True music enthusiasts simply want to consume, sample and discover as much new music as they possibly can, and the most straightforward and convenient way to do this is through file-sharing networks. Music pirates are just regular consumers really, and they love music just as much as anyone else.

The music industry fails to realize this though and has declared war against their main source of revenue, which resulted in UK plans to disconnect alleged file-sharers. Instead of finding ways to please the changing demands of music fans in the digital era, they have chosen to defend their old models and punish the fans instead.

This trend is worrying artists, the people who actually produce the music but who are never heard when new legislative measures are drafted. Unlike the big labels they don’t want their fans to be punished for a ‘problem’ that was created by a lack of innovation from the labels.

The Featured Artists Coalition (FAC), the British Academy of Songwriters, Composers and Authors (Basca) and the Music Producers Guild (MPG) have joined forces to prevent a three-strikes disconnection regime being implemented.

In a statement the broad alliance of musicians, producers and songwriters criticizes the new UK anti-piracy plans, which they labels as illogical and “extraordinarily negative”. With this move they go directly against the wishes of the major record labels who are represented by the IFPI and BPI.

Unlike the musicians, the labels are advocating stringent measures to prevent the industry from going bankrupt. To back this up they feed the legislators with dizzying numbers. Statistics that have been fabricated by the music industry itself, and blindly accepted by the UK Government.

However, in reality the anti-filesharing antics of the major music labels only continue to further alienate fans from their artists. Most musicians oppose the label’s strategies and rightly so. Music is thriving more than ever before, but now consumers and fans are taking over the distribution role.

Eventually the labels might have to give up the distribution component that has been their core business for years on end. This paints an uncertain future for the labels and that might be one of the main reasons why they are so resistant.

Luckily there are some smaller labels out these that realize that file-sharing should be embraced, not fought.

Article from: TorrentFreak, check out our new blog at FreakBits.

Now, thanks to intense lobbying from the music and movie industries, the government is considering giving Ofcom these powers more quickly.

Business Secretary Lord Mandelson, the man being touted among his Labour party voters as the successor to Prime Minister Brown, is said this morning to have been “persuaded by the argument for tough laws to curb illegal file-sharing.”

But what could’ve prompted this renewed aggressive anti-piracy stance from Mandelson? According to a report today, the Business Secretary’s intervention comes after he and David Geffen – the billionaire producer who co-founded the DreamWorks studio with Steven Spielberg – had dinner with members of the Rothschild banking dynasty at the family’s holiday villa on the Greek island of Corfu.

The consultation document on Government’s latest plans – which could be included in the Queen’s Speech later this year – could mean the criminalizing up to 7 million British citizens including Internet restrictions and fines of up to £50,000.

UK Pirate Party leader Andrew Robinson is naturally against these draconian fines. “You’re branding a huge percentage of this population criminals for doing something that doesn’t have any proven implications,” he said this week. “It’s a ridiculous state of affairs. People who copy a movie are lumped in with people who steal cars.”

Article from: TorrentFreak, check out our new blog at FreakBits.

Back in 2006 the police, who were conducting a search linked to an unrelated fraud case, stumbled across the man’s sizable pirate media collection which included 12,591 MP3 files, 426 movies, 16 full TV-series and dozens of items of pirated software.

During the April hearing the retired IT expert said in his defense that it took him a whole year to accumulate the collection by using eMule on the eD2k network, but it was intended for private, not commercial use. He also told the court that he believed he had been acting within the law.

Unfortunately for the man, the legal system wasn’t sympathetic. A court in Vannes has just handed him a 2 month suspended jail sentence coupled with 33,000 euro (apprx $46,200) in damages.

Lawyers for 19 plaintiffs including the National Federation of Film Distributors, Sony, Paramount, Sacem and SCPP demanded between 1 and 2 euros compensation for each illicit MP3 and between 7 and 12.50 euros for each movie. It is believed that SCPP will collect the largest share of around 17,000 euros.

In a statement the man’s lawyer said: “There is stuff like this on all kids’ computers right now,” while pointing out that many of the files had been downloaded by the defendant’s children.

In January 2007, a court in Nantes also sentenced a file-sharer to two months suspended prison sentence for being caught in possession of 400 downloaded movies.

Article from: TorrentFreak, check out our new blog at FreakBits.

Inevitably the song leaked onto P2P networks before its official release. Normally, the leak of any other song would be met with relative silence since it’s such a common event these days, but Italy’s answer to the RIAA, (FIMI, the Federazione Industria Musicale Italiana) decided to take advantage of the delicate nature of the leak to rally public opinion against file-sharing. They claimed that people were downloading the song instead of giving to charity, something which we seriously doubted in our earlier report.

Nevertheless, FIMI decided that the leak was so odious that it should be reported to Guardia di Finanza, an Italian police force dealing with everything from smuggling, money laundering through to copyright violations. FIMI claims that the leak has already cost the charity 1 million euros but provides no evidence of this.

So, to find the people responsible for the leak, Guardia di Finanza launched Operation Jackal and it hasn’t taken long to get some results. It’s now being reported that three individuals have been tracked down after uploading the track to various file-hosting sites and distributing it via an unnamed Direct Connect hub. The arrests were made in Rome and Milan.

At a press conference, Luca Vespignani, secretary general of the Federation Against Music Piracy said that they reported the leak to the police after they noticed “dozens of illegal download every day.”

FIMI president Enzo Mazza commented, “Whoever put this song on the file-sharing networks has done something evil and knowingly damaging the [fund-raising] initiative.”

As we noted previously, giving to charity is a voluntary act, done from the heart. Those that give to charity do so of their own free will and don’t avoid doing that, for instance, by downloading a song for free. To suggest otherwise is to misunderstand why people donate in the first place.

Donations to the fund can still be made here.

Article from: TorrentFreak, check out our new blog at FreakBits.

There can be little doubt, considering the already-massive effort underway to help those affected, that the song will sell as quickly as it can be put into stores and that the result will be that much-needed funds will reach those that need it most. However, elements of the Italian music industry simply couldn’t resist getting in a strike against P2P, when the opportunity arose to do so.

