Downloading music illegally, or watching a movie online without paying, was okay with a much smaller group, 18 and 13 percent respectively.

In fact, hiding your online porn viewing habits from your spouse is still more morally accepted than downloading a movie or music album without paying for it. Of the respondents, 18 percent thought that is was fine to secretly watch porn in a marriage.

At first sight the results of the survey are not really that surprising. Downloading music and movies without consent from the copyright holders is in violation of the local laws in New Zealand and watching porn obviously isn’t. Still, a closer look at the findings reveals some remarkable inconsistencies.

Firstly, most of the adult entertainment is actually viewed on sites that are dominated by copyright infringing content. So, many of the people who watch porn online are actually pirating as well, without realizing it.

Another remarkable finding was that people seem to be fine with copyright infringement if it’s on a video streaming site such as YouTube. Of all respondents, 31 percent said that it is morally acceptable to stream copyrighted TV-shows on YouTube, while only 13 percent believed that downloading copyrighted video was morally okay.

Thus, streaming copyrighted content is somehow perceived as more acceptable for some odd reason. The 5 percent difference between the moral acceptability of music and video downloading is another mystery that is left unexplained.

Overall, this survey shows how malleable peoples’ perceptions are when it comes to copyright issues online, with approval rates swaying back and forth between different types of media and the various distribution platforms.

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

Their scheme has attracted much negative press, even provoking statements from Members of the House of Lords in the UK.

“Of late, we have seen a proliferation of lawyers’ letters, acting for the pornography industry, as the noble Lord, Lord Lucas, pointed out, often against innocent people asserting copyright claims and threatening court action,” said Lord Clement-Jones recently.

Now there has been a surprising “Christmas update” from ACS:Law. Referencing earlier legal threats they made to thousands of individuals in the UK (you’ve been caught file-sharing, we can prove it, and if you don’t pay up we’re taking you to court), the law firm has announced that it will drop many of its cases.

As Christmas approaches, here at ACS Law we have been working hard dealing with our file sharing projects. We have been reviewing all cases which are currently open, and a good number of these cases have been dropped, where we do not either consider litigation to be a viable option or to be beneficial to our clients.

So, despite the “forensic” standard proof the company claims to hold on individuals, it appears that, as we’ve said many times here on TorrentFreak, this scheme is all about money. If individuals have no money to pay, ACS:Law cannot get blood from a stone.

Furthermore, when trying to force others to pay up who may actually have the money, faced with holding a single IP address as evidence and absolutely no way of identifying a specific individual sitting at a keyboard and conducting or authorizing the actual infringement, they have little choice but to back down.

James Bench, who works with Being Threatened, a consumer group which offers resources to individuals who are targeted by ACS:Law, says that those accused are becoming increasingly empowered by the knowledge currently available.

“Recently leaked documents exposed the inner workings of the process, dubbed by some ‘speculative invoicing,’ showing that claims are assigned a ‘litigation rating’,” he told TorrentFreak.

“Factors affecting the rating tended not to be based on the evidence supporting the claim but on the appointment of legal representation, technical ’savvy’ and the finances of the client – or lack thereof,” he added.

So does this mean that ACS:Law will be backing down completely? Hardly. The law firm says that following the court orders they obtained in November, more threatening ‘pay up or else’ letters will be sent out in January 2010.

Anyone receiving a letter from ACS:Law should refrain from replying to the company until they have spoken to the support team at BeingThreatened.com, who will give completely free advice.

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

“The industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better,” he noted.

Lucas went on to say that it took the industry a decade to produce sensible alternatives to illicit file-sharing and cast doubt on their ability to identify infringers from an IP address alone.

However, hidden away in the text of the 2nd reading of the Digital Economy Bill were some encouraging signs that the government will have to take notice of the companies generating profit from alleged file-sharing (by sending threatening ‘pay up or else’ letters), under the guise of protecting the ‘creativity’ of the porn industry.

“We have to be careful too about the industry cloaking itself in the finery of the small, creative individual,” said Lucas. “We are not talking about the small, creative individual here, but about powerful, monopolistic industries and giving them power over citizens. We must be careful of that.”

Although he didn’t mention them by name, there can be little doubt Lord Lucas was referring to UK lawyers ACS:Law (and previously Davenport Lyons) and their German partners, Digiprotect.

“Pornography is widely used on the internet and is one of the most assiduous industries when it comes to pursuing people for supposed non-payment for illegal downloads et cetera. We have to face it that we will be putting a lot of people into the hands of pornographers and their lawyers if we are not careful about the way we draft the Bill,” he said.

As we pointed out in a previous article, the proposals being put forward in the Digital Economy Bill do not trump the old copyright system, meaning that if rights holders (Digiprotect) and lawyers (ACS:Law) wish to continue with their campaigns of sending letters and demanding huge sums of money instead, they will be perfectly entitled to do so.

But not if Lord Lucas has his way.

“Secondly, it should be compulsory for copyright holders to go through the mechanism we are putting in place. It is not acceptable that we are putting in place a mechanism for them to deal with peer-to-peer file-sharing and for them still to go immediately to lawyers and harass people as the pornography industry does already. The briefing that noble Lords will have seen from Which? describes the consequences well. We should take the opportunity of this Bill to stamp that out,” he said.

Noting that claims from porn rights holders have often been made against innocent people, Lord Clement-Jones also said that provisions should be made to bring the scheme to an end.

“Of late, we have seen a proliferation of lawyers’ letters, acting for the pornography industry, as the noble Lord, Lord Lucas, pointed out, often against innocent people asserting copyright claims and threatening court action,” he said.

“Which? and others are right to raise these cases, but I hope that the provisions of the new code will obviate the need for this heavy-handed type of action.”

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

As first reported here on TorrentFreak, Digiprotect is the company working with lawyers ACS:Law in the UK to prepare tens of thousands of letters to go out to Internet users they say have been sharing pornographic movies.

Each of these letters sent in the UK will carry a cash demand – a very profitable one at that – which mirrors the ones it sends to menace Internet users in Germany.

Now, according to Christian Solmecke, a lawyer with Wilde & Beuger law firm who works to defend alleged file-sharers in the country, Digiprotect appears to be stooping to new lows.

Solmecke says that his company has come into possession of a letter being sent out by debt collection agency Media Inkasso to a file-sharer who thus far appears to have refused to cave in to previous demands to “pay up or else”.

In it is a claim on behalf of Digiprotect for 650 euros plus around 11 euros in interest, plus what it refers to as “collection costs” of 127 euros.

The body of the letter informs the letter recipient that “..since you have not responded to earlier demands for payment by the rightsholder [Digiprotect]” the debt agency is now instructed to collect damages in respect of a previous allegation of copyright infringement – most likely the alleged sharing of a pornographic movie.

“If by the listed date no money has been deposited in our account, our client will commence court proceedings against you at considerable cost to you,” it adds.

