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California Judge Denies Discovery In Bittorrent Case
New submitter PhxBeau writes with news of a particularly sane judge in a copyright case. Quoting TorrentFreak: "In yet another mass lawsuit against alleged file-sharers, a California court has said that while it's sympathetic towards the plight of the copyright holder, it will not assist in the identification of BitTorrent users. It's a shame technology that enables infringement has outpaced technology that prevents it, the judge wrote, but added that his court won't work with copyright holders who pursue settlement programs with no intention to litigate."
The core issue is that an IP does not identify more than the bill-payer — the good cause standard therefore is not met because the actual infringer is not identified.
A Judge with a brain!? A heretic I say!
his court won't work with copyright holders who pursue settlement programs
And this is how it should be.
What do I know, I'm just an idiot, right?
It sounds almost as if you're shilling for the plaintiff, defending their misfortune by using the worst of all arguments to criticize the judge's decision.
I'm pretty sure they would overlook that in an overtly criminal case CP or terrorism, probably by casting the bill payer as an "accomplice" of some sort who could have information about the crime. That would be enough to get the address from the ISP. Whether it would lead to a friendly chat or a SWAT team raid is the biggest unknown, but there's no way they would let a pesky little bit of precedent get in their way for something like that.
If you wanted to mass lawsuit and try for a settlement against terrorists, that would be banned as you can't declare the IP address identifies the user that did it. If, on the other hand, you want to get a search warrant to look for terrorist activities, the IP address is more than sufficient in giving probable cause for a search.
Or would you rather be sent to Guantanamo because your network was compromised and your IP address sent terrorist data?
IP address doesn't even identify the bill payer in many cases, only an address from which the supposed infringement has taken place which, given the number of actual devices that might be connected via a public facing IPv4 address, is at best a speculative guess...
Or maybe it's more about the double standards in legal systems? Do you honestly think the judge would make the same decision in such "more provocative" cases, even if the issue in hand is technically same in all?
We should extend it to cases like that, yes. Innocent people have had their lives ruined more than once due to accusations of child pornography because someone else was piggybacking on their connection. With the ubiquity of WiFi, more sophisiticated methods of determining who the culprit is are needed. The cops should not be allowed to conduct raids or make arrests based solely on an IP address.
good cause is a relative standard.
"They were pure niggers." – Noam Chomsky
Wow, first comment is the good 'ol "terrorists!" and "think of the children" argument. I have a roommate, and friends over all the time. If someone pirates something while at my house without me knowing about it, should I go to jail and pay thousands of dollars because of it?
IP address doesn't even identify the bill payer in many cases, only an address from which the supposed infringement has taken place which, given the number of actual devices that might be connected via a public facing IPv4 address, is at best a speculative guess...
I think they mean the one who pays the ISP bill for the public-facing IPv4 address.
"What are you doing here, Elijah?"
The core issue is that an IP does not identify more than the bill payer -- the good cause standard therefore is not met because the actual infringer is not identified.
That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection, then a part of that responsibility would seem to be knowing who is using your connection and when. If the TOS allow you to give connections away to third parties anonymously (like the coffee shop I'm sitting in now does), then I'd agree with the above statement.
I wish they (the court) would have emphasized the denial based upon the use of the courts as an empty threat and/or means of discovery for the subsequent pursuit of a private settlement. In other words, once you approach the court to do your dirty work, you've got to use them to mediate the settlement*. If you want to settle privately, hire your own detective agency. P>*Which gets you reasonable and uniform penalties and makes settlements a matter of public record.
Have gnu, will travel.
"his court won't work with copyright holders who pursue settlement programs with no intention to litigate"
Identifying the bill payer doesn't do anything other than give the RIAA/MPAA someone, who may or may not be a copyright infringer, to sue.
Look at it this way: If I download pirated material while using Starbucks's free wi-fi, Starbucks is the one who gets accused for copyright infringement..
You just compared the judgement of a tort to the prosecution of crimes. Since you did that, I have to assume that you don't understand the difference between torts and crimes, or else you don't understand why that difference makes all the difference. I encourage you to educate yourself about the laws under which you live, because it's really important and might save you a lot of trouble someday. If you just simply are not willing to educate yourself, then at least try to realize that your current understanding of the law is very lacking, so you shouldn't make any conclusions based on it; before you make any big decisions, learn what you need to know. Good luck.
Nice, straight to the scare tactics. But it's true though, it doesn't identify the actual infringer so you can't prosecute someone on that alone. You'd be surprised at how many people either have as their password as "Password", "1234" or just don't have one at all in my experience, makes it far too easy for some stranger to access your network and download all sorts of copyrighted materials. You can't prove anything
One case is civil, the other is criminal. Hence the double standard.
should I go to jail and pay thousands of dollars because of it?
You don't need to go to jail AND pay thousands of dollars. It's enough if you just pay.
