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A Court's Weak Argument For Blocking IP Subpoenas
A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities en masse of over 1,000 "John Doe" defendants whom the producers accused of sharing their films and violating their copyright. Quebec-based VPR Internationale had obtained the IP addresses of 1,017 users that they suspected of sharing their copyrighted films over the Internet, and wanted a federal court to sign off on subpoenaing the subscribers' identities from their ISPs.
Judge Harold Baker's ruling denying VPR's request has been lauded as a victory of judicial common sense against abuses of the legal system. Even though this will probably put me in the minority among self-described civil libertarians, I beg to disagree. First, because I don't think that subpoenaing a defendant's identity from a service provider constitutes an abuse of the legal system in and of itself. But more importantly, whether or not one agrees with the judge's decision, I think it contained plenty of logical errors, including a paragraph near the end which literally averaged about one error per sentence.
But back up for a second. Some of you are already thinking: What is a math major doing making legal criticisms of a ruling of a federal judge? So here's what I mean in each instance where I say that the judge made a "logical error": I mean that if you were to take the point made by the judge, and take the opposite point made by someone who disagreed, and you asked a group of experts (certainly if you asked a group of mathematicians, but probably even if you asked a group of lawyers) to read the two points and vote on which one was right, and you didn't tell them which position was the one taken by the judge — that most of the respondents would vote that the judge's position was incorrect.
Conversely, I'm always interested in hearing why people think I might be mistaken, if they say exactly what I've said that they think is incorrect, and why. In my most recent article, I offered a cash prize split between readers who submitted arguments that I was wrong (or, really, that my idea needed more work), and I enjoyed the responses so much that I ended up paying out more than the originally stated prize total. But if someone tries pulling rank and saying that I should defer to them on a legal question because they are a lawyer, law student, Supreme Court justice etc., here's the question I want them to answer: If we rounded up 10 lawyers to act as expert "voters," and showed each of them my argument and the heckler's counter-argument, and didn't tell the voters which argument was made by the math major and which one was made by the law school graduate, for whose argument would the majority vote? If the heckler won't explicitly make that claim, then there's no reason to take them seriously — because, obviously, if only 5 out of any given 10 lawyers would agree with their point, then why should we listen to the 5 who agree, instead of the other 5 who don't? (This does not apply if someone is making a bona fide argument — then the argument can be analyzed on its own terms. But if it's a good argument, the person shouldn't have to invoke their credentials to make it.)
Back to Judge Baker. His argument in support of his ruling begins on the second page, by rejecting the plaintiff's analogy between ISPs and car rental agencies:
VPR compares the Doe defendants' IP addresses to "records of who rented which car at a busy car rental agency, in that IP addresses are like cars "leased by subscribers. If a plaintiff was injured by a rental car, the plaintiff can discover the information on who leased the car from the agency by specifying the license plate of the offending vehicle and the date and time when the injury occurred. Without access to the agency's records, all the plaintiff has is the identity of the rental agency, but not who was driving the rental car." The comparison is not apt. The rental agency owns the car and is a potential defendant, so the adversarial process would yield the driver's information.
Huh? If you're injured by a rental car, how is the rental agency a "potential defendant"? Well, technically, anybody in the world is a "potential defendant" — you can put anyone's name on a lawsuit until a court shoots you down — but since that would make the phrase meaningless, presumably Judge Baker meant that the rental agency would be a legitimate potential defendant, one whom the accident victim would be justified in suing. So again: Huh? Why is a rental car agency liable for an accident caused by one of its renters? Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable — but not simply if their customer did something reckless over which they had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).
So, to translate that into vote-off terms as discussed above. What I mean is that if you took these two points:
- "The analogy between an ISP and a rental car agency is inappropriate, because a plaintiff could sue the rental car agency in order to subpoena the identity of the renter that hit them, but a copyright owner could not do the same to an ISP." [Judge Baker's argument.]
- "The statement that the analogy is inappropriate, makes no sense. In either situation, the plaintiff wants to sue a customer of a third-party company, when the third-party company itself is probably not liable. So in either case, the plaintiff can sue a 'John Doe' defendant, and subpoena the company for the customer's identity. One could argue that this should be permitted in both cases, or prohibited in both cases, but no reason has been given as to why they should be treated differently." [My argument.]
and asked lawyers or mathematicians to vote on which was more correct, and you didn't tell them which argument was made by a judge and which argument was made by a math major, that the second point would get more votes. (I certainly think that if you fibbed and told your respondents that the first argument was made by a defendant, and the second argument was made by a judge in rejecting the defendant's line of reasoning, that most people would vote, "The judge is right." That would be cheating — playing on people's tendency to believe that a judge's reasoning is usually superior — but I could point out that if respondents are really evaluating the two arguments objectively, then it shouldn't matter!)
I'm not going to convert every such disagreement highlighted here into the point-counterpoint format; I think in each case it should be non-controversial how the conversion would go.
To proceed: in claiming that subpoenaing a rental car agency for the identity of their customer is not analogous to subpoenaing an ISP for the identity of their subscriber, Judge Baker adds: "And such information is not necessarily confidential; accident reports and police records may also identify the driver." True, but what does this have to do with anything? The question is: given a certain probability that a company's customer is guilty, is it appropriate to let a plaintiff subpoena the customer's identity from that company? If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public.
Judge Baker then raises the point that the customers to whom the IP addresses were assigned might not be the actual infringers:
Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers. Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers' Wi-Fi connections.
Well, true — the assignee of the IP address might not be the actual copyright infringer. But, more generally, being named as a defendant in a lawsuit does not mean that you're at fault anyway — that's what the trial is for. For a court to take a plaintiff's case against a given defendant seriously, they just have to believe that there is a reasonable probability of the plaintiff winning. If the VPR has a list of IP addresses of users sharing out their copyrighted material, it may be true that not literally all of those infringers are living in the household that the IP address has been assigned to — but what percentage of them probably are? 90% or more? In any other scenario, wouldn't that have been considered quite a "reasonable" likelihood that the plaintiff had a legitimate case against a defendant, and that the case should go forward so that more facts can be brought to light, with the expectation that those facts would move you to a higher degree of certainty about whether the defendant was in fact at fault?
On the same note, Judge Baker goes on to say:
"The list of IP addresses attached to VPR's complaint suggests, in at least some instances, a similar disconnect between IP subscriber and copyright infringer. The ISPs include a number of universities, such as Carnegie Mellon, Columbia, and the University of Minnesota, as well as corporations and utility companies."
But there is no reason to think that in the case of these entities, there would be any more "disconnect" between the actual infringer and the user on the network that the IP address had been assigned to. In fact, in the case of, say, a corporate network, it's more likely that an IP address would have been assigned by the IT department to a specific, trackable user, and not shared out on an unsecured Wi-Fi network where the IP could have been hi-jacked by a car parked on the street, a scenario that's probably more likely for a home network. I'm moderately confident that if you compared commercial home ISPs to corporations and looked at the percentage of times that the "user of record" for an IP address according to the logs was the same as the actual person using it, that percentage would be higher for a corporation than for an ISP serving home users. In any case, Judge Baker certainly gives no reason to expect that it would be lower.
Now here we get to the home stretch, the last paragraph on page 2, where I'm claiming almost one logical error or non sequitur per sentence:
- "As VPR points out,
ex parte motions for expedited discovery have been granted in similar cases in other districts;
among the thousands of Does in those cases, relatively few motions to quash have been filed."
I'm not even sure what Judge Baker is saying here, but given the context, it seems to be: The innocent John Does' only defense against abuse of the discovery process is to quash the subpoenas (basically, file a motion saying "I'm not guilty, so the plaintiff can't have my identity"), but that's been relatively rare, so we can't rely on that as a defense against abuses of the system. Of course, there could be a simpler explanation as to why it's rare: Perhaps a lot of the John Doe defendants thus named are, in fact, guilty! I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either. Come on — it's not that hard for a copyright holder to join a p2p network or find a Torrent tracker, and get a list of the IP address of a few users who are sharing or downloading their content illegally. Is it that hard to believe that most of the users on that list are probably doing what VPR said they were doing? -
"In
at least one case, counsel has sought leave to amend the complaint to add more Doe defendants.
See Lightspeed Media Corp. v. Does 1 - 100, Case No. 1:10-cv-05604, d/e 16 (N.D. Ill.) (seeking
leave to add Does 101 - 1000 as defendants)."
