MPAA v. Hogan, or Vice Versa?

Unsurprisingly, the story that Digital Point Solutions CEO Shawn Hogan has "found himself on the receiving end of an MPAA lawsuit" (for allegedly downloading a copy of Meet the Fockers via BitTorrent) and has vowed to fight it drew hundreds of comments, many of them expressing hope that Hogan both stays in court and prevails against the MPAA. Read on for the Backslash summary of the discussion. Reader Poromenos1 had a snarky reaction to Hogan's claim that he already owned a copy of the movie on DVD:

No wonder he doesn't want to admit to downloading it, that movie sucked! I bet he doesn't even have the DVD.

Other comments took that defense a bit more seriously, pointing out that "I own the DVD already!" is no ironclad defense against claims of copyright infringement. Junior J. Junior III, for instance, wrote

I don't see how ownership of the original media serves as "proof" that he didn't download it.

Besides, with BitTorrent, you upload chunks of the torrent even as you download the file. What if he didn't download the .torrent of MtF, but rather seeded a .torrent of the ISO of the DVD he ripped?

What if he purchased the DVD after viewing the downloaded torrent? It's still an unauthorized distribution of a copyrighted work, even if it did end up resulting in a sale that benefits the Plaintiff... if they want to sue because to them the principle of control is more important than the short-term profit of a unit sale, who are we to question such prioritization?

In response to the desire evident in some comments to see a trial take place and (perhaps) cast doubt on the MPAA's aggressive tactics, reader BigNumber predicts that this is "not gonna happen," writing:

He won't get a chance to 'defend himself' unless he decides to counter-sue. The MPAA will simply drop the case and move on to a less aggressive victim.

Reader Elsimer points out that the odds that Hogan will get a day in court against the MPAA are better than for most people; he has money and determination, as demonstrated in the Zeropaid interview with Hogan from which Elsimer quotes, in which Hogan says

Yep. At this point they have pushed me enough to where I'm going to do whatever I can to keep them from dropping the case. I can't prevent them from dropping it, but I am going to try and force them to go to a full trial. Basically, my lawyers aren't even going to file a motion to dismiss. ... At this point, I don't care what it costs. If they drop it, I will find something to counter with to keep it in court.

Despite Hogan's personal resources, eldavojohn was one of several who said they'd like to contribute to his cause, writing

I personally would like to extend a helping hand to Shawn. If he wants to take this to court, I would like to pay him a simple $10 through Paypal for fighting the good fight. I've given the same donations to Slashdot and many many open source projects (especially those on SourceForge) that have made my life easier.

I would like to live in a world where I'm not worried about some organization of rich bastards strong arming citizens out of hard earned cash. There have been several cases so far where people have been charged with little or no evidence. The methods by which they obtain their evidence is even shadier.

If you're reading this, Shawn Hogan, please leave some contact info so we can donate small sums of money to aid in your defense.

Reader toad3k points out that Hogan is "not exactly hiding," and points out the location of Hogan's blog. eldavojohn responded in the same thread to the idea that such support might be "a little misplaced," writing

I'm not going to support the person who just pays the obscene fine because they want to avoid the trial and lawyers. I want to support this guy if he's willing to bring the lawyers and cast doubt on the MPAA.

Several readers predicted that the MPAA would hastily drop legal action against such a determined opponent (TheSpoom's was typical: "My guess: They'll drop the suit against this guy, but continue to threaten those that don't have the means to fight back. ), but as milamber3 points out, according to the article

The head of their anti-piracy division is openly saying they're looking forward to a trial and verdict next summer.

Reader Danse is skeptical:

That's what they're saying now. Give it a couple months. They'll probably drop it quietly after everyone has forgotten about it.

To this, reader TechForensics says

They can't drop the case if the defendant files a counterclaim. Or if they do, they're still in court on the counterclaim. If Hogan wants to teach them a lesson, he'll make sure his counterclaim litigates all of the issues they don't want litigated, including some they'd be forced to litigate if they actually took someone all the way to court.

Several readers' comments focused on the question of how those who aren't ready to pay the cost of a lawsuit but who would like to contest the MPAA's legal case against them, and many of these comments speculate on the viability of a pre se (self-representation) defense; as embodied in voice_of_all_reason's comment that "[w]ith a reasonable amount of study on basic law, it shouldn't be that hard at all." Reader schnell disagrees, and offers a few pointed analogies:

Describing an intellectual property civil lawsuit against people with law degrees and years of experience like this may just be a little cavalier. Let's try a little substitution here and see how it sounds:

• No, I meant fix your transmission yourself. With a reasonable amount of study on basic automotive engineering, it shouldn't be that hard at all.
• No, I meant perform a root canal on yourself. With a reasonable amount of study ovn basic orthodontics, some local anesthesia and a mirror, it shouldn't be that hard at all.

Also on the legal front, Squalish makes an important distinction:

They're filing civil lawsuits, which are a different legal category than crimes here in the U.S. One key: Civil law goes on preponderance (51% convinced = hold the defendant liable), so a mere 'reasonable doubt' that you were using your computer is not a defense. They just have to convince a judge that you probably were, rather than proving it.

Finally and usefully, reader shotfeel offers an informative link for those interested in this as well as other MPAA-related cases:

For anyone interested, Recording Industry vs The People keeps an eye on many of the RIAA cases in progress.

Thanks to everyone whose comments informed this discussion, especially the readers whose comments are quoted above.

Comments

Re:WTF?

[_xeno_]

OK, enough people seem to be confused about this, so I'm just going to try and clear this up.

