UK: DEA Enforcement delayed until 2012

[mr ploppy]

Originally Posted by tubemonkey

If the rights holders have evidence, why don't they pursue it in a court of law?

Because every time they do their evidence is thrown out because it doesn't prove anything. Hence the need to move the burden of proof onto the accused.

[mr ploppy]

Originally Posted by HarryT

You're assuming that nobody is going to take heed of warnings not to download illegally? I strongly suspect that the overwhelming majority of people will be scared off their illegal activities by such a warning. Suspension of internet access is the (proposed) very last step in the process, not the initial one.

It didn't work in France, so what makes you think it will work here?

http://torrentfreak.com/french-anti-...irates-110117/

At best you will drive it underground and force mainstream downloaders to go back to buying pirate copies on Ebay or at car boots and the like.

You will also get a big increase in the number of people using VPN and encryption to avoid detection. I can't really see the secret service or anti-terrorism squad being too pleased about that.

But as long as this missing £12 billion per year surfaces in the UK economy I suppose it makes it all worthwhile? I'm still not sure where all this money is now though.

[murraypaul]

Originally Posted by HarryT

I really see no issue with holding the legal owner of a computer responsible for its use. It's no different to fining the legal owner of a car if it's caught speeding by a speed camera: if you were not driving the car at the time, it's up to you to prove the fact. If you own something, you are responsible for its use.

Police operated speed cameras are subject to routine testing to check their accuracy, and are considered reliable enough that a result from one is presumed to be correct unless proved otherwise, so the burden shifts to the accused to prove that the evidence is wrong.
There is no comparably reliable method of determining which computer was actually on the end of an IP address at some point in the past, the burden remains with the accuser to prove the case.

[mr ploppy]

Originally Posted by murraypaul

Police operated speed cameras are subject to routine testing to check their accuracy, and are considered reliable enough that a result from one is presumed to be correct unless proved otherwise, so the burden shifts to the accused to prove that the evidence is wrong.
There is no comparably reliable method of determining which computer was actually on the end of an IP address at some point in the past, the burden remains with the accuser to prove the case.

Not any more it doesn't

At least with a car you would have a chance of proving your innocence if the driver in the photo looked nothing like you or the car that had your number plate was a different colour to the one you own.

Proving you didn't download something is impossible, and that is just one of the flaws in this law that would have come out if it had had proper discussion instead of just being rushed through in pursuit of a mythical £12 billion per year.

[HarryT]

Originally Posted by mr ploppy

It didn't work in France, so what makes you think it will work here?

http://torrentfreak.com/french-anti-...irates-110117/

That article says that 4% of people pirating music are deterred by it. You say that 7 million households are pirating stuff in the UK, so 4% of that is 280,000 people. Don't you think that preventing 280,000 people from breaking the law is a worthwhile aim?

[mr ploppy]

Originally Posted by HarryT

That article says that 4% of people pirating music are deterred by it. You say that 7 million households are pirating stuff in the UK, so 4% of that is 280,000 people. Don't you think that preventing 280,000 people from breaking the law is a worthwhile aim?

That would depend on how many of those 280,000 are the type that spend 4 times as much on legitimate content as non-downloaders. Any reduction in that type of downloader would have a negative impact on entertainment industry profits. Any reduction in the file collector type of downloader won't make any difference to profits either way, they will just collect something else instead.

The only people who would make any difference are the ones who are currently downloading as an alternative to paying for things, but those people are the most likely to just move underground and carry on as normal behind a VPN. The cost of the VPN will be much lower than what they would otherwise have to spend.

Are there any figures for French entertainment industry profits post-Hadopi? I would guess they have either stayed the same or reduced slightly.

[MrsJoseph]

Originally Posted by HarryT

I really see no issue with holding the legal owner of a computer responsible for its use. It's no different to fining the legal owner of a car if it's caught speeding by a speed camera: if you were not driving the car at the time, it's up to you to prove the fact. If you own something, you are responsible for its use.

The major issue with using IP addresses to show a crime has been committed is that people steal your IP address or your internet access. Not everyone is tech savvy.

Not just to steal music or books but to do other illegal things as well. Who would want this to become prevalent?

At about 7 a.m. March 7, federal agents battered open the back door of a Buffalo businessman's home, where they seized his computer after allegedly pulling him down a flight of stairs.

They told him he was in a lot of trouble, accusing him of downloading child pornography, although they didn't arrest him.

