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Originally Posted by Coys1882
How do they prove that you actually downloaded the files? Do they get warrants and seize your PC? With IP spoofing and people using other people's wireless networks - how can they prove who actually downloaded it? Or do they have to?
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In the BMG case, the plaintiff hired MediaSentry to do an investigation. They were able to link files downloaded from Kazaa and iMesh to particular user names. They were then able to link those user names to IP addresses and determined what ISP they were assigned to. Using all that information, they went to the court to get an order compelling the ISPs to reveal the subscriber information for each IP address.
The court said the test to meet to get such an order contains five elements:
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(1) applicant must establish a prima facie case against the unknown alleged wrongdoer; (2) person from whom discovery is sought must be more than an innocent bystander; (3) that person must be only practical information source; (4) said person must be reasonably compensated for expenses of compliance with the discovery order; and (5) the public interests favouring disclosure must outweigh legitimate privacy concerns.
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A lot of what we've been discussing already arose from the court's consideration of that first stage. If downloading a music file from the internet is not copyright infringement in Canada, then you can't establish a prima facie case against the alleged wrongdoer. Of course, the court also had difficulty with the manner in which MediaSentry connected the user names to the IPs. There was no real evidence on that point.
In the United States, similar cases commenced by the RIAA have been going on for quite some time. In one of the more famous cases, Capitol Records v. Thomas, the defendant Jammie Thomas alleged that she was a victim of spoofing. The jury did not believe her and found her guilty of copyright infringement. As one juror explained:
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The jury, he said, was convinced that Thomas was a pirate after hearing evidence that the Kazaa account RIAA investigators were monitoring matched Thomas’ internet protocol and modem addresses.
Expert testimony from an RIAA witness also showed that a wireless router was not used, casting doubt on her defense that a hacker lurking outside her apartment window with a laptop might have framed her, he said.
Hegg pointed out that Thomas’ Kazaa account username was "Tereastarr" — the same username Thomas chose for her e-mail, online shopping, online dating and MySpace accounts.
"I think she thought a jury from Duluth would be naïve. We’re not that stupid up here," he said. "I don’t know what the [edit] she was thinking, to tell you the truth."
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If there was some inconsistency with the username and Thomas' other internet accounts or if there was a wireless router involved, then maybe she could have gained some support for her spoofer/hacker defence.
These matters are handled by the civil court system (i.e., not criminal). The burden of proof is lower. That means you don't need to prove the alleged wrongdoer is guilty of copyright infringement beyond a reasonable doubt. You merely have to show that it is more probably than not.