Domani 21/4.09, like any (every) other song, already made its way on to P2P networks and Italy’s answer to the RIAA has wasted no time in taking advantage. FIMI, the Federazione Industria Musicale Italiana, represents around 2,500 companies producing and distributing music in Italy and has been quick to condemn the leak, claiming that file-sharers are downloading the song while essentially trying to avoid giving money to charity, something which I find a little hard to believe.

People who want to give to charity and help a good cause, do so. Those that don’t want to give have made their choice too but of course there is clearly some propaganda value in claiming otherwise. We’ve all heard the untruth “one download equals one lost sale” but this is probably the first time i’ve heard “one download equals one less donation to charity”.

“There are thousands of copies of the song and video made available on P2P networks with tens of thousands of illegal downloads every day,” said the secretary general of Federation Against Music Piracy, Luca Vespignani. In an attempt at escalation, Vespignani says he has reported the situation to Italy’s Guardia di Finanza. “In this case, the damage goes beyond just music piracy, it is damaging a charity,” he said.

Meanwhile, moving west to Spain, aggressive copyright group Spanish General Society of Authors and Editors has been up to its old tricks again and it clearly doesn’t mind ‘damaging a charity’. In December last year we reported how SGAE illegally gatecrashed a wedding in order to gather evidence that the event was avoiding copyright fees due to them. For their trouble, SGAE was fined around $82,000 but now the group has sunk to a new low.

Juanma López Fenoy is a very sick young man who suffers from a degenerative brain disease called Alexander Syndrome. In order to raise money so that Juanma can go to the US to receive treatment, a charity concert was organized, with artists waiving their fees to perform. The concert took place April 25 and raised €56,000 ($75,000) through ticket sales.

Of course, SGAE wanted their piece of the pie – a 10% piece to be exact – in order to cover their copyright fees. After complaints were made against SGAE, the group issued a statement saying that its actions were entirely consistent with copyright laws, which don’t allow anyone to get away with not paying the fees. However, when SGAE’s stance became known publicly, the opposition to their lack of compassion grew too loud for them to ignore.

SGAE issued a statement, saying that although it would still take its 10%, it would make an equivalent voluntary donation back to the fund, effectively canceling it out.

Better late than never, but if SGAE wanted to make a charitable donation it would’ve been in better taste to have done it willingly, rather than under pressure. Here at TorrentFreak we have faith that people are still donating to the earthquake fund willingly too, P2P downloads or not, and they don’t need to be demonized or put under pressure by some copyright group to do so.

Details about making donations can be found here.

Article from: TorrentFreak, check out our new blog at FreakBits.

If you have received a letter from lawyers Davenport Lyons (or indeed any other law-firm operating the same business model) accusing you of illegally sharing games, videos or music, this article will provide serious food for thought and give you the tools and knowledge to make your voice heard at a government level. It is unacceptable that people are being wrongfully accused. We believe that your names and addresses should not have been handed over to these lawyers in the first place, and that you should not have received a threatening letter.

This is a guest post from Michael Coyle of Lawdit Solicitors who is currently defending many of those accused in the Dream Pinball, Colin McRae Dirt, Call of Juarez and more recently, the various porn titles cases brought by DigiProtect in the UK. (Intros, links, editing and letter template added by TorrentFreak/Penumbra)

Alleged File-Sharers: Why the Information Commissioner Has Let You Down

The Information Commissioner’s Office (ICO) is a non-departmental public body reporting directly to Parliament. It is the office dealing with the Data Protection Act 1998 and the Freedom of Information Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Environmental Information Regulations 2004 in England and Wales.

UK ISPs were ordered earlier this year [and in 2007] by the High Court to disclose information relating to its customer’s data, based on information provided to them by amongst others, video games companies. The information sought was based on the customer’s IP address. Pursuant to CPR 31.18, lawyers applied for an order that the ISPs disclose the full name, postal address and telephone number of the subscriber of each of the IP addresses supplied.

The game plan was to match each IP address with an individual and write to them with a hefty threatening letter and a request for £500-600. If this sum was not paid, court action was threatened, costing tens of thousands of pounds. It all seemed fairly conclusive. The ISPs complied and the Lawyers [Davenport Lyons] commenced the enormous task of writing to over (so we understand) 25,000 potential infringers.

However it was only when responses started to flood in – many in their hundreds to Lawdit Solicitors – did it become clear that while IP addresses could reveal a name and real-life address, it did not reveal the culprit. It proved very little. It certainly did not prove that any copyright infringement had taken place, far from it. Only by inspecting the hard drive of the customer’s computer could you do this. If there were any other evidence to sit alongside the IP address, for example a user name or password of the file sharing software you could sympathize with the rights holder.

But to rely on the IP address alone is wholly disproportionate and has resulted in untold misery to many thousands of individuals. This whole affair sums up in my view how little the Information Commissioner (IC) is really concerned with an individual’s data. I am not aware of any publicly quoted concerns from the IC about this issue and he has remained silent as the forums and bulletin boards crackle with the indignation and invasion of individual’s data. You cannot blame the ISPs. As a Court Order was in place, why would an ISP go out on a limb for a few thousand customers?

But the IC ought to have been keeping a watchful eye out and at the very least issue a press release to offer individuals some comfort. The silence is even more deafening in that on 29 January 2008, the ECJ held that Community law does not require member states to oblige ISPs to disclose details of suspected file-sharers to enable a copyright owner to bring civil proceedings.

Personal data is protected generally in the EU by virtue of the EC Directive on the protection of individuals with regard to the processing of personal data (95/46/EC) (Data Protection Directive). Member states may provide exemptions to protection in order to conduct criminal investigations or safeguard national or public security or to protect the rights and freedom of others (Article 13(1), Data Protection Directive).

In the UK such an exception can be found under section 35 (1) of the Data Protection Act 1998 which provides that ‘Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.’ This exemption does not contain any further considerations for a Data Controller before making a disclosure in these circumstances.

