Elite Internet libel action

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Elite Internet libel action Ian Bell 12/11/95 12:00 AM
As some of you may have seen in the national papers, it looks like I am
on the receiving end of a High Court legal action that could make legal
history. Here is a copy of the Writ, I'd be grateful for any comments.
IN THE HIGH COURT OF JUSTIC                     1995 -B No 2536

B E T W E E N :

                        DAVID JOHN BRABEN               Plaintiff
                                - and -
                        IAN COLIN GRAHAM BELL   Defendant

                        WRIT OF SUMMONS

[Stamped by Supreme Court
 of Judicature, Action Department
 Central Office 24 Nov 1995]                            

TO THE DEFENDANT, IAN COLIN GRAHAM BELL, of 16, The Mallards, River Lane,
Cambridge CB5 8HU.

THIS WRIT OF SUMMONS has ben issued against you by the above-named
Plaintiff in respect of the claim set out overleaf.

Within 14 days after the service of this Writ on you, counting the day of
service, you must either satisfy the claim or return to the Court Office
mentioned below the accompanying ACKNOWLEDGEMENT OF SERVICE stating
therein whether you intend to contest these proceedings.

If you fail to satisfy the claim or to return the Acknowledgement within
the time stated, or if you return the Acknowledgement without stating
therein an intention to contest the proceedings, the Plaintiff may
proceed with the action and judgement may be entered against you
forthwith without
further notice.

Issued from the Central Office of the High Court this 24th day of
November 1995.

NOTE - This Writ may not be served later than 4 calendar months (or, if
leave is required to serve out of the jurisdiction, 6 months) beginning
with that date unless renewed by order of the Court.

        Directions for Acknowledgement of Service are given with the
accompanying form.

                                STATEMENT OF CLAIM

1. Between late 1982 and September 1984 the Plaintiff and the Defendant
devised the idea and wrote the software for a computer game entitled
"Elite". At all material times thereafter, the Plaintiff and the
Defendant were the joint authors of Elite and accordingly joint owners of
copyright therein.

2. During late 1988 the Plaintiff commenced work on creating the computer
software for a sequel to Elite, hereafter referred to as "Frontier: Elite

3. On or around 20th September 1988 the Plaintiff and Defendant agreed
upon the terms set out in a written agreement, which was executed by both
parties on 28th April 1989, which purported to define the parties rights
and liabilities in relation to Elite, Frontier: Elite 2 and any additional
rights accruing in relation to either game or any sequel thereto.

4. Thereafter the Plaintiff developed the idea and wrote the software for
Frontier:Elite 2. This computer game was released in or about October
1993 and achieved substantial commercial success. Thereafter, the
Plaintiff devised and wrote the software for a further game, entitled
"Frontier: First Encounters", which was released during April 1995, and
has already enjoyed substantial commercial success.

5. On a date unknown prior to 17th August 1995 the Defendant falsely and
maliciously wrote and published of the Plaintiff the defamatory words set
out at paragraph 7 below. The said publication took the form of written
answers in an interview style format which was published by the
Defendant on the Internet by sending the answers by way of Electronic
Mail ("E-Mail") to a Mr Michael McCarthy. Thereafter, on or around 17th
August 1995 Mr McCarthy published the interview on a Web Site entitled
"Games Domain" forming part of the World Wide Web on the Internet under
reference number http://wcl-rs.bham.ac.uk/gdreview/opinion/iview003.html.

6. The publication of the interview on the said Web site enabled the said
interview to be read by anyone in the world who has access to the World
Wide Web on the Internet. The Plaintiff's best estimate is that, at the
date of publication, some 20 million persons worldwide could access the
interview through the Internet.

7. The defamatory words complained of were as follows:

(i) In an answer to the question

"What was your involvement in Frontier: Elite 2? What did you think
of that game as a whole, and what do you predict for David Braben's
new company, Frontier Developments?

the Defendant wrote

"I've not actually seen F:E2. I was expecting DB to send me a copy but
he never did ..."

(ii) In answer to the question

"Why is there a dispute between you and David Braben over Frontier:
First Encounters?"

the Defendant wrote

"...he's used materials which are our joint copyright while claiming them
to be entirely his. I really can't see why he refrained from the simple
courtesy of putting "Elite elements copyright Bell and Braben, used with
permission of the authors" on his Frontier titles. The legal issue here
is that he's made a fraudulent copyright claim. Morally, he's not giving
credit were credit is due, either for the sake of self-aggrandisement or
to somehow try and erode my joint ownership of the materials.... He also
stopped paying Chris Sawyer his royalty for writing PC
 "F:E2". ... The lesson I've learnt from this is that I'm a poor judge of

8. In their natural and ordinary meaning, the words pleaded at paragraph
7(i) above meant and were understood to mean that the Plaintiff wrongly
failed to send the Defendant a copy of Frontier: Elite 2.