So it appears that based on just an allegation of copyright infringement along with a demand to pay 650 euros, the letter recipient has not responded, so therefore it is now being considered by Digiprotect as a debt to be enforced by debt collectors.

Let’s hope that the recipient refuses to be cowed and stands up to this scheme, which is difficult to describe in any terms other than extortion.

This news is the latest in a long line of controversies hitting Digitprotect’s business. A couple of weeks ago we reported on the leaked documents that were handed to news outlet Gulli.

After analysis, a German lawyer now believes that the way the project was handled between Digiprotect and its lawyers could actually be illegal, meaning that thousands of individuals may have received fraudulent demands for payment.

The debt collection letter can be viewed here.

The government in the UK is now sitting up and listening on this issue and at long last there appears to be moves to deal with the similar scheme in operation there. In the meantime, readers in the UK are reminded that if they receive demands from ACS:Law on behalf of Digiprotect, they should visit BeingThreatened.com for advice.

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

In reality, the truth proved somewhat different.

No one could argue Grokster had been defeated, but the consequences for file-sharing were limited. The real impact was that providers of file-sharing services could now be held liable if it could be shown that they promoted their products for infringing purposes. Careful advertising was all that was required. Furthermore, the decision only affected the United States. Considering the epic scale of the case and the supposed victory, the results were far from devastating.

And now, 4 years later, Mininova, another file-sharing giant that rode on the crest of the BitTorrent wave since the Grokster verdict, has effectively been forced to close down the vast majority of its site, prompting many to feel that BitTorrent is heading for its twilight years.

However, with careful consideration, it may just be possible to create another Mininova that avoids its namesake’s fate, since the court’s decision was not solely related to the existence of links to infringing content, i.e the .torrent files.

The DMCA is widely known in BitTorrent circles. It is the US copyright act (but accepted by many indexers and trackers regardless of location) which many sites quote when offering to take down torrents that link to infringing content. “If you’re the content owner, let us know,” they say, “..and we’ll take down torrents that link to your works.” Complying with so-called ‘DMCA takedown requests’ is widely accepted as a way to stay within the law.

Although Mininova operated such a system, comments by the site’s staff on their forums called their commitment to it into doubt. There are many samples given in the court’s decision, here are just a few. It’s worth noting that many of them date back to 2005, when users, staff and site admins would have been much more relaxed.

“May have been just a take down request (…) i’d say just re upload it (…) thanks for sharing” (posted by site moderator)

“Thanks for reporting, I deleted the fake version and uploaded the correct one” (posted by site admin)

“I made a mistake of downloading a shareware version of Monopoly Jr. only to find out it only allows you to play it for 15 minutes and then it becomes useless,” said a user. “Check the site, it’s there now” (posted by site admin).

Mininova also took pride in their efforts to proactively filter fake files (including in the decision are comments by staff who admit to downloading material to check if it is indeed as labeled), viruses, malware, pornographic and drug-related material, but this seems to have backfired by the corresponding lack of commitment to proactively filter copyright content in the same manner.

The site also carried some very specific categories for its torrents. Not just ‘movies’ or ‘TV’, but also sections such as “CSI” and “Desperate Housewives” which are widely known to be copyright works. One section highlighted in the decision was labeled ‘Disney’. The court decided that since so little Disney material is copyright-free, the section could have little other use than to infringe.

Mininova has never denied making profits (it is a company after all) and the court ruled that the site encouraged and profited “from infringements of copyrights and related rights of the holders represented by Brein.”

To see things from a different perspective, TorrentFreak has been discussing the closure of Mininova with Aldor Nini at digital distribution and anti-piracy solutions company, Easycom, who has been following the case closely.

Interestingly, Aldor informs us that 8 out of 10 torrents on Mininova were not covered by the BREIN lawsuit, which makes us wonder if the site could’ve stayed alive if the other 2 out of 10 were removed before the court’s hand was forced.

“We are very sorry to see a platform like Mininova shut down millions of torrent files,” he told TorrentFreak. “Based on our research we have found out that only 21% of the content was infringing rights of content owners for content used in the proceedings by BREIN. This 21% could probably be the most popular files on the platform, but we cannot confirm this for sure.”

“However, Mininova’s decision to completely remove everything was to 100% conform with what the judge has ruled. A 100% working filter was requested, and the removal of all non moderated user submitted torrents is the only 100% filter available nowadays,” he told us.

In a similar way that file-sharing applications similar to Grokster’s continue to flourish post the ‘big’ 2005 verdict, torrent sites can follow suit, if they are prepared to adapt.

“We do not think that this judgment will directly apply to other torrent portals at all,” Aldor told us, “but rather the way Mininova was operated as a torrent portal.”

Aldor has some interesting thoughts on how torrent sites can continue, without making the same mistakes as Mininova. He argues that torrent sites should behave neutrally, meaning that if they remove fake and spam comments they should filter copyrighted content too.

Based on Aldor’s reasoning, it seems another option is for sites to switch to user-based moderation, where content is automatically removed after a fixed number of downvotes. The bottom line is that the site’s operators (or moderators) should stay neutral.

Further suggestions are to take the takedown procedure seriously and make it easy to use. Sites should notify users that copyrights are to be respected and refrain from using specific categories (such as Disney). Again, based on the basis that site staff should stay neutral, user submitted tags should be fine.

Other more problematic ideas are the increased co-operation with content owners and to “stop thinking in black and white” – surely great advice for both sides and ultimately, the only long term solution.

Not making any profit or donating part of the site’s income to innovative music artists and film makers, and steering clear of scammy advertisers could be further plus points.

Aldor concludes that the lessons are there to be learned from Mininova’s demise.

“The next torrent portals, which will cover the next millions of torrent files, will hopefully learn from this situation. All in all Mininova’s partial shut-down will not influence the worldwide BitTorrent activity, it has just set up the rules for the successors of Mininova.”

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

DL then wrote to the individuals demanding several hundred pounds to make the threat of a lawsuit disappear. Some paid up, but many did not, and the only cases DL took to court were against those who didn’t defend themselves.

Generating revenue from porn proves controversial

Then the law firm overplayed its hand and got into bed with DigiProtect, the German piracy exploitation outfit with a catalog of hardcore porn titles to its name. The rights were signed over to the company by the copyright holders so that DigiProtect could use them to generate revenue – lots and lots of revenue.

After mountains of bad publicity, DL withdrew from this business model. In May this year, the exact same scheme reappeared with UK lawyers ACS:Law. TorrentFreak asked company owner Andrew Crossley about the connections between ACS and DL – his reply: “NONE”. However, it was crystal clear that there were many links, not least that staff from DL were now working at ACS:Law directly on these cases – known cyber-squatter Terence Tsang as one example.

We’ve known all along that if those threatened put up a spirited defense and refused to be cowed they were never taken to court, but we had no proof as to the mechanism employed. Then, out of nowhere, months ago someone from inside either Davenport Lyons or DigiProtect leaked lots of sensitive documents to German news outlet Gulli.

