Virgin Media and BPI join forces to attack illegal filesharing

[rogermevans]

Originally Posted by mojo

"Sophisticated"! Actually their primary "fan base" is children who buy all the mass produced crap. That's one reason why CD single sales have plummeted (why shell out £3.00 for a CD when the download is 50p or free). Also, often the ringtone sells more copies than the CD single now. It's not just piracy, it's the fact that their products are rubbish and largely consist of a five second hook people just want as a ringtone.

Recording equipment is also a lot cheaper now, and you don't need a record company for promotion any more thanks to MySpace et al. Basically they are obsolete and can't see any way to fix their business model, so they are just trying to scare everyone into propping it up.

Hopefully in the next decade or so they will just die off and we can enter a golden age of music, based on real talent and live performance, undamaged by the loudness war.

tend to agree there they are defending their business model which has no chance of surviving

[TheDon]

Originally Posted by mojo

Except that it will be more like "Um... We think maybe the ip address we assigned to you at such-and-such a time might possibly have contacted such-and-such tracker at some point in the hours leading up to that time. Someone might have done something illegal, possibly, we don't actually have any evidence but we thought we'd ask if you'd like to admit anything?"

Have you read the letters they are sending? I suggest you do, they are located here for the one from virgin and here for the bpi one.
It is not just an "errrr we think maybe" it's a "we know, here is the filename, here is the time and date, here is the protocol you used to download it".

It's not asking anyone to admit anything, it's just educating.

Originally Posted by mojo

Parent: Jimmy, did you illegally download anything off the internet?
Jimmy: No!

(Parent dials VM complaints line)

Parent: How dare you accuse my son of committing a crime! Where is your evidence? I'm calling Watchdog and Ofcom!

And when the parent can then check to see if the file listed on the letter is on Jimmy's PC?

Originally Posted by mojo

Where is your proof of that? So far neither the BPI nor their counterparts the RIAA have done any actual downloading.

Yes, they have. Hence the existance of programs such as peer guardian. Funnily the paper you linked to actually covers it in a bit of detail. It's called direct detection in it, and you can see that they had a fair amount of instances of it being detected, some of those blocked by peer guardian, others not.

I suggest you go read up on Mediasentry, one of the main companies employed by the riaa to carry this out (just to help you, here's a quick quote from a report on their involvement in a case "...as well as a list of the 20 to 30 songs downloaded by MediaSentry in their entirety."

Originally Posted by mojo

Even if they do, so what? Can they prove it was your PC that did it? Keep in mind it's not a criminal investigation, so they can't examine your PC. Maybe your PC had a virus. Maybe it was hacked. Maybe someone hacked your WiFi (even WPA2 can be broken: http://www.smallnetbuilder.com/content/view/30278/98/). Maybe someone cloned your modem and VM gave out your details instead of theirs.

Firstly, this depends on the scale. If your distribution of the work is said to be on a scale that has a measurable impact on the copyright owner's business then it's criminal law.

They also can examine your PC in a civil case. You just need a court order to do so. Having your IP being shown to be sharing a copyright work is more than enough probable cause to get a court order to enter your property and seize your computers. Court orders are not limited to criminal cases.

I suggest you go and read the Civil Procedure Act 1997 which under section 7 clearly states the power of courts to make orders for the seizure of evidence for use in civil cases.

Originally Posted by mojo

Again, what are you basing this on? I can cite tests (like the one in the paper) showing that this is not the case.

The tests in that paper are carried out with all the equipment under their control. I'm basing it on having worked for an ADSL ISP and that being how we setup the system because it is the only way that makes sense. You don't want new DHCP leases assigned to IP's that may still have people attempting to send them traffic from the prior owner of it. Any ISP set up differently is crazy.

Originally Posted by mojo

The news article said that the BPI would be sending letters too. Also, how will they start legal action if they don't know who you are? Note that just alleging that someone committed a civil offence it not enough to get around data protection laws.

BPI wrote the letter, it's sent alongside the one from VM by VM. At no point do the BPI get your name and address, that would be in breach of so many laws it'd get both companies sued into non-existance.

This is not about starting legal action. People need to get that idea out of their heads. It's about educating users that the connection that they are responsible for has been downloading copyright material, and informing them of the implications that could have if they carried on doing so.

[ceedee]

@ TheDon: Thanks for your informative (and, dare I say it, authoritative) post.

