Thursday06 October 2022

Florida Judge Says that an IP Address is not enough to prove piracy

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If you have been following news about piracy, copyright, or indeed almost anything you will know that the copyright industry often employs some rather shady methods to get their way. One of the shadiest methods is the demand letter. If you are not familiar with this term let us explain (if you are bear with us): a demand letter is when a legal firm tries to tie IP addresses they have identified to actual ISP subscribers. They send large numbers of subpoenas to ISPs asking that they put the two together so that they (the law firm) can then send a settlement letter demanding money from the alleged pirate.

Now there are multiple things wrong with this procedure. The first is the dubious method used in obtaining the IP addresses in the first place. However, for the moment let’s put this one aside and focus on the rest of the procedure. When a law firm ask for personal information from an ISP they have to have the request reviewed b y a judge. At least that is what is supposed to happen. There have been an increasing number of firms that bypass this little requirement and send the request to the ISP without approval beforehand. The ISP, not realizing that they do not have to comply with these at all (even with approval) simply hands over the information requested (who does this IP belong to) and is done with it.

In those rare cases when the lawyer does follow the proper procedure the judge is often uninformed on how the internet, ISPs or IP address assignment actually works. In many cases the lawyers are also not savvy on this bit of information either. Still there are those rare times when a judge actually does have a good grasp, or takes the time to understand the technology to make a sound decision. This is exactly what has happened in a case in South Florida where District Court Judge Ursula Ungaro has ruled that an IP address is not enough to prove piracy.

This is not the first time that this has happened, but it comes at a time when the copyright industry is ramping up their anti-piracy efforts once again. Judge Ungaro cited multiple decisions stating the same thing (IP addresses do not link to a person) when the makers of the film Manny claimed IP addresses were a valid way of identifying a person, that “all other courts” had agreed with this and that a refusal would set a dangerous precedent.

The claim appears to not have gone over very well with Judge Ungaro. Along with citing multiple cases she also stated “Plaintiff here fails to show how geolocation software can establish the identity of the Defendant. Specifically, there is nothing linking the IP address location to the identity of the person actually downloading and viewing the copy righted material and nothing establishing that the person actually lives in this district.”

She further stated that even if geolocation software can give you an address it does not “identify who have access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright,”

This is not even taking into account the fact that an IP address handed out by most ISPs is not static. It changes from time to time and as such might not be linked to the same person between the time of capture and the time that the ISPs gets the letter. Now most ISPs can go back in time to see who had that IP address most recently, but depending on the length of time they might not maintain the records for very long.  The decision does cover the fact that the person that owns the account with the ISP might not own or be in control of the computer doing the infringing it falls into line with other decisions that have thought the same thing and not just about copyright, but other illegal activity including breaches. There have been a number of cases where someone’s computer or connection to the internet was used without their knowledge during the commission of those crimes. The copyright lobby should not get a pass on this just because they want it…

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