'Speculative invoicing' claim picked over in Ben Dover video download case
The UK's leading patents judge has criticised a pornography distribution company after it tried to claim damages from an alleged illegal file sharer.
The company, Golden Eye International (Ltd), a distributor of pornographic films for a company called Ben Dover Productions, lost its bid to drop its case against Mrs Vithlani, for allegedly illegally downloading a film Fancy an Indian?
A default judgement awarded in its favour by another court against Mohamed Maricar for allegedly illegally downloading this film was also overturned. This is commonly called speculative invoicing.
Read more: Golden Eye and Ben Dover Productions controversy
Earlier this year Judge Birss had been deciding the merits of the cases brought by ACS Law for Media Cat. Presiding over yesterday's hearing he agreed that while there were differences between the claims issued by Golden Eye and those involving ACS Law/Media Cat there were a number of issues he was concerned about.
He said Golden Eye had breached the section of the Copyright Designs and Patents Act (CDPA). He went on to say that as he had pointed out with the ACS Law / Media Cat cases, this law clearly states that a claim for copyright infringement cannot be issued without the copyright owners being party to the legal action.
Golden Eye's barrister, Jonathan Cohen, then strenuously argued that Simon Honey, a director of Golden Eye, also being a partner with stated copyright holder, Ben Dover Publications meant that there was no need to join the two companies together in a claim.
After informing the court that he owned a pair of Ben Dover underwear, which had in pride of place at his chambers, Mr Cohen also remarked that Golden Eye had an exclusive licence to distribute the films. He said this was further proof that this breach of the CDPA should not stop Judge Birss issuing a discontinuance notice.
He said that it was 'fanciful' that Ben Dover would seek "a second bite of the cherry" if discontinuance was allowed as could have been the case with the ACS Law/ Media Cat cases.
Judge Birss did not agree and said that having an exclusive licence could not legally stop Ben Dover issuing another claim if he permitted discontinuance.
He was also concerned about the breach of the Civil Procedure Rules when issuing the claims. Copyright and IP cases can only be heard in certain courts and the money claims the online process used by Golden Eye is not set up for IP cases.
"These are not simple debt claims," said Judge Birss who also said it was difficult to know if Golden Eyes cases were "good or bad" without seeing expert evidence.
He also made reference to the fact that the amount of £700 that Golden Eye originally asked for in the letters, involved damages and costs. But when the claims were issued using money claim online, the £700 was only registered as damages because costs couldn't be asked for using the small claims track used by Golden Eye.
Golden Eye now has to decide to join with Ben Dover or it is likely that the claim will be struck out. Although Judge Birss has overturned the judgement that would have forced Mr Maricar, to pay a bill that now stands at £1,737, this case is still live and he needs to defend it again.
Judge Birss convened the next hearing for 9 December.
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