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.
O2/BE There Send More Pre-Warning Letters In Anticipation Of Further Golden Eye International Claims
In a repeat of last Decembers warning letters in anticipation of Golden Eye International Limited (“GEIL”) Letter Of Claim (“LoC”) of copyright infringement on behalf of Ben Dover Productions (“BDP”), O2/BE There have started to send out the same warning letter to their customers in what can only be in anticipation of further LoCs from GEIL on behalf of the other 12 producers.
GEIL successfully gained disclosure of O2/BE There subscriber details (Which was un-opposed by O2) from their Norwich Pharmacal Order (“NPO”) application in March 2012 for BDP, but were unsuccessful with the other 12 producers. They subsequently won their appeal for the 12 producers in December 2012.
The 12 producers (Listed in the NPO Court case) in question are: Celtic Broadcasting Ltd, Easy On The Eye, DMS Telecoms Limited, Gary Baker, Harmony Films Limited, Justin Ribeiro Dos Santos t/a Joybear Pictures, Orchid MG Limited, Kudetta bvba, RP Films Limited, Sweetmeats Productions t/a S.M.P, SLL Films Limited & Terence Stephens t/a One Eyed Jack Productions.
For the new recipients of these imminent LoCs, many will be completely unaware of what is effectively a “phishing” campaign by GEIL. This is because GEIL have only the evidence of a “monitored” IP address and with this they “bought” the subscriber details from O2/BE There. The letter under “Infringing acts” starts:
This letter assumes that you, as the internet account holder at your address, were the user of the relevant computer on the day and time in question
After making such a statement, the letter goes on to say:
In the event that you were not responsible for the infringing acts outlined above because, for example, another member of your household was the user of the computer, you should make full disclosure to us of the other parties at your residence using your internet connection to make the Work available for download
So they assume the subscriber is the infringer then say they may not be responsible, to which they say:
A failure to make such disclosure may lead to a claim being made against you with the court being asked to conclude, on the balance of probabilities, that you were the user of the computer
A completely innocent subscriber who has not committed the infringement, and not authorised anyone else to commit the infringement may receive a follow up letter demanding a disproportionate settlement simply because they respond with details of who also lives at their address.
The subscribers who will receive the latest letters GEIL are sending out can see from the NPO judgement that Judge Arnold said:
Furthermore, it will expose them to receiving letters of claim and may expose them to proceedings for infringement in circumstances where they may not be guilty of infringement, where the subject matter of the claim may cause them embarrassment, where a proper defence to the claim would require specialised legal advice that they may not be able to afford and where they may not consider it cost-effective for them to defend the claim even if they are innocent
This is the Judge who presided over GEILs NPO application, and this Judge knows innocent people will be targeted.
The Judge goes on to say:
What the Claimants ought to do is to proceed in the conventional manner, that is to say, to require the Intended Defendants who do not dispute liability to disclose such information as they are able to provide as to the extent to which they have engaged in P2P filesharing of the relevant Claimants’ copyright works
So from the words of the Judge, those “who do not dispute liability” are “to disclose such information as they are able to provide”. The Judge does not say that those who do dispute liability should disclose such information.
The man who has perpetrated this phishing campaign is Mr Julian Becker who is a director of GEIL along with Ben Dover (a.k.a. Mr Simon Lindsay James Honey). Mr Becker has been known to make rather odd quotes to the Adult Media Press, such as:
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.
Now the words there are totally misleading and could lead a subscriber who is innocent or guilty in to a false sense of assurance. “pursuing those that are uploading not downloading” is completely irrelevant because the nature of BitTorrent software IS downloading and uploading. And as I have found out, GEILs response to those who admitted one infringement is a demand of £350.00 which contradicts his statement of “we are not pursuing those who have simply downloaded one film”.
For those who have received the warning letter from O2/BE There and may receive an LoC from GEIL, what can you do?
As is always the advice:
BE CALM, DO NOT PANIC and DO NOT IGNORE.
The Citizens Advice Bureau (“CAB”) would be one of the first ports of call, they can be contacted on 08454 04 05 06, their website at adviceguide.org.uk or you can attend your local Citizens Advice Bureau.
The Open Rights Group (“ORG”) are there to give guidance and advice also.
The Speculative Invoicing Handbook Second Edition provides valuable information and a recommended read.
