Filesharing in the UK

[SOSAGES]

UK filesharers worried about legal consequences should read this article at slyck, written by a British lawyer

The CDPA (Copyright, Design and Patents Act, of 1988) appears to be totally inconsistent with the BPIs (British Phonographic Institute) stated position. For example, section 5 (2) stipulates that "Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording." Hang on, the term subsist means to continue in existence according to the legal dictionary. If copyright doesnââ‚ƚ¬Ã¢â€žÂ¢t continue in existence, then it doesnââ‚ƚ¬Ã¢â€žÂ¢t take a genius to work out that copyright actually ceases at the very point a copy of the original †“ or †œprevious sound recordingââ‚ ¬ÂÂÂÂ� - is first taken. Surely then it is the person who first breached copyright who is actually responsible for all subsequent copies, and not those who simply follow on down the chain?

Translated into P2P terms, this appears to mean that the person who initially seeded copyrighted material almost certainly breached the terms of his license with the seller, and could be liable for losses and damages, but this doesnââ‚ƚ¬Ã¢â€žÂ¢t appear to apply to reseeded copies. Even if the court begs to disagree, this still amounts to the absolute defense of innocent infringement (S97):

†œWhere in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against himââ‚Âà ‚¬Ãƒâ€šÃ‚¦ÃƒÂ¢Ã¢à ƒÂ¢Ã¢â€šÂ¬Ã…¡Ã‚¬Ã‚ÂÂÂ�

[Chris W]

and this is why the people who are chased after are those who are seeding, rather than those who are downloading... much easier to prosecute!

If I remember back to studying IP law last year, the CDPA is being reviewed at the moment anyway...

Wow, but I'm sure the legal eagles of the copyright holders will find a way around it, been so much activity of late, hard to see them back down at this stage

[andygrif]

Originally Posted by SOSAGES

UK filesharers worried about legal consequences should read this article at slyck, written by a British lawyer

All I can say is the the bloke who wrote this is obviously NOT a copyright lawyer and has never experienced the Compyright Tribunal Court.

Under UK copyright laws it might not, as he says, expressly forbid the uploading or downloading of copyrighted material but it DOES expressly forbid any unauthorised copy of any copyrighted material being in ones posession.

This clearly includes any digital file, whether or not it was made by the person who has the source (such as a CD) in their posession or not.

If your ISP was asked (by court order, as has happend in the UK) to provide your information, and one single unauthorised digital audio file was found on your PC and you could not prove its legitimacy, you have broken the rules and a court (should it get that far) would award against you.

Copyright law gets pretty dammed complex, I'll give the author that much, but if he doesn't even understand the very basic stuff, frankly (and IMHO) then he really shouldn't be a lawyer and REALLY shouldn't be commenting in public on the subject.

If we can find out which law firm the author works for, I'll make a note to never ask for their help if I get nicked for anything! Chances are he'll fall asleep whilst reading what I've done wrong!

[GeoffW]

I am still intrigued as to the burden of proof that must be established.

They may find your IP address, they may trace that via your ISP to your account, but how can they prove it is actually you using that PC if it is shared amongst more than one person at the same address, or if there is more than one PC behind a NAT router. How can they actually prove that it is on your PC without getting a search warrant and seconding it? And would a judge grant such a warrant? Would you have to give them the password to access it etc...

Or by default is the registered owner of the broadband connection liable for every thing that is transmitted over it? Again another significant legal precident.

[maverick]

The answer is,whoever is the account holder for the ip address will become liable.

[andygrif]

Originally Posted by GeoffW

They may find your IP address, they may trace that via your ISP to your account, but how can they prove it is actually you using that PC if it is shared amongst more than one person at the same address, or if there is more than one PC behind a NAT router.

That's the same thing I guess with the vehicle owner getting a fixed penalty notice thorugh the post after being 'snapped' for speeding. There are lots of stories about how you can refuse to declare, as the vehicle owner, who was driving the car at the time of the offence - none of them true.

If you own the PC, or are the custodian of it (for example a work owned PC in your house) then you are likely to be asked by the court who downloaded or shared the music files. If you refuse to say who it was you're likely to be in contempt of court and as such could easily spend the night in the court cells whilst you consider your stance.

But of course when it comes to file sharing illegally, in exactly the same manner as with fixed penalty notices for speeding, they're very unlikely to end up in court as the costs of defending yourself and losing, outweigh the costs of settling out of court by a huge amount.

Originally Posted by GeoffW

How can they actually prove that it is on your PC without getting a search warrant and seconding it? And would a judge grant such a warrant? Would you have to give them the password to access it etc...

Yes, if the people suing you could establish that the IP address assigned to your gaff at the time of the recorded infringement then that gives them a pretty reasonable case to ask the beak to get access to your computers. And if, when the letter drops though your door, you choose to delete and overwrite all of your naughyness - don't forget that there are forensic experts that can retrieve elements of files even after being overwritten to CIA standards!

