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Old 05-04-2012, 09:16 AM   #1
Rob Lister
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Ruling: IP address does not identify person

This is interesting an ruling.

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A landmark ruling in one of the many mass-BitTorrent lawsuits in the US has suffered a severe blow to a thus far lucrative business. Among other things, New York Judge Gary Brown explains in great detail why an IP-address is not sufficient evidence to identify copyright infringers. According to the Judge this lack of specific evidence means that many alleged BitTorrent pirates have been wrongfully accused by copyright holders.
http://torrentfreak.com/judge-an-ip-...person-120503/

I don't know if a ruling from a New York magistrate judge can qualify as 'landmark' but it is a kick in the nads to the RIAA. The article is fairly detailed as to the 'why' of the ruling, most of which is obvious to anyone with a router. Other judges in other cases have alluded to this issue but never have they thrown out cases based solely upon it while recommending that other judges do the same.

My current IP is 192.168.1.113
That really sums it up, doesn't it? Sure, My ISP provider gives my house a public IP addy, but once it gets to my router, it's private IP all the way down, just like turtles. My house is a bit less populated of late (with most of the boys grown and gone) but at any given time in years past, my router table had more than a dozen active private IP connections, sometimes quite a few more; desktops, laptops, ipads, xboxes, playstations, android phones. In addition to my own little potential pirates, they invite their little friend pirates over for various computer/game-related activities; every single one using my internet gateway. Add some nieces, nephews, friends and other family, I've got a potential multi-billion dollar lawsuit hanging over my head!
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Old 05-04-2012, 09:18 AM   #2
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Originally Posted by Rob Lister View Post
My current IP is 192.168.1.113
That really sums it up, doesn't it? Sure, My ISP provider gives my house a public IP addy, but once it gets to my router, it's private IP all the way down, just like turtles. My house is a bit less populated of late (with most of the boys grown and gone) but at any given time in years past, my router table had more than a dozen active private IP connections, sometimes quite a few more; desktops, laptops, ipads, xboxes, playstations, android phones. In addition to my own little potential pirates, they invite their little friend pirates over for various computer/game-related activities. Add some nieces, nephews, friends and other family, I've got a potential multi-billion dollar lawsuit hanging over my head!
Your IP connection, your responsibility to ensure its legal use. That's been the approach in the British courts, and it's one that I entirely agree with. To do otherwise is to give an open invitation to piracy (IMHO).
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Old 05-04-2012, 09:49 AM   #3
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It should be like a car --- if I make a reasonable effort to ensure that my car is locked up and the key is secured w/in my home, I should _not_ be liable if someone steals it, uses it in a bank robbery and then returns it --- I just have to prove that I wasn't the get-away driver and that I didn't loan out the vehicle for that purpose (and of course, co-operate w/ the investigation to a reasonable degree).

If a reasonable effort is made to secure a WI-FI connection then the presumption of innocence requires that the prosecution prove that it was a particular individual that did the downloading.
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Old 05-04-2012, 09:50 AM   #4
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Originally Posted by HarryT View Post
Your IP connection, your responsibility to ensure its legal use. That's been the approach in the British courts, and it's one that I entirely agree with. To do otherwise is to give an open invitation to piracy (IMHO).
I'm willing to bet your HO would change if you were suddenly charged with a crime related to the downloading of illicit material. Suppose, for example, some pervert parked outside your house, hacked your weakly secured wireless, and posted or downloaded some decidedly illegal content over your assigned addy.

How do you prove it was not you?

Maybe you think it wouldn't happen to you. Maybe you think it couldn't happen to you because you're using WPA2 with a really long and secure key; a key your wife or kid or friend gave to another who gave to another, etc.

What if it happened to your friend? Someone in your family? Would your HO change?
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Old 05-04-2012, 09:56 AM   #5
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I'm willing to but your HO would change if you were suddenly charged with a crime related to the downloading of illicit material. Suppose, for example, some pervert parked outside your house, hacked your weakly secured wireless, and posted or downloaded some decidedly illegal content over your assigned addy.
No, it wouldn't. Let's take your viewpoint for a minute. Let's suppose there are four people using your IP connection, not to mention school friends, etc. There is proof that an illegal download was made via your IP connection. How can anyone prove who was actually responsible?

