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.