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File Sharing Letters

November 28th, 2007 at 20:17 by Dave Tomlinson

In previous posts we’ve discussed subjects like Net Neutrality and the effect of file sharing through Peer-2-Peer networks. In the main though the discussion has been centred around the effect on our network, how we manage the traffic and the service our customers receive.

There’s another aspect to consider as well: it would be naive thinking to assume that everyone that downloads something from the Internet has, where necessary, the appropriate permission from the copyright holder to do so.

We know from looking at our traffic graphs that the day after popular TV shows like Lost or Heroes are shown in the USA, for example, there’s an increase in downloading. Fairly easy to put two and two together.

Now as an ISP it isn’t our job to police what people download, if you’re downloading (or letting others download) TV shows, films, software, etc. without the appropriate permission of the copyright holder then that’s a choice that you make for your own Internet connection.

It is, of course, no surprise that the various copyright holders want to protect their intellectual property. For anyone that has not kept up with this topic, organisations like the RIAA and MPAA in the USA have been contacting people suspected of “illegal file sharing” for some time, as well as targeting the sites that offer (or provide links to) copyright material. TV-Links and OiNK, to name but two, are both high profile sites that have recently been closed down through legal action from one party or another.

At PlusNet we have an obligation to our customers to protect their personal data, and we take that obligation very seriously indeed. Part of our Terms and Conditions state “We will not pass any of your personal data to outside organisations and/or individuals, except for the purposes of delivering specific Services and/or Equipment, to you or with your express consent.” However it’s important that customers are aware that, as with any other business in the UK, there are circumstances where this can be overridden. An example would be where English law dictates a different path, and specifically considering the issue of file sharing, the Regulation of Investigatory Powers Act (or RIPA) is relevant. Details of the act can be found here and here. Amongst its powers under RIPA, the High Court can request from an ISP details about particular customers.

We have recently been requested to provide such details as part of an investigation by the game publisher Codemasters. They allege that a number of our customers and, from what we understand, customers of other ISPs, have downloaded and/or uploaded Codemasters’ software without their permission. They have provided the results of their investigation to an English court and that court has been satisfied that the information provided is sufficient to request details from the ISPs.

In this particular case we were provided with a list of IP addresses and a request to know which of our customers was assigned each IP address at a specific time and date. The time is very important because in the case of a dynamic IP address, when a customer disconnects that IP address will go back into the pool and it could easily be reassigned to another customer. So if the times aren’t in synchronisation there’s a danger of identifying the wrong person.

As these requests effectively come through and are processed as data protection requests by ourselves, we levy a charge for providing the data. We also need to satisfy ourselves that the requests are valid, genuine and correctly processed and so we ensure they are verified by our own legal representatives.

In the case of the Codemasters’ requests we’ve seen, our understanding is that once they received the contact details they instructed their legal representatives to contact the individuals by letter asking that each person:

1. Promise in a written undertaking not to upload, download, make available or otherwise share the Work or any of our client’s works (or other intellectual property) or to permit others to do the same using your Internet connection, at any time in the future, either from the above IP address or any other;

2. Agree to delete any copies of the Work (and any other intellectual property of our client) from your hard drive, operating system and any copies saved to disk (or other media), other than those that were purchased by you from a legitimate source, and;

3. pay £537 to this firm as compensation to our client for its losses and as a contribution to our client’s costs incurred to date.

For any customers that have received one of these letters we would suggest seeking appropriate legal advice. Other than confirming that the letter is genuine our support team won’t be able to help in relation to the letter itself.

Details of a similar case involving the game Dream Pinball can be seen here and there are discussions in forums such as Slyck and Think Broadband.

We can make a few suggestions to anyone that is in any way concerned.

We have no way of knowing whether customers knowingly downloaded the files themselves, whether another member of their household/workplace downloaded it or whether it was done via an insecure network. The first piece of advice is that if you use a wireless network is to ensure that it is secured. See this page for some advice on wireless security. Consult the manual that came with your hardware or check the help pages of the manufacturer’s website if you are unsure of how to do this.

There are also trojans that can allow someone to gain remote access to a PC without the owner’s knowledge and it’s not unknown for PCs to be used for file sharing without the owners knowledge because of a trojan. Sending spam email and DDoS attacks attacks against different servers are the most common uses for a compromised PC but using it for file sharing is not unknown.

You can also check the usage on your account using our View My Usage tool.