Read here for testimonies of those who received letters similar in the past, and realise YOU ARE NOT ALONE.
This link is the only fragment left of a thread that was started on The O2 Forums. I joined the thread and posted a total of 5 posts (31/03_2012), engaging with the board users “Perksie” “Brownie” and “O2MACH”
I don’t believe I was rude in any way. I pointed out that I believed that O2 did NOT fight for their customers and I used the published Judgement to prove the points that I made.
In a covering letter dated 20 September 2011 Golden Eye stated:
“We are the First Applicant and act for the Second – Fourteenth Applicants in this application.
It may be somewhat unusual for the Applicants to apply on their account. However, there has recently been a certain amount of publicity associated with this type of claim (ACS Law; Davenport Lyons). We therefore believe that we will be best served acting for ourselves.”
The letter went on to request that the claim be considered on paper, and enclosed a copy of the skeleton argument which had prepared by counsel instructed on its behalf on the application against BT.
On 7 October 2011 Baker & McKenzie filed an acknowledgement of service on behalf of O2 stating that O2 did not intend to contest the claim.
I pointed out that it was strange that O2 were the only ISPs targeted by “Golden eye International” and further pointed out that PlusNet have been very robust since their experience with ACS:LAW and have come out on their own forums and said, they will resist a Norwich Pharmacal Hearing that would allow a company to have access to their Customers private information.
It seems O2 did not like this dose of truth. I have tried to contact O2 but have had NO REPLY
Their seems to be a media output on their behalf of “O2 had no choice” and “O2 FORCED to hand over customer details. Both of these IMHO are false.
O2 DID have a choice, they could have said NO.
This was blown out of the water at a previous hearing by Judge Birss who presiding over the ACS:LAW/Media C.A.T debacle (That used the same software to monitor) he stated.
“Assuming a case in MediaCATs favour that the IP Address is indeed limited to wholesale infringements of the copyright in question… MediaCAT do not know who did it, and know that they do not know who did it”
Further to my point of O2 HAVING a choice to say NO, I include the communication between O2 and ACS:LAW that quite clearly shows, they could have said no then, but merely asked ACS:LAW to change some of the legal arguments to suit them better.
If “Perksie”, “Browni” or “O2MACH2” would like to continue our discussion, they are more than welcome to do so here..
UPDATE 1: From O2 ..
@acs_law_illegal Hi there, we’ve just moved to a new forum and only moved over the busiest topics
Hmmmm oh Reeeeaaaalllly
Telefonica Spanish owner of O2, were approached by Golden Eye International with a request to disclose 9124 (NINE THOUSAND ONE HUNDRED AND TWENTY FOUR) of its customers details. “Golden Eye International” (GEIL) is a trading name for “Ben Dover”, the Pornographers.
It is astonishing to think that this request came on the 20th September 2011, a FULL year after the ACS:LAW debacle unravelled. At a time when all other ISPs have stated they would not work with the “Speculative Invoicing” scheme, O2 alone has bucked the trend.
They did NOT fight for their customers, rather they SOLD them out
5: On 7 October 2011 Baker & McKenzie filed an acknowledgement of service on behalf of O2 stating that O2 did not intend to contest the claim.
6: On 18 November 2011 the parties were given notice of a disposal hearing before Chief Master Winegarten on 6 December 2011. On 28 November 2011 Baker & McKenzie wrote to the Chief Master to confirm that O2 did not oppose the making of an order in the terms submitted by Golden Eye, and therefore did not intend to attend the hearing. At the hearing on 6 December 2011 Mr Becker attended on behalf of the Claimants. The Chief Master raised a number of questions about the proposed order, which he asked Mr Becker to relay to Baker & McKenzie. Mr Becker duly did so, and on 14 December 2011 Baker & McKenzie wrote to the Chief Master answering his questions. In the letter Baker & McKenzie stated that, prior to issuing the Claim Form, Golden Eye had provided O2 with a draft of the proposed order and that Baker & McKenzie had made amendments to the draft. A number of amendments were identified and explained. The letter reiterated that O2 did not oppose the making of an order in that form. Having considered the letter, the Chief Master decided to refer the claim to a judge.