The only sensible way to do it (IMHO) is to handle it the same way that (in the UK at least) traffic offences are handled, which is to prosecute the legal owner of the vehicle, but give them the option of specifying who the actual driver was at the time. If the owner says "I don't know who was driving at the time" then it's the legal owner of the vehicle who gets prosecuted. Their vehicle; their responsibility. But make the punishment fit the crime. You get a £60 fine (about $100) for speeding. Make the fine for illegal downloading something similar. It's this nonsense of fining people millions that's got to stop.

Can you suggest a practical alternative? That's a serious question - I'm interested to know what other options you feel that there are here?

Last edited by HarryT; 05-04-2012 at 10:00 AM.
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Old 05-04-2012, 10:07 AM   #6
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Originally Posted by HarryT View Post
No, it wouldn't. Let's take your viewpoint for a minute. Let's suppose there are four people using your IP connection, not to mention school friends, etc. There is proof that an illegal download was made via your IP connection. How can anyone prove who was actually responsible?

The only sensible way to do it (IMHO) is to handle it the same way that (in the UK at least) traffic offences are handled, which is to prosecute the legal owner of the vehicle, but give them the option of specifying who the actual driver was at the time. If the owner says "I don't know who was driving at the time" then it's the legal owner of the vehicle who gets prosecuted. Their vehicle; their responsibility.

Can you suggest a practical alternative? That's a serious question - I'm interested to know what other options you feel that there are here?
I think you would scream the opposite opinion at the top of your lungs were it to actually happen to you. You are suggesting you would willing go to jail, without a peep, were my example to happen to you--"Shucks, it was my IP so I guess it was my bad! Lock me up, officer." I think you're taking a philosophical or principled stand without fully considering the potential downsides; the absurd outcomes.

The alternative is -- quite simply -- lay the burden of proof where it belongs, on those bringing the charges or making the accusation to prove it was you, and not another, that did the deed. And to do so either beyond a reasonable doubt, or by a preponderance of the evidence, depending on the class of suit. I think your UK law differs from ours in that respect.

If, for whatever reason, that cannot be done, then the case cannot be prosecuted. While that may seem ugly, it is not as ugly as convicting an innocent person simply because they paid the bill.

Last edited by Rob Lister; 05-04-2012 at 10:22 AM.
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Old 05-04-2012, 10:11 AM   #7
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I think you would scream the opposite opinion at the top of your lungs were it to actually happen to you. You are suggesting you would willing go to jail, without a peep, where my example to happen to you--"Shucks, It was my IP so I guess it was my bad! Lock me up, officer.

The alternative is -- quite simply -- have lay the burden of proof where it belongs. If, for whatever reason, that cannot be done, then the case cannot be prosecuted. While that may seem ugly, it is not as ugly as convicting an innocent person simply because they paid the bill.
What you appear to be supporting is a scenario in which nobody could EVER be prosecuted. A carte blanche for piracy. It would be like saying that nobody could ever be convicted for speeding unless it could be "proved" that they were driving the car at the time.

You have to take responsibility for your possessions. If you choose to buy a car, you are responsible for its use. If you choose to have an IP connection, you are responsible for its usage. To do otherwise is just a "cop out".
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Old 05-04-2012, 10:13 AM   #8
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Quote:
Originally Posted by HarryT View Post
No, it wouldn't. Let's take your viewpoint for a minute. Let's suppose there are four people using your IP connection, not to mention school friends, etc. There is proof that an illegal download was made via your IP connection. How can anyone prove who was actually responsible?

The only sensible way to do it (IMHO) is to handle it the same way that (in the UK at least) traffic offences are handled, which is to prosecute the legal owner of the vehicle, but give them the option of specifying who the actual driver was at the time. If the owner says "I don't know who was driving at the time" then it's the legal owner of the vehicle who gets prosecuted. Their vehicle; their responsibility. But make the punishment fit the crime. You get a £60 fine (about $100) for speeding. Make the fine for illegal downloading something similar. It's this nonsense of fining people millions that's got to stop.

Can you suggest a practical alternative? That's a serious question - I'm interested to know what other options you feel that there are here?
So if I spoof my IP or use a VPN and end up with your IP on the RIAA's logs. You still ok with getting fined thousands of dollars because you didn't make sure I was using your IP? I realize the ISP logs will show the correct IP but the RIAA will throw a lawsuit with little or no proof even if the IP is wrong.

