Golden Eye International Limited (“GEIL”), of which Julian Becker is a Director (Cartoon picture), are now sending out letters to people they accuse of infringing copyright even though the recipients denied their claim. A classic “Not listening to anything you have to say”
From the copy of the letters we have seen; let’s look at what they say:
GEILs starts with;
The letter we sent you on <some date> has been approved by Mr Justice Arnold, after input from both Telefonica’s (O2/BE) legal representatives and Consumer Focus and Open Rights Group on behalf of consumers.
Your name and address have been disclosed by Telefonica (O2/BE) as being assigned to the IP address referred to in our earlier letter, at the date and time when the infringement too place.
So GEIL associate their Court approved letter and its content with this this letter they have created themselves? The problem with that is Justice Arnold stated in paragraph 125 from the NPO judgement;
Secondly, the draft letter does not make it clear that the fact that an order for disclosure has been made does not mean that the court has considered the merits of allegation of infringement against the Intended Defendant.
So everything else GEIL say in their response letter should reflect those words.
GEILs own words say the subscriber details were assigned to an IP address. This is a fact because somebody has to be named at an address to pay the Internet Service Provider (“ISP”) bill. To me GEIL are acknowledging this fact and would be aware that the subscriber is not the infringer.
And at the NPO judgement, Consumer Focus was representing the intended defendants because O2 didn’t have legal representation to defend their customers. Quite clearly Consumer Focus provided a monumental effort to not allow GEIL to send their original template letter. The Open Rights Group (“ORG”) were NOT part of the original NPO hearing and O2/BE had no representatives. So basically GEIL are being disingenuous here.
GEILs letter goes on;
You have responded to our letter with a standard response from the internet. In addition to the evidence we have, we would also present to the Court, if necessary, that your communication copied and pasted from the type of sites that offer these responses is further proof of your infringement using the P2P networks.
Julian Becker is someone who claimed to not to have anything to do with Andrew Crossley and ACS:Law (Which he clearly does here), is quite happy to use a template letter originally used by Davenport Lyons and then ACS:Law (And others). This changed as Justice Arnold in the Norwich Pharmacal Order (“NPO”) application Court case wouldn’t allow his template letter as Becker wanted to send it.
Now GEIL are dismissing Letter of Denial (“LoD”) responses from O2 subscribers because he says it is a template!
Notwithstanding the fact that GEIL have no evidence that the subscriber is the infringer as they insist, they now make assertions that using a template response is further proof of the infringement! I call it clutching at straws.
I hope this will finally disprove those rumors that associate us with Andrew Crossley, although my mother was disappointed it has been proved that I am indeed a pornographer not a solicitor.
And I am guessing that his work puts him in easier access to Lawyers to call on at will but scared, innocent, confused and limited means O2 subscribers are not allowed help according to him.
Anyone using the “Speculative Invoicing Handbook – Second Edition” gets a full and concise explanation of an area of expertise and law that even High Court Judges have trouble understanding, as do Members of Parliament and others.
The firm had used template letters/paragraphs which did not fully reflect the true position.
So effectively if GEIL are to reply using a template response then a template LoD is sufficient also. Actually it is more than sufficient because it fully adheres to the Civil Procedure Rules – Pre Action Conduct – Annex A.
So by GEILs logic, would it be incorrect for an O2 subscriber to go to a Solicitor and gain legal advice and have the Solicitor draft up a letter? Would that also be seen as proof of infringement because no effort was made to draft the letter alone?
And what about the “type of sites” part? What type of sites? Is this guilt by association? So I assume this very blog is promoting copyright infringement from GEILs perspective. Or maybe http://beingthreatened.yolasite.com/ is packed with torrent downloads from GEILs perspective also?
No, the fact is that this blog and http://beingthreatened.yolasite.com/ are helping vulnerable people who have been accused of something they haven’t done simply because they are O2 subscribers.
Maybe GEIL should look at their “type of site” which contains some questionable content:
Clem Vogler, a Chartered Physicist who is registered as a computer expert with the Expert Witness Directory, has written a detailed report of our software.
And surely an “Expert Witness” who has to write a “detailed report” to be used in the High Court would perform a rigorous test of software that is going to be used to obtain IP addresses from a P2P network? Well, from the NPO again:
The tests were carried out in October and November 2009. Mr Vogler explains he did not have Xtrack installed on his computer, and did not concern himself with how it worked, but treated it as a “black box”. He simply presented it with inputs, namely his test files, and examined the outputs to see if they corresponded to his inputs. He was satisfied that they did correspond.
“Mr Vogler explains he did not have Xtrack installed on his computer, and did not concern himself with how it worked”. Some statements are worth commenting on but any “Expert Witness” making this statement in the High Court, well, it speaks for itself.
We use the latest technology to identify those IP addresses from which our films and content are being uploaded to peer-to-peer networks and through rigorous and legal means contact the offenders notifying them of our intent to get them to cease any similar activities in the future as well as negotiate an equitable settlement for the losses caused by their unlawful practises.
