They’re Back – Porn Outfit Sues UK Citizens For Illegal File-Sharing

After the ACS:Law debacle, one might think that potential claimants would be deterred from taking legal action against alleged file-sharers in the UK, or at least learned lessons. Alas, no. His Honour Judge Birss QC, the judge who brought ACS:Law's scheme to its knees, now has to deal with three cases filed on behalf of a UK porn outfit who, in common with the doomed law firm, tried to back out at the last minute.

As reported by TorrentFreak in March 2010, Golden Eye (International) Ltd, a company connected with the Ben Dover porn brand in the UK and one that had already been pursuing alleged file-sharers in Germany, decided to import their file-sharing settlement scheme to the UK.

Golden Eye, having already obtained the identities of file-sharers and retained the services of lawyers Tilly Bailey & Irvine (TBI), must’ve thought that the cash would come rolling in, but things quickly went wrong. Alongside client MediaCAT, the now-defunct ACS:Law was in the process of destroying the marketplace for would-be profiteers, and it all got too much for TBI, who announced they were pulling out.

But what do you do if you’re Golden Eye, and you’re in possession of a paid-for list of names of people who may, given the right pressure, send you several hundred pounds to settle a file-sharing case? The answer appears to be “keep trying”.

Readers will be familiar with His Honour Judge Birss QC of the Patents Country Court, the judge who narrowly missed becoming 2011’s Internet Hero after bringing ACS:Law’s scheme to an end. According to court documents, a trio of cases filed by Golden Eye against alleged file-sharers have caught his attention.

The first, filed in the Northampton County Court against a Mr Maricar, sets out the picture as follows:

On 27th November 2009 the Claimant [Golden Eye] believes the defendant unlawfully made all or part of the film [Fancy an Indian?] available from his IP address for downloading by third parties.

On 29th September 2010 the Claimant sent a letter before action to the Defendant setting out in full its claim for breach of copyright. The Defendant failed to reply. The Claimant sent another letter to the Defendant on 8th November 2010 to which no response was received. The Claimant claims £700 for breach of copyright.

Judge Birss notes that the particulars in a second case against a Mrs Vithlani (whose identity was handed over by her ISP BSkyB following a Norwich Pharmacal order made by Mr Justice Vos on 4th February 2010) are essentially the same, some details aside.

“Right away it will be seen that these claims bear some striking similarities to the claims in the litigation concerning the company Media CAT Ltd, the subject of my judgment Media CAT v Adams [2011]..,” Birss writes.

“However I should also make clear that there may very well be important differences between the present cases and the Media CAT cases. At this stage I do not know.”

Although Birss did not elaborate, one of the key reasons that the ACS:Law/MediaCAT cases collapsed was that MediaCAT were not the rightsholders of the copyright material in question. From the details available it seems that Golden Eye aren’t the rightsholders of ‘Fancy an Indian?’ either, Ben Dover Productions are. The latter would need to be joined with Golden Eye as claimants for the case to proceed.

But, yet again, the path to judicial scrutiny in these file-sharing cases has been hindered by the claimants. After discovering that against their will the case would not be heard in a county court but at the Patents County Court under Judge Birss, on 8th August 2011 Golden Eye tried to discontinue the case against Mrs Vithlani. The status of the case against Mr Maricar is uncertain, but it too has been transferred to the Patents County Court.

Defendant Mrs Vithlani has now applied for Ben Dover Productions to be joined to the proceedings and then allow the case to be struck out – but with costs awarded to her. In this event, those costs, and they could already be substantial, would have to be met by Ben Dover Productions.

When Sheptonhurst/Darker Enterprises, the original copyright holders in the ACS:Law/MediaCAT partnership refused to join their proceedings, MediaCAT went bankrupt to avoid picking up the bill. ACS:Law decided on the same fate.

Judge Birss also notes there is a third case on file against a Mr Rajan. After travelling through the county courts, it too ended up at the Patents County Court during March 2011. Shortly after Golden Eye filed to discontinue the case.

“Finally, since it is apparent that the claimant has commenced and is pursuing copyright infringement proceedings in the county courts arising presumably from information provided as a result of the order of Mr Justice Vos, the claimant is invited to consider and make submissions as to how any other of its pending cases arising from that order might be dealt with conveniently,” Judge Birss concludes.

So, cards on Judge Birss’ table then for Golden Eye and Ben Dover, for all subscriber identities obtained so far.

There’s a sneaky feeling that, given Judge Birss’ experience in this field, the outcome won’t be favorable for Golden Eye and it will be them and their settlement partners who will have to bend over, not the three targets of their scheme.

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