The Week’s Ruling

This week’s ruling by the Swiss Supreme Court found that the act of collecting an IP address to be a violation of personal privacy. We’ve long known that there is no way to conclusively tie a user’s home IP address to the individual actually performing a download but this reality hasn’t stopped investigators and intellectual property owning companies from harassing the most obvious person, even if they didn’t actually do the crime. Consequently, the landscape has been littered with threats of garnished wages and indebtedness for the appearance of sharing cultural artifacts.

Switzerland has said, enough is enough: for civil cases, only the state can violate an individual’s right to privacy. And now, that right to privacy includes the anonymity of everyone’s IP network address.

Implications for P2P Cases

Without the ability to capture an IP address and subpoena for its renter, getting proof of copyright infringement would require insight into your private home. To know who is downloading what, someone would have to testify against an acquaintance or an individual would have to spontaneously testify against themselves without even being accused. For intellectual property companies (e.g. owners of music, movies, TV shows, software, etc.) who really have no idea who is actually copying “their” content. Under the new ruling, they will have to actually prove that a specific individual has distributed their content without authorization. This is much harder to do with downloads than with real property, because unlike physical goods, the “owner” of content can’t put a video camera in the warehouse and record who takes what. After all, their warehoused copy was never touched.

Actual Evidence

I’m not an attorney but a quick google suggests that actual evidence is required to prove physical theft: photos, fingerprints, witnesses, a confession, etc. Of course, this level of evidence is required for a criminal case. But we’re not even talking about a criminal case here, we’re looking at a civil case which generally has a much lower requirement for evidence. Instead of “beyond a reasonable doubt” there’s just a preponderance of evidence required: i.e. “more likely that not.” The problem is that the level of punishment ($80,000 penalty for a $1 song) is more appropriate for a criminal violation, like the actual manufacture and selling of counterfeit CDs than for someone who is just sharing a couple songs without making any money.

Social Effects

The current internet enables you to talk about content and connect with other consumers but the legal situation has made it very difficult to share the actual experience-the content itself. This ruling effectively raises the bar for prosecuting copyright infringement within Switzerland to the point where it is practically impossible to sue normal users. Ordinary Jane’s & Joe’s who share without any monetary compensation will be able to do so freely within the countries borders.