You should be aware of the contents of your hard drive though. If your computer gets seized and they find the content on there, I can see you being held responsible.
Travelling the internet is like travelling the world. No one should do it without advice. They should also seek it from a reputable source if they have questions about anything.
If you know nothing about computer security, virus prevention and how to secure your networks, pay a professional to do it.
The arguement of 'people shouldn't do that to me' isn't sufficent. People shouldn't do a lot of things, content involving children shouldn't even be available in the first
place, and so fourth for anything else. But it's there, people do bad things, you need to know how to protect yourself.
Just like when you visit another country, don't go down the dark ally in the shady part of town you know nothing about, you could land in some serious trouble.
It was only a matter of time until a judge became too fed up with these fishing expeditions.
First of all, you wouldn't go to jail because this wasn't criminal copyright prosecution. This was a tort.
Second of all, if the judge HAD allowed discovery, then you would have been very inconvenienced, and then the discovery process would uncover that your friend downloaded the file. So you still wouldn't have paid a fine. But you would have been inconvenienced, and you probably would have paid a lawyer, and lost your computer for a while, and maybe a bunch of other stress.
This is a good decision based on the law, and also because it will save innocent people all that stress.
I'm sure they would handle the two situations differently. The judge is denying the copyright holder from identifying the bill payer, not the police. If law enforcement officials traced a source of child porn to an IP, they'd mostly likely be given the warrant required to determine who the infringing party is. The parents of the child that was photographed wouldn't get that information: the law enforcement officials would. That's a significant and fair distinction in my mind. Granted, I'm not a lawyer, but this is how I would expect a reasonable and level headed court to handle the two situations. If law enforcement officials wanted the IPs rather than the copyright holders, then it may again be different.
- W. Blaine Dowler
http://www.bureau42.com
An IP number isn't even vaguely comparable to a license number. These IP numbers are taken from IP packets that could be written by anyone, anywhere. They are comparable to addresses on envelopes in the US Mail, except that there's no handwriting to analyze and no authoritative cancellation mark to identify the general location.
Anyone can write any IP number in the sender field on any IP packet and send it to any other IP number.
Even if you establish that a particular ISP has assigned a particular IP number for routing packets to a particular customer, you have no evidence that a packet marked with that IP number has anything to do with that customer, unless you can get much more stringent information from router logs and/or content that only that customer could have produced. I've never heard of any such evidence being presented.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
I'm pretty sure they would overlook that in an overtly criminal case CP or terrorism, probably by casting the bill payer as an "accomplice" of some sort who could have information about the crime. That would be enough to get the address from the ISP. Whether it would lead to a friendly chat or a SWAT team raid is the biggest unknown, but there's no way they would let a pesky little bit of precedent get in their way for something like that.
Except those would be criminal cases, not civil as is the case here, so the same legal standards would not apply.
To give an extreme example, if someone sent an image of your kidnapped daughter from a given IP address, you would sure as hell want the police to find out who owns that IP. So yes, they would deal with it differently, because an overtly criminal case is different.
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
No! You're the genius! Now people can just steal cars of people they don't like, smash into people with it at a parking lightly, and all they have is the license plate! Now your enemies can be sued by random people you pissed off!
"more provocative" cases would have more evidence, the IP Address only opens a door for them to look at the person. Then they devote resources into gather real evidence.
I like this ruling very much, and it is a very important aspect that needs to be brought up, if this IP address could be someone else then they haven't identified the person at all.
The analogy I use for this is: "If you see someone whole stole something run into my back yard, am I then arrested and jailed with no other information?"
They have eye witnesses of an unknown individual who they know stole something go into my backyard. They are claiming to know who the individual is because they went into my back yard. Yet they didn't even look for match, they go after who ever the owner is. Never mind that the owner could also be a victim of that same individual (virus).
I'm sorry to have to disagree here, but there is one more level of abstraction. The license plate simply identifies the person who pays for the license that results in that plate. The plate can be placed on any car (not legally, but physically it can be). There was even an interesting article not too long ago about people printing (with paper) license plates that duplicated the ones of some people they don't like and speeding through red lights at intersections with traffic cameras. And yes, it did result in tickets going to the license plate holder.
Look at it this way: If I download pirated material while using Starbucks's free wi-fi, Starbucks is the one who gets accused for copyright infringement.
Which is why the other part of the judgment is equally important: The court should not be locating the deep pockets just so that the plaintiff can take the settlement private. Once the court has been asked to participate, they should have the right to look at their own work product (the validity of an identity in this case) and block a subsequent private action based on it.
Have gnu, will travel.
In case I wasn't explicit enough: an IP number may be intended to indicate a particular "bill payer," but the presence of a particular "bill payer's" IP number on a packet is not evidence that the "bill payer" was in any way, directly or indirectly, associated with the creation of that packet.
