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File sharing and copyright 101. Part 4. Defendant computer

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File sharing and copyright 101. Part 4. Defendant computer

Postby bobb » Thu Jan 03, 2013 8:35 pm

It was suggested in the thread about Golden eye and BendOver that you invite them to examine your computer to demonstrate you don't have the alleged 'work' stolen... I find this advice ridiculous but that's my personal opinion...

However I have a question. All say that these file sharing legal cases are civil... but what if the accusing side wants to get into your computer to prove either a) you have/had a particular file on your PC/laptop/tablet or b) you have habit to stealing something similar (for example porn) or even c) to prove that you are not stranger to the particular experience (using porn/listening to music a lot/watching movies a lot etc)

so how can they do it? do they bring a police officer with a warrant from the civil court? they break in and put you on a ground and take away everything which looks like a computing device including a toaster (which happened to be in piano black) ?

how far this sh1t can go? when do they return the stuff?

what if you have sensitive information - how do you protected from cops/lawyers not stealing your secrets (I work from home a lot I have a lot of business info which has high market value in right place) ?
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Re: File sharing and copyright 101. Part 4. Defendant comput

Postby ejonesss » Thu Jan 03, 2013 9:34 pm

first off if you invite them in then they can use that to ruin you or plant malware.

anyone who asks to get in like that is probably a scammer riding on the situation .

it happens all the time for example before and especially after a major natural disaster like sandy there are those posing as the red cross and try to phish you.

the only ones that can raid your system online like that would be the government and that is usually when you visit certain government sites or if you use a government system to do an unauthorized search it would lock down into audit mode.
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Re: File sharing and copyright 101. Part 4. Defendant comput

Postby bobb » Fri Jan 04, 2013 9:54 am

ejonesss wrote:first off if you invite them in then they can use that to ruin you or plant malware.
this why I said this is ridiculous idea :)
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Re: File sharing and copyright 101. Part 4. Defendant comput

Postby DukePPUk » Sat Jan 05, 2013 7:27 pm

bobb wrote:so how can they do it? do they bring a police officer with a warrant from the civil court? they break in and put you on a ground and take away everything which looks like a computing device including a toaster?

The main way they can do this is through what is known as disclosure (although the rules on disclosure are relaxed somewhat in fast-track - i.e. low-value - cases). Basically, you would probably be made to compile a list of all the files on your computer and make that list available to the other side. I think that you can redact sensitive (but not relevant) information from that list, but if you go too far you can get in a lot of trouble later if found out. If they think you might have renamed the file they could ask to see a copy of the drive - but their case should be based more on uploading rather than downloading, so the contents of your hard drive isn't going to be all that relevant.

If they're desperate, they could apply for a search order (previously, and still in other places, called an "Anton Piller order") - these are an order from the court to a defendant to let the claimant come in and search for/seize certain documents. But they are rarely granted and have a very high threshold. I don't think a claimant would be able to get one in a standard copyright trolling case due to the low level of evidence and the lack of obvious dishonesty on the part of a defendant.

If you did hand over your computer and they messed with it (say by planting malware) they could get in serious trouble. Not just in the case (in that it could make any evidence gathered worthless, and destroy their credibility) but in terms of criminal offences (fraud-related or under the Computer Misuse Act). Last summer in the Vickerman prosecution (for running a file-sharing site) there were serious questions as to the actions of FACT Ltd's technical experts etc. which were left unanswered at trial, but might come to light on appeal.

I think that them asking for a hard drive etc. is part trying to comply with the pre-action conduct protocol and part fishing, to see if they can find anything to hurt you with. Whether or not you should do it is between you and your lawyer.
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Re: File sharing and copyright 101. Part 4. Defendant comput

Postby bobb » Sun Jan 06, 2013 4:13 pm

DukePPUk wrote:If they're desperate, they could apply for a search order (previously, and still in other places, called an "Anton Piller order") - these are an order from the court to a defendant to let the claimant come in and search for/seize certain documents.
Wiki says: the common law application of this order has been largely superseded by a statutory search order under the Civil Procedure Act 1997

so whats the statutory search order?

can I please make my question more specific.. if anyone to come to my house (for any legal reason) when I cannot stop that - what it is going to be - are there only the accuser people be around or is there going to be a court appointed expert and/or police present?

I obviously don't want to let any of these porn people filth in my home. not them not their so called 'experts'. what can be done to avoid that?
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Re: File sharing and copyright 101. Part 4. Defendant comput

Postby DukePPUk » Sun Jan 06, 2013 7:25 pm

bobb wrote:so whats the statutory search order?

An order under s7 Civil Procedure Act 1997. All that quote means is that the power to issue the order now comes from the statute rather than from the common law powers of the Court.

bobb wrote:can I please make my question more specific.. if anyone to come to my house (for any legal reason) when I cannot stop that - what it is going to be - are there only the accuser people be around or is there going to be a court appointed expert and/or police present?

There has to be a "Supervising Solicitor" - who is a neutral party, and who is there to explain everything in "in everyday language" and act as a sort of buffer between the respondent (being searched) and the application. There should also be at least one person from the applicant's firm of solicitors, then a small number of people appointed by the applicant. You have the right, before you let anyone (other than the Supervising Solicitor) in to get your own lawyer, to remove any documents that might be privileged (but you have to check them with the Supervising Solicitor first) and to apply to the Court to remove or vary the order.*

Strictly speaking you don't have to let anyone in, and (I think) they can't force their way in, but you may be in contempt of court if you don't comply.

For more information, Liberty has an excellent guide to them here - definitely worth a read.

If you want more details the Justice.gov.uk website has a template order, which sets out most of the details.

*In theory most of these rights and limitations aren't in the statute, but are included in the order by the judge at their discretion. In practice, they will always be there as otherwise there would be problems with the ECHR etc.. It's also very important that the applicants don't overstep their powers; there was a case involving Columbia Pictures (and the precursor to FACT Ltd, I think) in the 80s where they went way over the top in a search, and ended up having to pay £10,000 in damages to the respondent.
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Re: File sharing and copyright 101. Part 4. Defendant comput

Postby bobb » Mon Jan 07, 2013 8:04 am

DukePPUk wrote:Strictly speaking you don't have to let anyone in, and (I think) they can't force their way in, but you may be in contempt of court if you don't comply.
yes that's right, and thank you for the detailed explanation!
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