This will give you a total of your usage and on most accounts there’s a View Internet Activities button to let you see the split of usage into different protocols such as web, email and peer-2-peer. It’s normal to see small amounts of usage under protocols you haven’t used (e.g. a couple of MB of Broadband Phone Calls when you don’t use VoIP) because there will always be a small amount of background traffic which has to be classed as something (and may well look like VoIP for example) and there will always be traffic marked as Other because we don’t list every single type of traffic in the View My Usage tool. Remote access protocols like VPN as well as DNS lookups will appear in the Other category.

If there are though large amounts of data for categories you don’t use then someone else (maybe the kids on a home network or a work colleague for an office connection) is using them from your connection and may well be downloading files without your knowledge.

There are plenty of “legal’ content distribution systems, the BBC iPlayer, 4OD, (and the forthcoming Project Kangaroo), Napster, Steam and iTunes to name some of the most recognised. The business models of the subscription/paid services clearly work because people hand over their cash when the content may well be available on a file sharing network as well.

In many ways it’s interesting to see who is and in particular who isn’t targeted by the RIAA, MPAA and others.

In the USA 160 schools and colleges have been targeted but as yet not Harvard.

Could it be that the RIAA doesn’t want to pick a fight with people that can and will fight back? A college full of America’s next top lawyers and their wealthy and influential families doesn’t sound like a sensible target to me.

I’m sure they are concerned that someone will take a stand and challenge them. Running the danger of losing and setting a legal precedence is not what they want. Especially if it’s an “I only downloaded <insert software title> because my CD was scratched” loophole which almost anyone could use.

While I’m not trying to defend copyright theft neither am I in total agreement with the action taken. Surely somewhere down the line there’s a middle ground. Film maker Eric Wilkinson for one has had a lot of positive comments about file sharing.

Copies of his independent film “The Man from Earth” appeared on the ‘net and generated positive reviews because of this and the effect of the file sharing turned out to be a massive promotional machine for a low budget movie.

How many other examples are there like this? And how many people that download something then go on to buy it? Figures of millions of pounds in lost revenue are often bandied about as the cost of file sharing but like “The Man from Earth” does file sharing bring upon it an increase in revenue because when considered as a marketing tool it reaches consumers that either traditional marketing doesn’t or allows people to “try before they buy” when they are concerned they may not like it or in the case of software may not work on their PC.

What people download and use their connections for is their own business and as I said earlier we aren’t here to police the content people choose to download, but there are organisations that will and will do so using the laws of the country, which of course we have no choice but to adhere to. As such everyone should be aware of what they are doing, what their family are doing and what anyone else using their connection is doing and ensure that they’ve taken steps to protect their network and their PCs as best they can to stop unauthorised access with appropriate security measures including wireless protection, firewall and anti-virus software that is regularly updated.

Copyright holders are only going to be undertaking exercises like this more and more often, we know of a couple more requests that have come in to us, as well as to other ISPs. Because the requests come from the High Court we have to co-operate with them and we can only expect to see an increase in the number of cases over the coming weeks and months.

Dave Tomlinson
PlusNet Product Team

dave

This entry was posted by Dave Tomlinson on Wednesday, November 28th, 2007 at 8:17 pm and is tagged with and is posted in the category Traffic Management. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.


18 comments on "File Sharing Letters"

Tamlyn

Wow, interesting stuff. Is this a new phenomenon as a result of Section Three of the Act coming into effect at the beginning of October? http://www.theregister.co.uk/2007/11/14/ripa_encryption_key_notice/

dave

I don't think it's new because of section three of RIPA, this particular investigation would have started a few months ago and there has been a similar example with the Dream Pinball game earlier in the year.

What we used to get in the main was requests that would come direct from copyright holders or their representatives rather than via the court. Of course because we're under no obligation to provide them with any details without the customers express permissions unless the request is via the court all we would do is forward the contacts (usually they'd come in by email) to the customer in question.

