Swedish Court Recognizes That Entertainment Industry Needs To Actually Present Evidence In File Sharing Case

from the evidence-needed dept

Ever since the entertainment industry started suing individuals for file sharing, some people have been asking how strong the evidence really is. Just because someone has made a file with a certain name available, it doesn't mean that file is actually the file the industry thinks it is. Also, just because they put it in a shared folder, it's an open question as to whether or not they've really distributed it. Then, of course, there's the big question over how you prove that a particular individual is actually responsible if you just have an IP address. That IP address could just represent a router on which many computers or many users on a single computer use. The US courts have started to recognize these issues in some cases, but it appears that Swedish judges are much further ahead. There, the court of appeals has acquitted a man who was accused of sharing a movie. The man admits he downloaded the movie, which at the time was still legal. The entertainment industry accuses him of then sharing it, but the only evidence they have is his IP address and the fact that there was a file named after the movie seen at that IP address. While the man's lawyer focused on all the reasons why this isn't enough evidence, it appears the best the industry lawyer could come up with was to talk about the consequences file sharing could have on the entertainment industry. Whether or not that's true (and plenty of people will debate it), that's not showing any evidence that this guy actually shared a file. The appeals court agreed, and noted that there simply wasn't enough evidence presented to prove that the man ever uploaded the file from his computer to anyone else's machine. This isn't to condone the action of downloading or sharing unauthorized content, but to note that the entertainment industry needs to actually be able to prove it happened, rather than just complain about the impact of file sharing, as if that proved someone's guilt.

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  • identicon
    Edward Bear, 3 Oct 2006 @ 4:30pm

    Hmmm. Might be a lesson there...

    If the MPAA can ban the requirement for proof before convicting someone in order to fight file sharing, maybe Congress can abolish the need for proof before convicting someone of terrorism... Oh, wait....

    reply to this | link to this | view in chronology ]

  • identicon
    casey kochmer, 3 Oct 2006 @ 4:49pm

    connecting the ip dots

    Perhaps MPAA and RIAA will chat with Bush, get his Nod of approval to make file sharing a terror sponsor activity... Only terrorist's file share right?

    And then water board the truth out of everyone...

    Peace in our brave new Age

    reply to this | link to this | view in chronology ]

  • identicon
    casey kochmer, 3 Oct 2006 @ 4:49pm

    connecting the ip dots

    Perhaps MPAA and RIAA will chat with Bush, get his Nod of approval to make file sharing a terror sponsor activity... Only terrorist's file share right?

    And then water board the truth out of everyone...

    Peace in our brave new Age

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 3 Oct 2006 @ 5:00pm

    Look, we're all pretty intelligent here, and most of are working with a fair amount of common sense. I think we can almost all agree that this guy probably shared the movie (which I'm most definately okay with).

    But let's not sit here and play dumb dumb, thinking that will better validate our point. Let the argument that "The Industry" simply shouldn't through some political weight around thinking they don't need to follow up with any proof of wrongdoing be what we attempt to get across.

    The other hypotheticals of "Just 'cause it was in a shared folder..." and "Anyone could have used that computer..." simply dilude the argument, and sound nothing more than the rants of a 10 year old who's been caught with his hand in the cookie jar.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Oct 2006 @ 6:49pm

      Re:

      "I think we can almost all agree that this guy probably shared the movie"

      Um, no you can't just assume that. That's the whole point of the courts decision in favour of the accused file sharer. What evidence do you have he shared the file?

      "The other hypotheticals of "Just 'cause it was in a shared folder..." and "Anyone could have used that computer..." simply dilude the argument, and sound nothing more than the rants of a 10 year old who's been caught with his hand in the cookie jar."

      Again this is just retarded, so you are saying a shared folder = file distribution? I have many shared folders NONE of which are used to share content with anyone other than those computers directly connected to my home network.

      Lets just thank God for the fact cunts like you aren't judges and that the actua judge had a bit more common sense.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Oct 2006 @ 9:50am

        Re: Re:

        OJ had blood...
        a knife...
        even DNA.

        Are we not to assume he was innocent based on what a jury found, or should we use our common sense to help us in the obvious?

        reply to this | link to this | view in chronology ]

  • identicon
    Stu, 3 Oct 2006 @ 5:14pm

    hypothetical?

    Convict without proof? - ok what happens when they screw YOU over like that. Can't happen? Don't bet on it.

    He doesn't have to prove his innocence - they have to prove him guilty.

    You can't depend on people to do right - you have to depend on the system to guarantee our rights - and that's going away fast.

    Once our rights are gone they are gone for good.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Hero, 3 Oct 2006 @ 5:16pm

      Re: hypothetical?

      I now must recind my earlier declaration that most of here have a bit intelligence and common sense.

