In Denmark, the local anti-piracy outfit Antipiratgruppen has given up on trying to get illegal file-sharers convicted and has announced that it will no longer take them to court. This decision is the result of Antipiratgruppen’s inability to gather solid evidence, which has resulted in several lost court cases in the last year.
“It requires very strong and concrete evidence to have these people convicted. We simply could not lift the burden of proof,” said Antipiratgruppen lawyer Mary Fredenslund when explaining the decision to Politiken.
In just a year, four cases against alleged pirates have come before the High Court in Denmark and the overall result for the copyright holders has been negative. Three of the defendants were acquitted due to insufficient evidence, and in the one case where a file-sharer was convicted, the defendant had confessed.
Defense attorney Per Overbeck says that in addition to these outcomes, cases against two of his clients have been dropped in recent years. “Antipiratgruppen has acknowledged that they can not get people convicted without either catching them in the act or threatening them to confess,” Overbeck said. “In practice, this means that without a confession there is no case,” he added.
Per Overbeck and Antipiratgruppen’s assessment that recent High Court rulings make it virtually impossible to get individuals convicted for illegal file sharing are supported by a recent Government report from the Ministry of Culture.
According to the report, IP-addresses can only be used to identify the person paying for the Internet subscription, not the person who actually downloaded the files. The courts have ruled several times that in terms of evidence, an IP-address alone is insufficient to prove guilt.
In one case a defendant walked free after arguing that that someone else must have accessed his wireless router to download copyright infringing material.
Despite these legal setbacks for copyright holders in Denmark, it is worth noting that Danish anti-piracy tracking company DtecNet remains the main partner of the RIAA and other music groups in countries where governments are looking to implement three-strikes policies to get alleged file-sharers disconnected from the Internet.
The evidence DtecNet gathers also consists of just an IP-address. Indeed, there is no known anti-piracy method to discover who is sitting at a particular keyboard, on any particular computer, at any given time.
In the on-going trial of AFACT v iiNet, DtecNet gathered the evidence used in the case. Under cross-examination a computer forensics investigator – who was previously a key witness in the 2004 KaZaA trial – admitted that any ISP account could have multiple users in the same household, and could have other unauthorized 3rd-party users if a wireless router was compromised.