The EC Directive on the processing of personal data and the protection of privacy in the electronic communications sector (2002/58/EC) (E-Privacy Directive) provides that national authorities may only lift the protection of data privacy in order to safeguard national or public security or to conduct investigations into criminal offences or the unauthorised use of an electronic communications system, where this is a “necessary, appropriate and proportionate measure” (Article 15(1), E-Privacy Directive).

The ECJ reached its conclusion(.pdf) following a Spanish case concerning Telefonica. The Juzgado de lo Mercantil No 5 de Madrid decided to stay the proceedings and referred the following question to the Court for a preliminary ruling:

Does Community law, specifically Articles 15(2) and 18 of Directive [2000/31], Article 8(1) and (2) of Directive [2001/29], Article 8 of Directive [2004/48] and Articles 17(2) and 47 of the Charter permit Member States to limit to the context of a criminal investigation or to safeguard public security and national defence, thus excluding civil proceedings, the duty of operators of electronic communications networks and services, providers of access to telecommunications networks and providers of data storage services to retain and make available connection and traffic data generated by the communications established during the supply of an information society service?

The ECJ, responded that the answer must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not oblige Member States to ensure effective protection of copyright in the context of civil proceedings to communicate personal data. A fair balance needs to be struck between the various fundamental rights and in particular the principle of proportionality. In Advocate General Kokott’s opinion she considered that it was compatible with Community law for member states to exclude operators of electronic communications networks and services from having to make available personal data relating to connection and traffic information in the context of a civil, as distinct from criminal, action.

While the decision is not binding on the ECJ it will generally follow the Advocate General’s opinion. For the vast majority if not all of the 25,000 recipients, this decision ought to have been interpreted as a request for information relating to a non criminal offence (i.e. any copying/file-sharing was non-commercial) and the request for the personal data ought to have been refused.

If you have received a letter accusing you of illicit file-sharing and you are innocent then please write to the Information Commissioner with your story and complain that the release of your personal data was a breach of the Data Protection Act 1998, while urging them to carry out a review of all subsequent releases.

The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

For your convenience, a TorrentFreak reader Penumbra has created this template in order to streamline the complaints procedure: (Link)

Update: You may petition the government online by following this link.

Article from: TorrentFreak, check out our new blog at FreakBits.

However, the thought of Miss Isabella Barwinska picking up a £16,000 bill from the civil courts recently for sharing one £10 game is outrageous too, but maybe even more so. Miss Barwinska didn’t turn up or defend her case, no-one seems to know why, but for a lot of people facing similar actions, the prospect of facing a legal system they don’t understand and can’t afford to participate in, financial issues are at the forefront of doing nothing about the threatening letters.

These people simply cannot defend themselves and this is why it might make sense to criminalize personal-use file-sharing. In a criminal case if you can’t afford a lawyer, one will be provided for you by the state and you get the benefit of proper justice at least, a right of reply within a proper structure, not grubby threatening letters designed to wear people down.

I’ll let you into a little secret. When people say file-sharing is “as bad as shoplifting”, in the UK that comparison is pretty ridiculous. Many shoplifters are let off with a simple caution and even the most persistent would have to be uniquely unlucky to get fined £6,000 (plus £10,000 costs) for a £10 game. If Miss Barwinska had been caught physically stealing it, a police caution would be likely, or perhaps a very small fine. In the ‘real-world’ she’d need to smash through the storefront with a truck to end up with a fine the size of the one she got.

The other reason why there might be benefits in bringing file-sharing out of the civil domain and into the criminal is because even fairly large-scale commercial piracy on and off the Internet is treated with extreme leniency in the UK.

Last week we reported that the UK’s Hull city council said it had such a massive piracy problem at its biggest market in Walton Street, it had to ban legitimate traders too in order to stamp it out. Well, it seems that a part of this ‘problem’ was one Robert Guiness.

Mr Guiness had been using the Internet to download movies, music and computer games which he then burned onto DVD and CD and sold them at Walton Street market. When the police searched his van and raided his house, they found over 10,000 pirate movies, more than 600 audio CDs, a couple of hundred DVDs filled with MP3s and 283 computer games. He was a commercial pirate and his long-term considered actions certainly contrast nicely with Miss Barwinska’s civil tort involving a £10 game uploaded for one second.

So, taking Miss Barwinska’s punishment as a guide, presumably Mr Guiness should enjoy a minimum fine of 283 games at £6,000 each? Plus the movies and music. Oh boy, Mr Guiness would be in some big kind of trouble if Davenport Lyons had got to him first. Luckily for him, he got arrested by the police instead and had the good fortune of having a criminal trial.

Due to the “exceptional circumstances” in the case (”i’m but a small cog in a big machine guv’nor”), he was given a suspended sentence and walked out of the court a free man. No fine.

Just to be clear, I don’t really want file-sharing criminalized and I certainly don’t want the UK courts jammed full of petty file-sharing cases. For their part, the police don’t even have time to come to household burglaries or car thefts, so we could never waste their time on non-profit file-sharing issues. However, I wonder how many of the UK’s ‘pinball pirates’ would wish they could be labeled a criminal in order to be excused a massive fine, picking up a criminal record in the process but walking away a free person instead? Desperate people will do desperate things – people have committed suicide over smaller debts than this. No-one in financial difficulty should ever have to aspire to criminal status in order to mount a defense, or aspire to a criminal conviction like that of Mr Guiness, in order to be treated with leniency.

But hold on just one moment. What about the OiNK users that are currently the subject of police criminal action for uploading ONE album each. Has petty file-sharing already become a criminal offense? The Crown Prosecution Service seems to think so.

In a country like Britain, which prides itself on its sense of justice and fairness, it can’t be right to have such a huge imbalance in the legal system, where an ordinary single mother of two making a single mistake is treated more harshly than a for-profit criminal like Mr Guiness. Equally, how can one set of file-sharers be the subject of a simple ISP ‘warning letter‘, another pick up a £16,000 bill and others get hauled off to the police station for interrogation, fingerprinting, DNA sampling and subsequent trial, for the same offenses?

