Danish Supreme Court Sets High Bar For Evidence In File Sharing Cases

from the good-for-it dept

One of the complaints that many have made concerning various file sharing lawsuits is how rightsholders too often rely on highly questionable or weak evidence. Over in Denmark, where efforts against file sharing by record labels and the IFPI have been aggressive, the Supreme Court has now deemed weak evidence insufficient for such cases. The case involved a guy who was accused of sharing 13,000 tracks. The court eventually decided he should pay $1,900 — significantly less than what the record labels requested. The main reason for the lower dollar amount was the limited quality of the evidence by the “anti-piracy” group Antipiratgruppen:

APG used techniques which scraped the index of the files said to be being made available by the defendant and then linked them back to his IP address, a method which has been acceptable in the past. But while the Court accepted that some sharing had occurred due to the defendant?s confession, it wasn?t satisfied that the index was an accurate representation of the files physically present on the defendant?s computer.

Nice to see some courts recognizing that just having an IP address is not enough evidence on its own.

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Comments on “Danish Supreme Court Sets High Bar For Evidence In File Sharing Cases”

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66 Comments
Anonymous Coward says:

Nice to see some courts recognizing that just having an IP address is not enough evidence on its own.

What U.S. court has ever held otherwise? I think you don’t understand that having an IP address allows a rights holder to file a lawsuit. Once the suit is filed, they can subpoena the identity of the subscriber of that IP address from the ISP. And then from there, they can commence further discovery against the subscriber. And, yes, they can send them a settlement agreement if they so wish. NOBODY’S SAYING THAT AN IP ADDRESS IS ENOUGH EVIDENCE ON ITS OWN. Total strawman, and if you actually believe that, it shows you have no idea what’s going on. The IP address is just the starting point.

HOW ELSE is a rights holder supposed to identify those who infringe their works? What other evidence could they have to go on but the IP address? Answer me that. Tell me what better way there is.

The fact is that you hate the settlement agreements, and you’ll make up anything to try and discredit the system. The system makes sense. You’re not looking at that bigger picture (as you almost never do), and you’re not considering how a rights holder is supposed to be able to protect their rights against those who abuse them.

More Techdirt FUD.

fogbugzd (profile) says:

Re: Re:

First off, thank you AC for posting a substantive comment. Most of the AC comments of late have degenerated to picking on topic selection and insulting other posters with comments on the intellectual level of “so’s your mama.” A substantive comment is very refreshing.

You are correct that a lot of courts have held that IP addresses are not sufficient. Yet, ACTA, Hadopi, and most laws proposed by the the industry rely entirely on IP addresses and logs of IP addresses. The legal notices that universities are required to pass on to students and cutting off students from the Internet are based entirely on logs of IP addresses. IP addresses don’t identify individuals, and logs are often wrong. Yet the industry wants to use them as sufficient evidence to assess very real penalties.

Yet the industry persists on wanting laws to cut off entire households and businesses based on nothing more than accusations based on IP addresses. In fact, the laws do not even require that much proof, just an accusation based on whatever basis the accuser wishes to use. At least some of the posters under the AC banner seem to think that just reading TD or posting her would be sufficient evidence of piracy; at least they have tossed around the accusation freely here.

Dark Helmet (profile) says:

Re: Re: Re:

More importantly, this whole concept of a “starting point” is flawed when it comes to basing it on IP addresses. Since we know that an IP address does not identify an individual, the whole string of the suit from that point on is tainted by that bad starting point.

It’d be as if a crime occurred inside Joe’s Pizza Parlor and the lead detective said, “Well, it happened in Joe’s shop, so obviously we should take away Joe’s business license. Yup, that’ll solve everything!”

Here’s the problem: I like pizza, my friend, and I don’t think I should be kept from Joe’s sweet garlic artistry just because some hooligan chose to rob a purse inside his parlor….

pixelpusher220 (profile) says:

Re: Re: Re: Re:

Well a more accurate comparison would be making a threat over a phone call. They’re going to use the number that initiated the call to start trying to identify the person who committed the act.

The number itself doesn’t prove who did it, but it does give them a real live person to start talking too; i.e. the party who contracted for that phone connection.