So publically saying that IP addresses represents “the offenders”. Which Court said that? Which Judge said that? What Court case said that? Indeed Judge Birss at the case that ended the ACS:LAW debacle, stated that ACS:LAWs client Media C.A.T “do not know who did it and know that they do not know who did it” (Section 28)
GEILs letter goes on;
In the absence of a defence from you relating specifically to the infringement to which we are referring, we consider it likely that the Court would, on the balance of probabilities, come to the conclusion that it is you who has carried out the infringement to which we refer.
In the absence of real evidence from GEIL, and they have already implied the subscriber is assigned to an IP address and not the infringer earlier in their letter, the Court on the balance of probabilities may very well come to the conclusion that the defendant did not infringe copyright.
Thirdly, the draft letter asserts under the heading “Infringing Acts” that the Intended Defendant is liable for infringement. Although the last paragraph under that heading implicitly acknowledges the possibility that the Intended Defendant may not be the person who was responsible for the infringing acts, this acknowledgement is not sufficiently explicit. Furthermore, the reference under the heading “Proposed Settlement” to “inaction, by permitting a third party to use your internet connection” undermines the effect of the implicit acknowledgement. As HHJ Birss QC has explained, nothing less than authorisation suffices for infringement, at least in the context of a claim for damages.
Fourthly, the second paragraph under the heading “Legal Consequences” is too one-sided in that it sets out the consequences to the Intended Defendant of a successful claim without acknowledging the consequences to the relevant Claimant of an unsuccessful one.
Justice Arnold said the above in relation to the original LoC GEIL wanted to send. So HHJ Birss QC says “nothing less than authorisation suffices for infringement, at least in the context of a claim for damages” and the “Legal Consequences” is too one-sided. The statement from GEIL again does not set out evidence of authorisation and again is too one sided.
GEILs letter goes on;
The evidence we have shows the following:
1) Hash of the content being uploaded by you, along with the content name, size and Torrent name. This will uniquely identify the file/movie that was being shared over P2P network.
2) Percentage of the file/movie that was being shared at the time of capture and detection of the infringement.
3) If you are seeding (or partially) more than one content, we have those identified by the ISP.
4) The P2P software, name and version, you were using and the hash that was generated by your software during that session of seeding or partial seeding.
5) The date and the time of seeding of any piece of the content by you with the index of the piece which shows where in the content that piece of data is. As we ask for just one identification by the ISP, this is a snapshot of this as it was happening. All of this could again be sent to the ISP to further identify you.
If we proceed to Court, we will be able to produce the following in digital format:
1) All the pieces seeded by you in a raw format that can then be inspected and further analysed.
2) The raw capture of the packets sent by your P2P software to the Internet at the time of identification. This is raw data that can be analysed further that will essentially show the piece of the content being seeded by you.
That is a lot of technical blurb clearly set out to purposely confuse the subscriber. What it is really is information that was captured from an IP address not an individual person.
It is also a clear assertion from GEIL where they say the subscriber is guilty of the infringement. “being uploaded by you”, “If you are seeding”, “you were using”, “further identify you” etc.
So we see that there is no “phishing” exercise here. GEIL are directly accusing the subscriber which is also apparent from his statement at the NPO hearing:
the Claimants sought disclosure by O2 of the names and addresses of the subscribers associated with the IP addresses shown in the CD-ROM attached as Exhibit 1, that the Claimants believed that those IP addresses had been used by the subscribers to make available copyright material for P2P copying
“those IP addresses had been used by the subscribers”. There it is again! Subscriber is the infringer. What is interesting in this interview with Julian Becker, he says:
As regards Richard Clayton’s evidence that the software we use is capable of identifying the correct IP Address but this is not the case every time, I have to listen to my technical advisors who assure me that in the vast majority of the time, the software will identify the correct IP address that has infringed our copyright. The fact that the order was granted implies to me that the judge shared our opinion on this.
“my technical advisors who assure me that in the vast majority of the time, the software will identify the correct IP address that has infringed our copyright”. Hmmm…..Two things of interest there. Firstly, “vast majority of the time” is NOT “all of the time”. Secondly, “the correct IP address that has infringed our copyright” is acknowledging that it is an IP address and not the subscriber.
GEILs letter goes on;
If you would like to view more details regarding the evidence relating to your specific case then please log onto <some “type of site”> , entering the Case Reference <ref> and the Access Code <code>. You will find here the information you have requested, together with the statements of Mr Torabi (Golden Eye’s expert) and that of Mr Vogler, who was the independent expert. The evidence of both Mr Torabi and Mr Vogler was accepted by the High Court when we made our application against Telefonica.
Who would want to log in to GEILs website? Who? Who knows if they use this against someone in a follow up letter saying they have another IP address and this proves again that they are the infringer.
And Mr Vogler being an independent witness? I would agree to him being Independent if he didn’t get paid. I don’t agree that he is an Expert Witness.
GEILs finishes with;
In light of the above, we suggest you reconsider your position and if necessary seek professional legal advice. We look forward to hearing from you either by email <some “type of email”> or to our office at <some office where you dial premium rate numbers>, quoting your reference number <ref>.