      Stu, you completely missed my point.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Oct 2006 @ 5:37pm

        Re: Re: hypothetical?

        No, he didnt miss it, he countered it perfectly.

        You, however, fail to grasp how the system works, therefore you dont seem to understand that your "point" was/still is easily negated as the rantings of the ill-informed.

        reply to this | link to this | view in chronology ]

  • identicon
    Stu, 3 Oct 2006 @ 5:20pm

    missed?

    perhaps so. please say it again :)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Hero, 3 Oct 2006 @ 5:40pm

      Re: missed?

      We need to keep the focus on the big picture. The MPAA (and others) are simply using their political muscle to bully the public (us) into conforming to their idea of how things should be. We need to remind our courts (and the public in general) that we require proof of wrongdoing before we attempt to make example out of people and ruin their lives in the meantime. More importantly, I think before that even happens, we need to determine what, if anything, constitutes "wrongdoing".

      These are the big boys. They have money and people on their side. And let's not forget that they are simply trying to scare the public into joining them on that side. I think we're better served abandoning the old arguments that make us sound ignorant. Let's admit that yes, we share, and focus on convincing those that matter that sharing isn't wrong.

      Remember, sharing is caring.
      And caring is sharing.

      reply to this | link to this | view in chronology ]

  • identicon
    Tim, 3 Oct 2006 @ 5:29pm

    To be honest, I tried to read the above post that stu replied to, and it didn't make any sense to me at all. If you're making the point on whether or not he shared the files on the balance of probabilities is one thing (It wouldn't have worked then either) but to prove the issue beyond "A reasonable doubt" is quite different indeed.

    You tell us we're missing your point? Please write things in plain English. I had to read it half a dozen times and I still couldn't make any sense of it.

    reply to this | link to this | view in chronology ]

  • identicon
    chastyti, 3 Oct 2006 @ 5:56pm

    cyber-terrorism

    this is from a few posts back, but as far as i know recent legislation includes quite a few computer based activities, including the courier networks that usually release and actively distribute alot of the content on file sharing networks (0-day groups, etc...) are already included as "terrorist activities".

    i am sure from first hand knowledge that a group of individuals can be prosecuted using different laws concerning personal rights, privacy, etc. than individuals.

    lets be sensible and realize that the most popular and widely distributed / easily available / etc.. files that people go for are originally ripped, distributed, seeded whatever by a competitive group of individuals with history going back 10-20 years.

    these people also need to be proven guilty, with records of actual file downloads, and damages, etc. right alongside johnny downloader who leeches exclusively and cant be proven to have shared the content with anyone.

    i dunno. file sharing already is terrorism. just depends how much you do it, how well connected you are, and if you actually SHARE versus leech from what i can see.

    xoxo c

    reply to this | link to this | view in chronology ]

  • identicon
    stuff left outside, 3 Oct 2006 @ 8:01pm

    if i leave my bike outside, who is guilty of a cri

    All the court can potentially prove is that something was left where it could be taken. In this case, they can't even prove that what was left was, in fact, a movie. Unless, of course, they engaged in the illegal act of grabbing it from the person's shared folder. And then, would the person who shared the folder be guilty of anything more than failing to adequately secure their system?

    reply to this | link to this | view in chronology ]

  • identicon
    Music Pirate, 3 Oct 2006 @ 11:48pm

    Please don't take me to court, I'll win. ;)

    reply to this | link to this | view in chronology ]

  • identicon
    Matt, 4 Oct 2006 @ 2:14am

    I have a question regarding lawsuits against P2P users. If a user doesn't share a complete file to another user, how are the being charged?

    That's to say if I share a few small 'slices' of a compressed file with a filename that indicates potential copywrite infringement, is that illegal? If I don't supply a complete file to a single person, how can it be confirmed that the file I shared is what I said it is? OK, maybe 100% isn't necessary. What about 80%? 20%? 1%???

    reply to this | link to this | view in chronology ]

  • identicon
    DoxAvg, 4 Oct 2006 @ 4:41am

    Burden of proof

    Many of the points made in this article (outside of some name-calling) are at the heart of file sharing enforcements.

    A.Hero's point is valid, in that nobody is saying with a striaght face that he didn't share the material, and that anybody who attempts to legitimately assert that he wasn't distributing is lying to themselves and everybody else.

    Stu's point is that while we all have a reasonable suspicion that this guy was sharing the movie, the evidence presented doesn't meet the burden of proof beyond a reasonable doubt (the burden required for American courts, and presumably Swedish ones, too). A screenshot doesn't cut it; the actual filename sent across the wire doesn't cut it, only showing that he was actually distributing a copyrighted work is sufficient.