[foreverwar]

TheDon, darn fine post.

Originally Posted by TheDon

Have you read the letters they are sending? I suggest you do, they are located here for the one from virgin and here for the bpi one.
It is not just an "errrr we think maybe" it's a "we know, here is the filename, here is the time and date, here is the protocol you used to download it".

It's not asking anyone to admit anything, it's just educating.

Actually, it is. It's showing you the pretty thin evidence they have. It would be interesting to see what their response would be if you wrote back and told them it was a mistake.

It's similar to the "notice of intended prosecution" they send when a car is caught on a speed camera. They list the time, place and number plate of the car in the hope that you will then admit it was you and that you were speeding. The burden of proof is still on them though, and if you tell them it was a mistake or you don't know who was driving at the time it's up them to prove otherwise.

I have personally had this before. I was with Zen at the time, got a letter saying I was sharing some application which I wasn't. Wrote back telling them that and asking for any other evidence they had, and Zen said the people who complained were just carpet bombing ISPs and could never produce anything when challenged.

In the end I got a written apology from Borland.

And when the parent can then check to see if the file listed on the letter is on Jimmy's PC?

You think Jimmy isn't savvy enough to hide his stuff? You think most parents are clued up enough to check anything not in My Documents?

Yes, they have. Hence the existance of programs such as peer guardian. Funnily the paper you linked to actually covers it in a bit of detail. It's called direct detection in it, and you can see that they had a fair amount of instances of it being detected, some of those blocked by peer guardian, others not.

Actually, the paper points out that most of the legal threats were automatically generated by simply checking the tracker or seeing a file in search results on Limewire, and that it would be impractical to download enough data to check in every instance. Chances are they only bother if they intend to take legal action, because simply making songs available is probably not copyright infringement (similar to a library having a photocopier).

Besides which, even downloading from an IP address doesn't prove a specific person is guilty of copyright infringement.

Firstly, this depends on the scale. If your distribution of the work is said to be on a scale that has a measurable impact on the copyright owner's business then it's criminal law.

Actually, no. The requirement for making the infringement a criminal matter is not scale, it's commercial gain, e.g. selling pirate DVDs. Since P2P does not generate the user any income, it's not a criminal matter.

For this reason the current investigation of Oink is collapsing. Since the site owner was not making money (only accepting charitable donations to cover running costs) he has not been charged. Those who have been charged were charged on conspiracy, because they somehow obtained and released pre-release music against the wishes of the music industry. The actual copyright infringement does not come in to it, only the fact that they (by what the police assume were possibly illegal means) obtained pre-release music.

Also, how would the prove anyone but themselves download the file? Typically a file is available from either thousands of people so might never have come from you, or there are only a few people in the swarm in which case the scale is tiny. In any event, even if you are a good user and seed to 100%, you only distributed 1 copy of the file, hardly large scale.

They also can examine your PC in a civil case. You just need a court order to do so. Having your IP being shown to be sharing a copyright work is more than enough probable cause to get a court order to enter your property and seize your computers. Court orders are not limited to criminal cases.

Again, you are wrong. They can get a court order for you to turn over specific evidence, but they can't seize your computers. The order requires you to turn over the evidence or face the possibility of it harming your defence. The order would almost certainly not cover your computer either, just the contents of the HDD - i.e. an image file. Of course, by then the music could have been securely erased, or you could just claim you own the CD legally if they didn't actually download it (just a file name).

You have to remember, it's not like a criminal investigation. In fact, you could just buy the CD and claim you had it all along, and present it as evidence since they couldn't search your house for receipts or have you detained or anything.

Just getting the order would be very hard. An IP address and file name is pretty flimsy evidence, not really enough to justify such a massive invasion of privacy. After all, most people have sensitive files on their PC like photos, documents, financial records etc. Most people have emails from other people stored on their PCs too, so it would violate their privacy too. Especially if there is more than one PC connected to the system, or you suggest the possibility of your wifi being hacked, it's unlikely a court would grant such an order considering that the BPI could not prove that anyone but themselves actually downloaded from you when several people's privacy would be on the line.

Court orders normally just deal with specific documents or objects, not "give us your pc".

Note also that so far, such an order has never been granted in the UK for a P2P related copyright infringement case.

