LONDON—A London High Court has rendered a nuanced opinion on a claim filed in September of last year by a London-based copyright holding firm called Golden Eye International on behalf of 13 claimants seeking personally identifying information on thousands of alleged unnamed copyright infringes using the BitTorrent protocol.
Essentially, the court rendered a split decision that upheld the right of claimants Golden Eye and Ben Dover Productions to pursue relief by way of a Norwich Pharmacal order while denying 12 other companies the same course of action. Golden Eye, which is half-owned by U.K. adult producer, director and performer Ben Dover, filed the claim for a Norwich Pharmacal order against O2, one of England's largest ISPs.
A Norwich Pharmacal order is a legal mechanism employed by English courts to force the disclosure of otherwise unobtainable information. According to Gillhams Solicitors, "Other means of obtaining evidence is usually available to identify a defendant and those means ought to exhausted before resorting to the Norwich Pharmacal jurisdiction. A court will not exercise the jurisdiction unless the result would be that the claimant is left in a position where proceedings cannot be commenced against a named defendant. The person seeking the court order must have a genuine intention of commencing proceedings."
The ruling divided the claimants into two groups. "The first group consists of Golden Eye and Ben Dover Productions. Ben Dover Productions is a partnership between Lindsay Honey and Linzi Drew Honey. Lindsay Honey is also a director of Golden Eye. Under the pseudonym Ben Dover, he directed, produced and starred in a series of pornographic films between 1995 and 2008. Ben Dover Productions is the owner of the copyright in those films. Golden Eye is owned 50/50 by Mr. [Julian] Becker and Mr. Honey.
"Ben Dover Productions granted Golden Eye a royalty free worldwide exclusive [license] of all copyrights and rights in the nature of copyright in the works listed in Schedule 1 to the agreement for a period of five years," the ruling continued. "Schedule 1 lists 105 pornographic films which it appears have been released on DVD. About half of these are indicated to have been given R18 certificates (i.e. for sale in licensed sex shops only), while no indication of any British Board of Film Classification certificate is given for the remainder."
The agreement between the two companies gives Golden Eye the authority "to decide what, if any, action to take in respect of any suspected infringements of copyright and gives [it] sole control over and conduct of all proceedings on terms that it shall bear the costs and be entitled to retain all sums recovered."
"The second group of claimants consists of the Third to Fourteenth Claimants," the ruling continued. "The Other Claimants are also owners of the copyrights in pornographic films. Each of the Other Claimants has entered into an agreement with Golden Eye. The agreements are dated between 30 June 2010 and 18 January 2011. The agreements are all in essentially the same form. The term of each of the agreements is two years and the territory is England and Wales." Under the terms of those agreements, most of the copyright holders grant Golden Eye the right to keep 75 percent of revenue received.
In his detailed ruling, Hon. Mr. Justice Arnold laid out the scope of the arguments made by each party, including a discussion of a reviled practice called "speculative invoicing," which the judge himself referred to in writing as "unsavory." He included a definition of the practice offered by Consumer Focus, A U.K.-based consumer right group that argued on behalf of consumers in this case.
"In essence," the group stated, "speculative invoicing involves the sending of letters before action to thousands of internet subscribers whose internet connection is alleged to have been used for small-scale copyright infringement and whose names and addresses have been obtained by means of Norwich Pharmacal orders against their IPSs. Without seeking to confirm whether the internet subscriber was the person responsible for the uploading/downloading of the copyright work that has been detected, the internet subscriber is requested to pay a substantial sum which has no relation to the actual damage caused by the alleged copyright infringement or the costs incurred. Typical sums demanded are in the range £500 to £1000. Invariably, there is a profit-sharing arrangement between the party conducting the litigation and the client, with the former getting the lion's share. The tactic is to scare people into paying the sums by threatening to issue court proceedings. If this does not work, proceedings are not normally issued. This is because the economic model for speculative invoicing means that it is more profitable to collect monies from those who pay rather than incur substantial costs in pursuing those who do not pay in court. Where proceedings are issued, they are not pursued if a default judgment cannot be obtained."
Though equally controversial on this side of the Pond, in the U.K., as the ruling points out, the practice was seriously denounced in a case involving a now notorious law firm called ACS:Law, with its principal solicitor, Andrew Crossley, eventually being "suspended from practice for a period of two years from 16 January 2012."