I got linked here via theregister.co.uk and I think Dave you have the right idea, letting people know that various copyright holders are snooping about.. however what you say about legal downloads, not that I think its possible to really measure the numbers, but realistically what percentage people do you think really legally download (I can bet it'd be a tiny ammount, about 2% or 3% globally)? Most people will be of the mind, why SHOULD I have to pay for it if I can get it for free, and it annoys me that film studios etc.. are being like this, surely everyone in the worlds dream is to live in a utopia where there is no such thing as money and everybody is equal? Hmm we all know the real answer to this is yes, however in a court of law no company lawyer is going to take that as an acceptable answer or excuse. This is ALL about money, I know alot of people who download music and films, but you have to also remember that even though they do download the music most of them will actually go out and buy the cd or dvd if the film/music is any good (which alot of films make the hype of being really good but are in reality terribly poor, and we don't get our money back do we?), and why do they think that people download things? most people for example as you state with such programs as Lost and Heroes download as soon as its been aired, but thats mainly I guess because they want to see it straight away not wait a week or 6months for the UK to finally air it...or as already pointed out they don't want to pay the ludicrous money they charge for boxsets, so they should air it globally at the same time or on the same day and I think this would eliminate alot of the downloaders. the other thing is, where do they think the majority of the overhead costs come from that they claim they need to recoup are from?? spending silly amounts of money on actors, I'm sorry but no actor deserves to be paid £15m to act... nobody! If the industry as a whole decided they were going to pay 10% of their current wages to the actors then the actors would have no choice but to either take the 90% pay cut and work or just not work at all and let lesser known actors come through the ranks... the kind of behaviour that the studios display is awful, protecting your livelyhood is one thing, but in the case you've explained about with codemasters is absurd, I seriously doubt that its cost them so much that out of the 100 or so people involved have to pay £500 odd each....just my 2p!

dave

Thanks for the comment. I don't know how many people download things legally, but then legal doesn't necessarily mean you have to pay for it.

The BBC iPlayer for example is a free and legal (ignoring certain limitations) of downloading BBC TV shows. Channel 4 have 4OD and you can watch ITV shows via their website. Radiohead let people download their latest album and set their own price, although a large number chose to pay nothing

http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article2633798.ece

a lot of people paid for it even though they didn't technically have to.

Apple released a statement earlier this year than iTunes had reached 3 billion downloads:

http://www.apple.com/pr/library/2007/07/31itunes.html

Napster had over 800,000 subscribers at the beginning of the year:

http://www.napster.com/press_releases/pr_070403.html

and Rhapsody in the US has over 1.4 million subscribers.

So models do appeal to people, but as you saying working out how much is legal and how much isn't to any kind of accurate amount is a very tough proposition. Plus which is the better figure, the percentage of downloads that are legal or the percentage of people downloading that download legal files.? My gut feeling would be that percentage of people downloading legal files was a higher percentage than the percentage of legal files that are download, but I can't really back that up with any figures.

It would be nice to live in utopian society but until that happens money is always going to be a factor. Maybe there are other answers. TV shows being broadcast worldwide within 24 hours is as you suggest one certainly. We're starting to see air dates closer together now, Prison Break and Lost on Sky have been within a few days, The Daily Show and The Late Show the next day and some episodes of Stargate and Battlestar Galactica I believe have been shown here first and WWE Raw is shown live on a Monday night the same time as in the US.

I'm not a cinema goer, mainly because the nearest cinema is over 10 miles away, there films I would like to watch but I generally wait for them to be on Sky or DVD, but I'm sure there's a gap in the market where there'd be an alternative to the cinema that would appeal.

As for the actors, well with these high salaries I've always been of the opinion that if your name and/or work earns the company big bucks you should get a fair share. Tom Hanks got paid around $70,000,000 for Forrest Gump:

http://www.imdb.com/name/nm0000158/bio

but I say that's fair enough given that the film grossed $679,400,000 worldwide (personally I prefer The 'Burbs but that's another story). On the other hand Eddie Murphy was paid $20m for The Adventures of Pluto Nash which only grossed around $5m. Now I like Eddie Murphy but I'm certainly in agreement on that one.

Illegal downloading is just that. illegal. If you choose to do it, then you should also be prepared to pay the price. Just like speeding in your car. Sure, most of the time you probably won't get caught but if/when you do, you were breaking the law. The excuse that everyone is doing it doesn't change the legality of the activity.

As to the actors... change the model. None one gets paid anything up front. It's all based on a % of gross. Film does good, you do good. Film sucks, you get essentially nothing.

Hi Dave,
Very interesting write up however I do have a query in response to the following:

http://arstechnica.com/news.ars/post/20070718-eus-top-court-deals-blow-to-music-industrys-fight-against-file-sharing.html

I'm wondering why this doesn't apply in this situation when the UK is part of the EU and where the EU ruling surely overrules any high court decision in this case?

I'm also wondering if you have any understanding as to why your users aren't being given the chance by yourselves or the high court to contest the claims in the high court and hence protect themselves from having their data handed over in the first place - surely the old idea of innocent until proven guilty applies here?

Is there really no option for Plus.Net or it's users to contest the claims before it even gets so far as threatening letters that are little more than extortion? There seems something very fishy about the whole thing. I was under the impression citizens of this country both had a right to be innocent until proven guilty and a right to privacy, both of which are being violated here.