It’s crystal clear – to the man in the street the legal system to deal with file-sharing right now in the UK seems just about as clear as mud and maybe, just maybe, it’s time for the government to step and decide once and for all. Should file-sharers be warned, bankrupted or jailed? Don’t forget Mr Brown, there are an estimated 6 million of them. Choose wisely.

Article from: TorrentFreak, check out our new blog at FreakBits.

Valleywag reports that the company has now decided to lay off its sales and marketing department, due to failing attempts to sell the entertainment store to Best Buy. This means that the development of uTorrent, specifically the long awaited Mac version, is not in danger.

The BitTorrent entertainment network was launched February 2007 and offers movie rentals starting at starting at $2.99. Before the store launched, BitTorrent Inc’s co-founder Ashwin Navin said that the store was going to compete with BitTorrent sites like The Pirate Bay and mininova, as he said, “If we’re not competing effectively with piracy, we’re not going to win.”

There never was any real competition however, mainly because the movies are infected with Windows DRM. The company never wanted to use DRM. In fact, Bram Cohen told TorrentFreak in an interview that the DRM issue is causing an awful lot of headaches, but that most of their content partners are insisting on it.

BitTorrent’s Ashwin Navin was a bit more outspoken about it. He said that DRM is “a time bomb waiting to happen,” and that it will inspire people to pirate content. One thing we can be sure of, it didn’t help to convert illegal downloaders to go legal.

If online video stores want to compete with their pirate counterparts, the pricing should be reasonable, the catalogue extensive, and all without DRM. The BitTorrent store failed to meet these standards, and unfortunately, 12 people lost their job because of it.

Update: In a comment received after publication of the article, Ashwin Navin told TorrentFreak that the layoffs are not related to the failing entertainment store.

Article from: TorrentFreak, check out our new blog at FreakBits.

Most people seem to be interested in what happens after a letter is received, but who decides who gets a letter in the first place? Well, that’s the self-appointed job of the BPI (the British Phonographic Industry), a completely commercial organization set up to serve the interests of the music business and they don’t want you to know (in any detail) how their file-sharing tracking systems work. The same systems would’ve been used should they have been successful in their demands for “3 strikes and you’re out” yet there is zero transparency – everyone is supposed to blindly accept what they say as truth and that simply can’t be healthy.

In recent comments, a Carphone Warehouse spokesman further indicated that it is expected to take action against its customers based purely on the ‘evidence’ provided by the BPI. “What we have agreed to do is to write to our customers and advise them there’s been an alleged infringement,” he said. “We’re very clear that we don’t know if that’s the case or not, we’ve just been told there has been and we want to advise them of that.”

So in a nutshell, the BPI provide all the ‘evidence’, and the ISPs have to blindly believe it and take action against their own customers. To think that a commercial organization like the BPI is allowed to provide its own unchallenged allegations in such a completely non-transparent manner is the real outrage in all of this. If the BPI is to be trusted with such power, it has to be held accountable. If it is to remain credible in its role as the “UK MP3 Police” its systems must be opened up to public scrutiny. Once they are proved to be accurate by a panel of independent experts, then all well and good, but the fact remains that the BPI only give a vague indication of how they operate and have no intentions of elaborating.

Matt Philips, Director of Communications at the BPI refused to tell TorrentFreak how they gather their evidence, so any right-minded individual with an interest in this issue might find themselves asking: “What exactly are they afraid of?”

Clearly, it should be possible from their detailed records for an ISP to confirm or deny the technical evidence provided by the BPI. However, they aren’t in a position to do this since it would be a massive breach of customer privacy. Instead, the word of the BPI is taken at face value.

In a response, some Swedish ISPs have voiced their opinions too. “We don’t want to act like police and feel that a system similar to that in the UK is a deep invasion of privacy,” said Annika Kristersson of Tele2, adding: “It would entail us having to spy on our customers.”

Everyone makes mistakes and no system is flawless so it’s essential to have a verification process before throwing accusations around. Until then, take comfort in knowing that the file-sharing equivalent of home-made, untested, uncalibrated police speed cameras of unknown design and ability are operated by people with a vested interest and are passing judgment on you, your children and potentially (should the BPI get its way) your whole Internet future. A little transparency to inspire confidence isn’t too much to ask.

Article from: TorrentFreak, check out our new blog at FreakBits.

Most people know that The Pirate Bay doesn’t like to remove torrents at the copyright holders request, in fact they claim they have never removed any. Instead, when a copyright holder enters into dialogue with the staff, instead of removing the files in question the site posts the discussions up in the ‘Legal Threats’ section. Most of the discussions are entertaining to a degree, with some even extending to personal insults.

However, during the last few days, another copyright complaint and subsequent discussion has been posted and although many might find it funny, personally I found it quite embarrassing raising the question: Should copyright holders just keep their complaints to themselves to maintain some dignity – at least where The Pirate Bay is concerned?

The complaint comes from Ian Morrow at UK based label Gr8pop Ltd, representing American vocalist Indiana Gregg. Morrow requested the removal of a .torrent linking to the album “Woman At Work”, but the request was worded in an unfortunate way which appeared to betray a lack of legal understanding:

We request that you have the file removed immediately as this is legal copyright and has not been authorised to be released as an illegal download.

Of course, it didn’t take long before Peter Sunde, aka brokep, decided to start tearing it apart:

Is it possible to authorise something to be an illegal download? That would be a legal download if it would be authorised now, wouldn’t it. Also, i’ve never heard of “legal copyright” (nor illegal copyright for that matter). I think you need to re-check your intentions of the e-mail and try again. We do not respond to messages that do not make 100% perfect sense. You’re confused.

The response back to Peter starts the farce ball rolling, as it always seems do with these complaints. Ian Morrow starts by insisting that BitTorrent or any other form of sharing is illegal, “full stop”, but of course, that’s not true. Not really a good start, but Ian is just warming up, informing Peter that “..having sat on cross parliamentary committees, resolved to regenerating music and culture in my country, I’m afraid you may just have picked the wrong person to cross swords with on this occasion.”

