The Scots Law Student

Statistics are a great tool. It is pretty crucial for a lot of tasks that some very unclear, even indeterminate, things can be drilled down into some very specific figures.

One particularly sensitive statistic is the number of file sharers in the country. Firstly there are obviously two kinds of file sharing – there is legal and illegal file sharing. The legal file sharers are actually the cornerstone of the “information economy” we’re all supposed to be entering into while the illegal file sharers are potentially the worst threat to international peace and commerce ever seen and are pursued accordingly.

The two kinds look very similar but both take place in the legally protected privacy of the home. Without actually being able to put a camera in everyone’s house the only way you can find out if people are sharing, legally or illegally, files is to ask them.

It is well reported that the figures the Government put forward for file sharing are, if not categorically wrong are involved with a lot of guesswork and seem to be estimated at the high end of the range. The report is an amazing piece of statistical reporting which effectively took 136 affirmative responses and decided that people don’t adequately report on illegal file sharing and rounded up to around 7 million. It’s pretty terrifying even for a secret industry report.

Oh yes, the figure came from a secret industry report. That’s probably worth mentioning. The figure is officially cited as coming from a consultancy firm but it actually doesn’t, it’s from an unpublished BPI funded report. This means that the Government figures comes from an industry report that no one can read while telling everyone who reads the published, official report that they come from another source. Nothing can go wrong there.

This discovery was made by the BBC Radio 4 program More or Less, a program basically conceived for this situation – it deals with the “the powerful, sometimes beautiful, often abused but ever ubiquitous world of numbers” and is very good and worth listening to. The episode which revealed the file sharing figures also asked “why do England lose?” to which, of course, my heritage maintains perhaps a less than mathematical explanation.

This came as a complete surprise to me and annoyingly I’m currently too busy to do anything nearly approaching researching it. I don’t think what they’ve gone to jail (facilitating the crimes (sharing of copyrighted material) of others) for is accurate or actually all that much of a crime and will watch for an appeal with great interest.  If it’s a crime to link to material to which someone, somewhere owns a copyright to then there’s a serious problem for the internet.  I possess the rights to the words on this blog, for example.  (Except the bit in the quotes, of course.)

On a personal level I was always slightly disappointed that the “Pirate Bay 4″ (who were actually the parties of a test case which affects the entire modern, information linked world) were quite as light hearted as they were. Particularly some of the quotes they gave to the press – I believe it is easier to get behind figureheads for a cause if they don’t sound like they’ve just killed someone on Xbox Live.  That said, the law doesn’t apply differently to people who use “fail” as a noun and I still find the judgement surprising.

The Legality has come out with a great piece of legal journalism on the ruling and I highly recommend it:

The Pirate Bay Trial: Does Having a Treasure Map Make You a Pirate?

Written by: Brady Iandiorio
Researched by: Tracy Frazier and Steve Glista
Edited by: Jay D. Hall
Managing Editor: Kirk Strohman

A file sharing notice is about the most serious letter that can come “from the Internet” for anyone. This can range between a polite “stop and delete all the songs you downloaded and don’t do it again” to a flat out demand for money. There have been a vast number of allegedly speculative letters sent out asking for a cash payment for the lawyers to go away with threats, and I think in context it is legally accurate to use the word, that the situation will escalate to court action (and faced with the option of having to prove a negative in front of a court an unknown number of people have simply paid up.

It is not all bad for the general public, since the vast majority of “law firms” who will mass mail requests for money are from England these can often be turned off by pointing out that you live in Scotland and there is a jurisdictional difference. A polite response asking for “clarification” on this “confusing point” can be all that an individual needs to do to make some of the less scrupulous firms give up and head for an easier target.

There can be no doubt that some of the letters do honestly arrive to people who illegally share files but the stories of university printers being threatened with legal action only serve to create an unfavourable blacklash in the press against the heavy handed tactics that have defined the public opinion of the industry. One of the biggest issues is the lack of actual, before a judge, court cases in this area because the vast majority of people settle before it goes that far. In the US there have been two main cases – Jammie Thomas which is now declared to be a mistrial and Joel Tenenbaum. In the first case the judge commented that the damages sought were probably 1000 times too much and has now been decided to be a miscarriage of justice but the second case is going much better for Joel. Jammie Thomas’s lawyer was inexperienced in this new area of law and the defence was not perhaps as persuasive as it could be. Joel instead is being defended by Professor Charles Nesson and a sizeable group of his students from Harvard Law School who is rather more experienced in this field and has brought a surprising amount of media attention to the case and has worked hard to capture the goodwill that surrounds people defending themselves against the RIAA.

The professor is clearly a canny lawyer and the Joel Fights Back campaign is a which uses nearly as much online content as Vote Obama ‘08 and has a Twitter feed, a Facebook page, an online petition and a Paypal fund raiser (the link’s to Joel’s own, I promise) along with some fantastic features – “Think like a Lawyer (Contribute to Joel’s Defence)”, “Legal Documents” and “Share your stories”. These are designed to get the general public interested in the case and to raise awareness of the issues involved. The move to make it quite interactive is a masterstroke – the suggestion that Joe Public can suggest questions to give to the big names in file sharing litigation under oath during cross examination is a unique opportunity and one which a lot of people have already expressed interest in.

The latest move Professor Nesson attempted was to have the court action broadcast online. I would highly recommend the opportunity to watch a civil case from a foreign jurisdiction, the US isn’t too different from our adversarial selves but that doesn’t mean that watching it’s not an opportunity that few Scottish students would be able to normally have. Broaden your legal experience when this is broadcast. Or will it, because the RIAA has immediately filed an appeal to have this case heard in camera. This is interesting because it gives a strong public impression that the RIAA don’t want their litigation procedure to be aired in public.

Joel himself is quite impressive – after receiving the initial demand for $3500 he rang the number on the letter and attempted to negotiate a settlement $500 instead, he even sent them a money order for that amount. A few years later he was sent summons and the scenario I have just mentioned began.

This case bears watching because it has ramifications on nearly all Internet users and is the first time the big law teams representing the anti file sharing lobby have really been answered by any party with at all similar resources. While there have been cases of the wicker man of file sharing used as a revenue gathering tactic by the unscrupulous there are issues, such as the punitive penalties the RIAA would like to see file sharers forced to pay, which need to be finally decided in open court.

Joe’s campaign site is at http://joelfightsback.com/