Having remained secret until now, the documents made very interesting reading and along with a helping hand from TorrentFreak and armed with the leaked personal details and email addresses of some of the letter recipients, Firebird77 at Gulli was able to confirm the authenticity of the documents.

Document 1 – Ranking alleged infringers in order to decide who to pursue

The first document reveals how the targets are ranked based on an estimation of how likely it is that they will pay up. Each alleged infringer has their details filled in on a form (download here from WikiLeaks). The document shows that despite the claims that an IP address alone is irrefutable evidence of an infringement and will lead to being taken to court, the reality is rather different.

Letter recipients are given a ranking based on many parameters. Does the law firm want to continue to pursue the person? What are the chances of success? A zero would mean “no action” up to ten which would mean the respondent is ripe for maximum pressure. One letter recipient hired Michael Coyle at Lawdit Solicitors to defend him and this earned him a “three”.

One part of the form is entitled “Circumstances” and this is a very surprising section indeed. Despite the “fact” that the law firms supposedly already have solid evidence of infringement that they say will lead to court action if recipients don’t comply, the section seems to show that they make their decisions on who to pursue based on the recipients’ personal circumstances.

One circumstance is labeled “impecuniosity”, i.e the letter recipient is flat broke. Another is whether the recipient is on state benefits – this is expected to be proven by way of copies of benefit books and/or letters. TorrentFreak has evidence that one gentleman was asked to prove that he was indeed disabled in order to make the claims go away. Other circumstances include whether the recipient is a pensioner, a student or a child.

One other circumstance is an eyebrow-raising “out of jurisdiction” (no rightful claim could be made the against the recipient) along with whether or not the individual was aware of that fact.

The form also lists possible defenses that recipients rely on, including the breach of their wireless router, a virus infected PC, not being at home when the infringement occurred, no knowledge of infringement or the possibility that someone else in the location carried out the infringement.

Document 2 – Letter from lawyer Dr Kornmeier from Kornmeier & Partner to Brian Miller at Davenport Lyons

The 14 page document (download from WikiLeaks) details the agreement DigiProtect enters into with rights holders in order to exploit their copyrights for profit.

Included is a section which confirms that the original rights holders sign over the rights to DigiProtect so that they are legally allowed to make the works (hardcore porn movies) publicly available on P2P networks such as BitTorrent. Dr Kornmeier asks: “Does this constitute any problem under UK law?”

According to page 2 of the letter, when the recipient of these letters pay up, the spoils are divided up as follows – 51% to DigiProtect, 37.5% to Davenport Lyons and 11% to DigiRights Solutions. The remaining pages detail the exact business arrangement along with a list of the hundreds of porn movies covered by the agreement.

TorrentFreak discussed the documents with staff at the excellent BeingThreatened.com, a site set up to support and inform those targeted by Davenport Lyons and ACS:Law in the UK.

“These documents confirm what we have long suspected,” they told us. “This scheme is not about getting justice for the rightsholders at all; it is there to fill the pockets of companies like DigiProtect by exploiting many innocent people. Everyone with an IP address has reason to be worried about becoming a victim of these exploitative practices, whether they use P2P networks or not.”

Indeed, John Stagliano, boss of porn company Evil Angel which also worked with DigiProtect, admitted to earning less than £50 from each infringement and told the BBC the scheme “…was completely misrepresented” to him.

Uk consumer magazine Which? earlier reported Davenport Lyons to the Solicitors Regulatory Authority for alleged “bullying”. It will be interesting to see how these documents develop that case.

Thus far just two documents have been made public. Stay tuned for further updates.

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

Continuing first from yesterday’s proceedings, ITnews reported an exchange between iiNet CEO Michael Malone and movie industry barrister Tony Bannon, over Malone’s understanding of BitTorrent.

Malone told the court that while he had an understanding of the protocol, he had never used uTorrent, the client used earlier by Bannon to give the court a technical demonstration. Bannon’s demo used iiNet’s own tracker (an installation of RivetTracker) which it has used to distributed several press releases which all relate to the trial.

It is difficult to see where Bannon was going with his questioning, but it began with an admittance by Malone that the torrent files were intended to be used by people with access to a BitTorrent client. Malone then denied that the releases were specifically targeted at iiNet customers, noting that anyone can access them

Under further questioning regarding the inclusion of a note in the torrent files dialogue box indicating the files were non-pirated, Malone reiterated that while he had an understanding of the BitTorrent protocol, he did not have experience of the client used by Bannon

Then, with an apparent deafness towards Malone’s perfectly clear response, and demonstrating an apparent ignorance between a BitTorrent client and the BitTorrent protocol, Bannon sought to press Malone into admitting to his 400,000 customers that he didn’t understand BitTorrent.

Again, Malone stated that he didn’t know how to put a comment on a torrent file, but Bannon persisted in trying to get Malone to admit that he knows how uTorrent 1.8.4 works, but Malone said he’d never used it. There could, however, be people in iiNet who had, he conceded.

Bannon then said that in the last 24 hours the torrent file functionality for the press releases had been removed. Malone said that if it had, he certainly hadn’t requested it, asking Bannon how he was attempting to access the Internet, suggesting that a firewall in the court was stopping the transfer.

TorrentFreak’s checks show a single seeder on each torrent and each one worked absolutely perfectly.

Moving on to iiNet’s handling of copyright infringement allegations, iTWire reports that Bannon tried to paint a picture that iiNet’s policy of forwarding AFACT notices to the police was little more than a cynical attempt to pretend that they were dealing with them, when in fact they were not.

For the umpteenth time in this case, Malone said that he was under no obligation to act on mere allegations from AFACT which were not backed up by a court order.

“AFACT was telling us to disconnect customers without further ado,” said Malone. “The question is, what should we do when confronted with illegal activity? And our response is, report it to the proper authorities.”

While iiNet said it had always been policy to forward the notices to the police, ITWire notes that evidence emerged that the company had sent notifications twice, although there was no indication of how many infringement notices were in each batch.

Yesterday Malone said that the evidence provided by tracking company DtecNet’s investigation was “compelling” and should be reviewed by a third party and the courts. In the face of this statement, Bannon asked Malone why he had not taken action based on AFACT’s allegations.

“This is a right,” said Malone, “not an obligation of iiNet.”

These days arguments in favor of anti-piracy action seem almost incomplete with the obligatory reference to child pornography, as we heard in yesterday’s propaganda piece from CBS. This case is no different.

Bannon put it to Malone that if the evidence provided was “compelling” and Malone had received “compelling evidence” that an iiNet customer was accessing child porn, would the company allow the user to do so “day after day?”

Of course, any allegations of this nature would involve the police, and the police or the courts would do the investigation, get the proper paperwork and order iiNet to comply, which they naturally would. Malone said that on mere AFACT allegations of civil infringement (as apposed to an infinitely more serious and jailable criminal offense), such action would not be permitted.

Bannone then pressured Malone to admit that “…you’re happy to tell your customers this from the witness box,” that iiNet will not disconnect subscribers for infringing copyright.