Indeed, the email to Peter was copied to many other people including many people in the Scottish parliament, the MCPS, the PPL, the late Roy Orbision’s wife and many other people, including Indiana herself.

However, things take a turn for the strange. Ian goes on to state that due to people sharing the album his company is almost bankrupt (along with him personally) and Indiana herself – despite her current position of No.1 in the MySpace charts and the 4th most viewed artist on YouTube. The inevitable response from Peter is what we have to come to expect:

You’re a hoot, that’s what you are :) I want to hug you in a non-sexual way and tell you that you make my heart burst of joy and cuddle up like a cute little cookie monster and ask for more milk…. and btw, to be in a business you have very little knowledge on what you’re doing. I would actually see you as a retard, but it’s hard when you’re so cuddly and manly! I wish I was just 20 years older and a girl… oh my..

Sadly, instead of realizing where all this is heading, Indiana Gregg herself steps in with a response of her own (including a lesson on copyright law – United States law), which basically gives Peter more ammunition to respond in his own inimitable style. It is all very messy and very embarrassing – and it gets worse.

Undeterred and armed with a shaky understanding of the scope of the law she’s trying to enforce, Indiana writes to Peter with a fairly detailed explanation of a torrent site’s obligations under the DMCA, but makes the same mistake as so many others. The DMCA is a US law and The Pirate Bay is not in the United States, leaving herself wide open for further ridicule.

Indiana goes on to explain that she’s actually a millionaire after all, contradicting Ian’s earlier bankruptcy comments which were clearly designed to tug on Peter’s heart strings. Unfortunately when it comes to copyright, Peter’s heart is made of stone.

Which brings us to the point I raised at the start of this post. What actually is the point of complaining to The Pirate Bay? They aren’t going to take down any torrents and they will publicize all of these copyright discussions with the aim of making the sender look badly informed. Despite the deliberate (and probably calculated) juvenile tone adopted by Peter Sunde, the senders of the complaints always seem to come off worse, due to their very apparent lack of understanding of the law.

So, are these complaints down to sheer desperation or are these labels really that badly informed about the law? Maybe when Ian’s friends in the Scottish parliament see the correspondence they will be suitably outraged and pledge seriously to do something. Trouble is, if the law in Sweden can’t do anything about The Pirate Bay crew right now, what can be done at all?

As the complaints pile up and the stakes increase, The Pirate Bay continues on, treating the anti-pirates with contempt and offering them continuing public humiliation. It seems now that the only thing that can stop the site is a defeat in court, but since servers are scattered right around the world, all the signs point to the likelihood that even that won’t bring a halt to the torrents – or the complaints.

You can read the exchanges here: One, Two, Three and Four

Article from: TorrentFreak, check out our new blog at FreakBits.

Davenport Lyons hired Swiss company Logistep to collect data about alleged file-sharers with a system called ‘File-Sharing Monitor’ which we investigated for our article ‘This is How We Catch You Downloading‘. Logistep’s system is unlicensed and unapproved by any official independent or government organization. Put simply, anyone could gather this data from the internet and claim that it’s accurate and it’s particularly easy for a company in Switzerland to do this, outside as it is of any European jurisdiction.

In order for Logistep to have any credibility, they should open up their system for independent audit, something they have refused to do so far. Indeed, Logistep and Davenport Lyons have only sent those it accuses a very basic explanation of how their system works and to add insult to injury, the supplied documentation has nothing to do with the system they use to catch alleged BitTorrent infringers – all of the documentation refers to their eDonkey tracking system.

In order to discover the identities of those it accuses of infringement, Davenport had to make ISPs give up their customer’s personal details. It’s interesting that Davenport and Logistep are even still operating in this manner, given that Juliane Kokott, Advocate General to the European Court of Justice said that while it is a requirement for ISPs to divulge personal details in criminal cases, the law does not have the power to force them to disclose the same in a civil case. In Europe, the personal, non-commercial sharing of copyright works is a civil issue yet Davenport Lyons insist that this is a criminal issue, an assertion seriously up for debate, as we will learn later in this article.

It seems that other European country’s legal systems have had enough of Logistep. In Italy during July, the Courts decided that Logistep invaded the privacy of internet users and the information it gathered could not be used in a lawsuit.

In France the Courts ruled that accused citizens were denied “a contradictory procedure making it possible all the interested parties to be represented in front of the judge within the framework of the use of a peer to peer software” and declared that in future, any businesses or individuals wishing to breach standard privacy laws to monitor file-sharers on the internet, must first get their activities sanctioned by a judge.

Quite why Davenport Lyons and Logistep are getting away with actions in the UK that appear to be illegal in other parts of Europe is unclear at this stage but those concerned should present this information to their legal adviser for further investigation.

These issues aside for a moment, TorrentFreak spoke with our own counsel who has examined these lengthy documents (accusing people of sharing the game ‘Colin McRae Dirt’ on The Pirate Bay) and has taken the time to answer questions that could be helpful to all recipients of this Davenport Lyons correspondence.

Firstly, I’m not giving legal advice here, merely general advice that I hope will help people to deal with the demands being issued by Davenport Lyons.

I think few legal professionals would be entirely comfortable with any firm issuing automated threats of civil action to individuals without allowing them any reasonable opportunity to respond, let alone the ludicrous “costs” they are claiming or the absurd claim that anyone who is filesharing for domestic purposes (i.e. not for commercial gain) could be committing any criminal offence.

So you’re saying the letter from Davenport Lyons is wrong, possibly illegal?

No, I’m saying that in my opinion it’s thoroughly unprofessional, wildly inaccurate and totally misleading. It’s for the court to determine that it’s illegal, but so far as I can tell, they haven’t actually sued anyone yet, so I suspect that it may all be smoke and mirrors.

