Out-Law News | 06 Sep 2012 | 3:20 pm | 3 min. read
Researchers at the University of Birmingham’s School of Computer Science said that the monitoring bodies generally detect those "sharing popular content" via BitTorrent within three hours of those individuals beginning to download the material. BitTorrent is a method for sharing large files on peer-to-peer networks.
The researchers claimed to have gathered evidence of copyright enforcement agencies using "direct monitoring" techniques to identify illegal file-sharing for the first time. Direct monitoring occurs if a body actively "establishes connections with peers to confirm that they are sharing a file" or if they passively advertise their IP addresses to "a tracker" and wait for file-sharers to "connect to it", the researchers' report (18-page / 195KB PDF) said.
The use of direct monitoring techniques can be costly but they provide the monitoring bodies with "the potential to gather more conclusive evidence" against infringers, the researchers said.
However, Dr Tom Chothia, one of the researchers that worked on the three-year study, said that the monitoring bodies may not be gathering sufficient evidence to pursue copyright infringement claims in court.
"All the monitors observed during the study would connect to file sharers believed to be sharing illegal content and verify that they were running the BitTorrent software, however they would not actually collect any of the files being shared," Dr Chothia said in a statement. "Therefore, it is questionable whether the monitors observed would actually have evidence of file sharing that would stand up in court."
Copyright holders can use technology that attempts to track the internet protocol (IP) addresses of people unlawfully sharing copyrighted material. To identify that person the copyright holder must ask an ISP to match the IP address with one of its account holders. ISPs generally only provide that information on the orders of a court
However, copyright law expert Kim Walker of Pinsent Masons, the law firm behind Out-Law.com, said that courts are unlikely to issue a disclosure order at the behest of rights holders unless they have gathered further evidence of infringement besides suspected infringers' IP addresses.
"The IP address only relates to a computer or a group of computers used to perpetrate any offence of copyright infringement and does not identify the individual who used the computer to carry out the illegal activity," Walker said. "It would take much more than just an IP address to get someone convicted of copyright infringement. You have to provide evidence of copying and who did the copying."
Rights holders often write letters to suspected copyright infringers to warn them about the threat of court action as a result of illegal copyright infringing activities. However, Walker said that some firms have been criticised for the way they have handled this process in the past.
"Law firm ACS:Law was heavily criticised for the nature of the infringement letters it sent out to individuals that were suspected of illegally downloading pornographic films. Lots of those who received letters claimed they did not download the material themselves whilst others claimed that others must have used their open WiFi network to engage in the activity. The judge felt the letters were threatening and did not set out the rights of those who had allegedly infringed copyright."
"Rights holders must avoid brow-beating suspected infringers into making admissions and should encourage those they send infringement letters to to seek their own legal advice," Walker said. "A court may be willing to infer that if a computer at a private property is shown to have been used to infringe copyright then it was a resident at the property who was responsible for the infringement, but rights holders should gather evidence of the infringement in order to convince the court to make that inference in relation to a specific person.
"In criminal cases rights holders need to prove beyond reasonable doubt that a person has engaged in copyright infringement, whilst in civil damages cases the standard of proof is 'on the balance of probabilities'," Walker said.
Colleague David Woods said that rights holders often use "robots" to detect the illegal use of copyright protected content on the internet. He said that rights holders at the very least need to take a "snapshot in time" that provides evidence of infringement if they wish to convince courts of their case. Woods said though that UK copyright law gives suspected infringers a right to defend themselves against liability for damages.
Under the Copyright, Designs and Patents Act if individuals can show that they "did not know, and had no reason to believe, that copyright subsisted in the work" that they are accused of infringing, they may be able to escape having to pay damages for that infringement. However, those individuals may not be able to escape liability for the infringement of the copyright, Woods said.