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P2P: The Winds of Change
September 18, 2005
The recording industries have traditionally relied on technological means to protect copyright material against piracy. Filesharers on the other hand have kept one pace ahead to the extent that their activity now accounts for a staggering 60% of global internet traffic. But will the financial muscle of the recording industries and their willingness to take legal action alter all this?The recording industry’s methods of investigation have been less than subtle, as seen in the case of Mediasentry. Mediasentry are part of a growing industry specifically set up to assist in identifying filesharers. Their techniques are exported from the USA; sniffing out those sharing files on the internet and listing what is in the user’s shared folder. This is just one example of over zealous US investigatory methods being applied internationally, and has been ruled unlawful under EU law in the case brought by BREIN - the Dutch equivalent of the RIAA.
The risk of legal action has undoubtedly deterred a few from filesharing, although many thousands more are using P2P despite adverse publicity. Well, at least according to the figures published by Big Champagne. The popularity of the iPod and therefore the whole concept of downloading has attracted many newcomers to P2P, people who had never previously considered downloading. The risk of apprehension remains diminutive, there is no social stigma and the argument against filesharers has never even been heard in court.
Those receiving demands for settlement have traditionally chosen to settle rather than risk the uncertainty and cost of having their day in court. But the situation is shifting imperceptibly, with at least one person widely reported to be challenging the BPI demand for settlement in the UK and at least a further three challenging the RIAA in the USA, the spectacular case of Chan and the well publicized cases of
Leadbetter
and Santangelo amongst them. In the case of Candy Chan, this resulted in a victory for the defendant. Filesharers are not only starting to fight back, but having sufficiently humiliated the RIAA to publicly withdraw their one case, are proving the battle can actually be won. Early days yet, but the tide seems to be turning in their favour.
Civil procedures stipulate that the accuser must prove their case on the balance of probabilities if they are to win. It therefore follows that the reverse applies to defendants if their defense is to have any real prospect of success. So far we have very little to go on, or precedent, as it is known legally. This may of course change in the fullness of time, allowing us to analyze feedback from the courts.
Defense information is therefore a little limited, and has included:
This isn't an exhaustive list, and as time goes by we shall almost certainly see it grow. Obviously the more proof that is available, the better the prospects of any defense being successful. For example, screen shots of site surveys showing other wireless users sharing the same channel, invoices from network experts proving that due diligence was exercised in trying to improve wireless security as a consequence, accompanied by press clippings of similar cases and so forth.
And, specific to the UK, remember that neither being the owner of a computer used for filesharing nor being parents make you automatically liable for the actions of children, who cannot be threatened with bankruptcy.
Filesharers are therefore not only starting to fight back, and even force the RIAA to withdraw, but are also taking far greater care to avoid becoming victims of the recording industry in the first place. Such precautions include:
Whilst filesharing for personal purposes is not in itself a crime, and problems are unlikely for those simply downloading, it could still result in a lawsuit against you depending on the laws of the country in which you live. Anyone receiving a letter from the recording industry or its lawyers demanding information about who uses a computer and for what purpose should never reply without taking their own legal advice from a lawyer with appropriate experience. There will be many circumstances where the most effective form of defense is to say absolutely nothing, and plenty of opportunity to fight your case. And the way things are going, fair prospects of success.
Defense information is therefore a little limited, and has included:
- My name has been identified simply because I pay the bill for someone else, I do not have access to the property or the pc
- The PC concerned is one of several networked in the property (or vicinity), with each user contributing to the cost and everyone sharing access. I have no recall of having conducted such an activity (the “Oliver North” defense) and no way of identifying who it might be.
- We use an insecure wireless network and until we heard of this allegation had no reason to suppose that others were leeching off our bandwidth. When we investigated we found that this was indeed the case. We are victims ourselves but cannot identify the individual concerned.
- It must have been someone else living in the premises having access to my computer, and there is no evidence to prove it was me
This isn't an exhaustive list, and as time goes by we shall almost certainly see it grow. Obviously the more proof that is available, the better the prospects of any defense being successful. For example, screen shots of site surveys showing other wireless users sharing the same channel, invoices from network experts proving that due diligence was exercised in trying to improve wireless security as a consequence, accompanied by press clippings of similar cases and so forth.
And, specific to the UK, remember that neither being the owner of a computer used for filesharing nor being parents make you automatically liable for the actions of children, who cannot be threatened with bankruptcy.
Filesharers are therefore not only starting to fight back, and even force the RIAA to withdraw, but are also taking far greater care to avoid becoming victims of the recording industry in the first place. Such precautions include:
- Not using Fastrack: The majority(96% in 2004) of those getting caught have been using Fastrack (Kazaa, iMesh etc)
- Switching to Usenet
- Using Peerguardian or Protowall with a known firewall
- Not sharing hundreds of Top 40 tracks or newly released movies.
- When choosing mainstream Top 40 stuff, using other ways of getting their music (such as Streamripping Shoutcast etc)
- Not leaving your PC on and running P2P application for days or weeks at a time
- Avoiding using other people’s networks (College, work, etc) as they are generally well policed and anxious to avoid implication
- Using removable drives for archived downloads and keep this away from your PC when not in use
- Being cautious against malicious downloads, to avoid downloading a Trojan or a virus by the use an up to date virus checker
- Keeping up to date with what is happening in the world of P2P, as what happens to others can equally affect them
- And taking independent legal advice if things go wrong
Whilst filesharing for personal purposes is not in itself a crime, and problems are unlikely for those simply downloading, it could still result in a lawsuit against you depending on the laws of the country in which you live. Anyone receiving a letter from the recording industry or its lawyers demanding information about who uses a computer and for what purpose should never reply without taking their own legal advice from a lawyer with appropriate experience. There will be many circumstances where the most effective form of defense is to say absolutely nothing, and plenty of opportunity to fight your case. And the way things are going, fair prospects of success.
This story is filed in these Slyck News categories
File-Sharing/P2P Related :: Studies/Research
File-Sharing/P2P Related :: Statistics/Analysis
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