Uh, OK. Plaintiff started with a list of 100 defendants, and then expanded it to 1,000. What does this have to do with the legitimacy, generally, of suing John Doe defendants and subpoenaing their identities? -
"In Hard Drive Productions, Inc. v. Does 1 - 1000,
counsel sought leave to dismiss more than 100 Doe defendants, stating that some of the Does had
'reached a mutually satisfactory resolution of their differences' with the plaintiff."
Well, yeah, that's what you're supposed to do — try and settle out of court instead of bringing every single case before a judge. How does the fact that some plaintiffs settled make it less legitimate to sue John Doe defendants in the first place? -
"Could expedited discovery be used to wrest quick settlements, even from people who have done
nothing wrong? The embarrassment of public exposure might be too great, the legal system too
daunting and expensive, for some to ask whether VPR has competent evidence to prove its case."
Now these are actually all fair points. The logical error is that they apply to any lawsuit — Judge Baker makes no argument why these problems would be more pronounced in a lawsuit against 1,000 John Does.
In fact, some of these problems would probably be less severe in the case of a lawsuit against 1,000 John Doe defendants than in the case of a lawsuit against a single, named defendant. If you're one of 1,000 people who is accused of illegally downloading an adult movie, then even if the plaintiff learns your identity, it's unlikely that your name is going to appear in any articles about the case — far less likely than if you're the only defendant in the lawsuit. And if, out of over 1,000 defendants, there are at least several dozen who decide to fight the case, they'd be more likely to be able to split the costs of hiring a good lawyer than if only one defendant was named who had to pay all the costs on their own. Both embarrassment and legal fees are less of a burden when you can share them with hundreds of other people.
Now, I'd be happy to live under a legal regime that reached either conclusion — it's not an egregious miscarriage of justice if plaintiffs are able to subpoena the identities of ISP subscribers who show a high probability of being guilty, but it's not an egregious miscarriage of justice if they aren't, either. I think we need more healthy skepticism about the reasoning that judges use to reach those conclusions.
The practice of "judge-bashing" is unfortunately associated in most people's minds with extremists, usually on the right wing, but my reason for being skeptical is simple and non-partisan. Suppose that you were take, say, an economic argument published by a prominent economist, and asked the public to identify what they thought were "mistakes" and submit counter-points to those specific points in the argument. Then, suppose for each such disagreement, you asked an independent panel of economists to vote on who was right without saying which was the point made by the economist and which was the counter-point made by the layperson. (I'm not talking about errors that the author would voluntarily correct once they were pointed out; rather, points where they "dig their heels in" and refuse to back down.) I think it would be quite rare to find a disagreement where the experts were split 50/50 on whether the economist or the layperson was right, and extremely rare to find cases where 80% of the experts voted with the layperson. By contrast, polling my lawyer buddies about this or that part of a judge's reasoning, the 50/50 splits are extremely common, and there were quite a few cases where the vast majority agreed that a judge's reasoning was wrong — but always with the same shrug that there's not much you can do about it.
...after the first argument made, about the car rental agency. Anyone who has studied law knows that, at least in the US, the rental agency WOULD be a legitimate defendant. What if they leased the car to someone without a licence? They've essentially armed someone with a dangerous weapon. There are plenty of reasons like this that would make the agency potentially liable, and the law pretty much has it worked out. While nothing's perfect, this math major either needs to expand his expertise or to kindly be quiet.
I keep reading your articles and I get more frustrated every time I do. Someone is wrong on the internet! It just grinds on me for no good reason. I really shouldn't give you the time of day because you have shown time and again that you have no clue what you're talking about when it comes to law.
First of all, please don't redefine "logic" just because you feel like it. A logical error in an argument is one where the conclusion does not necessarily follow from the premises. That's it. Because that's what logic is. It has nothing to do with voting or whatever the hell bullshit system you can come up with. Something is either a logical error or not as a matter of logic.
Second, YOU ADMITTED THE JUDGE WAS RIGHT about the car rental liability case. You explicitly said that there are circumstances where the rental agency may be a legitimate potential defendant, yet you just cast that aside and ignored it for the rest of your argument. THIS is a logical error: You have certain premises, and you ignore them to the effect that your conclusion does not necessarily follow from your premises.
Third, I hope that you phrased the public/not public question wrong. If you phrased it right, then the judge is arguing that there is a disanalogy precisely because information was made publicly available. That's why it is relevant when the information is not made public - it's not made public vs it was made public. That is the very thing being argued, I don't know how you can't see the relevance. That's like saying a label like "WARNING: This chair can only support up to 200 lbs of weight." is not relevant for those who weigh over 200 lbs because they weren't explicitly mentioned. Disingenuous at best.
I could go on, but I don't have as much time as you do. If you want to be taken seriously by people, you should get some legal training before you comment. Even if you want to argue that legal training is not required to make comments on legal cases, you STILL need to get legal training to understand WHY it's not required in order to make a coherent argument for your case. That's just a long way of saying that you're full of shit.
I'm not fucking reading all of that. Someone sum it up in one or two sentences, please.
I stopped reading at "but my reason for being skeptical is simple and non-partisan." Yeah right. After all the bashing he does, everyone else is an extremist and he is just plain right. Admittedly, the rest of the post is just as much crap to match that attitude.
" But the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place."
As in Canada our federal judges are appointed, not elected by citizens, I can only hope we "call out" more judges when they make idiotic decisions in cases, such as when Parliament overruled the CRTC and a federal judge told them they could not.
I started reading, then got to the car rental part which made very little sense as a point in favour of Mr. Complainer & then I read the comments as it was much less to process.
At this point I feel that I have wasted my time reading that far & that I should probably slam my head into my desk in order to feel better. /Facepalm
I gave up reading midway because the OP has no idea what precisely he's talking about and the claimed "logic" there is extremely weak. The reason the rental agency would likely be on the hook in that accident is that them and their employees are the only ones known to have access to those vehicles without more information, hence why they'd be the most likely party in any legal action.
As far as police and witness accounts, those are definitely very important in establishing the question of whether or not the lease applied to the suspect in question. With an IP you don't get any corroborating evidence at all until you raid the place and seize the computers and if you can't readily find the materials you've nothing else to lean on. So should somebody be at the residence as a guest or just using an open WAP you've no way of establishing which it is. And that there is the problem, because you don't have any assurance at all that the person assigned the IP was the person the ISP thinks it was you cannot equate the two situations. Plus, because of the way that DHCP works there have been cases where the completely wrong person was investigated due to timezone problems.
In other words, complete tripe, and you definitely don't need to be an attorney to see how weak the assertions here are.
"the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place."
I think that's absolutely silly. Although having a JD may uniquely qualify you in matters of law, why should an average citizen not be allowed to question a judge's ruling? The laws are printed in books to which we can all refer and question the interpretation of.
I suspect the answer is, "because we like the judge's ruling" and if matters were reversed this statement would not have been included.
what does a complete fucking metrosexual left wing extremist entitlement baby like Bennett know about anything at all?
...but I think the OP has Narcissistic Personality Disorder.
Oh, wait. I am not qualified to make that diagnosis due to my COMPLETE LACK OF QUALIFICATIONS AND TRAINING.
This is a prime example of why people without legal training should not attempt to critique court decisions.
Words that mean one thing to lay people mean something else to the courts.
On top of that, couldn't this have been summarized in some compact format so that readers know if they want to read the entire wall of text or not?
Putting moderation advice in your
What on earth is going on at the bottom of this page?
The quality of those off-brand "logic" things just doesn't measure up to real logic.
First, because I don't think that subpoenaing a defendant's identity from a service provider constitutes an abuse of the legal system in and of itself.
The abuse does not come from the request itself, but usually what follows said request. The plaintiff usually knows that he has thin legal ground over his lawsuit and will pull back his suit before a judgement likely to favor the defendants (and set a landmark) can happen. He will then turn around and DIRECTLY contact each of those defendants that got outed in the discovery process and personally extort thousands of dollars from them under threat of ruining them through endless litigation that will cost them far more to defend themselves from a million dollar lawsuit.
Now THAT is textbook abuse.
