UK: DEA Enforcement delayed until 2012

[sabredog]

The entertainment industry frontpiece AFACT is locked in a big legal battle with iinet, a major ISP here in Australia. As the big two ISP's were too big to take on, they chose to go at No.3

This has now gone to appeal at the High Court as iiNet has won both the initial Federal Court hearing and AFACT's appeal to the full bench of the Federal Court.

AFACT have expended tens of millions of dollars trying to nail iiNet for (their words) facilitating and encouraging piracy. iiNet refused to pass on AFACT notices or cut off internet access of alleged (by AFACT) infringer's. Their belief was that they do not act as sheriff for AFACT. Indeed iiNet did pass the infringement notices over to the Federal Police. But as the evidence was not substantive enough....

BTW, iiNET do offer legal free and paid for TV and movie streaming via their Fetch TV package.

The truth of it is that the entertainment industry find litigation far more profitable than the rubbish they currently serve increasingly savvy and annoyed customers. Why change a flawed distribution model when you can make money that way?

[sabredog]

This might be of interest...

http://www.watoday.com.au/technology...328-1ccrl.html

[HarryT]

Originally Posted by CleverClothe

Seeing as downloading is legal in the US (except a very few cases that are covered by other laws), I'm sure all Americans would feel that way.

You are mistaken. Downloading copyrighted material without the permission of the copyright holder is not legal in the USA.

[HarryT]

Originally Posted by elcreative

Drive by and cloning isn't that prevalent but a large number of people do not secure their wi-fi adequately and, if this law survives the current challenges from the ISPs, it will become more popular... Just where I live, I can normally see 9 wi-fi routers of which 3 are fully open and accessible... a full third can easily be used and I wouldn't have to drive anywhere, just login, do illegal D/Ls and be untraceable without full house-to-house searches of everyone in range...

Yes, that was the point I was making. Should a person become immune from prosecution if they leave their WiFi unsecured? That is what some people appear to be suggesting, and I can't see the rational behind that.

[murraypaul]

From Media CAT Ltd v Adams & Ors [2011] EWPCC 6 (08 February 2011) :

21. Perhaps many, maybe more of the recipients of these letters have been squarely infringing the copyright of Sheptonhurst on a major scale and know that they have been doing exactly that. They may think £495 is a small price to pay and settled immediately. That is a matter for them. However it is easy for seasoned lawyers to under-estimate the effect a letter of this kind could have on ordinary members of the public. This court's office has had telephone calls from people in tears having received correspondence from ACS:Law on behalf of Media CAT. Clearly a recipient of a letter like this needs to take urgent and specialist legal advice. Obviously many people do not and find it very difficult to do so. Some people will be tempted to pay, regardless of whether they think they have actually done anything, simply because of the desire to avoid embarrassment and publicity given that the allegation is about pornography. Others may take the view that it all looks and sounds very official and rather than conduct a legal fight they cannot afford, they will pay £495. After all the letter refers to an order of the High Court which identified them in the first place. Lay members of the public will not know the intricacies of the Norwich Pharmacal jurisdiction. They will not appreciate that the court order is not based on a finding of infringement at all.

99. Media CAT and ACS:Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 26 court cases, a wholesale letter writing campaign is being conducted from which revenues are being generated. This letter writing exercise is founded on the threat of legal proceedings such as the claims before this court.
100. The information annexed to Mr Batstone's letter refers to ACS:Law having "recovered" £1 Million. Whether that was right and even if so whether it was solely in relation to Media CAT or other file sharing cases I do not know. Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable. 10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so. Note that ACS:Law's interest is specifically mentioned in the previous paragraph because of course they receive 65% of the revenues from the letter writing exercise. In fact Media CAT's financial interest is actually much less than that of ACS:Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court. Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?

As conducted by ACS:Law, the process was little more than extortion. Especially if the cost of defending the claim would be more than just giving in and paying. And tainted by the fact that the majority of the recovered money went to the law firm, not the rights owners.
The judge gave a strong indication that if they had not withdrawn from the letter writing business he would have been inclined to make an order legally preventing them from continuing the practice.

[HarryT]

Originally Posted by murraypaul

As conducted by ACS:Law, the process was little more than extortion.

I entirely agree; they appear to have been little more than a bunch of cowboys. But this is entirely separate from discussions of the DEA.

[murraypaul]

Originally Posted by HarryT

I entirely agree; they appear to have been little more than a bunch of cowboys. But this is entirely separate from discussions of the DEA.

It seems very similar. The ultimate part of the process would be rightsholders obtaining lists of subscribers and threatening or actually launching copyright proceedings against them.
For exactly the same reasons, they would be far happier if people just settled and paid a 'fine' rather than having to prove their case in court, and their standard of evidence would be the same as in the ACS:Law cases, that they have identified an IP address, not a person.
And in practice, are rightsholders going to do this themselves, or are they going to contract it out to the highest bidders? Which leads us back to cowboys like ACS: Law.

