Thursday, 11 October 2012 17:46

Judge Orders Trial To Determin The Validity Of IP Evidence In File Sharing Cases

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There is something interesting happening in the US; ok several something’s actually and we are not sure if they are good or bad at this point. The first is that there appear to be more judges actually looking into the claims that the copyright lobby are trying to claim when they go after individuals and even corporations for copyright infringement. We have watched as precedent has been set in the form of very unusual verdicts such as one handed down recently that states Web Sites are not responsible for links posted by their members which might violate copyright. This nice ruling means that the MPAA and RIAA must prove that the links were placed on a site by the owner or that they encouraged the posting of these links. Of course we have seen that the MPAA, RIAA and other copyright holders rarely stand on ceremony and will claim a site is encouraging piracy right out of the gate (we don’t need no stinking proof).  So while the ruling was rather monumental it did not stop the unsubstantiated take down requests and certainly is not going to help Megaupload or any other site in reality.

You see the MPAA, RIAA and others have learned to drop in a few buzz words now such as; conspiracy, money laundering, and even wire fraud. With these on their claims US Law Enforcement is very likely to go after file sharers with gusto (Just ask Kim Dotcom). This brings us to the newest case in the US courts and one that will again be a double edged sword for the internet community. I am talking about the recently announced case to determine if an IP address is enough to determine guilt in court.

For a number of years the MPAA and RIAA have used questionable methods to find the IP addresses associated with file sharing both through P2P (Point 2 Point) and BitTorrent. With these IP addresses they go to court and file mass anonymous suits against the individuals. Once the suit is in place they ask for court orders to gather subscriber information (name address etc.) and then they send demand letters to the individuals demanding they pay a fine or go to court.  Now someone has challenged the whole theory that an IP address identifies a person. As most people that are at all familiar with the Internet know an IP address attached to a home subscription usually identifies the modem, firewall wireless router etc. If does not identify who is behind that device. If someone is using an unsecured or poorly secured wireless access point then a malicious person can use their connection to download illegal content. Beyond the exposed access point theory there is also the potential that someone is using a compromised router as a bounce point to redirect their traffic. This means that the exit point IP address (the one that will show up) might not be the downloader at all.

The question has come up due to an interestingly overaggressive stance that the porn industry has taken on piracy. It seems that Malibu Media, LLC a notorious copyright troll has gotten a little out of hand with their legal tactics. This year alone they have already pushed 349 mass suits in the US. That is almost one for every day of the year. Pennsylvania Judge Michael Baylson (Malibu has instigated 43 suits in Pennsylvania alone) has ruled that the mass suits are a little fishy and he is asking for a trial to determine if an IP address is enough to determine who is actually downloading the files. He summed up a motion that was filed recently saying; “Among other things, the declaration asserts that the BitTorrent software does not work in the manner plaintiff alleges, and that a mere subscriber to an ISP is not necessarily a copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular IP address."

Now if this trial does find (correctly) that a particular IP address is cannot link a person to file sharing you would think it would be a massively important precedent for the internet community. However, this is the MPAA, RIAA, and other copyright holders we are talking about. If you follow many of these cases you will find that most do not follow the law at all. They tend to stretch it and in many cases completely ignore it in their effort to maintain their business model. Just look at what happened to The Pirate Bay, Megaupload and many others. We have even seen cases where the copyright holder sent the letters directly to the ISP in question without waiting for the court order! A win here will not stop them from attempting this, but it will be used as ammunition to put other measures in place. Remember, when SOPA and PIPA were shot down it was because there was already a legally available remedy in place. If it is shown that an IP cannot be linked to a person that removes that remedy. The copyright lobby will push for other means of policing the internet and will point to that “loss” as a valid reason for implementing policies like SOPA wanted to put in place (DNS and Protocol monitoring and blocking).

So while a win here is still a good thing, we can see where it might be used to put more draconian laws and policies in place by people that do not understand the technology involved and suggested by a group that has nothing on their mind but protecting their revenue stream. What are your thoughts?

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Read 4065 times Last modified on Thursday, 11 October 2012 18:09

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