At this point one has to wonder if Bannon is deaf or just plain stubborn. It is absolutely crystal clear to anyone following these proceedings that yes, iiNet will disconnect customers for copyright infringement, providing there has been due process and a court has ruled that disconnection is appropriate.

The case continues tomorrow.

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

This week alone we’ve had an Early Day Motion from a member of Lord Mandelson’s own party, and more recently ISPs have talked about the futility of the suggested legislation.

Mandelson reportedly started pushing it after a meeting with Hollywood mogul David Geffen, and was apparently uninterested in the whole situation prior to the meeting, although that claim was flatly denied.

Now, the All Party Parliamentary Communications Group (apComms) has released its own findings to its more broad consultation, and it’s not good reading for 3-strikes proponents.

There were significantly fewer responses than for other similar consultations, although the scope was much wider. It was also much more open, without assumptions or leading questions. It was, in fact, fairly neutral and seemed to be concerned with gathering information, rather than trying to solicit support for a predetermined policy. Most appropriately, it was titled “Can we keep our hands off the net?”

The topics covered included dealing with ‘bad traffic’ (which includes copyright infringement, P2P and botnets), behavioral advertising (such as Phorm), online privacy and child pornography procedures. Finally it dealt with the issue of who should foot the bill for Internet traffic, and whether network neutrality should be codified. The first and last questions are of particular concern to TorrentFreak, and the conclusions make for interesting reading.

On the subject of P2P and copyright enforcement, they came to the following conclusions;

58. We conclude that much of the problem with illegal sharing of copyrighted material has been caused by the rightsholders, and the music industry in particular, being far too slow in getting their act together and making popular legal alternatives available.
59. We do not believe that disconnecting end users is in the slightest bit consistent with policies that attempt to promote eGovernment, and we recommend that this approach to dealing with illegal file-sharing should not be further considered.
60. We think that it is inappropriate to make policy choices in the UK when policy options are still to be agreed by the EU Commission and EU Parliament in their negotiations over the “Telecoms Package”. We recommend that the Government terminate their current policy-making process, and restart it with a new consultation once the EU has made its decisions.

Network Neutrality and actual bandwidth availability was also a concern, with the following recommendations being made;

212. We recommend that Ofcom keep the issue of “network neutrality” under review and include a section in each annual report that indicates whether there are any signs of change.
214. We recommend that Ofcom regulate to require ISPs to advertise a minimum guaranteed speed for broadband connections.

We know that many of our UK readers will be happy with the last recommendation, especially after a study by OFCOM earlier this year found that many subscribers were seeing an average of 40% of their connection’s advertised speed. A more appropriate advertised speed will also prevent many BitTorrent clients from being setup for speeds they can’t actually achieve.

If you thought that such open minded, clearheaded and competent recommendations couldn’t have come from elected officials, well, the good news is they’re not all luddites. ApComms’s Joint-Chairman, Derek Wyatt MP was formerly Head of Programmes at WireTV, before becoming the director of BSkyB’s Computer Channel (later ‘.tv‘), leaving when he was elected to government. Other executives of apComms include a former BT researcher (Chris Mole MP), and Dr Nick Palmer MP, who has studied AI at MIT.

An extremely well-educated and technologically literate group making these recommendations should help carry some weight. Whether or not it will be enough to convince the Peter Mandelson’s and Sion Simon’s of the government, remains to be seen.

The full report is available here.

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

Previously the international music industry has taken legal action to order various ISPs in several countries to block The Pirate Bay, but to our knowledge none have offered to help block BitTorrent sites voluntarily – until now.

Charles Dunstone, chief executive of Carphone Warehouse which operates the ISP TalkTalk, said the company would introduce a cinema-style ratings system for web content.

Aside from the self-explanatory 18 rating, there will be two others. Parents setting their connection to U and 14 will trigger a pornography and gambling filter, but they will also have the power to ban file-sharing and BitTorrent sites too.

“This is something that we are going to do anyway, as a service to our customers,” Dunstone told FT. “But through doing it we can also help the content industry by blacklisting sites that have BitTorrent files on them,” he added.

It’s not difficult to see how a system like this might prove attractive to the music industry if used in conjunction with the proposed “3 strikes” mechanism. Customers receiving an industry warning after their account is flagged as sharing illicit files could then have the immediate option to switch on this ISP-level firewall to thwart their kids.

But like all ’solutions’, for the tech-savvy they’re just another problem to be solved.

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

Less than a month after it was launched the office has already seized more than 4 million pirated teaching materials. As a result a massive 182 printing companies were shut down as well as 100,000 stalls where the illegal teaching materials were sold.

“The situation of illegal publications is generally under control… However, pirate issue is still obvious. Those pirated teaching materials especially harm the healthy development of the country’s youth,” Li Baozhong, vice director of the National Anti-Pornography and Anti-Illegal Publications Office, said at a press conference earlier this week.

Baozhong did not elaborate on how knowledge and education will harm children’s health, but we assume that it has something to do with content that the Government may not approve of. How educational materials could hurt one’s health remains a mystery though.

China is of course known for its censorship and notoriously blocks websites that may ‘harm’ its citizens including Wikipedia, YouTube, Flickr and Facebook. Interestingly, BitTorrent sites have never been targeted and almost all of the are still accessible today.

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

The studios also filed suit against 80 websites accused of aiding and abetting the distribution of the illegally uploaded movies.

A National Police Agency spokesman said that the lawsuit was filed at 10 police stations in the South Korean capital, Seoul, and in the Gyeonggi province. The studios asked the police to investigate the infringements, which carry a potential jail sentence.

However, from the 10,000 complaints issued, prosecutors charged just 10 people with copyright infringement. In response, the disappointed studios say they will fight back. Next week they promise to re-file their lawsuit, but this time will increase the number of individuals accused to 65,000.

Kim Han-Seo, a lawyer representing the movie producers, said that the prosecutors were not tough enough so they had decided to up the ante.

“Now, we’ve drawn up a new list of some 65,000 users who fit this guideline,” he said. “We’ll see whether the prosecutors will press charges against them all.”

As we reported earlier on our sister site FreakBits, at the end of August distributors of a hit Korean disaster movie called in the police after it was leaked to the Internet and was downloaded 100,000 times. Kim Han-Seo said that the Korean authorities had responded quickly to that local problem, but accused them of different standards when it comes to protecting foreign content, such as the material produced by his porn movie employers.

“We believe that [the prosecution] should not be discriminatory in applying copyright laws. Illegal copying and distribution run rampant in Korea because it is one of the world’s most wired countries. We decided to take legal action to minimize our past business losses and to protect anticipated future profits,” he said.

The threat now is that if the local Korean authorities fails to act in a way that pleases the porn producers, they will take their case directly to the US government instead.

The initial lawsuit indicated that the studios had also harvested the IP addresses of around 100,000 individuals who downloaded the adult movies but to date, there is no indication that they will become a target.

