File Sharing in Canada

[FlamingStuffedTiger]

Originally Posted by burning_acid1

I thought ISP's aren't allowed to provide your personal information to other due to privacy reason?

Right.

Originally Posted by fredr123

As the BMG v. John Does case demonstrated, there are all sorts of technical problems in identifying the person alleged to be infringing copyright. Most of the ISPs involved in that case refused to voluntarily hand over their customers' identification information to the complainants which meant they had to seek an order to get that information through the court system.

But, it seems that this isn't the case in Sweden anymore because of newly introduced laws (IPRED?). I think it is much easier than before to get ISPs to release personal information now than before. So, VPN services like that one would be one way around this, at least for now...

Also has been mentioned somewhere that the recording industry seems to be pretty interested in getting something similar done in Canada.

[Rathji]

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?

MAC address on your modem can't be changed (for Shaw at least) without hacking into Shaw's system and changing the system in the API. Well it can probably be, but you won't have internet access.

[Coys1882]

Originally Posted by Rathji

MAC address on your modem can't be changed (for Shaw at least) without hacking into Shaw's system and changing the system in the API. Well it can probably be, but you won't have internet access.

I understand that - I was thinking more about unsecureed wireless networks in say a condo where it's well known people steal internet.

[Rathji]

Originally Posted by Coys1882

I understand that - I was thinking more about unsecureed wireless networks in say a condo where it's well known people steal internet.

Its all part of the investigation process I would assume. Its not like they storm your house and toss you in jail just because your IP was used for file sharing.

In a situation like that, it certainly is a lot more work to prove who did it. You would need to determine who logged onto that network, which wouldn't be that hard probably, because they might still be doing it.

[fredr123]

Originally Posted by Rathji

Its all part of the investigation process I would assume. Its not like they storm your house and toss you in jail just because your IP was used for file sharing.

In a situation like that, it certainly is a lot more work to prove who did it. You would need to determine who logged onto that network, which wouldn't be that hard probably, because they might still be doing it.

Even so, how do you prove who was sitting at the keyboard? In the Thomas case in the USA, it was a bit easier to draw the conclusion that she was responsible. You had to provide an email address and what have you for Kazaa. The address provided matched her personal email address and other contact information. Plus the files were on her computer. That was enough for the jury to find against Thomas on the identity issue.

With the way most public bit torrent trackers and clients work, I don't think the recording industry has that same luxury.

[Rathji]

Originally Posted by fredr123

Even so, how do you prove who was sitting at the keyboard? In the Thomas case in the USA, it was a bit easier to draw the conclusion that she was responsible. You had to provide an email address and what have you for Kazaa. The address provided matched her personal email address and other contact information. Plus the files were on her computer. That was enough for the jury to find against Thomas on the identity issue.

With the way most public bit torrent trackers and clients work, I don't think the recording industry has that same luxury.

You are totally right.

With a torrent, I think the process to solidly investigate would pretty much require a 'catching them in the act' kind of deal. Even possession of the file, confirmed ip address indicators and the torrent software, shouldn't be enough to prove without a doubt that someone is guilty. Even having 2 people in the same house with equal access to the computer should be enough to cast the necessary doubt.

Of course what do I know, I am just a lowly System Admin. The day I get to decide what is legal and not is a sad day for our nation.

[fredr123]

Originally Posted by Rathji

You are totally right.

With a torrent, I think the process to solidly investigate would pretty much require a 'catching them in the act' kind of deal. Even possession of the file, confirmed ip address indicators and the torrent software, shouldn't be enough to prove without a doubt that someone is guilty. Even having 2 people in the same house with equal access to the computer should be enough to cast the necessary doubt.

Of course what do I know, I am just a lowly System Admin. The day I get to decide what is legal and not is a sad day for our nation.

These aren't criminal prosecutions, though. These are civil suits for damages. The standard to meet isn't "beyond a reasonable doubt" but the lower "balance of probabilities". A judge or jury could be convinced it was probably you sitting at the keyboard downloading the infringing materials though the plaintiff is not able to conclusively prove it was you beyond a reasonable doubt.

Frankly, I wouldn't be surprised if a lot of the new legislation aimed at preventing internet crimes and illegal downloading don't incorporate changes to make the person to whom the IP or MAC address is registered liable. Somewhat analogous to getting a registered owner ticket for speeding.

[Bobblehead]

Originally Posted by fredr123

These aren't criminal prosecutions, though. These are civil suits for damages. The standard to meet isn't "beyond a reasonable doubt" but the lower "balance of probabilities". A judge or jury could be convinced it was probably you sitting at the keyboard downloading the infringing materials though the plaintiff is not able to conclusively prove it was you beyond a reasonable doubt.

Frankly, I wouldn't be surprised if a lot of the new legislation aimed at preventing internet crimes and illegal downloading don't incorporate changes to make the person to whom the IP or MAC address is registered liable. Somewhat analogous to getting a registered owner ticket for speeding.

But then the penalties need to better reflect the uncertainty.

Even in the Thomas case, a subsequent judge drastically lowered the judgment from over $2 million to $54,000. And now the RIAA have offered Thomas a $25,000 settlement if they can drop that judge's decision (which she has denied).

So even though they have Thomas dead to rights, there is still so much wrangling going on that there is a lot of uncertainty.

[fredr123]

Originally Posted by Bobblehead

But then the penalties need to better reflect the uncertainty.

Even in the Thomas case, a subsequent judge drastically lowered the judgment from over $2 million to $54,000. And now the RIAA have offered Thomas a $25,000 settlement if they can drop that judge's decision (which she has denied).

So even though they have Thomas dead to rights, there is still so much wrangling going on that there is a lot of uncertainty.

Not only should the damages better reflect that uncertainty, they should actually reflect the real damages suffered by the plaintiff. Damages are determined by statute, for the most part, in these cases. It would be nice to see the issue of actual damage suffered by the recording industry hashed out in court.

There are some compelling studies on how much illegal file sharing is really damaging the recording industry. It's hard to fathom how a $150,000 penalty can be attached per download when songs can be purchased for a buck or too. And that assumes every download equals a lost sale.