Anonymous Coward says:

Re: Re: Re:2 Re:

Great analogy. If a threatening phone call comes from your phone number, you can bet that the cops will investigate you. Maybe somebody else used your phone, or maybe somebody spoofed your number. That’s irrelevant. They will investigate the person whose phone number it is. That’s where the investigation will start. How else would they start the investigation?

Anonymous Coward says:

Re: Re: Re: Re:

Since we know that an IP address does not identify an individual

Not exactly true. We know that an IP address indentifies a single connection. There is no way for anyone to know what is on the other side of that connection until discovery is made. Also, in the case of end users on an ISP, an IP address (obtained with a username / password on login) identifies a single account holder.

Legally, it needs to be seen the same as a single phone. While you may say SODDI when you get the bill for all those 976 numbers you called for “psychic advice”, it is pretty hard to get out of your responsibility for your own phone line. If you as an internet subscriber allow others to use your connection, or have devices like wireless on your connection, you should be responsible for what happens on it.

Joe’s shop should probably keep logs of all the MAC addresses that use their service, or perhaps have the ISP “pass through” IP addresses rather than assigning them locally. That would change everything, wouldn’t it?

Anonymous Coward says:

Re: Re: Re:2 Re:

Give me your IP address and I will make you look like a pedo right now.

That is how easy I can spoof your IP.

Do you really want to equate an IP to a fixed residential phone number or car plates?

MAC addresses are crap too, since I can use a virtual router that will have its own MAC address and be viewed by other machines as real hardware.

You are not a tech guy, why are you trying to define what should or should not be when you clearly don’t understand how things work?

Gwiz (profile) says:

Re: Re: Re:2 Re:

If you as an internet subscriber allow others to use your connection, or have devices like wireless on your connection, you should be responsible for what happens on it.

Really? My public library would disagree with you on this. Free WiFi with no registration, just walk in, sit down and connect. And it’s that way because the people who fund the library (us hard working taxpayers) want it that way.

Anonymous Coward says:

Re: Re:

“I think you don’t understand that having an IP address allows a rights holder to file a lawsuit. Once the suit is filed, they can subpoena the identity of the subscriber of that IP address from the ISP. And then from there, they can commence further discovery against the subscriber. And, yes, they can send them a settlement agreement if they so wish.”

Let me get this straight: you use your only evidence – and IP address – to try to discover the person you want to sue.

Let me be clear here: you have absolutely no more evidence, correct? Then:

“…NOBODY’S SAYING THAT AN IP ADDRESS IS ENOUGH EVIDENCE ON ITS OWN. Total strawman, and if you actually believe that, it shows you have no idea what’s going on. The IP address is just the starting point.”

Is a complete logic failure. Your only evidence *IS* an IP address. You just used that evidence to try to obtain a name. What are you trying to argue here again? That that discovery process is a waste of time because your evidence is so weak? If so, then we agree.

“HOW ELSE is a rights holder supposed to identify those who infringe their works? What other evidence could they have to go on but the IP address? Answer me that. Tell me what better way there is.”

You tell me. It is not our job to defend the indefensible.

Anonymous Coward says:

Re: Re: Re:2 Re:

As you guys have noted, the IP address does not identify a person. The lawsuit allows discovery to proceed so the infringing person can possibly be identified. Depositions can be taken. Computers can be analyzed. Etc. The IP address is just the starting point.

Let’s do an analogy. (I know most of you don’t understand how analogies work, but I’ll try it anyway.) Say that your car was used as a getaway vehicle in a bank robbery. The cameras at the bank caught the license plate number as clear as day. Are the cops going to get a warrant and show up at your house to investigate? You better believe it. Maybe the car was stolen the night before, or maybe your son’s friend had a copy of the key, and he borrowed the car to commit the crime. None of that matters to the issue of whether or not the cops can get a warrant. The license plate is the starting point of the investigation.

Now, some of you are making the argument that since IP addresses don’t conclusively prove who the infringer is, there should be no lawsuit. That misses the whole point. Does the fact that your car was used in a robbery necessarily mean that you are the robber? Of course not. Does that mean the cops can’t get a warrant and investigate you? Of course not.

The lawsuit allows the plaintiff to attempt to figure out who the infringer is. It’s really, really simple.