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

James Monaghan from the company has recently taken part in the BERR consultation on file-sharing so has been watching this week’s developments closely. The government has set a deadline for responses to its plans (which include disconnecting alleged file-sharers from the Internet) of 29th September and, like many others, James has responded to the new statement by sending his thoughts in to the consultation. His feelings will resonate with many TorrentFreak readers. Here they are in full;

Monaghan Media Response To Latest BERR Statement

There are an estimated 7 million file-sharers (your figures) in the UK, and you want to reduce that number by 70%. 70% is 4.9 million. A fair trial is fundamental to democracy. To fairly prosecute 4.9 million citizens is an optimistic suggestion when currently Her Majesty’s Court System holds 200,000 criminal cases per year. This would suggest it is going to take 25 years to reduce file-sharing by 70%. This is only dealing with the 70% of today’s file-sharing with no regard to the expected increase of file-sharing. Research suggests that the number of file-sharers increases every day, 63% of people aged 14-24 now admit file-sharing, with 83% of those file-sharing every day.

To prosecute 4.9million people you will also need evidence. No evidence exists. Anywhere.

The ‘evidence’ championed by the failing sector of the media industry – the physical distribution sector – has been proven time and time again to be incredibly flawed. I refer here to the elderly couple who the copyright industry began legal proceedings against for downloading hardcore gay nazi pornographic film ‘Army Fuckers’ (1) among others. I also refer to the law firm Davenport-Lyons, who sent out 15,000 letters telling people to pay a small ‘fine’ (usually about £600) and they’d make a lawsuit against them (for file-sharing) go away. This is what is known as ‘extortion’.

Luckily for the consumers, and all of those of us who enjoy freedom from criminals, Davenport-Lyons were quickly picked up by BBC’s Watchdog program, and promptly disappeared.

I note though, that in today’s (25th August 2009) response, you don’t mention a fair trial. In fact you don’t mention any opportunity for those accused with this flawed and faulty evidence to defend themselves. Which rather gives the impression that there will be no opportunity for the accused to defend themselves. What you do say is this:

“…the previous proposals, whilst robust, would take an unacceptable amount of time to complete in a situation that calls for urgent action…”

So what you’ve stated, is that it is impossible for your draconian anti-file-sharing measures to be implemented fairly. Which is correct. What this means, is that this route of anti-file-sharing legislation, the ‘criminalise-7-million-of-your-citizens’ route is wholly unfeasible, impossible to implement without massive cost to the tax-payer, and impossible to implement without massive damage to the progress of the UK’s creative industries. What this does not mean is that instead of fair trials and the assumption that the accused are innocent until proven guilty, everyone should be presumed guilty until they are proven innocent. This is perverse as the accused would not then have the opportunity to be proven innocent.

In my previous contribution to this consultation, I briefly touched upon the fact that the industry has never been able to show any loss, financial or otherwise, has been caused by file-sharing. I’ve gone into a little more detail here, which shows, with numbers, evidence, and references, (rather than the usual hearsay provided by the industry) to show that there isn’t a financial loss to any of the most downloaded films this year (so far).

You’ll note that all of the top ten most downloaded films so far this year (3) are all incredible commercial successes, each making hundreds of millions of pounds. Watchmen, the most downloaded film with 16.9 million illegal downloads, still made $185,248,060. How can anyone argue that file-sharing has caused it a financial loss? Benjamin Button was the second most downloaded film so far, being downloaded 13.1 million times illegally. It made $332,860,689. A financial loss? I think not.

What we are seeing here, is the end of one type of business: the physical distribution of digital products. We are in a world where DVDs are old technology, in less than ten years Blu-ray disks will go the same way as LPs, as tape cassettes, as VHS tapes, and as DVDs. The internet however, has outlived the DVD. And it will outlive the Blu-ray disk. And it will outlive whatever format ‘succeeds’ the Blu-ray disk. The internet is here to stay. What we are seeing in the Creative Industry is a very small sector (distribution), which makes massive money from a system which is made redundant by the internet.

It is not the responsibility of the government, of the ISPs to prop up a failing business. If a business is failing, it is the responsibility of that business to look at itself, at its actions and rethink its operations in order to save itself.

It is wholly unfeasible to enforce any rule against filesharers, and impossible, literally impossible to enforce according to law.

I reiterate the statement I made in my first contribution to this consultation, the majority of my audiences watch my films over the BitTorrent system, a system so revolutionarily brilliant that it means I, an independent film-maker, can distribute a film in full High Definition to hundreds of millions of viewers with absolutely no cost incurred to me, where normally global film distribution costs several tens of millions of pounds. I think it is acceptable to say then, that my company and I are at the forefront of the industry.

As someone who uses file-sharing systems, not only to gain access to media which I never could’ve before, but also to distribute my own contributions to the UK’s Creative Industry, I am utterly shocked and appalled by the lengths to which your government will go to make my audiences, my peers and myself criminals.

This is not the end of the creative industry. I can say this with great confidence, as someone working in the industry. The industry is currently undergoing a change, a natural change, a change that it must undergo. Although this is not the end of the creative industry, it is the end of a disgusting sector of the industry which has been a parasite on the industry for the past half-century, milking it for as much money as it can, promoting false inflation of the rest of the industry only to increase its own profits.

The criminals here are not the teenagers downloading films and music, but the global corporations that extort money from artists and consumers alike, and who operate in a manner not unfamiliar with sinister global criminal networks.

It is the remit of democratically elected Government to protect the citizens, film-makers, and business-owners from the failing business model which threatens freedom, civil liberty, and creative business’ economic future.

Finally, I take this quote from your statement today:

“…As ever we would need to ensure any such measure fully complied with both UK and EU legislation…”

Disconnecting people from the internet does not fully comply with EU legislation. In fact it directly contravenes EU legislation. I am referring to amendment 138/46 which was adopted on the 6th May 2009 in response to French attempts to implement a system almost exactly the same as the one proposed here. A system which was declared unconstitutional by the French High Court. You will be aware that amendment 138/46 declared that access to the internet was a fundamental human right.

Not only do your proposals directly contravene European Law, but the certainty of wrongful sanctions being taken against citizens opens the government up to legal action. The fact that cutting off an entire household’s internet punishes everyone in that household and not just the ‘accused file-sharer’ is near-certain to breach the government’s ‘Every Child Matters’ directive where children are punished for others’ actions. The probability of cutting off the internet of those who need the internet to survive, the long-term sick, for example, or the disabled, further opens up the government to attack.

Is this the route that my government wants to pursue? Or should the government perhaps listen to its’ citizens’ outrage and stop neglecting them in favour of the power and massive wealth offered by the global corporations who’s only motivation is furthering said power and wealth?

Yours faithfully,
James Monaghan

Monaghan Media

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

Last year the chief of ISP iiNet Michael Malone labeled Conroy as “the worst Communications Minister we’ve had in the 15 years since the [Internet] industry has existed,” and this year the ISP pulled out of filtering trials, saying the filter would not work.

