After the infamous ACS:Law made a monumental mess of attempting to extract cash from alleged file-sharers, it was expected that similar schemes would die along with the now-defunct company. But despite that disastrous attempt at so-called Speculative Invoicing, another company is now trying its hand. According to the Open Rights Group, how the High Court deals with the movie company involved could have implications for the Digital Economy Act.
In the early months of 2010, Golden Eye (International) Ltd, a company connected with the Ben Dover porn brand, decided to chance their hand at obtaining settlements from alleged file-sharers in the UK.
Although they successfully obtained the identities of alleged file-sharers through the court using the Tilly Bailey & Irvine (TBI) law firm, things quickly went wrong for GoldenEye. TBI pulled out due to bad publicity and the company was eventually fined late 2011 by the Solicitors Regulatory Authority for their mishandling of the cases.
In September 2011, Golden Eye were back again, trying to extract money from Internet users via the previously untested route of the small claims court. But in December 2011 it all fell apart following proper scrutiny in the High Court.
And now, in March 2012, unbelievably Golden Eye are back again with a third attempt.
Their new case against ISP Telefonica UK was up in the High Court this morning before Mr Justice Arnold, the judge responsible for ordering the ISP level block against Newzbin2 and the ongoing proceedings aimed towards a block of The Pirate Bay.
Golden Eye were seeking a Norwich Pharmacal Order, a document which if granted would allow them to identify their target of 9,000 alleged file-sharers and write to them with a demand for £700 each. If totally successful the scheme could net the company a cool £6.3 million in settlements.
From the court Computeractive’s Dinah Greek reported that Mr Justice Arnold was unhappy with the wording of the draft letters created by Golden Eye which claim they could ask ISPs to cut off or throttle the connections of alleged file-sharers, something the porn company has no authority to do.
Furthermore, Greek later posted another key point on Twitter – all Golden Eye have by way of evidence is a simple IP address, a particularly poor item of proof that has proven both unreliable and insufficient in the past.
Justice Arnold eventually deferred his decision to grant or deny the order pending the presentation of further evidence. He is expected to rule in approximately two weeks.
Although it will have serious implications for potential recipients of Golden Eye threats, the Open Rights Group believes that Justice Arnold’s decision also has the potential to have a big impact on how the Digital Economy Act works.
“At issue is the strength of the evidence required against alleged copyright infringers facing possible civil action. It should help focus attention on the need for [communications regulator] Ofcom to demand that water-tight standards of evidence are required for rights holders chasing alleged infringers through the Digital Economy Act,” says ORG’s Peter Bradwell.
“Ofcom are required to define the standards of evidence required against alleged infringers through the Initial Obligations Code (pdf). The revised version of this is due out soon. Without stringent standards, there is a risk that people are wrongly placed on infringement lists and are subject to the civil action in the initial phases of the Act.”
But even if Golden Eye are successful in obtained a Norwich Pharmacal Order, they will not be getting an easy ride and won’t be pulling in the cash they expect. After all, a similar venture cost ACS:Law’s Andrew Crossley his business, reputation, possessions and even his girlfriend.
“Golden Eye (should they get their NPO) will get very little money and a TONNE of grief,” predicted Will Gilmour, an expert in so-called pay-up-or-else schemes. “Speculative invoicing does not equal good business.”