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axus

join:2001-06-18
Washington, DC
Reviews:
·Comcast
reply to IamGimli

Re: New Canadian Bittorrent lawsuit: Who shared "Recoil&quo

said by IamGimli:

said by axus:

The problem with this argument, is that it's basing legal responsibility on the language of the Terms of Service. If the terms of service didn't assign responsibility to the user, would there be any difference in their legal responsibility?

Yes there would, which is why all ISPs include similar language in their terms of service.

In such a civil case, all the complainant can prove is what IP address the traffic came from. That IP address can be assigned to an ISP with very little doubt that the ISP owns the IP range, which is why the complainant's first stop is the ISP. At that point the complainant holds the ISP responsible for the tort that it suffered because that's who legally "owns" the IP.

This is where the terms of service come in. Because you have that contract with the ISP that says that YOU are legally responsible for everything that happens using your account, instead of your ISP. Since your ISP has good logs of which account uses which IP at any given time, they can then turn to the complainant and say "look buddy, my records show that it's Customer Joe-Bob who is responsible for the tort you claim, and here's the contract that Joe-Bob signed that says so".

Again, in a civil case such as this, the judge will look at the evidence presented by all parties (which include both the complainant and the ISP as a named interest in the case) and is very likely to determine that Joe-Bob is responsible for the tort in the balance of probabilities, unless Joe-Bob can prove it wasn't his account that was using that IP when the tort occurred, or can provide evidence of someone else being responsible for the tort, like a contract, logs, etc.

But it was the user (or someone on their system) who downloaded the file. The ISP never even had a copy of the file. It seems very hard to prove their guilt of copyright violation, just because a download was routed to one of their IPs.