In the current case, counsel for each side made arguments as to why the issues in ACS:Law were either similar or different than the issues currently in play, but there is no question but that the judge, in ruling, was aware of the limitations placed by the earlier case, and was intent upon establishing a middle-of-the-road framework that all parties, including the courts, can use going forward.
He summed up each side's argument as follows: "The Claimants' position can be summarized as follows. They are owners of copyrights which have been infringed on a substantial scale by individuals who have been engaged in P2P filesharing. The only way in which they can ascertain the identify of those individuals and seek compensation for past infringements is by (i) obtaining disclosure of the names and addresses of the Intended Defendants, (ii) writing letters of claim to the Intended Defendants seeking voluntary settlements and (iii) where it is cost-effective to do so, bringing proceedings for infringement."
"The Intended Defendants are not, of course, before me. With the assistance of Consumer Focus' submissions, however, it seems to me that the position of the Intended Defendants can be summarized as follows," he wrote of the contrary position. "It is likely that most of the Intended Defendants are ordinary consumers, many of whom may be on low incomes and without ready access to legal advice, particularly specialized legal advice of the kind required for a claim of this nature. The grant of the order sought will invade their privacy and impinge upon their data protection rights. 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 defense to the claim would require specialized 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."
The solution, he ultimately decided, was, at least in the case of Ben Dover Productions and Golden Eye, to allow the claimants to proceed with their Norwich Pharmacal order, but for the court to "supervise pre-action correspondence" sent to "intended defendants" in order to ensure that it is not "objectionable," as the judge characterized letters sent by ACS:Law. For that and other reasons, the judge noted that "the court needs to consider the impact of the letter of claim upon ordinary consumers who may not have access to specialized legal advice, who may be innocent of what is alleged against them and who may be embarrassed and/or distressed by being alleged to have been involved in file-sharing involving pornography."
But the judge also ruled against the 12 other claimants whose claims had likewise been filed by Golden Eye, writing, "If the Other Claimants were themselves making claims for Norwich Pharmacal relief, without the involvement of Golden Eye, then I would almost certainly reach the same conclusion. What then is the impact of Golden Eye's involvement? As discussed above, I have not accepted that the agreements between Golden Eye and the Other Claimants are champertous. Nor have I been persuaded that those agreements mean that the Other Claimants are not genuinely intending to try to seek redress.
"It does not follow, however, that it is appropriate, when balancing the competing interests, to make an order which endorses an arrangement under which the Other Claimants surrender total control of the litigation to Golden Eye and Golden Eye receives about 75 percent of the revenues in return.
"On the contrary, I consider that that would be tantamount to the court sanctioning the sale of the Intended Defendants' privacy and data protection rights to the highest bidder. Accordingly, in my judgment, to make such an order would not proportionately and fairly balance the interests of the Other Claimants with the Intended Defendants' interests. (I do not consider Golden Eye to have any legitimate interest separate from those of the Other Claimants for this purpose.) If the Other Claimants want to obtain redress for the wrongs they have suffered, they must obtain it themselves."
On its website, Consumer Focus added, "The High Court will set the date for the second hearing in due course. The hearing is likely to be after Easter. At the hearing the High Court will impose conditions on the wording of the order and the letters which are to be sent to internet subscribers. Golden Eye will only be able to send out letters to O2 customers after the second hearing."
In response to the ruling, Mike O’Connor, chief executive of Consumer Focus, said, "Following four years of speculative invoicing this case sets an important precedent for the rights of consumers, particularly those who are innocent, and the responsibilities of companies seeking redress on behalf of copyright owners.
"It is very welcome that the court has recognized the bill-payer should not be automatically assumed to be guilty when a copyright owner believes they have detected copyright infringement on that internet connection. Consumers should not be subject to the type of threatening letters Golden Eye intended to send to more than 9,000 O2 customers.
"In seeking the personal details of consumers through an internet service provider it is only right that any claim must take into account the privacy and data protection rights of the provider’s customers."
The Hon. Mr. Justice Arnold, it should be added, is not a novice on issues pertaining to copyright and trademark law in the computer age, having authored or contributed to several books and publications on the subject, including Computer Software and Legal Protection in the UK (jtly, 1992), Entertainment and Media Law Reports (ed, 1993-2004), Performers' Rights (2008) and Halsbury's Laws: Trade Marks (ed, 2007).
Image: London High Court of Justice