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Court Hearing 17th Jan - Possible requests for evidence

For discussion of the threatened legal action surrounding the alleged filesharing of pornography, computer games and music. (Golden Eye Int LTD / GEIL / MIRCOM / TCYK)
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Court Hearing 17th Jan - Possible requests for evidence

Postby Renegade » Thu Dec 23, 2010 12:55 pm

This information is provided with the expectation it may be useful, however it does not constitute legal advice; if you are unaware of the legal vagaries, consult a solicitor.

# At this stage I will leave the directions to be given in January as a matter to be considered at the hearing. The parties may wish to consider proposing a timetable for the orderly resolution of this case, disclosure and requests for further information.


I strongly suggest anyone who has a court letter of claim, and is thus covered by this judgement to:

1) Attend on 17th Jan

2) Ask the judge to direct ACS:Law/MediaCAT to supply to you with:
    Points of law:
  • Any evidence linking the billpayer/defendant directly to the act of infringement of copyright. (CDPA 1988 Section 16(2))
  • if the above cannot be provided; any evidence the billpayer authorised the act of infringement of copyright (note: not evidence of authorisation to use the connection). (CDPA 1988 Section 16(2))
  • Any evidence or legal arguments which will be relied upon to imply authorisation where no evidence exists of direct complicity; includes implied responsibility by a bill payer for all data passing through their connection. (CDPA 1988 Section 16(2))
  • The copyright owner should be joined in the action with the claimant, s102
  • The claimant’s licence should be signed by or on behalf of the actual copyright owner, s92, s101A
  • The claimant’s licence should be a genuine licence to exploit the work economically in the sense of conventional copyright practices, and is not a disguised attempt to assign a bare right of action,
  • The claim should not relate to an alleged infringement that pre-dates the date on which the licence was signed, notwithstanding any terms of the licence that it be retrospective, s101, s101A.
  • Where the claimant seeks to rely on a right of action via a licence granted by a licensor who is not the owner, and that licensor does not have both the right to copy and make available the work, then in addition to the signature of the owner, it must be verified how the claimant has the right of action against a exploitation right the licensor does not have under the act.
  • Use of the subscribers connection cannot be implicated in the creation of the unauthorised copy of the work on the alleged infringers computer. Please supply evidence which is unrelated to the use of the connection, that implicates the subscriber in the making of that copy.

    Points of evidential rigour:
    Reliability:
  • Evidence of time checks against a recognised NTP server, including extent of discrepancies and action taken to remedy discrepancy (including rules for rejection of monitoring data).
  • Evidence of time checks, as above, carried out by ISP to ensure their own log accuracy.
  • Evidence of start and end time of infringement(s), not simply a single monitoring time point.
  • Full reports from independent witness assessment of the monitoring software used (must not be reports on principle, must relate to specific software used to monitor).
  • Disclosure of independent witness name, fee, and full instructions provided when contracted.
  • Evidence that the work shared by the client is the work to which the applicant owns rights of action (i.e. proof a completed download of the work is as per title/description; and thus infringes the copyright of the applicant).
  • Evidence of scrutiny of monitoring; i.e. peer reviewed research by the creator on creation and application of monitoring systems, qualifications in data security and integrity, quality standards gained and adhered to by the monitor including the frequency and scope of independent auditing carried out as part of the qualification for these standards.
  • Evidence of vetting or assessment of the software, with subsequent improvement, prior to monitoring commencement by independent and recognised academic subject experts.
  • Disclosure of the error rate of the RADIUS protocol, and IP logging in general by the ISP. Where errors have been observed in these data: the cause of the error, the known constraints on logging accuracy and any supporting evidence must also be disclosed.

    Integrity:
  • Any evidence/data produced by the monitoring operation to be separated into two categories: (a) evidence gathered from the direct communication between the monitor and the alleged infringing computer, and (b) evidence gathered from anywhere else (together, of course, with relevant expert witness reports that this other evidence is accurate and verifiable, preserved etc.) Where b), all such sources must be identified.
  • Evidence that no data modification has taken place on the monitored data, accidentally or otherwise, by the monitor, solicitor or ISP following data collection, as a result of transfer of data between parties, and in completion of Norwich Pharmacal disclosure by the ISP. Expected to take a form such as: a date-stamped print out of original database, or hardcopy hashed representation of monitored data which can be used for comparison purposes.
  • Evidence of the error rates/accuracy of the process (including false positives/misidentification) applicable to:
    • The monitoring software (logging)
    • The monitoring software (identification of IP address)
    • The monitoring software (identification of ISP)
    • The ISP (provision of the correct personal details)
      This information should necessarily include the number and percentage of IP addresses from which the ISP is unable to provide information, the number of records manually altered, and the reasons and corrective actions taken for errors identified.
  • Evidence of all changes made to the monitoring software, prior, during and after monitoring, since the first controlled build was assessed by the independent expert witness.
  • Evidence of scrutiny and validation of changes made to monitoring software, through internal validation documents and external independent assessment (i.e. updated independent expert witness reports).
  • Verification that the original ISP evidence that matches the IP to the subscriber (not just the ISP's copy of the extract which was sent to the claimant) still exists in its original form and is available for verification purposes.

    Weight of evidence:
  • Evidence of the number of pieces downloaded by the monitor from the defendant.
  • Electronic copies of all pieces downloaded from the defendant, and the torrent file relating to the work, for independent verification that pieces downloaded are a constituent part of the infringing file.
  • Evidence to back the claim submitted on the Norwich Pharmacal application that the defendant: "copied the work to the hard drive of his personal or office computer".
  • Evidence to support that the data made available by the defendant represents a 'whole or any substantial part of' the work. (CDPA 1988 section 16(3)).
  • Any supporting evidence, including hearsay, on which the claimant may rely to alter the balance of probabilities in their favour (including forum postings, social networking activity).
  • Disclosure of port number used for piece transfer by the defendant's alleged torrent client.


    Points for assessment of damages calculation:
  • Evidence of the number of pieces distributed by the defendant to third parties (excluding the monitor).
  • Evidence of the number of other clients in the swarm also making available the pieces which the monitor has recorded as being made available by the defendant.
  • Algorithms and evidential basis for any calculation of damages where actual proof of data distribution (in terms of number of copies of the work) by the defendant is not known.
  • Evidence to support the assertion by the claimant that the sharing of the work resulted in loss of income.
  • Evidence of the total time range the defendant was allegedly sharing the work or pieces thereof to the swarm.
  • How the evidence of the total time range was gathered (for torrents: from announce data, from ping requests to IP, from bitfield request to remote client, from chunk transfer to/from remote client)

3) Dates;
  • In the spirit of ACS:Law's letters of claim, 14 days should be sufficient for them and their clients to provide the information detailed in 2, given such information should be a clear prerequisite of creating a process which is expected to undergo legal and technical scrutiny.
  • A minimum of 40 days for the defendant to assess the documents provided.
  • Preliminary court date for hearing in May at the earliest.

This is just my list of factors, I'm sure there are others that should be looked at in a fully contested case.

=============================================================

In reference to point 2, none of the list has thus far been provided, what has been given to the defendant is the following

Claimed to be evidence of infringer identity:
An IP address
The client used
A user hash
Single date and time of alleged hit

Claimed evidence of work:
A hash of the torrent
The torrent name

This information is provided with a sworn affadavit claiming its accuracy, with no further supporting information provided; This affadavit is signed by the solicitor and not a technical expert or the client capable of assessing accuracy.

Without the supporting information listed, it is impossible to know the veracity of the claim or reliability of the 'evidence' thus far provided.
Renegade
 
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