    Matt makes the case that even starting to download the file may not meet the reasonable doubt bar. Who's to say that if you downloaded 20% of the file, the other 80% isn't random noise? This then raises the question of the legality of sharing 20% of somebody else's copyrighted work (*cough* YouTube *cough*), but for the applicability of this case, it raises an interesting question. There's also the question of the distinction in law between _offering_ the material and actually distributing it. Since law enforcement doesn't have a record of any actual transfers to a third party, should this be punishable? Should the transfer to the law enforcement officer be punishable? Is this analagous to selling drugs to an undercover agent?

    Stu's last point is at the crux of the issue: while we all know this guy is guilty, if we dont' hold the courts to a high burden of proof in this case, they'll keep lowering the bar again and again until we degenerate into what we hate. In Soviet Russia (for real, in Soviet Russia!) the easiest way to get yourself a better apartment was your neighbor of treason. The bar of proof was so low that it almost always ended in them being convicted and sent to prison, at which point their apartment was up for grabs. McCarthyism brought us periously close to this, and the current breakdown of the separation of powers is undermining the checks put into the system by our founders. I respect the Swedish courts for their constant vigilance in this matter.

    reply to this | link to this | view in chronology ]

    • identicon
      YouKnowNothing, 4 Oct 2006 @ 6:25am

      Re: Burden of proof

      while we all know this guy is guilty

      No. No, we don't. Neither do the courts. That's why the man was aquitted.

      I have a file on my computer called britney.mp3. It's a recording of my 9-year-old neice singing in her church choir. It's sitting in a shared folder on my network. Am I guilty of copyright infringement? By your logic, you just "know" I am guilty.

      Just like this guy...

      http://www.macobserver.com/article/2003/05/13.7.shtml

      reply to this | link to this | view in chronology ]

  • identicon
    Yes I AM a Lawyer, 4 Oct 2006 @ 6:03am

    Level of Proof

    Once and for all I wish everyone would get this straight:

    CRIMINAL cases require proof BEYOND A REASONABLE DOUBT.

    CIVIL cases require proof by A PREPONDERANCE OF THE EVIDENCE (that is - 51% in the plaintiff's favor and a much LOWER standard than criminal).

    Now, the case in the article was a CRIMINAL prosecution, so the application and consideration of BEYOND A REASONABLE DOUBT is approrpiate.

    For all these "cases filed by the RIAA or MPAA" against individual file sharers, those are private, civil cases (just like the one I'd file agaisnt you if you ran a stop sign and hit my car) and the level of proof required is much lower.

    The real important thing of this article and case is the recognition that screenshots don't equal real evidence. I've been waiting patiently for a case in the US to actually go to trial to see just how the courts would manage that and this may give us an insight as to that answer.

    While I'm on a roll - yes, the RIAA is full of it when they say sharing is theft; its not, but it IS copyright infringement and frankly, you all should be wishing it was theft (in the civil case meaning, not criminal) because the civil damages are the value of the item stolen ($0.99 anyone?) vs the penalties in copyright infringment ($750.00 and up).

    As a previous poster said - lets do everyone a favor and quit lying to ourselves. Put those energies to work to find and produce entertainment that's better than what the RIAA or MPAA put out, but don't bullshit a bullshitter if you know what I mean.

    reply to this | link to this | view in chronology ]

    • identicon
      Shaun, 4 Oct 2006 @ 6:42am

      Re: Level of Proof

      I am not a lawyer but I'm pretty sure there is another reason that it would be good if it was stealing, along the lines of it being a criminal prosecution.

      "You have the right to an attorney. If you cannot afford one, one will be provided for you."

      If I understand things correctly this means that you don't have to hire a layer if you don't want to in a CRIMINAL prosecution, you can instead use a court appointed one without paying a cent. This is to protect people from being forced into a plea bargain or inexpertly representing themselves I believe.

      Unfortunately from what I have seen this protection does not apply in CIVIL cases such as the RIAA is filing. With these you have to hire your own layer which means that an innocent victim of one of these lawsuits would most likely be financially better off giving in to the extortion.... I mean "settling"

      If you or any other lawyer would like to coment on the acuracy of what I have said then please do.

      reply to this | link to this | view in chronology ]

      • identicon
        Yes I AM a Lawyer, 4 Oct 2006 @ 9:18am

        Re: Re: Level of Proof

        Shaun:

        Pretty close - the only thing I'd "correct" (if you can call it that) is your description of the right to an attorney. I did criminal defense for 10 plus years and I acquired most of my clients by being appointed to represent them. In the state I worked (as states MAY be different), the defendant had to show financial need before the court would appoint any defense lawyer. In addition, if the defendant was found guilty either by trial or by a guilty plea, the costs of the court appointed lawyer were assessed to the defendant. The state then collects those costs along with any fines or other monetary judgments in the case.

