What’s new for Internet Piracy Prosecutions?
British porn baron Ben Dover has won his appeal to hunt down alleged illegal downloaders on behalf of other adult entertainment producers.
The victory could enable to Golden Eye to demand cash behalf of any porn producer in the world who thinks English and Welsh internet users have illegally downloaded their films.
Julian Becker, Golden Eye director said: "I look forward to travelling to adult conferences in LA and Vegas in early January to offer Golden Eye's services to other producers with a view to helping them protect their brands' copyright in the UK."
Golden Eye International went to the Court of Appeal of England and Wales after it won the right to get downloaders’ addresses from O2, but only those they suspected of downloading Ben Dover productions.
Now Golden Eye - owned by Dover - can act for a dozen other porn producers and could send letters to more than 6,000 O2 and BE Broadband customers, identified via their IP addresses.
An earlier court hearing had restricted the appeal to around 2,800 users accused of downloading Ben Dover material, because the judge decided that allowing Golden Eye to act for other companies would be effectively selling people’s private data.
The appeal judges decided this was wrong, so Golden Eye can now act for Celtic Broadcasting Ltd, Easy On The Eye, DMS Telecoms Limited, Gary Baker, Harmony Films Limited, Justin Ribeiro Dos Santos (Joybear Pictures), Orchid Mg Ltd, Kudetta Bvba, RP Films Limited, Sweetmeats Productions T/A S.M.P., Sll Films Limited, and Terence Stephens (One Eyed Jack Productions).
It’s now free to become the agent for anyone else who wants to pursue suspected downloaders, with a fairly simple process for collecting IP addresses and demanding ISPs hand over users’ details.
The judges also agreed that Golden Eye’s letters to alleged porn pirates must follow a strict formula so that innocent internet users aren’t embarrassed into paying up. That’s because IP addresses are a notoriously unreliable way to identify internet users.
Golden Eye cannot demand a lump sum without negotiating damages with its targets, nor can it threaten that they could lose their internet connection if they don’t pay up.
The Open Rights Group, which has opposed the case, said: “We will be studying the judgment carefully and then we'll consider properly the implications before deciding how to proceed.”
January 16, 2013 (Image: Ben Dover)
- Golden Eye appeal win could open floodgates to piracy claims
- ORG challenges O2 Golden Eye porn sharing prosecutions
- Porn piracy claims could hit 9,000+ O2 Broadband subscribers
- Internet piracy legal shark suspended for two years
Who’s prosecuting for illegal file-sharing and downloads?
The headline mass litigant in 2012 is Golden Eye International, company formed by Ben Dover - AKA Simon Honey - possibly the UK’s most prolific porn actor, director and producer.
Golden Eye is attempting to force O2 to hand over the addresses of more than 9,000 of its customers, whom it accuses of downloading copyrighted adult material.
The High Court of England and Wales initially rejected an attempt by Golden Eye to bring claims on behalf of 12 other claimants (mostly other British adult entertainment producers) - reducing the list of accused to less than 3,000 O2 users - this decision was later overturned on appeal.
The previous bête noir of internet piracy litigants was lawyer Anthony Crossley’s firm, ACS:Law. Crossley and colleagues Dave Gore and Brian Miller admitted six charges including using their positions as a solicitors to attempt to take advantage of others, were suspended from practising law for two years and ordered to pay £76,000 in costs.
Both ACS:Law and Golden Eye used a Norwich Pharmacal order to track down those they accuse of illegally downloading or sharing copyrighted material.
What’s a Norwich Pharmacal order?
A Norwich Pharmacal order is a court order made against an innocent third party, to reveal documents or which may reveal the identity of individuals who are believed to have wronged the applicant.
They’re normally made in civil cases, not criminal proceedings, and are named after a case involving the Norwich Pharmacal Co in 1974 (Wikipedia has a lot more detail).
In cases of internet piracy, a Norwich Pharmacal order is usually made against an internet service provider (ISP), in order to reveal the identity of customers suspected of illegally downloading or sharing copyrighted material (e.g. films or music).
How do companies identify suspected illegal downloaders?
Unless you’re stupid enough to come on Recombu’s discussion boards and tell the world you’re an illegal downloader, and use a genuine email address, it’s usually done via IP addresses.
The company alleging illegal activity obtains IP addresses of the users of file-sharing sites like The Pirate Bay, and uses the Norwich Pharmacal order to cross-reference with the ISP’s records, assuming that whichever customer had that IP address at that time is responsible for any illegal activity.
How can using IP addresses to identify users go wrong?
Unless you pay for a fixed IP address, your IP address will be regularly renewed by your ISP from a pool of addresses they own.
IP addresses are a cost for ISPs, so they own fewer addresses than they have customers, and because not everyone is online at the same time, they can share them around.
You might have the same IP address for weeks, days or hours, but it can and will change.
In addition, the IP address also only identifies the subscriber whose name is on the bill. If you share a connection with family or housemates, you could be held liable for their actions.
The ACS:Law case collapsed in February when Judge Birss QC decided that IP addresses were not proof that the user of the address or account subscriber was the illegal downloader.
How much could I be asked to pay?
Golden Eye’s original intention was to send blanket letters demanding £700 in order to prevent further court action. ACS:Law’s failed action had demanded £500 for a quick settlement.
In March 2012, the High Court of England and Wales decided that Golden Eye would have to negotiate each case individually in a specialised tribunal before the Patents County Court.
But isn’t internet piracy a victimless crime that no-one should pay for?
No. If I write a book, make a film, or record a song, and I choose to be paid for it, and that’s my choice, not yours.
If you think it’s too expensive, that’s tough. Go to the library, read, watch or listen to something else, write your own book, record your own song, swede my film on your cameraphone, whatever.
People lose their jobs over this. They can’t pay their mortgage or bills. All this ‘information wants to be free’ philosophy is nonsense, a smokescreen for laziness or a lack of respect for others.
Corporations are run by the rich, for the rich, but it’s the poor folk working for them who get fired when sales are down. It’s small film-makers who lose out their big chance, the next Transformers will still get made. You are not Robin Hood.
If you download someone else’s work and you don’t pay for it, you’re a criminal and a sociopath. Just because it’s not a real object like a car or a phone, doesn’t mean it’s not theft.
But I don’t believe your family should be hassled if you’re using someone else’s connection for your crime. Now you’ve made them a victim.
The Open Rights Group is raising funds to prevent porn copyright enforcer Golden Eye International from expanding its campaign to prosecute illegal porn downloaders and sharers.
Golden Eye - owned by UK porn baron Ben Dover - is appealing a High Court decision which limits the number of people it can claim against for illegally downloading or sharing porn online.
The Open Rights Group, which campaigns for freedom of expression, privacy, innovation, creativity and consumer rights on the net, has won permission to intervene in the appeal.
Now the ORG is attempting to raise £5,000 to fund the intervention, employing a legal officer to coordinate its volunteer lawyers, perform research, and enable them to launch more legal interventions.
In March, the High Court or England and Wales told Golden Eye it could not act on behalf of 12 other UK adult entertainment producers in exchange for 75 per cent of the revenues returned, reducing its list of targets from 9,000 IP addresses to 2,845.
The ORG is intervening because it believes a victory for Golden Eye will encourage speculative enforcement operations where defendants’ data protection rights are sold to the highest bidder.
November 26, 2012