120: In consider the proportionality of the order sought, it seems to me that it is important to have regard to the precise terms of that order. The terms of the draft order having been negotiated between Golden Eye and Baker & McKenzie, it is in a form that O2 is content with. Thus it may be regarded as proportionate as between the Claimants and O2
32:1: 4(b) Within 7 days of the date of this Order, the First Applicant, on behalf of all the Applicants, shall pay into an escrow account to be held by the Respondent’s solicitors, Baker & McKenzie LLP, (the ‘Escrow Account’) a sum equal to £2.20 per IP address requested within the initial Batch together with £2500 costs to be held as security for the costs specified in paragraph 5 below.
They COULD have contested it, but CHOSE not to.
If YOU are a subscriber of O2, I think maybe you should consider moving to an ISP who values you as a customer more than the needs of a Pornographer who after all is merely following the example of ACS:LAW. Golden Eye International after all were first represented by Tilly Baily Irvine. It was only when TBI reacted to the negative publicity including being named in the House of Lords that they withdrew and GEIL continued.
Their will be another hearing after Easter regarding the GEIL hearing and how the letters will be composed, one thing is for sure GEIL did NOT get what they wanted.
This is not a new direction more an attempted refinement of the scheme that Davenport Lyons, ACS:LAW, Tilly Baily Irvine and Gallant Macmillan/Ministry of Sound have attempted and failed. It should be treated with the same contempt.
The contempt indeed that O2 have shown it’s customers.
Previous Posts RE Golden Eye International
Terence Tsang is working for PSB LAW. The former Davenport Lyons and ACS:LAW Paralegal, had gone off the radar as far as those interested and greatly affected by the dealings of Davenport Lyons and ACS:LAW were concerned.
After a brief stint at Cramer Pelmont that ended at the same time as leaked emails from ACS:LAW showed that he had continued working for them whilst at Cramer Pelmont, he seemed to have dissapeared.
The fact he has been so hard to find is that Terence Tsang has stopped using his real name and has adopted the new name of Terence Jintin (This may actually be his middle name) What is of interest is that PBS LAW it would seem have gone to great pains to conceal his identity.
On their website the actual text describing their team members is HTML text, however on Tsangs it is an actual image. This has the effect of being invisible to both Googles and other search engines “Search Robots”. In addition to this, in the HTML of the page “About us” there is in the header a HTML intruction <meta name=”robots” content=”noindex,nofollow” /> this instruction will stop a search engine actually indexing that page and any links from it. In effect this makes the page invisible to normal searches and would only be seen by someone who was on the actual PSB LAW website. there is NO link to Tsang/Jintins presence on this page. All rather strange.
To be clear Google and other search engines will search and index the total PSB LAW website EXCEPT Tsangs own page.
One has to wonder WHY Tsang has changed his name. If what he had done at Davenport Lyons and ACS:LAW was so right and above board, then why try to hide? Of course the Courts have not found what Davenport Lyons and ACS:LAW did was right, and neither has the Solicitors Regulation Authority that has sent both Davenports Brian Miller and Dave Gore and ACS:LAWs Andrew Crossley to their Disciplinary Tribunal.
There are many ways to hide online, doing what PSB LAW has attempted to do, may have worked, however the best way to remain anonymous online and protect your name and reputation seems to me to not upset people in the first place by exercising dubious legal methods.
The FULL hearing into Davenport Lyons Lawyers Dave Gore and Brian Miller.
(On Page 7 at 18 the cryptic letters are as follows …
Tw = Topware Interactive
Cm = Codemaasters
RP = Reality Pump
T = Techland
A = Atari
Dp = Digiprotect
Ls = Logistep)
I realise they may be seeking anonymity, but NONE of them have apologised for the pain they caused, so I think they are fair game.
It has come to my attention that this PDF is NOT searchable, so here is one that is. I must caution you however that this is an OCR Conversion and may contain grammatical innacuracies.
I would urge you to use this one for it’s search capability and then compare the results with the original. Unlike those engaged in Speculative Invoicing, I like to be accurate… I hope you understand.
Here is the SEARCHABLE version
Please post any observations or comments below.
To Download each version. Please click HERE for the original….
As has been already reported this week, Davenport Lyons duo, Dave Gore and Brian Miller have been punished by the Solicitors Disciplinary Tribunal. One would have thought that this would be an end to the saga, many thinking that they got off quite lightly with just a £20,000 fine and a suspension of a mere three Months.
