Golden Eye Int LTD / GEIL / MIRCOM / TCYK Threat Discussion

[factual]

Golden Eye International have been back in court today.

Dinah Greek has been tweeting from the courtroom:
https://twitter.com/#!/DinahGreek

Edit: and ORG have a blog post on the hearing: http://www.openrightsgroup.org/blog/201 ... ng-returns

Edit (August 2012): With letters to O2 customers from Ben Dover et al shortly to arrive it seems that another support website (yay!) has sprung forth. Thought I'd link it here on this first post: Golden Eye International Limited / Ben Dover speculative invoicing support site (http://www.igotagoldeneyeinternationalletter.org.uk)

[Mullard47]

Golden Eye International have been back in court today.

Dinah Greek has been tweeting from the courtroom:
https://twitter.com/#!/DinahGreek

Edit: and ORG have a blog post on the hearing: http://www.openrightsgroup.org/blog/201 ... ng-returns

ORG have an article about today's hearing HERE.

(That link was wrong but has been corrected).

[JustInterested]

What I can't understand is why the judge doesn't demand proof that the technique used to capture the IP addresses of alleged offenders is foolproof and that enough of the file has been captured to prove copyright infringement. The whole thing does, after all, hinge entirely on these points. No, or inadequate proof, no case.

Guy Tritton has asked that GEIL should be made to bring a test case to court so that the technical merits of the method can be fully scrutinised, but why a test case? Why can't the judge nip this in the bud and demand the proof needed right now?

The judge presiding over the ACSLaw case was sent several letters from 'concerned' members of the public and it seemed to have a positive influence. Perhaps a few letters to the current judge from tech-savvy people about the flaws in the data collection method would be appropriate here.

[bpaw]

I think hats off to Consumer Focus for fighting against this NPO.

A reminder from Goldeneye Int website:

While every attempt will be made to seek a settlement out of court we will not hesitate to enter into court proceeding with those who fail to acknowledge our intellectual property rights.

It seems their Barrister declared otherwise in court today by saying:

But Cohen said test cases were not economically viable for Golden Eye.

A clear case of speculative invoicing.

Edit:
Four questions:
1. Do Goldeneye still insist it is their copyright?
2. Why o2 only?
3. Was there an o2 representative at court?
4. Who kept the ben dover underpants?

[sunnyd]

Here's another whole article on it ...

Law Firm Golden Eye Tests Broadband ISP Piracy Evidence In UK Court vs O2

http://www.ispreview.co.uk/index.php/20 ... urt-vs-o2/

Despite the repeated failure of similar schemes, Golden Eye International, a dubious law 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 law 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 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.

[Mullard47]

Actually, GoldenEye is not a law firm, and they do not appear to be testing the validity of IP evidence etc.

From the information in the various articles, they appear to purport to be a copyright licensee with standing to sue, but from the information in the Computeractive article HERE, these 9000 appear to involve more than one copyright owner.

I would have thought that if more than one copyright owner is involved, then there is an issue because a situation arises where an individual owner is party to a disclosure application where some of the identities sought would relate to parties that would not be defendants, quoad that owner, in any subsequent litigation. In the MediaCAT cases, Glen spotted that potential problem, but then concluded that, as MediaCAT would be bringing claims in its name alone, it could be avoided as a problem.

Consumer Focus appear to be wanting proper verification that the purported owners actually are owners, and that the licences do meet the criteria in the 1988 Act such as to attract a right to sue.

A key topic in the MediCAT cases was that the claimant appeared to be seeking to make money out of settlements with any claims being token gestures which would be discontinued or dropped unless they achieved a default judgement. (In light of the observations made by HHJ Birss in those cases, I imagine that the prospect of a summary judgment is non-existent.) I do not see any evidence at all which would distinguish the present matter in this regard.

Another point is mentioned in the Computeractive article about the hearing.

The issue cropped up about the arrangements for paying for the data monitoring operation. In the MediaCAT cases, it was revealed that the data monitoring company had provided their services on the footing that they would have a share of settlement money. I wonder if Consumer Focus's point is that if a monitoring company is being paid in that way, that they have an interest in the matter such as it is arguable that they should be joined with the claimant for costs purposes under s51(3) of the Senior Courts Act 1981.

I would like to see this develop into a case where the significance and accuracy of IP evidence etc. is properly tested, as I somehow thing that such a test would potentially have adverse consequence for assumptions that OFCOM appear to have made when formulating the draft IOC for the purposes of the DEA. Somehow I do not see that happening.

