Ruling: IP address does not identify person

[HarryT]

Originally Posted by sun surfer

Consider this similar but extreme hypothetical example: Suppose there was a new wave in murders of people sneaking into houses, stealing knives, murdering with them, and then returning them to the house. Say the practice was extremely widespread. Now let's also suppose that, indeed, there was a wave of people using their own knives to murder people as well.

Now, suppose the police and prosecutors had no other evidence to go on, but somehow they could identify the exact knife used in each murder and which house it was located in. Should the burden of responsibility be on the owner of the knife? Since it was their knife, and they didn't guard it well enough, they should be convicted for murder?

Also, should the burden of proof be on the owner of the knife, since the police can prove nothing except that the person owned a knife that was used in a murder? Using this hypothetical example your only options would be to punish all the owners of the knives used to murder, even though many would be innocent, to make sure the guilty are punished, or to let even the guilty go free unless and until better evidence could be found. Which would you choose? I'm actually very interested to hear your choice Harry, if you'll make one and let us know.

OK, yes, let's explore your example a little further. Let's replace your knives with guns, shall we? Where I live, if you own a gun, you have to:

1. Keep it at all times, unloaded, (other than when it's being used or cleaned) in an approved locked steel cabinet, which must be bolted to a structural wall of the house.

2. Keep any ammunition in a separate, locked, bolted, etc etc etc.

If someone breaks into your house, finds a gun that is NOT in the mandated locked, secure storage, and steals it, then YOU will go to prison for a good many years. British law does not look kindly on people who own guns and do not look after them. Your property. Your responsibility. Yes, even if a criminal breaks in and steals it it's your responsibility, because the whole purpose of the laws which dicate the circumstances under which someone is allowed to keep a gun at home are designed precisely with that situation in mind.

Now, if your gun IS kept locked up in the approved manner, and a serious criminal breaks in to your house and uses an oxy-acetylene torch to cut it from your locked safe, you won't be punished, because you've taken the necessary precuations that the law deems to be necessary to look after it.

Now, I'm not suggesting that an internet connection is as dangerous as a gun, but I am suggesting that, having taken the decision to acquire it, you have a responsibility to look after it and take the necessary safety precautions to ensure that it can't easily be abused. If a dedicated criminal steals your service despite you taking reasonable safety precautions then no, that's not your fault, but if you've left your system wide open to abuse then you have to take responsibility for that.

[Cpl Punishment]

Originally Posted by Rob Lister

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.

The only alternative (IMO) is to legally shut down the offending sites..(Pirates Bay ect. ect.) Although Direct TV has been very successful in getting civil damages for illegally taking a signal that is beamed at your house...

[Annari]

Originally Posted by wodin

Yup! I base the probability of not being hacked on being a very small target, not on someone's inability to hack me. But I am very aware that it could happen to me too!

True, what about a malicious co-worker or neighbor that wanted to cause you harm?

The possibilities are endless.

Originally Posted by Cpl Punishment

The only alternative (IMO) is to legally shut down the offending sites..(Pirates Bay ect. ect.) Although Direct TV has been very successful in getting civil damages for illegally taking a signal that is beamed at your house...

That takes special equipment to decode that signal, not something your average Direct TV user would have. (I am asking my husband this, he is the IT expert)

[nogle]

What Harry T is defending is making copyright an absolute liability offence. See:

http://en.wikipedia.org/wiki/Absolute_liability

In these cases, the Crown does not have to show a guilty mind (an accident or inadvertant breach still allows a guilty verdict). But the penalty is important; a small fine, no loss of liberty, no criminal record etc. is required. In short, the burden of proof is much lower, but so is the liability.

So, in Harry T's scenario, is a small fine ok for a serious pirate or other abuser of internet resources? If not, then the burden of proof must be much greater.

[nogle]

Originally Posted by HarryT

OK, yes, let's explore your example a little further. Let's replace your knives with guns, shall we? Where I live, if you own a gun, you have to:

1. Keep it at all times, unloaded, (other than when it's being used or cleaned) in an approved locked steel cabinet, which must be bolted to a structural wall of the house.

2. Keep any ammunition in a separate, locked, bolted, etc etc etc.

Actually, a knife is the better example. To own a gun, you must register and hold a license. But any bozo can own a knife, just like any bozo can own a wireless router.

