Golden Eye legal action
This is an explanation from Ben Dover and Golden Eye for the legal action brought against O2. It was issued as a response to the ruling in the case given a couple of weeks ago and was written by Julian Becker, Ben Dover Productions' commercial director.

Quote:My parents, always encouraged me to become a solicitor or an accountant, so I found it most bizarre and ironic that one of the many false accusations that has been directed towards us is that we are a reinvention of ACS Law. I'm sure I wasn't the only one to raise a smile in court when our barrister produced a pair of Ben Dover boxer shorts as evidence.

The Hon. Justice Arnold accepted that "there is nothing particularly unusual, let alone objectionable, about the Ben Dover agreement. The mere fact that the copyright works are pornographic films is no reason to refuse the grant of relief, since there is no suggestion that they are obscene or otherwise unlawful. Golden Eye and Ben Dover Productions have a good arguable case that many of the relevant intended defendants have infringed their copyrights. I am satisfied that they do intend to seek redress for those wrongs and that disclosure is necessary to enable them to do so. In these circumstances, 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."

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.

Its positive that the court acknowledges that we have the right to take this action and protect our content. This action has been inspired by our core business being decimated by piracy and we are pursuing several projects in combating both the Internet sites that facilitate online piracy as well as the end violators and the physical DVD pirates. Our clothing, merchandise and events business was initiated very much in response to our core film business being so negatively impacted by different forms of piracy. Due to the nature of the way most consumers view adult content, the adult business has been affected far worse than mainstream film due to the fact that the pirates cannot replicate the cinematic experience of mainstream movies.

The court also accepts that this form of piracy does result in a commercial loss for our business and that we have the right to pursue compensation, I understand it is difficult to quantify how much this loss is due to the nature of how file sharing networks operate. I may not have in depth technical knowledge of the workings of these websites, however my limited knowledge appears somewhat more in depth than Guy Tritton, the Consumer Focus barrister, who calculated that if every violator shared content with every other violator then Golden Eye's loss would be 9,000 x £10, totaling £90,000.

Disregarding the fact that our films when purchased sell for far in excess of £10, he totally missed the fact that file sharing occurs not in a closed user group of those circa 9,000 Telefonica customers, but in a far larger community of millions of users. 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.

I'm still at a loss to understand why consumer groups are so opposed to a company that is merely seeking to protect its core business from individuals who are stealing and distributing its products. The definition of consumers are those that purchase goods or services, the individuals who are infringing our copyright are not paying for our product but are stealing it, I do not understand how they can be described as consumers. My belief is that our actions are actually in the interests of the true consumers as if piracy carries on at the level we are witnessing today, many creative organizations will cease to be commercially able to fund new content, limiting future consumer choice.

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.

It is true that we license the same software that ACS used. I was one of the biggest critics of their operation and spoke several times at adult forums and privately to several other companies in our industry of my concerns. The reservations I had were nothing to do with the software that they licensed but everything to do with the references and information I obtained from those that had previously conducted business with both ACS and MediaCat. As well as operating in the adult industry I also work in telecommunications so was able to speak directly to several people who were able to divulge information regarding Lee Bowden and Andrew Crossley.

I've lived in Holland and travelled extensively and I've found that attitudes towards pornography in the U.K. can best be summarized by calling them hypocritical. I was told a stat recently that 80 percent of U.K. computers contained porn history, my biggest surprise was that 20 percent didn't. So often I speak to people about Ben Dover who appear vague as if they have never heard of the company and minutes later are divulging their in depth knowledge of our brand. This very English attitude towards pornography could potentially be used to shame people into paying compensation; however I believe people should be far more embarrassed by the fact they have committed a theft rather than what has been stolen.

Our initial letters in summary gave details of the infringements the software had detected, giving specific dates and times in addition to film titles. The letters then gave the recipient our legal position and encouraged them to contact us so that we could make an informed judgement on whether we would be pursuing the case through the courts or ceasing action. It also gave the recipient the option to admit the offence, financially settle the matter as well as committing to not re commit the offence.

The letters were designed to encourage communication with the recipient and then we could take an informed decision on next action if any. There were several cases after speaking or email correspondence where it was decided that no further action would be taken. In fact we had several instances where the recipient of the letters was grateful for the information we provided them with.

I don't understand how our letter could be described as "objectionable" as it merely highlighted and asked for more information regarding evidence of an infringement of our copyright that there is no dispute that our company owns. You can argue that our content is objectionable however there is no dispute that it is legal, it belongs to us, our revenues have been decimated because of its theft and that it has been accepted by one of the most senior Judges in the country that we have every right to protect our product.

The comments attributed that included the term "objectionable" were referring to HHJ Birss QC and his description of the ACS letters. It did state however that our letters "included some (though not all)" of these features. As we stated to the court we are prepared to listen to instruction on amendments to these letters.

On the subject that our content is objectionable I would argue that far more people in this country would recognise my partner Lindsay Honey (aka Ben Dover) than Calvin Klein, it's always surprised me Mr Klein sells more boxer shorts than us. The point I'm making is that regardless of peoples perceived outrage of our content, a large percentage of the population are aware and view pornography on a regular basis, giving the outward appearance of shock and revoltion. Golden Eye is not a company in pornography that has targeted consumers in order to shame them into paying silence money, it operates and always has done in an industry that is hugely popular and is targeted by violators of copyright, in effect thieves, who believe that paying for our product is somehow morally wrong and/or do not perceive stealing it is a crime.

