Ruling: IP address does not identify person

[HarryT]

Originally Posted by Kumabjorn

It seems to me that HarryT sees IP theft as a much more severe offense than some others, at least me.

True. It's perhaps because as a software developer, I am directly affected by piracy. Things that affect us personally do tend to take on greater importance.

[Kumabjorn]

Originally Posted by HarryT

If parents do not have the sense of social responsibility to prevent their children from committing crimes if they see them doing so, perhaps some outside intervention is required?

Sorry, but no.
Just because some children may smoke pot, steal bicycles or even, in some exceptional rare cases, commit murder, you don't punish the parents, you punish the perpetrators.

[Kumabjorn]

Originally Posted by HarryT

True. It's perhaps because as a software developer, I am directly affected by piracy. Things that affect us personally do tend to take on greater importance.

Ahh, now we are getting somewhere.
I can fully understand your frustration and anger. And, I have no problem with you going after those perpetrators, but leave their siblings alone

[HansTWN]

Originally Posted by Kumabjorn

It seems to me that HarryT sees IP theft as a much more severe offense than some others, at least me.
I believe in taking a screwdriver to a problem that needs some screws to be tightened, not a sledgehammer.

Exactly, the problem is that too many see IP theft as "basically nothing". Not worthy of any effort, while in reality the loss for society is tremendous. That is where education should come in, just like in Harry's drunk driving example.

[HarryT]

Originally Posted by Kumabjorn

Sorry, but no.
Just because some children may smoke pot, steal bicycles or even, in some exceptional rare cases, commit murder, you don't punish the parents, you punish the perpetrators.

Actually, in the specific case of murder, in the UK at least, the parents would be prosecuted if they failed to report a murder which they knew that their children had committed. The UK used to have an offence called "misprision of felony" which made it a crime to fail to report any felony. This was abolished in 1967, but was replaced by laws making it an offence to fail to report specific offences such as treason, murder, and terrorism, as well as various financial crimes.

[Kumabjorn]

Originally Posted by HansTWN

Exactly, the problem is that too many see IP theft as "basically nothing". Not worthy of any effort, while in reality the loss for society is tremendous. That is where education should come in, just like in Harry's drunk driving example.

I concur that IP theft is wrong, but it is primarily a civil offense not a criminal. The loss is economical, not bodily harm. Counter measure need to be appropriate, not draconian. Those uploading IP material are the perpetrators, most downloaders are clueless teenagers (I know there are others as well). I believe that the sledgehammer should be brought to the uploaders, the screwdriver to the downloaders.

[HarryT]

Originally Posted by Kumabjorn

I concur that IP theft is wrong, but it is primarily a civil offense not a criminal. The loss is economical, not bodily harm. Counter measure need to be appropriate, not draconian. Those uploading IP material are the perpetrators, most downloaders are clueless teenagers (I know there are others as well). I believe that the sledgehammer should be brought to the uploaders, the screwdriver to the downloaders.

Most downloading, though, is done via BitTorrent, in which the downloader is also simultaneously an uploader.

[JoeD]

Originally Posted by HarryT

But we already do. As I've said before, if your car is photographed by a speed camera then the registered keeper of the vehicle is required by law to disclose the identity of the driver at the time of the offence. I see absolutely nothing wrong with this.

HarryT: I'm also a software developer. If I google some of the products I've worked on I'll see many of them listed on pirate sites along with the works of several friends of mine. I would love to see piracy stamped out. However, I still do not think an IP is sufficient evidence to fine or charge the owner of a connection. What it is, is sufficient evidence to kick off a more detailed investigation.

As far as the speeding analogy, I think you're missing the point.


If your car is photographed speeding and you do not know who was driving the police/prosecution have to prove you were the one driving. Whilst the owner has a legal responsibility to name the driver if it wasn't them, that doesn't apply in the cases where you cannot name the driver*. It is the case where you cannot honestly name the driver that is the one that matches the IP issue.

If you don't know who is responsible for the download and you've taken reasonable steps to find out, i.e you've protected your wifi and you've checked all the computers members of the household use and found none of them are responsible, then the courts should have to prove you did it and not just rely on the IP as sufficient proof.

This topic is going off track slightly with wider and wider analogies. Can we please remember that the issue is that as people could use your connection for illegal purposes without your knowledge, an IP alone should not be regarded as sufficient proof.

To answer your other question, if the law did require computers to be searched and we reach the situation of saying "a computer does not point to a specific user" (which is true), it has at least been established that the infringment took place within the household (otherwise the computers would show additional evidence that another party was involved). Courts will likely be able to establish who owns the computer, who uses it, is it password protected... All of which can provide sufficient grounds to reasonably conclude it was person X who did it. For a civil case that is likely enough to fine them and switch the burden of proof onto the defendant.

