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Court Refuses Copyright Trolls Access to Virgin Media’s Customer Data

Thursday, July 18th, 2019 (11:32 am) - Score 9,950

The UK High Court of Justice has refused notorious copyright trolls – Golden Eye (GEIL) and Mircom International – access to obtain “tens of thousands” of customer records from cable broadband ISP Virgin Media (these would have been used to pursue claims of internet piracy), which occurred because their evidence was ruled inadequate.

Over the years a number of organisations like Golden Eye, which act on the orders of copyright holders (in this case, porn films), have sent letters to those they suspect of having committed copyright infringement. The practice has become known as “Speculative Invoicing” for its reliance upon fallible IP address based evidence (usually gathered via public BitTorrent P2P file sharing networks) to identify suspected infringement and the focus on making money.

In this approach people are presented with some limited details about their alleged infringement and encouraged to reach a settlement (often costing hundreds of pounds). People who refuse can be threatened with court action, although such action almost never occurs and those cases that have been attempted in the past were not successful due to weak evidence. As such the letters largely rely upon scaring people into paying up.

The fact that the letters only target the bill payer for a broadband service, which is itself often shared among many friends, family and visitors via a local WiFi network, makes it incredibly difficult to identify the responsible individual. At the same time the data itself can sometimes also be incorrect (e.g. spoofed IP addresses and slight errors in the logs / timings) and may thus end up targeting the wrong connections / accounts.

However, before such firms can do this they first have to match IP addresses, times and dates of the alleged activity to account owners, which requires them to submit a Norwich Pharmacal Order (NPO) to the court. Usually this forces the linked broadband ISP to release details about any associated subscribers (e.g. name, address etc.).

What happened in the Virgin Media case?

Historically ISPs have rarely ever put up much of a defence against NPO claims but this time Virgin Media took a different approach and it’s easy to see why. According to the court documents, the broadband and TV provider highlighted what it perceived to be “various defects” in the evidence and expert evidence presented.

NOTE: Mr Becker (for Golden Eye) and Mr Hoffmann (for Mircom).

Summary of Virgin’s Gripes

Alleged Defects in Fact Evidence

a) Mr Hoffmann’s witness statement is dated 26th February 2018. In paragraph 1 he explains that Mircom seeks disclosure “of the names and addresses of the subscribers associated with the IP addresses listed in a spreadsheet attached as Exhibit 1”. But there was no Exhibit 1.

b) In a witness statement dated 26 June 2018, Mr Wagner purported to exhibit a spreadsheet marked “MWH1”, described as a spreadsheet setting out the IP addresses of subscribers for the period 27 February to the dates shown on the spreadsheet. This cannot be the same as Mr Hoffmann’s own intended Exhibit 1 since it post-dates Mr Hoffmann’s witness statement. Further this exhibit does not even set out any IP addresses, merely information including an “infringement ID” which appears to be date-related.

c) In any event even exhibit MWH1 is not what is sought. Mircom actually seeks the names and addresses of a spreadsheet which was sent to Virgin by email on 7 June 2019. This spreadsheet is not in evidence, nor is there any explanation of how it was produced.

d) Finally Virgin claimed there were a number of evidential difficulties in the new spreadsheets. For instance it was said that in some instances a film had only been partly downloaded, and that this meant there was no infringement; and in some cases the spreadsheet referred to films not tied to any licensee.

Alleged Defects in Expert Evidence

a) Mircom relied on the evidence of Dr Sarre and Mr Fieser. Dr Sarre’s report is said to show that the software used to identify infringement, namely “FileWatchBT” is reliable. However Dr Sarre’s report was “commissioned by telephone” by a Mr Eichner on 1st April 2010, so the instructions are not documented and the report itself is dated 3rd May 2010. I do not accept that I should simply assume that a 9 year old expert report remains up to date, particularly one given in the field of computer software.

b) There are a number of reasons why Dr Sarre’s report does not comply with CPR Part 35, but one is the lack of a statement of truth. I was shown a separate statement of truth dated January 23, 2014 (ie nearly 4 years after the report, and also over 5 years old today). This statement of truth refers at paragraph 5 to “the trial” but nobody seemed to know what trial, if any, Dr Sarre meant.

c) Mr Fieser gave a statement dated 20th December 2017 in which he claimed that FileWatchBT had not materially changed between 3 May 2010 and the date of his statement (which is, of course, over 18 months ago now). However Mr Fieser also said that this software was used to identify “the alleged infringing IP addresses and their acts of infringement set out in Exhibit 1 to Mr Hoffmann’s statement”. I have no idea what Mr Fieser meant by this since, as stated above, I have not seen any such Exhibit 1.

d) Golden Eye relied on the evidence of Mr Paige dated 19th August 2016, but if anything this is even worse. There is no statement of truth; no clarity as to what his instructions were; his evidence refers to static IP addresses, not dynamic ones; and his evidence appears to relate to a software program called “Observer”. Yet Mr Fieser gave a statement (also unsupported by a Statement of Truth) dated 1st December 2017 in which he seemed to think the software mentioned in Mr Paige’s report was called “International IP Tracker”. Virgin also drew my attention (without comment by the Applicants) to evidence from Ms Griffin, Senior Legal Counsel of Virgin, suggesting that Mr Paige was a former detective who was arrested and dismissed after receiving a controlled substance.

e) It also appeared that Golden Eye was no longer licensed to use the software (now called “IPP”) which it claimed to have used to identify the list of potential infringers.

In their defence Golden Eye and Mircom said the defects in their fact evidence were merely “technical,” which the judge accepted for point (d) but not the first three points “which are in my view fundamental.” Similarly the judge said that the last of these defects (e) in their expert evidence might also be regarded as “technical” but the first four points were again “fundamental“.

The main issue was that the list of IP addresses now relied upon was not in evidence at all (oops..).

Recorder Douglas Campbell QC said:

“Thus the defects in both the fact and expert evidence are so fundamental that I will dismiss these applications. If it is simple and straightforward as the Applicants say to prepare and serve acceptable evidence then this dismissal will not present them with any great problem. All they need to do is to correct what they have said are technical defects.”

The case also revealed that Mircom had previously sent letters to 749 Virgin Media customers as a result of another NPO back in 2014, which resulted in 76 people making confessions of liability and just 15 choosing to settle the claim without admission of liability. But no court proceedings had ever been issued.

As a result the judge also considered whether the copyright trolls still had a genuine intention to try to obtain redress for the infringement “rather than merely setting up a money-making scheme designed to embarrass and coerce as many people as possible” – regardless of whether they were actual infringers – into “making the payments demanded.”

I also accept Virgin’s submission that in order to consider this question, I need to know how the Applicants have actually used the information provided to them under previous Court orders, now going back a number of years. This is not something which the Applicants’ current evidence addresses, nor is it information which they have offered to supply, hence this is a further reason why I refuse the applications sought,” said the judge.

The copyright firms have now been asked to correct their evidence and include more information about the IP addresses being targeted. Generally, if you know or believe yourself to be innocent of this kind of allegation, then it’s best to discuss the matter with Citizens Advice before responding and read the Speculative Invoicing Handbook. Likewise if you want a solicitors help then Michael Coyle from Lawdit may be able to assist.

Leave a Comment
2 Responses
  1. Avatar alan says:

    Speculative Invoicing Handbook is available to view, but it requires your card details if you exceed the 30 day trial period
    You will need to cancel the account you set up, to avoid the $8.99 per month

  2. Avatar whatever says:

    Loads of info re UK speculative invoicing scams also available on ACS:Bore blog on wordpress featuring Becker and others.
    Becker has previous form.

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