Whilst it's easy to assume these people getting letters are in fact guilty, we must be cautious and ensure that any attempts to classify them as guilty follow procedure of allowing citizens to put forward their defence because as it stands the high court is essentially declaring them guilty without so much as a challenge from Plus.Net and hence without a chance of a challenge from the user either.

How exactly does the game's cost equate to £500+?

How many people are they pressing this lawsuit against? Lets say there are ten thousand of these letters sent out (number plucked from the air) that makes 5 *million* pounds. They cannot seriously say the losses from this are 5 million pounds, and even if this is the case, how does this law firm intend to prove *beyond reasonable doubt* that it was the user of the connection which did the downloading and not some external user, for example on a compromised wireless network?
If there is any reasonable doubt, then these 'charges' cannot be levied as the recipients of the letters should say 'ok, i'll see you in court' and the defendant is probably going to win.

dave

Tom, I'm not a legal expert so for obvious reasons I'm not going to go into great detail about the specifics but regarding the article that you link I think that at the moment this quote is key:

"This Opinion needs to be studied further, but it is clear it would not prevent EU member states permitting the disclosure of data on copyright infringers in civil cases," said the IFPI's spokesperson.

i.e. at the moment it's an opinion rather than policy or law.

In each and every case where a court requests details about our customers we ensure that our legal representatives evaluate the requests and make a decision as to what we can do.

I might be wrong in this but I'm thinking of one parallel you can draw from the letters and that is of a plea bargain. The individual can contest the allegation if they wish but potential of losing could be more costly.

Another parallel may be speed cameras. If you're caught speeding the police can look up the owner the car and send them a letter requesting identification of the driver and a fine for the offence. Of course the owner of the car isn't necessarily the person that was driving at the time, similarly the person who actually downloaded a file (assuming the file was downloaded which it may not be) isn't necessarily the account holder. Amd of course you have the chance to plead not guilty to the speeding offense and attend the court if you wish.

Just my 2p worth.
An early point was made about the correlation of download traffic increasing just after popular shows are aired in US. At one point earlier this year epsiodes of Season3 Lost were being shown in UK about a week behind the US airdate. The assumption then is that an immediately downloaded copy via the ISP is without copyright owner's permission. If I wait a week and record the UK broadcast on a standalone DVD recorder off-air, is this copy with or without permission? The program content hasn't changed but the delivery vehicle is different. Imagine the scale of this activity, there are millions of potential criminals worldwide recording copyright material for convenient playback so how and when does a copy of a program become illegal?
Can the RIAA/MPAA and the like explain this first please?

This has nothing whatsoever to do with RIPA.

The precedent comes from Norwich Pharmacal Co. v The Commissioners of Customs and Excise http://www.ipo.gov.uk/mcps/norwich.htm (thanks to Nicholas Bohm for the ref)

-- Peter Fairbrother

Dave, I am doubtful about what you say about the law here:
"Amongst its powers under RIPA, the High Court can request from an ISP details about particular customers."

I am rather familiar with RIPA and I know of no such power. Can you clarify the exact part of the Act to which you are referring? Or are you only going by what Davenport L:yons told you?

Also:
"We have recently been requested to provide such details as part of an investigation by the game publisher Codemasters." How did this request reach you and what was the wording? Was it direct from the court, or from the law firm? If the latter, how did the law firm demonstrate to you that they had obtained a court order?

dave

In all cases like this for us to supply any information the requests must come from a court and are all properly checked by our legal team to make sure that all the necessary legal procedures, whether it's because of the precedent Peter Fairbrother quotes above or something else that's job of the legal folks to verify, who will once they are satisified either say to us to release the details or not.

We will receive requests from other parties other than courts (we have for example received requests direct from the MPAA and RIAA) but in these cases we don't release information.

I thought ISPs only gave out their customers details on criminal cases, not civil ones?

ISP's can be forced to give out customer details in civil cases. See Polydor v. Brown [2005] EWHC 3191 (Ch). This case involved the uploading of music files. The claimants used a Norwich Pharmacal order to identify the uploader.

[...] a bit of time and space on news programs and in papers. It’s nice to see enta sharing the stance we’ve taken on the same [...]

I can understand why Plusnet and other ISP's have to give out our details when a court order is produced. Especially when it's to deter anti piracy....or ...not ??

http://torrentfreak.com/anti-piracy-lawyers-start-protecting-gay-gestapo-porn-081118/

[...] like iPlayer and 4OD are turning customers away from P2P downloads, or it could be stories like the filesharing letters or the proposed three strikes policy that is changing peoples’ [...]

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