        The way I tried to simply explain it was this: A court appointed lawyer isn't free, but the obligation to pay for the lawyer is delayed. The lawyer is paid the by the state and the state becomes the collector. In addition, the hourly rate charged by the lawyer is usually half of what the lawyer normally charges AND the client doesn't have to pay a retainer fee up front. Take 2 people with 1st offense drunk driving - private retained lawyer will probably be at $150.00 per hour and require a retainer of $2,000 to $3,000 minimum; the appointed lawyer is $60.00 per hour (by statute) and $0.00 retainer.

        You are correct that CIVIL cases have no right to an attorney, which is why the RIAA is finding such success in their actions, but it sometimes works the other way too - insurance companies are known for throwing small amounts at a claim that everyone can see is pretty weak. Its called the "cost of defense" settlement strategy. Abused by some lawyers in my opinion and also one of the reasons I no longer practice privately.

        reply to this | link to this | view in chronology ]

    • identicon
      that guy..., 4 Oct 2006 @ 10:41am

      Re: Level of Proof

      "I've been waiting patiently for a case in the US to actually go to trial to see just how the courts would manage that and this may give us an insight as to that answer."

      So you are waiting for a room full of incompetent, antiguated, non technical, un cultured, middle american, overweight, stubborn, arrogant, patriotic, capitalist men to determine the outcome of this NEW issue?

      You sound intelligent, but you also sound like you are gullible, or a victim of your system of things, or, a victim of the US education system...

      Maybe this might help:

      You are like a used car salesman who goes to buy a new car and believes everything the salesman tells you.

      Where facts are few, experts are many.
      --Donald R. Gannon

      Education is a state-controlled manufactory of echoes.
      --Norman Douglas



      People... open your eyes. You spin your wheels on small issues. Larger issue: our governing bodies are idiots.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Oct 2006 @ 12:30pm

        Re: Re: Level of Proof

        That guy:

        Your arguments are valid, and I'll give you each of your synonomous descriptions for our lawmakers...

        But "overweght"?

        You knocked it down a few grades when you threw that one in.

        "You're....FAT!"

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Oct 2006 @ 1:26pm

        Re: Re: Level of Proof

        No - I have faith that there are colleauges of mine (Mr. Beckerman for one) who DO understand the technical issues, have the appropriate contacts with witnesses who can explain those technical issues AND have a grasp of evidentiary law to navigate what is clearly a novel evidentiary issue while at the same time being able to properly present the technical issues to the "room full of incompetent, antiguated, non technical, un cultured, middle american, overweight, stubborn, arrogant, patriotic, capitalist men" as you put it. Once such issues are presented properly, even if they are technical, it is my opinion that we will start to see the RIAA cases fall apart because they don't have a preponderance of the evidence to prove infringement. Unfortunately, it won't stop them from trying until there are enough appellate cases that say "screenshots aren't enough".

        Most judges I have encountered DO care about getting it right and will listen to you if you make sense (they aren't stupid either - I can practically guarantee you the judges in Sweden understood exactly what the guy was doing- as the above commenters have pointed out - but they applied the law as written.)

        Let's face it, Mr. Swede dodged a bullet; he knows it, we know it and the prosecutor knows it. In the process, however, he did admit to infringing on the copyright holder's interests, so there may be a civil pain for him later (but I do not have any knowledge of Swedish law).

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Oct 2006 @ 6:04am

    "I think we can almost all agree that this guy probably shared the movie"

    The key word is probably.

    let's put a hypothetical 99% certainty on that word.
    Convict 100 people using this argument and one of them is likely to be innocent.

    "It is better that ten guilty men escape that one innocent suffer."-- William Blackstone

    reply to this | link to this | view in chronology ]

  • identicon
    anon, 4 Oct 2006 @ 8:17am

    yeah, the guy most likely shared the movie. But what the RIAA needs to do is have actual evidence. An IP and a file listing, christ, in 5 minutes i could change my IP, rename notepad.exe to maddonna-song.mp3 load it in file share program and take a screenshot. What exactly does that prove? not much in my book. I could probably write a script to do the same and generate hundreds if not thousands of people to sue and have all the same evidence the RIAA have. Now I was actually going to post what (as an IT tech for 10 years) they could get and would be reasonable, but i'm an ass so i won't, but there do exist ways to verify, i just haven't seen the RIAA clue in yet, they aren't to keen on tech.....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Oct 2006 @ 2:46pm

    No civil pains for him. Doesn't work like that in the viking nations, IIRC. He's home free, and the *IAA have lost.

    They needed to have his PC confiscated, but again, they need to have a search warrant for that. And you can only get search warrants for crimes which can lead to jail. Copyright infringment etc. does not, in the land of elks and ABBA.

    reply to this | link to this | view in chronology ]


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