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

So if he turns it around....

[david_594]

There is no way the MPAA will let this go to trial since he is trying to take the offencive on this. What can really come though from him keeping them in court after they drop it? I can see if they bring him to trial they could be asked to show their methods of identifying him. But after they drop it how can this information be requested? I am a legal newb.

Re:So if he turns it around....

[voice_of_all_reason]

What can really come though from him keeping them in court after they drop it?

Everything. If he wins, it sets precedent. Remember that everyone so far has simply paid the MPAA a settlement rather than go to court. If Hogan can get a judge to say "ip adresses and a bittorrent log is not enough evidence to prove your claim," everyone else who gets a letter can get a cheap lawyer to easily argue that point.

But after they drop it how can this information be requested?

I don't know if Hogan would be able to demand that information in a counter-suit -- the burden is on him to prove point. Like risk, the defense has a +1 cloak of advantage.

Re:So if he turns it around....

[utopianfiat]

If anything, we have three possible cases since it's pretty much stipulated that he bought the dvd:

Hogan downloads torrent before owning the dvd:
If there is zero damage to the MPAA, do they still deserve damages?

Hogan does not download the torrent and owns the dvd:
Suit dropped, MPAA gets their shorts sued into oblivion.

Hogan downloads torrent after buying the dvd:
Suit tranforms into a fair-use debate.

I personally would like to see a good fair-use case.

Re:So if he turns it around....

[LocoMan]

But in cases 1 and 3 they can claim that the damage was in the form of all the people Hogan distributed the movie to while downloading it off bittorrent. I think the only way to beat the MPAA in this one (and probably what he's going for) is that he didn't download it at all, and that the proof the MPAA has that he did isn't good enough. The fact that he owns the DVD is more of a way to say "why would I download it if I own it already?".

I'd just wish that, someday,..

[bermabloeme]

someone in the Congress would write and Congress would pass some sort of anti-corporate bullying law. In other words, if the RIAA, MPAA, etc... goes after consumers with lawsuit and the consumer is found clear of any violation, they get legal fees paid, compensation for the trouble of the litigation, and punitive damages. Yes, you can counter sue, but trying with organizations with such deep pockets, you'd be in litigation for a decade.

Yeah, I know, the industry lobbyists on K Street will never allow it. *Sigh*

transmissions aren't that hard...

[SuperBanana]

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.

I understand what the poster is trying to say, but I think it backfired, because auto repair is easier than many think.

In this case- the manual transmission for my car (which is full-time AWD and has a limited-slip center differential, so it is fairly complex as transmissions go) doesn't require much rocket science. It requires the factory repair manual, a few special tools (some are specific to the transmission, others are just standard measuring tools), attention to detail, and making sure all the tolerances are correct (they're adjusted via lots of extra washers/spacers/shims.)

Granted it is one of the more complex mechanical jobs aside from a full engine rebuild, but those aren't very hard either. If you're ever curious about it and want to learn- sign up for an appropriate class at the local tech school to get basic good practices down. Then, start with old car bought off the classifieds for which you can find factory manuals/rebuild guides for. Set aside a fair bit of cash for the various tools you'll need, although some can be rented.

All this has me thinking, "gee, wouldn't it be nice if there was a 'Law for Citizens' class at the local community college?"

I want to be the **AA

[tinkerghost]

I love these guys, there almost as cool as SCO.
When you get around the 'it's not copywrite, it's a liscense' issue, they turn around and go back to quoting it's a copywrite violation.
Hello ... [tap][tap]... pay attention, you can get protection under copywrite - you are selling the data on the disc as a collective work, or you can be selling a liscense for the work on the disk. You don't get to play both games - if for no other reason, the IRS demands it be one or the other.
Hmm, guess that's one way for us to be certain whether we buy a copywriten work or the liscence to view it. We can check the IRS filings of the companies that are members of the **AA. The sales have to be listed as goods or liscenses, and we know you never, ever, ever lie to the IRS.

Re:I want to be the **AA

[Amazing Quantum Man]

If it's a license issue, I'd love for Hogan's lawyers to bring up the ads that say...

$BIG_MOVIE -- Buy it today!!!!

not,

$BIG_MOVIE -- License it today!!!

Seems to me that either I'm buying a copy, not a license, or the studios are guilty of false advertising, fraud, and Bait&Switch.

Why doesn't owning a copy = Right to download?

[erroneus]

If you own your copy, how does downloading another copy in some other format differ from other means of exercising fair use rights? The only difference I can see is that the user didn't actually do the work of transcoding the data. I am assuming the copy of the movie is an AVI or some other non-DVD bit-image format.

Transmissions aren't that complexe.

[RingDev]

        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.

To be fair, neither of these analogies are accurate.

1.With the proper tools and a good manual, any literate able bodied person can rebuild a tranny. Follow the instructions and it's no problem.

2.Performing a root canal on yourself presents several physical challanges not at all related to the root canal. If you changed this one to performing a root canal on someone else, it would be accurate. With the basic knowledge, you would know what to do, but with out the experience, practice, and muscle memory, it would be incredibly difficult to do well.

-Rick

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

[Anonymous Coward]

If you want good wrestling, learn Spanish* and watch Lucha Libre on your local Mexican channel.

* (learning Spanish is optional, but watching Lucha Libre without understanding certian things is unfulfilling)

Re:What about a "loser pays" legal system?

[Space cowboy]

And since it appears that the main difference is the loser pays rule, and that British society is probably no better or worse than American society, that implies that a lot of fair, perfectly meritorious cases are going untried because of the dangers of the loser pays rule. That's why I don't like it; it's unfair.

There's an in-built assumption that going to court is "a good thing" in the above statement, and a representation of the alternative system as "more dangerous", an emotive term. I would suggest that it simply encourages more people to come to an agreement outside of a court-room in the UK; that when no agreement is forthcoming a court-case is a perfectly acceptable solution, but that other routes ought to be pursued first.

I guess what you see as "unfair", I see as more pragmatic, and more efficient. Perhaps it's just a difference of style - going to court in the UK is usually a last-resort (unless it's a criminal case, of course) even if you're completely confident of winning.

From what you write above, it seems that the equivalent of legal-aid is not as common as in the UK, either. I've had two members of my family claim (and get) legal aid in civil cases. It wasn't particularly (pun intended :-) trying. Perhaps (*because* it's a last-resort) there is more money (relatively speaking) to support those who *need* to go to court to resolve something...

Simon.