A Court's Weak Argument For Blocking IP Subpoenas

Frequent Slashdot contributor Bennett Haselton writes to point out some unfortunate holes in a judge's recent ruling that was largely welcomed 'round these parts: "A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities of ISP users that were alleged to be sharing its copyrighted movies. Regardless of whether one supports the conclusion, the judge's reasoning was pretty weak. 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." Read on for the rest of Bennett's thoughts.

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.

Comments

I stopped reading...

[YodasEvilTwin]

...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.

Re:I stopped reading...

[tater86]

I think you nailed it. The problem with his analysis of the analogy is that he doesn't seem to take into consideration the most important aspect of a legal decision, laws. ISP's aren't liable for the content of traffic from subscribers. I have no idea what laws would apply for car rental agencies, but I'm guessing it's not the DMCA.

Re:I stopped reading...

[Anonymous Coward]

I stopped at the exact same spot. This is one of the many reasons why you can't say "Well I know logic, so that must supersede someone who knows the law". He also made no attempt to actually break his argument down into actual logic statements, he just basically said "Here's the way I assume things to be, and here's the way I think they should be, and I think I'm really smart so I must be right". Upon a little further reflection, I'm pretty sure that statement is an accurate summary of every Bennet Haselton post ever.

Re:I stopped reading...

[Sonny Yatsen]

Mr. Haselton can compress the least ideas into the most words of anyone I've ever seen.

Re:I stopped reading...

[piripiri]

tl;dr

Re:I stopped reading...

[_0xd0ad]

One huge difference is that a rental car can only be driven by one person at a time, and the rental company usually has you sign paperwork agreeing that you won't let anyone else drive it, or specifically stating who besides yourself will be driving the vehicle.

An IP address can be used by scores of people simultaneously and to my knowledge ISPs don't require you to keep any particularly careful track of who uses your IP address (even if you secure the network, it'll certainly be used by any family members, and quite probably infrequently by friends/guests).

Re:I stopped reading...

[Scrameustache]

They've essentially armed someone with a dangerous weapon. There are plenty of reasons like this that would make the agency potentially liable

Seriously, from "you let THAT guy drive one of your cars?" to "you ignored WHAT warning light for HOW LONG?", there's a ton of reasons why a car rental company could be liable if their car injures someone.

So I stopped reading there, because I can't imagine the rest of that tl;dr would have been less ignorant.

Re:I stopped reading...

[poetmatt]

He's also full of shit, not a lawyer, and attempting to imply legal analysis.

This is just as bad as listening to legal analysis from Florian Mueller.

This is a giant step in shooting down subpoena lottery, and they want it to be labeled as an error, a once in a lifetime thing, surely it won't happen again. Sounds nice, but reality is, that subpoenas are fairly regularly shot down, and this is hard evidence on the why part. That is a very strong argument.

Re:I stopped reading...

[Anthony Mouse]

I didn't. The flaws continue:

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?

It seems to me the first problem is that you're just making up numbers. Where does 90% come from? Keep in mind that the question you're asking isn't the probability that some undifferentiated traffic comes from the account holder for an internet account, it's the probability that someone engaged in criminal or infringing activity would choose to piggy back on someone else's internet connection instead of using their own.

It also seems like you're asking the question the wrong way. Suppose the chances are actually as high as you speculate: 90%. They're trying to subpoena some 1000 names. With that 10% error rate you can expect some 100 false results. In this single lawsuit. That seems like a high probability -- even a near certainty -- that the court would be wrongly turning over a substantial number of names.

"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.

The Judge might not explicitly spell out why they're more pronounced, but those reasons exist: Both the prospective penalty and the cost of litigation here is vastly disproportionate to the actual harm to plaintiffs, and in consequence to the settlement terms. If everyone is offered e.g. a $5000 settlement and the alternative for the innocent person is to prove their innocence at the cost of several times that amount in legal fees compounded with the risk that they will not succeed and have to pay several hundred times that much in statutory damages. Most normal lawsuits don't have that characteristic because the settlement terms are not likely to be so incredibly divergent from the expected outcome if the case was tried in court. Moreover, most normal lawsuits are over business matters or the like, whereas pornography is something that people have a special aversion to having their name associated with in the public record -- especially if they're innocent.

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.

That only works if some nontrivial number of defendants refuse to settle. It seems to me past cases have shown that this does not happen. Do you have any evidence to show that it would?

Re:I stopped reading...

[Scrameustache]

There's good faith duties to perform before letting someone drive off with your car, such as making sure they have a valid driver's license, the injured party could argue that the renter was obviously a danger to themselves and to others and shouldn't have been allowed to drive, etc.

Rental companies are clearly potential defendants when their equipment causes damage. They're not always at fault, but they have the potential to be.

Re:I stopped reading...