Atkray (profile) says:

Re: Re: Re:3 Re:

Except instead of the police getting warrant, what seems to happen is a letter is sent out saying:

“We have absolute proof your car was involved in a robbery. Unless you pay us $50,000 dollars by Friday, we will be forced to sue you and pursue criminal charges against you. As you are probably aware since you are a robber Charlie Manson is looking for a new roommate and our attorneys assure us we will be able to collect at least 4 million dollars from you and your family. We will only make this generous offer one time because we don’t like to make deals with criminals but we are, after all is said and done, a kind and loving corporation so we feel compelled to at least give you this one fleeting chance to redeem your immortal soul.

p.s. failure to respond to this offer will be interpreted by the courts as admission of guilt.”

Anonymous Coward says:

Re: Re: Re:3 Re:

The thing wrong with your analogy is that a car to be caught on a camera traffic needs to be there physically and there is no way to falsify that information easily, an IP address on the other hand can be spoofed easily, and the equivalent of that on a camera traffic would be to hack into the camera and start sending photos of vehicles that never passed there and start harassing people who never drove there, the trackers for Bittorrent frequently send random spoofed IP’s(IP poisoning) photos of cars that never used the system.

In the real world and in the virtual world people are rightly indignated by either one.

If cameras cannot be trusted to point to a real car nobody in their right mind would approve of such a system, why do you want others to rely on flimsy evidence to start such serious things?

Anonymous Coward says:

Re: Re: Re:3 Re:

Quote:

Now, some of you are making the argument that since IP addresses don’t conclusively prove who the infringer is, there should be no lawsuit.

An IP alone can’t even prove conclusively that a computer was in the system, are there easy ways to hack a traffic camera to spoof cars and keep sending thousands of fake images with random car plates?

Would the police use such a system to start proceedings against others and not suffer a backlash for accusing a lot of innocent people?

IP poisoning is a common tactic in every P2P network out there.

Anonymous Coward says:

Re: Re: Re:3 Re:

But if your car is used by someone else to commit a crime, all you have to do it let the police investigate and it will be resolved. In these IP cases, if you sit back and do nothing you are assumed to be guilty with a default judgement against you. You have to actively prove your innocence with a significant cost of time and money.

G Thompson (profile) says:

Re: Re: Re:3 Re:

Taking your analogy lets look at the evidence that allows the LEOs to obtain probable cause that a warrant can be obtained.

They have a licence plate number, and an electronic hash checked video log that is not only probable but also relevant in nearly all jurisdictions worldwide.

But that is not all, they also have the vehicle make, shape, colour, and other distinguishing marks of that vehicle, and hopefully an image (or shadow) of someone within that vehicle in the drivers seat.

They then match via the Registration plate on a probable database that that specific make, colour and type of vehicle actually belongs to that plate and on the basis of that obtain warrant (actually they would do a search on priors of the owner of the vehicle first too just to tick all boxes) to question and impound vehicle (if found) for forensic purposes.

Whereas with an IP address there are no probable parts to it. It is a factoid and by itself has no identifiers to any one or more individuals, there is no contextual basis and no probability of the methodology that obtained that IP in the first place alleging that something was infringed.

As in your analogy the Onus is on the LEOs to prove there is reasonable suspicion.

In the current regime with IP address’s in the USA and elsewhere the full onus is on the alleged infringer to prove there is no reasonable suspicion.

There is no probability in the beginning, which is why some courts (Australia being the latest) have stated that the prima facie evidence gathered by the License Holders must be unequivocal and cogent

Which an IP address alone is not, especially when backed up by ambiguous affirmations by biased parties.

Michial Thompson (user link) says:

Re: Re:

They may have a right to send the “settlement letters” but I also have a right to file extortion charges too.

I agree that they have a right to protect their works, and I for one support that right 100%. If they wish to accuse someone of infringment they should simply take it to court. Sending a threatening letter to someone is far from the appropriate way of doing things. Especially when it says pay up or we will do substantial financial harm to you. Nothing more, nothing less.

I use p2p for moving files around on my servers in an efficient manner. Those files are all legitimately mine, and my p2p hosts are private to me. Having them scan my IP Addresses, determine I have P2P running and then sending me the bullshit letters IS extortion.

