More than a year after the first case was filed there is still very little consensus in the rulings handed down by various judges. Some simply side with the copyright holders, allowing them to contact the Internet providers of the alleged infringers to obtain their personal details. Other judges have dropped cases, arguing that they were filed in the wrong jurisdiction or that an IP-address is not a person.

Hoping to get a case at the Indiana Southern District Court dropped as well, a Doe who saw his IP address listed in the court documents wrote to the judge. The case in question is Hard Drive Productions vs. Does 1-21, which accuses 21 does of sharing adult content via BitTorrent.

Most of the judges have no clue that the copyright holders who file these lawsuits are not really seeking a full trial, but merely want to collect settlements. The Doe in question explains this in the letter to the judge, and adds that the evidence the copyright holders claim to have is highly unreliable.

“These lawsuits have been rife with shoddy ‘evidence’ accumulation and wrongful harassment of Internet subscribers with no effort or evidence to identify the actual infringer behind an I.P. address rather than just demanding money from the person registered as the subscriber of the Internet connection,” the letter begins.

In his letter the Doe further stresses that running an open wireless network is not a crime, weakening the claims of the copyright holders even further. People have the right to offer an open connection to outsiders. There is no law that prohibits it and there are several wireless routers that have a second (unsecured) connection as a feature.

“I hope and plead with you to consider the interests of neighbors in being able to have friends over with their laptops without having to draw up legal agreements and waivers before they can connect to the Internet and share our I.P. address.

“Not all unsecured networks are due to a lack of technical knowledge. Some of us leave them open to friends and others out of a sense of community. An Internet connection is an important thing for people today, for better or for worse. I fear that we are on our way to having Internet connections become like so many things in our country that must be locked up and hidden out of fear an intimidation,” the letter continues.

The Doe in question is right. Unless an Internet provider explicitly forbids unsecured wireless networks there is nothing wrong with running one. The person who pays for the account is not automatically responsible for all those who use it, but allowing copyright holders to continue their pay-up-or else scheme does put account holders at risk.

The letter sent by the Doe didn’t go unnoticed by the anti-piracy lawyers. Interestingly, however, their response didn’t dispute any of the arguments put forward, but merely discredited the source of the letter. According to attorney Raphael Whitford, the judge is being misled by pro-piracy activists.

“It is highly unlikely that this letter was written by one of the defendants in this case as the writer proclaims. The complaint was filed on May 20th and the anonymous letter was written less than two weeks later, before any discovery action was taken by plaintiff.”

“It is difficult to imagine one of the defendants stumbling across the exhibit attached to the complaint, and identifying their own IP address as one listed, in that timeframe. Counsel for the Plaintiff believes the letter to be submitted by a pro-piracy organization with an agenda of keeping the internet as a safe-haven for copyright infringement,” Whitford writes.

The judge has not yet responded to either of the letters, but the Doe who is accused of being part of a pro-piracy lobby did. In yet another submission to the court the Doe refutes the claim, while fanning the flames even more.

“I do not support piracy any more than I support abuse of the legal system to enable extortion and threatening pay-up-or-else schemes,” the Doe writes in another lengthy letter.

A few days later this was followed by another letter which appears to come from the same person, discrediting the copyright holder’s evidence again. In this letter the Doe also attaches rulings where federal judges have dropped similar cases because IP addresses don’t equal a person.

The plaintiffs attorney nor the judge have responded to these last two submissions.

It will be interesting to see how and if the actions of this lone Doe will be received by Judge Sarah Barker. The good thing is that the judge is now at least aware of the true intentions of the copyright holders, and the fact that granting the subpoenas pretty much kills the right to run open wireless networks.

The future will tell if it made a difference.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

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.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.