Can music bosses catch the pirates?

The music industry is facing a crisis in its battle to overcome online piracy, as the most commonly used technique for spotting illegal file-sharers comes under increased court scrutiny.

Currently, attempts to prove copyright abuse are typically based on IP addresses, but these addresses identify connections, not individuals. If such evidence were to be deemed inconclusive by the courts, the music industry would have to find another way to identify file-sharers and counter the download free-for-all.

The issue has come to a head following BT’s announcement that it was seeking legal clarification whether evidence of illegal sharing from a particular IP address was, on its own, sufficient grounds for requiring an ISP to release details of the subscriber to whom the address is registered.

Previously, the ISP had released customer data to ACS Law, a firm that uses IP addresses as evidence to send alleged file-sharers letters demanding they pay a hefty settlement or face court. With a second law firm, Gallant Macmillan, also seeking a court order to demand access to BT’s customer information based on IP address allegations, BT moved to have the case adjourned while it sought advice on the validity of IP addresses as evidence of illegal acts.

Asked whether the company would be calling for rights enforcers to show stronger evidence that customers had been involved in illegal file-sharing, a BT spokesperson confirmed it was seeking greater legal protection for its customers.

“We want to ensure broadband subscribers are adequately protected, so that rights holders can pursue their claims for copyright infringement without causing unnecessary worry to innocent people,” the company said.

IP problems

The weak point of using IP addresses as legal evidence is that multiple computers can connect to the internet through a single router, and multiple people could use a single computer.

To an external observer they’ll all expose the same IP address, so anyone – a child, housemate or neighbour – could be downloading music unlawfully, leaving the unwitting subscriber to carry the can.

“It’s bad enough in the context of criminal prosecutions,” said Ross Anderson, a security professor at the University of Cambridge. “With the proposed ‘three strikes and you’re out’ rule [under the Digital Economy Act], the idea is to deprive people of network access because someone in their house or a neighbouring one might have downloaded a music file – collective punishment on accusation, not conviction. It shouldn’t wash in the courts.”

Lawyers agree that even in a civil case, where complainants have to prove only that guilt is probable, most courts wouldn’t find against a downloader. “Can a name linked to an IP address prove unlawful downloads? No, because we don’t know who was using it at the time,” said Mark Surguy, legal director at law firm Pinsent Masons.

“The law firms can’t proceed against an individual to prove it, which is why they’re going after a large number of people for a small amount of money,” he said, referring to the controversial tactic used by ACS Law of mass-mailing alleged infringers. “They hope they’ll be able to frighten people into paying up in the belief they might face more trouble down the line – but they have no intention of taking anyone to court.”

There are other reasons why relying on IP address evidence might lead to the wrong person being collared. Most UK IP addresses are dynamic and change regularly, so the only party that knows who’s been assigned which address at any given time is the ISP.

If an ISP’s computer clock happens to disagree with that used by a file-sharing monitoring company, then the wrong user could be identified as using a particular address at a particular time.