05 Feb 2013 Peter Bradwell copyright

Golden Eye write to alleged copyright infringers

Just under 1,000 broadband subscribers in the UK received letters in December from O2 or Be Broadband, saying that the company is passing on their name and address details to a company called Golden Eye.

Last week, Golden Eye International sent the first batch of ‘pre-action’ letters to about 150 of those people. The letters threaten court action for alleged copyright infringement via p2p file-sharing networks. The allegations concern copyright infringement of various ‘Ben Dover Productions’ films.

Golden Eye will be sending out the remaining letters in stages over this month.

The letters mainly involve O2 broadband customers, and some BE Broadband customers (both are owned by Telefonica UK).

For some background to this, see Consumer Focus’ outline of the case, and our blog on the original case.

Consumer Focus have also posted a blog on what to do if you receive a letter.

Advice for those who have received letters

1. What to do if you have only received a letter from O2 or Be Broadband

The letters from O2 or Be are simply to inform you that they have handed over information about you to Golden Eye. You do not need to take action or seek advice from Citizens Advice at this stage – but understanding what is happening is important. It is likely you will receive a letter in the near future from Golden Eye.

2. What to do if you have received a letter from Golden Eye

These are ‘pre-action’ letters. The wording of the letters was set by the court. You can download and check if the letters look how they should. If your letter does not look like this, that is really important. It is something you should let Citizens Advice know about.

Regardless of whether you (as one of the relevant O2 or Be Broadband customers) are guilty of the alleged infringement, you need to respond to Golden Eye within 28 days, setting out whether you deny the allegation, or admit to copyright infringement.

Free and confidential help is at hand. Consumer Focus and Citizens Advice have worked together to establish detailed advice scripts for alleged copyright infringement. The legal system is devolved, therefore Citizens Advice has prepared suitable advice scripts for England and Wales, for Scotland and for Northern Ireland.

Citizens Advice provides free advice and are able to advice O2 and BE customers regardless of whether they are guilty or not. The advice is free and confidential.

If it turns out that the copyright infringement was committed by a child in the household, Citizens Advice will be able to advise O2 and BE customers on possible courses of action.

Visit www.adviceguide.org.uk or call 08454 04 05 06 from 9am to 5pm Monday to Friday. Alternatively, visit your local Citizens Advice Bureau – find the details online at www.adviceguide.org.uk or look under C in the phone book.

You are welcome to get in touch with us if you would like to discuss this. But we can’t offer you the sort of legal advice now about how to respond to the letters, so this should not be a substitute for you contacting Citizens Advice.

3. Why have I received this letter?

Golden Eye International (GEIL) represents the pornography producer Ben Dover.

You have received the letter because GEIL obtained a so-called Norwich Pharmacal Order forcing O2 (or rather its parent company, Telefónica UK) to give GEIL your name and address on the basis that you are a subscriber to its Internet service and GEIL claims to have observed an IP address associated with your account distributing files in infiringement of copyright.

The next step is the letter from GEIL. That includes a demand for a sum of money in settlement of the rights holder’s claim. The letter also threatens court proceedings should you not respond.

4. More background: what do they know?

First, the High Court recognised in its decision that the subscriber – the bill payer for an Internet connection – may well not be the individual that has committed an alleged infringement. Most internet connections in the UK are shared.

Golden Eye can identify IP addresses relating to alleged infringement, which then identify an internet connection. That does not identify a device or the individual using it.

Second, it is important to stress the quality of the evidence on which the accusation against you is based may be dubious.

Peer-to-peer (P2P) file-sharing is a system of distributing files across the Internet (often also called “torrenting”). The key element is that file-sharing is decentralised, so that there is no central server that holds copies of these files; instead, users connect directly to each other. Someone who downloads (receives) a file is also simultaneously uploading (distributing, or sending) the parts of the file they have already received. If there were a central server, rights holders who believe the works they own are being copied without authorisation would simply seek to shut that down. As that approach is impossible with file-sharing, rights holders seek to identify and stop consumers directly.

