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Analysis

How music companies hunt you down

Posted on 15 Dec 2008 at 11:04

Insufficient evidence

Not everyone is so sure. "IP addresses can be spoofed," says Dr David Price, the head of piracy intelligence at monitoring specialist Envisional. "Researchers at the University of Washington managed to receive a takedown notice from a movie company for a networked printer holding no pirated video files."

Dr Price also introduces a second area of doubt. If someone shares a file it's identified by metadata, but just because it's called "Radiohead - Paranoid Android.mp3" doesn't mean that's what it is. Ironically, it could be one of the many fake files uploaded by record companies to pollute the sharing pool. "This means that a monitoring organisation cannot reliably base its identification of copyrighted material on what a user says they are sharing," argues Dr Price.

Despite the BPI telling us that there's "little merit in speculating about possible legal liability", and suggesting it was misleading to do so "since the BPI is not actively pursuing a campaign of legal actions against file-sharers", others certainly are. Take the woman who was found guilty of sharing a copy of the £8.99 Dream Pinball 3D game earlier this summer and ended up paying more than £16,000 in damages and costs.

We asked Struan Robertson, legal director at Pinsent Masons, if you can be held legally liable on evidence as flimsy as an IP address. "It's probably enough to make a case," he warns, "as these cases are being dealt with as civil matters, not criminal matters, so the standard of proof required is low." If a case is defended, the rights-holder has to prove the person being sued infringed copyright. But being a civil case, "they only have to prove this on the balance of probabilities, not beyond any reasonable doubt."

Other legal experts agree that IP evidence is enough to convince a magistrate. "If a rights owner can establish that a particular infringing act took place from or at a particular IP address, then that is prima facie evidence that the person who is responsible for that IP address has carried out the infringing act," says Ruth Hoy, a partner at DLA Piper.

That was certainly the case for a PC Pro reader who earlier this year was hit for £600 by German games distributor Zuxxez, which claimed he'd downloaded the game Two Worlds on BitTorrent, even though he could find no trace of the game on any computer in the house. He couldn't rule out the possibility that one of his teenage children had downloaded the game and deleted it, but his attempts to challenge the evidence were met with a threat to see him in court.

Which leads us nicely on to whether parents are legally responsible for the illegal actions of their children? "Not necessarily" is the answer of John Enser, a partner at Olswang, although he warns that blaming the kids is no "get out of jail free" card. "If you allow someone else to use your connection, knowing what it's being used for, you can be held responsible," Enser says, adding "If a parent knows about copyright infringement and does nothing to stop their children continuing to file-share, they may be held liable." Enser also fielded the old favourite of "the chap next door must have done it, using my unsecured Wi-Fi connection". Not surprisingly, he suggests that you'd have to be pretty good at covering your tracks not to leave some trace that's detectable by someone undertaking a forensic analysis of your computer.

Finally, we did a round-robin exercise to gather the consensus of legal opinion on whether there were any obvious flaws in taking an IP address approach to collecting evidence. Hamish Porter, IP partner at Field Fisher Waterhouse, points out that, "an experienced file-sharer can change his IP address with ease, making it appear as though he is not a persistent offender." Although, as Hoy counters "no method of evidence gathering is completely fail-safe", and the evidence is used to establish a position on the balance of probabilities. A position that Robertson would appear to share, concluding that, "unless someone challenges that approach successfully, it's unlikely we'll see the rights-holders investing more money in obtaining stronger evidence. If a court discredits the IP address approach, rights-holders will change their tactics." Unless someone has the technical acumen to take them on, don't hold your breath.

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For more details about purchasing this feature and/or images for editorial usage, please contact Jasmine Samra on pictures@dennis.co.uk

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