The federal agents pointed automatic weapons, scaring the businessman and his wife.

Three days later, agents returned the computer to the man. Law enforcement officials now realize he never sent or downloaded any images of child porn.

Someone else, it turned out, repeatedly used the businessman's wireless Internet service -- commonly known as Wi-Fi -- downloading child porn onto a different computer from an apartment close to the businessman's West Side residence.

A Buffalo man -- John E. Luchetti, a 25-year-old neighbor of the businessman -- was arrested in the case Wednesday.

[snipenekkid]

most all people are not on static IP's anyway. Sure the ISP has logs but if the fasicist Big Brother sorts want to accuse people they need to be required to have a judge issue a warrant for the wire tap and then the ability to decrypt the packets. If they can't do this then, well, none of us deserve andy freedoms because we are not finally putting our feet down with enough is enough.

I forget what it was, but the SS, errr, Dept. of Homeland Security has now been given powers which extend far beyond the reasons for issuing a new line of designer jackboots. I would need to do some research but I was not surprised because here in the US powers granted to any government organization are NEVER rescinded or reigned in because those organizations look for ways to continue to spend money with the contractors who were the actual creators of whatever department it may be.

I find it scary and have lost a lot of respect for several members of this board who feel the sort of unrestricted powers are being granted to remove yet more freedoms from a society that is already more of a police run state than most would care to admit. The blind Rush Limbaugh-esque support for this by one user in particular has completely lost any respect I might have had at one time. Bummer, but life goes on and it's yet another addition to my ignore list.

[murraypaul]

Originally Posted by HarryT

I really see no issue with holding the legal owner of a computer responsible for its use.

Except that that isn't the law.
From the last of the ACS:Law cases:

The Particulars of Claim also mentioned unsecured internet connections and tied in with that alleged infringement by the individual defendant either by infringing themselves or "by allowing others to do so". The judgment notes that I am aware of no published decision in this country which deals with the issue of unsecured internet connections in the context of copyright infringement and refers in passing to a decision of German Bundesgerichtshof (BGH) on the point. The point about "allowing" is that the word used in s16(2) of the 1988 Act is "authorising" not "allowing". They are by no means the same and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties.

This question of unsecured internet connections and infringing by "allowing others" is a critical one since Media CAT's monitoring exercise cannot and does not purport to identify the individual who actually did anything. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All Media CAT's monitoring can identify is the person who has the contract with their ISP to have internet access. Assuming a case in Media CAT's favour that the IP address is indeed linked to wholesale infringements of the copyright in question (like the Polydor case (above)), Media CAT do not know who did it and know that they do not know who did it. The Particulars of Claim are pleaded in a way to address a problem which is very old and very well known in intellectual property cases (see e.g. The Saccharin Corp v Haines (1898) 15 RPC 344). There the patentee had patents on all known methods of making saccharin and so, even though the patentee did not know how it was made, the defendant's saccharin must be infringing one way or another. Such saccharin type points arise frequently when a claimant contends that despite a lack of information about some aspect of the matter, one way or another the defendant is liable for infringement.

Media CAT's case on this is in two parts. Of course Media CAT cannot know who actually used the P2P software, so in paragraph 3 of the Particulars of Claim they plead that the software was used either by the named defendant who was identified by the ISP, or by someone they authorised to use the internet connection or someone who gained access to the internet connection "due to the router having no or no adequate security". Then in paragraph 5 the plea is that "in the premises" the defendant has by himself, or by allowing others to do so, infringed. So taken together these two paragraphs show that the Particulars of Claim is pleaded on the basis that one way or another the defendant must be liable for the infringement which is taking place.

But the argument is based on equating "allowing" and "authorising" and on other points. What if the defendant authorises another to use their internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright? Does the act of authorising use of an internet connection turn the person doing the authorising into a person authorising the infringement within s16(2)? I am not aware of a case with decides that question either. Then there is the question of whether leaving an internet connection "unsecured" opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally what does "unsecured" mean? Wireless routers have different levels of security available and if the level of security is relevant to liability - where is the line to be drawn? No case has decided these issues but they are key to the claimant's ability to solve the Saccharin problem and say – one way or another there is infringement here.

Notable again is the contrast between the letter of claim and the Particulars of Claim. The letter simply asserts that the defendant has infringed "either directly yourself or by you authorising (inadvertently or otherwise) third parties to do the same". The letter makes no mention of unsecured internet connections. It does not face up to the Saccharin point. Again the Particulars of Claim is rather more frank than the letter. The Particulars of Claim faces up to the difficulty and tries to put a case which deals with it, but it all based on untested legal and factual propositions and issues of technology.