Am I missing something? I don't believe I have ever read anything by Bennet before, but this guy's argument is awful. None of the points he makes actually address the issues at hand. The two that pop out to me are: 1. Open wireless network, hacker, etc, IE you didn't download any infringing material and someone else used your IP. The judge argues this: "Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers." Bennet responds with: "Well, true — the assignee of the IP address might not be the actual copyright infringer. But, more generally, being named as a defendant in a lawsuit does not mean that you're at fault anyway — that's what the trial is for." So, once again, am I missing something or did he just agree with the main point of Judge Baker's entire argument? If the IP addy might not be the actual infringer and we in this country are supposedly innocent until proven guilty then the entire case should be thrown out. "Being named as a defendant in a lawsuit does not mean that you're at fault anyway." Really? How many people who have been wrongly accused of downloading child porn or something equally heinous only for the cops to say, "Oops". This of course leads to the second tenet of the arguement: "Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case." And then Bennet responds, agreeing with him once again. "Now these are actually all fair points. The logical error is that they apply to any lawsuit — Judge Baker makes no argument why these problems would be more pronounced in a lawsuit against 1,000 John Does." So in the end he agreed with Judge Baker's two main points (that support the rest of his argument). What am I missing?
Let off some steam, Bennett!
Sir –
I read the article up to the point where it inferred that logic was lacking with respect to a car rental company being liable for the injuries caused by a driver who rented that car.
I propose a two-fold answer. As a matter of law, many states have statutes that require owners to be responsible for the accidents involving those who are using their car with permission. That's the end of the legal analysis in most cases. Why do we have that law, you ask? To protect victims.
The policy rationale for requiring owners to be responsible for the use of their vehicle by others is to protect victims by ensuring that when accidents occur there are insurers to compensate innocent victims (at least, this is the rationale in the fault-based systems such as most of the USA). In the case of rental cars the cost of that insurance is incurred by the rental car company, which cost they pass that cost onto the drivers.
How does society dictate that car rental agencies get insurance? By enacting statutes that make owners liable for the negligence of the drivers.
The alternative has been shown to result in patchy coverage of injuries occurring in motor vehicle accidents. This lack of coverage hurts innocent victims who, in fault-based insurance schemes, may have no recourse to compensation from uninsured or underinsured drivers.
Thus, to provide innocent victims with a recourse to compensation, many societies have decided that the owners of vehicles, who shall generally have insurance, shall be responsible for the accidents caused by drivers of their vehicles, who may not have insurance.
Of course this policy and such laws are not uniform. In some cases the owner must be shown to be negligent or otherwise responsible or aware of the driver's behaviour.
I'm not sure if this was the basis for the logic of the Judge in this case, but it's a well known rationale that I thought may be worth sharing.
The rest of the article was tl;dr.
ip's come and go, they really are not reliable to identify people. anyone who knows what they're doing can spoof them... you newbs saying otherwise should go back to college and learn that, those of us who never went to college and really are in touch with reality know this.
http://www.fusionplant.com/archive/textfiles/gnu_fortune/gnu_fortune_medicine
In case you were wondering.
A CODE OF ETHICAL BEHAVIOR FOR PATIENTS:
1. DO NOT EXPECT YOUR DOCTOR TO SHARE YOUR DISCOMFORT.
Involvement with the patient's suffering might cause him to lose
valuable scientific objectivity.
2. BE CHEERFUL AT ALL TIMES.
Your doctor leads a busy and trying life and requires all the
gentleness and reassurance he can get.
3. TRY TO SUFFER FROM THE DISEASE FOR WHICH YOU ARE BEING TREATED.
Remember that your doctor has a professional reputation to uphold.
%
A CODE OF ETHICAL BEHAVIOR FOR PATIENTS:
4. DO NOT COMPLAIN IF THE TREATMENT FAILS TO BRING RELIEF.
You must believe that your doctor has achieved a deep insight into
the true nature of your illness, which transcends any mere permanent
disability you may have experienced.
5. NEVER ASK YOUR DOCTOR TO EXPLAIN WHAT HE IS DOING OR WHY HE IS DOING IT.
It is presumptuous to assume that such profound matters could be
explained in terms that you would understand.
6. SUBMIT TO NOVEL EXPERIMANTAL TREATMENT READILY.
Though the surgery may not benefit you directly, the resulting
research paper will surely be of widespread interest.
%
A CODE OF ETHICAL BEHAVIOR FOR PATIENTS:
7. PAY YOUR MEDICAL BILLS PROMPTLY AND WILLINGLY.
You should consider it a privilege to contribute, however modestly,
to the well-being of physicians and other humanitarians.
8. DO NOT SUFFER FROM AILMENTS THAT YOU CANNOT AFFORD.
It is sheer arrogance to contract illnesses that are beyond your means.
9. NEVER REVEAL ANY OF THE SHORTCOMINGS THAT HAVE COME TO LIGHT IN THE COURSE
OF TREATMENT BY YOUR DOCTOR.
The patient-doctor relationship is a privileged one, and you have a
sacred duty to protect him from exposure.
10. NEVER DIE WHILE IN YOUR DOCTOR'S PRESENCE OR UNDER HIS DIRECT CARE.
This will only cause him needless inconvenience and embarrassment.
%
A distraught patient phoned her doctor's office. "Was it true," the woman
inquired, "that the medication the doctor had prescribed was for the rest
of her life?"
She was told that it was. There was just a moment of silence before
the woman proceeded bravely on. "Well, I'm wondering, then, how serious my
condition is. This prescription is marked `NO REFILLS'".
%
A doctor calls his patient to give him the results of his tests. "I have
some bad news," says the doctor, "and some worse news." The bad news is
that you only have six weeks to live."
"Oh, no," says the patient. "What could possibly be worse than that?"
"Well," the doctor replies, "I've been trying to reach you since
last Monday."
%
A woman physician has made the statement that smoking is neither
physically defective nor morally degrading, and that nicotine, even
when indulged to in excess, is less harmful than excessive petting."
-- Purdue Exponent, Jan 16, 1925
%
A woman went into a hospital one day to give birth. Afterwards, the doctor
came to her and said, "I have some... odd news for you."
"Is my baby all right?" the woman anxiously asked.
"Yes, he is," the doctor replied, "but we don't know how. Your son
(we assume) was born with no body. He
If I were the movie music industry I'd be supporting the transition to IP v6, as it reduces the ambiguity. But then again, the shadow of doubt related to IP addresses in identifying criminals is still quite large.
Another part of his argument is that the truth will be revealed in court, the purpose of many of the summons is not to get to court but to get revenue, We have seen when people take action on a false claim the companies, try to drop the matter wirhout incurring expense or wrongdoing on their part, that has highlighted there is more than a shadow of a doubt with the current method of discovery.
"Enjoy what you're doing! If it becomes drudgery, you're doing it wrong!" - Jim Butterfield
Obviously if you are "damaged" by a rental car you sue the rental car company they will then hand over the guy who rented the car on a silver platter to you. If you don't directly sue the ISP when you are "damaged" by an IP address then the anoalogy is completey invalid as the Judge stated.
Now I don't know the lagalities and whether you do or do not sue the ISP in that case, but you weren't arguing based on legalities you were arguing based on logic (well at least claiming to).
And no I didn't read any further, given how stupid the lead argument was.
Anyone else seeing what looks like chants to Cthulu written in Orcish at the bottom of the page for today's QOTD?
God invented whiskey so the Irish would not rule the world.
todays fortune seems spot on for the FA
Mathematicians commenting on law, is equivalent to the perpetual motion crackpots commenting on physics.
That's because most Americans don't read the tortured logic they often employ to justify their decisions. Kelo v. New London would give a normal person a brain aneurysm trying to wrap their mind around the thought process used to justify an upward redistribution of real estate wealth to rich land developers on the basis that their ability to generate better public revenues is a "public purpose" under the 5th amendment.
Those of us who have read a few major court rulings are well aware of how fallible they are. In my opinion, this is a typical example of why mass democracy is deadly to a republic. You have an ignorant, teeming mass of voters who are "deferring to their betters" in the judiciary while simultaneously wanting the privileges that are granted to an informed and responsible electorate.
First of all, truth is not decided by popular vote. Something either is, or is not true. You apparently spend too much time on social web sites that entice you to "make yourself heard" by voting for some silly thing or other.
I won't go through all the problems in your diatribe, but I have to point to one place where you are just so ignorant its pathetic.
Your 'response' to the Judge's statement - "As VPR points out, ex parte motions for expedited discovery have been granted in similar cases in other districts; among the thousands of Does in those cases, relatively few motions to quash have been filed" - is spot on... if you had only stopped after the first 10 words - "I'm not even sure what Judge Baker is saying here..."
Clearly you have not researched the issue about which you seem to think you're an expert. The reason relatively few motions to quash have been filed is because the deadline for filing a motion to quash passes before those being sued have been identified and made aware of being sued. That's why they are named "Does", as in John and Jane. Only after the expedited discovery has taken place are real names matched up with IP addresses, and then its too late for those people to quash the expedited discovery motion.
