The Burden and Standard of Proof

When a case is brought before a court the party pursing the matter and seeking the courts intervention is said to carry the burden of proof. For file sharing lawsuits this burden is, at least in theory, placed on the record labels seeking to establish that the defendant has downloaded works that are subject to copyright.

The standard of proof refers to the level of evidence required to establish their claim. Most people are aware that the standard of proof in a criminal case is ‘beyond all reasonable doubt’ but not many are aware that in civil cases, where the penalty is purely financial damages, the standard of proof is lower – the labels need only satisfy the court that it is ‘more probable than not’ that a defendant has broken the law.

There have been numerous articles and court cases in a number of jurisdictions which have brought into question both the burden and standard of proof for copyright infringement for the use of file sharing software.

The burden of proof, whilst in theory is placed on the plaintiff (the person seeking the remedy), in practice it often falls on the defendant to displace allegations. While the record labels, through their contracting third parties, provide the court with ‘evidence’ of file sharing, many defendants have had to provide additional evidence to counter claims of infringement. One such case was that of Tanya Andersen who sought the courts assistance in having the hard drive of her computer forensically examined in order to prove that no infringing files had ever been on it.

However it is the standard of proof which is more commonly questioned in the context of these lawsuits and which, by necessity, often triggers the need for defendants to make positive moves to establish their innocence.

Most recently researchers at the University of Washington found that inanimate objects such as printers could be identified as file sharers using the investigation methods that the contracting parties of the record labels use. Indeed, it has been repeatedly demonstrated that the methods used to track and identify copyright infringers are fallible – to the extent where one may very well question whether the standard of evidence provided can demonstrate that a defendant has, more probably than not, infringed copyright. There is a big difference between what is possible and what is probable.

In an Amicus Curiae Brief submitted by Professors of the Berkman Center for Internet & Society in the case of Capitol Records Inc et. al v Noor Alaujun, in the Massachusetts District Court, a number of evidentiary problems were identified in relation to individual law suits including errors identifying materials, as well as errors identifying users such as incorrect IP addresses and the identification of incorrect ISP accounts.

The technical nature of tracking and establishing the identity of file sharers is one factor which produces this level of uncertainty and difficulties for the courts. Judges typically do not have the technical background or level of understanding to be able to question or indentify the inherent deficiencies of the evidence that is presented before them. What many fail to realise is that regardless of the investigation methods employed, there is no way of ever determining who was at which computer terminal at a certain time. This is a particular problem for those who share a house, including families.

There have been a number of cases which have acknowledged the deficiencies of the evidence presented before the courts. One of the most definitive was heard in Canada where the Judge held that the evidence presented which included IP addresses of the defendants was insufficient to establish that they were responsible for downloading music and thus refused to order the ISPs to disclose the identities of the alleged file sharers.

Similarly in many European jurisdictions a criminal case must be commenced in order to gain access to the IP addresses of individuals accused of file sharing. This is because the legislators, through their various privacy regimes, require a higher standard of proof be met before disclosure is seen to be justifiable.

In the United States, however, there has been no case in which problems with the method of investigation or standard of proof has been directly considered. Numerous cases nonetheless have been withdrawn, more commonly at the last minute, when the accused has been able to provide evidence displacing the claim.

In UMG v Lindor the accused was a 58 year old widow who has never used the computer of her late husband; in other cases the person with the internet account has been accused of file sharing when other people in the house were responsible; in BMG v Thao the person accused of file sharing was not a customer of the ISP in question at the time of the investigation; in the Ward case the defendant was accused of using Kazaa which was only available for Windows when she used an Apple Macintosh computer; in the Chan case the mother was able to displace claims of file sharing only to have fresh claims lodged against her daughter. More recently in the Cassin case the record labels have withdrawn their claim because they are unable to indentify which person in the house was using the computer at the time of the infringement.

For those with the means to challenge the subpoena process there is the opportunity to displace this evidence albeit at a large cost to themselves both financially and in time. For many others, however, who do not have the means to challenge the process adopted by the record labels this is nothing short of injustice. The legal representatives of the record labels have now officially adopted a scheme whereby the amount of damages sought from an ‘accused’ are increased the longer it takes for them to settle the claim and so what results is nothing short of a perversion of the legal system.