I just really don't like the idea of people been fined/cut-off on nothing more than an IP.

I agree that if people in the household are commiting a crime and you're aware of it, you're likely going to be held partly responsible, as long as it's proven you had knowledge or shown to be incredibly unlikely that you didn't know (despite claims to the contrary). There's lots of ifs and buts when you look at specific possible cases that could occur and I'm sure the law has ways to handle many of them.

* I'm aware there's going to be lots of people who claim they don't know who was driving and are just pulling a fast one. The police will have guidelines for when that seems to be the case and they'll then prove it and charge the person with the more serious offence. I'd like to avoid specific examples since I think it doesn't add to the IP issue where we have to assume you do not know who is responsible.

[HarryT]

Originally Posted by JoeD

If your car is photographed speeding and you do not know who was driving the police/prosecution have to prove you were the one driving. Whilst the owner has a legal responsibility to name the driver if it wasn't them, that doesn't apply in the cases where you cannot name the driver*. It is the case where you cannot honestly name the driver that is the one that matches the IP issue.

If you don't know who is responsible for the download and you've taken reasonable steps to find out, i.e you've protected your wifi and you've checked all the computers members of the household use and found none of them are responsible, then the courts should have to prove you did it and not just rely on the IP as sufficient proof.

Yes, there I agree with you. The area in which I've disagree with some of the previous posters is the situation where, for example, evidence of copyrighted material is found on a household computer, but the people in the household refuse to say who was the actual downloader. In that circumstance, I think that either to prosecute the property owner, or to jointly prosecute all members of the household in a "common endeavour" proceeding would be justified.

[JoeD]

Originally Posted by HansTWN

Exactly, the problem is that too many see IP theft as "basically nothing". Not worthy of any effort, while in reality the loss for society is tremendous. That is where education should come in, just like in Harry's drunk driving example.

I agree, but it's going to be much tougher to convince people of the harm piracy causes than it was for drink driving. With drink driving ad campaigns showing kids been killed (or implying) over a period of time has a significant impact on how many viewed it. Even that wasn't easy though.

Yet, for piracy there's no obvious harm for people to see even though creators and industry lose money to it, which if you take further peoples jobs are lost and who knows what harm that might cause to people's lives. That imo is quite a tough sell to get people to accept.

[JoeD]

Originally Posted by HarryT

Yes, there I agree with you. The area in which I've disagree with some of the previous posters is the situation where, for example, evidence of copyrighted material is found on a household computer, but the people in the household refuse to say who was the actual downloader. In that circumstance, I think that either to prosecute the property owner, or to jointly prosecute all members of the household in a "common endeavour" proceeding would be justified.

I'm not sure how I'd like to see that pursued, but I do agree that if the infringing material is found on a household computer and there's no additional evidence to show someone outside the household was responsible, then as long as the fines are reasonable that's likely sufficient to fine the home owner or connection holder and leave it up to them to work out who is footing the bill.

If the fines are disproportionate or there's anything more serious like jail time involved, then I'd hope it becomes more important to identify beyond a reasonable doubt (which afaik only applies in criminal cases?) who is responsbile.

All said and done, as long as the IP isn't taken as evidence alone and further work is done that finds material on a users PC then I'd be much happier with the cases going ahead. At least those who have had their connections abused without their knowledge would be less likely to be incorrectly charged/fined/cut-off.

I do hope that ISPs go ahead with at least the initial warning letter idea though. Whilst it won't stop pirates pirating, it might stop them abusing someone elses connection without their knowledge and lead to people having their wifi security reviewed and making sure household members know not to download illegally. Drop in the ocean perhaps, but a start.

[Elfwreck]

Originally Posted by HarryT

Do you have the concept of "common endeavour" in legal cases in the US? In the UK, if the police know that a crime was committed by someone among a group of people, but don't know specifically who did the actual deed, they can all be charged with the crime in that they did not actively take any action to prevent it.

AFAIK, in the US this is not allowed. People cannot be convicted of a crime for being connected to it.

They can be convicted of accessory to the crime, or of "aiding and abetting," but not the crime itself.

We've had some really ugly cases of "person knew a crime was occurring, and did not prevent it, and was not liable for anything." (One college guy knew his friend was raping a 10-year-old in the bathroom stall next to him and did nothing. The rapist was eventually caught & prosecuted; the friend couldn't be charged with anything.)