You really need to knock your self-assessment of your intelligence down several pegs. You aren't nearly as smart as you think you are. In fact, you come across as one of those Idol contestants that think they are the next superstar and are just pathetically awful singers.
In fact, in the case of, say, a corporate network, it's more likely that an IP address would have been assigned by the IT department to a specific, trackable user, and not shared out on an unsecured Wi-Fi network where the IP could have been hi-jacked by a car parked on the street
Have you ever worked in a corporation? If so, have you ever worked in the IT department of a corporation? These questions are rhetorical since your conclusion is obviously based on not having done so. The IP addresses in most cases are not static assigned, especially to workstations, desktop PCs, and laptops. Why? Because it is a royal pain once you start dealing with people moving between multiple buildings or subnets. No IT department would ever want to handle dealing with changing IP addresses, switch configurations, VLANS, or routers whenever someone moves between two locations. No, they setup large DHCP pools on different subnets across the different buildings. If a laptop moves to a new location (say for a meeting or presentation in a conference room), the wifi network picks up the DHCP request and issues a new address based on what is available in the pool. If that user then goes back to his desk and puts the laptop in the docking station, it does another DHCP request over the wired network (which should be a different VLAN/subnet than the wireless for security sake) and gets yet a different IP address from a different DHCP pool.
Just about the ONLY thing that an IT department will assign static IP addresses to would be servers, and good luck claiming that an IP will point to a user on a server when there are potentially 100+ people using that server (we must have 50 - 100 servers for which at any given time there are at least 50 people logged into them).
We were all warned a long time ago that MS products sucked, remember the Magic 8 Ball said, "Outlook not so good"
I'm always interested in hearing why people think I might be mistaken
You're mistaken because you write a lot of words and succeed in not actually saying anything.
That was a face-smearing moment. I can't believe I made it so far, but you said,
BULLSHIT. You _clearly_ have no idea how networks work in general. My company network has 5 IP addresses, static, on the cable line. We use a grand total of... ONE of them for _all_ of our internet access. Every single employee that accesses the network from any machine whatsoever in the building, and any of the machines we hook up for updates (we run through about 50-100 unique machines, in addition to the 20 or so static office machines) uses _exactly_the_same_ IP address to access the internet.
So in my case, any of these 100 machines could be the culprit. The only pieces of information they could have are 1. IP address, 2. time, 3. port. If they provided me with a time, I could get a list of what machines had a DHCP address at that time -- assuming the information hadn't timed out according to the 7-day (or is it 1-day?) lease period. If they gave me the port, I would be unable to do anything with it at all. I have no logs of what IP connected to what port when, nor what port was assigned for what machine when. Those log files would be massive. I don't think FreeBSD (the base of my router) even _supports_ that sort of logging. So when it hits my router, they ran into the base of a tree and they're looking for a specific leaf without any idea where it is or what it looks like. If the downloader set up a static IP and didn't use DHCP, I have no record of them being on the network at all. I'm interested in any details anyone can give me on how to retain more information, but I can't (CAN NOT) set up any sort of authentication for internet connections.
Haven't you ever heard of NAT? Don't you realize that _EVERY_ home router uses NAT and puts multiple users behind _one_ ip address? Don't you realize companies do exactly the same thing so they don't have to buy a quarter million IP addresses each?
Where the hell is the logic here? You seem to be unable to grasp the most basic of issues here. The judge has a much firmer grasp over what's going on that what you've demonstrated. Please, get off the internet, or at least shut up.
BTW, I think the judge's argument about IP's being leased out like a car rental agency is very adept and creative. It does _not_ suggest that information behind an IP address should not be able to be subpoenaed, but probably cause is probably much more necessary to do so (in the case of a rental agency, and should be in the ISP instance). Even so, when you subpoena the first rental agency (the ISP), you're likely to get another that maintains much less accurate records (the home router, company router, whatever). As things go now, it's abused, and needs to be reined in; forbidding it is not the answer, but honestly, it's the best option until specific rules, allowed usages, reasonable investigative practices, whatever take place.
I think this guy is wrong.
The reason it's not reasonable to give out a subpoena for 1000 "John Does" is that the judge is not allowed to use the probability ratio that, as you stated, 90 percent of the IP holders are the actual infringers as a basis for probable cause for the subpoena. He must have probable cause for EACH individual person as a separate entity. This is the reason he mentioned that some are assigned to Universities.
For example. Say you are one of those John Does and you live in an apartment building with 3 floors and 7 apt's per floor. You live on the second floor in the center most apartment. You have unsecured WiFi. The probability that you are the infringer is now potentially only 1 in 21. That would not provide probable cause for the subpoena.
- A Frog in a pond utters an azure cry. -
Well the guy might have a point about the Judges analogy and as analogies go they are much like a generality; it does not cover all the bases. However Mr. Haselton is barking up the WRONG tree. While the analogy may have logic holes one thing is for sure about the Judges position; the Judge is absolutely right; an IP address is associated to a MAC address not an Individual.
My karma is not a Chameleon.
Because for text walls like this, you can skim through the comments of the people that actually read the text wall, and figure out if it's worth reading.
Consensus is pretty much "No, you're an idiot", so thanks slashdot commenters for saving me time.
What do I know, I'm just an idiot, right?
I admit, I got about halfway through this willing to concede some aspects of earlier points could have been made stronger by the judge. Until I got here:
"I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either. Come on — it's not that hard for a copyright holder to join a p2p network or find a Torrent tracker, and get a list of the IP address of a few users who are sharing or downloading their content illegally. Is it that hard to believe that most of the users on that list are probably doing what VPR said they were doing?"
Assumption of innocence isn't just not a thing we shouldn't be doing, it is the very thing required of us to, in fact, do. Especially when the situation in question makes it easy to presume guilt without evidence, then it is even more important we not assume guilt just because of our ability to believe the accusation.
Identities should most certainly NOT go to the corporation asking for them. Instead, the list of IP address should be passed to the appropriate authorities who can then conduct legitimate investigations as needed to obtain further evidence of any possible crime. The corporation should not receive any identity information about suspects until investigations conclude a crime has taken place.
If an infringement comes from an IP owned by an ISP, why don't they just sue the ISP? I'm saying to simply forget about this whole protection for service providers thing... and go after the party that one has the resources to determine is most responsible for the infringement.
The ISP, meanwhile, would be lawfully entitled to collect all damages (including legal expenses) from the subscriber who is accountable for the MAC address allocated to that IP at the time of infringement.
The subscriber, in turn, would be lawfully entitled to collect all damages (including legal expenses) from any person that they could provide adequate evidence is either directly guilty of the infringement, or else is somehow still legally accountable in some way to the ISP subscriber for the incident.
The actual infringer, or at least the identifiable party who is most closely responsible for the activities of the infringer, pays an appropriate penalty, the subscriber's privacy is retained, and identities are not revealed to third parties, lawyers get rich... everybody wins.
File under 'M' for 'Manic ranting'
Don't bother reading the wall of text. Well, the last paragraph is actually decent, but the rest is crap.
This article shows one of the big things that's wrong with mass media in general: overconfident people with a big mouth (or a high WPM) get to reach a hugely disproportionate number of people, when compared with their ability to relate truth. In a world filled with too much information to process, it's more than just unfortunate to have so much inexpert shit to sort through: it's tragic. Can you imagine a world where Glenn Beck starts his show by saying "I have nothing of importance to say today; maybe tomorrow. Here's some music"? Wouldn't it be wonderful?
So again: Huh? Why is a rental car agency liable for an accident caused by one of its renters? Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable — but not simply if their customer did something reckless over which they had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).
...
"The analogy between an ISP and a rental car agency is inappropriate, because a plaintiff could sue the rental car agency in order to subpoena the identity of the renter that hit them, but a copyright owner could not do the same to an ISP." [Judge Baker's argument.]
I think this is actually a great analogy because, you see, the rental car company could install cameras and GPS in all of their vehicles to make sure that the people driving their cars were not breaking the law (speeding, texting while driving, driving under the influence,etc) and law enforcement could then subpoena these records anytime they think some rental car driver might have been breaking the law, but since the rental car companies don't do this, they are clearly being negligent (/sarcasm). This is very much akin to many of the arguments being made by copyright holders in court against ISPs / certain websites.
Civil court: by a preponderance of evidence.
Criminal court: beyond a reasonable doubt.
No proceeding uses the "shadow of doubt" "standard" because it's neither instructive nor standardized.
A Mathematician Barely Making Sense.
