ORG granted permission to intervene in Golden Eye appeal

We’re delighted to announce that we have been granted permission to intervene in the appeal by Golden Eye International. (See a previous post for more details).

The case relates to an application earlier this year by Golden Eye for a ‘Norwich Pharmacal Order’.

The order would have seen Telefonica UK (called O2 in the UK) handing over to Golden Eye the details relating to around 9000 IP addresses, through which copyright infringement is alleged to have occurred. The High Court granted an order for the disclosure of details relating to 2,845 of these IP addresses. But the High Court declined to give an order relating to around 6000 IP addresses, because of the arrangement that Golden Eye had with the owners of the copyrights. Golden Eye are appealing this aspect of the decision.

The past couple of weeks we have been asking for donations to help us cover the £5000 it will cost to intervene. We’ve had a fantastic response, with over £3,800 raised already. A huge thank you if you have contributed to this effort. If you’d like to help get us over the line, you can donate here:

This is one step in a wider effort to do more to promote digital rights and the interests of Internet users in the courts. We’re also asking people to help by joining as paying supporters. If we hit our targets, we can employ a legal officer who will help co-ordinate our crack-team of volunteer lawyers, perform thorough legal research, and enable us to launch more legal interventions. You can learn more here, or head straight over to the join page.

What the appeal is about, and why we’re intervening

Here’s a recap of what is happening. (There’s a slightly longer version in a previous post). In March, the High Court granted an order that compelled O2 to provide the personal details (names and postal addresses) relating to 2,845 of these IP addresses alleged to have been used to infringe copyright by peer-to-peer file-sharing (see our previous write up and the Consumer Focus press release). You can read the judgment online.

However, the High Court refused Golden Eye a Norwich Pharmacal Order in relation 12 of the 13 pornographic film producers. The Court considered whether it “is appropriate, when balancing the competing interests, to make an order which endorses an arrangement under which the Other Claimants surrender total control of the litigation to Golden Eye and Golden Eye receives about 75% of the revenues in return.” The Court concluded:

that would be tantamount to the court sanctioning the sale of the intended Defendants’ privacy and data protection rights to the highest bidder. Accordingly, in my judgment, to make such an order would not proportionately and fairly balance the interests of the Other Claimants with the Intended Defendents’ interests.

Golden Eye were representing these 12 rights holders on the basis of an ‘enforcement only’ licence, which means Golden Eye have to pay the ‘Licensor’ only around 25% of revenue recovered through settlement sums or damages awarded in court. It is that relationship that the Court was concerned about. Golden Eye is appealing that decision.

If our intervention is successful, O2 will not be have to hand over the data it retains relating to just over 6,000 IP addresses.

Similar revenue sharing agreements were the root of “speculative invoicing” schemes previously run by Davenport Lyons and ACS:Law. But because Golden Eye International is a limited company it is beyond the reach of the Solicitors Regulation Authority (SRA) which has suspended Dave Gore, Brian Miller and Andrew Crossley for sending intimidating letters.

To be clear, copyright holders and their exclusive licensees would still be able to enforce their copyright. This is about limited companies acting on behalf of large numbers of copyright owners on ‘enforcement only’ arrangements.