Well, it is now over twelve months since the disclosure from O2 of their subscriber private details they provided to Golden Eye International (“GEIL”) following the Norwich Pharmacal Order (“NPO”) Court judgement and GEILs successful appeal.
This Anniversary now requires GEIL to perform their Court order obligation to destroy the private details of the O2 subscribers they have not sent a begging letter to (See below).
Within twelve months of the date of disclosure, the Applicants shall destroy all copies of any data which has not been used to either send a letter or claim or issue legal proceedings for infringement of copyright on the terms set out in this Order and shall provide written confirmation to the Respondent that such destruction has taken place.”
The interesting part of the above paragraph is “issue legal proceedings”. This would seem an assumption that a High Court Judge has a belief that GEIL will actually bring proceedings against alleged infringers and I believe it was crucial for the ruling of disclosure. This can be seen further from the following paragraph of the Order:
The Applicants are granted permission (to the extent that it is necessary) to use the information provided to it pursuant to the Order in paragraph 1 herein for the purposes of bringing separate proceedings for copyright infringement against those said persons (or any of them), and for the purposes of any pre-action correspondence relating thereto.
The part “for the purposes of bringing separate proceedings for copyright infringement against those said persons” is foremost and prominent in the Order, whilst “pre-action correspondence” is “relating thereto”.
Indeed, from the actual Court approved letter that GEIL sent to alleged infringers, it states:
In the event that that this matter cannot be resolved, it may become necessary for GEIL and BDP to bring a claim against you for copyright infringement. This claim would be brought in the civil court, where liability is determined on the balance of probabilities.
Our initial letters in summary gave details of the infringements the software had detected, giving specific dates and times in addition to film titles. The letters then gave the recipient our legal position and encouraged them to contact us so that we could make an informed judgement on whether we would be pursuing the case through the courts or ceasing action. It also gave the recipient the option to admit the offence, financially settle the matter as well as committing to not re commit the offence.
So “we could make an informed judgement on whether we would be pursuing the case through the courts or ceasing action” again is foremost and prominent.
The truth is GEIL have conducted a campaign of threatening Court action against alleged infringers unless GEILs settlement figure has been paid.
The truth is GEIL have not issued proceedings against any alleged infringer who denied their claim.
So will GEIL ever issue proceedings against an alleged infringer?
Of course we know that GEIL have a history of speculative invoicing. This Judgement from HHJ Birss QC shows GEILs intent. Quite clearly this shows GEILs true intention of only going after “default judgements” under Civil Procedure Rules (“CPR”), Part 12.1.
In order to secure a “default judgement” , GEIL would need to issue proceedings against an alleged infringer to the Courts and the alleged infringer fails to file an acknowledgement or fails to provide a defence to proceedings.
He was also concerned about the breach of the Civil Procedure Rules when issuing the claims. Copyright and IP cases can only be heard in certain courts and the money claims the online process used by Golden Eye is not set up for IP cases.
The truth is GEIL have never issued proceedings against an alleged infringer who has contested their claim.
So why would GEIL use the Money Claim Online route? Speculation is they tried this route against those who did not reply to their Letter Of Claim (“LoC”). It was unfortunate for GEIL that these individuals actually took action against their claim and did mount a defence.
The truth is that GEIL have absolutely no interest in issuing proceeding against anyone who denied their claim. Going after default judgements against those who did not reply to their LoC is their “modus operandi”.
The truth is this is NOT the correct actions from an organisation who wishes to protect their copyright.
The message is clear to GEIL. Back up your “Evidence”, “Technical witness” and “Expert witness” and issue proceedings against an alleged infringer who denies your claim.
The truth is no legal outfit or copyright holder has done this, and it will very likely never happen.