The Judge mentioned that he noticed a low number of motions to quash in these types of ex parte expedited discovery cases. Ex parte means without notice to the accused. The low number is more than likely the result of the policies of the particular ISP's in regards to giving notice to the subscriber that there is a subpoena for their information.
The judge rightly noticed this discrepancy along with the fact that in some cases the IP holder was not the infringing party. The motion to quash is an essential right of the accused so they can tell the court "hey, I live in an apartment bldg with 20 people who could be leeching off my wireless therefore the subpoena should be quashed because there isn't enough probable cause that I am the infringer".
The ex parte discovery process for that many people is likely to violate someone's rights and this is why the judge denied it.
- A Frog in a pond utters an azure cry. -
And long winded. My god, Mr Hasselton, you will never have critical thinking skills, but perhaps you can hire some unlucky editor to read your diatribes and reduce the word count by about 96%.
You can subpoena the owner of a car to find out who the driver was. This happens when you privately own a car, if the car is involved in an accident you will be asked who the driver was. And it happens if you are a rental car company; if the rental car is involved in an accident, they will be asked who the driver was.
Same with a router. If your router was involved in illegal copying or worse things, you can be asked who was using that router. But... your ISP doesn't own the router. Your ISP doesn't have to answer a subpoena. Only the _owner_ of the router has to. So if they find you, you'll have to tell them who used the router (me, my wife and children, the neighbours, and any criminal who came within 50 meters of my home). Just like Ford or GM don't have to respond if a car that they built is involved in an accident and don't have to give someone a list of everyone buying their cars.
If you were injured by someone in a rental car and you tried to get their license plate: YOU WOULDN'T GET IT. You would report the incident to the police, who would then subpoena the information and charge the person with something and fine/imprison them. If you wanted damages you would sue the rental agency... win and take their money. THEY would sue the person that they rented the car from. They could chose to give you the name of the person they rented the car to, but they'd be under no requirement to do so.
It is everyone's 'right' to call out the Judge. But Judges are Judges because they have been judged to have better judgement than those laypeople who would call out the Judge.
Or something.
Regardless, IP addresses are not people. The Judge got that part right.
Next week on Slashdot...
Lawyers discuss the legal reasons why P=NP.
It would probably make more sense than this article.
I'm moderately confident that if you compared commercial home ISPs to corporations and looked at the percentage of times that the "user of record" for an IP address according to the logs was the same as the actual person using it, that percentage would be higher for a corporation than for an ISP serving home users.
And I'm extremely confident that you're pulling that out of your ass. Looking at one of the hotbeds for P2P traffic, universities, most have hundreds, if not thousands of computers in labs available to any student who decides to walk in an plop themselves in front of a keyboard. Not to mention public kiosks, that free hotel wifi that let us sit on facebook while sitting in the cafe. And then companies that have dedicated terminals for specific applications (ie hooked up to specialized hardware ie in labs and such), and terminal server systems where it doesn't matter what computer you sit at because you RDP into the terminal server. Most corporations hand out internal IPs via DHCP. Depending on the temperament of the Network Admin, those can range from 1hr leases to 3 days. As a side note, no corporations nowadays would assign a publicly routable IP to a employees workstation anyway, much less record the generic traffic and IP assignments of DHCP for all their systems. An ISP, hell yes. A corporation? Not a chance. So, how's logging all of that NAT traffic going for you Mr Haselton?
Judge: The rental analogy is not apt because the rental agency may be a potential defendant.
Bennett: That’s a logical error because the rental agency isn’t a potential defendant. Though it might be and here’s why.
Me: An owner of property whether it is a car, home, etc. is potentially a defendant. The owner can however prove to the court why they should not be included. Bennett even describes the reasons why. Isn’t that a logical error by Bennett?
Judge: An IP address may not identify the individual who infringed as noted in recent events.
Bennett: Yes, that’s true but that is why we have trials: To determine who is guilty.
Me: There is a difference between a subpoena and a trial. The judge is not saying the IP address cannot lead to the infringer. Courts have ruled that a subpoena or search warrants must be specific as identify the individual and judge noted in recent cases why an IP address may not be specific enough. Judges do not like to grant blanket subpoenas for fishing expeditions. It is up to the plaintiff to demonstrate to the court why an IP address is specific enough in individual cases, not in general.
Judge: The subpoena request lists corporations and public institutions as the ISP. This shows a disconnect.
Bennett: What disconnect? The ability to find the individual is actually better in corporations.
Me: There is a difference identifying the individual and the actions that are required to pursue based on the owner’s identity. While a corporation or public institution may provide networking to individuals, they are different legally and logically than a true ISP like your cable company. ISPs have Safe Harbor provisions while a corporation does not.
What the judge is saying is that you may not need a subpoena for a corporation; sue the corporation to get it in discovery. For a public institution, there are probably procedures in place to access the information or the identity may not be known ever. The court is saying there are other avenues to get this information; don’t waste the court’s time with subpoenas since the plaintiff did not clearly think about these issues.
Judge: The previous history of the plaintiff seems to suggest that they have expedited motions only to settle them quickly en masse.
Bennett: Isn’t settling cases quickly supposed to be the point of a court?
Me: The judge is saying that a court is not supposed to be a clearinghouse for processing lawsuits. A court is to be the arbiter when two parties cannot reach a legal settlement. Do not waste the court’s time by suing first then settling quickly.
Well, there's spam egg sausage and spam, that's not got much spam in it.
A car is not a weapon. Its a vehicle. Can someone be killed by it sure, but thats not the primary objective, and you can kill with almost all items (if you are clever enough)
If Google really cared they would fix Android Chrome to reflow text, instead of discriminating
Come on — it's not that hard for a copyright holder to join a p2p network or find a Torrent tracker, and get a list of the IP address of a few users who are sharing or downloading their content illegally. Is it that hard to believe that most of the users on that list are probably doing what VPR said they were doing?
One word.
TOR
Why the fsck does he have a block of filter-buster text at the bottom of the page?
Note that one aspect the judge noted was the lack of jurisdiction. The plaintiff hasn't been able to identify to the court even one defendant who the court has jurisdiction over, and the judge has noted numerous defendants the court definitely does not have direct jurisdiction over (the IP address involved is in a different state from the court, for instance). That changes the landscape pretty seriously, courts have a lot less authority to issue orders when it hasn't been established that they have jurisdiction to issue any orders in the first place.
Even if you can establish that you've been injured, if you don't know who did it you can't just go into court and have them order everybody in the city to start coughing up information until you find the person who injured you. You have to do the legwork to identify a possible defendant that you can make a plausible claim against, and you have to file in a court that has jurisdiction (if the injury occurred in California, I live in California and the defendant lives in Arizona, I can't file in a Kentucky court because they won't have jurisdiction over any aspect of the case, I'd have to file in either California or Arizona).
I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either.
Actually, in this country, we should assume that one is innocent until it has been proven that they are guilty. It's the founding concept at the heart of our entire justice system. Without sufficient proof they are to be considered innocent. It it's a tie, then they should be considered innocent. The benefit-of-the-doubt should always go to the defendant.
I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty â" but we shouldn't assume that they're innocent, either.
be more of an idiot please.
http://www.accountkiller.com/removal-requested
The arguments presented in this "article" are specious. It is clear that they author does not even understand what the case is about. He freely mixes the ISP's with the john does, suggesting he doesn't understand who is even being sued - which in fact is "nobody".
Quick review... the case in question is against ISPs as part of a discovery process. The ISP is not charged with anything. They are being asked to provide information about a 3rd party as part of a suit that does not otherwise include them. Under normal circumstances this would be an illegal release of private information. So in order to get the information, the plaintiff (VPN in this case) has to show cause - that they have a case against a 3rd party and the ISP has data that is important to the process.
But in addition, this case rests on the difference between "discovery" and "expedited discovery". There already is a legal process for getting this information as a part of case, it's discovery. During discovery, everyone is supposed to cough up every bit of data cogent to the case, and do so within a reasonable time frame. If someone involved thinks evidence is being withheld, then they can go back to the court and ask for expedited discovery, which compels the party to either present the evidence or argue why they can't.
So I'm sitting at a red light and you rear-end my car. I can see that your passenger was filming the entire event. When I sue, my lawyers will ask for the video to be presented into evidence as part of the discovery process. But let's say your friend (or your lawyers more likely) say they can't get the video, that it's taking them time to figure it out or something. I then return to the court and try to get the discovery expedited, and if you don't turn it over then, or have a *really* good argumen for not doing it, you're in serious trouble.
Ok, so...