[concerned100]

Re evidence, I see that according to the Crossley judgment, it's supposed to show:

'that the IP address holder had either personally downloaded or made available THE WHOLE OR A SUBSTANTIAL PART of the clients’ copyright' etc.

Will be interesting to see the Court's view on the Golden eye evidence.


[JustInterested]

Re evidence, I see that according to the Crossley judgment, it's supposed to show:

'that the IP address holder had either personally downloaded or made available THE WHOLE OR A SUBSTANTIAL PART of the clients’ copyright' etc.

That is the acid test as it is the current legal definition of copyright theft (or infringement of coryright).

Will be interesting to see the Court's view on the Golden eye evidence.

Ahh, but that's just the point, as I was indicating earlier. There will be no view put forward by the court on GEIL's evidence because it will not be raised. This is exactly how Crossley slipped his NPO past the court with the first judge, who openly admitted he had no competence with the technicalities of the matter and so had to rely on the expert witness provided by Crossley (i.e. Clem Vogler, the property dealer and physics teacher ).

All of this speculative invoicing would come to a grinding halt if someone would just force the claimants to put up or shut up in regard to the technical veracity of their data collection methods.

As much as anything these cases just show up the inadequacy of the expert-witness vetting system.



[concerned100]

I saw a reference to evidence in some of the articles but will have to await the NPO judgement

'Golden Eye have a week to respond to the expert evidence submitted by Consumer Focus. It will probably be a week after that that we see a judgment. It's possible that the judge will refuse the application on the evidence grounds, or set out conditions on future Norwich Pharmacal Orders and on the letters that organisations like Golden Eye can send out to alleged infringers.'

[Mullard47]

I wonder how Consumer Focus got involved.

[concerned100]

I wonder how Consumer Focus got involved.

'So Consumer Focus' intervention in this case could help make sure that Norwich Pharmacal Orders are not used for money making schemes.'


I don't know but at least they instructed Guy Tritton who appeared for the defence in the Media CAT cases so he knows the background.

[Renegade]

Consumer Focus have been observing this one for a while, have been present at earlier patent county court hearings and had helped arrange an APPG on Digital Economy discussion last year. Not sure when the decision was made to take more direct intervention, but have to say, I like that the decision was made and the court allowed their representation on behalf of consumers at the NPO process!

I'm reliably informed that Consumer Focus would meet with solicitors from Ralli, their barrister, media reps and members of the public who attended the MediaCAT hearings for drinks afterwards, so maybe some discussion on this started there.

Edit: also note http://www.pictfor.org.uk/2012/03/event ... es-review/

[concerned100]

The Crossley judgment says it pretty well. I don't see how any monitoring technology could unequivocally implicate an individual and hopefully the Chancery Court will agree if it's examining the 'expert's' report. There seems no basis on which to allege that a wrong has even been committed.

'Neither MCAT nor the Respondent had evidence that the “Work” had been made available. They had a report from the monitoring company which showed that its software had captured pieces of the two pornographic videos being made available from an IP address at a particular second in time.'

I still fail to see how the DEA will work-ISP writes to account holder and demands that they prove 'they didn't do it'? How do you prove a negative, burden of proof etc., shades of Crossley.

[Hickster]

Hi guys, I know I have been away for a bit, but the Trool Beam alerted me to the new arrogant shyster bastards that is Golden Eye/Ben Dover.

Can you confirm that the Barrister Cohen is this guy? http://www.littletonchambers.com/barris ... cohen.aspx

Much obliged

Any info would be good regarding anything I have missed, if anyone wants to email me!

[concerned100]

I wonder who Cohen's instructing solicitors were. Maybe Golden eye's tactic is to write to people direct, bypassing the use of solicitors to avoid scrutiny of the Law Society. I recall that they used some solicitor for the attempts to claim online.

[Mullard47]

I wonder who Cohen's instructing solicitors were. Maybe Golden eye's tactic is to write to people direct, bypassing the use of solicitors to avoid scrutiny of the Law Society. I recall that they used some solicitor for the attempts to claim online.

The solicitor mentioned in the GEIL judgment was a Mr Wagner. The text reads: "In response I have a witness statement from Mr Wagner, a solicitor. Mr Wagner states that he has care and conduct of these proceedings on behalf of the claimant although he is not yet on the record. He submits that the application should be dismissed and raises various questions about the defendant's approach to the proceedings."

Under the Civil Procedure Rules, copyright claims should only be started in certain courts - the Chancery Division, a "Chancery County Court", or the Patents County Court - and Moneyclaim Online is none of those, but nothing has been said to suggest that Mr Wagner had anything to do with that blunder.

With hindsight, it is clear that the defendant's application (to strike out the notice of discontinuance) was not dismissed, and that the claimant did, indeed, have to join the owner in order to discontinue.

Where data is disclosed under a Norwich Pharmacal Order, the court retains control of how that data may be used until certain conditions are met (such as when litigation has actually started). The court has the power to require that the use of the data is supervised by a solicitor. This was covered in the February 2011 MediaCAT judgment at paras 112 and 113 where HHJ Birss said:-

Wider issues - this kind of Norwich Pharmacal order

111 I cannot imagine that the court making the Norwich Pharmacal orders in this case did so with a view to setting in train an exercise that was to be conducted in the manner that has subsequently emerged. In my judgment when a Norwich Pharmacal order is sought of the kind made in this case, it may well be worth considering how to manage the subsequent use of the identities disclosed. Perhaps consideration should be given to making a Group Litigation Order under CPR Part 19 from the outset and providing a mechanism for identifying tests cases at an early stage before a letter writing campaign begins. When Anton Piller (search and seizure) orders are made the practice is for a supervising solicitor who does not act for the claimant to be closely involved in order to ensure that the orders are not abused. The supervising solicitors are experienced practitioners. Perhaps a court asked for a Norwich Pharmacal order of the kind made here should consider requiring some similar form of supervision from a experienced neutral solicitor.

112 A party seeking a Norwich Pharmacal order in a case like this should also give serious consideration to s102 of the 1988 Act. Although s102(3) clearly provides that s102(1) does not affect the granting of interlocutory relief a Norwich Pharmacal order has some elements of final relief about it. After all the Norwich Pharmacal action comes to an end once the order is made. In any case just because the court has power to grant the relief without joining the copyright owner does not mean it must do so.

[concerned100]

Yes I remembered it appeared to be a sole practitioner although I can't be bothered to look him up. Can't imagine that they would persuade any large firm to get involved after DL etc. Maybe the court will appoint a supervisor. Will be interested to see whether they get the NPO and if so whether they write to people themselves or e.g. involve e.g. a sole prac. i.e. someone they can replace easily if he gets put off. No reason why their own letter shouldn't work to frighten people into paying, with the threat of court proceedings and a packet of docs.

[jsx]

I wonder if Golden Eye are in breach of copyright themselves. Davenport Lyons copyrighted the speculative invoicing scam and Crossley was paying a fee to DL to use their "business model".
Perhaps Davenport Lyons have decided not to pursue their copyright in this case or maybe Golden Eye stepped into the speculative invoicing scam assuming DL wouldn't be pursuing a claim.

[Mullard47]

Yes I remembered it appeared to be a sole practitioner although I can't be bothered to look him up. Can't imagine that they would persuade any large firm to get involved after DL etc. Maybe the court will appoint a supervisor. Will be interested to see whether they get the NPO and if so whether they write to people themselves or e.g. involve e.g. a sole prac. i.e. someone they can replace easily if he gets put off. No reason why their own letter shouldn't work to frighten people into paying, with the threat of court proceedings and a packet of docs.

Although the NPO application hearing is not the place to try the issues, that does not mean that the court just grants the order because the applicant wants one. That cropped up in a series of cases involving Smith v Advfn which can be found on Bailii.

Also, in these cases, it is not certain that the party whose identity is sought would be the defendant anyway, and there are also other facets to this. HHJ Birss spelt this out in the February 2011 MediaCAT judgment at p91:-

91 First, the nature of the case itself raises many questions. I have mentioned some of them above. The issues are as follows:-

i) Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all. The technical issues raised by Mr Davey (and Mr Stone) relate to this point.

ii) Even if it 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.

iii) The damages claimed deserve scrutiny. If all that is proven is a single download then all that has been lost is one lost sale of one copy of a work. The sort of sum that might represent would surely be a small fraction of the £495 claimed and the majority of that sum must therefore be taken up with legal costs. If so, a serious question of proportionality arises but again this has not been tested. Clearly if the defendant has infringed on a scale as in the Polydor case then would be a very different matter but there is no evidence of such infringement here.

I would say that some of that can be amplified further.

To start with, the router/networking equipment that is used in domestic settings does not keep any records or logs which would be of any use in the context of an NPO. Once you accept that the subscriber might also be an innocent third party, the question is raised whether disclosure of the account holder of the IP address is just leading to a dead end.

The second issue is the damages. The evidence in these cases cannot show who has the "single copy" to start with, whether if it is a whole copy, or who created it or whose computer it is on. Even if the subscriber is liable "one way of the other", that could only apply to use of the connection, and that would not include the "single initial copy", but just the fragment uploaded to an investigator.

Also, as the judge in the current case has raised, there is no information at all as to scale. The only evidence is the fragment of the work that has been uploaded, via the connection, to the investigator. There is an argument that says that this discloses no damage at all because it has been sent to the owner's agent.

[concerned100]

We know this as does Guy Tritton so let's hope all this background has some impact on the NPO action and any further attempt at speculative invoicing. Golden eye is unbelievably persistent what with TBI, moneyoneline and now this so they must see letter writing as any easy money spinner, even after DL and Crossley. They must think, prob. rightly, that a new batch of recipients will just pay up, and if they write themselves rather than use solicitors, nobody will stop them as long as they don't bring cases to court. Their counsel has denied that this is spec. invoicing presumably on the basis that, if people pay, they are admitting liability, have really infringed copyright, and this justifies the exercise. Presumably they have the right to threaten proceedings, even if they never issue, figuring it's worth it for those who just pay up.

[Hickster]

Golden Eye International using ACS:LAW’s “experts and monitors”
https://acsbore.wordpress.com/2012/03/1 ... -monitors/

[Mullard47]

Actually, my recollection is that when GM applied for that NPO for MoS which eventually went totally pear shaped, they had already run into problems with it prior to the ACS leak and BT changing their position and opposing it.

Does anyone actually know what was going on that caused the first adjournment, because if BT was not opposing it at that stage, then it looks like either someone else intervened, or the judge hearing the application instigated something on his own initiative.

[factual]

Actually, my recollection is that when GM applied for that NPO for MoS which eventually went totally pear shaped, they had already run into problems with it prior to the ACS leak and BT changing their position and opposing it.

Does anyone actually know what was going on that caused the first adjournment, because if BT was not opposing it at that stage, then it looks like either someone else intervened, or the judge hearing the application instigated something on his own initiative.

Chief Master Winegarten had received a letter from a member of the public raising a number of concerns (the kind of things that are routinely discussed here) about the application for the NPO. He adjourned to give MoS an opportunity time to consider the points raised and to answer them in a written reply to CMW and the author of the letter. That reply was due to be considered when the hearing resumed, but by then BT had decided to contest the application given the media storm following the catastrophe that was ACS:Law's data leak and the attention that this, in turn, drew to the MoS application (plus a fair amount of public pressure applied via the Plusnet forums).

[Hickster]

http://community.plus.net/forum/index.p ... 85908.2208

See Here Mullard, Bob Puillen is a kind of legend as far aas Execs are concerned.... Nice guy.. Very receptive to peoples concerns. As you can see from the link he has posted the last couple of days....

We haven't been approached and the latest NPO hasn't been granted. A lot was learnt from the ACS:Law debacle though so I'm sure there'd be a reasonable amount of resistance on our part.

BTW Hi to you Factual and all the other guys on here.... kind of nice to be back although I wish it was toasting these shysters demise...

[Mullard47]

We know this as does Guy Tritton so let's hope all this background has some impact on the NPO action and any further attempt at speculative invoicing. Golden eye is unbelievably persistent what with TBI, moneyoneline and now this so they must see letter writing as any easy money spinner, even after DL and Crossley. They must think, prob. rightly, that a new batch of recipients will just pay up, and if they write themselves rather than use solicitors, nobody will stop them as long as they don't bring cases to court. Their counsel has denied that this is spec. invoicing presumably on the basis that, if people pay, they are admitting liability, have really infringed copyright, and this justifies the exercise. Presumably they have the right to threaten proceedings, even if they never issue, figuring it's worth it for those who just pay up.

I would be surprised if an NPO was granted in the same terms as the previous ones.

A key issue is the basis of the NPO. It is clear that in these cases the applicant does not know whether the party whose identity is sought is the defendant or an innocent third party. An NPO that properly caters for that (and also the corresponding LoC) will have to address that, and it is hard to see how that can be achieved without at the same time effectively advising the recipient of the LoC that a bare denial will end the matter.

I have also seen some very interesting analyses relating to some of the aspects of this. For example, one of Crossley's arguments was that if a subscriber allows someone to use a connection, that they are "authorising" any use it is put to. That might sound attractive, but what if the person allowed to use the connection uses it (without permission) to copy work, and then it turns out that the subscriber is the owner of the copyright of that work. Does that mean that the activity is lawful and that the copies are not infringing?