Incidentally, it looks as though the proposed rules would not make a person liable for hacked WEP WiFi:

(6)The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that—

(a)the act constituting the apparent infringement to which the report relates was not done by the subscriber, and

(b)the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service

You would have an excellent argument that if your router was supplied by your ISP with preconfigured security settings, then it was reasonable to use it with those settings, even if they turned out not to be the most secure settings possible.

[mr ploppy]

Originally Posted by elcreative

Love to know where the "music industry" is making billions every year... I'd like to invest in that rather than all the companies currently making losses, being taken over and fighting to stay in business... don't let hyperbole screw up your arguments, facts support them much better...

"Trade revenues to record companies fell by 7.2% to US$17 billion"
http://www.ifpi.org/content/section_news/20100428.html


See also:

http://www.bpi.co.uk/press-area/news...o-deliver.aspx

http://www.bpi.co.uk/press-area/news...s-in-2008.aspx

http://arstechnica.com/tech-policy/n...ts-in-2009.ars

[mr ploppy]

Originally Posted by HarryT

Yes, that was the point I was making. Should a person become immune from prosecution if they leave their WiFi unsecured? That is what some people appear to be suggesting, and I can't see the rational behind that.

They shouldn't be immune from prosecution, but before they are prosecuted there should be evidence that they are guilty. Just like with every other crime except terrorism.

If you look at the number of false positives ACS Law had, think how many there will be when it is all automated at the ISP level (which is the only feasible way to do it without internet subscriptions doubling).

[mr ploppy]

Originally Posted by HarryT

I entirely agree; they appear to have been little more than a bunch of cowboys. But this is entirely separate from discussions of the DEA.

Not really, since the DEA requires the same level of "evidence" that ACS were providing in order to get their mailing list. That "evidence" has already been thrown out of court. If you really want to prosecute 7 million people that's fair enough, but you really should make sure it doesn't also suck in an extra 10 million innocent people just because it costs too much to gather evidence. And you certainly shouldn't punish an entire family for the actions of just one person.

[mr ploppy]

Originally Posted by murraypaul

Incidentally, it looks as though the proposed rules would not make a person liable for hacked WEP WiFi:

You would have an excellent argument that if your router was supplied by your ISP with preconfigured security settings, then it was reasonable to use it with those settings, even if they turned out not to be the most secure settings possible.

I wonder if the BPI had anything to do with this as well:
http://www.bbc.co.uk/news/uk-10900573

[HarryT]

Originally Posted by mr ploppy

And you certainly shouldn't punish an entire family for the actions of just one person.

If it's a "family" internet connection, whom do you prosecute if nobody will confess to the crime? Surely the owner of the internet connection is the only sensible choice, just like, if you're caught by a speed camera, the registered owner of the car will be prosecuted if nobody else admits to being the driver.

[mr ploppy]

Originally Posted by HarryT

If it's a "family" internet connection, whom do you prosecute if nobody will confess to the crime? Surely the owner of the internet connection is the only sensible choice, just like, if you're caught by a speed camera, the registered owner of the car will be prosecuted if nobody else admits to being the driver.

If the car's number plate is dirty or otherwise obscured, should all owners of a similar make and colour of car be prosecuted because they don't know who was driving? When a car is stolen is the legal owner of the car responsible for anything that is done with that car while it is stolen?

If you're caught by a speed camera there is a photo that will often show the driver's face. Proving guilt should always be a requirement before punishing anyone. If you can't prove who is guilty you obviously have no evidence.

[HarryT]

Originally Posted by mr ploppy

If you're caught by a speed camera there is a photo that will often show the driver's face. Proving guilt should always be a requirement before punishing anyone. If you can't prove who is guilty you obviously have no evidence.

Sorry, I think we're talking slightly at cross-purposes. I am referring to the case where there is clear evidence that a download has occurred via someone's internet connection (eg via evidence provided by an ISP), but that nobody in the household will admit to doing it. What should be done in that case? The evidence is there, but nobody will own up to it.

[mr ploppy]

Originally Posted by HarryT

Sorry, I think we're talking slightly at cross-purposes. I am referring to the case where there is clear evidence that a download has occurred via someone's internet connection (eg via evidence provided by an ISP), but that nobody in the household will admit to doing it. What should be done in that case? The evidence is there, but nobody will own up to it.

The ISP will only know what went to that IP address, they would have no way of knowing if it was a drive-by downloader or a cloned modem or not.

But what happens when someone doesn't own up to a different crime? Do they prosecute the entire family or look for further evidence until they can prove which one it was?