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By: MarkJ - 14 February, 2011 (6:50 AM)
p2p copyright uk ISP file sharing lawThe controversial UK solicitors firm ACS:Law (Andrew Crossley), which accused thousands of broadband ISP customers in the UK of being involved with "illegal" internet copyright infringement (P2P), is in more hot water today after an ex-employee claimed to have left the company because some of those it targetted "were clearly not guilty".

ACS:Law, which demanded hundreds of pounds in settlement money and legal fees from those it pursued with "bullying" letters (i.e. speculative invoicing), "ceased trading" at the end of January 2011 but is still the subject of both a Solicitors Disciplinary Tribunal (SDT) and an on-going legal case (here).

The Ex-ACS:Law Worker said (BBC 5 Live):

"What I gradually became aware of was that some people were clearly not guilty. Some of them were, for instance, old ladies who never downloaded files - they just didn't have security on their wireless connection. And some of the people ringing up came from pretty bad circumstances."

Firms like ACS:Law use IP address details from public P2P (File Sharing) networks to target those whom they believe to be responsible. However this kind of data is prone to error and can at best only identify the owner of a connection and not individual users, especially on a shared local network (e.g. a library, business, shared Wi-Fi network etc.).

On top of that the IP address itself, one of which is asigned to your computer each time you go online, may not be credible. In fact they can easily be spoofed, redirected or even hijacked (open Wi-Fi networks). Likewise the log's collected by such firms might be slightly out of sync with ISP logs, which can end up catching the wrong users or make such data completely useless.

Judge Birss QC said at ACS:Law's hearing last week:

"[Those targetted] may think £495 is a small price to pay and settled immediately. That is a matter for them. However it is easy for seasoned lawyers to under-estimate the effect a letter of this kind could have on ordinary members of the public. This court's office has had telephone calls from people in tears having received correspondence from ACS:Law on behalf of Media CAT. Clearly a recipient of a letter like this needs to take urgent and specialist legal advice. Obviously many people do not and find it very difficult to do so.

Some people will be tempted to pay, regardless of whether they think they have actually done anything, simply because of the desire to avoid embarrassment and publicity given that the allegation is about pornography. Others may take the view that it all looks and sounds very official and rather than conduct a legal fight they cannot afford, they will pay £495. After all the letter refers to an order of the High Court which identified them in the first place. Lay members of the public will not know the intricacies of the Norwich Pharmacal jurisdiction. They will not appreciate that the court order is not based on a finding of infringement at all.

One odd thing is that if tens of thousands of letters have been sent threatening legal action, where are all the legal actions? The Patents County Court is clearly an appropriate court to bring a claim against an individual for copyright infringement and yet there are only 27 cases pending. Surely out of 10,000 letters it cannot be that only 27 recipients refused to pay."

As it stands today the law (civil and criminal) has to be applied to the individual that is causing the offence, yet if an IP cannot be relied upon to do that then such evidence becomes at best highly ineffective.

Judge Birss added:

"This question of unsecured internet connections and infringing by "allowing others" is a critical one since Media CAT's monitoring exercise cannot and does not purport to identify the individual who actually did anything. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router."

The ruling also raises serious questions for the Digital Economy Act (DEA), which relies upon identical "evidence" to identify online copyright infringement. The act, which will begin by sending out notification (warning) letters to those it targets, will hopefully rely on a larger number of infringement reports (CIR) before actually sending anything (Ofcom has yet to finalise the number).

This may help to reduce the risk of targeting the wrong connection but it still cannot reliably be used to identify the actual offending individual themselves. It's hoped that the warning letters may be enough to encourage end-users to keep tighter control of their home networks, although many fear that it could also lead to wrongful account disconnection ("suspension").

UPDATE 10:28am

The UK Federation Against Software Theft (FAST), a not-for-profit group that campaigns for the legitimate use of software, has now got involved and called for the ACS:Law case to continue so that some of the outstanding legal issues can be properly examined.

Julian Heathcote-Hobbins, General Counsel, FAST, stated:

"The indignation about one or two law firm’s antics is a distraction from the real issue. People should know that if they wish to ‘lift’ a product, it carries a risk and that is of being caught. We would never question that due process must be followed and other rights respected, but these reasons are a smoke screen that illegal file sharing should still be tackled. This does not mean that the file sharing in general is wrong, just that if someone does not wish for their product to be shared on a p2p platform, it should not be. It’s a choice that should remain as one.

FAST is simply not going to comment on the actions of the two companies involved. However in all the speculation, one fact is being overlooked and that there is a need to pursue infringers from time to time. If there is no absolute consequence, the behaviour is unlikely to change. Research conducted by media law firm, Wiggin has found that over two thirds of those who illegally download content from file-sharing sites would stop if asked by letter to do so. Sanctions have to be there.

It is understandable that Judge Birss has taken the correct decision stating the cases could not be discontinued, since the rights’ holders themselves should be given time to take further action themselves.

Amongst the speculation around these cases, there is an interesting technical point which could cause legal debate. Currently, as far as peer 2 peer investigations go, investigators have not managed to see past the IP address. An IP address identifies a computer, not necessarily the actual person involved in the infringement. This is another reason we would argue these case continues, as the technical aspects of this case need to be tested. Doubters have argued that moral responsibility does not equate to legal responsibility as to who is using the account in their name.

Our argument is that the cases therefore need to be seen to conclusion so that if the judiciary criticises methods, these may be in turn improved meaning the innocent are not accused and those who persist in this activity can be held to account."

The court has given MediaCAT / ACS:Law and the copyright owners in question until 25th February 2011 to join the action before it gets struck out, and a further hearing is set for March 16th 2011.
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