But criticism of Conroy don’t stop there. The proposed filtering system championed by Conroy – ostensibly for the protection of minors – isn’t even supported by those whose interests it claims to protect.

Last week Save the Children, Civil Liberties Australia and the National Children’s and Youth Law Center urged the government to abandon plans for Conroy’s filter saying that it will neither protect children from viewing explicit material, nor stop child pornography from being distributed. Let’s hope Conroy listens to these groups, because he doesn’t seem to listen to anyone else who says his plans are going nowhere.

Last night Senator Conroy unveiled a report entitled Australia’s Digital Economy: Future Directions while promising the government will “facilitate development of an appropriate solution to the issue of unauthorised file sharing”.

So what kind of imaginative, creative, pioneering ideas and solutions are available for Conroy to nurture and facilitate? From the report;

One solution proposed by copyright owners is a “three strikes” or “graduated response” proposal under which copyright owners would work together with ISPs to identify the ISP’s customers who are suspected of unauthorised file sharing and the ISP would then send a notice on behalf of the copyright owner to that customer advising of this allegation. After multiple notices, a series of escalated steps could be taken with respect to the customer’s account.

The “copyright owners” who submitted this proposal includes anti-piracy group AFACT, currently engaged in hugely expensive legal action against prominent ISP iiNet, blaming it for the copyright-infringing activities of its customers.

Good luck to Conroy in “facilitating” meaningful discussions between these outfits in the future. Their relationship must be at an all-time low already, and getting lower with every dollar-sapping court appearance in these difficult financial times.

But it’s not just the entertainment industry’s relationship with ISPs that’s proving problematic when attempting to find a “solution” to the piracy issue, it appears that ISPs have no time for Conroy either. Last week the Senator was awarded the accolade of “Internet Villain of the Year” by ISPs at the 11th annual Internet Industry Awards, even beating France’s President Sarkozy to the title.

Solving the piracy “problem” is hugely difficult and complex and will only be made more so by the already faltering relationships between parties who appear to have little respect for each other, even before the process begins.

The full report can be downloaded here (.pdf)

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

Mininova’s lawyer argued that the site is already taking measures to ensure rights holders can protect their content, and this amounts to more than they are required to do under the law. The site has a ‘notice and takedown’ policy and recently started offering an infohash filter where content owners can blacklist torrents.

Mininova’s case against BREIN was heard at the Utrecht court. Three judges have been appointed to the case. One of them is a replacement for a judge who was taken off the case a few weeks ago because he was connected to the entertainment industry. The hearing started at 1 PM with BREIN’s lawyer Dirk Visser.

Visser began by informing the court that Mininova has over 5 million daily users who use the site to download copyrighted content. A brief look at the site’s homepage clearly shows that they link to illegal content, and their business models is to make money off the millions of ads that are displayed, he said.

Mininova’s attempt to offer a distribution platform to publishers through their “featured content” section is nonsense, BREIN’s lawyer insisted. According to research conducted by BREIN 92% of the torrents on Mininova point to ‘illegal’ content, and the tag cloud with popular searches also shows that illegal content is what people are mainly looking for on the site.

In 2006 and 2007 BREIN and Mininova had lengthy discussions on how to deal with copyrighted content, Visser said. Mininova wanted BREIN to come up with specific infohashes that should be in the filter, and BREIN wanted Mininova to cover the costs. They never reached an agreement and the negotiations ended.

All in all Visser is arguing that Mininova aids in distributing copyright infringing works, and BREIN demands that the site installs a filtering mechanism that will put an end to this. Mininova will have to cover the costs of such a copyright filter themselves, they say.

Next up was Mininova’s lawyer Vita Zwaan. She started out by informing the court that this is a landmark case because it’s the first to make a judgment about the legality of the BitTorrent platform in The Netherlands, pointing out that this case obviously has far reaching consequences.

Zwaan further told the court that, while the hearing was taking place, approximately 180 torrents would be added to the site’s database and that Mininova has no knowledge of the content currently tracked by these torrents. In addition Zwaan explained that Mininova has partnerships with content owners to distribute works though their distribution platform.

On top of this, Mininova offers several options for content owners to take ‘infringing’ torrents off the site, the lawyer explained. Together with the Motion Picture Association (MPA), Mininova started experimenting with a content filter through which torrents can taken off the site by the content owners.

The filter trial is a success according to Mininova’s lawyer, who quoted one of TorrentFreak’s recent articles to point this out. BREIN also had to option to participate in the filtering trial so they could see for themselves how it works, but BREIN rejected this offer.

It is unclear what BREIN’s demands actually are according to Zwaan. They want Mininova to implement “preventive measure” but are vague about the details. However, BREIN doesn’t want to provide the info-hashes for the torrents it wants removed, and argues that this is something Mininova should do themselves. This is the opposite of what the MPA (a member of BREIN) is doing now.

According to Mininova’s lawyer, this disagreement on who should provide information on what to filter is what the case is all about.

A keyword filter that was proposed by BREIN is unworkable according to Zwaan because it would result in too many false positives. A filter for the keyword ‘office’, as BREIN suggested, would result in the removal of 92 torrents linking to “Open Office” she said.

Mininova’s lawyer then discussed some of the costs Mininova made thus far to take down torrents upon request from copyright holders (though the old system). She said that 155,876 takedown requests have been reviewed which cost the site 250,000 euro ($350,000). In addition, Mininova invested several thousand euros in the content filter.

Zwaan went on to explain that Mininova is not a necessary nor sufficient part of the BitTorrent download process. Unlike The Pirate Bay they don’t host a public tracker, and neither do they offer a BitTorrent client through which users can download torrents. BREIN argued otherwise and this is incorrect Zwaan said.

Towards the end of her plea, Zwaan argued that Mininova is not infringing the rights of various copyright holders as BREIN stated. She cited several cases in and outside The Netherlands to make point out why, and pointed out that The Pirate Bay may not have been found guilty if they had a notice and takedown policy like Mininova has.

After a short break the hearing continued briefly and the judges asked both lawyers for clarification on some issues. Mininova’s lawyer was asked about the moderators that Mininova has, and why they remove porn but not copyrighted content. Mininova explained that the moderators handle problem reports from users (about virusses, porn, etc.), while the Mininova admins handle the copyright complaints. The site has around five moderators, a number which the changes from time to time.

After roughly three hours the hearing ended and it’s now up to the judges to come up with a decision. The verdict is due on July 15. Erik Dubbelboer and the other Mininova founders think they have the law on their side. “We have confidence in the outcome of the case and we believe Mininova will continue to exist,” Erik told TorrentFreak.

This is a developing story, info might be added.

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

The blacklist contains around 2,400 entries and presuming that the URLs are descriptive of the material they link to, the list appears to be dominated by pornography, with a couple of legal YouTube-like adult sites making the list. Of course there are also a worrying number of sites appearing to deal with images of child abuse and no-one could seriously complain about their inclusion – but that was never really an issue.