An excellent discussion of these and related issues is given by the Electronic Frontiers Foundation paper: EFF, RIAA v. the People: Four Years Later report (August, 2007) <http://www.eff.org/IP/P2P/riaa_at_four.pdf> at 2 September 2007

Further Reading
BMG Canada Inc, et al v John Doe, Jane Doe and all those persons who are infringing copyright in the plaintiffs’ sound recordings 2004 FC 488

BMG Canada Inc, et al v John Doe, Jane Doe and all those persons who are infringing copyright in the plaintiffs’ sound recordings 2005 FCA 193

BusinessWeek, Does She Look Like a Music Pirate? (24 April 2008) <http://www.businessweek.com/print/magazine/content/08_18/b4082042959954.htm> at 30 April 2008

EFF Deeplink, Laser Printers Found Guilty of "Making Available" Crimes (5 June 2008) <http://www.eff.org/deeplinks/2008/06/laser-printers-found-guilty-making-available-crime> at 13 June 2008

ZeroPaid, U of Chicago Professor Questions RIAA's Use of IP Addresses in Lawsuits (17 July 2007) <http://www.zeropaid.com/news/8909/U+of+Chicago+Professor+Questions+RIAA%27s+Use+of+IP+Addresses+in+Lawsuits> at 22 July 2007

TechDirt, Are The RIAA's Investigation Techniques Illegal? (26 June 2007) <http://www.techdirt.com/articles/20070626/010102.shtml> at 1 July 2007

The Berkman Center/Digital Media Project, P2p Music Downloading – Brief of Amicus Curiae Reviewing Fact and Law (24 May 2004) <http://cyber.law.harvard.edu/uploads/352/amicusbrief.pdf> in <http://cyber.law.harvard.edu/media/capitol_amicus> at 8 June 2006

RecordingIndsutry v ThePeopleBlog, Prof. Johan Pouwelse Agrees To Take on the RIAA's Expert (14 May 2007) <http://recordingindustryvspeople.blogspot.com/2007/05/prof-johan-pouwelse-agrees-to-take-on.html> at 29 May 2007

ArsTechnica, Study paints grim picture of automated P2p enforcement (5 June 2008) <http://arstechnica.com/news.ars/post/20080605-study-paints-grim-picture-of-automated-dmca-notice-accuracy.html> at 6 June 2008

The Recording Industry v The People Blog, RIAA Drops Another Case In Chicago Against Misidentified Defendant (3 May 2007) <http://recordingindustryvspeople.blogspot.com/2007/05/riaa-drops-another-case-in-chicago.html> at 16 June 2008

New York Times/ CNet News.com, Judge: File sharing legal in Canada (31 March 2004) <http://www.nytimes.com/cnet/CNET_2100-1027_3-5182641.html> at 1 April 2004

P2p Blog, German court: P2P lawsuits are unconstitutional (21 June 2008) <http://www.p2p-blog.com/index.php?itemid=696> at 15 June 2008

ArsTechnica, Battle brewing over MediaSentry's subpoena stonewalling (5 March 2008) <http://arstechnica.com/news.ars/post/20080305-battle-brewing-over-mediasentrys-subpoena-stonewalling.html> at 6 March 2008

EFF Deep Links, Innocent RIAA Defendant Fights Back, Wins $70,000 Fee Award (17 July 2007) <http://www.eff.org/deeplinks/archives/005363.php> at 28 July 2007

CNet News, RIAA’s case of mistaken identity? (24 September 2003) <http://news.com.com/2100-1027_3-5081469.html?tag=st_rn> at 14 February 2006

Recording Industry v The People Blog, Judge Denies Guardian Ad Litem Motion in Priority v Brittany Chan: RIAA Argues Brittany and Her Parents Should Pay to Have Guardian’s Fees (21 March) <http://recordongindustryvthepeople.blogspot.com/2006/03/judge-denies-guardian-ad-litem-motion.html> at 22 March 2006

ArsTechnica, Third time's the charm? RIAA tries end run around old case (13 June 2008) <http://arstechnica.com/news.ars/post/20080613-third-times-the-charm-riaa-tries-end-run-around-old-case.html> at 15 June 2008

ZeroPaid, RIAA Must Pay $107,834 in Legal Fees (17 May 2008) <http://www.zeropaid.com/news/9497/RIAA+Must+Pay+%24107%2C834+in+Legal+Fees> at 21 May 2008

The Register, RIAA ordered to shell out $100k for P2P witch hunt (15 May 2008) <http://www.theregister.co.uk/2008/05/15/tanya_andersen_attorneys_fees/> at 21 May 2008

ArsTechnica, RIAA doubles settlement cost for students fighting subpoenas (11 June 2008) <http://arstechnica.com/news.ars/post/20080611-riaa-doubles-settlement-cost-for-students-fighting-subpoenas.html> at 13 June 208

EFF, RIAA v. the People: Four Years Later report (August, 2007) <http://www.eff.org/IP/P2P/riaa_at_four.pdf> at 2 September 2007