Troll Complaint Dismissed; Subscriber Not Necessarily Infringer

Yeah! by DarthBling · 2013-02-21 08:44 · Score: 1

Great news!

Moskowitz 2016 by Anonymous Coward · 2013-02-21 08:47 · Score: 1

Now we just need a catchy slogan for his Presidential campaign in 2016 where he captures the all-important tech vote.

Re:Moskowitz 2016 by Anonymous Coward · 2013-02-21 13:06 · Score: 0

"Moskowitz is NOONES bitch!"
Get the vote out!

On Appeal by gpmanrpi · 2013-02-21 08:47 · Score: 3, Insightful

This needs to be held up on appeal to the 9th Circuit Court, and we can celebrate. Otherwise this is a smart District Court Judge's ruling that is only persuasive in other cases.

Re:On Appeal by Nukenbar · 2013-02-21 11:09 · Score: 2

This needs to be held up on appeal to the 9th Circuit Court, and we can celebrate. Otherwise this is a smart District Court Judge's ruling that is only persuasive in other cases.
That is why something like this will almost never be appealed. The MPAA doesn't want to create any "bad law" for themselves.
And of course the winner can't "appeal" even if he wanted to create the precedent.
Re:On Appeal by Jane+Q.+Public · 2013-02-21 11:24 · Score: 1

"That is why something like this will almost never be appealed. "
Granted, you did say "almost" never. But a winner can sometimes appeal if they have legitimate grounds to feel the judgment was not fair or in accordance with the law.
Re:On Appeal by hairyfeet · 2013-02-21 13:00 · Score: 1

I agree its probably best to wait until its moved higher up the chain. the frankly depressing news nobody seems to be talking about is what the "six strikes" crap that the ISPs have wholly embraced is gonna do to free Wifi which is kill it deader than Dixie. If you've looked at their little six strikes plans they don't have any kind of "safe harbor" provisions so all it will take is somebody looking at anything the media corps don't like (because frankly their definition of "infringing" seems to be "anything we don't like or aren't directly profiting from") a couple of times for every coffee shop and food joint to have their free Wifi shut down.
And before anybody says "The ISP wouldn't want to give up those customers!" remember how badly the ISPs have been overselling the hell out of their lines while refusing to use profits for anything but CEO bonuses? Well six strikes gives them the perfect excuse to kick anybody that uses more bandwidth than your average grandma, thus allowing them to keep gouging and overselling while using the profits for bonuses and buying out smaller fish to prop up the stock price.
so while this is good new no need to be patting ourselves on the back just yet, we need to see if it stands up to higher courts and we've seen a LOT more attacks on the Internet by the courts and corps in the past few years than ever before so vigilance is required. I'd suggest everybody sign the petition against CISPA 2.0 and write your lawmakers demanding an end to six strikes and for support of net neutrality.

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ACs don't waste your time replying, your posts are never seen by me.

Not guilty, perhaps, but... by mark-t · 2013-02-21 08:50 · Score: 1

... perhaps still responsible.

Many ISP's terms of service hold the subscriber responsible for any activity coming from the IP addresses that they are leasing to the subscriber, and can in those cases still be held civilly liable (albeit not criminally).

--
File under 'M' for 'Manic ranting'

Re:Not guilty, perhaps, but... by Anonymous Coward · 2013-02-21 08:58 · Score: 0

Only as far as the TOS for that particular ISP allows. The worst that could happen is that you lose your internet service. It has no bearing on whether a 3rd party can take you to court for actions made from your IP.
Re:Not guilty, perhaps, but... by Anonymous Coward · 2013-02-21 09:44 · Score: 0

What are you talking about? Wasn't this a civil case? And isn't it blatantly obvious you can't be convicted criminally on the evidence of "But he paid for some internets!"? Why would that even be news if that's what this case was about?
Re:Not guilty, perhaps, but... by Anonymous Coward · 2013-02-21 09:48 · Score: 0

... perhaps still responsible.
Many ISP's terms of service hold the subscriber responsible for any activity coming from the IP addresses that they are leasing to the subscriber,

And then they provide a router with default passwords and WPS enabled...
Re:Not guilty, perhaps, but... by cdrudge · 2013-02-21 09:55 · Score: 1

Well, in this case obviously the subscriber was not held to be civilly or criminally liable. If the ISP chooses to suspend or terminate the subscribers account based on the allegations of the 3rd party, then I guess that's their prerogative. However the ISP probably isn't going to have any proof of the infringement other than what the 3rd party claims, and the 3rd party probably isn't going to get involved in a case with further significant evidence other than basic information on a sheet of paper that may not even be accurate.
Besides, the ISP would lose a paying customer. If things were bad enough that the cost of having to deal with the customer exceeded the revenue brought in by them, then maybe they would get rid of them.
It might get into a legal predicament if the ISP terminates the account and charges a termination fee. But that's another legal matter between the ISP and the subscriber, not the originally accusing 3rd party and the subscriber.
Re:Not guilty, perhaps, but... by wiredlogic · 2013-02-21 16:57 · Score: 2

From the opinion:

However, the Court is concerned about the lack of facts establishing that Defendant
was using that IP address at that particular time. Indeed, the FAC does not explain what
link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued
Defendant because he is the subscriber to IP address 68.8.137.53. (The Court notes that
it is actually unclear whether the IP address is registered to Defendant). As recognized by
many courts, just because an IP address is registered to an individual does not mean that
he or she is guilty of infringement when that IP address is used to commit infringing activity.
Basically the plaintiff needs to subpoena the ISP for logs indicating that the IP was assigned to the defendant at the time of the alleged infringement. The IP alone will not be considered proof. Hopefully this stands on appeal on the basis of common sense.

--
I am becoming gerund, destroyer of verbs.

Revelation by gizmod · 2013-02-21 08:50 · Score: 1

Wow? What a revelation this is indeed.

Welcome to 1990 by Anonymous Coward · 2013-02-21 08:52 · Score: 0

That's what people have been saying for over two decades... Glad common sense has won out on this one.

Re:Welcome to 1990 by NewYorkCountryLawyer · 2013-02-21 09:34 · Score: 1

That's what people have been saying for over two decades... Glad common sense has won out on this one.
Yup. And yup.

--
Ray Beckerman +5 Insightful
Re:Welcome to 1990 by Anonymous Coward · 2013-02-21 13:10 · Score: 1

There was no form of IP masquerading or NAT in 1990. RFC 1287 in 1991 had some suggestions leading toward NAT. In 1993 RFC 1918 defined the non routable private use IP ranges and in 1994 RFC 1631 defined and established NAT. There may have been people saying an IP does not equal a person in relation to intellectual property theft back in the mid 90's but I doubt that number of people was more than a handful. If Google newsgroup archive search was worth a fuck I'd try to search for those handful.

Precedence by Anonymous Coward · 2013-02-21 08:56 · Score: 1

We have finally gotten some of it! This is a great first step in making the Corps that are issuing these lawsuits to actually do their investigation.

Now, if this passes, they may try to pass laws to make the subscriber responsible (can anyone say Unprotected Wifi laws?)... which will be the never ending fight.

Re:If these cases involved guns.... by h4rr4r · 2013-02-21 08:57 · Score: 0

How many gun owners let other people use their guns?

I have let my father and brother use my guns. That is it. The entire times they were in my presence. Wifi I have let everyone who visits my house use.

More evidence by MobyDisk · 2013-02-21 08:57 · Score: 4, Insightful

Is this really something to cheer about? Rah rah yay evil copyright trolls defeated! But wait... is this really fair?

The judge's ruling states that an IP address isn't sufficient information to bring a claim, and that discovery is not permitted. Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file? The only way I can think of to tie an IP address download to an individual would be to look at the hard drive of the computer to determine if the file was ever there.

The judge also points out that the owner of the wireless network is under no legal obligation to protect their wireless network from someone else using it. So it upholds the wireless network claim, although it wasn't used in this decision.

I am no fan of the copyright trolls, but I don't think making it completely impossible to track down copyright infringement cases is fair either.

Last note:
The judge granted the motion on one of three counts brought against the individual. They can refile on the first two counts if they can find a way to identify the individual, not just the IP address.

Re:More evidence by HaZardman27 · 2013-02-21 09:01 · Score: 3, Interesting

Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file?
Oh gosh, we can only hope.

--
Apparently wizard is not a legitimate career path, so I chose programmer instead.
Re:More evidence by Anonymous Coward · 2013-02-21 09:09 · Score: 1

This ruling was expected and exactly why the RIAA/MPAA is working on bypassing the courts completely and working directly with the internet providers. The three strikes or six strikes rule or whatever it is they agreed on. Now if your IP is suspected, you get cut off. No evidense needed other than the MPAA/RIAA sending an email to your provider saying your subscriber infringed.
I work at a large company and we get letters all of the time from the MPAA. It lists a file name and a time and that it was tracked to our IP address and there was a copyright violation. No evidense other than our public IP address and a date/time. I have no idea what that person was doing, what the MPAA used to determine infringment. Just a file name and a date. Did they download the file directly from our IP address? Did they inspect the files contents? Did they just see a file name somewhere? Who knows.
Re:More evidence by gstoddart · 2013-02-21 09:10 · Score: 3, Interesting

The judge's ruling states that an IP address isn't sufficient information to bring a claim, and that discovery is not permitted. Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file?
It needs to be made more difficult, and there needs to be some burden of proof shifted to the accuser.
So many of these they seem to send the "you've been caught downloading, pay us this much money and this goes away" extortion letters, or they file the John Doe lawsuits to get the subscribers names, and then sue them that way. They just go with presumed guilt, and make it impossible for someone to defend themselves without bankrupting themselves.

I am no fan of the copyright trolls, but I don't think making it completely impossible to track down copyright infringement cases is fair either.
It doesn't need to be completely impossible ... but there does need to be some actual evidence beyond "I have your IP address, therefore it was you" stuff they do now. They've been trending too much to the point where they can claim anything with no real evidence, and the courts follow along.

--
Lost at C:>. Found at C.
Re:More evidence by Anonymous Coward · 2013-02-21 09:12 · Score: 0

There does have to be a reasonable path to discovery, I think you're correct. How about a nice little car analogy?
There's a drive-by shooting. Witnesses get a basic description of the car involved, including the license plate. With that there's probable cause to search the vehicle but (I think -- IANAL) not enough to, say, issue an arrest warrant for the owner of the car.
There's (seemingly) a clear link between the defendant and the IP address -- it's his account, after all, and more likely than not the alleged infringement at the very least traversed his network. Sure, that's not enough to charge him with, but I can't see how there shouldn't be cause for discovery here. What am I missing?
All that being said, I get why the judge tossed the case; he should have, an IP address isn't a person.
Re:More evidence by Anonymous Coward · 2013-02-21 09:13 · Score: 0

In what situation is it necessary to pursue legal action against a single individual for downloading a single copyrighted file? Or even numerous copyrighted files?
In what situation do you, as some sort of producer of protected content, need to file a suit against some random person? Your goal should be to remove public use you did not permit. You would be hard-pressed to justify true harm or loss because some guy downloaded your song without paying for it. Remove it from its public location and you'll survive.
Re:More evidence by Anonymous Coward · 2013-02-21 09:15 · Score: 0

Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file?
They realized this a while ago, which is why they've been pushing to have the ISPs enforce their will solely on the basis of an IP address. No need to waste Time & Money® suing people you can't identify when you can just have them banished from the Internets® altogether.
Re:More evidence by taucross · 2013-02-21 09:19 · Score: 5, Insightful

Fairness happens through a strict audit chain of deductive evidence. An IP address is not a way of identifying criminal liability. This is a fact, no matter how unfair it may seem. It can identify a person, yes; the account holder. But it does not then follow that the account holder is culpable. Do you think it is better to convict an innocent person, or to let a guilty person go free? The question is deeply philosophical and most tantalising.

--
"In the absence of the ability to establish the attribute of truth they tried to establish the noble attributes."
Re:More evidence by Anonymous Coward · 2013-02-21 09:22 · Score: 0

While simply being the subscriber is no longer (we hope) proof of infringement it would almost certainly be probable cause for a search warrant. They you can pay to have PC drives analysed to see if they contain copyrighted material. This should make prosecution of these cases a lot more expensive and eliminate the scatter shot 1500 John Does kind of cases.
Re:More evidence by Anonymous Coward · 2013-02-21 09:24 · Score: 0

Your goal should be to remove public use you did not permit. You would be hard-pressed to justify true harm or loss because some guy downloaded your song without paying for it. Remove it from its public location and you'll survive.
Hello... Torrents......
Re:More evidence by Anonymous Coward · 2013-02-21 09:25 · Score: 0

Who precisely would you suggest that they initiate discovery with?
Re:More evidence by rwise2112 · 2013-02-21 09:34 · Score: 1

The only way I can think of to tie an IP address download to an individual would be to look at the hard drive of the computer to determine if the file was ever there.
And how do you tie the user to the computer? Many computers are used by more than one person.

--

"For every expert, there is an equal and opposite expert"
Re:More evidence by Anonymous Coward · 2013-02-21 09:37 · Score: 0

Do you think it is better to convict an innocent person, or to let a guilty person go free?
Depends on the situation, but overall I'd say the latter.
An innocent person convicted has very little recourse and cannot be duly compensated for the false conviction.
If a serial offender is mistakenly released then there is the risk of that person causing further harm, but hopefully there will have been enough evidence to increase the scrutiny on such a person so that he/she may be stopped and eventually convicted of a future crime.
If a one-time offender is released, then he/she escapes punishment, but also has no intention of causing further harm to society.
Re:More evidence by rwise2112 · 2013-02-21 09:38 · Score: 2

... but there does need to be some actual evidence beyond "I have your IP address, therefore it was you" stuff they do now. They've been trending too much to the point where they can claim anything with no real evidence, and the courts follow along.
Nonsense: MPAA accuses laser printer

--

"For every expert, there is an equal and opposite expert"
Re:More evidence by PraiseBob · 2013-02-21 09:53 · Score: 1

But wait... is this really fair?

Are you kidding me?

These jerks abuse the legal system to conduct extortion. Several prominent trolls are facing serious jail time for their crimes, which are numerous. And here you are worried that they have to have actual proof before trying to ruin somebodys life?!
Re:More evidence by MobyDisk · 2013-02-21 09:57 · Score: 1

It doesn't need to be completely impossible ... but there does need to be some actual evidence beyond "I have your IP address, therefore it was you" stuff they do now.
So then, we are in agreement that this ruling is bad. This ruling says that they must tie it to an individual, but they are not allowed to do any investigation that would help them in doing that.
Re:More evidence by MobyDisk · 2013-02-21 09:59 · Score: 1

If it was a shared computer, such as at a library or school, then they would probably need to see who was logged-in at the time it was downloaded. They could also look at the date stamp on the file on the computer, or see whose user directory it was in. But at the moment, the ruling forbids any of that since it forbids discovery.
My complaint with the ruling is that it forbids them from doing the investigation that would help them determine this!
Re:More evidence by MobyDisk · 2013-02-21 10:02 · Score: 1

And why is that good?
The fact that the parent's snarky comment was modded to 4, while I bothered to read the judge's report, and point out the pros and cons of the ruling -- that gets modded up, then down, up, then down. Slashdot needs to grow up.
Slashdot mentality:
Copyright on TV and movies is evil! And games! I can watch or play whatever I want for free! And with no ads!
Copyright on indie games? Or open source applications? That's good however.
Re:More evidence by Anonymous Coward · 2013-02-21 10:06 · Score: 0

Good. They have no reason to go after downloaders anyway.
There's no reason that anyone should have their doors busted down just so a copyright infringer can be found.
Re:More evidence by MobyDisk · 2013-02-21 10:09 · Score: 1

Fairness happens through a strict audit chain of deductive evidence. An IP address is not a way of identifying criminal liability.

1) There is no criminal liability involved here. This is a civil case.

This is a fact, no matter how unfair it may seem. It can identify a person, yes; the account holder. But it does not then follow that the account holder is culpable.
2) yes, I agree. I said as much in my post. You missed the my point entirely.
The problem is that the judge forbids discovery. Apparently no one on Slashdot knows what that means. It means that they are forbidden from obtaining any more evidence or doing any more research. They can't look at the network, or the hard drives, or anything. They can't contact the ISP. Nada. So even if they could prove it was an individual, they are not legally allowed to! The problem with this ruling isn't that the judge said IP addresses are not enough evidence. Everyone agrees with that. The issue is that he dismissed the case so they can't do discovery.
Re:More evidence by MobyDisk · 2013-02-21 10:14 · Score: 1

While simply being the subscriber is no longer (we hope) proof of infringement it would almost certainly be probable cause for a search warrant.
My entire complaint is that the judge denied the search warrant!
This is a civil case. So there is no such thing as a warrant. Instead, it is called a motion for discovery. But the judge denied he motion for discovery when he granted the dismissal. That was my entire complaint.
Re:More evidence by thunderclap · 2013-02-21 10:18 · Score: 1

Fair is like Normal. It doesn't exist. Its a pie in the sky weasel word that is meaningless. the only people who suggest it are those who have something to lose. Do you?
I think making it completely impossible to track down copyright infringement cases is the best idea possible. They are distributors now. They need to wake up and accept that. A company creates nothing. Individuals do. Sadly, people don't understand that. So we need to get back to individual ownership for all media with a small segment given to the companies to do distribution. However, I doubt I will see that happen anytime soon.
Re:More evidence by MobyDisk · 2013-02-21 10:19 · Score: 1

Good. They have no reason to go after downloaders anyway.
How about... copyright?

There's no reason that anyone should have their doors busted down just so a copyright infringer can be found.
No one said anything about busting down doors. What should have happened was a motion for discovery be granted before the case was dismissed.
Re:More evidence by NewYorkCountryLawyer · 2013-02-21 10:26 · Score: 1

But wait... is this really fair?
Are you kidding me?

These jerks abuse the legal system to conduct extortion. Several prominent trolls are facing serious jail time for their crimes, which are numerous. And here you are worried that they have to have actual proof before trying to ruin somebodys life?!
LOL.

Now let's see, do I think it's fair? Hmmmm..........

Uh......., yeah, I do.

--
Ray Beckerman +5 Insightful
Re:More evidence by Nefarious+Wheel · 2013-02-21 10:30 · Score: 1

... Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file? The only way I can think of to tie an IP address download to an individual would be to look at the hard drive of the computer to determine if the file was ever there...
You may be entirely right, and I simply don't care.
Yes, I have friends and family who depend on their intellectual property to survive - they're artists, and it's a hard slog.
However, I believe "no illegal search and seizure" is still an important principle, and remains a fundamental right, whether or not people believe the Constitution is still enforceable. It's still a document worth fighting for.
There are trolls (noun) and people who troll (verb). To paw through peoples' belongings without a court order establishing reasonable grounds for suspicion that a named individual is doing something wrong, is utterly excoriable. "I think they're hiding something" is not enough. Nobody needs the return of the Inquisition.

--
Do not mock my vision of impractical footwear
Re:More evidence by Anonymous Coward · 2013-02-21 10:31 · Score: 0

If I photocopy an entire book on my scanner/printer it is also nearly impossible to track me down. If I tape a song off the radio it is pretty much impossible to track me down.
Yes, we do need a way of rewarding those who create content, but trying to apply the old ways will require turning the world into a police state. I don't have any easy solutions.
Re:More evidence by Anonymous Coward · 2013-02-21 10:33 · Score: 0

In most jurisdictions I know enough about, what is actually illegal is distribution - uploading, rather than downloading. That said, in these days of peer-to-peer file sharing, the latter frequently (but far from always) entails the former.
Re:More evidence by Nefarious+Wheel · 2013-02-21 10:54 · Score: 1

Indeed. And it shouldn't be completely impossible for the average Joe or Jane to defend themselves against the legal steamroller, either. This Inquisition has been way, way to unbalanced in favor of the accusers for way too long. Accept extortionate demand or be bankrupted trying to prove your innocence. It isn't fair.

--
Do not mock my vision of impractical footwear
Re:More evidence by Nefarious+Wheel · 2013-02-21 10:54 · Score: 1

*too unbalanced. Sorry (OCD).

--
Do not mock my vision of impractical footwear
Re:More evidence by MobyDisk · 2013-02-21 11:12 · Score: 1

However, I believe "no illegal search and seizure" is still an important principle, and remains a fundamental right,
100% agreed! This is very true. But it also has absolutely nothing to do with this discussion. There was no illegal search and seizure. There is no copyright troll involved here either. Save your rant for the next RIAA/MPAA story.
The question I posed in this discussion is: why did the judge dismiss a request for legal discovery from a legitimate copyright holder who presented seemingly valid evidence? If this is the standard, how can a copyright holder prove a download was illegal?
Re:More evidence by Bobfrankly1 · 2013-02-21 11:18 · Score: 1

While simply being the subscriber is no longer (we hope) proof of infringement it would almost certainly be probable cause for a search warrant.
My entire complaint is that the judge denied the search warrant!
This is a civil case. So there is no such thing as a warrant. Instead, it is called a motion for discovery. But the judge denied he motion for discovery when he granted the dismissal. That was my entire complaint.
From the decision:

It is possible that Plaintiff sued Defendant because he is the subscriber to IP address 68.8.137.53. (The Court notes that it is actually unclear whether the IP address is registered to Defendant)
It appears that all they had was an IP address, which *may* link up to a subscriber. It's like going into court, saying "we know the guy lives in this town, and he drives a car that has numbers in the license plate". I also like this quote:

“it is no more likely that the subscriber to an IP address carried out a particular computer function...than to say an individual who pays the telephone bill made a specific telephone call.”
The judge rightly denied discovery as the plaintiff didn't have anything outside of "we think it came from there" while pointing in a general direction. If the bar was set so low for discovery to be granted, one could imagine how often it would be abused. I understand where you're coming from, this makes it much more difficult to pursue actual infringement cases. But if you've been observing even a little, you would see how eager groups like these are to jump at any chance to abuse the legal system.

While I don't have any suggestions for resolving the difficulties in pursuing actual infringement, I'm glad that some courts are raising the requirements to proceed with a suit. With my meager income, win or lose, such a lawsuit could be fiscally fatal to me, while costing pocket change to the plaintiff.
Re:More evidence by dougisfunny · 2013-02-21 11:26 · Score: 1

I was under the impression the discovery in question means the court won't compel the account holder to hand over all of their computers to be forensically investigated, or compel anyone else to do it as part of the legal proceedings.
Not that they can't investigate by going to the site the file was downloaded from, asking "was this downloaded by an account under the name Bob IPAddress" but the site owner is allowed to refuse.
I just thought that the court won't do court orders for fishing trips.
If I had your IP address, and nothing else I shouldn't be able to go to a judge say "he stole my file, now let me take all his computers to look for more evidence" that shouldn't fly.

--
This is not the funny you're looking for.
Re:More evidence by Anonymous Coward · 2013-02-21 11:29 · Score: 0

Why should they be able to do discovery based on the flimsy evidence that an IP address was used for infringing purposes?
Re:More evidence by lgw · 2013-02-21 11:45 · Score: 1

First of all, downloading a file hasn't (yet) been a cause for complaint in any of these copyright claims, perhaps you meant sharing a file?

--
Socialism: a lie told by totalitarians and believed by fools.
Re:More evidence by lgw · 2013-02-21 11:53 · Score: 1

It's not the court's job to prove the case on the platiff's behalf. Gaining enough evidence is entirely the plantiffs problem. The jusge decided that knowing an IP address was not sufficient evidence against any one person to justify seizure and search of any one person's computers. That seems right to me.
Surely "probable cause" for a search must mean "more than 50%" by any reading of "probable". Come to court with evidence demonstrating a better than 50% chance that a specific person wronged you, or leave empty handed. It's entirely your problem if you don't have that level of evidence going in.

--
Socialism: a lie told by totalitarians and believed by fools.
Re:More evidence by maxdread · 2013-02-21 12:11 · Score: 2

However, how is it fair to be forced to give up my PC to a 3rd party all based on an IP address. It sucks that it leaves little room for investigating copyright infringement but someone shouldn't have their lives turned upside down, even temporarily, based on just an IP address.
Re:More evidence by Anonymous Coward · 2013-02-21 12:19 · Score: 0

This is Slashdot. You're fighting a losing battle. It doesn't matter how valid your arguments are, the minute you have a better argument than them they just fall back to the old "RIAA shill" conspiracy theory.
Re:More evidence by Anonymous Coward · 2013-02-21 12:23 · Score: 0

How about... copyright?
There are so many downloaders that it is simply nor feasible to go after them to begin with. Do you know the result of going after them anyway? Thousands of people being sued at once with no chance to defend themselves.
Justice > copyright. They have no reason to go after downloaders. Even if they sue a person at a time, it just isn't worth it.
Re:More evidence by Anonymous Coward · 2013-02-21 12:34 · Score: 0

If the system is this easy to abuse, why not abuse it back? I.e. issue takedown notices against RIAA offices, servers and personell. totally bogus, of course. After a while, they get tired of being cut off, and will have to change the system.
Re:More evidence by PraiseBob · 2013-02-21 12:57 · Score: 1

There is no copyright troll involved here either.

Actually the small team of lawyers in this case are often considered the kings of copyright trolling, responsible for pursuing legal action against upwards of one hundred thousand people in just a few years.

Lets assume they've been doing this for 3 years, and work 5 days a week, 8 hours a day. That gives them 374400 minutes of time spent, suing lets say 100k people. That gives us somewhere in the neighborhood of 3.74 minutes of discovery and case-building per person sued (not to mention time spent in court). Exactly how much effort and attention do you think they are putting into making sure they are suing the right person? How much "seemingly valid evidence" do you think they have? If I spend a whole 4 minutes making a case against you, can I seize your computer?
Re:More evidence by Anonymous Coward · 2013-02-21 13:25 · Score: 0

I don't think making it completely impossible to track down copyright infringement cases is fair either.
If it's a choice between making it possible to track down copyright infringement cases, or protecting the integrity of the justice system and the freedom of the citizenry, it's a pretty clear choice. If a law can't reasonably be enforced, the right thing to do isn't to enforce it anyway. You repeal the law.
Note that this all refers to non-commercial copyright infringement. Commercial copyright infringement is a lot easier to track down: you just follow the money.
Re:More evidence by Anonymous Coward · 2013-02-21 13:25 · Score: 0

Your mistake is in the "Doesn't that make it pretty much impossible ..." comment.
No, it's not impossible at all. It merely adds to the burden of proof of the accuser and it's hardly impossible.
Here's what an IP address really brings to the party: Evidence worthy of further investigation. An IP address is most certainly that, however it does not by itself tie the activity to the responsible individual.
Simplest real-world application I can think of, though not the only one. If the accuser can establish that the holder of that IP address had physical security in place, exclusive access to the keying system, and there were no break-ins during the time period in question. OK, now the accuser has a court case. Only one person had access to the computer equipment. How to establish the no break-ins requirement? No police report. It has to be a reasonable standard the accuser has to meet, and requiring a police report would be a reasonable evidentiary bar (IMO).
And so forth.
Re:More evidence by Anonymous Coward · 2013-02-21 13:56 · Score: 0

The only way we will be able to test your hypothesis is if he comes up with a valid argument. Thusfar his sole argument is flawed. It is based on the idea that the judge has forbidden all discovery, rather than just discovery based on flimsy evidence.
He's arguing that you should have your life turned upside down because someone, somewhere logged your IP address.
Re:More evidence by Dodgy+G33za · 2013-02-21 14:19 · Score: 1

In your car analogy if a car scrapes across mine when it is parked in the road, should I have the right to demand the licencing authority give me the name and address of the registered owner? No, I have to hand it to the police, who will do fuck all about it.
Re:More evidence by Anonymous Coward · 2013-02-21 17:56 · Score: 0

Go away RIAA shill.
Re:More evidence by Anonymous Coward · 2013-02-21 18:21 · Score: 0

In the same way that you can have your life turned upside doen because someone, somewhere has your email address? Or phone number? Or street address? Or car registration number?
Re:More evidence by Anonymous Coward · 2013-02-21 18:26 · Score: 0

So you found the original uploader? Or simply one of many who seed the file? And the suit does what? Make up for lost sales? Deter future seeders? How is any of this helping a creator's survivability?
Re:More evidence by Anonymous Coward · 2013-02-21 19:06 · Score: 0

I am no fan of the copyright trolls, but I don't think making it completely impossible to track down copyright infringement cases is fair either.
It's not impossible, but it's difficult. Just because technology has made a particular crime more easily perpetrated without detection doesn't mean it's time to give up some of our rights to ensure that enforcement doesn't get "too hard." Crimes alleged to take place behind closed doors with no witnesses are always hard to prove. The way the courts have been handling copyright infringement cases is like convicting the owner of a house for murder after a dead body is discovered in the house during a block party without any evidence of guilt other than merely owning the house at the time the crime occurred.
Re:More evidence by Anonymous Coward · 2013-02-21 19:29 · Score: 0

I believe, too, you can't have it bothways. Either you are liable for what's done with your IP address, or we might as well give up on copyrights altogether. Currently we are in an in-between, cat-and-mouse state, where most people ignore copyrights and occasionally, some sorry bastard is crucified.
Before long, the lawmakers will have to choose: police all Internet traffic or abolish the copyright. I'm rooting for the latter.
Re:More evidence by xenobyte · 2013-02-21 23:23 · Score: 1

About license plates... Although it's still rampant with theft of these (to be put on other cars so they can steal gas or commit other crimes), downright fake plates are starting to get big. If you steal someone's plates, they're bound to be missed and reported stolen. If you instead copy the plates from a similar car, you can get away with it for a long time, and would even pass a cursory police check (until you commit crimes with it of course).
You don't even have to mess with cardboard, stencils and paint - there are sites on the internet where you can buy any license plate you want (any state, any country) with any number you want, no questions asked. They are very good and often impossible to distinguish from the real thing.
So the real owner gets blamed for the gas theft etc. - until it becomes obvious that there's two almost identical cars with the same license plate.

--
"For every complex problem, there is a solution that is simple, neat, and wrong." -- H.L. Mencken (1880-1956) --
Re:More evidence by gnasher719 · 2013-02-21 23:38 · Score: 1

So the real owner gets blamed for the gas theft etc. - until it becomes obvious that there's two almost identical cars with the same license plate.
My thoughts on that: 1. There should be a register of suspected duplicated license plates, similar to stolen cars. You should be able to put yourself on that register, possibly adding what's your way to work. A car should be flagged when it's in the register like a stolen car, except a police officer would know that chances are at least 50% that the car is legit. 2. If person X legitimately owns a license plate, then they should be able to demand to be handed over any car using that license plate.
Re:More evidence by gstoddart · 2013-02-22 02:19 · Score: 1

What should have happened was a motion for discovery be granted before the case was dismissed.
Based on what? An IP address? If all you have is an IP address, you don't have enough to go through a discovery motion is what the judge is telling them.
I would expect the burden of proof to be much higher than "we have an IP address" before they drag in all of his stuff and do discovery on it.
We know from past news coverage that their way of gathering this evidence cab be suspect and not always accurate.
There's no way someone should have all of their computers confiscated and examined based on a tenuous bit of evidence that hasn't been objectively evaluated.
Especially when the best they can say is something to the effect of "since your name is on the account, you're the most likely infringer".
A motion for discovery needs more evidence than "we say so", because it's expensive and disruptive for the defendant, and there hasn't been enough evidence presented to support it. Letting them do it on the thin evidence they've been using gives them the power to conduct fishing expeditions and go straight to the intimidation tactics.

--
Lost at C:>. Found at C.
Re:More evidence by MobyDisk · 2013-02-22 05:12 · Score: 1

I would think an IP address would be exactly what you would need to invoke discovery. Suppose someone threw a baseball through my window, then ran into a house. I want to sue, but I don't know the individual. Would it be reasonable for a judge to say "Well, if you don't know the name of the individual, you can't sue." That would be silly. It would make more sense to search the house for a baseball glove to help identify the individual.
In another thread, someone suggested that perhaps only the police can do this. Maybe that's the key thing: discovery requires already knowing the individual. But in a criminal case, the police don't have to know the individual in order to get a warrant.
Re:More evidence by Anonymous Coward · 2013-02-23 01:57 · Score: 0

> Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file?
Since downloading a file is completely legal in all cases, yes.

Re:If these cases involved guns.... by BradleyUffner · 2013-02-21 08:59 · Score: 1, Flamebait

Want a simple correlation? If you force gun owners to register their purchase, and then hold the registered owner responsible for any crimes committed with that gun. Bring that up in a trial and then get your popcorn as your local politician tries to explain his loyalty to both sides.

A single IP can be used by many people at the same time. Some of them can even be out of sight of each other. This doesn't hold true for guns.

Re:If these cases involved guns.... by Sarten-X · 2013-02-21 09:01 · Score: 2

This isn't a particularly big deal. The "IP address isn't a person" argument has been brought up in cases before, but it's just never mattered. In previous cases I've read about, there was other evidence, such as the infringing material being found on the defendant's computer, or usernames related to the person's real name.

Similarly, a gun registration doesn't mean the owner's automatically responsible for any crimes, but it does certainly put the owner under suspicion, and may be probable cause for a more thorough search.

--
You do not have a moral or legal right to do absolutely anything you want.

Re:If these cases involved guns.... by medcalf · 2013-02-21 09:01 · Score: 1

By analogy, I (or more aptly, the *AA) could express astonishment that you give out your wifi password to everyone who visits your house. I don't see that being a remotely useful argument.

--
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:02 · Score: 0

Correlation? I do not think it means what you think it means.

Anyway, there's also a difference between a civil case and a criminal case, might want to look that up. Or perhaps if your car gets stolen and used for drug trafficking, you should be held responsible because your vehicle was used.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:03 · Score: 1

Guns can be stolen, or even "borrowed" without your knowledge or consent.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:06 · Score: 0

That's not a simple correlation. Wifi is considered a polite gift to visitors, and a necessity for roomates/family. You don't loan your guns or cars to your guests, though (I hope to God, at least, you don't), and you should be careful about letting roomates or family use such things with no supervision.

I'm fine with giving someone access to a few alpha-numeric characters that lets them check facebook. Not fine with giving someone a lethal weapon or a piece of metal that weighs a ton and propels itself an order of magnitude faster than a human.

Re:If these cases involved guns.... by Marxist+Hacker+42 · 2013-02-21 09:06 · Score: 3, Interesting

If he is significantly rural, he might not be running a wifi password at all. My brother's wifi is barely accessible outside of his house, let alone the .75 miles between his house and the nearest public road, so he does not bother with it.

In comparison, I keep a strong wifi password, as I just found out that my wifi is line-of-sight accessible from the picnic pavilion in the park across the street (literally line of sight, the router is in the living room with only a few panes of glass between).

--
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:06 · Score: 0

it's still a valid point unless you are supervising them with the weapon and have a way to prevent them from doing anything illegal with them. you make the same assumption with letting someone use your firearm that you do letting someone use your wifi: they will use good judgement and obey the law. The consequences of misusing a firearm vs. misusing an IP address are usually radically different, but still a valid comparison. Also, people can steal your guns, just like people can leech off other people's wifi. (Before you say "my wifi is secured", etc. bear in mind just how much unsecured wifi there is out there.)

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:08 · Score: 0

Ever hear of military attack drones?
Nitpicking aside, that particular flaw in the analogy only servers to reinforce his point.

Re:If these cases involved guns.... by Spiridios · 2013-02-21 09:09 · Score: 4, Insightful

Want a simple correlation? If you force gun owners to register their purchase, and then hold the registered owner responsible for any crimes committed with that gun. Bring that up in a trial and then get your popcorn as your local politician tries to explain his loyalty to both sides.

A single IP can be used by many people at the same time. Some of them can even be out of sight of each other. This doesn't hold true for guns.

With Carrier-grade NAT, a whole lot of people may be using the same IP address at the same time, and they wouldn't even have to be in the same state...

Re:If these cases involved guns.... by BronsCon · 2013-02-21 09:10 · Score: 1

An internet connection can easily be shared between multiple simultaneous users. When 5 people can aim and fire 1 gun at the same time, I'll agree with you.

--
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.

Kind of depends, doesn't it? by aklinux · 2013-02-21 09:12 · Score: 0

If I knowingly loan one of my guns or vehicles to someone I know, or should know, to be a problem, I would expect to be held liable to some degree. If, however, someone steals one of these things or otherwise accesses them without my permission, the liability is theirs.

Re:Kind of depends, doesn't it? by NoKaOi · 2013-02-21 09:33 · Score: 2

If I knowingly loan one of my guns or vehicles to someone I know, or should know, to be a problem, I would expect to be held liable to some degree. If, however, someone steals one of these things or otherwise accesses them without my permission, the liability is theirs.
And what if you loan out your hunting rifle to your friend to go hunting, and they end up murdering somebody with it, should you be held responsible? What if you loan your car to your friend to go grocery shopping and they end up running a red light and killing somebody, should you be liable? I think only if you have a reasonable belief that the individual might use it for that purpose. How about if somebody steals your car or gun and does the same?
One problem with WiFi is that you don't necessarily know if somebody else is using it. In the case of a car or a gun, you generally know if it gets stolen because it's not where you left it. Sure, you can lock your doors, but somebody can always break a window. With WiFi, sure, you can always click the little password checkbox, but it's still not hard for somebody to break into it. In most situations (that is, most people with most setups) they're not going to be able to tell if somebody else was using their WiFi.
Another car analogy...if your car runs a red light with a red light camera, or speeds and gets caught by photo radar, if somebody else is driving your car then should the burden of proof lie on you to prove somebody else was driving, or on law enforcement to prove you were driving?

Huh! by bogaboga · 2013-02-21 09:16 · Score: 1

This isn't a particularly big deal. The "IP address isn't a person" argument has been brought up in cases before, but it's just never mattered

It would be absurd to even insinuate that an IP is a person. From what I know, an IP doesn't have "life" or a "state of mind," so how can it be a person?

An IP in this context could be used to narrow down a set of suspects. In other words, it's just a set of numbers, right?

Re:Huh! by obarthelemy · 2013-02-21 10:14 · Score: 1

But.. IPs are corporations, and corporations are people, so.....

--
The Cloud - because you don't care if your apps and data are up in the air.
Re:Huh! by Dogtanian · 2013-02-21 10:26 · Score: 1

From what I know, an IP doesn't have "life"
Well, yeah, but neither do most Slashdotters, so what's your point? ;-)

--
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).

Not yet by 03Cobra · 2013-02-21 09:28 · Score: 2

The pdf states that only claim 3 (negligence to secure ones internet connect) was dismissed. Claims 1 and 2 were deferred back to the plaintiff to provide more evidence to provide the claim that the defendant commited infringment and willingly redistributed copyrighted material. They plaintiffs have 20 days from the ruling to provide thsi evidence.

Re:Not yet by NewYorkCountryLawyer · 2013-02-21 09:31 · Score: 5, Informative

BTW, after this ruling, the plaintiff withdrew the entire case. Probably hoping to find a less intelligent judge somewhere else.

--
Ray Beckerman +5 Insightful
Re:Not yet by Nefarious+Wheel · 2013-02-21 10:34 · Score: 1

BTW, after this ruling, the plaintiff withdrew the entire case. Probably hoping to find a less intelligent judge somewhere else.
I suspect so. A burglar will always prefer the house with the poorest security.

--
Do not mock my vision of impractical footwear
Re:Not yet by Anonymous Coward · 2013-02-21 19:59 · Score: 0

They want to prevent it from getting to the court of appeals where it might set a precedent.

This is big by NewYorkCountryLawyer · 2013-02-21 09:29 · Score: 5, Informative

This ruling is huge.

Ever since I first got involved in fighting the RIAA's litigation campaign, and blogging about it, in 2005 [that's almost 8 years ago] I've been arguing that it is not a sufficient basis to bring a lawsuit against someone that an internet access account for which he or she pays the bill was used by someone for a copyright infringement. Even though I, and lots of other lawyers, and lots of other techies, and lots of other people from all walks of life knew this, I have never -- until this ruling -- seen a JUDGE dismiss a complaint because of this.

If those of you who are saying this is "not a big deal" or "was expected" know of any prior decisions like this, please show them to me. Otherwise, STFU about it not being big. After about 10 years and hundreds of thousands of frivolous lawsuits, finally a judge has pointed out that the Emperor is wearing no clothes.

It is one of the most newsworthy copyright posts I have ever seen on Slashdot.

--
Ray Beckerman +5 Insightful

Re:This is big by Anonymous Coward · 2013-02-21 09:53 · Score: 1

Ray, thank you for your hard work and efforts.
captcha: triumphs
Re:This is big by QuasiSteve · 2013-02-21 10:07 · Score: 3, Interesting

This ruling is not just huge - if upheld all the way, this could be the death knell for any hope of enforcing copyrights where it comes to individual users/distributors as long as the internet or structures like it (a potentially shared resource as the only identifying element) is involved.
This is basically me, downloading all of the movies currently on offer on TPB, putting them on a server, and seeding them for as long as that system will last, sharing these movies with hundreds of thousands of people during the course of its operation, with there being nothing for the copyright holders to even start forming litigation around short of a John Doe; which doesn't get them very far if a judge is just going to say "who is John Doe?" and the answer is "we don't know, that's why it's a John Doe."
They can write to my ISP, and even my ISP would have to concede that while the complaining party may very well have an IP address and a timestamp, and my ISP may very know which account that is assigned to, due to the fact that even my ISP doesn't know who - in terms of a legal entity - actually used the account.
At worst, my ISP has a clause saying that the account may be closed if they have a reasonable suspicion that I am indeed performing the above - but they'll likely still try to shy away from doing so.
The question is, how is this going to be countered? If there's one thing we've learned over time it's that the copyright holders will not just let the inevitable come easy.
Will laws be constructed, or (re)interpreted, such that the account holder can be held legally accountable for that which is done through the account? Will only authorized modems be allowed on ISP networks with users wishing to use these modems required to use a token that identifies the person per-packet up to the ISP and make them legally responsible to take great care that this token remains only with them? If this, will lobby groups (and I'm not just thinking of 'big content' here) then push to have this per-packet identification be sent out across all of the internet so that infringement of all sorts can be dealt with directly?
Yes, this is a victory on many levels for the great majority of internet users (albeit just a little more for 'pirates' who stand to benefit the most). Just don't be surprised if it's going to get worse long before it's going to get better.
That said, there's that 'if' at the top of my comment. That's a big 'if'.
On a side note: Good to see you again, NYCL - it's been a while.
Re:This is big by TheSpoom · 2013-02-21 10:12 · Score: 1

Ray, given that they withdrew the case, does that still make this ruling precedent? And on what level of precedent? Federal, or just this circuit?