>>"As VPR points out, ex parte motions for expedited discovery have been granted in similar
>> cases in other districts; among the thousands of Does in those cases, relatively few motions
>> to quash have been filed."
When someone does file for *expedited* discovery, it's *supposed* to mean the party in question (often a legal team) is deliberately dragging their feet. One excellent way to drag their feet even more is to file a motion to quash.
So the judge is asking why it is that the expedited discovery is being used, if the defendant never quashes? If they don't file to quash, it would seem they were never dragging their feet in the first place.
> The innocent John Does' only defense against abuse of the discovery process
Uggg, here's a prime example of the author not understanding the case. The innocent John Does' are not part of the case at hand!
> is to quash the subpoenas (basically, file a motion saying "I'm not guilty, so the
> plaintiff can't have my identity")
Nooo, the ISP would be the one quashing. Why might they do that? Well how about "this guy has sent us 100 of these a week with zero evidence to back up their claims. he's just using the courts to force us to do something that would normally be illegal"
> Perhaps a lot of the John Doe defendants thus named are, in fact, guilty!
Which has absolutely nothing to do with the case.
> Uh, OK. Plaintiff started with a list of 100 defendants, and then expanded it to 1,000.
> What does this have to do with the legitimacy, generally, of suing John Doe defendants
> and subpoenaing their identities?
I file to get the IP of one person, then in the middle of the proceedings I add 100 more.
Now if I had all of these 100 IP's, which I should have if I did *my* discovery, then why would I have to add them in the middle of the case? Why didn't I have them at the start? And if I didn't have them at the start and I'm still finding them now, why am I asking for it to be expedited?
The judge is saying "stop wasting our time, go and do your homework first".
> How does the fact that s
The thing everyone keeps forgetting is that legal English is NOT your high school (or college) English. You cannot apply "logical analysis" to it. Each and every word and phrase has been adjudicated by a court of law as to it's meaning and it's application in briefs. Often times those meanings are directly contradictory to "common sense" definitions, as any competent lawyer will instruct you.
It might be more fun...consider that if a rental is stolen, there is much more likely to be a significant amount of documentation indicating this. Not so if your WiFi is cracked.
Did anyone stop to think that perhaps someone from the rental car agency could have actually been the person driving the car at the time of the accident?
They do pick-up and deliver cars too.
And just as well, an operator at the ISP could have been the person using the IP address at the time of the incident and it would be the burden of the ISP to prove otherwise!
"I'd rather have a bottle in front of me than have to have a frontal lobotomy."
"Well, true — the assignee of the IP address might not be the actual copyright infringer. But, more generally, being named as a defendant in a lawsuit does not mean that you're at fault anyway — that's what the trial is for."
Uh, isn't that the heart of the problem? Copyright holders using the high costs of a trial to extort money from whomever they decide to accuse?
...when I read: "I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either." Hmm. Okay, he must have a different view of law. I'm pretty sure "presumed innocence" is fundamental tenet.
Here's what (i believe) a better analogy:
A person owns a gun. That gun is used to commit a murder. This is determined beyond any doubt. Now... is that person guilty? Hell no. Ask any detective.
Will that person be a suspect? Of course. But no, not guilty.
The prosecution will still have to prove beyond any reasonable doubt that the owner of the gun pulled the trigger. Without that... our guy can walk free.
So, yes, IPs are not people. The owner of the IP (leaser) may be a suspect for illegal behavior. But this cannot and should not make them automatically guilty. The accusers should still have to prove beyond any reasonable doubt that the owner of that IP did the deed. If they cant do that, they should be rightfully told to go fuck themselves.
I agree with you. Any time spent reading the original poster's comments is time wasted. I think that the OP really ought to get an MRI of his brain or at the least a CT Scan. He really might have some sort of brain damage (possibly a tumor) that is exhibiting itself in strange, eccentric ways.
I'm a big tall mofo.
Really specious arguments are not meant to be taken seriously. Why did so many of you do so?
LOL...Thats what she said!
I love the fact that in his own endless rant, he even says he doesn't want lawyers to pull rank... guess what, there's a reason mathematicians are not allowed to practice law unless they happen to attend law school, you have to actually know the laws for your inane rambling opinion to matter! Complete ignorance for the subject matter you are arguing should be an instant "bury" and this should never make the front page of /.
The rental car company owns the car and is, by law, responsible for the car and the insurance on it. If the car is in an accident, the victim sues the rental company, who sues (or their insurance company sues) the client who caused the accident. Possibly the victim sues the client as well. This is completely separate from ISPs, who operate under common-carrier laws. The ISP I use doesn't even own the copper running to my residence. When sued, the rental company will reply with "we were not operating the car at that time, it was Mr and Mrs Soandso." An ISP, however, is exempt from that initial suit. Ask a lawyer or legal historian why they got common carrier protection, that's beyond my realm of knowledge.
Secondly, a rental car company has an agreement that the renter will not allow any one else to drive the rental car except those who signed the agreement. Unless the client breaks the agreement, they are the only people who would be using that vehicle at the time of the accident that brings on the lawsuit. Normal ISP agreements do not have such a clause, and anyone in the house can be supposed to have been using the device at the time. Presuming that the ISP does not forbid the use of wireless routers in the client's house, there might be many people in radio range that could have been using the given IP address.
I guess it boils down to "Prove it was the person of record using the device that committed the crime." For a car rental, it was the undersigned; or they took responsibly for someone else and hoped their insurance would cover it. Or they could report the rental car stolen. With an IP address, it might have been the undersigned, or anyone else in their house. Or on their block. Or visiting them.
Mr. Haselton's points miss the mark because of his misconceptions about the legal system. For example, Mr. Haselton repeatedly states that anybody is a potential defendant. He further states that "For a court to take a plaintiff's case against a given defendant seriously, they just have to believe that there is a reasonable probability of the plaintiff winning." Both of these statements are legally incorrect.
Both of the above statements highlight Mr. Haselton's ignorance of legal procedure. There isn't anything wrong with this ignorance, but even the best logician can't fathom whether statements are sound and logical unless he knows the language being spoken (or written). Here, Mr. Haselton doesn't understand the language of legal procedure and, therefore, fails in his analysis of the Judge's opinion.
Taking the above two statements in turn: 1) No, it's not really accurate to state anyone is a potential defendant. There are many reasons for this. First, courts have limits on their jurisdiction and the hypothetical "anybody in the world" just can't be haled in front of any U.S. or state court. That court must be able to obtain jurisdiction over their person -- this is called personal jurisdiction.
But wait, you might say, technically I could file a lawsuit and name anyone and get it into the court system! Yes, that may be technically true, but I can raise you another technicality to counterbalance this point. If I sue someone from, say, China then I still need to serve them. This means I have to actually issue a notice of lawsuit to them in a manner accepted by the court. Presuming I overcome this hurdle, yet this person does nothing in the court where I sued them, then I may get what's called a default judgment. The problem then comes to enforcing it; I probably can't get it enforced in China, and even its enforcement locally (say, for instance, if my Chinese friend visited where I live) will be suspect. Questions of that original service and of personal jurisdiction, along with subject matter jurisdiction, will arise.
This leads to 2) the idea that all courts need to sustain an action is to believe there is a reasonable chance of the plaintiff winning. Mr. Haselton is wrong on this point. Courts need to have not only personal jurisdiction over the parties (including the defendant), but subject matter jurisdiction over the type of case being brought. One example of subject matter jurisdiction might be me suing someone for being a jerk. Well, there isn't a cause of action for being a jerk. I can file the lawsuit and pay my court filing fees all I want, and I can even serve the defendant properly, but the court can (and likely will) dismiss the case for lack of subject matter jurisdiction.
Really all this comes down to is Mr. Haselton's presumptions of what is relevant, and what is not relevant, are off base and therefore render his conclusions fallacious.
But let's get to the meat of why the Judge's opinion is not a weak argument, and therefore why Mr. Haselton is wrong.
The Judge's opinion takes issue with the tactics used by the Plaintiff. One of the big reasons why there is an issue is the Plaintiff's use of ex parte motions. Mr. Haselton admit that he's "not even sure what Judge Baker is saying here," so let me clear this up.
Ex Parte communications are one-sided communications in a lawsuit between a judge and only one party. This is repugnant to the adversarial legal system in the U.S. and may only occur in very limited, and often emergency, situations. The reason is that all parties legally have a right to know what communications have occurred between the parties, thereby granting the non-communicating party an opportunity to issue objections or have their own say.