I'm not condoning piracy, but there have been a lot of innocent people slapped with huge fines. Our laws clearly states we are innocent until proven guilty beyond a doubt and that is where the problem lays, there is doubt as to who is actually to blame. The RIAA needs to prove it's cases a bit better.
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Old 05-04-2012, 10:19 AM   #9
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I'm not condoning piracy, but there have been a lot of innocent people slapped with huge fines. Our laws clearly states we are innocent until proven guilty beyond a doubt and that is where the problem lays, there is doubt as to who is actually to blame. The RIAA needs to prove it's cases a bit better.
I agree that it would be necessary to prove beyond reasonable doubt that the download had been made via your IP connection (as you say, the ISP's logs should be able to prove that). Just as, when a traffic camera takes an image of your car breaking the speed limit or jumping a red light, it's the photograph that proves that it is your car, and not another vehicle using false number plates.

But, once the proof is there that it's your IP address, then either you take the fine, or you state who was responsible, just like you do with a speed camera conviction. Is that unreasonable?
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Old 05-04-2012, 10:31 AM   #10
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The security on home wireless routers is not secure. It's also not apparent to the typical user if their wireless router security has been hacked. It's not reasonable to expect that a typical user can adequitely protect their home network and know that someone else has been using it.

In my view it's not OK to wrongfully charge x% of the population in the interest of trying to stop copyright infringement. The law is worse then the crime.
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Old 05-04-2012, 10:33 AM   #11
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I agree that it would be necessary to prove beyond reasonable doubt that the download had been made via your IP connection (as you say, the ISP's logs should be able to prove that). Just as, when a traffic camera takes an image of your car breaking the speed limit or jumping a red light, it's the photograph that proves that it is your car, and not another vehicle using false number plates.

But, once the proof is there that it's your IP address, then either you take the fine, or you state who was responsible, just like you do with a speed camera conviction. Is that unreasonable?
Here, even with traffic cameras, if the camera does not capture your face behind the wheel, the judge will immediately throw it out on a verbal motion. Of course, you have to actually go to court to get that done, and most people don't bother, but they would if the traffic fine was hundreds of thousands or millions of dollars.

In the case of piracy--or worse IP-related crimes--it does NOT mean a case can never be prosecuted. It DOES mean that they need more evidence. There are various avenues to obtaining that.

Again, as the payer of the bill, you don't necessarily know who it was anymore than they know it was you. That guy across the street hacking your wireless wasn't kind enough to provide you with his name and number. Here, all logs point only to you. The logs are clearly not enough. That's not a cop-out. That's a fact.

Last edited by Rob Lister; 05-04-2012 at 10:44 AM.
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Old 05-04-2012, 10:38 AM   #12
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It is unreasonable to expect the same lax standards of proof for conviction for a trivial speeding misdemeanour and an act of piracy that could end up costing an innocent party thousands of dollars.
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Old 05-04-2012, 10:40 AM   #13
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In the case of piracy--or worse IP-related crimes--it does NOT mean a case can never be prosecuted. It DOES mean that they need more evidence. There are various avenues to obtaining that.
What sort of evidence did you have in mind? Forensic examination of computers is an extremely time-consuming and expensive process. Are there more practical alternatives?
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Old 05-04-2012, 10:48 AM   #14
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What sort of evidence did you have in mind? Forensic examination of computers is an extremely time-consuming and expensive process. Are there more practical alternatives?
That's what discovery is for. If it is time-consuming and expensive, then so be it. Especially since a single IP-related case may mean a judgement in far excess of all the money the accused could make in a lifetime.

Last edited by Rob Lister; 05-04-2012 at 10:56 AM.
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Old 05-04-2012, 10:50 AM   #15
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That's what discovery is for. If it is time-consuming and expensive, then so be it. Especially since a single IP-related case may mean a judgement in far excess of all the money the accused could make in a lifetime.
That's why I said that it's important that the punishment kit the crime. If someone illegally downloads a movie, hit them with a fine of, say, 10x the retail price of the movie DVD. Saying that a single MP3 is "worth" $20,000 is just silly.
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