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Golden Eye Sees But Doesn’t Listen To Those Who Are Innocent

June 13, 2013 7 comments

Thanks Hickster

GEIL: Deny Infringement? I'm Not Listening!

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:

Approval

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.

Template Response

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.

We know that Mr Julian Becker is a “Solicitor Wannabe” pornographer:

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 SRA Report into ACS:Law paragraph 239 states:

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.

The last time I looked, Clem Vogler or Ad-Litem is not registered as an expert with the Expert Witness Directory.

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)

Court Decision

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.

Justice Arnold considered this in the NPO judgement when he said in paragraphs 126 & 127:

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.

Technical Evidence

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.

Further Details

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.

Conclusion

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>.

Yours faithfully

<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:

Without Prejudice

GEILs starts with;

WITHOUT PREJUDICE

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.

Settlement

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!

Conclusion

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>.

Yours faithfully

<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:

Judges Clerks: http://www.justice.gov.uk/courts/rcj-rolls-building/chancery-division/the-chancery-judges

Judge: Arnold J.  (NPO Judge) Clerk: Alison Lee, Tel: 020 7073 1789, email: alison.lee2@hmcts.gsi.gov.uk

Judge: Birss J.  Clerk: John Curtis, Tel: 0207 947 7379, email: john.curtis3@hmcts.gsi.gov.uk

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: info@openrightsgroup.org

Which? http://www.which.co.uk/about-which/contact-us/email/ or which@which.co.uk

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: civilappeals.listing@hmcts.gsi.gov.uk

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: civilappeals.associates@hmcts.gsi.gov.uk

Scrambled first letter page one:

Court of appeal permits Copyright Trolls to have their friends join the party

December 22, 2012 2 comments

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On Friday a Judgement was made by the Appeals Court with regard to Golden Eye International(GEIL)

GEIL the Copyright Trolls, who are resurrecting the ACS:LAW “Speculative Invoicing” had originally been denied their chance of using 12 other Porn Companies in their Legal Action.  They appealed and now the Court has awarded them what they had wanted.

This was not unexpected however it is VERY disappointing, O2 Subscribers were represented by Open Rights Group (ORG), and they put up a good show according to the Court record.

Although ORG could not stop the appeal, there are some positive points to be had however, GEIL had depended on a high volume of letters being sent out, that is after all the only way this “Alternative revenue scheme” can work.

After being rejected by the initial Court hearing and only having just under 3000 Ip addresses captured by their Software Monitor, they duly sent them off to O2 to have them matched to actual subscribers who would then receive a letter from them asking them to explain why they had infringed their Copyright.  GEIL must have been disturbed to see just under a 1000 actual matches.  This is a woeful amount, considering the “Software Monitor” is a “Forensic Expert”.

With the disparity in captured IP addresses and the actual matching of them to subscribers one can apply some logic to see that now GEIL have won their appeal, and have the other Producers on board, they can now send the remaining 6000 IP addresses to O2, but based on the low quality of the Monitoring, one can see that it could lead to less than 2000 retuning as being matched.  This of course will leave GEIL with around 3000 actual details they can send their letters to.

GEIL had originally planned to charge £700 per letter, that will not happen as the original Court hearing said no, GEIL also wanted to state that the Subscriber was responsible for the Infringement, regardless of whether they knew or not.  The Court has also said no to that reasoning.

Also unlike when ACS:LAW were practising a similar Legal action, no one really knew much about it, now they do, and this will be the greatest threat to GEILs plan.

For further reading

See Here and Here

The Judgment can be read here

Also join the debate here

Golden Eye International – The Players

December 10, 2012 6 comments

player

Lindsay Honey – Ben Dover Productions

http://en.wikipedia.org/wiki/Ben_Dover

Lindsay Honey is the self serving, self styled, “Biggest Porn star in the UK”, served jail time for “publishing obscene material for gain” and “being in possession of obscene material”.  Wants to be considered a “Serious actor”, but comes across as a desperate almost “Big Brother” style attention seeking Z-Lister.  Released a Football song for the 2010 World Cup Finals, (yes really), tried his hand at Stand up as well!!  and has stated in interviews that he needs to get money from people who will not buy his Pornography.

