Despite the repeated failure of similar schemes, Golden Eye International, a dubious firm that claims to hold numerous film copyrights and is linked with the UK’s Ben Dover porn brand, has today gone to court in an attempt to extract the customer details for around 9,000 internet connections (IP addresses) from ISP O2 UK (Telefonica). If it wins then thousands of users, specifically those whom it accuses of “illegal” online piracy, could expect to receive threat letters (“speculative invoicing“) that demand payments of £700 to settle the offence.
Law firms typically track alleged abuse by monitoring the Internet Protocol (IP) addresses of online users via public P2P (File Sharing) networks (an IP is assigned to your connection each time you go online) before taking the responsible ISP to court (aka – Norwich Pharmacal Order) in an attempt to extract the related data. Past cases against similar firms, such as the now notorious ACS:Law and Davenport Lyons, have repeatedly helped to highlight the problems with doing this.
At best an IP can only identify the connection owner, whom may or may not be the guilty party (e.g. shared public WiFi networks, hotel internet, business networks, libraries etc.). At worst 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. Worryingly this is exactly the sort of data that the UK governments related Digital Economy Act (DEAct) will use when it comes into force at some point in the near future.
The UK solicitors firm Ralli was able to squash Golden Eye’s previous attempt (here) to use such data after it tried to make its case by suing a woman accused of using her broadband ISP connection to share an adult video (‘Fancy an Indian?‘). Surprisingly that hasn’t stopped Golden Eye trying the same thing again and this time it’s on a similar sort of scale to ACS:Law, you know, that law firm which fell apart over some of the same issues last year (here).
Today’s update from the Open Rights Group (ORG) said:
In court this morning, Guy Tritton represented Consumer Focus, who were there representing the interests of those whose details Golden Eye are looking to get hold of. Mr Tritton raised a number of concerns:
1. The court can’t be sure of the evidence that Golden Eye have. The problems associated with connecting IP addresses with account holders mean that the process used by those seeking an NPO must be as robust and clear as possible. In this case, there are concerns about which system has been used, and if it meets such standards. Longer term, there is a need for benchmarked standards to which applicants for a Norwich Pharmacal Order must adhere to. As noted yesterday, the outcome of this particular point will have real relevance for how the Digital Economy Act works.
2. Problems with Golden Eye’s role. There was some disagreement about whether Golden Eye can legitimately pursue this action – the copyright owners need to be party to the legal action, and the dispute is whether that is the case here. Furthermore Mr Tritton raised concern about the split of the profits from this speculative invoicing campaign; Golden Eye would receive 75% of the returns. Similar concerns about Golden Eye’s role have been raised before.
3. The amount being requested. Individuals alleged to have infringed would be asked to pay £700. This is far and above the likely actual damages. Jonathan Cohen, representing Golden Eye, claimed that all those involved had, through the nature of the peer-to-peer site they were using, also been uploading. But the judge questioned how they could be sure of the scale of each individual’s actions. They couldn’t, was the answer. So the £700 figure could be seen as amounting to little more than an arbitrary figure, Mr Tritton claimed, and one that was way above actual damage.
4. Other problems with the draft letter. Mr Tritton argued that the letter does not spell out to recipients that just because an IP address has been assoicated with an act, it does not mean the identified subscriber has infringed copyright or authorised others to infringe.
Perhaps most worrying was the claim in the letter that the recipient may ultimately face internet account disconnection. We’ve repeatedly been told that we’re crying wolf and exaggerating for suggesting that the Digital Economy Act will lead to disconnection. It’s interesting to see that exact threat being used by a rights holder in this forum.
It’s a sad fact that ISPs rarely challenge such NPO’s in court, often because to do so would be both costly and in some cases controversial (i.e. the ISP might be seen as a defender of piracy). At least in this case Consumer Focus, a “statutory consumer champion“, has stepped in with its Barrister Guy Tritton to help change and challenge that dynamic.
Suffice to say that the stakes are high. The outcome could have a significant impact upon both future requests for customer data from ISPs and the forthcoming Digital Economy Act (DEAct), which is reliant upon equally flawed data. In fairness one key difference is that the DEAct would need to show repeated infringements against the same user before even a warning letter could be sent (at the time Ofcom has not finalized how many reports would be required).
As of this afternoon Golden Eye have been given a week to respond to the “expert evidence” put forward by Consumer Focus, which means that it will probably be the end of March 2012 before an actual judgment is reached. This is one to watch.