Judge Orders Piracy Trial To Test IP Address Evidence

another random user sends word of a case in Pennsylvania District Court in which Judge Michael Baylson has ordered a trial to resolve the issue of whether an IP address can identify a particular person. The plaintiff, Malibu Media, has filed 349 lawsuits against groups of alleged infringers, arguing that getting subscriber information from an ISP based on an IP address that participated in file-sharing was suitable for identification purposes. A motion filed by the defendants in this case explains "how computer-based technology would allow non-subscribers to access a particular IP address," leading Judge Baylson to rule that a trial is "necessary to find the truth." "The Bellwether trial will be the first time that actual evidence against alleged BitTorrent infringers is tested in court. This is relevant because the main piece of evidence the copyright holders have is an IP-address, which by itself doesn't identify a person but merely a connection. ... Considering what's at stake, it would be no surprise if parties such as the Electronic Frontier Foundation (EFF) are willing to join in. They are known to get involved in crucial copyright troll cases, siding with the defendants. We asked the group for a comment, but have yet to receive a response. On the other side, Malibu Media may get help from other copyright holders who are engaged in mass-BitTorrent lawsuits. A ruling against the copyright holder may severely obstruct the thus far lucrative settlement business model, meaning that millions of dollars are at stake for these companies. Without a doubt, the trial is expected to set an important precedent for the future of mass-BitTorrent lawsuits in the U.S. One to watch for sure."

Comments

Big problem? No.

[girlintraining]

This isn't the smoking gun you might be thinking it is. Until now, most piracy claims have been prosecuted under the idea that infringement must be willful. In other words, the prosecution has to prove intent. If you accidentally download, or stumble home late one night and while fumbling for the lights, happen to push the "download 300 gigabytes of copyrighted porn" button, intent is not satisfied. Of course, it's pretty hard to prove intent looking at network traffic -- how can you tell the difference between an action initiated by a human, and an action initiated by a computer program? Even if you can prove it's a human, can you prove which one? Digital forensics is still in its infancy, and it has clear and compelling limitations.

That's why, (drum roll please), we have crimes of strict liability. For example, possession of stolen property. Doesn't matter if you knew it was stolen. Doesn't matter if you checked all the registries for stolen products, the serial numbers -- there is simply no defense in cases of strict liability. It was found on your person or on your property and ta-da, guilty. I'll let someone with a more legal background get into why this is bad if they want in a reply, but short answer: Yes, it's abused. No, it won't stop anytime soon. This is what file sharing is moving towards -- you no longer have to prove intent, the act itself is now grounds to throw you in prison or fine you more than acts of major depravity, terrorism, murder, etc., would net you. Again, not how strict liability was sold when it came out, but that's how the way the doughnut's rolling these days.

What I'm getting at is that IP addresses might legally become evidence that the account holder did it... or it may not. But either way, it's still probable cause to search your computer, person, property, etc., and if they find ye ole pirate treasure, you're going to be just as screwed. And as a bonus, if you encrypt it or otherwise protect it from being searched, odds are good they'll tack on additional criminal charges as well, or simply hold you in contempt of court, which means indefinite jail time without appeal, trial, etc., for failing to surrender the encryption keys... even if you can prove a sudden case of total amnesia and are now a glorified vegetable who's main mode of communication is drool, you might still be rotting in jail the rest of your life.

God bless America.

Re:IPs parallel the discoverable world

[shaitand]

Not only that, but the current testing methodology is questionable. Instead of matching the whole DNA sequence, they use a series of markers that a private company decided uniquely identifies a person. There is no evidence to support this. The statistical probabilities given that someone has the same DNA are based on the completely unsupported assertion that there is no genetic relation between these markers.

Not too many people have katana's, not too many people keep chopsticks in their silverware drawer. So you could argue that someone having both these things makes it highly unlikely the suspect is the killer. In reality, I'd venture most everyone with a katana also has chopsticks. Having both is slightly more statistically unique than having one but it is nowhere near as distinct as the individual probabilities of having these items would suggest. The same may well be true of these markers or of certain value combinations of them.

I wouldn't buy something based on a companies claim of statistical success because it is too easy to use selective information and to spin results. Why are we using this same kind of data to send people to prison.