--
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
Re:This is big by NewYorkCountryLawyer · 2013-02-21 10:16 · Score: 2

Ray, given that they withdrew the case, does that still make this ruling precedent? And on what level of precedent?

It's not binding precedent, but IMHO it represents strong persuasive authority.

--
Ray Beckerman +5 Insightful
Re:This is big by Anonymous Coward · 2013-02-21 10:17 · Score: 0

Yes, but the RIAA/MPAA will quickly write some legislation -and have one of their paid lackies insert it in some piece of important but otherwise totally unrelated bill- that makes the account holder *responsible* - something similar happens in lots of jurisdictions with automobiles: license plate holder is responsible and will have to prove they were *not* the driver.
Re:This is big by NewYorkCountryLawyer · 2013-02-21 10:18 · Score: 1

Good to see you again, NYCL - it's been a while.
Nice to see you, too, Quasi :)

--
Ray Beckerman +5 Insightful
Re:This is big by MobyDisk · 2013-02-21 10:33 · Score: 2

Hey NYCL,
So I got beat up here at Slashdot for suggesting that the judge should have granted discovery. Can you clarify here for me? Based on my reading of the ruling, the judge said that they could refile if they had additional evidence pointing to an individual. But it also seemed to deny any possibility for discovery. How could they tie it to an individual if they can't file for discovery? They could have looked at network logs, or hard drive contents, etc. and possibly proved who downloaded the file. I'm not saying it would be worth it to do so, but it doesn't seem just to set a precedent that you must identify the individual, but you may not access any of the evidence that would help you to do so.
Ex: Suppose someone wearing red gloves broke my window then ran into 100 Mockingbird lane. I don't think I could sue an address. But it does seem sensible that I could bring a case and request discovery to find the red gloves within the house, if I believed that the gloves could help me identify which individual in the house. Perhaps the gloves were in the 12-year old son's bedroom? Or perhaps in the dad's closet? That seems pertitent. In this case, their dismissal seemed to forbid the equivalent action.
Re:This is big by NewYorkCountryLawyer · 2013-02-21 10:46 · Score: 4, Informative

Moby, the thing is you're supposed to have done an investigation BEFORE bringing a federal lawsuit. When a lawyer signs his name to the complaint he's affirming that he's done that and has EVIDENCE that the DEFENDANT committed a copyright infringement.

In the federal rules there's no procedure for bringing a lawsuit against someone to give yourself the ability to conduct an "Investigation" with all the coercive powers of a court at your disposal.

This judge just called the plaintiff's lawyer's bluff, which is why the lawyer put his tail between his legs and ran.

--
Ray Beckerman +5 Insightful
Re:This is big by Nefarious+Wheel · 2013-02-21 10:48 · Score: 1

This ruling is huge... It is one of the most newsworthy copyright posts I have ever seen on Slashdot.
[X] Strongly Agree. It's been a long time coming, hasn't it? Let's hope the long summer of love for the RIAA is over. Too many people screwed over, too many peoples' lives turned upside down by this latest Inquisition. File-sharers under every bed. Let it stop now.
"Senator, may we not drop this? We know he belonged to the Lawyer's Guild...Let us not assassinate this lad further, Senator; you've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?"
-- Joseph Welch, Army-McCarthy hearings (from Wikipedia)
Ray, dude, you're still on my hero list.

--
Do not mock my vision of impractical footwear
Re:This is big by Jah-Wren+Ryel · 2013-02-21 10:54 · Score: 1

This ruling is huge.
I agree. It is so important that we should fully expect that MAFIAA lobbyists to now focus their efforts on getting a bill passed to make the owner of the account legally culpable. They even have a case to point at and say, "this is a loophole in the currebnt law, just look how this court ruled."

--
When information is power, privacy is freedom.
Re:This is big by tlhIngan · 2013-02-21 10:58 · Score: 1

Ever since I first got involved in fighting the RIAA's litigation campaign, and blogging about it, in 2005 [that's almost 8 years ago] I've been arguing that it is not a sufficient basis to bring a lawsuit against someone that an internet access account for which he or she pays the bill was used by someone for a copyright infringement. Even though I, and lots of other lawyers, and lots of other techies, and lots of other people from all walks of life knew this, I have never -- until this ruling -- seen a JUDGE dismiss a complaint because of this.

How would this be affected by the rollout of IPv6 where now an IP address can be used to identify an individual computer (assuming no NATv6)? Would it mean that if you used IPv6, you could have one of your PCs siezed and forensically analyzed (to see if it was a bot doing it or someone at the console)?
After all, I'm pretty sure if any of my PCs were analyzed for activity, it could be determined that yes, I was the user.
At least with IPv4, it's shared between so many devices that to nail down which one of them would be impractical especially with WiFi. With IPv6 being able to identify an individual machine... and even if it was done by someone off premises using WiFi (i.e., the machine no longer exists on the network).
Would the media industry suddenly be pushing for mass IPv6 deployments so instead of only identifying a subscriber, you can identify a subscriber's device (PC, laptop, smartphone, etc) as the culprit and use that to identify the real owner?
Re:This is big by OhANameWhatName · 2013-02-21 11:06 · Score: 1

I'm kind of with you, and I'm kind of not

Working for 10 years to have a tiny part of the legal system finally say "Yeah, it's common sense" sounds like beating your head against a brick wall. The facts here are that copyright law is so broken that hundreds of thousands of frivolous lawsuits could make it to court in the first place. It's not a matter of finding the right way to prosecute or defend copyright claims, it's a matter of working around the broken copyright laws to completely shutdown the monopolistic business practices of these abusive power brokers.

When the law becomes ridiculous, don't argue about frivolities, undermine it. Arguing against it in a court just serves the ridiculous law because it instills it with your own belief.

2c
Re:This is big by Abalamahalamatandra · 2013-02-21 11:20 · Score: 1

Not a lot of change that I can see.
With IPv6, the smallest subnet that will be assigned is a /64 - meaning 64 bits of host addresses are possible within that subnet. Originally it was envisioned that those 64 bits would be the MAC address of the host, but people had a wee bit of a problem with that privacy-wise, for just this reason - exposing the MAC address of a system on the public Internet.
So, many, if not most, hosts nowadays choose a random value for their host ID, do the IPv6 equivalent of a gratuitous ARP to make sure it's not in use already (highly unlikely), and if not they use it. Many also change their address periodically by doing this again.
Nice advantage here: unless a given network is using DHCPv6 and logging the requests, this is all done on-the-fly with no logging and no discovery possible.
Re:This is big by twmcneil · 2013-02-21 11:26 · Score: 1

Big Grats on this Ray! I know you've been preaching this for a long time. Good to see it finally getting some traction with the Courts.

Am I also to believe that progress is being made with the improper joinder issue as well?