Anonymous Coward says:

Re: Re: Re:

Settlement agreements are par for the course. About 90% of cases settle before making it to trial. Are you suggesting that the plaintiffs should not be allowed to offer to settle? That will never happen. Settlement is preferred in the legal world. Often, the cost of settling will be less than the cost of litigating. Why do you want to make this more expensive for the defendants?

Planespotter (profile) says:

Re: Re: Re: Re:

lmao… so you get a letter from some upstart legal firm who tell you that unless you cough up ?1,000 they are going to take you to court for downloading “Fisting Phil, Rimming Roger Vol III”, you know that people think along the lines of “where there’s smoke there’s fire” and that mud sticks… so rather than go the public route of defending yourself (given limited finances/time compared the infinite funds/time of the legal firm) and trying to prove your innocence you just cave and pay the money.

Thats not extortion? they are banking on you settling, they don’t care whether you are guilty ot not, whether the evidence would stand up in court they just hope that the thought of going to trial and spending all the money/time is too much and you’d rather just cough up a smaller amount.

Scum, the lot of ’em.

Anonymous Coward says:

Re: Re: Re:2 Re:

Nobody has to settle. A defendant can try and prove their innocence in court. I see this as the judicial system being used for its intended purpose, namely, enforcing the rights of those whose rights have been violated. You are so hyper-focused on the defendants that you don’t consider the rights of the other side.

Ron Rezendes (profile) says:

Re: Re: Re:3 Excuse me?!

“A defendant can try and prove their innocence in court.”

WTF!!! The court system is/was NEVER intended for someone to PROVE their innocence! You ARE INNOCENT, UNTIL PROVEN GUILTY. Quit using the court system as your business method you intrepid little f*ck!!!

And you wonder why we have so little respect for those on the other side of this debate?

Anonymous Coward says:

Re: Re: Re:4 Excuse me?!

WTF!!! The court system is/was NEVER intended for someone to PROVE their innocence! You ARE INNOCENT, UNTIL PROVEN GUILTY. Quit using the court system as your business method you intrepid little f*ck!!!

And you wonder why we have so little respect for those on the other side of this debate?

Hey dipshit. Once the plaintiff proves their case sufficiently, the burden shifts to the defendant to prove their innocence.

Gwiz (profile) says:

Re: Re: Re:3 Re:

I see this as the judicial system being used for its intended purpose, namely, enforcing the rights of those whose rights have been violated.

I’m curious here. Would you support a change in the legal system where the litigators are capped on what they can charge for legal representation?

Some sort of flat fee for legal fees that would equal the playing field between large corporations with endless money and the average person scraping by paycheck to paycheck?

Anonymous Coward says:

Re: Re:

Good point. Why should it be? Copyright only covers a specific expression. 3gigs of mangled bits probably should not be covered by copyright (they are mangled bits until the download is complete…at least in bittorrent), even if they ARE part of a copyrighted work (in any event, there’s no way to tell if you just look at/try to open the file).

Anonymous Coward says:

Re: Re: Re: Re:

You try to watch a movie that is only half-way done. At least in the old days (if I remember correcly), bittorrent data was downloaded in a random order: you could pre-allocated disk space for the files, which would be filled with “trash”. The file had to be rebuilt in the correct order AFTER the download was completed. So, yeah, it’s mangled data.

Planespotter (profile) says:

Re: Re: Re:3 Re:

oh dear, what you are describing is theft, you have taken something and the original owner no longer ahs it. This is completely different to infringment where I take a COPY of something leaving the original in the hands of its owner.

Please try and not get the two things “Stealing” and “Infringement” mixed up, it does nothing for your arguement.

Anonymous Coward says:

Re: Re: Re:3 Re:

Irrelevant. If, using bittorrent, you upload/download 0.00001% of a work, or 10,000 copies of the same work, it’s one infringement. The bits aren’t mangled at all. They are in a specific order, one that precisely duplicates the work being copied. You’re going to try way harder than that. I am awarding you the Techdirt Idiot of the Day Award. Congrats!

Planespotter (profile) says:

Re: Re: Re:4 Re:

If I create a torrent for a file I can either specify how many “bits” the download will be made up of or more commonly I’ll let the client decide for me based upon filesze.