This tactic is at the heart of why the Judge refers to Plaintiff's actions as a fishing expedition that he won't support. Essentially a lawsuit has been filed, but the suit has not been served on any of the defendants. Therefore the court has not obtained personal jurisdi
First, as others have mentioned, this is supposed to be a summary -- a brief, concise overview. I wasn't aware that /. summaries were intended to be used as blog posts that reference other articles, but perhaps I missed that. Consequently, I read part of the, ahem, "summary", got annoyed and dropped down to the comments.
Second, Haselton is quite mistaken to say, in essence, "I am not an expert in this field, but if the logic doesn't make sense to me, it doesn't make sense." C'mon, how often do we tech types get annoyed when a user says, "That doesn't make sense; you must be wrong." because they don't understand the technology in question? That's pretty much what Haselton is doing here.
Third, Haselton makes some non-sequiturs of his own in his monologue above. For example, IT departments frequently can NOT trace an infringing IP address back to the user responsible, at least in my experience. In my network, we are NAT'd through our corporate firewall, so all you would get is the external, public IP address for the firewall, not the RFC-1918 address all PCs in the office use on the inside (if the individual PC IP addresses were logged rather than the external, public IP address, you couldn't even trace it back to the corporate firewall, since RFC-1918 addresses aren't valid on the public Internet).
However, as much as it pains me to say it, from my non-lawyer, non-expert OPINION I think he is correct (at least to the point where I stopped reading) to say that the judge screwed up in this case. A subpoena is not a guilty verdict for the defendant; a subpoena provides the only way for the copyright holder to begin the investigation. If a copyright holder becomes aware that infringing content is being offered for upload from a particular IP address, their only recourse is to subpoena the owner (ISP, for example) of that IP address for subscriber information, and then look for additional proof that the subscriber was, in fact, responsible for uploading the copyrighted content. The problem with the copyright situation we have isn't that a copyright holder can subpoena an ISP for subscriber information to conduct an investigation; the problem is the way that the courts, the **AA thugs and the various LEOs presume that an implicated subscriber is guilty from the start, and no amount of evidence to the contrary will convince them otherwise.
MCSE? No, sir...I don't do Windows. Yes, I am an idealist. What's your point?
Because you clearly don't know anything at all about the law.
Author said "Perhaps a lot of the John Doe defendants thus named are, in fact, guilty! I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either." This is where everyone should have stopped reading. Yes, Mr. Haselton, you are supposed to assume the defendant is innocent, just as the court is supposed to assume he is innocent until it has been proven beyond a reasonable doubt that he is guilty. An IP address does not identify a person. Period. Mass John Doe lawsuits are an abuse of the discovery process so that copyright troll lawyers can get thousands of names and addresses in order to send settlement letters that amount to nothing short of extortion. As has been shown time and time again, it is not profitable for the lawyers to take any of the cases to court, but getting people that may or may not be innocent to pay a few hundred to a thousand dollars without putting up any fight is extremely profitable. The judge's reasoning for denying the request was to stop these parasites from abusing the legal system into assisting with an extortion scheme. This was stated almost verbatim by Judge Birss QC in his scathing response to the ACS Law fiasco. Mr Haselton, I award you no points, and may Dog have mercy on your soul.
I hate dragging out analogies but since most of your argument is about a rent-a-car comparison let me continue.
Many differences I see.
When someone witnesses a car in an accident, the submit the plate number. They were a direct witness to the crime. This is accepted as proof and should be. What process exactly generates this list of IP addresses that copyright holders are using? No one really knows and there are NO standards or legally tested methods that determines if that IP address was actually distributing that file. The file could be bogus or a fake or there could be no actual file at all, the file may be closely named to somethinh copyright owner thinks might be a copy of something they own, they may not have actually distributed anything, the software could be caching the IP from 10 minutes ago when the person connected and immediately disconnected, if could be a spoofed IP address etc.. The list goes ON and ON.
Another difference with the rent-a-car analogy.
When a witness gives the police the information, they find out from the rental agency who owned the car, who was on the contract, and then contact that person to get their story. There is no guilt yet. These file sharing chasers do not do that. They send out settlement paperwork in mass with very strong language to suggest a settlement of a few thousand dollars is in the best interest of both parties.
They have very weak evidence from untested and unproven sources and they sue people that may or may not have been involved knowing that an IP is attached to a physical device, not a physical person.
I'm having a hard time following whatever this guy is trying to say with all of the self-praise and dick-waving going on. All I get out of it is that this person is confused. Why is this posted on the front page?
The judge is ABSOLUTELY right. An IP address has little meaning. IP addresses are not always static, they can be spoofed, they can be acquired (and attributed to others) via wireless routers or "plug-in" ethernet ports in places like libraries.
And always remember - an IP Address is assigned to A COMPUTER (more specifically the network adapter), *NOT* a person. And you can't even be sure that the computer belongs to the person you're trying to prosecute. The closest you could possibly come to making this connection of IP address to person is IF (and *ONLY* if)... the IP address is assigned by MAC address of the network adapter (whether it be ethernet or wif - so that the IP address is static AND pairs with that computer and NO OTHER (oh and said network adapter must be integrated, if the ethernet card can be removed and transplanted to another machine... all bets are off). Beyond this, this computer with this MAC/IP address combination must require a biometric login.
*IF* these things are true, then you know that the IP address goes with that (specific) machine and no one but that specific user (with the right fingerprint/face) can login to said computer. Then (and only then) is there a strong correlation between user and IP address. If these things are NOT true - IP address means NOTHING... nothing at all. In fact it is what it is - an internet protocol address - a target for packet transfers between computers. The user at the keyboard is arbitrary (and not even necessary in some cases). In fact, since computers can be compromised in such a fashion that they can be controlled remotely - not even this super duper hardware/ip/biometric combo can give you assurance that the user is ACTUALLY performing the crimes you're accusing them of. (Might be some hacker somewhere commanding the machine via a zombie network, or logging in remotely in some fashion).
There are too many caveats, and last I checked to be found guilty a crime you must be guilty, "beyond a shadow of a doubt" and IP addresses are nothing BUT doubt, all the way down.
IN short - the very foundation of IP based accusation is flawed. Its based on untrue assumptions with no proof of wrong doing. Which is precisely how dead people get letters and threats from the RIAA and the MPAA, The information on which they were operating was meaningless - and thus they wind up with completely erroneous allegations. Either that or the afterlife is in dire need of pirated media. Hmmm.
http://xkcd.com/793/
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
The logic you learned of 7+5=12 is not applicable to the logic of argumentation. Therefore, you are not as well trained in this logic as a judge is. Until you do receive the appropriate education, it would be wise to respect the professional argument. I won't argue the perfection of the sphere with you if you don't argue how to argue with me.
With respect,
a law major
The reason both law and science are complex is because they are systems of knowledge that are constantly accreting new knowledge into the system. There are multiple reasons law grows complex over time: criminals and those who skirt the legal side of the edges of the law are constantly finding new ways to exploit the system which results in a reaction to pass new laws. Exceptions (like fair use or self-defense) are carved out into statutory law in the interests of maintaining a balance of justice. Law evolves as technology enables new forms of crime.
The US has had a couple hundred years (plus much of English common law before that) to evolve a truly complex legal structure. The only way you're going to "simplify the law" so that normal citizens can participate again is a collapse into anarchy where we start over with something similar to the golden rule and build from there. But even without simplifying the law, it might still be possible to reduce the power of lobbyists and special interests in legislation.
We are the 198 proof..
First of all, there is no need for you to defend your qualifications. A sound argument should carry it's own weight, most people would agree. The fact that you spend all that time defending your own point of view really detracts from your argument.
Second, under the US law, Car Rental agencies are liable as owners of the vehicle regardless if the driver was doing something irresponsible. Thus, ISPs are not quite like Car Agencies, in that they not usually liable for infringements of its users. Additionally, allow me to add to the Judge's argument and hope that it makes some sense. Car Agencies rent out physical goods owned by the car rental itself, namely the vehicles. Therefore, the car agency will have liability as it was something owned by the agency that caused damage. Whereas, the ISP is a routing service. It does not own the data sent nor received. In that sense, it is more like USPS or any other mail/package delivery service. If someone mails some a DVD with copyright infringing materials on it, is USPS liable? Most likely not, whoever sent the package should be liable, along with the recipient of the package if they acquired the DVD to circumvent copyrights. Here USPS does not own anything that caused damage. Similarly, the ISP does not own anything that caused damage. The IP address certainly didn't do any damage to VPR. Hence ISP is not a potential defendant in the lawsuit where as the car agency would be. Hence it's not a very good analogy. VPR should have made the argument that you can subpoena the post office for where the mail was going to and where it was from. But then it's also against federal law to look at mail that wasn't intended for you, you wouldn't know about the copyright infringement.
