All of these cases are initiated with an IP address as the main piece of evidence. This address is usually collected by a file-sharing monitoring company using software to connect to the BitTorrent swarm where the infringing files are shared.
A common problem with this evidence is that it generally can’t identify a movie pirate. In fact, some evidence gathering techniques are so sloppy that it’s not even possible to confirm whether the ISP account connected to the IP-address was actively sharing the pirated file in question.
This issue has also been brought to the attention of the court in the ongoing case between the “Elf-Man” movie studio and Ryan Lamberson. The counsel of Lamberson has been trying to get more information on how the “investigators” gathered their evidence, but thus far without result.
This week the attorney submitted a motion to compel, hoping that the court would order the movie studio to have the German-based Michael Patzer and Daniel Macek testify in Spokane, Washington, so they can answer crucial questions about evidence collection.
Among other things, the defendant would like to know how the tracking outfit can be so sure that the IP-address wasn’t spoofed, and how they know that the defendant was the one who used the IP-address to share the film. The defendant’s attorneys doubt that the tracking software is capable of doing this.
“Apparently, Mr. Patzer’s software does not account for the numerous ‘false positive’ possibilities, including the accuracy of the harvested IP addresses, even though the person in the swarm may be ‘spoofing’ his or her IP address, since certain bit torrent software allows for IP address spoofing,” defendant’s attorneys write.
“Apparently, the software has no way to verify the actual person who might be in the swarm, even if the IP address is accurate. The software does not engage the person in the swarm to inquire as to the reason for the activity, including fair use reasons for being in the swarm. Indeed, there are no corroborating witnesses at all…”
In addition, the defendant’s legal team doubts that the “investigators,” who are closely involved with numerous lawsuits in the United States, have a proper license.
“The investigators are engaged in activity which is covered by the Washington State Private Investigator statutory provisions, but there is no evidence that Messrs. Patzer or Macek are licensed or bonded [under theState’s regulatory scheme governing private investigators],” they write.
The Washington State legislature defines a “private investigator agency” as an entity “engaged in the business of detecting, discovering, or revealing” “evidence to be used before a court,” which appears to be exactly what they are doing.
It wouldn’t be the first time that the PI angle has caused trouble for a file-sharing monitoring firm. Several years ago the RIAA’s technology partner MediaSentry was found to have acted illegally in several states because it operated without the appropriate and required paperwork.
It will be interesting to see how this angle is played out in the current case. Generally speaking these tracking outfits, which are often the main drivers of these types of lawsuits, are not too eager to talk.
Whether they have something to hide remains to be seen. A recent presentation from the “Anti-Piracy Management Company,” which is believed to be spinoff of the same tracking outfit Michael Patzer and Daniel Macek are connected to, is telling.
“Paragraph 2 in regards to software consultant (i.e., he can talk about software issues), & we’re hoping the judge won’t question his qualifications too much,” the leaked presentation reads, seemingly referring to Macek.
To be continued.