I suggest you go and read the Civil Procedure Act 1997 which under section 7 clearly states the power of courts to make orders for the seizure of evidence for use in civil cases.

Yes, and if you bothered to research the subject you would see that typically this can only be used for documents or items specifically related to the case. The court would not generally issue an order for the seizure of a car in order to search it for further evidence, for example.

Seizure implies them actually forcefully taking the item too, but typically that is only done in exceptional circumstances where very large fraud has taken place. Since that isn't the case with P2P infringement (1 song = a 65p download) they would just require any documents from you, and hold it against your case if you didn't provide them.

The tests in that paper are carried out with all the equipment under their control. I'm basing it on having worked for an ADSL ISP and that being how we setup the system because it is the only way that makes sense. You don't want new DHCP leases assigned to IP's that may still have people attempting to send them traffic from the prior owner of it. Any ISP set up differently is crazy.

In that case VM are crazy. When I force my IP address to change, my firewall logs hits from people still trying to connect to P2P clients they saw hours ago on that address.

Most P2P software that uses servers (e.g. eMule, BitTorrent) tries to keep the flow of data between the server and the client as low as possible, to conserve bandwidth. As such, they usually only communicate once an hour or less, since it's not such a big deal if you give out IP addresses where the machine is no longer connected to clients. 15 minutes is nowhere near enough.

BPI wrote the letter, it's sent alongside the one from VM by VM. At no point do the BPI get your name and address, that would be in breach of so many laws it'd get both companies sued into non-existance.

This is not about starting legal action. People need to get that idea out of their heads. It's about educating users that the connection that they are responsible for has been downloading copyright material, and informing them of the implications that could have if they carried on doing so.

So, they are just send out letters and not going to pursue any legal action. It has been established that some times they will get the wrong person. Why then pay any attention to the letters? Might as well just ignore them.

And actually, it is about legal action. The BPI letter even threatens it: "We don’t want you to face legal action or risk losing your internet service". So they had better be in a position to take legal action or have your connection cut off, or face the consequences of making unfounded threats to people.

[TheDon]

Originally Posted by mojo

Actually, it is. It's showing you the pretty thin evidence they have. It would be interesting to see what their response would be if you wrote back and told them it was a mistake.

It's similar to the "notice of intended prosecution" they send when a car is caught on a speed camera. They list the time, place and number plate of the car in the hope that you will then admit it was you and that you were speeding. The burden of proof is still on them though, and if you tell them it was a mistake or you don't know who was driving at the time it's up them to prove otherwise.

The countless people that contest speeding tickets and fail would like to disagree with you there.

Originally Posted by mojo

You think Jimmy isn't savvy enough to hide his stuff? You think most parents are clued up enough to check anything not in My Documents?

I know he's not. Why would Jimmy want to hold his folder of mp3's? It's not like he's hacked the gibson. Most people who download files aren't tech savvy enough to even know how to hide files. It's an everyday mans thing these days. Even the least computer savvy people I know know how to download mp3s.

Originally Posted by mojo

Actually, the paper points out that most of the legal threats were automatically generated by simply checking the tracker or seeing a file in search results on Limewire, and that it would be impractical to download enough data to check in every instance. Chances are they only bother if they intend to take legal action, because simply making songs available is probably not copyright infringement (similar to a library having a photocopier).

I'm not denying that, however you said, and I quote, "So far neither the BPI nor their counterparts the RIAA have done any actual downloading." I've shown evidence that they have. Even if it's on the small scale. I even stated in the post you replied to that they likely only do it for intended prosections, so thank you for agreeing with me now.

Originally Posted by mojo

Actually, no. The requirement for making the infringement a criminal matter is not scale, it's commercial gain, e.g. selling pirate DVDs. Since P2P does not generate the user any income, it's not a criminal matter.

107 Criminal liability for making or dealing with infringing articles, &c

(1) A person commits an offence who, without the licence of the copyright owner—
(a) makes for sale or hire, or
(b) imports into the United Kingdom otherwise than for his private and domestic use, or
(c) possesses in the course of a business with a view to committing any act infringing the copyright, or
(d) in the course of a business —
(i) sells or lets for hire, or
(ii) offers or exposes for sale or hire, or
(iii) exhibits in public, or
(iv) distributes, or
(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.

Note (e). That is a criminal offense, based on scale, not commercial gain.

