February 09, 2011 | Peter Bradwell

ACS:Law and overstated proof

Yesterday afternoon saw the latest twist in the protracted story of ACS:Law. They have been engaged in a campaign to intimidate and extort money from thousands of people with little evidence and even less proper due process. Last week, with their flimsy cases facing scrutiny in court, ACS:Law wound themselves up, disappearing in a puff of smoke like cartoon villains. But Judge Birss, of the Patents County Court, insisted that the cases must continue.

And so the case drags on. But aside from one law firm's nefarious practice, it offers us important lessons for the way copyright enforcement works. In particular there are implications for that flagship but very flawed legislation aimed at reducing file-sharing in the UK, the Digital Economy Act. It is important to say that these lessons have nothing to do with the rights and wrongs of copyright infringement. They have everything to do with basic principles of justice and due process. If you are accused of doing something wrong, you are presumed innocent until proven otherwise by sufficient evidence. You would expect there to be reasonable ways to defend yourself. Punishments should follow this kind of process.

However, the evidence used against alleged infringers, as things stand, is weak. ACS:Law relied on the identification of subscribers from IP addresses, which are linked to a subscribers accounts by Ineternet Service Providers. However, this produces unreliable results offering no certainty that the person identified is the person who committed the infringement. Not only is the process of linking IP addresses to subscribers problematic, but that process identifies the owner of the connection and not the person who committed the infringement.

ACS:Law got away with their letter writing, according to the Judge, by 'materially overstating the untested merits' of their proof. This saw plenty of innocent people harassed – often people who, according to one of the legal teams representing the alleged infringers, 'have explained how they cannot possibly have uploaded or downloaded copyright protected material'.

A similar method is applied in the file-sharing provisions of the Digital Economy Act. It compels Internet Service Providers (ISP) to connect IP addresses with subscribers. That information is used to create lists of alleged infringers.

But instead of leading to court action, as in the case of ACS:Law, under the provisions of the Act the subscriber is contacted directly by their ISP. After being warned about the use of their account for infringement through letters, it is possible that the subsequent sanctions could see people having their internet connections slowed down or suspended. This is on the basis of very problematic evidence. And crucially without the judicial oversight that has, to tease out one sliver of good news from this, ultimately rumbled ACS:Law. All of the problems of the evidence remain. But none of the eagle-eyed diligence applied by Judge Birss.

ACS:Law's legacy includes some clear lessons for the future. One way to help make sure that policy makers heed them, you can sign our petition calling for the repeal of the file-sharing and web blocking sections of the Digital Economy Act here.