9. In their natural and ordinary meaning, the words pleaded at paragraph
7(ii) above meant and were understood to mean:

(i) that the Plaintiff had used materials which were the joint copyright
of the Plaintiff and the Defendant while wrongfully claiming them to be
entirely his;

(ii) that, in relation to the elements of Elite which were used in
Frontier:Elite 2 and Frontier: First Encounters, the Plaintiff had failed
to publish an acknowledgement of the Defendant's rights in Elite;

(iii) that the Plaintiff had made a fraudulent copyright claim against
the Defendant knowing or having reason to believe that he was entitled to
make the claim;

(iv) that the Plaintiff acted in a dishonest fashion in making the claim
referred to in the preceding sub-paragraph;

(v) that the Plaintiff had not given the Defendant copyright credit where
the Defendant was entitled to such credit;

(vi) that the PLaintiff;s motivation in failing or refusing to give the
Defendant credit was a desire to improve his own reputation or an attempt
to erode the Defendant's rights;

(vii) that, in his dealings with the Defendant, the Plaintiff was
motivated by the pursuit of self-improvement and/or a desire to injure
the Defendant's legitimate interests;

(viii) that the Plaintiff had failed or refused to ceased to pay Chris
Sawyer his royalty entitlements;

(ix) that, by reason of the matters pleaded in the foregoing
subparagraphs, the Plaintiff was untrustworthy and/or unreliable in his
dealings with the Defendant and Chris Sawyer.

10. Further or in the alternative, by way of innuendo the said words
meant and were understood to mean:

(i) that the Plaintiff is an untrustworthy character in his dealings with
the Defendant;

(ii) that the Plaintiff is unreliable in his dealings with the Defendant;

(iii) that the Plaintiff does not comply with his legal and moral
obligations in relation to copyright and payment of royalties;

(iv) that the Plaintiff has been dishonest in his treatment of and/or
dealings with the Defendant and/or Mr Chris Sawyer.

                PERSUANT TO R.SC. ORDER 82 RULE 3 (1)

(I) the Plaintiff repeats paragraphs 8 and 9 above;

(ii) the Plaintiff will ask the Court to infer that those persons who
were likely to read the said words would expect the Plaintiff to have an
obligation (a) to acknowledge that the Defendant was a joint
owner of the copyright in Elite, (b) to pay Chris Sawyer the royalties
due to him, and (c) to act honestly and fairly in relation to the
copyright in Elite.

11. By reason of the publication of the said words the Plaintiff has been
seriously injured in his character credit and reputation and has been
lowered in the estimation of right thinking persons generally.

12. In support of his claim for aggravated damages, the Plaintiff will
rely upon the following facts and matters:

(i) the Plaintiff will invite the Court to infer from all the
circumstances that the Defendant has published defamatory words which the
Defendant knew or ought to have known were untrue or in circumstances
were the Defendant did not care whether they were true or not;

(ii) the Defendant has failed to publish or offer to publish an ap[ology
despite the letter dated 30th October 1995 from the Plaintiff's
solicitors inviting him to do so;

(iii) the Plaintiff will invite the Court to infer from all the
circumstances that the Defendant knew or ought to have known that the
recipient of the defamatory words was likely to publish the words on
a Web Site on the Internet, and accordingly that the interview was likely
to be made available to many millions of persons worldwide on the

13. Unless restrained from doing so by his Honourable Court, the
Defendant intends to publish the said or similar libels of the Plaintiff.

AND the Plaintiff claims:

(1) damages

(2) an injunction to restrain the Defendant, whether by himself, his
agents, or otherwise howsoever, from further publishing the said or any
similar defamatory words upon the Plaintiff.

This Writ endorsed with Statement of Claim was issued by Messrs Walker
Tomaszewski, of 79 Gloucester Avenue, Primrose Hill, London NW1 8LB,
solicitors to the said Plaintiff, DAVID JOHN BRABEN, whose address is
Saxon Farm, Longmeadow, Lode Cambridge, CB5 9HA

ian b

Elite Internet libel action Big Ears. 12/15/95 12:00 AM
Graham Wilson wrote:
> Don't automatically rely upon this tactic. When you seek your first
> extension ask the Master's views on the possibility of further
> extensions.

You will probably see a different Master every time until the proceedings
become more technical.  Therefore it is difficult to know why a quick word
by one Master (have you seen how quickly time summons are dealt with ?)
will have much influence upon another Master.  Masters are fairly
independant and always make up their own minds themselves.

Graham is correct about not deliberately delaying preparation of your
Defence, but please do remember extra time will always be available as the
High Court does try to be fair and to give all Defendants time to prepare a
good and robust Defence.  No time summons is effective refused because if
the Master thinks the Defence should be served without further delay, the
Defence is NOT required immediately.  The Master will then make an Order
that the Defence be served in a period not shorter than 14 days.  He made
even specify the period as 28 days.  Thus you effectively have the time
extension you sought.

Big Ears

(a fan of Master Hodgson)

Spare a minute to think about those sleeping on Britain's
frozen streets this Christmas and those in temporary
accommodation having no proper "normal home".

Elite Internet libel action Big Ears. 12/16/95 12:00 AM

I enjoyed reading your last posting and would welcome many more of your
revealling insights.

Happy Christmas

Big Ears.

Spare a minute to think about those sleeping on Britain's
frozen streets this Christmas and those in temporary
accommodation having no proper "normal home".