[HarryT]

Originally Posted by nogle

Actually, a knife is the better example. To own a gun, you must register and hold a license. But any bozo can own a knife, just like any bozo can own a wireless router.

Agreed. I was using the gun analogy as an example of being held to account for taking sensible security precautions to protect your own property from abuse.

[nogle]

Originally Posted by HarryT

Agreed. I was using the gun analogy as an example of being held to account for taking sensible security precautions to protect your own property from abuse.

If you think that you should be made to take responsibility for your internet connection, like with a firearm, do you think there should be licensing and registration, presumably predicated upon successful completion of training and periodic re-examination (like other licenses)?

[HarryT]

Originally Posted by nogle

If you think that you should be made to take responsibility for your internet connection, like with a firearm, do you think there should be licensing and registration, presumably predicated upon successful completion of training and periodic re-examination (like other licenses)?

I actually asked that very same question earlier in the thread. Personally I think it would be a very good idea, but it's almost certainly too late now to do so. It might have have been feasible 10 years ago; it's not feasible now.

[K. Molen]

Originally Posted by HarryT

If a dedicated criminal steals your service despite you taking reasonable safety precautions then no, that's not your fault...

Ok, but if that's the case, what's to stop someone from fully securing their network, downloading all the copyright infringing materials they want, and if caught simply claim that someone hacked their connection?

Wouldn't disproving such a claim involve the same kinds of forensic investigative work you didn't think was reasonable to expect?

It seems to me that that's just as an easy of a loophole as the one you've previously disagreed with.

Or should the burden of proof still fall on the accused, with them having to prove that someone hacked their connection? Something I'm sure very few people know how to do.

[HarryT]

That's a very good question, and I'll need to give it some careful thought before answering. It's bed-time, so I'll answer you in the morning.

[James_Wilde]

I don't know if someone has made the comment in the seven pages of this thread, but I'm not happy with Harry T's likening the use of - and responsibility for - a router with that of a car. With a car you have one steering wheel, and only one person can drive it at a time. With a router ten or twenty people can drive it at the same time, including some who may not even be in the house.

Blaming the owner of the IP connection for what goes over that connection is a simple case of saying that you're guilty until proven innocent.

[James_Wilde]

And another thing. Here in Sweden you have housing associations which provide internet access the way they provide water, electricity, central heating and television. I think you might find there is a big outcry from them if courts start to make them pay for illicit downloads.

[Kumabjorn]

Originally Posted by James_Wilde

And another thing. Here in Sweden you have housing associations which provide internet access the way they provide water, electricity, central heating and television. I think you might find there is a big outcry from them if courts start to make them pay for illicit downloads.

Well, here in Sweden we are not subject to British law, so no worries about that. HarryT is an intelligent and erudite person and I often concur with his postings. However, in this case, that ownership of a router, I assume them to be as ubiquitous in the UK as they are here in Sweden, should automatically involve responsibility for the material transmitted over cables or ether seems to me far-fetched.
The only way to obtain that would be to re-establish the telephone monopoly of times past. One model router, with its specific IP address, registered to Mrs. So-and-so. That is not a society in which I would feel comfortable.

[JSWolf]

Originally Posted by HarryT

Not under UK law. Here, if you are the registered keeper of a vehicle, you have a legal responsibility to know who is driving it at all times. Hence, if an offence is committed by that vehicle, you are legally required to disclose the identity of the driver at that time. If you are unable to do so (or refuse to do so) you'll face prosecution as if you were the driver.

That's why I say that I think that the same principle can be (and indeed, IS, in the UK) extended to IP connections, because there is a long-established legal precedent for doing so.

As to the car... Let's say you loan it to someone. You know who is the driver. That person goes out at night and has too many drinks to then get in the car and drive. But the person with the person who has the car had no drinks and drives the car. You have no way of knowing this and when the photo comes back and you can't identify who is driving but all you know is it is not you, you should not get fined.

[Bilbo1967]

Originally Posted by JSWolf

As to the car... Let's say you loan it to someone. You know who is the driver. That person goes out at night and has too many drinks to then get in the car and drive. But the person with the person who has the car had no drinks and drives the car. You have no way of knowing this and when the photo comes back and you can't identify who is driving but all you know is it is not you, you should not get fined.

You may be right, but that is not the way it works under UK law. As Harry explained.