Not good enough for Davenport Lyons though, they plan to appeal…. After wreaking havoc for two years on the General public before introducing us to ACS:LAW and Andrew Crossley. During their two year regime of Speculative Invoicing, they were featured on the BBC Watchdog Program incurred the wrath of Which Consumer Group and also Internet Forum Slyck and influential Blog TorrentFreak.
Why did they garner such attention? Well apart from the accusations of Old Age Pensioners sharing games and others some quite vile Pornography films :2:, the people of Britain realised that this was NOT the “Piracy Crusade”, it was made out to be.
The Solicitors Regulation Authority investigated, (some say to slowly), and they found there was a case to answer, the Davenport Duo were hauled before the Solicitors Disciplinary Tribunal in a hearing that lasted a whole week and were found guilty on SIX counts of violating the Solicitors Code of Conduct.
They have issued a response to the sanctions levelled at the two Solicitors involved:
‘We consider the decision of the Solicitors’ Disciplinary Tribunal and sanctions imposed against David Gore and former partner, Brian Miller, are totally unjustified.
Well see how foolish the opening line is? Unjustified? Davenport Lyons are a Firm of Solicitors regulated by the Soliciors Regulation Authority(SRA), they were investigated by the SRA and found wanting, FULLY JUSTIFIED.
‘Davenport Lyons is a leading law firm with highly specialist intellectual property lawyers. We were instructed by the owners of intellectual property rights in music, film and games to help them curtail the significant losses they were suffering as a result of the unlawful file-sharing of their products.
As a “Leading law firm”, they should have known better. Instructed by Owners of Intellectual property? Hmmm like maybe John Stagliano or maybe Digiprotect? . Hmmm Confusing I think as the SRA has stated, ‘used their position as solicitors to take or attempt to take unfair advantage of other persons, being recipients of letters of claim, either for their own or for the benefit of their clients’ speaks for itself.
The steps we took on behalf of our clients were for the protection of their legitimate legal rights. We consider that we acted in our clients’ best interests at all times.
Well Digiprotect was one of your clients, and here goes: DigiProtect is acting on behalf of one of the biggest adult studios in the United States, Evil Angel, run by American porn mogul John Stagliano. When contacted, Mister Stagliano appeared to be unaware of the £500 DigiProtect is demanding from alleged file-sharers to settle out of court.
“It’s not my understanding that they ask for anything near that. I think the amount was $50 (£34) or €50 (£43),” he said. “I would be very surprised and I wouldn’t be happy because it would mean it was completely misrepresented to me.”
Now what is Digiprotects Corporate Motto again…? Ahh yes “turn piracy into profit”
‘We wholeheartedly support David and Brian’s intention to appeal both the Solicitors’ Disciplinary Tribunal’s original decision and the resulting suspension and fine.’
I am sure you do, but as Michael Coyle of Lawdit said of you in the beginning…
“The cynical lawyer in me would say this is a money-making exercise. “If you send out 10,000 letters and ask for £500 each time, you only have to get half to pay up and you’ve made a significant amount of money. “Because it is porn, the person who’s being accused won’t want to go to court and is more likely to pay up to make the matter go away even if they are completely innocent.”
And more interestingly this is what Judge Birss said of those who followed you in this “Speculative Invoicing” ACS:LAW
“Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court,” said the Judge. “Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?”
Why don’t you just hold your hands up and say “We are sorry, we are sorry for the pain we have caused by our false accusations and the linking of innocent peoples name to such horrid vile pornography.”
I will leave the last word to Andrew Crossley the Solicitor who you (According to the SRA) helped to set up and carry on the “work” you started.
Dave Gore and Brian Miller have been suspended by the Solicitors Disciplinary Tribunal for sending intimidating letters of claim to members of the general public that they accused of filesharing. *
Although Gore and Miller accused the people they sent letters to , they never gave them a chance to prove their innocence in Court, they relied on people not responding to their letters to get dubious “Default payments”
The Suspension willl be for three months and they will be fined £20,000.
The SDT said:
Their judgment became distorted and they pursued the scheme regardless of the impact on the people receiving the letters and even of their own clients.
In addition to the £20,000 fine, Miller and Gore were ordered to pay interim costs to the SRA of £150,000.
The SDT went on to say:
“Some of those affected were vulnerable members of the public. There was significant distress. We are pleased that this matter has been brought to a conclusion and hope that it serves as a warning to others.
“Solicitors have a duty to act with integrity, independence and in the best interests of their clients. Solicitors who breach those duties can expect to face action by the SRA.”
