egafd.com

What is Speculative Invoicing?

"In essence, it 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."

Ben Dover Productions are the main claimant and have granted Golden Eye a royalty free worldwide exclusive licence in the copyrights (which includes the right to bring litigation). The remaining claimants have entered into agreements with Golden Eye to empower it to conduct litigation on their behalf, in return for between 25% and 37.5% of any money recovered. ALL the claimants apart from Ben Dover and Golden Eye International, have been struck off pending an appeal to be heard next year.

Golden Eye planned to send letters of claim to 9,124 individuals (the ?Intended Defendants?), and ask each of them to pay ?700 in ?compensation? for alleged copyright infringement. Golden Eye also threatened to take court action and/or ?apply? to the subscribers? internet service provider to slow down or terminate their connections. Golden Eye had previously obtained NPOs against other ISPs but had only brought three of these cases to court. One had been discontinued. Two appeared to have been settled.

This is what Golden Eye International attempted AFTER Their legal representatives withdrew from Speculative Invoicing

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

The third Golden Eye case in the Patents County Court records is action CC11 P0131 ( Golden Eye v Rajan). That action was based on a Particulars of Claim in essentially the same terms as the other two albeit the film is different. It was issued in Northampton and transferred to Bow County Court in February 2011.

The case was transferred to Central London County Court and then on to the Patents County Court on 23rd March 2011 by His Honour Judge Dight at CLCC. On 21st April 2011 a Notice of Discontinuance was filed at the Patents County Court. There is nothing further on the court file and so I will not include that case in the order I will make.

They literally attempted to issue CCJs against people in an attempt to get them to pay up, as can be seen as soon as the cases were referred to the PROPER court for a true hearing Golden Eye International, withdrew or discontinued.

They simply cannot allow a contested case reach a full Court Hearing, their evidence would not stand up and what happened to ACS:LAW/Media C.A,T would happen to them. They know this, they can ONLY bank on either people paying up, OR worse still people throwing the letter in the bin, as then they can go for a ?default judgement?

Lord Lucas put it like this in the Digital Economy Bill debate:
"The game works roughly like this. You find an owner of an obscure bit of copyright that is available on the internet, preferably something pornographic and extremely nasty.

You then employ a piece of software whose innards have never been exposed to the public, or tested in a court, to produce allegations that a particular set of IP addresses have made that copyright material available for upload over the internet.

You then take tens of thousand of these cases to court and, using a Norwich Pharmacal order, obtain the details of the relevant subscribers from their internet service providers.

You then write them a letter, which has basically three elements to it.

First, it says: "You have committed this transgression of copyright".

Secondly, it says: "If you force us to take you to court, we will pursue you for a very large sum of money".

Thirdly, it says: "But we offer you this opportunity to settle for a mere ?500 or ?800"-or whatever the figure is-"and we will forget all about the perils of court and the vast sums for which you might otherwise be liable, because basically we are very good people, and all that we are seeking to do is to protect our copyright".

This scam works because of the impossibility of producing proof against this allegation. How can you prove that you did not do this thing? You have an internet connection, and they say that it was done over that internet connection.

It is no good producing your computer, because you committed the offence using a different computer. It is no good saying that you are a 97 year-old widow and that you hardly know how to use the telephone, let alone the internet, because, nevertheless, you have an internet connection and they say that it was abused.

It is extremely difficult to produce evidence to gainsay this. All you can do is deny it, and one of the things that they say in the letter is, "Don't bother to deny this without producing evidence that you didn't do it".

The result is that a very large people of number pay up, as a result either of the first letter or of the letters that follow. As far as I can discover, despite the tens of thousands of orders that have been granted, the solicitors involved have never taken a seriously contested case to court, because getting money out of people on the basis of the compromise offer is actually what is lucrative.

There may or may not be truth at the root of this, but this is a route for obtaining redress for copyright abuse which has been neglected, and with good reason, by the reputable end of the copyright industry. It produces a great deal of distress and indignation among many thousands of our citizens, and it ought not to be allowed to continue now that we are producing a better and proper route for redress for copyright owners, particularly where we are looking at volume cases-where we are looking at large volumes of infringement."