Originally Posted by mojo

For this reason the current investigation of Oink is collapsing. Since the site owner was not making money (only accepting charitable donations to cover running costs) he has not been charged. Those who have been charged were charged on conspiracy, because they somehow obtained and released pre-release music against the wishes of the music industry. The actual copyright infringement does not come in to it, only the fact that they (by what the police assume were possibly illegal means) obtained pre-release music.

Nothing to do with the torrent sites not actually hosting or distributing the copyright works then? Every case against a torrent site has fell apart. The owners don't get charged because they merely index content. The litigation is usually always enough to force them offline though.

Originally Posted by mojo

Also, how would the prove anyone but themselves download the file? Typically a file is available from either thousands of people so might never have come from you, or there are only a few people in the swarm in which case the scale is tiny. In any event, even if you are a good user and seed to 100%, you only distributed 1 copy of the file, hardly large scale.

No one has to download it at all. You just have to make it available to infringe on copyright.
You do realise that you can write a torrent client to specifically download off certain clients don't you? They can and do target specific people.

Originally Posted by mojo

Again, you are wrong. They can get a court order for you to turn over specific evidence, but they can't seize your computers. The order requires you to turn over the evidence or face the possibility of it harming your defence. The order would almost certainly not cover your computer either, just the contents of the HDD - i.e. an image file. Of course, by then the music could have been securely erased, or you could just claim you own the CD legally if they didn't actually download it (just a file name).

I'm wrong and yet you agree that they could issue an order for the contents of the HDD, which seems to go against your initial statement that I disagreed with "so they can't examine your PC". Make up your mind?

Originally Posted by mojo

Note also that so far, such an order has never been granted in the UK for a P2P related copyright infringement case.

Also note that one hasn't been needed. The BPI has been pretty successful in court. This shows that even the "no direct evidence" defense doesn't cut it. It's not like they haven't successfully sued people before with exactly the same sort of evidence. You're trying to claim evidence isn't good enough yet they've got verdicts in their favour with it in the past, so clearly it is.

Originally Posted by mojo

And actually, it is about legal action. The BPI letter even threatens it: "We don’t want you to face legal action or risk losing your internet service". So they had better be in a position to take legal action or have your connection cut off, or face the consequences of making unfounded threats to people.

That's hardly threatening it, it's just telling them what could happen. They also are in a position to follow through with it if they wished. However they likely realise that law suits aren't winning them any fans and just bring bad publicity, so want to try to scare the "It'll never happen to me" people into realising it can.

[Logan]

The Independent are covering this now:

http://www.independent.co.uk/arts-en...on-842086.html

Originally Posted by TheDon

The countless people that contest speeding tickets and fail would like to disagree with you there.

Man, you have an amazing knack of missing the point.

The point is that the burden of proof is on the BPI. Like the police sending out letters when a speed camera goes off, they don't actually have enough evidence to win their case, and they have to rely on you admitting it to win.

In the case of speed cameras there are some extra legal requirements on the accused, but those are specific to speed cameras.

Try to make some kind of reasoned argument in the future, or just admit you are wrong. After all, if I just wrote "The countless people that contest speeding tickets and WIN would like to disagree with you there" it wouldn't be much of an argument, would it?

I'm not denying that, however you said, and I quote, "So far neither the BPI nor their counterparts the RIAA have done any actual downloading." I've shown evidence that they have. Even if it's on the small scale. I even stated in the post you replied to that they likely only do it for intended prosections, so thank you for agreeing with me now.

Again, you missed the point. These letters are not notices of intended "prosecution" (actually, they can't persecute you because it is not a criminal offence, they can only start civil legal action to recover any monetary damages they can prove).

Note (e). That is a criminal offense, based on scale, not commercial gain.

Fair enough, but you have to interpret what it means by scale. The BPI can only prove that they downloaded the file at best, and unless your ratio is public and is very high (say, 100,000% or 1000 copies distributed) or they can prove you were the original uploader (again, almost impossible on a public tracker, especially one located overseas) then they can't prove scale.

Bottom line is, the BPI will never be able to claim criminal copyright infringement against an individual downloading via P2P.

Nothing to do with the torrent sites not actually hosting or distributing the copyright works then? Every case against a torrent site has fell apart. The owners don't get charged because they merely index content. The litigation is usually always enough to force them offline though.

