Hey mod, is it ok to post this up here? - it's not my own writing but it's off http://www.slyck.com/index.php

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rocketman05's UK P2P advice - March 2005


p2pnet.net News View:- The Big Music cartel recently turned its UK attack unit, the BPI (British Phonographic Industry), loose on British file sharers.

Slyck was hacked over the weekend, but rocketman05 did a post on its make-shift forums which'll be of interest to people in the UK.

Slyck will be back up soon, hopefully, but we understand temporary posts could be lost.

We never re-publish anything in full without the permission of the site owners/authors, but since we can't get hold of anyone right now, here are rocketman05's thoughts on p2p in Britain.

Read on >>>>>>>>>>>>>>>>>>>>>>>>

My rocketman05 account was modified by me to avoid certain risks, and I have now locked myself out


Good luck to Tom, Ray, HC and the others and thanks for the hard work.


I know several people have been looking for my post on UK P2P advice.


As a temporary measure I have shown the text below. In the meantime, remember that downloading for personal use in the UK is legal


The recent trumpeting of the BPI (the British Phonographic Industry – the poor relative to the RIAA) that they have had “success” in pursuing file sharers warrants a response. After all, many readers are situated in the UK and should know the truth.


www.bpi.com


This is not a legal treatise; these are simply preliminary notes that I made pro bono for distribution amongst a public bureau’s staff (I can’t identify them) to prepare them for floods of enquiries from worried people. This isn’t strictly my field in any case, but I have tried to sum up the situation in the UK


It is a convenient fact that the alleged “out of court settlements” conveniently mean that there are no court documents to back up the claims of the BPI, neither have they identified a single person with sufficient detail to establish their existence beyond doubt and thus their claim is suspect.


Indeed they have every commercial reason to mislead and frighten them into thinking they have powers that they do not have. This perception is fuelled by news of prosecutions in some other countries, where both uploading and downloading is illegal. This is not the case in the UK.


The legal position in the UK is unequivocal regarding copyright. There is no law prohibiting the copying of data (music or film) by any member of the public for their own use, meaning that it may not be copied for use by another, hired, lent, sold, transferred or otherwise distributed. I make no apology for repeating; THERE IS NO LAW AGAINST DOWNLOADING FOR PERSONAL USE IN THE UK


The Copyright Designs and Patents Act 1988 defines the legal framework and applies only to unauthorised distribution (“communication” or “transferring to another”) of copyright work.


The two sections of relevance are:


16 - Which reserves to the owner exclusive rights to copy and to communicate their works to the public


20 - Which defines “communication” thus – “the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them”


As every time I have posted any details from the BPI (British Phonographic Industry) web site on Slyck.com they have then been moved or altered – thus proving that they read Slyck and therefore my comments . I will try to give you the current link (March 2005) for further information http://www.bpi.co.uk/pdf/Illegal_Fil...ch_%202005.pdf


The BPI are proud that they have managed to “settle” with 23 out of the 26 people whose identity as file sharers they obtained through the UK courts. Aside from the fact that there is no proof they are being truthful (see above) this begs two further observations:


a) 3 of the alleged file sharers have not settled, but haven’t been taken to court either. They probably never will.


b) Note the use of the weevil word “file SHARERS”. Not “downloaders”, “pirates” or what have you. The definition of a file SHARER is someone who downloads AND UPLOADS and not a person who simply downloads. Why? Because the act of downloading for personal use is NOT unlawful


Thus the BPI do not refer to file downloaders, except in terms that they rob people of the extortionate profits that their member industries make. I say this, because a CD made by a British band in the UK still costs considerably more than in most other countries – yet tax is lower. Even “legally” downloaded music from iTunes costs more. I have no qualms about the morality of downloading, it contravenes no published laws and helps in part to counter the long term exploitation of UK residents.


So, dealing now with uploads:


The law prohibits “the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them”.


The operative words here are arguably “members of the public” and “at a time individually chosen by them”.


The term “members of the public” imply those people who are strangers but share a common interest. As this interest could be computers or specific items of music or film, then this would seem to cover everyone except those who are not strangers (definition: “Not previously known; unfamiliar”.)


Presumably if someone was known to the uploader, then they would cease to be a “member of the public”. Presumably if someone was on first name terms with another and trusted them sufficiently to exchange files with them over the internet, it could be reasoned that they were far more than strangers. Good friends, even.


However, the term “at a time individually chosen by them” could be extremely useful as a defence for uploading. For example, if the file to be transferred (”communicated”) resided on the Defendant’s PC, and this PC was only turned on sporadically (and therefore available only at a time to suit himself and not the recipient or downloader) this would appear to circumvent Section 20 of The Copyright Designs and Patents Act 1988.


A defence of naivety would be unlikely to be upheld. To claim that your pc was hacked by others, who then uploaded files from you would be countered by the fact that you were technically proficient enough to use “complex” P2P transfers, zip and rar files, open and close and block ports, use firewalls, etc.


However, identity theft has become a sudden worry to many in the UK. And, I suspect, many outside of the UK.


Wireless networks have been hacked. Even those using 128 bit WEP encryption. IP addresses have been used as proxies, and many huge and reputable corporations have been victims of such hijacking. What are the chances that this could happen to you?


People have allowed others to use their computers. Who was the user at the time of the upload? If you can’t remember, then you needn’t worry as the Human Rights Act places the burden of identifying the user on those making the allegations.


There are many potential defences, so many that to date there has not been a single legal precedent either way. With the miniscule scale of the BPI budget, I also think that there is little likelihood that they have sufficient in the bank to do much more than threaten users of P2P services.


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I used to be rocketman05 until Slyck got hacked and I'm still a disenchanted lawyer.


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(Monday 7th March 2005)

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