[BBrown]

You made the right move. I am a lawyer and I can tell you his inaccuracies -- both legally and, frankly, logically -- continue well beyond the first argument.

Re:I stopped reading...

[farnz]

I read the judgement - did you? In it, the judge makes it clear that the IP address and a naked assertion of infringement is not enough to get the subpoena; you need sufficient evidence to show the judge that you can tie the infringement to the IP address, and could continue to tie the infringement to an individual if you were given the chance to identify possible individuals.

So, if I can show that I know that a user of the IP address infringed, and that if I could get the Limewire user GooberToo who was also sharing Ubuntu 10.04 x86_64 and Fedora 15 i686 I would have the user who infringed, I could still get the subpoena. If all I have is an IP and an allegation of infringement, tough.

Re:I stopped reading...

[twidarkling]

Ugh, posts like yours make my head hurt. You're arguing that the judge is wrong and right in the same paragraph, and then claiming you have logical consistency.

You say the judge is 100% wrong, and then that IP addresses aren't a positive ID but then say that IP addresses are cause for investigation. And that part's true. But you forget that the next step after identifying parties isn't more investigation, it's the copyright holder filing the lawsuit with that person's name attached. The judge is saying now that you need to do more investigation to prove the specific name attached to the IP is actually the culprit. And since it's not police doing the investigation, an invasion of privacy by a corporation SHOULD be held to a higher standard than the Internet equivalent of "Your car was seen parked outside the store on the day of the robbery." Police would actually come and question you, ask where you were that day, if anyone used your car, and maybe even check if it actually was your car instead of a same make/model with a similar licence plate. The cops wouldn't just show up and go "You're under arrest for having a vehicle present at the scene of a crime." (Also note, at no time am I saying YOU were seen at the scene of a crime. That would be a positive and solid ID). By the same token, simply saying an IP address was noted downloading something doesn't mean that the person listed as the current user of the IP is the culprit. But companies doing the suing always proceed directly to sending the intimidating "We know what you did, so pay up or be dragged to court" the millisecond they have a name. No further investigation is done until after legal proceedings have started. What and how investigations are to proceed are irrelevant to the court, just that the judge is now saying "an IP is like a car, you need to link it to someone more firmly first before you sue them."

So, which is it? Should the judge enforce more investigation, or should he rubber stamp the subpoenas for name and address, knowing that it's not leading to greater investigation?

In a nut shell, you're a zealot, and have no logical consistency, and are completely wrong. The judge may or may not have made an incorrect judgement, but you sure as fuck haven't made anything resembling a coherent argument to support your view.

In fact, in furtherance of your making of a valid argument, I'll even tell you what the subpoenas should be, instead of name/address requests, and that's requesting forensic investigation of computers linked to the IP. They ask the court for the ability to have the computers taken and submitted to neutral 3rd parties for further investigation. In fact, ideally, the company doing the requesting would not get any names or addresses, but instead the 3rd party doing the assessment would receive the information from the ISP, go with the subpoena, get the computer, and if nothing's found, the computer returned, the IP registered as a dead end, and the copyright holder or their lawyers never gets the name or address. If something's found, then the actual evidence is passed along to the court, who would okay the naming of the computer owner to the lawsuit. Thus, actual evidence linking someone to a crime is found, privacy's not further invaded than necessary, and people avoid settling out of fear of a legal battle despite innocence.

And I swear to all that anyone has ever held holy, if you say "That would be too expensive for the rights holder," you are the dumbest sack of shit I'll have ever communicated with via electronic means, since if they're not prepared to pay for actual investigation they have no goddamn cause to be suing hundreds or thousands of people.

Re:I stopped reading...

[Kamiza Ikioi]

This is awesome! I didn't know I could write a REALLY long comment, and submit it as a story!

Re:I stopped reading...

[Xaositecte]

Assuming a 90% accuracy rate for this method of seeking subpoenas, approving all ~1000 of the subpoenas would damage at least 100 perfectly innocent people, forcing them to spend time and money on an unjustified legal defense. This would be a gross miscarriage of justice, and the judge ruled that it's necessary to have more than just an IP address and an accusation to issue a subpoena.

Re:I stopped reading...

[farnz]

It could, yes, but in both cases, you're likely to have more than just an allegation against an anonymous identifier; as soon as you can show the judge the outline of your future case against the identified individual, you've passed the bar he set.

Taking your examples in turn, in the telephone line subscriber case, you would be expected to show the judge some evidence that you were receiving silent or abusive calls (maybe a call recording, maybe a diary of the calls paired up with some records from your phone provider to show that those calls did actually happen, even if the content isn't as you state). You now have some evidence that your request isn't just a fishing expedition, and the subpoena process can continue.

In the car case, if you present a police record of your incident report, that's a good enough start to get you going - you've again demonstrated that there is more to your request than a simple fishing expedition.

