UK File-Sharers and the “Wireless Defense”
Written by enigmax on July 17, 2008As the legal issues surrounding file-sharing heat up in the UK, more and more recipients of compensation demands are considering their defense. One such possibility is the ‘wireless’ or ‘WiFi’ defense. We take a look at the issue and try to shine some light on what people can expect, should they take this route.
As long as there have been lawsuits against alleged file-sharers, there have been people claiming that they did not do what the anti-piracy agencies are alleging. In a practical world, although it should be possible for competent groups and individuals to identify an IP address infringing copyright, it is known worldwide that many anti-piracy outfits are simply not competent. They send warnings or compensation demands to laser printers and hundreds of other non-infringing users and devices, such as the user in Germany recently who proved to be using a client which wasn’t capable of infringing. Even the MPAA acknowledges that it’s so difficult to gather evidence to use in these cases that feels it shouldn’t have to provide any.
Let’s imagine for a moment that these anti-piracy tracking companies operate 100% flawless systems (I know, I know…) That they have opened up their systems for scrutiny, and that they can correctly identify an infringing IP address 100% of the time. Surely if we reached this point, there can be no further dispute? Well, not quite. Although the identification of an infringing IP address should be possible, in the absence of spy cameras it is absolutely impossible to identify the user sitting at the keyboard at the time of the alleged infringement. Add a wireless router into the mix and the infringer on the network could be just about anyone within its range. Add an unsecured wireless router in a densely populated area, and it’s happy hour at lawsuit hotel.
However, this doesn’t put off lawyers from sending out compensation claims as they only target the bill payer. Since the UK law firm Davenport Lyons are leading the chasing of alleged file-sharers in the UK, we’ll look at their cases. Davenport acknowledge in their compensation-demanding letters that the bill payer may not be responsible for the infringement - but nevertheless, that doesn’t stop them from threatening them anyway. So what happens when a bill payer is accused of an infringement he knows he did not commit?
Recently, we covered the story of a German case where the Regional Court in Frankfurt declared that if an infringement takes place on a wireless network, it is the responsibility of the infringer, not the network owner. Of course, for Davenport Lyons this was quite a problem due to the fact that for over a year now they’ve been saying that German law would be echoed in the UK, and that wireless network owners would be found liable for activities carried out on them.
Now, Struan Robertson, a technology lawyer with prominent law firm Pinsent Masons (the company behind the well respected Out-Law.com) has confirmed what we’ve suspected all along - that a UK court would not hold the bill payer responsible if it’s clear they weren’t responsible for the infringement:
“The onus is on the party bringing the action to convince the court on a balance of probabilities that the person being sued is responsible for the infringement,” he said. “The legal wrong isn’t that you left your network open, it’s the file-sharing.”
In a civil case in the UK, this phrase “balance of probabilities” is very important and roughly means “is it likely the defendant carried out the act, based on the evidence provided?” It’s worth noting that higher levels of proof (as in a criminal case) are not required, as Robertson notes: “The trouble is, if you use the Wi-Fi defense, absent of any computer evidence to back either party’s case, the judge might simply think that you’re lying. That’s one reason why you’re asking for trouble by leaving your Wi-Fi network open to the world.”
Noting Robertsons comments, in preparing a wireless defense, evidence from a router showing that others have accessed the device (multiple MAC addresses in the logs, for example) could prove vital in tipping the scales in the favor of the defendant. Presuming that the case ever gets to court, that is. There isn’t any requirement to hand this evidence over beforehand, but indicating that it could be produced in court would be helpful. As Logistep provide their data to the court in spreadsheet format, that should also suffice when offering evidence in defense.
Information received by TorrentFreak further indicates that some of those who have robustly denied Davenport’s allegations, have found the law firm backing down. Now it appears that in some cases they seem to be backing down when faced with a strong “wireless defense”. This is quite a turning point since up to now, Davenport have insisted the bill payer is always responsible for what happens on his connection. Interestingly, according to documents shown to us, Davenport state that although they won’t take any further action now, they would take action if the user’s IP address is seen infringing in the future, and that proceedings would be made against the bill payer for failing to secure the network against 3rd party access. Back to Mr Robertson’s comments:
The legal wrong isn’t that you left your network open, it’s the file-sharing.
Moving on…..
The dangers of mounting a weak or non-genuine “wireless defense” were outlined earlier by Mr Robinson, so this is a clearly a very serious issue. However, there are also other areas where infringement could’ve been carried out by someone other than the bill payer, not from outside but from within the family unit - by children for instance. Out-Law has kindly clarified the position in the UK:
“Both Scots law and English law provide that a parent generally is not liable for the actions of their child, and that a civil judgment is as binding on a child as it is on an adult. There are, though, some circumstances in which a parent can become responsible for the child’s actions. That can happen when a child causes injury to others or where a parent has previously authorised or subsequently ratified the child’s unlawful act.”
There is little doubt that at least some of the people accused by Davenport have committed some sort of infringement. Equally we have seen lots of evidence that shows that many have not. Many bill payers are wrongfully accused due to the actions of others and since the Logistep tracking company (and others like them) won’t open up their software to outside scrutiny, it’s impossible to say how many others are being wrongfully accused simply through errors in the system.