One gentlemen I spoke to apologized for stealing our films and explained to me that he had no issues in paying for our films on the Internet, but had used a file sharing site in order to avoid his wife catching him buying porn with his credit card. This attitude of better to steal porn than get caught buying it is depressingly common in the U.K.

As explained previously we are only pursuing those that upload, not just download, so we would never be interested in an individual that was merely just downloading. The letter asks for more information, including whether anyone other than the account holder has been given access to password protected routers. In several cases after liasing with the account holder we were able to identify the violator and cease any action against the original recipient.

The question of if the violator was a minor would we pursue is an interesting one, not being a solicitor I am unsure of the legal position, however from a moral perspective I believe that the responsible adult has a duty of care to control the usage of a minor when using the Internet. We had more than one case where parents discovered that their children had been infringing our copyright on file sharing networks and were grateful that we had brought this to their attention.

Our letters had stated a settlement fee of £700, that for reasons I explained previously I strongly believe can be justified and were decided upon by legal counsel to our previous solicitors Tilley Bailey Irvine. I need to have the ruling explained to me by a solicitor in the first instance before deciding on what figure we will now be seeking from those who do not wish for the matter to be pursued and are willing to commit to not re offend.

In summary I am very happy with The Hon. Justice Arnold findings and look forward to the day when we once again sell more copies of "Strictly Cum Drinking than Boxer Shorts."
From the BBC:

Quote:O2 porn filesharers to be sent letters from film-maker - A judge approved the text two months after ordering O2 to hand over customer details

O2 customers suspected of illegally sharing pornographic films made by Ben Dover Productions will begin receiving letters from the film-maker shortly. The firm won a court order in March forcing O2 to pass on details of the owners of 9,124 IP addresses linked to illegal downloads. The High Court has now approved the text of the message that will be sent.

Ben Dover has said its focus is on users who had uploaded films to others.
The commercial director of the firm - which is registered at Companies House as Golden Eye International - said that parties who "simply downloaded one film" would not be pursued. "In our first letter we seek to find out more information regarding evidence of an infringement of our copyright," said Julian Becker. "Depending on the response to our letters we will then decide our next action."

It is understood that recipients will be told what to do to negotiate a settlement, and will be warned that if they do not respond they could be found liable. They will be given 28 days to reply after the judge said that a 14 day limit requested by Ben Dover was "unreasonable". The firm was also told it could not specify compensation of £700 but should individually negotiate a settlement sum with each defendant.
The latest on this story, again from the BBC:

Quote:More than 2,000 O2 customers will receive letters accusing them of illegally downloading porn films. The firm behind the films - Ben Dover Productions - had originally applied to the High Court to pursue 9,000 cases on behalf of a range of copyright owners. The judge threw out all claims apart from those relating to Ben Dover and watered down the wording of letters.

Parent company Golden Eye did not rule out the possibility that it would be pursuing other ISPs in the future. To date, it has only requested a court order to pursue alleged copyright infringers on O2's network but this may be extended to other ISPs. "Golden Eye (Int) Ltd continues to monitor all ISPs for our titles and pursue online and physical forms of piracy of our content," managing director Julian Becker told the BBC.

Letters seeking recompense for alleged copyright offences will start going out to 2,845 O2 customers in August. The Citizens Advice Bureau has agreed to help those who feel they have been wrongly accused. The judge who granted permission for the case to go ahead has put strict limitations on how letters are worded to avoid the "pay up or else" style letters sent by law firm ACS Law. Golden Eye will not be able to demand a one-off £700 fine as it had originally wished, instead money owed will be determined on a case-by-case basis. The letters also make people aware of the help available to them from Citizens Advice, with links to the website and telephone numbers. And perhaps most crucially the letters cannot hold the bill payer liable if someone else used their internet connection to download illegal material.

The final letter, a copy of which has been obtained by the BBC, reads: "In the event that you were not responsible for the infringing acts outlined above, 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 me this is not a good idea and flawed from the outset. First of all they at most will only have the IP addresses and as such the addresses of those they can trace. The problem being is that you cannot prove who uploaded/downloaded the pirated films, as these days many people share broadband connection using wi-fi. So unless you make the bill payer of the broadband responsible, then I fail to see who you can claim from.

It also seems a way of getting rather poor publicity. I would not want to have a business connected with going after people for money this way. I already can imagine how once the letters go out how the media will be all over it, giving those porn firms such a bad name. Worst still I fear even those not involved are going to be dragged into this mess, as some people who receive letters are bound to protest their innocence.

Of course it does seem like an easy way to make money. Go after lots of people who you claim to have pirated your films and ask them to pay an amount to settle your claim. You may get a fair number who will pay and that's going to make you a lot of cash, enough to make it worthwhile I would think. But to me this is something I just would not want to be involved with due to getting publicity for the wrong reasons.

I believe Ben Dover states that he has lost huge income due to piracy. To be honest I suspect he has lost income from simply not making an impact on the web. He seems to have only concentrated on DVD sales which is a now declining market, while the net is where sales really are. Ben Dover in my mind has lost millions from not moving towards the media of the internet, while many small producers did and grew huge.

I do wonder if any of the cases will go to court or they simply hope that people will pay. I doubt if it's financially viable to fight court cases when people decline to pay, though many I suspect will pay an amount to settle the claim anyway as they would fear going to court and also fear being in the press. As I said above, I'm sure enough people are going to pay to make it worthwhile and that's without any court cases.