[Note: As far as TorrentFreak is aware, from the hundreds of people threatened in the original 'Dream Pinball 3D' case, no-one has been taken to court. In fact, we are in personal contact with people who refused to pay in this case and they have heard nothing further from Davenport Lyons, supporting the opinion of our counsel]

Let’s start with their presumption that filesharing is a criminal act. Unless you are using filesharing for commercial purposes, it isn’t a criminal act. (s107 of the Copyright Designs and Patents Act) And if someone was doing so for commercial purposes, then it is a matter for police or trading standards officers to enforce, not an invitation for a high street solicitor to start unwarranted demands for money from people with menace.

Let’s then deal with their refusal to enter into any correspondence. This is not only contrary to The Code of Practice for Pre Action Conduct in Intellectual Property Disputes (Section 4) but contrary to the Human Rights Act Article 6 which states the principle that “there shall be no punishment without law” as well as the legal systems own rules, CPR (Civil Procedures Rules). These rules generally state that the person making the accusations must behave reasonably and they must also give the other person a chance to answer. The BBC give an excellent overview here.

Let’s then move on to the matter of their alleged costs which they claim they are simply recovering. It is customary to first write to ISPs and ask them to contact the customer and caution them regarding their use of the internet for filesharing.

Litigants are required to mitigate their costs,to act proportionately and to resort to the courts only as a last resort. Davenport Lyons have done everything they can to exacerbate their “costs” without even trying to resolve matters informally, as everyone else does, and most courts would regard that unfavourably.

Civil Procedures Rules (CPR) 44.5 state that costs will be determined by the court on the basis of: a) the conduct of all the parties including conduct before as well as during the proceedings and the efforts made, if any, in order to try and resolve the dispute and (b) the amount or value of any money or property involved. Davenport Lyons have hardly demonstrated reasonable conduct.

Taking someone to court should be a last resort, something to do when all other attempts to resolve a dispute amicably have failed, not a matter of mechanical routine.

So you think these letters are merely a bluff to get people to pay up without fighting them?

I think that could be perfectly likely, although it would be foolish to simply ignore their letter or be rude in response. Even if it did get to court, the fact that you ignored even an inaccurate and intimidating letter such as this could harm your defence

It is important to remember that the courts expect people to behave reasonably, and the way and speed in which someone responds can influence the outcome far more than people may ever imagine. Respect counts for a lot when you’re dealing with a court.

So what should recipients of these threats say in their reply?

I can’t give that guidance, for each case will be different and I’m only answering general questions here.

Anything sent should always be posted by recorded delivery, so that you have proof of posting and evidence of receipt.

[Note: Davenport Lyons didn't send any of this correspondence by recorded delivery requiring a signature, so there is zero proof at all that anyone even received a letter. Given the Royal Mail's record (losing 14 million letters in 2004 for example) one would have thought they would've taken steps to ensure delivery]

What sort of proof do you need to give to them? I thought people were always presumed innocent, why should they have to prove otherwise?

People accused of a crime are always presumed innocent, and the burden of proof rests with the person making the accusation (usually the state) to prove their guilt beyond all reasonable doubt.

And if a person refuses to communicate reasonably either before or at the hearing, then the judge will draw the presumption that the silent person has no defence to offer. It’s hard, but it’s fair.

If I wanted to contest the accusation, what sort of proof would I need to provide?

It very much depends upon your personal circumstances, although generally I would advise that you gather together as many independent witnesses or as much evidence as you can find.

In another example, if a respondent were to claim that he shared a communal internet connection with several others in the same household and was simply the person whose name appeared on the bill, then it would help if he could show rent books for the other tenants or perhaps a copy of the electoral register showing the names of others who lived at that address.

The Copyright Designs and Patents Act in S97 states: “Where 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 him, but without prejudice to any other remedy”. If an infringement arose because of an innocent error or an accidental oversight, then the plaintiff isn’t entitled to damages

The grounds for a successful defence are relatively fertile, dependant on the individual circumstances.

So to summarise, what is your advice to recipients of these letters?

My advice is not to panic and never to simply ignore these letters in the hope that the problem will go away on its’ own. Prepare as much of your case as you can in advance, and then speak either with your solicitor or the Citizens Advice Bureau, they give an excellent service for free and their number can be found in your local directory.

Your legal adviser may wish to see this link which details the consequences of anyone making a groundless threat of infringement such as these, and the prospects of suing the people making the threat for costs and damages.

Our counsel is a lawyer with a background in the media industry, recognised by WIPO and has a highly successful track record of defending both site owners and individuals. Whilst the answers given here do not constitute legal advice, they describe the general principles of defence against the sort of demands being circulated by Davenport Lyons. Our counsel regrets that he is unable to answer questions put to him about specific cases, and recommends that you use the information given as a basis for discussion with your own solicitor.

Finally, in a move that is likely to embarrass Davenport Lyons and prove that a lack of human interaction in these bulks legal cases leads to amateur mistakes, many people it accuses have received multiple threats through the mail, each carrying a demand to pay around £500 ($1000).

Many people have received multiple letters relating to a claimed seperate infringement on the same game, turning this ‘legal’ action into a complete and utter farce. To suggest than one individual uploaded the entire game to a single recipient (Logistep) many, many times in succession is ridiculous and is easily proven to be completely false.

Tommorow we hope to bring you interviews with some of the people who have received these letters to hear how they are coping, and we’ll be hearing from one shocked guy who received ten (yes, 10!) infringement notices for the same alleged offence.

Article from: TorrentFreak, check out our new blog at FreakBits.

Since early March 2007, many internet forums have been buzzing with news of users receiving letters from UK law firm Davenport Lyons, alleging that they have illegally distributed (uploaded) the ‘Dream Pinball 3D’ game from German company Zuxxez Entertainment. The letters, which were sent out to 500 alleged file-sharers, demand a minimum of £340 ($667) to avoid being taken to court and claimed potential costs of “tens of thousands of pounds”. Most of the alleged filesharers never even heard of the pinball game, or never had the IP-address that was listed in the letter. However, some already report to have paid the settlement money because they don’t want any legal trouble, it almost sounds like a perfect scam.

