Courtesy: Mikerayhawk.com
It wasn’t so long ago that the IRPED anti-piracy law in Sweden was so loophole-ridden that it did not have any effect, thanks largely in part to the efforts of some clever ISPs. That changed when the EU sued Sweden to make the law more effective. Yet even with the stronger anti-piracy law, Swedish ISPs are still inclined to fight back on the behalf of their customers. An anti-piracy group came after someone who they claimed was running an FTP server with 2000 audiobooks on it. Instead of turning over the personal information associated with the IP address, the provider Ephone decided to file an appeal. The grounds of the appeal are something that has concerned a lot of us for a while: that the rights holders’ evidence is far too weak.
In light of this news, I find it sort of odd that ISPs have never been consulted before in determining what constitutes enough evidence to require a provider to turn over one’s personal information. In theory, the ISPs should have a better idea of what information points to a particular user than anyone else. After all, they’re the ones who manage that entire back end. Yet for all of the three strikes laws of the world, ISPs have never been asked to give their input. Providers should be the ones who help decide whether or not something is sufficient to require that they turn over their customers personal information to people who are almost certainly going to harm said customers.
That said, it does not make much sense for a subpoenaed provider to make its own ruling on the evidence of the plaintiff. Given that option, the ISP in question will always say “Nothing illegal happened, so don’t sue him,” because that keeps a paying customer online. Instead, the courts should consult with a group of pundits from third-party ISPs in deciding whether or not a case should continue. I’d like to see this happen at every stage of litigation. Even if case has progressed to a trial, if some disinterested party steps in and testifies that the evidence is not enough to proclaim the defendant guilty, the trial should be thrown out of court. If an expert steps into a larceny trial and says that there is not enough evidence for a conviction, the defendant walks. Why should things be different for online crimes?
