The lawyers pursuing 500 file sharers for allegedly distributing illegal copies of computer game Dream Pinball 3D have accepted that some of its targets may have been unaware their machine was being used to distribute illegal software. However, alleged perpetrators will still be charged £300 on the assumption they were guilty …
Clutching at straws?
Davenport appear a little economical with the truth here (surprise). If someone steals my car and uses it to commit a crime, it's still not my fault even if I left the car unlocked.
Anyone with an unsecured wireless router is going to claim it wasn't them, and without physical access to the PC it's going to be a struggle to get anywhere further than that.
Demanding money with menaces?
Surely this is illegal, or at least unethical. Law Society complaint, maybe? Or whatever the german equivalent is?
Responsible for actions of stolen property and services?
So if someone were to steal my car, and then run someone over, would I be liable for vehicular homicide?
The argument they are using doesn't hold water! Even if it is a computer, the unlwaful action was brought about by a crime perpatrated against the owner of the computer! Had it been anything else, they wouldn't do this.
What if a stolen credit card was used to promote the sale of illicit drugs? Would the owner of the card get charged with trafficing? No! Computers aren't different, except people think of them as some sort of "magic" device which normal laws don't apply to.
This is patently absurd!
They might as well "Blame Microsoft"
The whole argument that it's "your responsibility to firewall and anti-virus your computer at all times, otherwise you are still liable" should be taken one step further, that Microsoft should offer software that is not vulnerable to hacking, and so won't get exploited by viruses and hackers for their nefarious uses! Sue Microsoft!
This just takes advantage of the fact that most of the victims will be cowed into paying the $300 "fine" rather than fight in court, and that any court case would be a farce because the judge/jury will hear so much jargon from both sides they won't have a clue what's happening.
Interesting choice of words
"your internet connection may have been used."
I would be tempted to reply
"Well come back when you are *sure* it was my internet connection."
I think these guys went to the same law school that SCO's lawyers attended. The arguments are just as surreal. Is there a Salvador Dali School of Law somewhere that I didn't know about?
And what guarantees my safety?
While there's little doubt in my mind that a number of those contacted most likely did share the game of their own choice, I am very troubled by the willingness of the law and the courts to treat "an IP address associated with your Internet connection" as an admission of guilt. My personal belief is that unless you find the allegedly infringed material on the defendant's computer, you have no case. And with the frequency with which vulnerabilities are found (vulnerabilities which allow attackers to completely take over a computer), multiple users using a single computer, etc., even that is not proof that the defendant is the one who committed the "crime".
What also troubles me is the fact that all these people (the courts, law enforcement, extortionists ^H^H^H record labels, etc) say to make sure you keep your anti-virus updated and use a firewall. What they DON'T tell you is that this is absolutely no guarantee of safety. The recent Windows ANI vulnerability could be exploited from anywhere -- a local file, an email, a website, etc. No firewall would protect against that since you requested the file (and most people don't use an outbound firewall [or turn off the one they do have] because they're sick of the constant "Do you want to allow...?" prompts). And since there were many zero-day exploits, no anti-virus update would have protected against it, either.
So in short, while I do agree that computer owners have an obligation to protect their computer with properly-installed and updated anti-virus and firewall software, I think it's foolish for anyone to assume that such protection will ever be 100%. And once you start arresting people for failing to completely protect their property, where does it stop? The car examples above are a good example of what can happen if this thinking is allowed to continue.
Following the Absurdalogic through
Assertion 1: The owner of an item used in an unlawful act is liable for that act
Assertion 2: Zuxxez own the game, Dream Pinball 3D
Assertion 3: the game was unlawfully copied
something can not be copied without reading the original
therefore the game Dream Pinball 3D was used in an unlawful act
it therefore follows that the owner of that game, Zuxxez, is liable for the unlawful act of copying.
So they should sue themselves.
The Car Analogy
Whilst I agree with the car analogy in theory. I think the real world is slightly different.
If your numberplate is captured speeding, the owner is treated as guilty. If the owner doesn't know who was driving the car at the time (could be a family member and no-one owns up) the owner is likely to take the wrap.
Their car may have been on the drive at the time of the infringment, it may have been a cloned plate.
However it seems to be the defendant that has to prove they're innocent. Not the plaintiff to prove guilt.
A friend of mine had his car stolen, which he reported to the police. Two weeks later a car park reported to the police that a car had been abandoned there for about two weeks.