Even if you threw out the PC, you would still have to defend yourself, which would involve some rather expensive lawyers, probably a barrister or two and a bill that could be in excess of 100 grand - easily. Can you afford the gamble?

Of course this does raise serious issues about the rights we mere mortals have when it comes to defending ourselves - if we didn't do anything wrong we'd like to think that we could rely on the court to prove our innocence - but as we all know justice is more linked to how much you can afford to pay, rather than what you may or may not have done wrong.

[GeoffW]

Is there a legal precedent to making the bill payer liable for everything that passes over it? I dont buy the car speeding analogy, simultaneous things can happen over the same link over multiple computers and one person cannot reasonably check what others are doing on it. In the car case there is evidence of a car (= a PC) having done something specific at a specific time, in the PC case they cannot prove it was a specific PC. I can prove I was posting on this forum at that very second so it wasnt me etc and there are 6 other PCs behind this NAT router.

If they gained a search warrant and there is more the one PC, which PC could they take, what if a specific PC wasn't there anymore? What if someone had hacked my wireless network etc... There are many possibilities that would be beyond the control of the registered owner.

I'm not condoning illegal downloading, I'm just intrigued about the powers they have and the burden of proof they must establish to get a conviction.

In the US they can bring John Doe cases against nobody in particular and use that prosecution to gain access, here they don't have the same rights.

Originally Posted by GeoffW

Is there a legal precedent to making the bill payer liable for everything that passes over it? I dont buy the car speeding analogy, simultaneous things can happen over the same link over multiple computers and one person cannot reasonably check what others are doing on it. In the car case there is evidence of a car (= a PC) having done something specific at a specific time, in the PC case they cannot prove it was a specific PC. I can prove I was posting on this forum at that very second so it wasnt me etc and there are 6 other PCs behind this NAT router.

If they gained a search warrant and there is more the one PC, which PC could they take, what if a specific PC wasn't there anymore? What if someone had hacked my wireless network etc... There are many possibilities that would be beyond the control of the registered owner.

I'm not condoning illegal downloading, I'm just intrigued about the powers they have and the burden of proof they must establish to get a conviction.

In the US they can bring John Doe cases against nobody in particular and use that prosecution to gain access, here they don't have the same rights.

Too add to that, you have to have a licence to drive a car, you dont need a licence to own a computer.

Originally Posted by andygrif

If you refuse to say who it was you're likely to be in contempt of court and as such could easily spend the night in the court cells whilst you consider your stance.

You have the right to remain silent!

Trust me I know!

However this only applies if you have been arrested and or charged! If you are a witness in court then this does you no good!

However if you have been arrested and charged and you are asked in court you can respond with a no comment and they cannot hold you in contempt!

Ohhhh and to tell you the truth if your uploading and downloading stuff you shouldn't be then you deserve everything you get!

[andygrif]

Originally Posted by acoolwelshbloke

You have the right to remain silent!

Trust me I know!

You have the right to remain silent, but exercising this right might be used against you in court.

Originally Posted by acoolwelshbloke

However this only applies if you have been arrested and or charged! If you are a witness in court then this does you no good!

Which is exactly what you would be if the beak asked you who was using the computer in question and you refused to answer.

[paul11974]

sod em all keep on downloading

Originally Posted by andygrif

You have the right to remain silent, but exercising this right might be used against you in court.



Which is exactly what you would be if the beak asked you who was using the computer in question and you refused to answer.

Wrong it's anything you say may be used against you in a court of law!

However if the police turn up and question you and you refuse to say anything then yes no doubt the courts will see this as a sign of guilt and it will be used against you. The best thing is to give a brief statment saying you are the owner but you are not the sole user of the device and tell them who else uses it the more the better then refuse to comment further as anything you may say may be used against you. Not much they can do about it apart from keeping your beloved pc!

Unless they have evidence that shows it was you using the machine at the time any crime took place!

Just because your the owner of the pc does not mean you can be held responsible, I work for a local authority and I actually deal with installations and networking within schools and colleges. Recently a computer was used to download and print off child porn, we did not keep records which showed which student used what machine and at what time because the college simply used a default username and password so it could have been anyone. Of course it was reported to CID who came and removed the PC for testing but the college is not held responsible but the user which they did actually in the end find out who it was.

As we were told by the police you would be surprised how many people use public machines to commit these types of crimes as they think they can't be traced. (colleges, internet cafes and even the libraries etc...)

There is not one law for them and another for the general public. But don't be fooled more and more people are getting caught at it these days so watch out!

[cookie_365]

Erm, anyone who's been arrested:

please don't pay any attention to andygrif's or acoolwelshbloke's legal 'advice'