And it's not clear at all from the reports whether the IP numbers in question were taken from packets supposed to have originated from that address, or from packets sent to that address. In the latter case, this is just like junk mail addressed to me---I do not take responsibility for it.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
Notice how he said that he wouldn't support it in pursuit of settlements with no intent to litigate.
That's not a double standard, if they intended to actually pursue these individuals with a real discovery phase where a warrant is obtained to search those individuals' computers to identify the real infringer, then it sounds like he would have found differently.
If criminal (not civil) activity is taking place, the bill payer can be a good first step toward identifying the perpetrator. Those individuals would also be afforded a court provided attorney so they don't end up hundreds of thousands of dollars in the hole just to make a copyright troll go away.
I think the naysayers here are emphasizing the wrong point. According to the summary(cause no one RTFA) This judge wont assist the copyright holders who insist on settlement programs. These guys arent going after Joe Schmoe. They're stuffing mailboxes in Everytown, USA and hoping scared people just settle. Its a racket
In addition to the above comments it is also somewhat common to use a stolen car as a get-away vehicle in robberies and other crimes.
In fact this happened to my family during my childhood. We woke up one morning to find that not only had our Jeep been stolen but that it was used that night to break a number of traffic and safety laws.
The difference with this analogy though is that the police directly deal with traffic infringements.
The copyright holders should not be able to send fines/etc. without police involvement... although I assume this will change eventually.
So... you're saying people a company suspects of copying their works should be subjected to the same sort of investigation that terrorists and child pornography collectors are?
When someone says, "Any fool can see
This is a far cry from a fair shelter for terrorists and kiddie pornographers. An IP address, in and of itself, isn't going to get you convicted of terrorism or possession of child pornography. It's something that points police in the right direction, then further investigation is what identifies the actual criminal. Now, let's say that, for example, Bob Al Qaeda uses a public wifi connection at McDonald's to plot a terrorist attack. Do you think it's appropriate that the FBI arrest the franchiser of the McDonald's for terrorism, and call it a day? Or that they send said franchiser a letter demanding that they pay money or they will be sued? Or do you think, that, instead, they should use that as a starting point, find out who was using the connection to plot the terrorist attack, and arrest that person? I'm going to say the latter is far more effective at not only preventing terrorism, but imprisoning the people responsible. And that's the point of this - the IP address does not identify the perpetrator, and copyright holders need to understand this in making efforts to protect their copyrights.
good cause is a relative standard.
Thank you. The idea that we would compare copyright infringement with terrorism and CP (like the OP did) is just crazy. What's Slashdot coming to that the OP is scored Insightful?
tomorrow who's gonna fuss
I thought that would be the case. It's just there have been so many ramblings about trying to criminalize copyright infringement I wasn't sure what category it fell under...
You should be aware of the contents of your hard drive though. If ... they find the content ... there, I can see you being held responsible.
So if I drop a baggie of heroin in your car's gas tank (or tuck it into in the grill, or stick a magnetic key hider in the wheel well, etc) when you're not looking and the drug dog 'indicates', you're ok with going to jail?
I didn't think so.
Tiller's Rule: Never use a word in written form that you've only heard and never read. You will end up looking foolish.
No but unless you can prove that you did not voluntarily provide your car you can be charged with "aiding and abetting" and or Conspiracy to Commit %CRIME% so you still go to Club Fed anyway.
Any person using FTFY or editing my postings agrees to a US$50.00 charge
Let me know when your examples become civil issues and I'll let you know when your analogy works.
Except the company had no intent to file a lawsuit, so there wouldn't be a discovery phase, they would just send you a bill with "settlement offer" with no recourse other than suing them.
Contrary to the popular belief, there indeed is no God.
Yup, because people run around forging IP address packets in bulk for torrents all the time just for giggles. You might be able to sell line that to a jury if they were lobotomized beforehand.
Aside from that, forging an IP doesn't let you have a two way conversation because all responses get routed to the IP that you forged. A wireshark trace of some IP chatting happily with the tracker and seeds/leeches is pretty damn good evidence that you've got the right IP.
Sure, it doesn't *prove* anything. But even the most technically illiterate jury is going to agree that the bill payer's is going to be the right person to start asking really pointed questions.
Best way to close the loophole is legislation to make the bill payer responsible for activity from his/her IP, torrenting, bot net, you name it. Shuts down some legitimate uses but will clean up the ole 'net quite a bit.
You should be aware of the contents of your hard drive though.
With cheap terabyte drives? How?
Free Martian Whores!
I'd like to see a law passed that says that if you're running a residential wireless hotspot and don't take reasonable precautions to keep strangers from borrowing it you're automatically responsible for all packets originating from your IP address. No exceptions, no excuses.