• Slashback - an update to (usually several) existing stories.
• Backslash - an aggregate of highly modded comments from a previous story.

Yes, the two names are confusing: this is likely done on purpose. Slashdot was named Slashdot explicitly to make it hard to spell out the URL. (If you're going to try to spell out the full URL, it would sound like: Aych tea tea pea colon slash slash dot dot org slash. This made more sense in 1998 when Slashdot was named and most radio ads would spell out the entire URL.)

But, yeah, Backslash is kinda lame. In many web forums, it'd likely be called "necroposting" - attempting to resurrect a discussion that had mostly completed by posting something vague and useless to it, causing it to move to the top of the topic list. There's really nothing to add to Backslash stories in the comments, since the story just happened, so they're usually fairly vague and useless. They are, in essense, intentional dupes.

And, yes, I know how to disable them. I'm considering it, but I'm still holding out hope (for some reason) that they may eventually become some what more interesting.

Re:Real American

[Mister Transistor]

That's Shawn Hogan. Paul Hogan plays "Crocodile Dundee".

Re:Oh I know who'd win that one...

[EEBaum]

No, Paul Hogan is Crocodile Dundee. SHAWN is the first name of the Hogan we're talking about here.

wrestting fan site = famed spyware site

[Alien54]

As seen here, there is a famed wrestling fan site which is well known for the vast quantities of spyware that it unleashes on an unsuspecting user. the guy writing the article decided to deliberately infect a virtual machine set up especially for the purpose:

By clicking "Yes" to the security warning, one spyware was installed. That first spyware downloaded and installed three other spywares. Those installed three new spywares each. Spyware was procreating on my computer at a geometric rate!

Six new toolbars showed up in Internet Explorer. Something deleted the Google Toolbar entirely. Three new icons appeared in the system tray. Three internet shortcuts appeared on the desktop and well over a hundred more showed up in my "Favorites" folder. Dozens of processes were loaded into memory. 200 new files appeared on the hard drive as well as over 400 new registry entries. And pop-ups were appearing at a rate of five per minute.

Within half an hour, my virtual computer was as infested with malware as anything I have ever seen at the message board.

I believe my favorite was the AdDestroyer program. That one sat in my system tray popping up ad windows, then declaring that "Your trial has expired. Click here to block pop-ups like that one.". It made a very obnoxious squealing noise every time it did it.

Verrry nice. I believe the Federal Trade Commission sued a company last year for doing that.

Once I had decided that all the spyware that was going to be installed was installed, I set about trying to remove it all.

Oh boy.

Re:I want to be the **AA

[cpt kangarooski]

I am a copyright lawyer. And frankly, outside of the software industry, and certain recent developments involving computers (e.g. iTMS), no one licenses to the mass market. When you buy a paperback, or a music CD, or a DVD, from Borders or someplace, you are buying it. There is no license involved. The various publishing industries don't even claim that there are licenses. Instead people who are too used to thinking that the idea of licensing software is an acceptable or even good practice assume that that's how things work elsewhere too.

I assure you, software is the aberration, and frankly, I'd like to see licensing end there too, in 99.44% of cases. Non adhesive licenses (i.e. ones that are actually negotiated, rather than being presented on a take it or leave it basis like a EULA) would be okay. And a handful of adhesive licenses would be okay, such as the GPL. But ordinary EULAs are bizarre and totally useless, and really have got to go.

it must be owning the copy under license to view it.

No.

A DVD is no different, for our purposes, from a pocketknife. When you get one at the store, you just own it. There is no license involved at all. Since you own it, you can do anything you want with it, so long as you don't break the law.

With a knife, if you stab someone with it, that would be against the law. The fact that you're not allowed to do that doesn't mean you don't own it.

With a DVD, if you make a copy of it (or some other things), that would be against the law. But just as with the knife, that doesn't mean you don't own it. In fact, unlike the knife, after a certain conditions are met (which could happen before or after you buy the DVD) the law stops applying to the DVD, and you can copy it.

Also, in both cases, under certain conditions, the law lets you do things that you couldn't do otherwise. If you're being attacked, you might be able to legally stab someone with the knife in the course of defending yourself. If it's a fair use (and 17 USC 1201 isn't a factor) you might be able to make a copy.

Copyright law covers several things, including publicly performing a work. If you have a jumbotron in the middle of town and played the DVD on it, that would be a public performance. It's against the law. Copyright does not cover non-public performances. So if you watch the DVD at home, or with friends or family, then that's perfectly legal. You do not have to have a license in order to do that, any more than you need a license to whittle using the knife.

You can also build your own player to view it.

Yeah, you're going to run into some 1201 problems there. Did you miss the whole Reimerdes case?

I always wondered why there weren't more geek lawyers

There are plenty. Mostly they're patent lawyers, but not all.

Re:I'd just wish that, someday,..

[aeschenkarnos]

In civilized nations, barratry isn't as easy, because we operate under the rule of loser pays winner's costs, which greatly discourages people who are unsure that they will win from filing lawsuits, rather than the unfortunate American approach of each party paying their own costs. But then, depth of pocket triumphs over morality and common sense in all other aspects of American life, why not the courts too?

Which addresses in logs

[konigstein]

Just to point out, in a legal case they not only use the IP address leased at that time by your modem/router, but also your MAC address(or physical address, though this can be spoofed) and the node you are connecting thru in the ISP's network. If(when) they subpoena your ISP's logs, it will show this information and be very, very difficult to disprove. ISP's tend to keep very thorough track of these things for billing purposes :)