The UK High Court (Court 6) in central London today ruled that Golden Eye International, a firm that claims to hold numerous film copyrights and is linked with the UK’s Ben Dover porn brand, can pursue O2′s (Telefonica) broadband ISP customers to settle “suspected” cases of “illegal” internet copyright infringement (piracy). But its victory, which has set a new precedent, came with several crucial strings attached.
The outcome follows GoldenEye’s submission of a Norwich Pharmacal Order (NPO) for 9,124 internet connections earlier this month (here), which is a method used by many disgraced law firms (e.g. ACS:Law). Rights Holders usually track suspected piracy on public P2P networks by monitoring the Internet Protocol (IP) addresses of online users and an NPO then forces the ISP to reveal the related customer accounts.
Unfortunately Internet Service Providers rarely challenge NPO’s as to do so would be both costly and potentially controversial (ISP’s don’t want to be seen as defenders of piracy). Never the less a number of recent cases, not least the one that caused ACS:Law to collapse last year (here), have shown that both IP based evidence and related ‘pay up or else‘ schemes are prone to failure.
Judge Birss QC said during last year’s ACS:Law case (Feb 2011):
“Even if [an Internet Protocol address] is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement then encounters the Saccharin problem. It is not at all clear to me that the person identified must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so. Perhaps the holder of the account with the ISP has a duty to assist along the lines of a respondent to another Norwich Pharmacal order but that is very different from saying they are infringing.”
An IP address, assuming no other problems, could indeed identify the owner of a connection but they might not be the guilty individual. Today many of us share our broadband access out between friends, family and visitors. Likewise public WiFi networks, hotel internet, business networks and libraries all compound the problem. In some cases thousands individuals could be associated with a single IP.
To make matters worse an IP can be faked, hijacked, redirected or the ISPs log files might be slightly out of sync with the law firms and would thus return details for the wrong customers. Sadly this is the same data that the UK governments related Digital Economy Act (DEAct) will use when it begins sending out piracy warning letters (possibly before the end of 2012).
Sadly today’s ruling leaves much of that debate up to future challenges but does restrict how such claims can be handled.
Presiding Judge, Mr Justice Arnold, said:
“If one considers first the claim by Golden Eye and Ben Dover Productions, the claim for a Norwich Pharmacal order is one made by a copyright owner and its exclusive licensee, both of whom have been joined to the claim and will be joined to any infringement claims. Given the commercial background explained above, there is nothing particularly unusual, let alone objectionable, about the Ben Dover Agreement. The mere fact that the copyright works are pornographic films is no reason to refuse the grant of relief, since there is no suggestion that they are obscene or otherwise unlawful. Golden Eye and Ben Dover Productions have a good arguable case that many of the relevant Intended Defendants have infringed their copyrights. I am satisfied that they do intend to seek redress for those wrongs and that disclosure is necessary to enable them to do so.
In these circumstances, I conclude that the Claimants’ interests in enforcing their copyrights outweigh the Intended Defendants’ interest in protecting their privacy and data protection rights, and thus it is proportionate to order disclosure, provided that the order and the proposed letter of claim are framed so as properly to safeguard the legitimate interests of the Intended Defendants, and in particular the interests of Intended Defendants who have not in fact committed the infringements in question. This will require the draft order and the draft letter to be amended to address the concerns I have set out in paragraphs 121-138. In addition, it will be a term of the order that any claims against the Intended Defendants be brought in the Patents County Court.
If the Other Claimants were themselves making claims for Norwich Pharmacal relief, without the involvement of Golden Eye, then I would almost certainly reach the same conclusion. … It does not follow, however, that it is appropriate, when balancing the competing interests, to make an order which endorses an arrangement under which the Other Claimants surrender total control of the litigation to Golden Eye and Golden Eye receives about 75% of the revenues in return. On the contrary, I consider that that would be tantamount to the court sanctioning the sale of the Intended Defendants’ privacy and data protection rights to the highest bidder.
Accordingly, in my judgment, to make such an order would not proportionately and fairly balance the interests of the Other Claimants with the Intended Defendants’ interests. (I do not consider Golden Eye to have any legitimate interest separate from those of the Other Claimants for this purpose.) If the Other Claimants want to obtain redress for the wrongs they have suffered, they must obtain it themselves.”
In short, Golden Eye won its NPO, but on restricted terms. The court has also asked to hear counsel as to the “precise wording of the order and of the letter of claim“. Crucially the court also recognised that the subscriber should not automatically be assumed responsible for any copyright infringement on the internet connection they pay for.
Mike O’Connor, Chief Executive of Consumer Focus, said:
“Following four years of speculative invoicing this case sets an important precedent for the rights of consumers, particularly those who are innocent, and the responsibilities of companies seeking redress on behalf of copyright owners.
It is very welcome that the court has recognised the bill-payer should not be automatically assumed to be guilty when a copyright owner believes they have detected copyright infringement on that internet connection. Consumers should not be subject to the type of threatening letters Golden Eye intended to send to more than 9,000 O2 customers.
In seeking the personal details of consumers through an Internet Service Provider it is only right that any claim must take into account the privacy and data protection rights of the provider’s customers.”
Golden Eye originally intended to write to 9,124 O2 customers demanding £700 in “damages” for alleged piracy (the court found this to be “unsupportable“) and threatening court action and or to have the customer’s broadband service slowed or disconnected if they failed to pay. The court said that Golden Eye should require the consumers who admit that they have infringed copyright to disclose information about their P2P filesharing and then individually negotiate the settlement sum with those consumers.
The letters also wrongly asserted that bill payers are liable for any copyright infringement that may have occurred on their internet connection – whether they committed the infringement or not. At this stage it’s not known precisely how many letters Golden Eye will be able to write after 12 of the 13 claimants (excluding Ben Dover) were told to start separate cases.
Full Case Summary