Whatever the truth, one wrong accusation is 100% unacceptable.
Previously: EU to Extend Copyright, Break Royalty Monopolies
Next: Ubisoft Steals ‘No-CD Crack’ to Fix Rainbox 6: Vegas 2
28 Responses
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Good article, i hope it helps people in the UK.
“Whatever the truth, one wrong accusation is 100% unacceptable.”
Depends who you ask :)
If you ask the RIAA 100 wrong and 1 right is good enough, after all… we *all* are guilty of *some* infringement right? (like they said in the Tanya Andersen case)
Cheers!
Ryan
http://www.ezee.se
True, so true…
Finally, some sense is being knocked into these people….
IT IS YOUR CHOICE TO SECURE YOUR WIRELESS. Just because you decide not to (Or dont even know how) means ABSOLUTELY nothing.
Not only does it mean nothing, you can HACK A WIRELESS CONNECTION IN LESS THEN A MINUTE. Just because its secured means nothing.
This is so stupid I cant even talk more about this its hurting my brain..
If the media-mafia goofs have their way, they can then sue the ISP providers because the infringement took place on their service (and by their customer, ridiculously accusing the providers with complacency in committing copyright infringement).
The media-mafia will take a mile when given an inch so the ISP providers should view any pro-media-mafia judgements with caution.
@4
Try to hack my wifi “IN LESS THAN A MINUTE.” I assure you that with WPA2 encryption it would take you a lot longer than a minute to get access.
Funny part is: UK is pushing their residents more then USA :)
I think USA artists are losing $ cause of file sharing, then why UK gov is pushing and punishing UK residents too much ?
As i can see, USA anti piracy doesn’t care about pirates at all, i never heard of punishment or sue someone in USA, always bad news coming from UK LoL
I think UK anti piracy should calm down for a while and learn from USA little bit.
I thought USA is the baddest country for pirate boys, but i was wrong!
UK = the baddest country for pirates.
Andrew - they said that about WEP.. err..
so what happens when someone hacks into or uses and open network of a (mafiaa funded) judges/parliament members wifi network and shares? I’d bet the wifi defense would work then.
This is way WAY too similar to Cory Doctorow’s article “Getting tough on copyright enforcers”.
http://www.guardian.co.uk/technology/2008/jul/01/internet.copyright
I know we’re all pirates here, but come on. This is plagiarism.
I lived in the UK for a few months and while I was there I payed for my internet connection with my US credit card and downloaded heaps of copyright stuff.
What could they do? Chase me to the US? Ha good luck.
are you blind or insane? This article is fuck all like Cory’s post.
Nice try pal, but you are clueless
http://www.youtube.com/watch?v=_TuuTCnCVOA
f*ck your WPA2.
My point still remains the same, the sheer fact that its unsecured or not should be irrelevant.. sure it decreases the probability of someone on your network.. but so what, there’s still a chance so it shouldn’t even be considered. (Im on the pirate side btw)
The company behind almost every phone line in the UK is urging people to “share” their wireless routers.
http://www.btfon.com/
@14… Not sure i like the sound of that. Even though they say its secure, nothings ever completely secure. They also mention that visitors using your connection don’t count towards your usage allowance which also sounds suspect.
macchanger FTW !!!
Time to start generating random MAC each time :)
Prove THAT ya ba$tard$
New technology, old world.
Technology is moving faster then these dumb ass politicians, law makers and men of power can even dream of..
Say goodbye to control you pieces of shit, your time has come.
Oh and funny thing about technology.. it takes a bit of time to impact the world.. so if you think about it.. we already won.. and your just now realizing it.
@15 they could do that by linking the owner’s mac addresses to the paid bill thingy while everything else doesn’t get counted, with some router changes I guess…
@ #6… Then you’re not going to be mounting a robust wi-fi defense anytime soon? Cause you’re convinced yer WPA2’s a +20 Wizard with Balls of Fire?
Then you wouldn’t be interested in this information: “-=Xploitz=- VIDEO: Volume #3 “E-Z WPA/WPA2 Cracking Tutorial …”
Secure wireless is hilarious, even as science fiction. Flash, look out!
@10
Just read that article.
It references the laser printer.
That’s it.
Everything else is completely different from this article.
Not a SINGLE sentence was copypasta.
Conclusion-
You’re a moron.
So, multiple MAC addresses in the logs makes it less likely that they’ll believe you did it?
for linux:
sudo ifconfig eth1 down hw ether 01:01:A0:A0:FF:FF
sudo ifconfig eth1 up
Yay, new MAC address!
‘When I first installed and tested the wifi, it ran really fast, but when I setup the recommended (not REQUIRED) level of security passwords, it slowed right down. So to get the speed I payed for, your honour, I had to…’
@21
There’s an even easier way in linux, just use:
# macchanger -r eth1
for a completely random address every time.
I’m an American living in Japan at the moment. I am DL the shit outta Waffles, Demonoid, and TPB. I am not worried as I don’t think that any of these agencies could communicate with my Japanese ISP.
Maybe, but..
What do ya’ll think?
good article
the number 1 strategy against filesharers is bullying
bullying is illegal at school, work, on the street, in hospital, at church, but the media cartels prefer it above all
http://www.h33t.com
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