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Ok, I get that civil court cases have a much lower standard of proof required, but this still gets me: You don't need to download a complete copy to convince a

Ok, I get that civil court cases have a much lower standard of proof required, but this still gets me: You don't need to download a complete copy to convince a judge/jury of copyright infringement Why on earth not? If the burden of proof is that low, why not defend along the lines of "I put a file on my computer with that name as a joke." I would love to see what evidence they use to prosecute, if it's only hashes or checksums alone, surely it'd be easy enough to write a fake client that lies?

ErrantX 16y ago
I've helped defend victims in a few of these cases (in the UK) so this is my best guess. Ultimately the evidence they have is pretty good. They grab a torrent and begin to download the file, they watch which IPs connect - both seeds and peers - and record them. They then apply for a subpheona from the courts. The argument (for peers) is that the user has connected to the P2P network and is trying to download copyrighted material. Under civil law this is a reasonable burden of proof (and, honestly, I can't really argue with it). With seeds it is an even stronger argument; because the seed has at least a partial copy of the copyrighted work and is facilitating the sharing of it. This will stand up in court; and, to be honest, I don't think it is disputable under current law. What we should be disputing (and I have helped with successes here in the past) is that the damages are completely disproportionate. The way I've managed this is by explaining how P2P really works to judges/courts - and usually they start to come round to the idea. We also should, outside of the cases, be working to promote the idea of copyright reform so that this becomes less of a cash cow.
- yosho 16y ago
  what about the argument that someone could have used my unsecured wireless network to download copyrighted material with my IP address without my knowledge? While most people protect their wireless, I know many mom and pops who still have no clue how to do any of that stuff and could be victims of their neighbor's crimes.
  - ErrantX 16y ago
    Yes, that is a good defense and, if true, should be brought up if you are accused.
  - roel_v 16y ago
    That would maybe work for a clueless old lady. The standard for someone with a technical background, of whom can be expected that he should know about these issues, would be higher than for someone who can make a reasonable case of not knowing about these things. At some point it becomes an "assumed liability" (that's probably not the proper term in common law systems) - what I mean is a liability for something not arising from doing or not doing something (like punching someone in the face - that's something you actively do), but rather from being in a certain position, like when you own a house, and a roof tile falls off on someone's head, you're still liable because it's your house (again this is technically not correct in tort-based systems but the principle holds). In the same way one could argue, in my opinion reasonably, that owning & using certain equipment (wireless routers) brings with it a certain responsibility, in this case making a reasonable effort to make sure that the equipment is not used to violate other people's rights. It will depend on the circumstances if this is acceptable.
    - jcl 16y ago
      In that case, Bruce Schneier is a genius... By publicizing his open wireless network, he has an excuse to download whatever he wants. And if the prosecution wants to argue for "assumed liability", what expert witness is going to trump Bruce Schneier? :) http://www.schneier.com/blog/archives/2008/01/my_open_wireles.html http://www.schneier.com/blog/archives/2008/01/my_open_wirele...
      - ErrantX 16y ago
        He admits there, though, that he is playing the law of averages (and is probably correct in thinking he is pretty safe). His assertion that it is a usable defence is, I think, pretty groundless according to legal commentary around that article.
      - 16y ago
- CWuestefeld 16y ago
  I've got a theory about this, maybe you can enlighten me. Suppose that the movie/song/whatever being downloaded is actually wrapped in a ZIP or RAR -- even better, suppose that it's encrypted (granting that the downloader would have the decrypt key). And suppose that somebody downloads a chunk of it (say 10%) from me. That 10% chunk alone is absolutely useless. As it stands, it's effectively random data that cannot be used to recover any of the intellectual property that's inside the archive. One might claim, then, that I did not actually give the downloader any copyrighted materials. It's only his action, in combining it with the other chunks, that allows the IP to be extracted. Thus, neither I nor the 9 other people who hypothetically provided chunks of the file could be blamed individually for providing copyrighted materials to the downloader. At most, each of us aided and abetted the downloader by providing a necessary but insufficient piece. Obviously IANAL, but those are my thoughts. How do they strike you?
  - ErrantX 16y ago
    This is actually a pretty common "idea" (not a bad one, just it comes up a lot :)) that an accused comes up with when I meet them. The same argument, really, applies to anything transmitted over P2P - you usually only download a small chunk from one person, encrypted or not. My response is usually: "were you uploading copyrighted stuff?". Answer: "yes". Me: "well then..." Saying "but I only gave him a small piece of data - what he does with it is his own business" doesn't stand up because clearly your intent was to give him part of the file so he could construct the file (this argument has been used for centuries to try and get out of things and almost always fails :P) Seriously? I think people should just suck it up, admit they did something wrong (currently wrong anyway...) and then fight the idiotic fine. Ultimately the law is not really about the exact bits you exchange (one of the few things I agree with, actually) but about your intent and facilitation of the shared file. EDIT: to clarify/extend something. I think it is a dangerous road to bring the idea of what the individual bits you send mean - because that starts to open up the idea the a certain ordering of bits could be illegal (take a CP case - if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within a music file you own. Or perhaps the bits in an MP3 appear by random occurrence in a video file you own. This is a dangerous weapon to hand people :P)
roel_v 16y ago
You can use that as a "defense", yes. But really, put yourself in the shoes of somebody who has nothing at stake in this argument. What position is more reasonable:one guy saying "I think my rights are being violated, I have proof x y and z of that" (logs, checksums, whatever); and then another mounting a defense saying "yes it seems like that from the outside but I just faked all of that as a joke! Hahaha!" Why would anyone put files with wrong names on their computers "as a joke"? As a defendant you then have to substantiate your claims, basically because they're so outrageously far-fetched. Let's be honest, it's in the same category as a defendant in a tort suit (e.g. car accident) mounting an "It's my evil twin brother who stole my car and then parked it on my driveway!" defense. You can claim things like this all you want but in the end it comes down to a "reasonable" interpretation of the facts by a judge. And contrary to popular opinion, they're not stupid.

