Will you get caught file-sharing?

The uncomfortable truth at the heart of the illegal file-sharing debate is that it will continue so long as people believe they won’t get caught.

The irony of the BPI’s campaign to draw attention to the situation is that the more file-sharers it claims there are, the more it reinforces their collective sense of anonymity. After all, if there really are seven million people downloading music, games and movies in the UK alone, what are the odds that you specifically will be caught downloading the latest Coldplay album?

This comforting belief was challenged last year when law firm Davenport Lyons, acting on behalf of games companies including TopWare Interactive, Atari and Zuxxez, sent out thousands of letters accusing people of illegally downloading their games. The letters demanded that people either pay up to £600 or face court proceedings.

The backlash was immediate, and found focus when Ken and Gill Murdoch, aged 54 and 66, received a letter accusing them of illegally sharing the game Race 07. The couple argued they’d never even played a videogame, let alone shared one.

EVIDENCE COLLECTION

It transpires Davenport Lyons was working with Swedish firm Logistep, which monitors peer-to-peer networks such as Gnutella and LimeWire for incidents of illegal file-sharing using software called File Sharing Monitor (FSM).

This connects to a peer-to-peer server and requests a copyrighted file. It then records all the IP addresses that offer the file, and begins a download. If the download is accepted, FSM logs the filename, file size, uploader username and date stamp. It then completes an automatic WHOIS search, identifying the ISP that the IP address belongs to, and delivers this information nicely packaged to the lawyers, who then go looking for names to attach to the IP addresses.

“The ISPs will say, ‘get a court order and we’ll comply with it’ – and that is typically what happens,” explained solicitor Graham Smith. “The rights owner will apply to court for the order and will serve its evidence on the ISP, which will consider it. The evidence needs to back up the claim that somebody is at least arguably infringing. If the evidence is in any way vague, or it isn’t obvious what the ISP is being asked to do, it may take issue, but typically an ISP wouldn’t actually oppose it.”

And neither would the courts, says Iain Connor, a partner with Pinsent Masons. “They will reject them if they’re pure fishing trips,” said Connor. “They won’t let you go there and just say ‘look, there’s a lot of traffic from the city of London and we believe some of this is file-sharing, give us a list of all your customers’.

You need to show some specific knowledge.” Indeed, a source close to the courts, who asked not to be named, claimed judges are becoming increasingly wary of these applications, with a recent request for 25,000 names rejected. But on the whole this appears to be the exception rather than the rule.