If people were legally responsible to prevent crimes they knew about, there'd be a whole lot more wannabe-police actions. To what extent is someone required to take action against a crime? Are they required to attempt to stop it if it's going on right now--and in that case, how much force are they authorized to use? Are they required to report it if they believe it's going to happen in the future--in which case, if the police decide the report is unreliable, are they held accountable for failure if they were wrong? If they go after the crime and it turns out the reporter misinterpreted the situation, can he be sued for false accusations?

UK law probably has answers and precedents for these; US law doesn't, and that means it'd be starting from scratch. While it's a legally reasonable stance (although, I think, no more reasonable than our current system), I wouldn't want it to start being implemented in connection to crimes that have (1) no objectively provable damages and (2) plaintiffs who represent multi-billion dollar companies vs defendants who are broke college students.

It would be difficult to show that the other users of a shared computer were not aware of illegal downloads made on it.

In the US, we don't have a "prove you didn't know X" approach to law; people are presumed innocent until proven guilty. The prosecution would have to show evidence that each person with access (and accused) was aware of the contents/activities on that computer.

[HarryT]

Originally Posted by JoeD

I'm not sure how I'd like to see that pursued, but I do agree that if the infringing material is found on a household computer and there's no additional evidence to show someone outside the household was responsible, then as long as the fines are reasonable that's likely sufficient to fine the home owner or connection holder and leave it up to them to work out who is footing the bill.

If the fines are disproportionate or there's anything more serious like jail time involved, then I'd hope it becomes more important to identify beyond a reasonable doubt (which afaik only applies in criminal cases?) who is responsbile.

All said and done, as long as the IP isn't taken as evidence alone and further work is done that finds material on a users PC then I'd be much happier with the cases going ahead. At least those who have had their connections abused without their knowledge would be less likely to be incorrectly charged/fined/cut-off.

I do hope that ISPs go ahead with at least the initial warning letter idea though. Whilst it won't stop pirates pirating, it might stop them abusing someone elses connection without their knowledge and lead to people having their wifi security reviewed and making sure household members know not to download illegally. Drop in the ocean perhaps, but a start.

I totally agree with every word you've said there.

[HarryT]

Originally Posted by Elfwreck

In the US, we don't have a "prove you didn't know X" approach to law; people are presumed innocent until proven guilty. The prosecution would have to show evidence that each person with access (and accused) was aware of the contents/activities on that computer.

Remember that copyright infringement is a civil offence, not a criminal one, and the burden of proof is different. The prosecution would simply have to show that "on the balance of probability" a person was aware of the illegal content of the computer. I imagine that would not be too hard to do.

[Elfwreck]

Originally Posted by HarryT

Remember that copyright infringement is a civil offence, not a criminal one, and the burden of proof is different. The prosecution would simply have to show that "on the balance of probability" a person was aware of the illegal content of the computer. I imagine that would not be too hard to do.

Balance of probability is still "prove this person knew about this"--with a lower standard of proof--rather than, "person, prove you did not know about this." And the newer versions of Windows make the "I didn't know" claim easier--each user's login is partitioned; other users never see those files unless they specifically investigate, and if each user has a password, it's very easy to say "I never saw what he was doing."

The would-be plaintiffs here want to shift from their current need to prove that it was likely the other people in the house knew, and instead show "well, they *should have* known, and that makes them liable." There are situations where a person legally should-have-known; this isn't one of them.

And "misprision of felony," or the US equivalent, if any (might be, in some cases) doesn't apply to civil cases. "Abetting copyright infringement" is very hard to prosecute.

Whether it's criminal or civil depends on the copyright infringement, but yes, mostly. In which case, a plaintiff needs to press specific charges; one of the issues coming up in the mass-John-Doe accusations is that the plaintiffs have no intention of taking anyone to court, and judges are declaring the cases void because of that. They're not allowed to use the legal system to issue fines in the form of "settlements" that, if refused, result in the case being dropped.

(A plaintiff is allowed to pursue a settlement, and if refused, might decide to drop the case. A plaintiff is not allowed to file with that specific result as their only reason for filing.)

The current rash of IP cases filed by media conglomerates is an attempt to mash together the aspects of civil & criminal law they like best, ignore jurisdictions and the burden of proof entirely, and insist that since they *know* they're being hurt, they should be allowed to punish anyone they catch participating in actions *similar* to those that they believe hurt them.

"Well, no, we can't prove he was speeding in a particular time and a particular place, but he drives a Porsche! No way does he stay under the speed limit all the time--having a fast car proves that! We have photos of a car that color going too fast near where he lives, so that should enough. And if we can't prove speeding this time, let's just take his car away, and then we're sure he won't be speeding in the future."