What bothers people more are the significant number of sites on the list that don’t seemed to be linked to this type of abuse. In addition to religious sites (both pro and anti), various Wikipedia pages, euthanasia sites and a travel agent, a dentist’s website even made the list.

Other inclusions include several poker sites and UK-based betting site, Betfair.com, which was banned in Western Australia during January 2007. The company appealed saying the ban was unconstitutional and in March 2008 it was overruled. However, Betfair.com remains on the list.

Speaking of the leak, Australia’s Broadband and Communications Minister Stephen Conroy says the list is not the official ACMA blacklist. He says that while the published list has around 2,400 blocked URLs, the official ACMA blacklist contains roughly 1,050.

“There are some common URLs to those on the ACMA blacklist,” he said. “However, ACMA advises that there are URLs on the published list that have never been the subject of a complaint or ACMA investigation, and have never been included on the ACMA blacklist,” he said.

Censorship of any type can lead to claims of undemocratic behavior and as discussion over these blacklists grew during recent months, there were concerns that many torrent sites would end up being blocked as the ’system’ short-cutted ineffective copyright law, but it appears that this has not come about on a significant scale.

However, two BitTorrent sites – the now-defunct TorrentSpy.com and TorrentFive.com – both appear on the leaked list but it’s impossible right now to say if they appear on the ‘real’ ACMA list. There is no indication why these sites are marked to be blocked, but presumably at some point someone objected to some content indexed. Neither site operated a tracker so banning the sites’ URLs would not achieve much, since the content would be already available elsewhere – the sites in question offered an index, much like Google.

TorrentFreak itself is no stranger to being included on various blocklists, even though the site operates completely legally. We have no proof why companies, schools and other organizations would add us to their blocklists, but suspect that it’s purely because we have ‘torrent’ in our URL. And here lies the problem.

The worry remains that without overview and without those that maintain these blacklists being held to account, many other legal sites could have their domains blocked too. It’s just a shame that the only way people can find out if they are blocked is if individuals leak these lists for all to see – then of course the lists become a magnet for those drawn to illegal, sickening content. It really is a double-edged sword.

Hopefully no more torrent sites will be added to these blacklists – the censorship of criminal material they conduct themselves is more than sufficient and the torrent community is as keen as everyone else to keep their sites safe for all.

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

Media Protector operates in a similar way to tracking company Digiprotect, who currently work with lawyers Davenport Lyons in the UK. It connects to BitTorrent swarms, eD2k and other filesharing networks, and harvests IP addresses of those sharing copyright works without permission. Media Protector then works with lawyers to force ISPs to disclose the personal details of those allegedly sharing files, sending them letters ordering them to pay a ‘fine’ (out-of-court settlement) or face legal action.

“We are working today with a lot of international rights-holders and leading production companies — including Hustler, the world’s largest adult entertainment company — and have detected well over 200,000 copyright infringements in Germany alone,” Media Protector founder and Managing Director Rainer Strassmeir told Xbiz.

Strassmeir believes that aggressive anti-piracy enforcement is the key to embedding a type of fear in the illegal downloader. He claims it soon becomes known which content producers chase pirates, with those that do witnessing a corresponding decrease in illicit downloads. He also believes that the decrease in piracy leads to an increase in retail sales.

Anti-piracy company Digiprotect has been open about its aims – it says it helps clients “turn piracy into profit”, although the lawyers it works with in the UK deny that there is any profit motive, rather their actions are purely for anti-piracy purposes. Strassmeir isn’t embarrassed to say that he tries to generate profit from piracy either, as he states that his customers “enjoyed a new revenue stream by effectively monetizing copyright infringements.”

Last year, the evidence collected by Media Protector was called into doubt. A recipient of a 700 Euro compensation demand for unauthorized uploading was actually operating a client which was modified never to upload, thus making infringement impossible.

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

While some producers, directors and actors actually believe that BitTorrent and other filesharing tools help to boost the fanbase of films and TV-shows, this group disagrees. Signed by a staggering 116 names including the likes of directors Sir Alan Parker, Mike Leigh and supported by several entertainment industry groups, the letter claims:

At a time when so many jobs are being lost in the wider economy, it is especially important that this issue be taken seriously by the Government and that it devotes the resources necessary to enforce the law.

Ignoring for a moment that notably they make no mention of job losses in their sector, one of the problems with their demands is that the law they seek to enforce is civil law, not criminal.

Beyond employing judges there is nothing more that the government can do to enforce it. That is the problem with copyright law, it’s hard to know what’s legitimate and what’s not, what can be copied and what can’t, without checking with the rights holders first. This was exemplified perfectly earlier this year, when the IFPI sent out takedown notices for Travis tracks, despite the actual copyright holders, Travis, having already given permission to distribute.

The bigger problem comes from their data, the 98 million illegal downloads and streams. While we know TV shows are popular, our own data shows that British TV rarely features in the top 10. Movie downloads are more fleeting, with a certain bias towards the newest films, with a few exceptions. Their figures are also questionable; while we count downloads, we can’t quantify them with a figure for the UK.

Yet, if their stats on downloads are of questionable accuracy, it’s nothing compared to the power they ascribe to the ‘almighty ISP’. They believe that ISPs have the power to stamp out file sharing, stopping people from downloading TV shows and movies; they just need a prod. In this belief they are sadly mistaken.

Again, recent news has shown how hard it is to control access to even one image in the UK, on a cut-and-dried subject like child pornography. Being able to determine if something is infringing copyright or not would require huge lists of content, and real-time examination of all Internet traffic. Not just deep packet inspection, but an all-invasive Big Brother monitoring system, beyond the dreams of even the most totalitarian dictator.

Of course, those that bother to check facts know that not only is such a thing illegal (criminally illegal, not just civil) but that the tools they’ll want to use just don’t work. The problem is highlighted by Michael Malone, CEO of ISP iiNet, currently under attack from various movie studios, “I think they genuinely believe that ISPs have a secret magic wand that we are hiding and if we bring it out we can make piracy disappear just by waving it.”

And, when just this year it was reported that UK commercial TV broadcasters “enjoyed a bumper April with the highest viewing figures in five years”, that total TV viewing was up 10% year-on-year, and “the valuable yet hard-to-reach 16 to 24-year-old demographic [i.e the typical file-sharer] watched 4.9% more commercial TV in April year-on-year and saw 12% more ads,” you have to wonder exactly what the problem is.

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.

When we broke the news on 18 November we noted that things would be very different this time, particularly when the frailties of the evidence gathering were exposed by the wrongful accusation of innocent parties.

It didn’t take long. On 29 November The Guardian reported that a couple in their sixties were horrified that they had been wrongfully accused of illegally sharing the gay porn movie Army Fuckers.

