A friend of mine pointed a rather interesting article out to me (Link to p2pnet.net – the original daily p2p and digital media news site) which basically slaps the RIAA’s legal representatives for very poor legal practice in their typical pursuit of a perceived downloader.
Reading through an interpreting the legal wording, the lawyer highlights to key points, firstly following of due process and technical requirements for proof.
In terms of due process as is well known the RIAA are asking companies to watch IP traffic, then identify the recipient without in terms of the translating IP traffic to ISP known information. Then having identified someone telling them of legal prosecution unless they negotiate that they will pursue court proceedings. However, the lawyers must go through the courts to get the information from the ISP, then check all the proofs of liability properly, rather than simply accept their client’s claim – as without doing this means they are liable for counter claim. Rebuttal of assumption that a response or lack of in request to negotiation for settlement as an admission to committing the offence. Lastly, at least one of the companies being used by the RIAA to acquire the basic information appear to have been proven to not be qualified expert witness – so just because they identify IP traffic suggesting that someone has taken copyrighted material isn’t sufficient to qualify as an expert to the whole case.
On the technical side, the letter indicates that the only conclusive proof of liability is finding evidence of the copyrighted material concerned on the hard disk (or other storage device) as the network traffic as seen by the ISP is not enough given the other potential opportunities to abuse someone’s system such as:
- operating system security (and Windows XP one of the most common home PC OS’s has regular weaknesses fixed) can be subverted,
- wireless networks hacked (easily regardless of WEP etc),
- the presence of malware such as bots operating unknown to the owner/user
So prior to pursuing the litigation the RIAA should by mutual consent have the media inspected. I should say, that thinking that you could just delete the files if you found yourself in this situation will be enough – certainly wont work.
Hopefully the RIAA will realise that pursuing and suing their customers just is not practical, and the solution to the problem is to make it attractive to people to get their music legally.
Phil (aka MP3Monster)'s Blog 