Speculative invoicing: are anti-piracy threat letters set to return?

12 Mar 2012

A porn distributor is working with a third-party firm to send letters threatening legal action to accused illegal file-sharers unless they stump up hundreds of pounds in settlements.

Regular readers of PC Pro will be feeling a bit of déjà vu at the moment, but I'm not talking about Andrew Crossley's ill-fated "speculative invoicing" affair, which ended with the ACS Law solicitor declaring bankruptcy and suspended from practising his profession for two years.

Rather unbelievably, an entirely different porn company is trying the same trick (and has been for some time) -- even though its lawyers dropped out last year.

The two firms don't yet have court approval to go ahead with their plans; that's currently being considered by the Patent County Courts after a hearing on Friday, covered by Computer Active here.

Golden Eye and Ben Dover

Here are the basics: A firm called Golden Eye International has applied for an order to get the names and addresses of 9,000 accused illegal file-sharers from ISPs, based on IP addresses, in order to send letters demanding £700 settlements.

Of the money collected, a quarter will go to the hilariously named Ben Dover Productions, while three-quarters will go to Golden Eye, the distributor of Ben Dover's films -- if everyone paid up (they won't) then Golden Eye would pocket £4.75m.

For a bit more déjà vu, the barrister opposing the claim on behalf of rights group Consumer Focus is Guy Tritton, who represented some of the accused in the ACS Law case last year. According to Computer Active's report, he suggested to court that the entire exercise was merely designed to make money (which the other side denies), and among other requests, asked Golden Eye to bring a test case to court before sending the letters -- which Golden Eye's lawyer claimed was simply too expensive.

Golden Eye did bring three cases last year, before -- and yet again it's déjà vu, as ACS Law pulled the same move -- trying to back out when faced with the Patent County Court and Judge Birss, who has earned an enthusiastic high five and maybe even a hug for his sane opinions when faced with such silliness.

Why bother?

While £4.75m is a clear motivating factor, you simply have to wonder what Ben Dover/Golden Eye are thinking: if a case won't stand up in court now, it won't stand up when one of the savvier recipients of its £700-settlement letters signs up the likes of Guy Tritton to fight the case, with the precedents set by Judge Birss rather favouring them.

Yes, some people who receive the letters will pay because they're guilty and scared, or confused and scared and embarrassed by accusations of downloading something called Fancy an Indian. While ACS Law pulled in as much as £180,000 a month via speculative invoicing and Andrew Crossley continued to drive a Bentley after his business was shut down, it's hard to believe such tactics will be as successful now that they are so widely reported. Plus, the risk of wasted costs claims, legal fees and myriad other possible repercussions must surely outweigh the potential payouts, especially when faced with such public and legal scrutiny from the very beginning.

Battling piracy clearly isn't easy, but threatening to take someone to court and then refusing to take them to court is nonsense. Hopefully the judge overseeing this latest round agrees, and the courts (and the rest of us) can instead focus on finding productive solutions to illegal file-sharing, rather than merely monetising it.

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