“At the end of the day, if I can’t make money out of porn, the only way I can make money is to get to the people who are not buying it,” Honey explains. “I need to earn a living. I’m not a charity.”

Of course most people who have grown too old for their profession would gain employment in another field, or retire.  Honey has obviously tried and failed as an actor, and a singer, oh and a Stand-up Comic, so must rely on a “Speculative Invoicing” scheme to gain extra money.

Maybe we can use Honeys own words in this April 2011 interview http://www.cherwell.org/lifestyle/interviews/2011/03/09/how-about-you-ben-dover- where he actually tells the real story why there is no money in his profession.

“The internet is the main poison that’s now rapidly killing off the industry. Back in 1986 you could sell a 3-hour VHS porn tape for about £65.00, which would be about £150.00 in today’s money. Now you can get anything you want at the click of a mouse. For free.”

This interview was after Golden Eye Internationals first round of “Speculative Invoicing” letters, and there is no mention of his new career of being a “Copyright Troll”.  In fact, another statement he makes in the interview is more close to the truth.

“It’s strange but you could make a great movie with the best looking porn stars in the world, and you’ll probably make a very small profit over several years.”

And yet he goes on to say,

“‘My critics do affect me badly.  Sometimes so badly that I have to leave my 6 bedroom mansion in a gated executive park in Surrey, get in my Ferrari and drive to the airport to fly out to my luxury villa in Spain and take a long leisurely swim in my beautiful blue sparkling pool overlooking the Jalon valley!’”

One wonders why, given that he is always bragging about how wealthy he is in interviews,

When I say I’m skint, people say, ‘No, you’re not skint mate, it’s just now you’ve only got three cars instead of five.”

maybe his recent split from his Wife has something to do with it.

In the interview, it can be seen his sheer opportunism in relation to using other peoples success, But because of his(teenage Sons acting) career, I’m now in touch with people like Ricky Gervais, Andy Hamilton, people like that….You know, Armstrong & Miller, Rob Brydon, people like that. I’m trying to think of anything that I can do…I’m trying to build up an audience on YouTube then sell it to Channel 5 or let Ricky Gervais..”Hmm good luck with that!

For a view of what other people think of Mr Dover see below

http://www.scribd.com/doc/116289467/Mr-Ben-Dover

Julian Becker Optime Strategies/Golden eye International

http://www.justgiving.com/Julian-Becker

Address of Optime Strategies – Suite 10 Halton Close, Barnet, N11 3HQ

http://company-director-check.co.uk/director/908460166

Becker is Director of both Optime Strategies AND Golden Eye International.

http://www.whorunsit.org/companies/04527808

Julian Becker

Head of Sales at Andromeda Telecoms Ltd

Becker has been Director of THREE other companies all of which are now dissolved

Julian seems to be the perfect statesman.  The media savvy guy who is always able to provide the right quote.

One such quote from him in this link from computer active dated May 2012 regarding the Governments proposal for automatic porn filters, he states.

“While personally I dislike this nanny state intervention, a ban wouldn’t have any effect on our revenues as those that pay for our product have already registered their details as well as undertaking an age-verification process. It may even assist combating online piracy, therefore increasing our profits,”

Whilst in September 2012 in this link he says.

“The government is also looking at filtering and that poses a threat to the adult industry as well,” he said. “This isn’t great news for the industry either.”

More from Becker can be seen here….

 Alireza Torabi – NG3 Systems

http://uk.linkedin.com/pub/alireza-torabi/25/888/a33

Torabi is the person behind the controversial tracking software used by ACS:LAW, it is now being used by Golden Eye International, despite it never being scrutinised in a court of law.  According to ACS:LAW email leaks there were about 30% of the so called “Alleged infringers” IP addresses that simply did not exist according to the ISPs

In the ACS:Law leaked emails, Torabi was going to be replaced by Guardaley GmbH.  You can understand why with just one example of a comment from Adam Glen to Andrew Crossley dated August 2010.

“The recent indication by Ali that he is willing to change his position regarding what protocol/client was used by an infringer causes me alarm.”

Bear in mind that Torabi was described by both ACS:LAW and now Golden Eye Inernational as their “Forensic Expert” How forensic can you be if you are willing to change the very evidence required to fit the accusation?