ErrantX 16y ago

I've helped defend victims in a few of these cases (in the UK) so this is my best guess. Ultimately the evidence they have is pretty good. They grab a torrent and begin to download the file, they watch which IPs connect - both seeds and peers - and record them. They then apply for a subpheona from the courts. The argument (for peers) is that the user has connected to the P2P network and is trying to download copyrighted material. Under civil law this is a reasonable burden of proof (and, honestly, I can't really argue with it). With seeds it is an even stronger argument; because the seed has at least a partial copy of the copyrighted work and is facilitating the sharing of it. This will stand up in court; and, to be honest, I don't think it is disputable under current law. What we should be disputing (and I have helped with successes here in the past) is that the damages are completely disproportionate. The way I've managed this is by explaining how P2P really works to judges/courts - and usually they start to come round to the idea. We also should, outside of the cases, be working to promote the idea of copyright reform so that this becomes less of a cash cow.

yosho 16y ago
what about the argument that someone could have used my unsecured wireless network to download copyrighted material with my IP address without my knowledge? While most people protect their wireless, I know many mom and pops who still have no clue how to do any of that stuff and could be victims of their neighbor's crimes.
- ErrantX 16y ago
  Yes, that is a good defense and, if true, should be brought up if you are accused.
- roel_v 16y ago
  That would maybe work for a clueless old lady. The standard for someone with a technical background, of whom can be expected that he should know about these issues, would be higher than for someone who can make a reasonable case of not knowing about these things. At some point it becomes an "assumed liability" (that's probably not the proper term in common law systems) - what I mean is a liability for something not arising from doing or not doing something (like punching someone in the face - that's something you actively do), but rather from being in a certain position, like when you own a house, and a roof tile falls off on someone's head, you're still liable because it's your house (again this is technically not correct in tort-based systems but the principle holds). In the same way one could argue, in my opinion reasonably, that owning & using certain equipment (wireless routers) brings with it a certain responsibility, in this case making a reasonable effort to make sure that the equipment is not used to violate other people's rights. It will depend on the circumstances if this is acceptable.
  - jcl 16y ago
    In that case, Bruce Schneier is a genius... By publicizing his open wireless network, he has an excuse to download whatever he wants. And if the prosecution wants to argue for "assumed liability", what expert witness is going to trump Bruce Schneier? :) http://www.schneier.com/blog/archives/2008/01/my_open_wireles.html http://www.schneier.com/blog/archives/2008/01/my_open_wirele...
    - ErrantX 16y ago
      He admits there, though, that he is playing the law of averages (and is probably correct in thinking he is pretty safe). His assertion that it is a usable defence is, I think, pretty groundless according to legal commentary around that article.
    - 16y ago
CWuestefeld 16y ago
I've got a theory about this, maybe you can enlighten me. Suppose that the movie/song/whatever being downloaded is actually wrapped in a ZIP or RAR -- even better, suppose that it's encrypted (granting that the downloader would have the decrypt key). And suppose that somebody downloads a chunk of it (say 10%) from me. That 10% chunk alone is absolutely useless. As it stands, it's effectively random data that cannot be used to recover any of the intellectual property that's inside the archive. One might claim, then, that I did not actually give the downloader any copyrighted materials. It's only his action, in combining it with the other chunks, that allows the IP to be extracted. Thus, neither I nor the 9 other people who hypothetically provided chunks of the file could be blamed individually for providing copyrighted materials to the downloader. At most, each of us aided and abetted the downloader by providing a necessary but insufficient piece. Obviously IANAL, but those are my thoughts. How do they strike you?
- ErrantX 16y ago
  This is actually a pretty common "idea" (not a bad one, just it comes up a lot :)) that an accused comes up with when I meet them. The same argument, really, applies to anything transmitted over P2P - you usually only download a small chunk from one person, encrypted or not. My response is usually: "were you uploading copyrighted stuff?". Answer: "yes". Me: "well then..." Saying "but I only gave him a small piece of data - what he does with it is his own business" doesn't stand up because clearly your intent was to give him part of the file so he could construct the file (this argument has been used for centuries to try and get out of things and almost always fails :P) Seriously? I think people should just suck it up, admit they did something wrong (currently wrong anyway...) and then fight the idiotic fine. Ultimately the law is not really about the exact bits you exchange (one of the few things I agree with, actually) but about your intent and facilitation of the shared file. EDIT: to clarify/extend something. I think it is a dangerous road to bring the idea of what the individual bits you send mean - because that starts to open up the idea the a certain ordering of bits could be illegal (take a CP case - if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within a music file you own. Or perhaps the bits in an MP3 appear by random occurrence in a video file you own. This is a dangerous weapon to hand people :P)

roel_v 16y ago

You can use that as a "defense", yes. But really, put yourself in the shoes of somebody who has nothing at stake in this argument. What position is more reasonable:one guy saying "I think my rights are being violated, I have proof x y and z of that" (logs, checksums, whatever); and then another mounting a defense saying "yes it seems like that from the outside but I just faked all of that as a joke! Hahaha!" Why would anyone put files with wrong names on their computers "as a joke"? As a defendant you then have to substantiate your claims, basically because they're so outrageously far-fetched. Let's be honest, it's in the same category as a defendant in a tort suit (e.g. car accident) mounting an "It's my evil twin brother who stole my car and then parked it on my driveway!" defense. You can claim things like this all you want but in the end it comes down to a "reasonable" interpretation of the facts by a judge. And contrary to popular opinion, they're not stupid.