Many people have commented on these developments, and now it’s the turn of a sex writer. Placed by Forbes in their Web Celeb 25 and named by Wired in their Faces of Innovation 2008, Violet Blue is, amongst seemingly a million other things, sex columnist for the San Francisco Chronicle and a best seling author. She also lectures cyber-law classes at UC Berkeley and is a Geek Entertainment TV reporter.

Writing in her blog, Violet Blue headlines her article “The New Face of Porn Racketeering?” Pointing out that this isn’t just any old porn, but “a Nazi gay male hardcore flick”, she goes on:

It’s sort of like if someone came up to you on the street and said, ‘hey I think you slandered me in a way that could be really embarrassing to you if anyone found out — but if you give me a couple hundred bucks, I won’t take you to court [where you’d lose even more money].’

Having enjoyed the work of writer Roald Dahl in both written and TV form (Charlie and the Chocolate Factory, James and the Giant Peach and the genius of Tales of the Unexpected), Violet’s description of how she sees this operation reminded me again of something i’d mused upon earlier.

In 1987, Playboy published a short story by Dahl, entitled The Bookseller. The story features a gentleman called William Buggage who ran a rare book shop in London with his secretary Miss Tottle. Their business model was a little unconventional. Every day the pair read the newspaper obituaries looking for the deaths of married men who had left a wife behind. Armed with this information, they would send invoices to the grieving widows demanding payment for books their husbands had supposedly ordered. The books contained European hardcore pornography and ’sexual deviance’. Rather than face the ruination and humiliation of being named in court or the press, the widows would quietly pay up.

Those familiar with Dahl’s work will know that this master story teller is famous for the ‘twists’ revealed at the end of his stories, and The Bookseller is no different. In the end, Mr Buggage and Miss Tottle were found out when they tried to get money from a widow who revealed that her husband – far from quietly titillating himself with porn – was in fact, blind.

While most people acknowledge that Davenport Lyons have made some pretty big mistakes, no-one is suggesting that they or their clients simply make things up. However, for every set of allegations they get right (around 50% admit infringement and pay up), they absolutely get some wrong. They wouldn’t have expected that their allegations of sharing Atari’s Race 07 would’ve landed on the mat of a pair of pensioners and we will see if they choose to withdraw the allegations that the other pair of pensioners shared Army Fuckers. At the moment they find themselves in the position of the blind man – in receipt of a sordid accusation against them and absolutely no way of defending themselves.

In a statement to The Guardian, Davenport Lyons said: “We allow ample opportunity for the recipient to respond, and if they have done nothing wrong they have no reason to be concerned.”

The truth is much less straightforward. No matter how people defend themselves in the face of these allegations, Davenport Lyons continually argue that they are right, and the accused is wrong. When I pointed out the Dahl story to someone involved in the cases, this was the reply, which is an adaptation of a real response to those who try to plead their innocence:

It’s a shame for Mr. Buggage and Miss Tottle they didn’t have the knowledge and expertise of messrs Davenport Lyons. They could have easily argued in that case that “it is irrelevant for the purposes of our clients evidence how the European books of pornography and sexual deviance (“the Work”) came to be acquired in your blind late husband’s name. What our client’s evidence shows is that the Work was made available from an Internet connection registered in your late blind husband’s name on a certain date and time”

But while there are certain similarities with Dahl’s story, one point appears entirely mirrored. While the widows in The Bookseller pay up to avoid appearing in the press, those wrongfully accused by Davenport Lyons are going to the press for protection. Those that don’t have age on their side don’t find the going quite so easy.

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

Recently their efforts to make money from alleged pirates was picked up by the mainstream press, because an elderly couple was incorrectly accused by them of pirating an Atari game, Test Drive Unlimited. It is of course a stereotype to think that people over fifty don’t play games, but with the help of consumer magazine, Which? Computing, the lawyers were forced to drop the case.

If anything, this suggests that the evidence they gather for use against alleged sharers is not as strong as it should be. In fact, this is not the first time that a case has dropped before it went to court. Apparently, the lawyers that represent the various copyright holders will only make their case when they have a sure win – that is, when the defendants fail to show up. Others who dig in their heels and refuse to pay learn that the consequences aren’t nearly as bad as the law firm would have everyone believe.

Meanwhile, thousands of UK citizens are receiving letters in which they are accused of downloading music, games or more recently, adult entertainment. In these letters, they are asked to pay a few hundred pounds, or else they are threatened with the prospect of being dragged through court, where the fine – if the law firm is to be believed – will be multiplied several times over.

There aren’t any precise figure on how many alleged pirates have paid up, but based on earlier comments from the law firm itself, it’s believed to be between 40 and 60%. It’s not unthinkable that some copyright owners are making more from this type of pirate-chasing than they do from sales of their actual products. Quite an innovative business model actually, especially since in many cases it guarantees a revenue stream for sub-standard products that otherwise simply wouldn’t sell.

But now, according to The Register, computer game manufacturer Atari has had enough, as they have canceled their collaboration with Davenport Lyons and Logistep. Exactly why is open to speculation, but it is difficult to find a single positive article about the activities of these companies, particularly when recent and rather more potentially embarrassing actions are taken into consideration. It’s not surprising that they choose to distance themselves from the operation.

In a comment to El Reg, Atari said that it will “always retain and reserve the right to protect our intellectual property from illegal copying and piracy.” An interesting comment, since cashing in on alleged piracy happens after the offense, and has nothing to do with protection. However, this statement seems more of an attempt to show that this withdrawal doesn’t indicate that Atari is going soft on piracy.

Of course, copyright holders have every right to protect their material, or even make up for the losses they claim to suffer. Whether it is the right thing to do is questionable though, especially when the tactics are as aggressive as they are in these cases.

The complete lack of transparency in respect of the evidence gathering techniques just makes matters worse, and every negative aspect is compounded when people like Simon Davies of Privacy International speak about facets of the operation in very unfavorable terms. “This is appalling, it breaches a number of fundamental human rights,” he said. “They risk bringing the law into disrepute – just because lawyers can do something it doesn’t mean that they should.”

A great example of where copyright has gone wrong has emerged recently. In a leaked contract between DigiProtect (copyright protection outfit) and Evil Angel (content producer), the copyright was actually transferred in order for DigiProtect to make it available on filesharing networks.

“LICENSOR grants DIGIPROTECT the exclusive right to make the movies listed in Appendix 1 worldwide available to the public via remote computer networks, so-called peer-2-peer and internet file sharing networks such as e-Donkey, Kazaa, Bitorrent, etc. for the duration of this agreement.”

So, DigiProtect makes the files available to cash in on the people who attempt to download the files, but not to protect their intellectual property in a way copyright law was put in place for. In fact, this has nothing to do with copyright protection, they are simply exploiting the system. Probably a good thing that Atari got out before it all falls apart.

The question now is how are the other publishers feeling now that Atari has had enough? Since they are based in the UK, the focus now falls on CodeMasters, who are still pursuing people over Colin McRae Dirt, but does the return on the project cancel out the mountains of bad PR it generates? Time will tell.

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