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By: MarkJ - 6 May, 2011 (11:19 AM)
p2p copyright uk ISP file sharing lawThe controversial UK Digital Economy Act (DEA), which relies upon Internet Protocol ( IP ) address based "evidence" to identify P2P internet copyright infringement among broadband ISP subscribers, could be in yet more hot water after a judge in the USA (Harold Baker) prevented a Canadian adult entertainment provider (VPRI) from using similar "evidence".

Firms like ACS:Law and VPR Internationale use IP address details collected from public P2P (BitTorrent File Sharing) networks to target "suspected" internet pirates. 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, hotel, Wi-Fi network etc.).

On top of that the IP address itself, one of which is assigned to your computer each time you go online, may not be credible. IP's can be spoofed, redirected or even hijacked. Likewise the logs collected by such firms might be slightly out of sync with the ISP's database, which can result in the wrong users being targeted.

USA Federal Judge, Harold Baker, said (Outlaw):

"In this case, not a single one of the plaintiff’s 1,017 potential adversaries has been identified. There is no adversarial process yet. Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers.

Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid.

Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbour who had used multiple IP subscribers’ Wi-Fi connections (including a secure connection from the State University of New York).

....

Where an IP address might actually identify an individual subscriber and address the correlation is still far from perfect, as illustrated in the MSNBC article. The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbour, or someone parked on the street at any given moment.

The recent UK case against ACS:Law (Andrew Crossley), which spectacularly collapsed earlier this year (here), also highlighted a similar problem with IP address based evidence. Despite this the DEA is still continuing on its path.

The CTO of Business ISP Timico UK, Trefor Davies, commented:

"In the UK court ruling against ACS Law the judge stated that the use of IP addresses as evidence was “untested”. This is now not the case (although obviously the test case was not in the UK). Moreover this totally undermines the basic foundation of the Digital Economy Act and the three strikes system being introduced by the government to try and reduce unlawful copyright infringement.

I guess it may yet go to appeal in the USA but you would think that the body of evidence against the Digital Economy Act’s position is surely growing. Unfortunately the DEAct was fueled by emotion and not evidence."

Several big ISPs ( BT , PlusNet ) have also recently started to stand-up and challenge similar Norwich Pharmacal Orders (NPO) in the UK, which request the release of related customer data using IP addresses as evidence. However, this is likely to be circumvented by the DEA's own processes.
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