This is an explanation from Ben Dover and Golden Eye for the legal action brought against O2. It was issued as a response to the ruling in the case given a couple of weeks ago and was written by Julian Becker, Ben Dover Productions' commercial director.
Quote:My parents, always encouraged me to become a solicitor or an accountant, so I found it most bizarre and ironic that one of the many false accusations that has been directed towards us is that we are a reinvention of ACS Law. I'm sure I wasn't the only one to raise a smile in court when our barrister produced a pair of Ben Dover boxer shorts as evidence.
The Hon. Justice Arnold accepted that "there is nothing particularly unusual, let alone objectionable, about the Ben Dover agreement. The mere fact that the copyright works are pornographic films is no reason to refuse the grant of relief, since there is no suggestion that they are obscene or otherwise unlawful. Golden Eye and Ben Dover Productions have a good arguable case that many of the relevant intended defendants have infringed their copyrights. I am satisfied that they do intend to seek redress for those wrongs and that disclosure is necessary to enable them to do so. In these circumstances, I conclude that the claimants’ interests in enforcing their copyrights outweigh the Intended defendants’ interest in protecting their privacy and data protection rights, and thus it is proportionate to order disclosure."
I hope this will finally disprove those rumors that associate us with Andrew Crossley, although my mother was disappointed it has been proved that I am indeed a pornographer not a solicitor.
Its positive that the court acknowledges that we have the right to take this action and protect our content. This action has been inspired by our core business being decimated by piracy and we are pursuing several projects in combating both the Internet sites that facilitate online piracy as well as the end violators and the physical DVD pirates. Our clothing, merchandise and events business was initiated very much in response to our core film business being so negatively impacted by different forms of piracy. Due to the nature of the way most consumers view adult content, the adult business has been affected far worse than mainstream film due to the fact that the pirates cannot replicate the cinematic experience of mainstream movies.
The court also accepts that this form of piracy does result in a commercial loss for our business and that we have the right to pursue compensation, I understand it is difficult to quantify how much this loss is due to the nature of how file sharing networks operate. I may not have in depth technical knowledge of the workings of these websites, however my limited knowledge appears somewhat more in depth than Guy Tritton, the Consumer Focus barrister, who calculated that if every violator shared content with every other violator then Golden Eye's loss would be 9,000 x £10, totaling £90,000.
Disregarding the fact that our films when purchased sell for far in excess of £10, he totally missed the fact that file sharing occurs not in a closed user group of those circa 9,000 Telefonica customers, but in a far larger community of millions of users. Fundamentally we are pursuing those that are uploading not downloading, they are potentially uploading to millions of others who are also using these networks. How many they upload to is impossible to calculate, but in effect these violations are unauthorized distribution, we are not pursuing those who have simply downloaded one film.
I'm still at a loss to understand why consumer groups are so opposed to a company that is merely seeking to protect its core business from individuals who are stealing and distributing its products. The definition of consumers are those that purchase goods or services, the individuals who are infringing our copyright are not paying for our product but are stealing it, I do not understand how they can be described as consumers. My belief is that our actions are actually in the interests of the true consumers as if piracy carries on at the level we are witnessing today, many creative organizations will cease to be commercially able to fund new content, limiting future consumer choice.
As regards Richard Clayton's evidence that the software we use is capable of identifying the correct IP Address but this is not the case every time, I have to listen to my technical advisors who assure me that in the vast majority of the time, the software will identify the correct IP address that has infringed our copyright. The fact that the order was granted implies to me that the judge shared our opinion on this.
It is true that we license the same software that ACS used. I was one of the biggest critics of their operation and spoke several times at adult forums and privately to several other companies in our industry of my concerns. The reservations I had were nothing to do with the software that they licensed but everything to do with the references and information I obtained from those that had previously conducted business with both ACS and MediaCat. As well as operating in the adult industry I also work in telecommunications so was able to speak directly to several people who were able to divulge information regarding Lee Bowden and Andrew Crossley.
I've lived in Holland and travelled extensively and I've found that attitudes towards pornography in the U.K. can best be summarized by calling them hypocritical. I was told a stat recently that 80 percent of U.K. computers contained porn history, my biggest surprise was that 20 percent didn't. So often I speak to people about Ben Dover who appear vague as if they have never heard of the company and minutes later are divulging their in depth knowledge of our brand. This very English attitude towards pornography could potentially be used to shame people into paying compensation; however I believe people should be far more embarrassed by the fact they have committed a theft rather than what has been stolen.
Our initial letters in summary gave details of the infringements the software had detected, giving specific dates and times in addition to film titles. The letters then gave the recipient our legal position and encouraged them to contact us so that we could make an informed judgement on whether we would be pursuing the case through the courts or ceasing action. It also gave the recipient the option to admit the offence, financially settle the matter as well as committing to not re commit the offence.
The letters were designed to encourage communication with the recipient and then we could take an informed decision on next action if any. There were several cases after speaking or email correspondence where it was decided that no further action would be taken. In fact we had several instances where the recipient of the letters was grateful for the information we provided them with.
I don't understand how our letter could be described as "objectionable" as it merely highlighted and asked for more information regarding evidence of an infringement of our copyright that there is no dispute that our company owns. You can argue that our content is objectionable however there is no dispute that it is legal, it belongs to us, our revenues have been decimated because of its theft and that it has been accepted by one of the most senior Judges in the country that we have every right to protect our product.
The comments attributed that included the term "objectionable" were referring to HHJ Birss QC and his description of the ACS letters. It did state however that our letters "included some (though not all)" of these features. As we stated to the court we are prepared to listen to instruction on amendments to these letters.
On the subject that our content is objectionable I would argue that far more people in this country would recognise my partner Lindsay Honey (aka Ben Dover) than Calvin Klein, it's always surprised me Mr Klein sells more boxer shorts than us. The point I'm making is that regardless of peoples perceived outrage of our content, a large percentage of the population are aware and view pornography on a regular basis, giving the outward appearance of shock and revoltion. Golden Eye is not a company in pornography that has targeted consumers in order to shame them into paying silence money, it operates and always has done in an industry that is hugely popular and is targeted by violators of copyright, in effect thieves, who believe that paying for our product is somehow morally wrong and/or do not perceive stealing it is a crime.
One gentlemen I spoke to apologized for stealing our films and explained to me that he had no issues in paying for our films on the Internet, but had used a file sharing site in order to avoid his wife catching him buying porn with his credit card. This attitude of better to steal porn than get caught buying it is depressingly common in the U.K.
As explained previously we are only pursuing those that upload, not just download, so we would never be interested in an individual that was merely just downloading. The letter asks for more information, including whether anyone other than the account holder has been given access to password protected routers. In several cases after liasing with the account holder we were able to identify the violator and cease any action against the original recipient.
The question of if the violator was a minor would we pursue is an interesting one, not being a solicitor I am unsure of the legal position, however from a moral perspective I believe that the responsible adult has a duty of care to control the usage of a minor when using the Internet. We had more than one case where parents discovered that their children had been infringing our copyright on file sharing networks and were grateful that we had brought this to their attention.
Our letters had stated a settlement fee of £700, that for reasons I explained previously I strongly believe can be justified and were decided upon by legal counsel to our previous solicitors Tilley Bailey Irvine. I need to have the ruling explained to me by a solicitor in the first instance before deciding on what figure we will now be seeking from those who do not wish for the matter to be pursued and are willing to commit to not re offend.
In summary I am very happy with The Hon. Justice Arnold findings and look forward to the day when we once again sell more copies of "Strictly Cum Drinking than Boxer Shorts."