A new speculative invoicing scheme surfaced a couple of weeks ago with defendants applying to the High Court to get O2/Be to reveal identities of customers behind specific IP addresses.
The High Court and the Honourable Mr Justice Arnold has now granted the Norwich Pharmacal Order which will force O2/Be (Telefonica) to reveal customer account details, based upon cross referencing some 9,124 IP addresses against their IP address assignment logs. It is extremely likely that the number of accounts affected will be a lot less than 9,124 as with dynamic IP addresses, over a period of time a single BitTorrent user may have used a number of IP addresses, and some people cycle their IP address believing it provides additional protection (the reverse is true, as multiple hits on the same account, increase the confidence of a positive hit with regards to copyright infringement).
Importantly the awarding of the order was not rubber stamped, only the joint claim from Golden Eye (International) Ltd and Ben Dover Productions was granted another 12 were declined as the High Court believed these other claims represented an opportunity to sell customer details granted via the Order, rather than pursue copyright infringement.
A copy of the letter asking for £700 as settlement in respect to the alleged infringement was also considered by the High Court, and it has been rejected in its current format, due in part that in its current format it could cause unnecessary distress and could be seen as an implicit threat of publicity. Also the sum of £700 has been deemed as unsupportable in its amount, with suggestions that the sum was picked simply because it represented a reasonable return based on how many people were likely to settle quietly by paying up, rather than contest the claim. Consumer Focus suggested that a sum of £70 for each infringement was more appropriate.
Dr Richard Clayton was used by Consumer Focus as an expert witness to point out that while it is technically possible to identify IP addresses of systems participating in file sharing at any time, there are cases where a providers records may mis-identify the actual account associated with it, and that the actual infringer could be exploiting an insecure wireless router. Additionally we would add, that in the past it has been suggested that some file sharing networks pollute their systems with fake data.
The evidence of file sharing appears to be almost identical to that used in previous cases which generally have collapsed for various reasons, in this case the spreadsheets hold the folldwing information, (i) the IP address, (ii) the date, time and time zone, (iii) the ISP and provider network, (iv) a reference number, (v) user and content hash numbers, (vi) the copyright holder and (vii) the work for each alleged infringement. It is not clear if a partial or full download was attempted from the infringer to actually prove they held the full file.
If Golden Eye (International) Ltd and Ben Dover Productions do decide to go ahead and use the Norwich Pharmacal Order, they will be required to place £2,500 as a security deposit into an escrow account, and the sum of £2.20 per IP address requested to cover the broadband providers costs in cross referencing the data. The largest batch of IP addresses that can be requested at any particular time will be 1,000 addresses.