Eventualy some bright spark figured that the dumped car was the stolen car.
So reunited then? well not so easy. The cark-park operators wanted payment for the parking that had not been paid for (by the thief), Not cheep.
Again the analogy fails, because of the way people are dealt with.
Whilst it's a grey area, using a unsecured network in some cases can get you arrested. because it's 'wrong' to access to that resource. Unless of course your suing the innocent, when it's 'wrong' to have an unsecured network.
So who's wrong?
188.8.131.52 does not make me a criminal.
Is Copying Software Actually Illegal?
It may be illegal to use software without an appropriate license, but is it really illegal just to pass around the bits? AIUI that just isn't the way software licensing works.
Adobe make most of their software available as trialware. Cracks exist that can turn these trial versions into non-expiring full versions. Obviously using one of these cracked versions is counter to Adobe's license, but Adobe (or a magazine which carries the trial on its cover CD) isn't liable for distributing "illegal software".
I suspect Davenport don't have a legal leg to stand on.
all computers should be upto date with the latest anti-virus and firewall yep yep!
are they going to provide me the money to pay for norton? or for a high priced firewall ? when i bought my pc or got my braudband i didin't read in any terms or conditions or even get a fact sheet on the law stating that i had to go and buy expensive software.
next they are acting like a wireless network thats WEP secured is like fort knox christ you can hack a WEP secured router in less than 31 seconds with a simple AIRCRACK which if you google you get about a million hits how to do this..
so even if the network was secured it got cracked just like T K Max's credit card servers got hacked into whats the difference?
and my final point is the damn game isn't even available yet in
the uk so how come it's only the UK people who's been found?
what about the usa/france/germany? where the game is actually on sale
oh the game cost 11 dollars lol about 9 quid english money.
and to make it even more of a scam
The Game is Downloadable FREE from their own website.
many game company's and software are actually using p2p and torrents to distrobute their work how was anyone ment to know this wasn't a demo just like you could download from like any download.com shareware site?
Unsecured wireless network now illegal!?
It's amazing that the lawyers have the brass neck to say you are responsible for everyone who uses your wireless connection. Driving around Glasgow I find several unsecured wireless networks on just about every street.
Even the secured networks are not really secure. Any net sniffer tool or a good educated guess will turn up the default gateway for a secured network. Go to the configuration page for the router and it will either not ask you for a password or will tell you the exact name and model of the router. The default password is almost always used and that can be found by a quick google search. Once your in there the private key is almost always not encoded and can be simply copied and pasted to connect to that network.
I connected to my fiances belkin hub in under 2 minutes.
If your going to get taken to court for getting hacked then the router manufacturers need to do much more to making your wireless network more secure.
Down with the lawyers!
Just say no
Just write back and say no, it is not my responsibility to prevent other people from breaking the law.
You are no more liable for failing to prevent criminals breaking into your computer than you are if they break into your house.
Also you don't own an internet connection, you rent a connection, and that connection is frequently changed by the owners, your ISP.
Even if you allow that you did at some point use the IP address they claim you "owned" - the ease of falsifying such data makes it impossible to claim with any certainty that you were involved in file sharing.
As these lawyers appear to have no qualms in breaking extortion laws, you can hardly trust their "evidence" as being anything other than manufactured in order to intimidate you into giving them money.
Inform them that extortion is a crime, and you will be reporting their crime to the police - and actually do report their crime.
Making up laws and threatening you with them is not legal, particularly when these threats are accompanied by demands for payment.
Nothing will come of it, no one will be charged, but if you do end up in court you will be able to say you tried to protect yourself from the unlawful activities of their lawyers.
You can demand that the letters you've sent are read as part of your defense, hopefully convincing the court their belief in magic IP addresses, and the promise from a lawyer that you did it, should no longer be regarded as evidence of wrong doing.
Simply refer them to
Arkell v. Pressdram
From what I can tell, Orange's home wireless setup cannot use anything other then WEP encryprion. Given the Reg's recent article explaining that this can now be cracked in 1 minute, please sue Orange.
As an aside, if I were billed £300 for alledged piracy I would be far more inclined to pay up and shut up than the kind of fees the RIAA is demanding with menaces.
Who owns the network?
My understanding of UK contract law with regards to ISPs is that the level 1 ISP (ie BT in most cases) actually owns the network. Surely if the consumer is liable for how his connection has been used BT is thus equally liable for any offences committed on its network?
Has anybody suggested this crowd of cowboys sue BT as the owner of the network?
Making it up as they go along...
They may say it's an individuals responsibility to make sure their computer is secure, there's no way in hell that it's LAW that you do so. Therefor, that means nothing. There's many other sensible things people should do to avoid mishaps, but there's no legal requirement to. They have no legal evidence whatsoever and this is nothing more than bullying, or perhaps even extortion. I pray they pick on someone who can access the funds to fight this and I hope it gets attention.
it might put two-bit companies like this hoping people will be scared into paying up for this sort of thing.
Come on Davenport
The security of your computer and internet connection is your responsibility and you need to ensure that both are protected at all times with the most up to date anti-virus and firewall software, and ensure that any wireless router is properly encrypted, in order to be certain that your computer is not being used for unlawful purposes and without your knowledge or consent."
Come on Davenport, where does it say this in UK law, in fact it is the other way around, it is the person who uses ones internet account without permission, such as people driving around in cars and using their laptops to access unsecured networks.
You Davenport are quoting laws that do not exist, all one is doing is breaking ones ISP T & C's.
There is no law execept in yor heads that says people are commitig any crime just because they may have not had a secured wireless netwrok and a secured wireless network is not bullet proof.
Without a leg to stand on.
The bit that makes me laugh is "Although your computer may not have been used to carry out the action alleged, your internet connection may have been used."
Surely if Zuxxez have conceded in a letter from their lawyers that the alleged filesharers internet connections only MAY have been used, any legal action that might take place is doomed.
However, I am concerned that if they can scare enough people into paying up this will set a very nasty precedent.
The Wireless Issue
I am kind of on the fence with the whole 'Unsecured Wireless' issue, as I can see both sides, although I do wish people would use a little common sense here.
Although its not a legal requirement, SURELY you have a certain responsibility to take adequate measures to secure your wireless router?
I mean, its not a legal requirement to lock and alarm your house when you go to work, but I am pretty sure everybody does. Why? Because you don't want intruders in your house using and abusing your facilities. The same applies to a wireless access point. Taking basic steps such as changing the default password, applying MAC filtering, enabling encryption and changing the default SSID are not beyond the capabilities of most broadband users, especially when it is highlighted in the manual which accompanies the product.
So with that in mind I kind of agree with the statements made by Davenport.
On the other hand, I do agree that it is entirely up to the router owners what they choose to do with their equipment, and if they choose to leave it wide open, then so be it. Using this against them is a weak offensive strategy and does appear to be clutching at whatever straws they can find.
without your knowledge or consent
"be certain that your computer is not being used for unlawful purposes and without your knowledge or consent."
Ignorance of the law is no excuse, not ignorance of the crime itself. You have to know what you're actually (not legally) doing to be criminally liable (mens rea) and I'm guessing civilly you'd need to as well. Otherwise, if your car was stolen, you'd be liable for the ramraiding or whatever that was done with it.
Davenport Lyons are clearly trying to scare people - report them to the Law Society!
How much for that videogame?
You know, if they just asked for the 25 euros the game costs (plus the cost of getting your info from the ISP, who you should now drop), they would be far more likely to get what they're asking for.
But no, that would be fair and reasonable. I can only assume that it ends up being more profitable to make threats for ridiculous amounts of money.
Granted, hardly anybody pays for software anymore, which damages MY ability to make a living, but if making a living in this field requires this kind of action, I'm not sure what I'm going to do.
How can small software developers remain profitable without resorting to this kind of nonsense? I see a future where people get ticketed for IP violations much like they currently do for illegal parking and speeding.
A different angle...
After reading this again, from the comments others had made I reallised that this wasn't just a problem for unsecured networks. But infact any networks.
If someone breaks the WEP or bruteforces the WPA as the owner of the wireless box it is you who is liable.
If the owner was on holiday and someone breaks into their house and connects a length of cat5 to their router, their still liable.
Who has to pay?
"The security of your computer and internet connection is your responsibility ", well. The anti-piracy protection is your responsibility. Did you use the state-of-the-art techniques to prevent users using (and downloading) your software?
How did you get information about the 500 users? Did you violate the privacy right of the users? If you do so without order from the court, then you are the one who violated the law.
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