The order has been suspended for 21 days to allow for appeals.
Although this is a welcome development, it no way goes to be an adequate punishment for the pain caused. £20,000 fine would be easily miniscule to the profit that was made from people scared of legal letters and paying up to make the situation “Go away”, Davenport like their successor ACS:LAW aimed the letter of claim at a cynical price of £500 – £750, the same cost to employ a lawer to fight the claim.
A Three month supension will allow them to be back in work for the New Year.
We look forward to seeing what the SDT does with the ACS:LAW/Andrew Crossley hearing later in the year, but after this rather dissapointing ruling we dont expect much.
*(For more on the background of Davenport Lyons “Letter of Claim” see the excellent Torrentfreak that broke the news way back in 2007)
**Davenport Lyons has issued a response to the SDT Findings.
“We were instructed by the owners of intellectual property rights in music, film and games to help them curtail the significant losses they were suffering as a result of the unlawful file-sharing of their products.
“The steps we took on behalf of our clients were for the protection of their legitimate legal rights. We consider that we acted in our clients’ best interests at all times.
“We wholeheartedly support David and Brian’s intention to appeal both the Solicitors Disciplinary Tribunal’s original decision and the resulting suspension and fine.”
Just a thought Davenport Lyons, when you are in a hole, STOP digging, you have been found guilty in the Court of Public Opinion a long time ago, and that could be easy to dismiss, however NOW you have been found guilty by you own regulatory body and their disciplinary body.
Accept you have done wrong and APOLOGISE for the pain you have caused.
You are going down the same road as Andrew Crossley and ACS:LAW by denying that you have done anything wrong. Last time we looked that path was not good…
Yesterday at the Patents Court Judge Birss gave ACS:LAW/Andrew Crossley such a kick up his ample backside that the ripples will be felt throughout the Legal Profession.
In one of the final hearings into the Court Cases that ACS:LAW were due to bring against 27 alleged infringers (Read Innocent people) the Judge has turned his attention to Wasted Costs, ie ACS:LAW/Andrew Crossley wasting everyone’s time with his ridiculous Business Plan of targeting innocent people for alleged filesharing
I have covered the previous parts of this case on my Blog and it has also been reported rather nicely on the Torrent Freak Website.
Some stand out moments from yesterday include, comments from Judge Birss
Agreements between ACS:LAW and Media C.A.T) In my judgment there is an apparently strong prima facie case that the Basic Agreements are improper and champertous
Assuming Mr Crossley has indeed made a loss so far (and I am not satisfied I have the whole picture relating to the finances of this exercise in any event) it does not alter the fact that the Basic Agreements are improper and unreasonable.
Mr Tritton (Ralli Barrister) submitted that the Basic Agreements were negligently drafted by ACS:Law and the negligence was not merely an unintended act of incompetence but was done for ACS:Law’s benefit
In my judgment the drafting of operative clause 1.1.1 in the Basic Agreements was prima facie negligent. Mr Parker(ACS:LAW Barrister) did not advance a case to deny that, he submitted there was no evidence Mr Crossley was responsible for the drafting of the Basic Agreements. I have already dealt with that above. Mr Crossley was plainly responsible.
(NPO Applications)This is yet another example of conduct by ACS:Law which, at best, can be described as amateurish and slipshod.
(On reports that SHOULD have been sent to ISPs) I will hear counsel as to whether I should direct ACS:Law and/or Media CAT to provide the report to the court and the defendants’ solicitors or explain why there is no report to provide.
In summary, consideration of the Norwich Pharmacal orders in this case reveals, prima facie, a series of errors and questionable conduct by ACS:Law….
(On the letter of claim) In my judgment the letter is plainly negligent and may well be improper.
(Negligent Correspondance) ACS:Law’s conduct was chaotic and lamentable. Documents which plainly should have been provided were not provided. This was not the behaviour of a solicitor advancing a normal piece of litigation.
( GCB Debacle) I have already found the GCB episode shows that ACS:Law knew perfectly well that Media CAT intended the letter writing campaign to be pressed ahead with despite the court being told that the Notices of Discontinuance were being used in order for the claimant to give the matter further consideration. That finding provides further support for my finding that there is a prima facie case of unreasonable conduct by ACS:Law in relation to the Notices.
