Re: Davenport Lyons - Watchdog Report

Norman Wells wrote:

steve robinson wrote:
Norman Wells wrote:

The fact that there might be theoretical reasons why the person
accused did not do what he is accused of will not overturn a
reasonable prima facie case that he did. In the face of evidence
that copyright material was illegally downloaded or uploaded from
his internet connection, the person accused would have to show that
those reasons actually did apply to him.


How do you know its his connection ,

Presumably from the information gathered from the ISP.

can you prove it

The information from the ISP will be sufficient to do that I think.

The isp can only confirm that an ip address was registered to the user it can
not show what was downloaded or if the ip has been spoofed , bit like a car
numberplate easy to steal and easy to spoof

It would be down to DL to prove that that the defendant actually downloaded
the info and retransmitted it , if i was defending such a case i would want a
full and complete pathway trace server to server , ubr street box to end user
copnnection , router and final network path , not just an ip address of a
router or cable/dsl modem


does your
forensic evidence include tests to show if the address has been
spoofed or manipulated

Probably not.

can you prove his machine was connected at
the time and not just a router or live connection , can you show that
he was at his machine or was it a.another who used the machine
without permission

The copying is done via the router, and it's my argument that the owner of
the router's connection to the internet may well be liable even if the actual
person initiating the illegal copying operation is someone else. In most
cases, it is likely to be the owner of the connection anyway, so the company
sues him. They have a prima facie case that then needs to be overturned by
actual evidence to the contrary not just a list of theoretical possibilities.
If the owner of the connection just waffles endlessly about how it could have
been someone else without any actual evidence that it was, he's likely to be
found liable.

I disagree , i dont think the owner is liable , he/she has not ilegally
downloaded anything .

Even if DL could prove that the connection had been used for ilegal activity
they can not prove who actually conducted the activtity .

If i used my family as a comparision , i have two computers my eldest has one
my youngest has two machines , we all have other electronic tools that can be
used on the connection to up an download thats another 10 devices , so thats a
possiblty of at least 13 devices that can access the net , if DL decided to
take action against me they could only look at my equipment they would need to
take action against all four of us , even if they were successful against one
of us the costs incured and the subsequent law suites from the others would far
outweigh anything the client would make

(note we dont ilegally download)



Your mistake is to assume that a case requires absolute proof or proof beyond
reasonable doubt or some such. A civil case, however, merely requires the
matter to be decided 'on the balance of probabilities'. That means, in
simple terms, that a judge must merely think it more likely than not that the
person accused of the illegal download did it.

All i would need to show is that i was not at my machine at the time mentioned
and provide a suitable witness or have my machine analised to show no such
files exist on my machine , this would blow there case out of the water





, was the machine infected with a virus or worm ,
which machine actually downloaded the file , many households have
several machines now , was his network hacked all very plausable
reasons .

Maybe, but what are the facts?




DL action usally starts several months after the alledged offence in
that timeframe the computer could well have been configured
differently virus scanned spyware scanned updated , hardware updated ,

If the files are not on the computer then DL are stuffed , you have
provided evidence that contradicts thiers

DL don't have to get hold of your computer to prove anything. All they have
to show is that the person they're accusing is more likely than not to have
done it, and they do that initially by providing the ISP's information. It's
then for the person accused to redress the balance by giving his side of the
story, not just endless theoretical possibilities about how it could have
been anyone.

An forensic analayis of the machine showing no such files which would be pretty
easy to do with a router

An expert witness to show how easy it is to spoof an ip and the fact that DL
experts haven't bothered to check the authenticity of the ip would certainly
cast enough doubt in most peoples minds and the fact at nearly 50 i dont play
atari or pin ball games on a pc
.

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