Torabi runs a number of different “Businesses” online, one of which is XYPY, and rather strangely for someone who seems to make money by selling IP addresses to Copyright Trolls, it is a VPN service, even stranger than that, after a few enquiries from some intrepid Slyckers, the English page was removed and replaced with a Persian language one… Hmmm

VPNs are commonly used to hide the true identity of an internet user, there does seem to be somewhat of a conflict, between a person who on one hand sells Peoples IPs and on the other hand seemingly helps hide them.

The IP addresses of his businesses are all the same

http://www.xypy.net – 190.120.227.70

http://www.aleriza.me – 190.120.227.70

http://www.cyberdealer.co.uk – 190.120.227.70

http://www.ng3systems.com – 190.120.227.70

For how the old XYPY looked see here.  http://translate.google.co.uk/translate?hl=en&sl=fa&u=http://www.xypy.net/&prev=/search%3Fq%3Dxypy.net%26hl%3Den%26safe%3Doff%26biw%3D1201%26bih%3D919%26prmd%3Dimvns&sa=X&ei=vPkmUOu8N4rD0QXiv4CoCg&ved=0CEkQ7gEwAA

Torabi was Director of one other company that has been dissolved.

http://statsie.com/ng3sys.com

Big thanks to Bpaw

This page will be update, as and when!  Please comment

O2 send Pre Warning letters to customers (whose data they have “sold” to Golden Eye International) UPDATE 3

December 1, 2012 4 comments
o2received011212 (bls)_sml

Letter from O2

bthere_sml

Letter from BeThere

It has emerged today that O2 and BeThere, have sent out letters of warning to their Customers in light of the Norwich Pharmacal (NPO) they failed to defend against Pornographers Golden Eye International/Ben Dover Productions (GEIL/BDP).

The letter is quite generic, but interestingly does point the recipient to the Citizens Advice Bureau (CAB).  This is actually significant, as Consumer Focus (who intervened on behalf of O2 customers at the Court Case when O2 acquiesced to GEIL/BDP) won a good victory in ensuring that the CAB would be informed and would have all the relevant information ready for anyone who contacted them when they received a letter.

The fact that O2 and BeThere have included this in their warning letters, must come as a blow to GEIL/BDP as this will give  an effective “heads up” for those receiving the letters that they will send.  In the past campaigns of Davenport Lyons and ACS:LAW and also Tilly Baily Irvine and Gallant Macmillan, the ISP was forbidden to contact their customers in advance, this seems like a real oversight by GEIL/BDP and could cost them dear.

The Speculative Invoicing model that GEIL/BDP are pursuing relies on people being uninformed and paying up out of fear of Court action, that fear in the past has been fuelled by the previous law firms involved insinuating that an alleged infringer had a choice of paying between £500 and £700, OR face Court action that they could not possibly win, with the threat of thousands of pounds in court costs being awarded against them.  One can easily see the stark choice and why so many even innocent people paid up.  The evidence against them however was nothing like what they had been told.

Davenport Lyons, ACS:LAW, Tilly Baily Irvine and Gallant Macmillan, were all punished to a lesser or greater extent by their regulatory body the Solicitors Regulation Authority.  GEIL/BDP are not bound by this although their solicitor Mark Wagner of Wagner and Co is.

Around December the 10th GEIL/BDP will be back in court to try to appeal against the ruling that they can only claim copyright for their own films, another ten producers are waiting to join the action.  As things stand around just under 3000 letters will be sent out soon by GEIL/BDP, however if they win their appeal a further 6000 could be sent.  As can be seen in the NPO O2 are charging £2.20 per ip address.

Open Rights Group (ORG) is taking over the appeal role from Consumer Focus, they are seeking support from those outraged by this continuing practice. Contact them here. (I am NOT affiliated with the Open Rights Group in any way, but do agree with the support they give and the reasons they are doing it)

It remains to be seen how this will pan out, but apart from the CAB a good source of info for all this is Slyck Forums and Torrent Freak

The NPO is here.

UPDATE 1:

The NEW update to the Speculative Invoicing Handbook has now been released… Thanks to “Beingthreatened”

UPDATE 2: It is being reported that out of the 2800 IPs that Golden Eye applied for from O2, O2 are saying they have been able to match less than 1000, this is a VERY POOR return by any measure and really undermines the confidence in their Monitoring System.

UPDATE 3 The “Speculative Invoicing Handbook Part 2″ can be seen here, with PDF download link

Golden Eye International: The “EXPERT WITNESS” UPDATE 1

October 30, 2012 8 comments

Clem Vogler requested his image removed by DMCA

By Bpaw/Hickster

Here on this blog, much justified attention has been assigned to the “Speculative Invoice” participants.  Although these rogue characters (Which we all know!) justify their acknowledgement here, they owe their unsuccessful efforts to their “legitimate” seal of approval by an “Expert Witness”.  This “Expert Witness” has effectively swayed every Judge in the High Court to grant every Norwich Pharmacal Order (NPO) that has appeared before them.

So who is this “Expert Witness”?????  Step forward Mr Clement Charles Vogler.

Clem Vogler has in the past provided “Expert Witness” reports for Law Firms practising what is commonly known as “Speculative Invoicing”, what has been declared in the House of Lords as “Legal Blackmail”.  The Law firms, Davenport Lyons and ACS:LAW are listed on his website, but now so are Golden Eye International (GEIL).  GEIL however are NOT a law firm, they were however represented by one of the Law Firms that practiced “Speculative Invoicing”.

Vogler gives the “ok” to the monitoring software that is used to identify the IP addresses of alleged copyright Infringers.  The problem is the software has never been scrutinised by a Court of Law and its inner workings are not public knowledge.

In this post we will look at Clem Vogler in more detail.  He is after all the man who puts the seal of approval on the software that has identified tens of thousands of alleged infringers.  Of course the fact that all the Law Firms involved have had their fingers burnt with heavy fines or Solicitors being suspended (one Law Practice actually went bankrupt and its head was suspended for TWO years), has not stopped Mr Vogler from continuing doing what he does.

Clement Charles Vogler could be regarded as a Walter Mitty character.  The self-declared computer expert, expert witness, Chartered Physicist, Technical Partner in Ad Litem, Database writer, Runner, Local Councillor……the list goes on.

For reference, see http://www.adlitem.co.uk

So what can be said about him that’s true?

Well NOT that he is a Computer Expert!

A Computer Expert: (The following statements link to the individual posts)

“The messaging interface has returned an unknown error” It says, helpfully.It leaves emails still sitting in the Inbox that I want to consign to the delete box. Oddly enough, if I go to another folder and delete something there, it will sometimes work – and then even allow me to delete a message or two from the Inbox before reverting to the error message. I’ve removed Outlook and re-installed it, with no improvement. No idea why this problem has arisen – it was fine till yesterday and I’ve not altered anything in the meantime. Any ideas?

I don’t seem able to prevent another pc on my network from connecting to the
internet through my host pc.

I used to print single address labels on my Epson LX300 dot matrix – using MS Word (envelopes and labels). That was with W95 and W98 Now I have XP, it doesn’t work. Instead of printing  one label and advancing obediently to the top of the next, it puts in a form feed and runs through six or seven rows of blank labels. I assume this has something to do with XP not being DOS based. I don’t mind buying a new printer,  if I could find one that behaved itself under XP and Word. Anyone else grappled with this problem?

I can’t really see the computer expert in the above.  Of course he could have become a computer expert in recent years but he says on his website that he published articles on technical aspects of computing in magazines between 1990 and 1996 (Maybe he took a break from being a computer expert for a little while!).  To not be able to prevent a PC connecting to his own host PC seems laughable, for a man of his supposed qualifications.

Now let’s look at what we do know………..

From his own website:

I am listed (under ad Litem) as a checked expert on computer systems in the Expert Witness Directory (formerly, the Law Society Directory of Expert Witnesses). This register operates vetting procedures to ensure that persons registered are suitably qualified and experienced

So where is Clem or Ad Litem when you do a search here:

http://www.legalhub.co.uk/legalhub/app/main?ao=o.Ie2a652a002c711db85b9d734e660a063&rs=BOL1.0&vr=1.0&bctocguid=I369f4260639711dba7e5e11db8d74eba&ststate=S;S&linktype=toc

Still declaring yourself as a certified expert witness on your website whilst you’re not listed on the legal hub website is wrong.

Email from Adam Glen to Andrew Crossley dated 20/08/2010 15:29:

Whilst I have been unable to establish or find a standard for the protection of evidence in civil cases I am concerned that I have not seen any statement from an expert witness that the evidence cannot be altered or modified in any manner.

Clem Vogler was the “Expert Witness” for Davenport Lyons AND ACS:Law, and it must be that his test on the software was clearly inadequate.

Adam Glen didn’t seem to like Clem Vogler really, including getting his surname wrong with this email to Andrew Crossley dated 24/08/2010 09:15:

You know my view on the quality of Clem Vogeler’s expert witness statement and what I perceive as the opportunity it provides to serious challenge.

This all points to some major concerns by Adam Glen that Clem Vogler is not a good “Expert Wiitness”.

From the GEIL Court case http://www.bailii.org/ew/cases/EWHC/Ch/2012/723.html

Both Mr Vogler and Mr Torabi have qualifications in information technology, and both give evidence about the operation of software used to monitor P2P filesharing, which is clearly a field requiring technical expertise.

Remember the above statement, it will be important later!

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.

What on earth does that statement say about how you perform your duty as an expert witness?  You do not install the software.  You do not concern yourself with how it works.  Could that be considered enough of a test to show that a true test has been done to verify that the software does what it should do?

Now for a real look at real evidence that Clem Vogler is no “expert witness”.  The following paragraphs and snippets are taken from a Google-translated German website that relates to Clem Vogler providing an expert witness statement for Guardaley GmbH (Yep the very people that ACS:LAWs Terence Tsang was setting up to replace…Ali Torabi) (The translation is not perfect, but is easily understood):

In essence, Mr. Clement Charles Vogler has carried out only a few functional tests, and not even these independent, but always in very close cooperation of the client. The results of these tests, he arrives at conclusions that seemed logical to him, without him being an expert in the relevant field. Even these few test cases were carried out according to his statements with “very small files”, which of course is extremely unrealistic and not even close to a real-mode, the software will meet.

“I’m not an expert in this field”

“Under these assumptions specified by him, the statement of his report, however, is not seriously usable”

In essence, Mr. Clement Charles Vogler has only performed a few functional tests, and this is not even independent, but always in very close cooperation of the client.

The results of these tests, he arrives at conclusions that seemed logical to him, that he was no expert in the relevant field.

Even these few test cases were carried out, according to his statements with “very small files”, which is extremely unrealistic, of course, and not approach a real operation of your software needs.

The questions put to him were answered only partially. Much remains open.

“Overall, his “investigations” totally unfit to occupy a general accuracy of the disputed software.  They could, if they had been since conducted independently and correctly, the correct functioning of the software THAN find in this particular case tests.  Since these test cases, however, does not approach the real conditions comply, they were not conducted independently and not with the necessary expertise, even this statement is not tenable.”

It is interesting that Mr. Clement Charles Vogler notes in his few test cases and constant participation of the client for a time difference of up to 2 seconds

To paraphrase a quote attributed to Clem Vogler by a Judge, I like the way this article put it!

We have found ONE directory that lists Vogler as an “Expert Witness”, however it is for “Construction Issues”, specifically, “Electrical and electronic engineering” Hmmmm,

Mr Vogler is a diverse character, although we have found no evidence of him being a “Sweet and Maxwell” certified “Expert Witness” as he claims, he most certainly is a long distance runner, he seems to also specialise in books with regard to “Fine Printing, Intaglio And Relief Engraving, Non-Photographic Illustration, Private Press”  in the guise of an online bookshop,  through newsgroups and even contributing to the merits of nuclear risks of contaminating sea water, with sodium coolant (Not kidding) and vivisection…. As well as reviewing Microphones! Phew!

A Chartered Physicist:

Your interesting news story about the decommissioning of the Dounreay nuclear site in Scotland (May pp12–13) noted that the liquid-sodium coolant was, (unsurprisingly), highly radioactive. But you go on to say that the metal is treated so that it can be safely disposed of into the sea as salt water. I am puzzled by this. Either the half-lives of the various isotopes present are short enough to ensure decay to safe levels before release, or they are not. In the former case, why dispose of a valuable metal for which there are various industrial uses? If the latter, then disposal as sea water will cause radiological contamination.
Clem Vogler

The liquid sodium–potassium (NaK) metal alloy from the reactor goes through a separation process that leaves us with some lightly contaminated liquid that can be discharged to sea, while the “filters” that have extracted much of the radioactivity are stored as radioactive waste. In technical terms, the NaK is reacted with water in a nitrogen atmosphere to produce a solution of sodium hydroxide and potassium hydroxide. This liquor also contains enormous levels of radioactive fission products, dominated by caesium-137 (many other fission products have now decayed away since the reactor has been shut down since 1977). The caustic solution is neutralized with nitric acid and passed through two custom-built ion-exchange columns to remove the radioactivity. The liquor is then discharged to sea as sodium nitride and potassium nitrate in water, while the ion-exchange columns concentrate the radioactivity for ultimate storage as intermediate-level solid waste. Radioactively contaminated NaK has no commercial value and the contamination cannot be readily removed until the material is in an aqueous phase.
Colin Punler, Dounreay Communications

Now I am no Chartered Physicist, but Clem questioned their story and the reply was enough for me to think that it was a silly question to ask!

Technical Partner at Ad Litem:

http://companycheck.co.uk/company/04354109

Ad Litem Ltd
Registration Date: 16/01/2002
Registration Number: 04354109
Type: Private Limited Company
Company Status: Dissolved

Technically speaking, you can’t be Technical Partner of a dissolved company.

Database Writer:

(See A Computer Expert above)

Runner:

http://reephamrunners.webs.com/apps/profile/81869688/

http://www.derehamrunners.co.uk/news/archive/the-year-to-date

We also had John Richardson in the V55 class placed 6th 25:37, in V60 an excellent run by Clem Vogler to finish 3rd in class 21:00, Tony Bastard 7th 23:28 and Ernie Bradshaw 8th 24:33

Too easy!!!!!

Expert Witness:

It would be difficult to verify all consultancies that are listed simply because of the number of years that have passed.  But finding any that can be verified is all too difficult!

GQS Solicitors (Birmingham) Dec 2006 Vehicle Fraud

Google “GQS Solicitors” “Vehicle Fraud” and you get one website, adlitem.co.uk.  Not one website anywhere that suggest that GQS has ever been involved in a vehicle fraud case.

David Phillips Solicitors (Manchester) Jun 2005 Immigration Fraud

Google “David Phillips Solicitors” “Immigration Fraud” and you get one relevant website, adlitem.co.uk.  Not one website anywhere that suggest that DPS has ever been involved in an immigration fraud case.

Rigby & Co Solicitors (Middlewich) Sept 2007 Software

Now what that means I don’t know and is meaningless to try and find anything about that case!

All of the above is questionable until evidence can back it up.

This rounds up what we know so far, It will be updated whenever it can be.

UPDATE 1: Clem Vogler requested that the image of himself taken from a WordPress.com Blog should be removed from this one using a DMCA takedown. we did not fight the decision, on the grounds that we believe his request has visually improved this particular post, and we thank him!

EDIT: If YOU receive a letter from Golden Eye International, then contact your local Citizens Advice Center.  Citizens Advice Consumer Service (08454 04 05 06) or your local Citizens Advice Bureau  And of course post comments here or on the Slyck forums!

Golden Eye International, Pre-action letter little more than “Phishing”

July 25, 2012 1 comment

GEIL letter Page 1

GEIL letter Page 2

GEIL Letter Page 3

GEIL letter Page 4

 

GEIL letter Page 5

Download letter as images or view online

Despite assurances from GEILs “Commercial Director” Julian Becker that he is NOT connected to ACS:LAWs Andrew Crossley, the release of the template of their Pre-Action letter, shows that he is at least a fan of the format of letter that was developed by Davenport Lyons, and licensed by them to ACS:LAW , who then in turn let Tilly Baily Irvine use them.  TBI were the Solicitors for GEIL/BDP.

It is watered down for sure, as I have said all along, it would be a “Refinement”, but it is still essentially the same format with the same evidence, or should that be, LACK OF EVIDENCE.

The letter is really an exercise in Phishing, you would have thought a company who had gone to Court and gained a Norwich Pharmacal order, would at least have some kind of concrete evidence, right? Err no not quite.

The letter states that

“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,” the letter states under the title “Infringing acts.”

“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,” the letter states.

“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.”

 ACS:LAW in their desperation issued a questionnaire that covered the same criteria, GEIL are using it in their initial letter!  One thing is missing though and that is a demand for money,(GEIL had wanted to demand £700 per letter, but were slapped down by the High Court), this on the face of things seems a good thing, however, it almost certainly guarantees at least a second letter.

We know from the ACS:LAW cases that when they got to court, they were laughed back out.  Judge Birss said of ACS:LAWs client Media C.A.T,

“Media CAT don’t know who did it and know that they don’t know who did it,”.

The letter also contains another similarity to the ACS:LAW letter, the “Forensic computer analyst”, Hmm that would be Alireza Torabi, the same one that ACS:LAW used, of course Becker has already stated he had no problems with Torabis system, only Crossleys use, but that is the issue, a lot of the captured data was duff.

One final concern, is that in the Solicitors Regulation Authorities report, they stated,

“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.”

What was true a year ago is as true as today, there IS NO EVIDENCE, that is why the letter is designed to trip up a person who has not infringed but at least could be hoodwinked into paying up.  It is a scare tactic being used by a failing pornography business to generate money.. PURE AND SIMPLE

Now what was it that Lindsay Honey (Ben Dover) said? Ahh yes..

“At the end of the day, if I can’t make money out of porn, the only way I can make money is to get to the people who are not buying it”

Says it all really

EDIT: If YOU receive a letter from Golden Eye International, then contact your local Citizens Advice Center.  Citizens Advice Consumer Service (08454 04 05 06) or your local Citizens Advice Bureau  And of course post comments here or on the Slyck forums!

Consumer Watchdog slams O2 in advice to ISPs on protecting customer details

July 24, 2012 5 comments

In a damning briefing Consumer Focus the Consumer Watchdog who represented O2 Customers accused of copyright infringement by Pornographers Golden Eye International/Ben Dover Productions(GEIL/BDP), have lashed the ISP as irresponsible towards those very customers.

The briefing is advice to ISPs who are targeted by “Copyright Trolls”, and how to balance the need for redress to those who believe their work has truly been infringed and the privacy of those they accuse.  It is well worth reading, and can be found here.

After the past debacles involving the law firms, Davenport Lyons, ACS:LAW, Tilly Bailey Irvine ended in fines, suspensions and regulatory settlement agreements, most people thought the “Speculative Invoicing” schemes, or the “Pay up or else” letters were a thing of the past.  With GEIL/BDP launching their attempt at an “Alternate revenue scheme” for their failing business, O2 should have stood in their way.  They didn’t.

Not only did O2 show complete disdain by capitulating to the pornographers at the expense of their customers, Consumer Focus highlights even more disgraceful behaviour on O2s part.

The High Court found the draft order and the draft letters to O2 customers which Golden Eye submitted as part of its application, and which O2 chose not to challenge, objectionable in a number of ways.

It is not feasible for a consumer watchdog to intervene in every single NorwichPharmacal order application, however we expect ISPs and online hosts to take responsibility for protecting their customers‟ rights. The draft order and draft letter before action proposed by Golden Eye were plainly problematic, yet O2 essentially only intervened to ensure that Golden Eye pays for the cost to O2 of matching the IP addresses with its customers‟ personal data.

O2‟s refusal to ensure that its customers‟ rights are respected appears particularly odd in the light of the fact that Telefónica de España acted to defend its customers‟ data protection rights in Productores de Musica v Telefonica, which related to an application for a disclosure order.

Particularly odd indeed, one wonders why O2 capitulated to Pornographers when they didn’t to the Music Producers.  So why didn’t O2 protect it’s customers against predatory businesses like GEIL/BDP?

Why did they ignore the obvious problems with GEIL/BDPs approach?

Why did they not even turn up for the hearing?

Why did they only insist on their OWN protection and not of that of their customers?

Why indeed have they hung so many of their customers out to dry and left them vulnerable to a failing Pornography business desperate for cash?

Maybe because it is easy to take their customers for granted, maybe they feel they are so stupid they will stay with them rather than move ISP, one thing is for sure, when their customers start receiving GEIL/BDP letters maybe they will realise to late when their reputation suffers as it surely will.

O2 CANNOT simply use the tired excuse of “We have to abide by the rulings of a UK Court”, THAT is NOT what happened here, O2 simply looked out for their OWN interests and betrayed their duty of care to their customers.

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