In my judgment the combination of Mr Crossley’s revenue sharing arrangements and his service of the Notices of Discontinuance serves to illustrate the dangers of such a revenue sharing arrangement and has, prima facie, brought the legal profession into disrepute
(Crossley 3rd Witness Statement) In his third witness statement Mr Crossley set out draft accounts and in paragraph 7 he summarised his position. He stated that the business model has been neither profitable nor rewarding for him in any way at all, and that neither himself nor ACS:Law solicitors have funded these proceedings and have not benefited from them. He said the control which ACS:Law has had over these proceedings is only to the extent that any litigation solicitor would have over his litigation client’s affairs and no more. He continued “By contrast both the claimant and the various copyright owners that it was representing received considerable income from the business model without any cost to them.”
There is a good arguable case that ACS:Law / Mr Crossley will be liable for the costs of this case and I will add ACS:Law / Mr Crossley as a party to this action for that purpose.
Barrister Guy Tritton is already on record describing the ACS Law case as the “most appalling case” he’d seen in his career, stressing it was a unique incident.
The Court hearing will be reconvened on the 17th June just two weeks AFTER the Solicitors Disciplinary Tribunal meets to decide what THEY are going to do with Andrew Crossley.
In Crossleys own words “Exciting times”
If a Man claims that he won’t burgle a shop, and has “Safeguards” to prevent himself from doing so, but then burgles the shop anyway, can you imagine a Judge saying, “Oh that’s ok, you had ‘safeguards’ so that you wouldn’t do it, the fact you HAVE done it is irrelevant”, can you see this happening? No of course not, but in what can only be described as a “parallel universe” ruling, the Information Commissioners Office (ICO) has done just that.
BT who sent details of their Subscribers to ACS:LAW, didn’t even encrypt the Excel Documents. ACS:LAW had gone to Court with a list of IP addresses claiming that they belonged to “Copyright Infringers”, BT WITHOUT mounting ANY defence at Court to defend their Loyal subscribers, sent the documents to ACS:LAW with NO protection whatsoever.
The Documents contained the following information on over 400 Subscribers their names, Postal address, IP Address, Alleged date of infringement (Hit Date), Time (UK Date Time), and the Content Name.
On the Plusnet Forums, angry Subscribers wanted answers, they still do. A thread on the forum has attracted 130 pages, over 2000 replies and close to 100,000 views. They have STILL not got the answers regarding ACS:LAW. True Plusnet HAVE engaged with their subscribers on the forum, but they are stuck with having to deal with this issue via the BT Legal Team.
The ICO speaking to the Guardian said, The ICO closed its investigation into the apparent data breach earlier this month after ruling that BT was not liable for the mistake, which it said was committed by one of its employees. It added “Where it is found that the data controller has adequate policies and safeguards already in place, the usual and most appropriate outcome in these cases is disciplinary action taken by the employer”
Well we KNOW who that Employee is, his name is Prakash Mistry, he is the Senior Finance Manager at BT. Not sure about you, but I really don’t see much discipline happening there, do you? No ICO has acted shamefully in this, as the Solicitors Regulation Authority have in regards to ACS:LAW.
There seems NO justice for the man on the street in all of this and seems a classic example of a Corporation flouting the rules with impunity.
A letter from Prakash Mistry to ACS:LAW requesting a “Report”(A requirement of the NPO order RE Plusnet) into how many people had been taken to court, was met by an arrogant letter accusing those requesting the report on the forums were;
“… written by pro-piracy advocates with their own specific agenda” and “our client is taking away a method of obtaining their members copyrighted works without paying for them and that upsets those who have enjoyed free media this way”
These were outrageous slurs on their subscribers, met with SILENCE by BT.
These concerns of course can be dismissed, BT being a corporation (No soul to damn, no ass to kick) and ACS:LAW a one man band, whose Boss Andrew Crossley is now discredited in the eyes of many.
What can’t be dismissed is the LACK of protection afforded to those affected by the ICO, as with the SRA it seems they are toothless; ball-less, impotent shadows, paper tigers with all the bluster of action but with the movement and intent of a slug.
UK Information Commissioner Christopher Graham told the BBC he had new powers, to act with fines,(Regarding ACS:LAW) of up to £500,000, but much like the BT “Safeguards”, that only works IF IT IS USED! Can we really look forward to the ICO doing much better with the case against ACS:LAW? We wait and see, but not holding any breath.