Good, inexpensive web hosting
When you get busted for terrorist conspiracy and child porn because someone broke into your wireless network and used to for those reasons, I'd like to see you say the same thing.
The day they pass that law is the day I shutdown my guest network. Until then, fuck yourself.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
In Germany, courts have ruled this way, and I believe this is the same in the US
... and the double jeopardy when they can't get a conviction in criminal court.
Understanding the scope of the problem is the first step on the path to true panic.
I would say that the many cases of police busting down the wrong doors (most commonly in New York and Los Angeles, it often seems) would qualify as them doing exactly that... busting or trying to bust the wrong person based on evidence that hasn't been held up to a proper standard.
"If, on the other hand, you want to get a search warrant to look for terrorist activities, the IP address is more than sufficient in giving probable cause for a search."
On the contrary: judge after judge in the past couple of years have ruled that an IP address alone is NOT probable cause. And properly so. It doesn't identify an individual, or even a household. My IP address is available to people all over my neighborhood, and vice versa: I have a network adapter that can access routers more than 2 blocks away.
Civil cases don't involve jail time. In every FBA 'antipiracy' statement on every DVD I own, I'm threatened with 5 years in prison and an outrageous fine if I 'violate' their copyright. Said violations include ripping the content to my hard drive (aka 'format shifting'). It's already criminalized. Hell, ownership of a DVD is damned near a criminal act as it 'facilitates piracy' by mere possession. You have access, you too may be one of those eeeeeeeeeeeeeeevil pirates.
Understanding the scope of the problem is the first step on the path to true panic.
Ack!! make that FBI antipiracy statement. I need more caffeine
Understanding the scope of the problem is the first step on the path to true panic.
Comparing things like terrorists with people who where files
and violate copyright is pure idiocy. Don't expect support for your mindset
from anyone but an idiot.
Great. Give them more ideas...
Understanding the scope of the problem is the first step on the path to true panic.
eh, it's a fair cop. the modding, that is.
on certain days i fucking hate the world and abuse my mods just to watch this place burn. and yet i still get, on average, at least 10 a week.
"They were pure niggers." – Noam Chomsky
In the US you would go to jail if someone else left drugs in your car. Not saying that is right, just the sad reality.
Those are weaselly. They say that criminal infringement has those penalties. Not all infringement is criminal.
Except that *AA defines any infringement is criminal infringement.
Understanding the scope of the problem is the first step on the path to true panic.
How does it feel to be a poorly-paid shill for those seeking to stifle the Internet cultural renaissance?
Which is why the other part of the judgment is equally important: The court should not be locating the deep pockets just so that the plaintiff can take the settlement private.
It's great to hear that a judge has said no to these folks, but given the number of other cases they have filed, I suspect they'll just try a different courtroom next. Per the Judge's decision,
"According to this court’s research, at the time of the hearing 69 mass copyright infringement cases had been filed in this district. Of those, plaintiff obtained early discovery in 57 cases and issued subpoenas to obtain subscriber information for more than 18,000 IP addresses."
This one case is probably just a hiccup to these trolls, unless a lot of people get a lot of positive legal publicity for this ruling.
I thought you were talking about the FBI warning, not the RIAA or MPAA.
I know of these actual cases where the Internet access of someone was used by someone else without permission.
1) Stolen Wifi, either unprotected or hacked.
2) Multiple family members, one connection. Who downloaded what?
3) Stolen wired access: An unauthorized cable was plugged into a switch, giving the thief connectivity.
4) Unauthorized access point: A rogue access point was installed and hidden so the thief could connect from nearby without the need for an actual cable.
5) Variations of 3 and 4 where the evidence was removed before discovery.
Bottom line - you cannot assume that 1 IP = 1 person without a serious investigation. An remember that 1 and 5 has no evidence left behind so the only evidence is the *lack* of traces on all devices with authorized access.
There are many ways to steal Internet access and you need to investigate BEFORE making accusations.
"For every complex problem, there is a solution that is simple, neat, and wrong." -- H.L. Mencken (1880-1956) --
I don't think that's how the settlement offers work. If you get a settlement offer, and ignore it, then they have to sue you to get the money. Sending a letter isn't free money. People still have to agree to pay. A defendant doesn't sue the plaintiff; that's not how it works; that's the opposite of how it works.
Your comparison isn't quite accurate in my opinion.
Dropping a baggie in your gastank would be like someone using your wifi to do something illegal. Same with the other places.
Finding it on your hard drive is something I'd compare more to having it inside your car in the passenger compartment, or a glove box etc.
If there was no sign of force entry, then it sounds like you left your car unlocked when you shouldn't have.
And yes, if they found it inside your car like that, you'd be going to jail.
They wouldn't sue you for the amount of "settlement", they would threaten you with a lawsuit for tens or hundreds millions of "damages", what would be a completely different matter.
Contrary to the popular belief, there indeed is no God.