--
"The ferrets, they're every where I tell you!"
Re:This is big by gnasher719 · 2013-02-21 11:37 · Score: 1

Ever since I first got involved in fighting the RIAA's litigation campaign, and blogging about it, in 2005 [that's almost 8 years ago] I've been arguing that it is not a sufficient basis to bring a lawsuit against someone that an internet access account for which he or she pays the bill was used by someone for a copyright infringement.
Just a few days ago, there was this discussion here on Slashdot about some guy who can't manage to keep a leech of his network:

http://ask.slashdot.org/story/13/02/20/2058235/ask-slashdot-dealing-with-an-advanced-wi-fi-leech
Re:This is big by Anonymous Coward · 2013-02-21 12:12 · Score: 0

All the pre-lawsuit investigation has to reveal under the Rules, and be pled under Twombly, are facts giving rise to a plausible claim.
As much as I think these suits are complete bullshit, an IP address coupled with a few other facts, seems plausible enough for me in most instances to satisfy the Rules and Twombly and get into discovery to get definitive proof. What would you suggest, other than an IP address, could a party possibly offer to pursue these claims in a pre-suit investigation if they cannot compel a deposition? I don't think any lawyer would suggest the standard for filing suit is scientific proof.
Re:This is big by Anonymous Coward · 2013-02-21 12:14 · Score: 0

Lawyer here, not a tech expert, but the rationale would apply even if you could identify a particular computer, because like the phone hypothetical the judge uses, any number of people could use a computer (in the same way any number could use an IP address). Of course, the more narrow the inquiry, the more a fact finder is likely to determine that X is indeed an infringer.
Re:This is big by Anonymous Coward · 2013-02-21 12:59 · Score: 0

NYCL, if gathering evidence requires legal intervention, eg. Confiscating hard drives, entering premises, searching ISP logs etc, how do you propose this happens given that search warrants cannot be obtained for civil cases?
Are you suggesting that the US introduce civil search warrants?
Or that companies should have free access to this private data without a warrant?
Or perhaps that copyright infringement should follow criminal procedure in ALL cases?
Re:This is big by adolf · 2013-02-21 14:13 · Score: 1

Are you suggesting that the US introduce civil search warrants?
Or that companies should have free access to this private data without a warrant?
Or perhaps that copyright infringement should follow criminal procedure in ALL cases?
Perhaps he's merely suggesting that it ought to be impossible, given the rules that already exist.

--
Kid-proof tablet..
Re:This is big by Anonymous Coward · 2013-02-21 14:20 · Score: 0

In other words; you are telling MobyDisk:
(I am going to expand your example Moby).
The man with red gloves smashed your window and stole your iPod; THEN ran into the house in question.
You saw "red gloves holding your iPod" go into the house.
You can't go to a judge and say: "The home owner of that house stole my iPod" and expect him to allow you to search the house.
What you CAN do; is go to the POLICE and file a report: "Someone with red gloves stole my iPod, I saw them run into the house at 100 mockingbird lane".
The POLICE can go to the judge with this evidence; and ask a judge "Can we search this house for stolen property". At which point the judge will weigh up the pros and cons.
The police are granted this power; because presumably they collect enough evidence before going to the judge, and they are supposed to show all the evidence they have that your iPod is in that house, and the judge decides if it is enough for the police to go and check.
What this ruling says is; just because you saw an IP address running away with your copyright; doesn't mean in a civil court you can convince them to let you confiscate / investigate someone else.
is that right NYCL?
Re:This is big by sexybomber · 2013-02-21 15:11 · Score: 1

I haven't much to say, other than from one New York lawyer to another, BIG UPS. Keep doing your thing, Ray. You'll wear the bastards down eventually!
Re:This is big by NewYorkCountryLawyer · 2013-02-21 16:27 · Score: 1

Big Grats on this Ray! I know you've been preaching this for a long time. Good to see it finally getting some traction with the Courts. Am I also to believe that progress is being made with the improper joinder issue as well?
Absolutely, just today I posted another of many decisions granting severance and dismissal as to all John Does other than Doe 1:

--
Ray Beckerman +5 Insightful
Re:This is big by Anonymous Coward · 2013-02-21 18:24 · Score: 0

It ought to be impossible to gather evidence of copyright infringement? Really, that's your argument? Crawl back into your cave, anti-copyright troll.
Re:This is big by MobyDisk · 2013-02-22 04:40 · Score: 1

So where does discovery come in?
Re:This is big by MobyDisk · 2013-02-22 04:42 · Score: 1

Yes, this is precisely what I am trying to understand. I thought you could go to the judge, file for discovery, then get the information you need to prove your case.
Re:This is big by cundare · 2013-02-22 09:00 · Score: 1

Jeez, stop being such an arrogant blowhard, Ray. You give us IP lawyers a bad name. And, yes, there have been multiple cases, primarily in district courts and I think all within the last 18 months, that resulted in dismissal on similar grounds. Off the top of my head, I'd say that the most widely publicized ones, which you really ought to be aware of, cropped up during last year's BitTorrent RIAA-like mass infringement suits. There was one in Florida, I believe, in which the judge dismissed with famously dismissive remark (sorry!) "An IP address is not a person!" and, in the D.C. for the Central District of CA (I think the parties were something like "Celestial v. Swarm"?) In that case, the judge dismissed complaints against over a dozen defendants on the ground of lack of personal jurisdiction b/c -- even more encouraging than the case you cite -- he noted that a mere router IP address wasn't even sufficient to demonstrate that the defendants lived in the state.
And "STFU"?? Very professional, Wiley E. Coyote. You're no smarter than the rest of the people on this ls, so act like a grown up.
Re:This is big by Arker · 2013-02-22 12:07 · Score: 1

It ought to be very difficult to gather evidence of copyright infringement that is occuring non-commercially, in a private space like your own home, absolutely. It is similarly difficult to gather evidence for any number of other civil offenses that happen every day. This is normal and as long as we respect personal privacy that wont be changing. Civil law isnt supposed to control everyone at all times, only to offer judgement and compensation in cases where the harm is large enough and public enough to justify the expense of suit and to allow necessary evidence to be gathered without police powers.

--
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:35 · Score: 1

Except a gun isn't wifi. Seriously, it's not a valid point. Wifi allows you to... download pirated content. Guns allow you to perform numerous highly illegal activities, as well as potentially shooting yourself if someone's really just handing their gun out to visitors.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:36 · Score: 0

So if an IP couldn't be used by more than 1 person simultaneously that would make a difference?

Lawyers by Anonymous Coward · 2013-02-21 09:37 · Score: 0

Even a broken clock is right twice a day (yeah you know where you can stick that digital watch too).

Now get off my lawn.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:39 · Score: 0

An IP address should not be sufficient evidence to convict a person of anything.

Likewise, a gun serial number should not be sufficient evidence to convict a person of anything.

What exactly was your point again?

(Keywords being "should not")

This has been my argument for 10 years... by sdguero · 2013-02-21 09:45 · Score: 1

How can you prosecute someone for infringement based on an IP address? IP address doesn't mean jack sh*t. Unless you have the person's computer with the infringing file, and video of them using said computer at the time the file was downloaded/uploaded, it shouldn't be possible to convict somebody of infringement.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 09:46 · Score: 0

An internet connection can easily be shared between multiple simultaneous users. When 5 people can aim and fire 1 gun at the same time, I'll agree with you.

Why limit yourself to the small stuff - crew served weapons FTW!

IP Address, Car... by Wolfling1 · 2013-02-21 09:49 · Score: 4, Insightful

If you substitute the word 'Car' for the words 'IP Address', the ruling reads:

'just because a CAR is registered to an individual does not mean that he or she is guilty of infringement when that CAR is used to commit infringing activity.'

A whole bunch of 'speed camera law' is in exact opposition to this ruling.

I think that the ruling is positive and constructive - but I also think that it will be overruled at a higher level for the exact same reasons that the speed camera law is in place.

Re:IP Address, Car... by Anonymous Coward · 2013-02-21 10:11 · Score: 1

I recall watching one of those traffic court shows, where the defendant presented evidence that he was in Mexico on vacation at the time of the infraction caught by the speed camera.
The judge found him guilty anyway, citing the law that specifically stated that the owner of the vehicle must appear or pay the fine as the alleged violator. It didn't say that the owner was responsible, merely that he would have to appear if he contested the fine. (Which he did.)
The judge fined him for being the alleged perpetrator, despite the evidence that he was thousands of miles away. Don't these idiots know the basic vocabulary of the laws they're supposed to be interpreting?
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 10:39 · Score: 0

And that is why speed camera fines are levied against the license and registration of the car and plates, not against the car's owner. The responsibility for paying the fine is levied against the person who is responsible for the registration.
The equivalent would be if a MPAA fine was levied against an IP address, and the person paying for that ISP account had to pay the fine before renewing their internet service for another month.
Of course speed cameras and license plates are government-controlled, licensed and tested. Spoofing IP addresses is relatively easy and consequence-free, but spoofing a license plate is a serious crime. If at some point in the future fines were to be levied against an IP address rather than at a person who commits a misdeed, then I would expect IP addresses and copyright-monitoring services to be as carefully-controlled as license plates are. This simply must not happen. Copyright infringement should never be granted equal status to vehicular crime, considering the potential victims of both.
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 11:15 · Score: 0