The letters state:

"Our client has retained forensic computer analysts to search for and identify internet addresses from which their games are being made available on so called "peer to peer" (P2P) internet sites for the purposes of making them available for download by third parties without our client's consent or licence"

Note that the letters are not addressed to an individual, just ‘Dear sir or madam’ – this proves that the ‘forensic’ process cannot correctly identify an alleged infringer behind an IP address.

It continues:

"Our client is in possession of compelling evidence that on the following date and time 15.09.2006 12:15:22 [made up date/time for illustration purposes] (captured in the German time zone), the Game was made available from the internet protocol (or IP) address XXX.XXX.XXX.XX specifically for the purpose of downloading by third parties. Pursuant to a High Court Order, the internet service provider XXXXXXXXXXXXX identified you as the subscriber associated with that IP address at the time in question".

TorrentFreak has seen evidence that suggests alleged infringers’ IP addresses were being collected within hours of the game appearing on the eDonkey network. Unconfirmed reports even suggest that the delay could be measured in minutes.

So where exactly does this ‘compelling evidence’ come from, who are these ‘forensic computer analysts’ and why does the letter speak of evidence gathered in the German time zone? A little background;

Back in 2005, it became evident that Zuxxez Entertainment had decided to take a very aggressive course of action against Germans accused of sharing their game ‘Earth 2160′ on the eDonkey network by employing a law firm to file 12,000 claims with the state prosecutor’s office in Karlsruhe (the home town of Zuxxez). In the German case the settlement were also relatively low, giving the alleged filesharers an easy way out, instead of taking it to court.

The ISPs in Germany soon got tired of all these ungrounded, and seemingly random infringement notices, and they soon stopped responding to the claims Zuxxez made until there was some hard evidence against their customers. Zuxxez realized then decided that they couldn’t make any easy money in Germany anymore and moved to the UK, still using the same strategy.

In each claim, the law firm shows the software alleged to have been uploaded (in the UK it’s the Pinball game), the IP address of the alleged infringer plus the users emule/edonkey user ID and a timestamp. So who collated this information? Enter Logistep, a Swiss anti-piracy company employed by Zuxxez to track down eMule users they claim were sharing its software, gather information and use it to gain Court Orders to force ISP’s to give up the names and addresses connected to the accused IP address. In the UK, it’s believed that up to 18 ISP’s were presented with Court Orders to force them to reveal users personal details.

Although Zuxxez and Davenport Lyons don’t openly admit to using Logistep in these UK cases, it seems more than likely, given that information on the Internet Piracy Portal states that Logistep are a partner of Schutt, Waetke (the law firm dealing with the German cases) and also Davenport Lyons in the UK. Of interest is that Zuxxez Entertainment has its home in Karlsruhe, Germany and so does Logistep, even though the company appears to be registered in Switzerland.

In each English case it’s likely that Davenport Lyons will have obtained what is known as a Norwich Pharmacal Order, which relates to the obtaining of information regarding infringements from parties who may not themselves be involved in the infringement, i.e the ISP. In the original Norwich Pharmacal Co and Others v Customs & Excise Commissioners case in 1973/74, it was ruled that a party who became even innocently involved in someone else’s wrong doing, was under obligation to provide the injured party with information to identify the wrong doer.

Apparently, such an order should not be granted where it’s clear that the plaintiff is ‘fishing’ (phishing) for information and is attempting to discover something that will form the basis of a court action. As the law firm is very obviously making a ‘phishing’ attempt to obtain the name of a possible infringer other than the account holder, this should be something that anyone accused should take up with their lawyer.

Davenport Lyons imply that the evidence against alleged infringers is so good that the fact that a court order was granted is likely to be enough to prove guilt. This is seriously up for debate. In Germany, a criminal investigator has stated that Logistep refuses to reveal how it gathers information against alleged infringers so it becomes impossible to confirm that the data it collects is correct. In my opinion, it is of paramount importance that Logistep is required to reveal how it gathers such evidence in order to prove its validity to a court, otherwise it’s possible that there would be errors, leading to the wrong people being accused and/or convicted. A UK Government audited and approved system could give their case credibility but until such an audit takes place, I don’t see how their systems can be trusted.

According to a computer forensics expert, the evidence held is likely to be inconclusive and the digital equivalent of Hearsay. Visitors to this thread will note that the expert seems to be offering his services on a no-win, no-fee basis. If his support means that the accused don’t have to go to Court, then he says there is nothing to pay. Any fees will be taken from costs awarded should the accused win their cases. We cannot endorse this guy but it’s certainly worth a look. There is an interesting post about other legal issues here.

Several people accused of uploading Dream Pinball are concerned that they may have an unsecured wireless network and that unknown third-parties may have committed an offence without their knowledge. Davenport Lyons have already responded to at least one person who put this scenario to them;

“There has already been a ruling in the German courts confirming that a wireless network is the responsibility of its owner and any consequences of failing to secure the network fall upon the owner of it, irrespective of who carried out the illegal activity”.

There was indeed a decision in the regional court of Hamburg on 27th July 2006 (ref 308 O 407/06) which ruled that the owner of an internet connection is responsible for infringements which take place on it. Presumably, if there had been a case under relevant UK law, Davenport Lyons would have mentioned it, rather than having to resort to referencing a German case.

So it appears that in the UK it may remain uncertain as to whether an account holder is liable for the actions of others on his internet connection. It’s an issue for the Court to decide, not a law firm or anti-piracy company. Indeed, an English Court may decide that the person who has had their wireless network hacked, bandwidth stolen, connection used illegally and reputation damaged, is actually a victim of a crime themselves and if companies like Logistep have the ability to identify the criminal who did this, then surely they have a legal obligation to do so. Anyone who feels they are the victim of this fraud should present this scenario to their lawyer.

In addition to the ‘uploading’ claim, one of the claims in the letter relates to the illegal copying of the game to the hard drive. Even if someone in the UK is found responsible for what someone does on their internet connection, surely they cannot be guilty of copying the game to the hard drive if this was done by an unauthorised user accessing an unsecured wireless LAN, on a PC outside of their control?

