Unlike US corporations, IP addresses are not people. At least according to a UK patent and copyright judge. But I’m ahead of myself. In an entry from just over a year ago entitled Cyber-bullying by the copyright Gestapo the shenanigans of ACS:Law described as a “rogue law firm run amok” in this story by Nick Farrell in the Inquirer were reported. Briefly the story goes like this.
[ACS:Law] sent out letters to thousands of Brits accusing them of ‘piracy’ and offering them a chance to settle by paying about £500.
However, loads of people are being accused with what must be inaccurate information. One was a 78 year-old accused of downloading pornography and others are unaware of having done any downloading at all.
Furthermore Andrew Crossley of ACS:Law actually made this profoundly asinine statement to the BBC.
The method used to detect the IP address used for illegal downloads was foolproof.
So now that this fiasco has finally made it into court as we all knew it would, apparently the judge has the same skepticism of this egregious misunderstanding of how the Internet Protocol technology actually works. This piece by Matthew Lasar in Ars Technica entitled Court confirms: IP addresses aren’t people (and P2P lawyers know it) reports it as follows.
“What if the defendant authorises another to use their Internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright?” asked His Honour Judge Birss QC last Tuesday.
That’s not the only legal snag Judge Birss noticed. He was particularly irritated over evidence that ACS was trying to withdraw the questionable complaints in a bid to sue the defendants again under better circumstances, and with a new firm: GCB.
“The GCB episode is damning in my judgment,” Birss warned. “This shows that Media CAT is a party who, while coming to court to discontinue, is at the very same time trying to ram home claims formulated on exactly the same basis away from the gaze of the court. That will not do.”
But what makes the England and Wales Patent County Court ruling particularly interesting is the jurist’s obvious skepticism about what has become the central dogma behind these suits—that a torrent share associated with a specific IP address is grounds for legal action against a specific human being. The lawyers argued that, even if the Internet subscriber hadn’t done the deed, he or she had presumably let someone else use their network, and so were therefore responsible for this “authorized” use.
But authorizing a guest to play some online game can hardly be seen as an authorization for that guest to start downloading copyrighted material; if that happens, why would the subscriber be responsible?
Birss had even more concerns:
Then there is the question of whether leaving an Internet connection “unsecured” opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally, what does “unsecured” mean? Wireless routers have different levels of security available and if the level of security is relevant to liability—where is the line to be drawn? No case has decided these issues but they are key to the claimant’s ability to… say—one way or another there is infringement here.
Judge Birss [stated,] “Proof that a person owns a photocopier does not prove they have committed acts of copyright infringement,” he continued:
“All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All Media CAT’s monitoring can identify is the person who has the contract with their ISP to have internet access. Assuming a case in Media CAT’s favour that the IP address is indeed linked to wholesale infringements of the copyright in question… Media CAT do not know who did it and know that they do not know who did it.”
The judge has given ACS:Law two weeks to continue the case or pay “wasted costs”.
In case you were wondering (as I was) what “wasted costs” are, a clarification by an Ars reader describes them thusly.
“In UK law there is a distinct difference between being awarded costs and ‘wasted costs’ which are awarded where a legal firm has acted improperly or merely incompetently (and is clearly seen as such) wasting the court’s and others’ time. These costs can be punitive. Wasted costs do not reflect on those the law firm represent.”
“Wasted costs” sounds like a really great idea and I would dearly love to see Mitch Bainwol and Co. – Recording Industry Association of America (RIAA) smacked with that particular legal stick. But alas, here in the US where the entertainment industry controls the public discourse on copyright and more than a few politicians I don’t see that happening any time soon. But fortunately there is at least one jurist in the civilized world who gets it. Bravo Judge Birss!