Tuesday, February 15, 2011

Ofcom ISP Code of Practice for Dealing with Internet Copyright Infringement to be Published Soon Pursuant to the UK Digital Economy Act

See Top10.com Broadband News which tells us that Ofcom 'to publish ISP copyright code in 6 weeks' as required by the UK Digital Economy Act.

Copyright Infringement: Are IP Addresses People? England and Wales Patent County Court Says P2P Illegal File Sharing Does Not Mean Subscriber Did It: But What About Imputed Liability?

At arstechnica.com Matthew Lasar refers to a problematical case in Court confirms: IP addresses aren't people (and P2P lawyers know it).

His Honour Judge Birss QC points to the obviously trite fact that owning an IP address is not foolproof proof that the subscriber did it, analogizing to the ownership of a printer as no proof that the printer is being used for copyright infringement by the printer owner. Why, "anybody" might have access to that hardware.

However, dear judge, there is the concept of responsibility of ownership, variously referred to in the law as vicarious or imputed liability for ownership negligence. If a car you own is involved in a leaving-the-scene accident, it is generally presumed that the registered owner or designated driver or an authorized agent was the driver, unless it can be proven that someone unauthorized was driving the car or reasonable doubt about the driver exists. If a certain printer or IP address belonging or traceable by possession to you is being used for copyright infringement -- and you did not do it - then who did?

This is a simple problem at law in which the burden of proof should simply be shifted to the the owner or person to whom an IP address is registered, assigned or otherwise traced, who is then responsible for proving who was using it or casting sufficient doubt about the matter to escape an assessment of culpability.

Asking a 3rd party to be able to determine "usage" is nonsense. The law has some obligation to be sensible and to look for the simplest sane solutions.

Hence, we can not support this wayward court decision in any way and would suggest to the legal beagles in England and Wales that they put this matter into better jurisprudential and legislative order.

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