All Internet users are familiar with the names sites use to identify themselves online: Google.com, OpenRightsGroup.org, and so on. Networked computers, however, identify themselves and send traffic to each other using numbers called IP (for Internet Protocol) addresses.

Every ISP is assigned a pool of these addresses. When you connect to the Internet your Internet service provider (whether you use broadband, dial-up modem, wifi, or mobile) assigns an address in their pool to the device you’re using to connect (whether that’s a network router, a mobile phone, or a computer). How long you keep a particular address depends on the kind of connection you have and your ISP’s policy. Businesses and some consumers have “static” IP addresses: numbers they have been permanently assigned.

Most consumers and all mobile or dial-up connections, however, have “dynamic” IP addresses that are assigned randomly for a limited period of time. ISPs keep logs showing which of their subscribers used which of its pool of numbers at any given time.

File-sharing software uses these numbers to connect file-sharers to each other – and makes no effort to hide them. Rights holders accordingly use special software to monitor these connections and record the IP addresses, along with the date and time, of users spotted sharing copies of the works they own.

To find out who was using the IP number at a particular time, a rights holder must obtain a court order known as a “Norwich Pharmacal Order” against your ISP. The ISP then matches the IP addresses the rights holder has recorded against its logs and advises the rights holder of the subscriber’s identity.

That’s the theory. In practice, this system is far from perfect and the fact that you’ve been accused does necessarily not mean you are guilty.

More information on the allocation, tracing and matching of IP addresses can be found in a report by Dr Richard Clayton, which takes you through all the steps and explains what can go wrong: Online traceability: Who did that? – Technical expert report on collecting robust evidence of copyright infringement through peer-to-peer filesharing

5. What does the accusation mean?

Copyright actions of this nature are civil, not criminal cases; civil cases are assessed on the balance of probabilities rather than the principle of beyond reasonable doubt. Under the High Court’s decision in July 2012, GEIL must demonstrate that you were personally involved in copying or sharing of all or part of the work.

However, the IP address and the time of the alleged infringement is the only evidence GEIL has. Such evidence has never been fully tested by a UK court, and so far it has not been establish whether the evidence proves beyond reasonable doubt that a copyright infringement has occurred on an Internet connection. Accordingly, all GEIL actually knows is that O2 identified you as the subscriber matched to the IP address, date, and time. This information is not always reliable, and similar cases in the past have produced many unjust accusations.

When the High Court granted the Norwich Pharmcal Order it merely examined whether on the face of it, the evidence suggests that a copyright infringement has been committed on the Internet connection as identified by an IP address. It will be for courts to test the evidence in a fully contested case. Because Internet connections are typically shared, in granting the order the court also ruled that consumers identified as above could not be presumed guilty.

If you do not recognise the material you are accused of downloading or sharing, there are a number of possible reasons why you might have been unjustly linked to it: someone else in your household might have used the connection; an open wifi connection might have allowed an outsider to piggyback on your connection; IP addresses can be spoofed, redirected, or hijacked; or the information might simply be wrong.

6. What should I do now?

Do not panic. Get advice from Citizens Advice (see below). Do not send money or admit guilt until or unless you are advised to do so by someone competent.

7. Where to get advice

If you have received a letter from O2 or Be

At this stage you do not need to seek advice. You will likely receive a letter in the future from Golden Eye. At that stage, it is important to seek advice.

If you receive a letter from Golden Eye

Consumer Focus and Citizens Advice have worked together to establish detailed advice scripts for alleged copyright infringement. The legal system is devolved, therefore Citizens Advice has prepared suitable advice scripts for England and Wales, for Scotland and for Northern Ireland.

Citizens Advice provides free advice and are able to advice O2 and BE customers regardless of whether they are guilty or not.

If it turns out that the copyright infringement was committed by a child in the household, Citizens Advice will be able to advise O2 and BE customers on possible courses of action.