNT PICTURES CORPORATION (5) DISNEY ENTERPRISES, INC. (6) COLUMBIA PICTURES INDUSTRIES, INC. (the members of the Motion Picture Association of America Inc., on their own behalf and on behalf of all other companies that are controlled by, controlling of or under common control with such members (together “the Group Companies”) that are the owners, or exclusive licensees, of the copyright in films and television programmes) Claimants -and- DAVID HARRIS Defendant ________________________ Draft/PARTICULARS OF CLAIM ________________________ 1. The Claimants are members of the Motion Picture Association of America Inc. and carry on business in making, distributing or otherwise commercially exploiting motion pictures and television programmes. They sue in a representative capacity on behalf of themselves and on behalf of all other companies that are controlled by, controlling of or under common control with such members (together “the Group Companies”) that are the owners, or exclusive licensees, of the copyright in films and television programmes. 2. For some time a website known as Newzbin has operated. It is directed to members of the public in the United Kingdom and has a very large number of members who use its services. Its sole purpose is to make available to its users unlawful copies of copyright works including (but, for the avoidance of doubt, not limited to) movies and television programmes. 1 3. The Claimants commenced an action (“the Newzbin action”) against Newzbin Limited, the company operating the Newzbin website, on 25 November 2008 (Case No. HC08C03346), which was tried by Kitchin J on dates in February and March 2010. 4. In the Newzbin action: (1) Newzbin Limited was represented by the Defendant, a barrister, on a direct access basis. (2) The Defendant was responsible for settling the statements of case for Newzbin Limited. (3) The Defendant prepared the evidence for Newzbin Limited. 5. Further, as emerged during the course of the Newzbin action, the individual who uses the pseudonym “Geeklawyer” is the Defendant. The Claimants rely on the following facts and matters: (1) The following evidence which emerged in cross-examination of Mr Hurst on day 2 of the trial of the Newzbin action (see the extracts from the transcript in Appendix 1, at page 87, lines 10-20 of the transcript for that day): Q. Over the page to 1240, who is Geeklawyer70? A. I don't know who Geeklawyer70 is. Q. You don't know who Geeklawyer is? A. No. Q. Where did you get this from then? A. This is from my lawyer. Q. So Mr Harris gave it to you? A. Yes, he did. Q. Is any of it stuff which is not generated by Mr Harris? A. Mr Harris generated all my evidence -- all my exhibits on my behalf. (2) The following tweets from “Geeklawyer” which appear on a document entitled “GeekLawyer on Twitter as at 9 Feb 2010” (Appendix 2): (a) "trying to write my skeleton: brain not co-operating. Damned broken brain." - 26 January 2010. The Defendant served his Skeleton Argument in the Newzbin action late at 22.15pm on 29 January 2010. (b) "No, I'm getting trial bundles delivered from t'other side." - 26 January 2010. The Claimants’ solicitors in the Newzbin action (“Wiggin”) prepared and sent trial bundles to the Defendant on that date. 2 (c) "A long way from opponent. Christ knows how I'm gonna get all this to court. More perils of not having instructing solicitors." - 26 January 2010. Newzbin Limited and the Defendant did not instruct solicitors until later in the Newzbin action. (d) "Nelson v Rye [1996] FSR 313. I need the text of para 337 re authorisation to infringe. Wld be MUCH appreciated" - 28 January 2010. That paragraph of this authority was referred to at paragraph 13(iii) of the Skeleton Argument prepared by the Defendant in the Newzbin action. (e) "I am bollock knackered. Dear RCJ please don't phone me tomorrow. kthxbai. Wuv GL XXX" - 28 January 2010. The trial of the Newzbin action was floating from 1 February 2010, and the start date of that trial was confirmed on 29 January 2010. (f) "I could do with another month to prepare ;)" - 28 January 2010. As set out above, the Defendant served his Skeleton Argument in the Newzbin action the following evening; at this time the trial of the Newzbin action was floating from 1 February 2010. (g) "Bugger judges chancery division hassling me for my skeleton. Trial is on monday. damn" - 29 January 2010. The trial of the Newzbin action took place in the Chancery Division. The Defendant was late in serving his Skeleton Argument. On 29 January 2010 Wiggin notified the Defendant that the trial would commence on Monday 1 February 2010, as was confirmed by the Court that day. (h) "I