First, the nature of the case itself raises many questions. I have mentioned some of them above. The issues are as follows:-
i) Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all. The technical issues raised by Mr Davey (and Mr Stone) relate to this point.

ii) Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement then encounters the Saccharin problem. It is not at all clear to me that the person identified must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so. Perhaps the holder of the account with the ISP has a duty to assist along the lines of a respondent to another Norwich Pharmacal order but that is very different from saying they are infringing.

iii) The damages claimed deserve scrutiny. If all that is proven is a single download then all that has been lost is one lost sale of one copy of a work. The sort of sum that might represent would surely be a small fraction of the £495 claimed and the majority of that sum must therefore be taken up with legal costs. If so, a serious question of proportionality arises but again this has not been tested. Clearly if the defendant has infringed on a scale as in the Polydor case then would be a very different matter but there is no evidence of such infringement here.

[HarryT]

Originally Posted by snipenekkid

I find it scary and have lost a lot of respect for several members of this board who feel the sort of unrestricted powers are being granted to remove yet more freedoms from a society that is already more of a police run state than most would care to admit. The blind Rush Limbaugh-esque support for this by one user in particular has completely lost any respect I might have had at one time. Bummer, but life goes on and it's yet another addition to my ignore list.

You find it scary to discover that other people have opinions which differ from your own? Putting people on "ignore" really isn't the answer; if you block out all the views that differ from yours, aren't you kidding yourself that everyone thinks the same as you do?

[HarryT]

Originally Posted by murraypaul

Except that that isn't the law.

In the words of Mr Micawber, if that's the law, then the law is an ass.

The only way to tackle copyright infringement is to hold people accountable for what their internet account is used for. To say "but my WiFi network is unsecured, so anybody could have used it" is, IMHO, a pretty feeble excuse - it's your responsibility to ensure that your property IS appropriately secured.

[Logseman]

To say "but my WiFi network is unsecured, so anybody could have used it" is, IMHO, a pretty feeble excuse - it's your responsibility to ensure that your property IS appropriately secured.

it is your responsibility to ensure that you close your door so that thieves don't trespass... but if the thieves simply blast the door away, then should you be held accountable as well? "Appropriately secured" means nothing in the internet. Even AES256-encrypted files can be unveiled, so imagine what can be done with a domestic network.

I mean this because in most of these cases, we're talking of networks with some degree of security (say, WEP or WPA1) which are cracked and exploited for the illegal deeds. I'm not sure I want to hold someone accountable for something that he or she doesn't have any understanding about. That's one of the specialties of copyright enforcers'.

[HarryT]

I was actually talking about genuinely UNSECURED networks, of which there are a scary number. I can see 6 WiFi networks from where I am at home at the moment; two of them are unsecured and completely open.

[MovieBird]

Originally Posted by HarryT

In the words of Mr Micawber, if that's the law, then the law is an ass.

The only way to tackle copyright infringement is to hold people accountable for what their internet account is used for. To say "but my WiFi network is unsecured, so anybody could have used it" is, IMHO, a pretty feeble excuse - it's your responsibility to ensure that your property IS appropriately secured.

Wait, let me be sure I'm understanding what you're saying. You're arguing that we should punish people that did NOT commit the 'wrong' act, but through ignorance allowed others to commit this 'wrong' act? Further, a 'wrong' act which physically harms no one? But we should string them up by their thumbs anyways to cause an example and scare everybody else off?

Do you not see how this attitude is orthogonal to the way modern judicial systems work?

[HarryT]

Originally Posted by MovieBird

Wait, let me be sure I'm understanding what you're saying. You're arguing that we should punish people that did NOT commit the 'wrong' act, but through ignorance allowed others to commit this 'wrong' act?

Yes, I am. If a crime is committed through an act of carelessness on your part, you are responsible for it. If you kill someone while driving, you are still punished even if there was no intent to harm anyone on your part. Obviously copyright infringement is not an offence of the same magnitude as causing death, but it's the same principle: your carelessness has caused the law to be broken. You are responsible.

Do you not see how this attitude is orthogonal to the way modern judicial systems work?

No, I don't.

And, let me add, I am in favour of proportionate punishments. The fines imposed in some copyright infringement cases have been completely ludicrous. The punishment should fit the crime.