In Germany the district court in Mannheim denied Schutt-Waetke any fees they asked from a defendant, claiming the firm had already filed over 3700 similar cases and it was hard to see where such automated proceedings would require extensive work justifying any fees. A Court may or may not decide that should be the case here.

Dirk Hassinger, the sales director at Zuxxez said he had tried to find a law firm prepared to charge low fees because he didn’t want to “bankrupt” file sharers. On face value, this seems like a considerate thing to do, until you examine some of the wording in the Davenport Lyons letter;

“In the event that you were not able to pay whatever sums the court may direct, our client would have no option but to take steps to enforce the debt against your property”

So Zuxxez don’t want to bankrupt people but are quite willing to threaten their family home. Very considerate. It’s more likely that Zuxxez make the settlement ‘affordable’ to make sure defendants choose not to go to court. If going to court means companies like Logistep are forced to reveal their methods and they prove suspect, the whole process could fall to its knees. If someone is proven unresponsible for the actions of a wireless hacker, the whole process could fall to its knees. Obviously this is the last thing that Zexxez, Logistep or Davenport Lyons want.

Finally, having battered the German legal system with their proceedings and taking steps to do the same in the UK, it appears Italy is also becoming a target . Ominously, Logistep also have legal partners in Dubai, Israel, Austria, Poland and the USA.

The Corporate Enemies of File-Sharers list just got longer.

Article from: TorrentFreak, check out our new blog at FreakBits.

But now he goes on to say that although content creators can profit from BitTorrent, users are getting screwed. Why? Here are his reasons.

Conflicting Clients

End Users don’t understand how P2P works

The P2P model of seeding is a HUGE problem for those [...] with bandwidth constraints or per bit or per minute costs

There is a misconception that there is bandwidth savings for the end user

On conflicting clients he says, “When multiple clients are installed on a PC, not only does that create confusion among users, its a ‘last installed, first in charge’ approach. THat approach and lack of respect for other clients will lead to user configuration problems.”

Okay, number one, if you’re referring to file associations, ie. the most recently installed app is associated with the file type, then this “problem” is not limited to BitTorrent clients. Everything from graphic editors (Photoshop, Gimp) to music management applications (iTunes, WinAmp) do this. Secondly, if this causes confusion among users, then how do millions of people manage to get their music into iTunes and sync it to their iPods without accidentally having their mp3s added to the Windows Media Player library? This “lack of respect” isn’t so much about BitTorrent client developers trying to steal users from their competitors, as it is about how operating systems function today.

Onto point two. “End Users dont understand how P2P works, and once they do, they get concerned about giving up bandwidth.”

I hear BitTorrent transfers make up about one third of all traffic on the Internet these days. It seems rather likely that end users do in fact understand how P2P works. And unless their other online activities are hindered by BitTorrent or P2P, I don’t see users really having a problem with the uploads. Most don’t even bother uploading once their file has been download, and since the majority of users download torrents from public trackers, they aren’t forced to either.

Mark’s third point, “The P2P model of seeding is a HUGE problem for those using wireless broadband with bandwidth constraints or per bit or per minute costs. People are going to wake up and find that they owe Verizon, Sprint, whoever a lot more than they ever thought possible because they installed a client on their Laptops. That could lead to these networks blocking the protocol.”

Point three actually makes sense. The real problem here is miscommunication. In developing countries like India, ISPs milk customers for money by charging them for every MB downloaded, and in some cases, for every minute spent online. Some ISPs (Sify, for one) even lie about unlimited plans and have per-day limits (eg. 200 MB), which, if exceeded, cause the number of days the plan is valid for (usually a month) to be reduced every time the download limit is excedded. Someone I know actually ran up a bill of several hundred dollars because he thought he was on an unlimited plan, whereas in reality his ISP hadn’t processed his request to change plans. But as BitTorrent and P2P grow in popularity, users are quickly starting to demand ‘unlimited’ plans. If you look at the trend, ISPs are more likely to cash in on the P2P phenomenon and offer unlimited plans for a premium than start blocking protocols. And although per-bit and per-minute plans are widespread in developing countries, I don’t know how much of a problem they are to European, Australian and North American users.

Cuban’s last point is, “There is a misconception that there is bandwidth savings for the end user. If you want to download a 1gb size file, 1gb of data will be delivered to your PC. There is no savings of bandwidth on the client side. In fact, the client is charged a bandwidth premium because after they have received the entire file, they are asked to particpate in the peering by delivering parts of the file to other users.”

Guess what, the end user doesn’t care if he’s uploading bits while downloading. Unlike hosting providers, the user incurs no cost from constantly uploading data. It doesn’t matter, as long as he can go about his other activities. And unless he’s on a per-bit or per-minute plan, no “bandwidth premiums” are going to be charged to him. Also, no one is asking the user to “participate in the peering” (or simply, seed) once his download is complete. That is only a requirement of select private trackers.

When it comes to utilising BitTorrent in business, as part of a content store, I think Cuban’s looking at it the wrong way. When the various BitTorrent stores (BitTorrent.com, Zudeo.com) are up and running, content creators are not going to be getting a free ride. Users are not going to pay the same price they do at conventional stores like the iTunes Store and Amazon Unbox. Why should they? They’re acting as servers for content creators and are distributing content for no charge at all. But since money isn’t being deducted from their bank accounts, and seeding a torrent is not really affecting their web browsing, users are okay with uploading.

I’m open to the possibility that I’m dead wrong. I don’t know, maybe Cuban is right. Maybe BitTorrent is in fact doomed, and the video streaming technologies he pioneered with Broadcast.com in the 90s will make a major comeback. I mean, who uses BitTorrent these days? Just a bunch of pirates, soon to be exiled to metal platform in the middle of the North Sea. Right? Right.

What do you think? Are the days of P2P over? Is the the balkanisation of BitTorrent imminent?

Creative Commons photograph by kk+.

Article from: TorrentFreak, check out our new blog at FreakBits.