did my cross-examination of expert yesterday. Bugger wouldnt cooperate but I had him" - 2 February 2010. The Defendant cross-examined the Claimants' expert witness in the Newzbin action on 1 February 2010. (i) "today I are mostly listening to opponents cross examination. It was a bit cross" - 2 February 2010. The Claimants’ counsel began his cross-examination of the Newzbin Limited's witnesses in the Newzbin action on 2 February 2010. (j) "left robes in hotel once. Judge permitted me to appear unwigged, he invited other barrister to appear likewise: prick refused" - 5 February 2010. The Defendant appeared unrobed during the trial of the Newzbin action. (k) "my closing submissions are tomorrow" - 7 February 2010. The Defendant would have been due to make closing submissions in the Newzbin action on 8 February 2010, although in light of submissions that he made on the morning of that day, the trial was adjourned until 10 February 2010. (l) "Oh my re-examination powers were WEAAAKKK today" - 8 February 2010. The Defendant re-examined the Newzbin Limited's witnesses in the Newzbin action on 8 February 2010. 3 (m) "amending Company Articles so that IRC, Twitter & Facebook are legit methods of holding board meeting. This may be a corporate first!" - 8/9 February 2010. The minutes of a meeting of the board of directors of Newzbin Limited, which are at page 1 of the exhibit to the Defendant’s statement made in the Newzbin action dated 18 February 2010 (Appendix 3), record at paragraph 1 that a resolution was passed that board meetings were to be by "any form of electronic communication including without limitation email, irc, Twitter or Facebook". (n) The following tweets concerning Wiggin (referred to in those tweets as "Wiggin Slimebags") (Appendix 4) that were made on 25 February 2010 at 17:21 GMT: “ha! ew I being spied on! You slimebags are sooo fucking obvious” and a minute later “ha! new I being spied on! You w**gin slimebags are sooo fucking obvious”. This was the same day as the Claimants’ supplemental Skeleton Argument was lodged at court and the first time that the Claimants and Wiggin disclosed to the Defendant their knowledge of the “Geeklawyer” tweets in that reliance was placed on one of those "tweets" as demonstrating that UK users of Newzbin were using the Newzbin website to download infringing content because “Geeklawyer” had tweeted that he had downloaded and watched a film the previous evening. (o) The letter from Wiggin to the then solicitors for Newzbin Limited (“Kirwans”) dated 25 March 2010 referred to, and enclosed, tweets made by “Geeklawyer” concerning the draft judgment in the Newzbin action before that judgment was made public (Appendix 5). Kirwans did not respond to this issue. The privacy settings on the “Geeklawyer” account were changed on that day. 6. In addition, as emerged from the cross-examination of Mr Hurst and Mr Elsworth on 2 February 2010 and 3 February 2010 respectively (see the extracts from the transcript in Appendix 1), the Defendant was a director of, and owned and controlled, Newzbin Limited. 7. Further to paragraph 6 above: (1) The Defendant was a director of Newzbin Limited from 17 December 2009 using the alias “David Bahan”. In this regard: (a) According to documents lodged at Companies House (Appendix 6), David Bahan has two different addresses, one of which is the same as an address given for the Defendant (28, Sillwood House, Brighton BN1 2LE). (b) Further, according to those documents [and the documents in Appendix 7], David Bahan has 3 different dates of birth (6/5/59, 1/12/63, and 4/11/64), one of which is the same as the Defendant’s date of birth (namely 6/5/59). 4 (c) At the meeting of the directors of Newzbin Limited held electronically on 9 February 2010, at which the Defendant was appointed as a director Newzbin Limited (Appendix 8), the Defendant was present and David Bahan was absent (such that they were not both present at the same time). (d) According to the directors’ report, signed by the Defendant, in the draft accounts for Newzbin Limited for the year ended 31 December 2009 (Appendix 9), David Bahan was appointed a director of Newzbin Limited on 17 December 2009 and resigned as a director on 15 February 2010, and the Defendant was appointed as a director on 15 February 2010 (such that they were not both directors at the same time). (e) Mr Elsworth, a director of Newzbin Limited until his resignation on 9 February 2010, stated during cross-examination that he did not know who Mr Bahan was and that Mr Bahan was appointed as a director without his knowledge (Appendix 5).
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