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Following a high-profile order at the Ninth Circuit Court of Appeals this summer, copyright holders are facing a roadblock in their quest to demand settlements from alleged file-sharers. Referencing the August order, federal courts in districts across the US are demanding more evidence than an IP-address alone.
[...] In recent weeks, however, more and more judges have begun to ask questions.
This started after the Ninth Circuit Court of Appeals reached a verdict in Cobbler Nevada v. Gonzales. The Court ruled that identifying the registered subscriber of an IP-address by itself is not enough to argue that this person is also the infringer.
"Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer," the verdict read.
[...] What's clear though is that the Appeals Court ruling is being used by courts across the country to demand "something more" than an IP-address alone.
While this is not the end of so-called "copyright trolling" practices just yet, it does make it harder for rightsholders to convince the courts.
Source: https://torrentfreak.com/courts-want-something-more-than-an-ip-address-to-catch-pirates-181217/
(Score: 5, Insightful) by sjames on Friday December 21 2018, @02:31AM (2 children)
The difficulty of gathering evidence is not now and never has been relevant to the burden of proof. Simple proximity simply isn't enough.
(Score: 0) by Anonymous Coward on Friday December 21 2018, @03:31PM (1 child)
Yes, it has been. See probatio diabolica [wikipedia.org].
Probatio diabolica (Latin: "devil's proof", "diabolical proof") is a legal requirement to achieve an impossible proof. Where a legal system would appear to require an impossible proof, the remedies are reversing the burden of proof, or giving additional rights to the individual facing the probatio diabolica.
There is a good example on the page. Regardless, as noted, it is typical to give the accuser additional rights, such as allowing the legal discovery process to get more information. As courts are not allowing that, they are defacto allowing copyright infringer to "get away" with it.
As another poster said, an unenforcible law is a bad law, and this is in effect becoming unenforcible. As I said before, if we as a society want to make the policy decision that downloading things under copyright enforcement is legal, that's fine, but that should be a policy discussion. Not as a Kafkaesque Catch-22 situation against any party, including but not limited to big media.
(Score: 2) by sjames on Saturday December 22 2018, @01:24AM
The problem exists, as the wikipedia page points out, however the "solutions" have no bearing on U.S. law.
Notably, for a while the courts were fairly lenient with the copyright holders (accusers) but after rampant abuse are no longer so kindly disposed.
Neverminding that, our law does not (and should not) allow disruptive and expensive for the defendant discovery based on little more than the say-so of a proven unreliable class of plaintiff over what generally amounts to a petty violation of copyright.