23 Filesharers to be Identified – But Concerns Remain
June 7th, 2007
The “fight against piracy” trundles along with news that IRMA have obtained another High Court order requiring ISPs to identify 23 subscribers who are accused of filesharing.
As usual, we can’t condone illegal filesharing (though we should point out that this is just one of many uses of the technology). But there are still unresolved issues about this litigation.
We’ve already pointed out that the procedure used to obtain user identities is unfair and the tactics which have been used by the record industry have been found to be illegal in other jurisdictions. Also, the approach taken by the music industry raises concerns about the proportionality of the damages they seek and the reliability of their evidence:
* Most home networks are wireless these days, and most of those are unsecured. How can they tie the IP addresses they receive with any particular person?
* Claims for lost income must be based on specific evidence of loss. Why have they never released their basis for calculating the claimed damages?
IRMA may also have undermined their action by saying that “many young people were involved in file sharing probably unbeknownst to their parents“. As Philip Nolan has pointed out in the Irish Times a parent is not automatically liable for the wrongdoing of their children:
Under Irish law, copyright is infringed where a person commits certain acts, or authorizes another to do so, without the permission of the copyright owner.
Therefore, the owner of a computer which was used to download illegal songs but who was totally unaware of this, and who did not authorize it, might not be liable for copyright infringement.
This may not be a problem where the relationship between the owner and infringer is one of employer and employee, for example, as liability can generally be attributed to the employer.Where the relationship is that of parent and child, however, novel issues of parental responsibility could arise.
Entry Filed under: IRMA, Intellectual Property
3 Comments Add your own
1. Michael Walsh | June 8th, 2007 at 11:38 pm
From what I understand, as long as you settle out of court, before any proceeding start, then your name and address remains secret. So in some respects this is a privacy tax – as there is no possible way they can associate an IP address with a physical person.
Anyone who has had their machine compromised by spyware/viruses or whose IP address has been spoofed is innocent of any illegal activity but the incentive is to admit guilt and maintain privacy.
A machine that’s been that’s had it’s security compromised could be used as a remote store by a hacker – so the presence of files on the hard drive indicate nothing. An IP address is not a unique identifier. I’m pretty sure any half-decent solicitor, given a day in court, with a half-decent expert witness could undermine these “fishing expeditions” forever – but it would be a brave/intransigent defendant to choose to take this course.
I’m no fan of copyright infringement (which is what they are claiming these people indulged in – but using “file-sharing” to try and make the term a pejorative one) but if all you need is an IP address and the presence of files on a hard drive to declare someone guilty, then the only legally safe action you could counsel anyone with a computer is to never connect it to the Internet.
At the Copyright Summit in Brussels, John LoFrumento, from ASCAP, and Ted Shapiro, from MPA, openly admitted that the tactic of suing your customer had proved to be both a legal dead-end and a huge PR disaster and what they were concentrating on now was educating people on copyright. Surely IRMA should try and learn from other peoples mistakes?
2. TJ | July 17th, 2007 at 11:21 am
The US courts have recently commented on the issue of whether parents could be liable in respect of music shared by their children on their home computer, describing such an argument as at best “untested and marginal”. See http://www.ilrweb.com/viewILRPDF.asp?filename=capitol_foster_070206Order
3. Michael Walsh | July 25th, 2007 at 11:11 pm
Videos of the Copyright Summit are now online. The session I refer to above is at: http://www.biskot.com/clients/cisac/video.php?v=7&q=750
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