So lets say we have a 700MB movie made up of 1024 bits, a client will try and download those bits from seeds/peers in the swarm, it won’t start at bit 1 then 2, 3, 4 and so on it will download bits at random from whoever it gets connected to based upon what you need to complete the file and what they are offering. You could be at 99.9% with only 1 bit remaining and until that bit falls into place you have a pile of garbage taking up space on your hard drive.

If I never get that last bit but continue to sshare the other 1023 bits am I infringing? I cannot give anyone the whole file.

Anonymous Coward says:

Re: Re: Re:4 Re:

actually from a true engineering perspective, if you did not download 100%, then you did not get a copy, you now have many 1’s and 0’s that may or may not make some movie, picture, or song… with out the 100% you really can not say it is x,y, or z because of how a bianary file works, Yes/NO, ON/OFF, 1/0… you can make a reasonable guess, you can try random replacement, but when all is said and done its not a copy and can not be a copy with out the final bit of data… i guess you could say its a derivative work 🙂

Anonymous Coward says:

The IP address is the camel’s nose poking out of the tent. Without taking the case to court with the IP as your only identifier, it is hard (if not impossible) to find out who is in the tent.

I think the court here got this very wrong. If the IP address and the index of files is more than enough to allow the file sharing to happen, it should also be enough to work from legally. Otherwise, they have once again created an unbalanced situation that would have to be addressed by the lawmakers in that country.

Any legal judgement without balance is a poor judgement, no matter which way it falls.

Anonymous Coward says:

Re: Re: Re:

Jay, it doesn’t matter how they promote, if the first customer buys the product and shares it with everyone else, there is no “market”. Quite simply, the only way the media companies are in business at all now is that a significant number of people either are not aware how to pirate, or have no interest or desire to learn.

Your answer is a pat answer that does nothing.

Jay says:

Re: Re: Re: Re:

What’s with the absolutism in your argument?

You are ignoring so much evidence as to make yourself irrelevant in the argument. There continue to be secondary markets that can be exploited along with avenues to tap for growth. Ex1 – compete with netflix. Ex2- MAKE PEOPLE PAY FOR ACCESS! Ex3- And this is a big one… Stop suing people for dubious claims of infringement!
If you want to remain ignorant of all the information that says these lawsuits are frivolous, I can’t stop you. You just have my pity.

Ole Husgaard (user link) says:

Some perspective

For years the danish anti-pirates have been running an extortion-like campaign, similar to what you have seen in the US in recent years. The method was similar: Find people on file sharing networks, get the subscriber identity from the IP, and send a mail requesting payment for a settlement with a warning that criminal charges may apply if the requested amount is not paid. But never take any case to court.

In Denmark a “pirate group” surfaced to oppose the antipirates. And they started informing people that they should just ignore such “extortion” letters, as nothing would happen if the letters were ignored. Soon everybody knew.

This forced the anti-pirates to start a few court cases. Of course they started with cases where the accused had replied and admitted to using a p2p-program. The case mentioned here is one of these cases.

This caused our local pirate group to explicitly warn people not to admit anything, as only people who had admitted to file sharing would be sent to court.

We think that this again made the number of settlements (a number kept secret by the anti-pirates) to fall, as they took a few cases to court where there was no admission of file sharing. The anti-pirates lost these cases in our High Court in 2008, with judgments saying that copyright infringement by the internet subscriber could not be proven if the subscriber had an open wireless network or if more than one person had access to the internet connection. This made the anti-pirates stop their “extortion” campaign.

The recent judgment by our Supreme Court is interesting for several reasons:

1) The decision says that a screen dump taken by the anti-pirates is not sufficient evidence that the works listed in the screen dump were actually shared. No prior court case in Denmark explicitly said if this could be used as evidence, and the screen dumps – which can trivially easily be falsified – were the basis for the “extortion” campaign.

2) Previous judgments from our High Court had established a “double damages” principle. This meant that if the court thought you had shared ten CDs each costing US$15 in retail, you had to pay US$300 in damages. In this decision, our Supreme Court clearly said that this principle does not apply in cases of non-commercial file sharing.

3) The only reason the defendant had to pay any damages was because he at an early stage (after receiving his “extortion” letter, but before any court proceedings started) had admitted to the anti-pirates that he digitized around 500 vinyl records he owned (legal here), and shared them with a file sharing program for a few days (illegal for copyrighted works without permission). All other “evidence” was tossed out by our Supreme Court.

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