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.

Comments (5)

  1. Honey:
    Feb 09, 2011 at 02:57 PM

    Whilst Andrew Crossley may not be much upset by his company disbanding I am unhappy that he may have to wait for coffee or try to catch trains which are running late.

    As for the still ongoing cases I think a precedence is trying to be set here which could be used in further cases of potential IP theft. The issue of privacy is vastly being overlooked here. People can, and possibly will, bypass simple measures to get hold of entertainment via existing applications - the issue has to be about why people feel their privacy is being exploited upon supposition of guilt.

    I do agree that stealing material which belongs to others is wrong and measures should be taken to stop this from happening, or so easily, but let us not bypass a persons human right to converse with and be conversed to without fear of reprisal.

    If a man is not in his home and it has no flowing power then why should he be made to feel guilt when there is no chance of it being the case.

    If we allow this to happen once then we are falling far from the mark of those who built this democratic society up in the first place.

    The Human Rights Act of 1947 should be read prior to even considering harassing people over something as silly as entertainment.

    1. Jim Killock:
      Feb 09, 2011 at 03:12 PM

      Small point, “stealing” is too strong a word for copying without permission. While it may deprive someone of some revenue, the thing itself hasn’t been taken from anyone, least of all the rights holder, whose rights are infringed, rather than taken away by the copier.

  2. Steve C:
    Feb 09, 2011 at 03:04 PM

    The problem is the people judging the cases dont understand the finer points of IT, anyone with any knowledge would know an IP address is not a finger print, but more of a tyre print, you still dont know who was driving at the time.

  3. Peter Bradwell:
    Feb 09, 2011 at 03:25 PM

    Hi Steve. Thanks for your comment. I think what you say was true up to now, and is certainly true of the policy makers responsible for the Digital Economy Act.

    However I think one of the good news stories here - if there is one - is the approach of Judge Birss, who has all along wanted to give the evidence and the basis of ACS:Law's case a real going over. It's worth reading his judgement - http://www.bailii.org/ew/cases/EWPCC/2011/6.html - it's pretty scathing.

  4. Maggie:
    Feb 26, 2011 at 10:38 PM

    It's good to know that the case drags on. I hope it continues dragging all the way and never start walking or running.I appreciate very much you posting this information. Maggie - Toys Designer - Swing Sets Nashville