Evidence of File Sharing

18 November 2008

File Sharing and the Weaknesses of the Rights Holder

The rights holder is the owner of the copyright. Copyright relates to ownership of a game, song or film. You as a customer are licensed to use the game song etc when you purchase it for your own private use. If you do not pay for it then you are infringing the copyright of the rightsholder. They will be cross and seek to recover their losses. The rights holder cannot be blamed or criticised for this as they need to protect their intellectual property rights from copying. Unlicensed file sharing is of course damaging to their business (although there have also been studies produced which suggest it has positive affects) it follows that it is certainly within its rights to commence legal action against individuals who have infringed copyright. My problem with the whole file sharing issue is the evidence presented. The evidence relies on an IP address which links an individual to the computer. If you maintain that the product was never downloaded you could not make the product liable to third parties and therefore it cannot be proven that copies were shared. The bottom line is that your hard drive will always contain the secret of whether you downloaded the product or not- not the IP address, it tells very little and certainly not enough for a court to find you liable for infringement. IP addresses are notoriously fickle. Widely known vulnerabilities of cable modems and ability of hackers to clone such modems makes the IP position even more vulnerable. Many of our clients have made it clear that they believe they are the victim of foul play and interference and this may have contributed to the rights holders assertions that their copyright has been infringed. The main sections of the Copyright Designs and Patents Act 1988 which are said to have been infringed are sections 16 (1) (a) and 17 of the Act 1988. If you make the game available to third parties for downloading then you are infringing sections 16 (1) (d) and 20 of the Act. But there must be more evidence than an IP address. There is no copyright offence is you have failed to protect your computer. There can be no evidence of copyright infringement based on the evidence provided. In most of our cases the product was not and has not been downloaded. It does not take a rocket scientist to break wireless security with widely available tools. So please do not panic. Get in touch with a Solicitor.

Michael Coyle is a Solicitor Advocate who specialises in information technology law and intellectual property law. He can be contacted on michael.coyle@lawdit.co.uk, his office number +44 (0) 2380 235979 or mobile 07976 724258