<some signature who is not a person>
In light of being very much less than straightforward, dismissing a perfectly good legal response, a direct accusation of the subscriber being the infringer and an attempt to get the subscriber to log in to one of those “type of sites”, GEIL suggests the subscriber to reconsider their position (Back to the SRA Report, Andrew Crossley stated the LoC’s were “…to try and entice people to settle with us, because that is the object of the exercise to avoid litigation”).
The only part of this letter that actually gives good information is to seek legal advice (And that was Court Ordered)
I don’t know about you, but I wouldn’t reconsider my position if I received this letter!
But wait………what is this that accompanies the letter…………another letter!!!
Let’s see what this letter says:
GEILs starts with;
Thank you for your correspondence regarding infringing our copyright in <some copyright videos>.
Ah, “Without Prejudice”. That’s interesting. So effectively this letter they are offering some form of settlement for which it cannot be tendered as evidence in Court. See Wikipedia Article paragraph:
The term “without prejudice” is used in the course of negotiations to settle a lawsuit. It indicates that a particular conversation or letter cannot be tendered as evidence in court.
GEILs letter goes on;
We would be happy to settle this matter with you at this stage and would ask for <Some disproportionate amount> from you together with the undertakings and details of where to send payment.
Hmmmm……..I’m beginning to think that “Golden Eye” is actually the “All Seeing Eye”. In the first letter they are making the assertion that the subscriber is the infringer and then ask the subscriber to reconsider their position. In the second letter it seems they have anticipated the subscribers response and requested a settlement figure! Amazing! If they are really struggling because no one buys their material, with foresight like that they could pick six numbers and win the lottery! And guess the bonus ball whilst they are at it!
Also this article, Mr Julian Becker says:
Fundamentally we are pursuing those that are uploading not downloading, they are potentially uploading to millions of others who are also using these networks. How many they upload to is impossible to calculate, but in effect these violations are unauthorized distribution, we are not pursuing those who have simply downloaded one film.
That is interesting. The letter I seen was for one download. And apparently it is “impossible to calculate” how many “they upload to” but it is not impossible to calculate a settlement figure!
GEILs finishes with;;
If this is acceptable to you, we will send you an agreement to sign together with the undertakings and details of where to send payment.
Please respond in writing to either our office at <some office where you dial premium rate numbers>, or by e-mail to <some “type of email”> quoting your reference number <ref>.
<some signature who is not a person>
So sending the first letter to a subscriber asking them to reconsider their position simply because the subscriber denied their claim, then accompanying that letter with another letter proposing a disproportionate settlement figure on the basis that the subscriber has admitted the infringement could be considered injudicious.
Now such a settlement letter being sent by a private company is obviously possible because there is no regulatory body that can scrutinise GEILs actions.
An extract from Solicitors Disciplinary Tribunal (“SDT”) Case Number 10726-2011; between the regulatory body Solicitors Regulation Authority (“SRA”) and Andrew Jonathan Crossley, paragraph 91.16:
The settlement sums demanded were not based on any or any genuine assessment of the damages and costs for which recipients were liable. In interview with the IO on 16 February 2010, the Respondent had stated:-
“…actually I decided to take a more broad brush approach to this now and simply said “our client is prepared to compromise his claim in receipt of £540 or £495” whatever the figure is going to be, and that’s what it is and we believe the damages would be more in court, as simple as that. I don’t think we need to quantify how the compromise amount has been arrived at other than to say it’s the amount our client is prepared to settle at to avoid a claim.”
And a reminder of what happened to Andrew Jonathan Crossley, paragraph 109:
Statement of Full Order
The Tribunal Ordered that the Respondent, Andrew Jonathan Crossley, solicitor, be suspended from practice as a solicitor for the period of two years to commence on the 16th day of January 2012 and it further Ordered that he do pay the costs of and incidental to this application and enquiry fixed in the agreed sum of £76,326.55.
If the SDT judgement is that such practices warranted Andrew Jonathan Crossley being suspended for 2 years, then such practices must be considered unacceptable.
Anyone who has been a recipient of such a settlement letter could raise a complaint to various persons / organisation such as:
Judge: Arnold J. (NPO Judge) Clerk: Alison Lee, Tel: 020 7073 1789, email: firstname.lastname@example.org
Judge: Birss J. Clerk: John Curtis, Tel: 0207 947 7379, email: email@example.com
Write to your MP or Lords representative: http://www.writetothem.com/
Find your MP: http://www.parliament.uk/mps-lords-and-offices/mps/
Consumer Complaint – Citizens Advice: https://ssl.datamotion.com/form.aspx?co=3438&frm=citacomplainform&to=flare.fromforms
Open Rights Group: firstname.lastname@example.org
Court of Appeal civil division – Listing Office
For queries about listing cases for hearing, and other queries regarding hearing dates, and should also be used for queries about the settlement of cases
Telephone: 020 7947 6195/6917, Fax: 020 7947 6621, Email: email@example.com
Court of Appeal civil division – Associates
Relates to the Associates or Court Clerks and should be used for queries about Orders of the Court, and any other post judgment matters
Telephone: 020 7947 6879, Fax: 020 7947 6751, Email: firstname.lastname@example.org
Scrambled first letter page one: