After all the efforts of Golden Eye International Limited (“GEIL”) to “protect their copyright” by applying for disclosure from O2 for subscriber names in their Norwich Pharmacal Order (“NPO”), we get to the situation where GEIL leave those who deny their claim in limbo.
GEILs replies vary, but one constant in all replies remain the same. A sort of “GEIL are very nice people who follow rules and judgements and would never harm anybody or anything”.
That constant in their letter is:
We have followed the procedure laid down by the Court when corresponding with you.
Such noble words, but what does that really mean?
From the NPO Court Judgement, let us see what Justice Arnold said about the monitoring:
For the results to be reliable, it is important to ensure that the monitoring software is functioning correctly. In particular, it is vital that the computer on which it is running has a correctly synchronised clock.
Who knows that? Who officially knows that? GEILs “forensic” expert says he “has identified the clock synchronisation source he used, which he says is accurate to 0.1 second”. Who officially saw that when they did the monitoring? We have to take their words for it.
Any more thoughts Justice Arnold?
Even if the monitoring software is functioning correctly, ISPs sometimes misidentify the subscriber to whom the IP address which has been detected was allocated at the relevant time. This can occur, for example, because of mistakes over time zones.
Maybe I am reading a different Court judgement than the one GEIL are saying they are following.
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.
I don’t see this as following procedures laid down by the Court. The Court said that ISPs sometimes misidentify the subscriber. GEILs words are specific and accuse the subscriber as the infringer.
Not enough to convince? Let us look also at what Justice Arnold said:
Even if the monitoring software is functioning correctly and the ISP correctly identifies the subscriber to whom the IP address which has been detected was allocated at the relevant time, it does not necessarily follow that the subscriber was the person who was participating in the P2P filesharing which was detected.
Damn! It’s not looking good for GEILs evidence is it? Directly accusing the subscriber of infringing when the Court mentions very plausible issues as regards the monitoring, it escapes me. I’m beginning to think that Court judgments are not worth following any more. If you are sentenced to imprisonment in Court, ignore it and just be free and go home.
So let us use our imagination a bit and say that the monitoring software is perfect and the “Expert Witness” is clever and the ISP is useful. Let us believe in GEIL for one moment. They had 2,845 IP addresses that were monitored by Mr Torabi (Not NG3 Systems because they were crap for MediaCAT) for Ben Dover Productions (“BDP”). How many subscribers were disclosed by O2? Apparently less than 1,000! 33% hit rate! That’s it. I tried. I tried to believe in GEIL and it lasted for all of 3 seconds, which is less than the difference between the monitoring software timestamp and O2s timestamp (Ouch! Low blow!).
Let’s get back on to Court procedures and get back to the Court judgement and what Justice Arnold says:
I agree with counsel for Consumer Focus that the figure of £700 is unsupportable. My reasons are as follows. First, the Claimants know that an unknown percentage of the Intended Defendants are not infringers at all. Intended Defendants who have not in fact committed any infringements are not liable to pay any sum.
Let me re-align my reality sensors. How silly I was to try and imagine GEIL are right in their claim! I have to agree with Justice Arnold when he says “the Claimants know that an unknown percentage of the Intended Defendants are not infringers at all” and Justice Arnold is specific to say “Intended Defendants who have not in fact committed any infringements are not liable to pay any sum”.
But…..Justice Arnold says more:
Secondly, in the case of those Intended Defendants who are infringers, the Claimants have no idea about the scale of the infringements committed by each infringer. Some might have infringed on a very substantial scale indeed, while others might only have infringed to a minor extent.
Hmmm, I see. So why do GEIL ask for £350.00 per infringement? Oh yes, in the original draft letter GEIL asked for £700.00 per infringement. Why not £699.99? Why is £350.00 per infringement acceptable as a settlement based on the Justice Arnolds words?
I need more information Justice Arnold! Ah, he provided it:
I think that Mr Becker’s response in his second witness statement to the point made by counsel for Consumer Focus referred to in sub-paragraph 60(v) above is telling: “… it assumes that £700 will be successfully obtained from each of the 9000, when that is plainly wrong. In fact, it is likely that only a small proportion will result in a successfully obtained payment of any sum.”
Mr Beckers words are “it is likely that only a small proportion will result in a successfully obtained payment of any sum”. That is a telling statement. What did Justice Arnold say to that?
This comes quite close to an admission that the figure of £700 has been selected so as to maximise the revenue obtained from the letters of claim, rather than as a realistic estimate of the damages recoverable by the relevant Claimant from each Intended Defendant
Mr Becker, please! Justice Arnold seems to have figured that an awful statement to make! Whatever actions are taken after the judgement, Mr Becker has been shown by Justice Arnold what could be considered a charlatan.
So Justice Arnold says £700.00 is unrealistic and GEIL think £350.00 is realistic. I think Justice Arnolds words “the Claimants have no idea about the scale of the infringements committed by each infringer” gives an excellent clue to what the suggested settlement should be from GEIL. They have the “Evidence” of one download from the alleged infringer and that is the only “Evidence”. That is the value of one video.
Having accepted before Justice Arnolds words that innocent subscribers will be targeted, it is fair to say that the monitoring software will capture those who did infringe GEILs copyright. In this situation, a subscriber will accept GEILs claim and what happens then Justice Arnold?
Accordingly, I do not consider that the Claimants are justified in sending letters of claim to every Intended Defendant demanding the payment of £700. 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. In my view it would be acceptable for the Claimants to indicate that they are prepared to accept a lump sum in settlement of their claims, including the request for disclosure, but not to specify a figure in the initial letter. The settlement sum should be individually negotiated with each Intended Defendant.
Hmmm. But we have seen a settlement figure from GEIL sent to subscribers who deny their claim. GEIL are not following Court procedures so much that it would be enough to get Justice Arnolds wig spinning!
Before I start to lose faith in the Courts and justice, I will quote one last statement from Justice Arnold:
I conclude that the Claimants’ interests in enforcing their copyrights outweigh the Intended Defendants’ interest in protecting their privacy and data protection rights, and thus it is proportionate to order disclosure, provided that the order and the proposed letter of claim are framed so as properly to safeguard the legitimate interests of the Intended Defendants, and in particular the interests of Intended Defendants who have not in fact committed the infringements in question.
The most important two words in that paragraph are “the order”. That says it is an Order to GEIL as well as the intended defendants. The “proposed letter” was drafted and approved by Court, and any subsequent actions taken by GEIL after the proposed letter are governed by the judgement of the Court.
I will re-write that paragraph which would be more appropriate for GEIL:
I wish we would have followed the procedure laid down by the Court when corresponding with you.
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.
Thanks to Bpaw!
On the 21st of December the Appeals Court found in favour of Golden Eye International (GEIL) and sanctioned what the original Judge had refused saying it “would be tantamount to the court sanctioning the sale of the intended defendants’ privacy and data protection rights to the highest bidder”.
GEIL intend to keep 75% of all monies collected, their Director Julian Becker has now responded to the successful appeal. We think we should respond too!
“I am delighted that the Court of Appeal ruled in favor of Golden Eye, albeit that I am still confused that the initial ruling allowed us to act for Ben Dover but fell short in permitting the right to protect the other producers that I represent”
“The other producers that I represent”? Maybe you should be aware that other Pornography Producers tried this method of “monetizing alternative revenue streams” before, Darker Enterprises, Pure Platinum/Liquid Gold, Mebray, Phoenix, Relish and Load XXX amongst others, and they all fell flat on their faces, when Media C.A.T and ACS:LAW screwed up by taking a case to actual Court where their lack of evidence was exposed , and their methods were derided, and it resulted in their collapse.
“Having now studied the case, I’d like to say that there was more chance of the end of the world occurring on Dec. 21 than Golden Eye losing this appeal.”
So you won an appeal. An appeal that was given by default to other applicants in the past.
Such as the following
01 Feb 2007 – Davenport Lyons – Judge Behrens – Topware Interactive
22 Nov 2007 – Davenport Lyons – Chief Master Winegarten – Reality Pump
30 May 2008 – Davenport Lyons – Chief Master Winegarten – Atari
30 Jun 2008 – Davenport Lyons – Chief Master Winegarten – Digiprotect
12 Nov 2008 – Davenport Lyons – Chief Master Winegarten – Digiprotect?
19 Nov 2009 – ACS:Law – Chief Master Winegarten – MediaCAT
19 Nov 2009 – ACS:Law – Chief Master Winegarten – Digiprotect
27 Jan 2010 – Tilly Bailey Irvine – Justice Warren – Media & More GMBH
17 Feb 2010 – ACS:Law – Chief Master Winegarten – MediaCAT
07 Jul 2010 – ACS:Law – Chief Master Winegarten – MediaCAT
“I believe there is always going to be a bias against this genre of film production”
Well no, that is a “non sequitur”, whatever problems that this “genre of film production” has had in the past, has absolutely nothing to do with the material you produce, but the actions you take. When other industries, (games 2 , music 2 etc) took the same actions, they too were derided in the same manner. They had the sense to bail out. It is actions like what you are doing, resurrecting a hated and hurtful legal action that is known to target to many innocent people in its dragnet is what is likely to drag your industry through the mud again.
“So although in legal terms we are actually no further forward than in 2010”
Erm, NO. You are further back than you were in 2010. You have been neutered in Court.
You called the account owner an infringer, the Court said NO!
You wanted a default £700 per letter, the Court said NO!
You wanted the account owners internet to be slowed down, The Court said NO.
You wanted to confuse with reference to the Code of Practice, The court said NO
You wanted to give the recipient only 14 days, the Court made it 28 days
The previous Law firm that represented you, halted their action in 2010, and you then attempted to pursue alleged infringers through the “Money Claim Online system” , when it seems you come up against Judge Birss, the Judge who presided over the ACS:LAW/Media C.A,T cases. You deemed your actions inappropriate and that is what has led us to this ruling.
“Golden Eye has now been successful after the most severe of legal scrutiny, combined with bias and manipulation from some areas of the press and mistruths and lies from faceless keyboard warriors in several Internet forums.”
I would question in light of the restrictions placed on you by the Court how successful you have been, but yes you have been successful in obtaining an NPO in light of what I believed the agreement the ISPs had after the ACS:LAW debacle, in at least challenging these orders. You were greatly helped by O2 NOT challenging you. If they had I don’t think you would have been granted the order.
Your only defence of criticism is to say your critics, be it the press or “faceless keyboard warriors”, are biased or spread “mistruths and lies”. My comment on this is simple. You would say that, wouldn’t you? Is it a shame you use “sound bites” rather than provide actual evidence. This Blog has detailed the number of contradictions you have spoken to different organisations. What are the “lies and Mistruths” that I have spread?
“In some respects Golden Eye finds itself back where it was two years ago, having correctly followed legal procedure after submitting technical evidence that has been accepted by the courts that there is an arguable case that Ben Dover and other rights holders content that we represent has been infringed by Internet users on file sharing networks and obtaining the names and addresses of these alleged infringers,” said Becker, calling Friday’s ruling a “positive judgment [that] is very much a bitter sweet, moment.”
May I provide a quote from your statement in the original Court case (15):
“Originally, the only evidence filed in support of the claim was Mr Becker’s first witness statement. In paragraphs 1-3, headed “Introduction”, he explained that 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 and that O2 did not oppose the making of an order in the terms set out in Exhibit 2.”
Hmmm…..“the Claimants believed that those IP addresses had been used by the subscribers to make available copyright material for P2P copying”. Now you say alleged infringer. This is plainly wrong, the subscriber as the Court has said is not necessarily the Infringer, alleged or not.
“Two years ago these cases were merely procedural and heard on paper without any formal hearings. This judgment has been debated by leading barristers, funded by government organizations and presided over by some of the most eminent judges in the U.K.”
Two years ago, we didn’t have a case that actually went to Court. ACS LAW tried to take people to Court for a default, but screwed up when those people said they would contest. This had a clued up Judge who completely tore apart the “evidence”. Your latest attempt at obtaining an NPO has been scrutinised because of this. This statement from you is showing that what you took for granted two years ago is now not so straight forward. And remember , the only reason this was debated at all was that O2 acquiesced rather than saying “No”.
This was an NPO hearing, that is all, yes you have gained the rights to exploit other Producers work, however as Rt Hon Judge Birss stated in his Court case with ACS:LAW/Media C.A.T who represented many Porn Producers)
“Media CAT don’t know who did it and know that they don’t know who did it,” said Birss.
Birss said Winegarten granted the (NPO) order based on the facts put before him, adding that the chief master did not have to decide whether Media CAT would succeed in its claims.
“I can’t imagine that the court making the Norwich Pharmacal orders in this case did so with a view to setting in train an exercise that was to be conducted in the manner that has subsequently emerged,” Birss said at the time.
Nothing has changed, it is the same. I will believe you are different when you actively take a contested claim to Court, I for one do not believe you ever will.
Here is a short list of quotes from people regarding ACS:LAW and their “Business practice”. As can be seen from the diverse range of comment ALL critical of ACS:LAW this is in NO WAY “merely targetted by an Internet campaign” as ACS:LAW Chief Honcho Andrew Crossley claimed.
These quotes are from Lords of the Realm, Industry leaders. the Music Industry, Consumer Watchdogs, and there is even one from one Of ACS:LAWs own employees taunting a person whose friend had been targetted by one of their “Speculative Invoices”
Please Download the PDF version here acs law – what people think and of course post it around. It IS the Truth.
ACS:LAW The heartwarming story of Andrew Jonathon Crossley (Or how he overcame financial problems to fleece the innocent… allegedly)
How heart warming it is to see that a man who as a result of being clinically depressed in 1999 suffered a stroke which in turn caused temporary complete blindness which in turn caused him to be unable to file his solicitors accounts on time or even at all for FIVE separate periods totalling FORTY-EIGHT months between periods ending 31st Dec 1999 and 31st December 2003, a period during which coincidentally this poor man was forced to enter into an IVA (Individual Voluntary Arrangement), was fined and ordered to be suspended indefinitely by an SRA tribunal in 2002, a man who had to face the further ignominy and trauma of a second disciplinary hearing in 2006 has recovered from this clinical depression and blindness enough to not only rebuild a career but a career as a successful* solicitor no less.
I hope all those Innocent falsely accused people who are currently experiencing financial troubles can draw some strength from this brave mans story for it appears (from his own website at least) that he is achieving a massive 80% success rate with his speculative invoicing campaign which by my rough calculations means his letter drop of 2009 has netted him in excess of £2.25m from internet users.
Let this man Andrew Jonathon Crossley be an inspiration in your darkest moments, let his triumph over depression, blindness indebtedness and insolvency spur you on.
That a man who for years was unable to get to grips with the numbers involved with his own basic practice accounts can just a few years later become an expert legal pioneer in the field of IP address’s and forensics is remarkable and gives me hope that one day I might yet go on to become a rocket scientist or invent the time-machine despite my poor showing in pure and applied maths and physics at A level.
The full story. LINK
The only Andrew J Crossley registered with the law society, (admission date 15/07/1991 see disciplinary report). LINK
* Well not that successful if you were to ask Vince Acors the Dubai “sex on the beach” chappie.
Who was Vince Acors PR man?*
Andrew J Crossley has been the subject of not one but TWO SRA tribunals involving failure to submit accounts. The previous hearing took place in December 2002, here’s the decision:
“..the Tribunal could not allow the current failures on the part of the Respondent to continue indefinitely. For this reason, the Tribunal ordered that the Respondent be suspended from practice for an indefinite period to commence on the 31st January 2003 but confirmed that should he regularise his position and file his outstanding annual Accountant’s Reports with The Law Society by that date then the sanction imposed upon him by the Tribunal would be that of a reprimand and not a suspension. It was right that the Respondent should pay the Applicant’s costs and the Tribunal ordered that these be paid in the fixed sum of £1,250 plus VAT, a figure with which the Respondent agreed.”
(The Respondent did regularise his position and was reprimanded)
* We now know that the PR guy was Lee Bowden of Piri Ltd, Media C.A.T, and the Text Works. Media C.A.T? yep the very same ones who have now hired ACS:LAW to track down copyright infringers! ** Original Article posted by Jasper1965 on CAG February 2010
this is the new ACS 2 Bullshit Detector. It has been run past the latest letters and seems to be VERY reliable at detecting bullshit. If you have any comments on how the new ACS 2 can be improved please let me know.
It seems that “Shady” ACS:LAW Paralegal Terence “W$%$%r” Tsang, is no longer employed by ACS:LAW, his present employer Cramer Pelmont make NO reference to his work with ACS:LAW although it does note that he worked at Davenport Lyons, there is also reference to Tsang
Advising a German record label on preventing the unauthorised sale of products on Ebay and other online trading platforms.
Advising international rights owners on preventing the unlawful distribution of their copyrighted works on peer to peer
Hmmmm now what IS interesting as I pointed out in a previous post, is wether Terence Tsang had taken the “piece of crap” P2P Scanner that he brought from freelancer to his new employers. You have to at least wonder in light of the fact that Davenport Lyons started this whole sorry mess and when they quit Mr Tsang left to Join ACS:LAW just as they started their campaign. Coincidence? well we will see.
In light of the SRA dragging its heels over both Davenport Lyons AND ACS:LAW it will be VERY interesting to see if “Cramer Pelmont” letters start being sent through the post to people demanding them to “Pay up or be ruined”. The Common denominator in ALL of this is Mr Tsang. One thing is sure that with Mr Tsangs MASSIVE ego at yet another company looking for big bucks fast the “Speculative Invoice” is far from over. Especially as one of the specialties of Cramer Pelmont is the ominous “Protecting Rightsholders Interests – Online”
EDIT: A Message has appeared on the ACS LAW Website saying Goodbye. Aww aint that nice! It also PROVES that he had worked there since May 2009, and confirms he came from DAvenport Lyons, and so proves once again that ACS:LAW are liars and canot be trusted.