I would only add to this, that the letters we have seen that Golden Eye International are sending out are little more than a ?Phishing? Exercise, they claim they have evidence yet then ask the recipient of the letter lots of questions that really GEIL should already know, also they claim to have a ?Forensic Computer Analyst? who we know to be NG3 Systems Alireza Torabi. Obviously a different definition of ?Forensic? than that what most of us would understand.

I would ask the following TWO Questions

(1) Full techn?cal details of the steps taken by your Data/Mon?toring Company to obtain IP addresses and how they allege they ensure that the 'IP address is not
spoofed.

(2) Details of how long your clients allege their work was seeded by mine, and how many unique user connections were made during that time.

ACS:LAW ignored them, Davenport Lyons ignored them, Tilly Baily Irvine ignored them and Gallant Macmillan ignored them, well not so much as ignored, rather couldn?t answer. ANYONE who claims to be a Forensic Analyst, could answer these questions, but of course they would have to have the PC in question in front of them, again, another offer never taken up by any of the lawfirms, WHY, again

THIS HAS NOTHING TO DO WITH PREVENTING COPYRIGHT INFRINGEMENT, IT HAS EVERYTHING TO DO WITH LINING THEIR POCKETS, AND PROPPING UP A FAILING BUSINESS MODEL.. (Sorry for the shouting bit)

I think that by now with all of the discussions on this forum regarding this subject that if any participents of this forum receive a letter from this lot they will just tell them to take a hike, or just ignore them.

Recippients of the letter should also consider reporting the solicitors to the Solicitors Regulation Authority. There is a school of thought that it is unprofessional to send a letter to a third party on behalf of a client threatenig legal proceedngs when there is no legal basis for the threat.

A solicitor should not be used as a "hired gun" and must comply with his or her professional obligations even when threatening court proceedings against a third party for a client.

I seem to recall that the solicitor in the other case got struck off but I might be wrong.

@leatherpantsman

Well the other Solicitor you talk of was Andrew Crossely, who was suspended for two years and fined ?80,000, he was forced into bankrupcy, of course his "Comrade in arms" Lee Bowden although he closed Media C.A.T he is still a Director of Piri Ltd.

The real problem here though is that Golden Eye International are NOT a law firm and so there is NOONE to complain to, and that of course is the beauty of the scam, we know that the previous Lawyers who represented them Tilly Baily and Irvine dropped out of the Speculatinve Invoicing plan due to bad publicity but GEIL just continued.

I know Julian Becker, commercial director of Golden Eye International/Ben Dover Productions, posts on this forum, however he seems VERY quiet when it comes to answering any questions regarding his companies conduct.

He did release a Press release howver it was full of lets be charititable here, and just say laughable statements, that I did a response post, that he has still not responded to.

The post is here

http://acsbore.wordpress.com/2012/06/28 ... an-becker/

I hope he will respond soon!

@RoddersUK

I would advise people NOT to ignore this if they receive a letter, it would allow Becker and Honey to go for what is called a "Default Judgement",

Anyone receiving a letter should contact the Citizens Advice Consumer Service on 08454 04 05 06 or their local Citizens Advice Bureau. They have been well briefed by the Courts on what to do.

Please do NOT ignore any letter from them!

Please explain.
Are you saying that a court would uphold what these parias have alleged?
Would a court do that?
Seems odd to me, but then I am just a lay person.
I am not likely to get one of these letters anyway, but as I have a good friend who is a Solicitor I would be asking his advice on the subject if I were to be a recipient of one.

RoddersUK wrote:

> Please explain.
> Are you saying that a court would uphold what these parias have
> alleged?
> Would a court do that?
> Seems odd to me, but then I am just a lay person.
> I am not likely to get one of these letters anyway, but as I
> have a good friend who is a Solicitor I would be asking his
> advice on the subject if I were to be a recipient of one.
>
>

Well basically they have been ordered to "water" down the FIRST letter that they send, it is now essentially a "Phishing" letter as you can see on my Blog, the point is that if someone receives a letter and then bins it, Golden Eye, can say to the Court, "Look we sent this letter and they ignored it, we want a default judgement", I am not saying it will happen but it could.

