IM 30587 18-19 December 2008, Moscow Protection of copyrights and related rights : investigation and prosecution of crimes. The call to the expert technician or how to report an infringement on Internet? First, may I introduce myself. I began my career at IBM France in 1969 in the scientific development service. Then, I created a software house specialized in the microcomputing field. This enterprise was sold in 1977 and I became a freelance consultant. In 1986, I was registered as expert in data processing on the list drawn by the court of appeal of Paris, then a few years later, on the one drawn by the french supreme Court (Cour de cassation). I carry out legal technical expertises appointed by the Prosecution, the examining magistrates and the civil and penal jurisdictions. My speciality covers investigations on the computers seized by the section anti-terrorist of the Paris county Court and I practice investigations to establish evidence in the field of the counterfeit. Among the cases where I was appointed by the Court, the case UEJF vs Yahoo (2001) was the occasion for the first time in France to evoke the techniques of filtering. It was a question in this case of preventing the access to the Net surfers from reaching the Nazis items sold on the Yahoo site of auctions. The counterfeit of intellectual works can be processed by the civil or penal jurisdictions. to better manage the legal action and to obtain higher damages. But, in civil matter, the claimant has to bring the proof of the violation of its rights. The proof of an infringement can be reported by a bailiff, a technical expert appointed by the Court or an agent sworn by the Ministry for the culture. Bailiff is a liberal profession controlled by the Prosecutor. The bailiff is on oath. He carries out the judgements and reports the infringements. The expert is a technician whose competence is recognized. He is registered on a list drawn up by each Court of Appeal. The french supreme Court draws up its own list of experts. This list is national. The expert registered on a list of Court of Appeal lent oath to assist the service of justice. As soon as a technical matter arises in a litigation, the judge appoints an technical expert chooses on the list of the Court of Appeal. The experts intervene in penal matter and civil matter. The experts can be appointed by the judges to carry out reports, consultations or expertises. Usually, the bailiff ask for the assistance of the experts to operate reports of technical nature. To record an infringement on Internet, the recourse to the bailiff, the expert or the sworn agent is a necessary but not sufficient requirement. They must observe a strict procedure so that their affidavit is opposable to the author of the infringement. The infringement on Internet presents in itself a double characteristic: On the one hand, the Internet page which contains the infringement can be modified constantly. Consequently, the evidence of the infringement can be transitory and seen only during a short time; On the other hand, the infringement can be recorded in all places where the page containing the infringement is consulted. The bailiff or the expert is thus not held to receive an prior approval to go on the spot of the infringement. He will be able directly to note the infringement starting from the computer of the victim or even of its own computer. But the bailiff or the expert will be held to respect a procedure aiming to show that the site containing the infringement is freely consultable on Internet and accessible to the Net surfers. means also expert or sworn agent. So, the judge imposes to the bailiff the respect of the following technical rules at the time of his report : 1. History, cache, cookies, private data, must be wiped out the computer and these manipulations must be mentionned on the affidavit. In a decision of November 17th, 2006, the Court of Appeal of Paris refuses to admit as evidence a report of bailiff to the reason that he had not emptied the history, the cookies and the cache of the proxy of the access supplier (CA Paris, 4th CH., B, Nov. 17, 2006, Net Ultra vs AOL, RLDI 2006/22, n° 706, obs. Auroux J. - B.). 2. The bailiff must mentionned the IP adress of the hardware used during the draw up of the report, which will make it possible in the event of litigation to check, by means of the log of connections of the internet access supplier, the pages really posted during the investigations (County Court of Paris 3rd room, 1st Jugement section of March 4th, 2003). 3. The bailiff must describe the process that it carried out itself to reach the Internet pages containing the infringement. The report an internet surfer is able to reach these pages without Paris 3rd room, 1st Jugement section of March 4th, 2003) 4. The bailiff could try to find who is the author of the litigated internet pages. It is recommended to register on the affidavit the name of the editor of the site, its adress (via the legal mentions) and the name of the owner of the domain name of the site (via an interrogation of WHOIS site). owner of domain could be identified. The jurisprudence recalls that the owner of the domain name of the accused site is not automatically the owner (County Court of Paris, 3rd room, 1st Jugement section of March 13rd, 2002). 5. The Internet page containing the infringement must be materialized, i.e. printed and annexed to the affidavit. The paper impression may differ from posting, so it is recommended to use a screen printing. and of having printed the page of the site makes this Internet search incomplete and does not allow to appreciate the reality of Groups Bosc C co. MT) 6. software utility and to record them on an hard drive. The Court of Appeal poses this principle in a decision of October means of a dedicated software, carried out by a bailiff within the framework of a report, is analyzed like a seizure-counterfeit and can be accomplished only according to the rules mentionned in (Court of appeal of Paris, 4th CH. A., Oct. 25, 2006, P. - M.H C L.J. and other; www.legalis.net). Many reports are invalidated by the judge when these steps are not respected. But, once the proof of the infringement is established, the judge can order others investigations to determine the origin of the counterfeit and to measure its extent. It will be pointed out, in this respect, the counterfeit on Internet can take multiple forms. It can be a matter of sale of counterfeited articles (LVMH against Ebay), of the spreading of snapshots, musics or videos downloaded in peer to peer or in newsgroups, of illicit use of protected marks, slavish copy of video clips and musics protected, on personal pages from sites like dailymotion, facebook, youtube, more generally sites of the Web 2.0. Since he is appointed by the judge, the expert has the power to ask and obtain IP addresses of the Net surfers, their names, adresses, banking account, and he can examine the whole contents of the computers containing counterfeit works. Except the cases where the revelation of its operations would be likely to involve a loss of evidence, the operations of expertise are conducted after due hearing of the parties. Each party can attend the operations and formulate observations. The expert can obtain from the thirds all informations which would be necessary for him to achieve its mission. The expert gives to the judge an technical opinion and he must not carry appreciation of legal matter. Once the judge will pronounced his decision, the expert can be appointed to check the execution of it. For example, the expert can check that all the counterfeiting documents were wiped out of the servers where they were. In the case LVMH vs Ebay, not definitively judged, it is possible that the Court appoints an expert to deliver an opinion on the technical means used by Ebay to eliminate the counterfeits from its sites because LVMH is not satisfied with the solution already chosen by Ebay. Ebay considered that the decision of the judge was to apply only to French net surfers on the French territory. Consequently, Ebay operated a filtering starting from the country parameterized in the browser. Thus, it is sufficient for the Net surfers to parameterize the browser by indicating Monte Carlo, Belgium or Switzerland as their country to circumvent filtering and to reach the counterfeiting items. No measurement of filtering is reliable at 100% but some are more or less easy to circumvent. The filtering of the Net surfers is possible by combining the checking of address IP with the parameter setting of the browser. Admittedly, it is possible to change its address IP by using some special networks like TOR, but the band-width is then slowed down considerably. To limit illicit files transfer, French governement plans to set up an independent commission to enjoin the suppliers of access to restrict the band-width allocated to the pirate Net surfers or to cut temporarily their Internet access. This is the object of a debate and some would prefer that, similar to the infringements with the highway code, the pirates get a fine. Thank you very much for your attention and to be lenient about my poor english. Francis WALLON Expert in data processing appointed by the french supreme Court fwallon@wallon-experts.com