You seem to have been mislead by the BPI, as the police were. No copyrighted material is hosted on torrent sites, only file hashes. The torrent sites do not distribute any copyrighted material, only links to it in the same way that Google does. In fact, the owners do get charged merely for indexing content, the argument being that they are "facilitating" copyright infringement. So far, that argument has largely failed, and as you point out the few victories the music industry has had were down mostly to the cost of defence, intimidation or the trackers host refusing to carry the site any longer. Most of the large sites that shut down are back up again now anyway.

No one has to download it at all. You just have to make it available to infringe on copyright.

The law would disagree with you there. Sure, offering it for sale would count, but so far it is untested in the UK if simply listing a file as available on a P2P network would count. In the US it does not.

You do realise that you can write a torrent client to specifically download off certain clients don't you? They can and do target specific people.

Of course. I contributed code to the Halite client, BTW.

I'm wrong and yet you agree that they could issue an order for the contents of the HDD, which seems to go against your initial statement that I disagreed with "so they can't examine your PC". Make up your mind?

The statement is true. They could not seize your PC. At most, they could ask for a copy of the HDD. You also ignored the fact that it would be almost impossible for the BPI to get such an order issued.

You will note that in the law you quoted, it says it gives the accuser the right to enter the defendants property to obtain photographs or copies of evidence. They can't force their way in, or do a surprise raid to prevent evidence being destroyed.

Also note that one hasn't been needed. The BPI has been pretty successful in court. This shows that even the "no direct evidence" defense doesn't cut it. It's not like they haven't successfully sued people before with exactly the same sort of evidence. You're trying to claim evidence isn't good enough yet they've got verdicts in their favour with it in the past, so clearly it is.

If you read that article, you can see why those two failed. One claimed ignorance, clearly not a defence. The other failed to show that the evidence did not show he had committed copyright infringement. Presumably he didn't point out the weaknesses or perhaps he admitted he was the sole user of the broadband connection and did not have wifi.

One case poorly argued does not set a precedent in civil law. I wish the BPI would try to sue me, so I could settle this once and for all.

To give you some proof that it is perfectly possible to win, look at the number of people using the "virus defence" (one example: http://www.theregister.co.uk/2003/04...ce_clears_man/) in criminal cases. Although the burden of proof is different, it clear is possible to argue that even when incriminating data has been found on your PC you were not necessarily the person responsible for it.

That's hardly threatening it, it's just telling them what could happen. They also are in a position to follow through with it if they wished.

Man holding baseball bat: "Say, that's a really nice car. It would be a shame if anything happened to it."

[Toto]

Originally Posted by TheBlueRaja

Good work Virgin push them all to Sky, its better anyway.

Damn, forgot to get me bet in at the bookies, probably only give me even money anyway.

[Logan]

Think we all agree Virgin are being foolish.

Upping the monthly charge for the 20mb service was bad enough, and could be even justified for some (I mean I've always got good speed and reliable connection from them). However, upping the cost then adding further restrictions (throttling) and now this 'big brother' approach, it really does make Virgin's rivals seem more appealing, especially the likes of BE who are offering upto 24mb in some areas for a great deal less a month.

Its almost enough to tempt me back to ADSL.

Originally Posted by Logan

Upping the monthly charge for the 20mb service was bad enough

Indeed. Really, they are offering a very poor service on 20 meg and 50 meg is going to be even worse.

The 50 meg service was mentioned on BBC news the other day, but they failed to take even a cursory glance at the actual numbers. By that I mean the fact that the upload speed is quite pathetic. VM are touting 50 meg as being suitable for multiple users in a household, watching streaming media, browsing, playing games, downloading stuff all at the same time. With the low upload speeds available and throttling, it simply won't work as advertised.

[Toto]

Logan + mojo, this thread is not about throttling, its about VM enforcing its user policy, and hopefully fending off legislation that that could affect all UK ISP's.

[mcmanic]

hope i get one of these letters so i can make a paper airpalne and throw it over my fence at bottom of garden back into the VM car park

Originally Posted by Toto

Logan + mojo, this thread is not about throttling, its about VM enforcing its user policy, and hopefully fending off legislation that that could affect all UK ISP's.

I wasn't talking about throttling specifically. Man, some of you guys are reactionary.

[piggy]

Originally Posted by mojo

I wasn't talking about throttling specifically. Man, some of you guys are reactionary.

yes indeed mr pot......or is it mr kettle