Previous examples include Davenport Lyons and ACS:LAW and also GEILs previous legal representives, Tilly Baily Irvine. What is not clear at the moment is WHO they are using as a Lawfirm, and Mr Becker and Mr Honey anre keeping VERY quiet.

Consumer Focus did a great job in getting the Court to neuter the letter that WOULD be sent out and also putting together information for the Citizens advice people so they are read for anyone who recieves one of these "Nastygrams"

Didn't the judge in the recent case say Bendover could have the names and addresses of O2 customers, but he couldn't demand money off them? So if he is still sending letters asking for money, isnt it contempt of court, which is a criminal offence, isn't it? (I asked one of my fares who is a QC and that's what he said lol)

If you ignore a letter before action then the next thing the claimant does is issue a claim form in the county court. This is not a debt recovery claim, for example in respect of an unpaid invoice. It is a claim for damages for breach. If you receive a claim form you have 14 days within which to acknowledge service (in otherwords send the form back to court to say you are defending it) and then a further 14 days to file your defence in court saying why you are not liable for the claim.

A claimant can only get a default judgement if you fail to acknowledge service or fail to file a defence. And as it is not a debt claim the court should enter judgement for damages to be assessed. In other words the claimant has to show to the court (at a later hearing known as an assessment of damages hearing) what monetary losses it has suffered. If a dvd is a fiver and it can be shown that you have allowed 10 people to share that file then the claim could be 10 x ?5. If those 10 then allow 10 people each to share the file then that would increase the damages claim. The defendant can therefore still argue the amount claimed.

Also the defendant can still apply to set aside a default judgement if there is a real prospect of successfully defending the claim. That's just an application to court with a statement setting out why you did not reply to the claim form and a draft defence setting out why you deny liability. That will be heard by a district judge sittiing in a coourt room (or rather something that's just like an office, no robe or gowns or anything and you just call the district judge sir) and he will decide what happens next.

But remember folks, in the english civil courts it is always up to the claimant to prove its case on a balance of probabilities. How can it prove that someone on a list has actaully downloaded anything in breach of copyright without some very expensive expert computer geeky (sorry couldn't think of another word) evidence. I know it's difficult to prove a negative but the burden of proof is on the claimant

There was another post somewhere that said if you get a letter you should ask for the evidential basis upon which the claim is being made. You should also refer to the pre-action protocols in the Civil Procedure Rules (found on the justice.gov.uk website) as gone are the days of just issuing court proceeidngs and seeing what happens. A claimant has an obligation to set out full chapter and verse so the potential defendant knows what he or she is up against and can make a full and detailed repsonse.

Hope this helps anyone who receives such a letter (and reminds you that not all people involved in the law are t***s!!)

@little juan

Basically GEIL/BDP applied to the Court with 9000 IPs that they wanted the ISP (O2) to release the names and addresses for.

The Judge basically said if GEIL/BDP were allowed to do this it would be a cartel, so he allowed only the Ben Dover material that they have IPs for to be used, hence instead of the 9000+ they had now they have about 2500, and that actually is the real problem for them.

ACS:LAW sent out over 25,000 and still couldnt make this scheme work, as they were so incompetent, so although on paper GEIL might be able to make a lot of money, I dont think they will, indeed I think they will lose money.

People are a lot more clued up to this scam now, than they were when ACS:LAW ran it, the Citizens Advice are now in the know thanks to the efforts of Consumer Focus. The shameful actions of O2 I hope will also backfire on them.

GEIL would have taken the lions share of the profits and then divvied out a proportion of the remainder to all the other producers, including "OneeyedJack". I think Becker not only is ripping off the public, I think he is also ripping off the industry HOWEVER I would add one caveat to that, if he offered to do it free of charge, well make your own mind up!