In the case presented to the judge, there was no evidence of infringement that was of high enough standard to present in court, merely an allegation by the plaintiff; the judge basically told the plaintiff "come back with evidence, and then we'll talk".

Ah, Bennett ...

[SpeedyDX]

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.

Re:Ah, Bennett ...

[Colonel Korn]

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.

I haven't even finished reading the article yet, but that was the first thing that struck me.

Same here, but I won't be going on to read the rest of the textwall. The page or so I did read was littered with errors or sloppy, illogical argumentation. I don't think I've ever seen so few valid points per word in a Slashdot post.

Tripe

[hedwards]

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.

This is a prime example

[name_already_taken]

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?

Re:This is a prime example

[ImprovOmega]

No, but you should at least have some idea what you're talking about before you belly up to the table. This could be anything from "took a law class" to "studied material independently" to "read Groklaw for 8 years" but you should have *some* modicum of knowledge about legal quirks before you lambaste a judge's ruling.

The RIAA showed us how to abuse it

[Drakkenmensch]

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.

As a matter of law ...

[debrain]

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.

Re:You are smarter than me

[tripleevenfall]

One thing that is common to extremists in every arena is that they never believe they are extremists.

Meh

[JoeCommodore]

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.

relevant

[Jeek Elemental]

todays fortune seems spot on for the FA

Re:Non-lawyer?

[Improv]

Non-lawyers are "entitled" to question the ruling, but just like someone arguing with their cardiologist over plans for surgery, the person without the specialised training is likely to be pretty seriously off.

Re:Wall of text

[Loadmaster]

How about one word: Bullshit.

I'm just finishing my 2L year in law school and this diatribe is rubbish. The whole thing can be summed up as "I don't understand how the law works but here's what I think anyway."

I agree, completely, with the First Poster. Bennet's issue with the rental car analogy is his own personal limitation of knowledge. He asks rhetorical questions that can all be easily answered by an attorney. His critique reminds me of a creationist arguing over how an eye could develop. Just because you don't understand doesn't mean someone else can't.

Summary: this review is the Chevy Aveo of legal discussions: rubbish. Props to the Top Gear (UK) guys.

Re:Non-lawyer?

[Loadmaster]

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 average citizen can question a judge's ruling all they want, but this article is a great reason for not doing so in public.

Re:Wall of text

[Loadmaster]

And I meant to write "I'm just finishing my 2L year in law school and even I know this diatribe is rubbish." I didn't mean to make it sound like as a rising 2L I know everything.

Re:Wall of text

[The13thSin]

Well, doesn't make much sense after you decode it either:

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 only has a head." Well, the doctor was correct. The Head was alive and well, though no one knew how. The Head turned out to be fairly normal, ignoring his lack of a body, and lived for some time as typical a life as could be expected under the circumstances. One day, about twenty years after the fateful birth, the woman got a phone call from another doctor. The doctor said, "I have recently perfected an operation. Your son can live a normal life now: we can graft a body onto his head!" The woman, practically weeping with joy, thanked the doctor and hung up. She ran up the stairs saying, "Johnny, Johnny, I have a *wonderful* surprise for you!" "Oh no," cried The Head, "not another HAT!" % After his legs had been broken in an accident, Mr. Miller sued for damages, claming that he was crippled and would have to spend the rest of his life in a wheelchair. Although the insurance-company doctor testified that his bones had healed properly and that he was fully capable of walking, the

Legal Errors by Bennett

[UnknowingFool]

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.

Re:So I read the fucking article.

[cdrguru]

I suppose the agreement on the point of quick settlements is that with any lawsuit discovery can indeed compel the "right" sort of defendant into a settlement.

Just the thought of having it publicly declared that some company was mixing dead rats in with the baby food might be enough to make the company settle and seal the settlement so news of the dead rats never actually gets out. Absolutely. But it doesn't matter what sort of lawsuit it is or if it is about copyright infringement or mixing dead rats in with baby food - the threat of legal action and public exposure is always present.

I suppose you might say that a lawsuit about copyright infringement tends to target people with less resources because if they had more money they would just buy stuff instead of downloading for free. Except nearly everyone downloads for free, regardless of their financial position. Quick now, if you want something and can get it for free, which is better - free or spending some money? I'd say everyone up to Bill Gates is going to answer "free", and many people with more resources got that way because they didn't spend money frivously. So I don't believe the "less resources" argument at all.

So what is the point of saying that expediated discovery might be intimidating? Any discovery, expedited or not, is going to be intimidating to a lawsuit defendent in some manner. The mere fact of having the lawsuit filed is going to cause disruption to the defendent, whether the defendent is a college student or IBM.

Jurisdiction makes a difference

[Todd Knarr]

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).