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Golden Eye Tests Broadband ISP Piracy Evidence in UK Court vs O2

Posted Friday, March 9th, 2012 (5:52 pm) by Mark Jackson (Score 2,714)
uk internet law

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.

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6 Responses
  1. Jack

    It would be good for the Judge to ask Goldeneye how confident they are in their system to capture IPs they believe are infringing copyright and what is the margin for error. Maybe the system should be at least 99% accurate.
    In one of the NPO fiascos by the ACS:Law scam team (Andrew Crossley, Terence Jintin Tsang, Lee Bowden etc) it turned out that of the 8,000 odd IP addresses collected the ISPs were unable to recognise 24%.
    We also have the recent Solicitor’s Disciplinary Tribunal verdict which states that ACS:Law & Media CAT had no evidence of copyright infringement…..

    Section 91.12 “Neither MCAT nor the Respondent had evidence that the “Work” had been made available.

    A big thanks to Consumer Focus for contesting this case.

  2. Timeless

    its not about who downloaded said films.. its not even about piracy… its about how much these companies can squeeze out of ppl who are too afraid to fight back, plain and simple.

  3. If I were to receive any begging letters from these GoldenEye shysters, I’d be sure to tell them
    in no uncertain terms they can jolly well go **** themselves, and stick their pathetic demands
    where the sun doesn’t shine, and where a monkey usually sticks his nuts!

    I’m wondering if these worthless scumbag leeching morons have the legal right to use the
    name “GoldenEye”. The owners of the James Bond movie franchise might disagree.

  4. Carrot63

    Copyright originated to protect authors of works from having their material ripped off wholesale. Most of the so-called infringements being pursued now are by people a long way down the food chain from anyone who might be termed author of a work. In cases such as mentioned here, they have no intention of profiting from the work by any means other than using the courts; i.e. they are not intending to distribute or sell it.

    Copyright law should be changed to blunt this parasitism. I personally think copyright should be non-reassignable (as I believe is the case in Germany and which would offer other protections to authors) and licensing of works by 3rd parties should be permitted only for the purpose of selling, display, performance etc – i.e. using the works directly, not as a spurious vehicle to demand money with what look remarkably like menaces.

    If the original author or licensee wished to take action to defend their IP they could do so by engaging lawyers to represent them in the normal way – I doubt many would; they frequently seem shy of the dreadful publicity that ensues, preferring to make a bit of extra cash without the attendant flak. The test as to whether a case has legitimacy should be whether those demanding compensation have a track record of actually profiting from the works in the normal, accepted sense.

  5. Milton Trewick

    Golden Eye is not a law firm despite what the title of this article claims

  6. Andrew Crawford

    I would not mind be the centre of one of these cases as i love with a lawyer to challenge it, i am IT Expert so i muck about with is type of stuff, what i would want to do is provide evidence in the form of IP address

    So i would take 2 laptops and with 2 different 3g connections or potential wireless access from the court :D would should it a public access and can be used by anyone

    on the one laptop i would have a tracker install with a torrent and file to download

    on the other i would a torrent client like utorrent which you can change your ip on

    i then firstly log on toa webpage with a whois so showing the client that will download with ip address

    i then download the torrent and then download the files and show on the tracker computer the ip of the computer downloading the files

    i then go to utorrent and change the ip address then go to the same website to show the ip address

    i then would download a second torrent from the torrent server and then show it ip to be the one i had set in utorrent

    that would then prove ip address are not a way to determine anything other than it is ip address

    i could potential show how even a encrypted wpa and wpa2 ;) can be cracked so someone gaining unauthorised access without the user knowledge so showing the person downloading might not eb the person who own the connection and the person who own there connection has made it secure

    i would hope with things like this and few other thing that the judge would see no there way for trying to get customer is flawed so can not be used

    but i do not do illegal downloads so i cant see myself being in this position

    does the article writer have any contacts with the ones standing up for the consumer who might be innocent and maybe could past that on as a way for the defence to show to the judge it is flaw so hopefully might be able to have something in a court that shows it daft

    If ISPReview want to contact me on what i am saying please email me ill happily reply as only something like what i have said would show a real world scenario of it failing

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