Third, your vote-off terms are quite one sided. You have failed to summerize Judge Baker's argument correctly. It's not because you can sue the Car Rental in order to subpoena the identity of the driver, but rather, Car Rental agencies could be codefendants where as the ISP are not. This is a critical distinction in law since these two different firms have different legal protection in place. Not to mention if the ISP was a defendant, then the ISP would have to yield the identity of the customer during the adversial process. There would have been no need for a subpoena!
Fourth, you say that the Judge's writing is incoherent, what about this sentence you wrote? "If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public." I am going to ignore the fact that sentence is poorly constructed, but explain why the Judge's ruling actually supports his claim. He is using this sentence to support the fact that car agency analogy doesn't apply to the ISP. In the Car Rental case, there are also public records of the customer's information, and in the ISP's case there are not. Hence this is an additional fundamental difference between the two scenarios, so any analogy is not apt.
Fifth, about the whether or not IP subscribers are at fault, you claim that even if the defendant is not guilty, that could be proven in court. Unfortunately, that not how most of these cases work. Once VPR subpeonas the customer's information, they end settlement letters threatening very expensive law suits unless the "defendant" settles out of court (usually for several thousand dollars). Many users cannot fight this because they cannot afford a lawyer to do legal battles for a whole year. And at the end of the day, even if proven innocent, they could still be down even more money because they had to pay the lawyer. Unlike a criminal trial, this would be a civil suit and you do not have the right to a lawyer. Hence, a trail may not even happen, in which case you are punishing the wrong people. That aside, you claim that the court must believe that there is a reasonable probablity that the plaintiffs will win; in reality is quite unlikely. It'
What a shitty article. I stopped reading around the same time as most posters above, the argument for the rental car company seemed to fall pretty flat. What a fucking moron, fuck you slashdot for posting something so loaded MOAR ENTROPY!!!1
Why is a rental car agency liable for an accident caused by one of its renters?
I stopped reading here, assuming the rest of the argument is equally wrong. In many countries, including the US, the owner of a vehicle is liable for injuries caused by the vehicle. Thus, the rental agency would absolutely be a defendant. Whether it's a private vehicle, a government vehicle or a rental vehicle it's up to the owner of the vehicle to identify the driver of the vehicle at the time if they wish to excuse themselves from liability. This is even the case for speeding tickets and other infringement notices - they often come with forms to identify the driver if it wasn't the owner. Bennett's obviously never had a speeding ticket.
This is actually different to ISPs. Although the ISPs are in effect renting out their ISPs, in most countries ISPs are shielded from liability for the actions of their users. It's generally expected, though, that the ISPs will be "good citizens" and identify the users of their IPs (at specific times, since often dynamically assigned) upon the receipt of a court order.
The car rental employee may be driving the car, either road testing or refueling. So the agency would be a legitimate potential defendant. On top of other liability issues like renting to an unlicensed driver. Further, when I had Cable, the ISP owned the modem, much like the rental agency owns the car. It is not possible to rule this out prior to making a legal inquiry.
The lawyer would be able to see this, the mathematician maybe not. I skipped some points here.
IP addresses do not identify the downloader, in the same way identifying the car does not identify the driver. You can identify the owner, and have the owner identify who they let borrow the car. In some cases, the answer is I did not give permission to anyone.
-Few motions to quash are filed because the user is not identified, or given the opportunity. Most cases have been filed as john doe lawsuits to identify the user, then droppedso they can sue the identified party. Guilt is not a factor, actual abuse of the legal system is.
-Adding Does to a suit is pretty much the same, piling onto an existing suit rather than opening a new one. Sue the people you want to sue, don't use a moving target.
-The dismissal of 100 out of the 1000 defendants is not important on its own, but you insist in your mathematically trained way to insist it is.
-Expedited discovery results in identifying the user. They then present the choice: settle for a few thousand, or pay twice that or more and lose a case. In other words, combined with the previous sentences, he's saying that they file a suit, get identities, essentially blackmail them, and drop those who settle while adding more people. That is clear abuse of the process, and exactly the sort of thing people have been railing against. It's also what he's trying to stop.
Read the whole thing again and understand what he's tryiong to say, like an English major would, not parsing each word in context with the ones you have read, while ignoring the ones coming up. A sentence in a decision is not like a step by step mathematical proof.
Is back.
What a blowhard. This guy will only be happy living on an island of one.
"Huh? If you're injured by a rental car, how is the rental agency a 'potential defendant'?"
If you are injured by an automobile in most of the United States, and you cannot find the driver, then the legal owner (the rental company in this case) becomes liable. That is the law. So, if the rental company did not want to be liable, they would of course disclose the actual identity of the driver. This is perfectly sound logic on the part of the judge. (Although the logic that makes vehicle owners liable for other peoples' crimes is not necessarily fair or logical itself... it doesn't hold up for other kinds of property.) And that is why pure logic, in many legal cases, doesn't work. You have to apply your logic in the context of the applicable laws. In this case that third party would be liable, so your assumption is faulty and so, therefore, is your conclusion.
"The question is: given a certain probability that a company's customer is guilty, is it appropriate to let a plaintiff subpoena the customer's identity from that company?"
That "probability" is measured by something called "probable cause". And just as with mathematical induction or axioms, certain standards of evidence must be met before "probable cause" can be adjudged to exist. Your point is valid but it lacks the proper context for making judgment. In other words, you are making false assumptions again. In the case of IP addresses, the necessary standards are not met.
Let us say, entirely hypothetically, that it was believed someone at my IP address -- assigned to me by my ISP -- performed a copyright violation by some means over the internet. What do you think are the odds that I am the perpetrator? Do you think they are very high? 90% or above? You would be quite wrong.
My internet router has a very strong signal, and sits on the second floor. At any given time, approximately 20 households (houses and apartments) have theoretical access to my router, and therefore my IP address, at any given time. That's 20 households, not 20 people. And yes, I keep my wifi open, as a public service. And yes, neighbors have been known to use it. Not only that, but IP addresses can be spoofed. I can get on the 'Net and show up as any IP address I want. It could have been somebody clear on the other side of the United States who did the dirty deed.
So my IP address does not even point to a particular household, much less a particular person. The very best you can possibly do is a neighborhood. And a neighborhood simply does not constitute the legal standard -- probable cause -- needed to subpoena my personal identity.
So, you see? The judge, who did not make the same false assumptions you did, came -- quite logically -- to a different conclusion than you did. The correct conclusion, I might add.
I could go on, and cover the rest of your points, but I think I have made mine: if you start with invalid assumptions, even perfect logic can lead you astray. The "holes" you claim are in his logic are not. They are holes in your assumptions.
Don't waste my time describing to me why being a math major doesn't make your "logic" less valid. Most of us are entirely capable of judging a statement on its own merits, and don't need you to waste half the article saying "don't pick on me because I like math." Doing so suggests that you don't think we know this already, and is frankly an insult to the slashdot community.
With that said, the judge here is trying to protect those that DIDN'T do anything wrong (even if there are only a few) that would be injured if the subpoena was not shut down. How much experience do you have in trying to defend yourself in these situations? History has shown that the vast majority of those whose names and addresses were subpoenaed would settle the suit out of course, because, even if you've done nothing wrong, the financial risk you incur in trying to defend yourself is totally disproportionate to your likelihood of being successful. The law firm which wants to prosecute is well aware of this -- They are not seeking justice, they are seeking revenue, that's it.
The bottom line is that, at least in my estimation, it is better to have 999 criminals walking the streets than 1 innocent person in jail. The same applies when the only penalty is financial. And that is what the judge is protecting.
Let me point out the problem. You are talking about pointing out specific laws, by which I assume you mean statutes. In the common law system, law consists of statutes and case law. This is very elementary, and yet you can't seem to figure this out. You cannot insist on someone pointing out specific statutes that say X or Y. Because X and Y are usually NOT in encoded in statutes. The vast majority of law in the common law system consists of case law. You cannot simply look at one case in isolation, then look at the associated statute, and make an analysis.
That's just NOT how the law works! You have no understanding of this. Or at least you may openly claim to understand it, but you really don't. You are not qualified to comment because you no understanding of the elementary bases of the common law system.
Please stop.
from god? i don't care at all for the latest slant on the second amendment from the supreme court, but i do realize that this is what they were put in place to do.