If you substitute the word 'Car' for the words 'IP Address', the ruling reads:
'just because a CAR is registered to an individual does not mean that he or she is guilty of infringement when that CAR is used to commit infringing activity.'
A whole bunch of 'speed camera law' is in exact opposition to this ruling.
I think that the ruling is positive and constructive - but I also think that it will be overruled at a higher level for the exact same reasons that the speed camera law is in place.
One difference is that in the case of a speed camera, they get a picture not just of the car's license plate (IP Address) but also of the person behind the wheel (user). In this case, there is no photo of the driver (user) and therefore no proof that the owner of the car was driving at that point in time rather than say one of his kids, wife, uncle, etc. In a criminal case that would mean no conviction due to not crossing the "beyond a reasonable doubt" threshold. Therefore I disagree with the odds of the ruling being overturned.
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 11:30 · Score: 0

Don't most such cameras also photograph the driver?
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 15:05 · Score: 1

>A whole bunch of 'speed camera law' is in exact opposition to this ruling.
Yes. However, the difference is that the speed camera laws (or usually red light camera laws) are not based on care and control of the vehicle, but rather, providing permission to use the vehicle. A solid defence is to show that you reported your vehicle to the police as stolen before the vehicle ran a red light. A less solid, but workable defence is to show that your vehicle was reported stolen after the offence ocurred, but that you last used the vehicle before the offence. Otherwise, it is assumed you permitted someone to drive the vehicle (since you never reported it stolen) and thus you are liable for what laws the vehicle breaks.
However, since you didn't personally go through a red light, laws correctly prevent the offence from appearing on your personal driving record or on your insurance record.
Equally, if the rule for copyright infringement was not that you have to possess the pirated material, but rather that the pirated material must have been on your network, then the analogy would work. Fortunately, the only good thing that came from the DMCA and its ilk is that having someone else store pirated material on your network/computers is not in an of itself illegal, so long as nobody can prove *you* stored it there, and that when requested, you remove the infringing material.
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 15:07 · Score: 0

The judge correctly interpreted that the law assumes the owner of the vehicle permitted someone else to drive it (and thus took responsibility for the usage of the vehicle) unless the owner reported it stolen. Let me guess, the owner lent the vehicle to a friend, and the owner doesn't want to have him charged with grand theft auto? The cost of playing the "lend my car to anyone and everyone" game is that you'll end up paying their tickets. Which is why I never lend my car to anyone except my wife (since whatever tickets she gets our family would be paying for anyways, so there's no difference to me). Yes, that includes not lending it to the rest of my family (the children don't drive yet, but no way I'd lend it to my parents or any of the in-laws).
Re:IP Address, Car... by rahvin112 · 2013-02-21 15:21 · Score: 1

That's exactly why many of us oppose those kind of laws. A significant number of places that use those cameras require an identifiable picture of the driver. Those that don't IMO are a severe constitutional breach that needs to be challenged up to the supreme court of necessary. The problem is that the fines (and lack of a hit to your drivers license or insurance) of make it more worthwhile to simply pay the fine. It's going to take some wealthy person with the will to spend 10-100X more than the fine to fight it and in the end the state will probably just drop the case to prevent a precedent.
I personally believe this is why you've seen action by groups of ordinary people to get their politicians to make these systems illegal. My state banned them entirely because of how easily they could be used to abuse people for financial reasons.
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 17:27 · Score: 0

In most jurisdictions traffic offenses are not criminal or civil in nature, they are infractions. That is why you have a driving record AND a criminal record AND court records. They are all different beasts with their own set of rules for teeth. An intellectual property case will have no sway in traffic court.
Nobody ever said the justice system was logical.
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 17:33 · Score: 0

Let me guess, the owner lent the vehicle to a friend
It was a company vehicle being driven by one of his employees, so not quite.

the law assumes the owner of the vehicle permitted someone else to drive it (and thus took responsibility for the usage of the vehicle) unless the owner reported it stolen.
That may very well have been the case, but it certainly wasn't presented that way. The law cited was read verbatim in the court room and it made no mention of secondary liability (or any liability for that matter.) Either the Judge was stretching the law to fit his decision, or the pertinent legalese was cut in the editing room.
I tracked down the episode name if anyone is interested in finding it and clarifying the situation.
Speeders Fight Back
Episode: Ticket Vacation
Re:IP Address, Car... by Anonymous Coward · 2013-02-21 17:38 · Score: 0

He knows who had access to his vehicle and refused to give thier name(s) therefore he has accepted that he is to pay the cost on their behalf. The rules are quite clear on that count in a number of jurisdictions that have these types of speed / red light camera laws.
Re:IP Address, Car... by rdnetto · 2013-02-22 12:25 · Score: 1

There is a flaw in this analogy that none of the sibling posts seem to have picked up on: only one person can (legally) display a given number plate / be in control of a car at once, whereas multiple people can and do share IP addresses. A better analogy would be "just because a person is on a bus does not mean they are guilty of infringements committed on that bus."

--
Most human behaviour can be explained in terms of identity.

Re:If these cases involved guns.... by thunderclap · 2013-02-21 09:52 · Score: 2

Actually it is valid. Wifi can hacked into and used without permission to download copyright protected content (you can't pirate content as Piracy involves ships and water. No matter how much mainstream media wants you to believe you can) That is what amusing me about your point. Guns can indeed allow engagement highly illegal activities like murder, theft, kidnapping and rape. Wifi can allow pedophilia, ID theft, collaspe essential servers that control electricity, water, sewage etc which can lead to death and destruction. It was proven that a computer virus allowed the destruction ot the centrifuges that were processing the uranium for the iranians. So both can cause the same among of chaos. Actually in the right location at the right time, a open wifi point could cause more mayhem than a marksman ever could.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 10:01 · Score: 0

i have a crew-served anti-aircraft gun at my house, errr compound, you insensitive clod!

Re:If these cases involved guns.... by aztracker1 · 2013-02-21 10:04 · Score: 2

"stolen wifi" can't kill a clerk at the convenience store...

--
Michael J. Ryan - tracker1.info

Re:If these cases involved guns.... by ThomasBHardy · 2013-02-21 10:05 · Score: 4, Insightful

I have two wifi points. One permits access to my network and is highly secured, encrypted, mac filtered, yada yada yada The other is an unencrypted point that only has access to the internet for guests to use and no internal network access. I give the trivial password to anyone who visits so they can connect their phones, laptops, tablets etc to it. The **AA can be as surprised as they like, I'm not bound by their concept of how wi-fi should be configured.

--
Warning: Teh poster of this messaeg is lysdexic

Sadly not the case in NZ by Mistakill · 2013-02-21 10:15 · Score: 1

The MPAA/RIAA when sponsoring the creation of the copyright law change in New Zealand, managed to get it passed that the SUBSCRIBER is the person legally responsible for what happens on the account, no matter what...

and if that's not bad enough, if you're accused of downloading a file, a correctly filled in complaint form from the IP holder is deemed sufficient proof the offense occurred (3 strikes btw)... i.e, if someone accused YOU of downloading Justin Bieber - Baby.mp3 yesterday, could you prove you didn't? I certainly haven't found someone who has figured out a way

Re:Sadly not the case in NZ by OhANameWhatName · 2013-02-21 10:57 · Score: 2

if someone accused YOU of downloading Justin Bieber - Baby.mp3 yesterday, could you prove you didn't?
No, but I could plead insanity.

Re:If these cases involved guns.... by obarthelemy · 2013-02-21 10:16 · Score: 1

easy: IP addresses are mentioned neither in the constitution nor in the bible, which clearly mean the state can do whatever with them.

--
The Cloud - because you don't care if your apps and data are up in the air.

Re:If these cases involved guns.... by obarthelemy · 2013-02-21 10:20 · Score: 1

what difference does it make though ?

--
The Cloud - because you don't care if your apps and data are up in the air.

Re:If these cases involved guns.... by RatherBeAnonymous · 2013-02-21 10:21 · Score: 1

It can if it is used to hack a SCADA system. Granted, it would be neigh impossible to target a specific person.

Re:If these cases involved guns.... by BronsCon · 2013-02-21 10:28 · Score: 1

When I'm using my gun, I know, beyond any doubt, that nobody else is; when I'm not using it, it's locked up securely. When I'm using my internet connection, I know I've taken reasonable steps to secure it and only allow authorized users, but I don't have the same level of assurance that those measures haven't been bypassed, and it's no more secure when I'm not using it than when I am. The number of possible users and means by which access can be gained makes all the difference.

--
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.

Re:If these cases involved guns.... by Fned · 2013-02-21 10:46 · Score: 1

A single IP can be used by many people at the same time. Some of them can even be out of sight of each other. This doesn't hold true for guns.

That's not quite as true as it sounds...

"For years the city did ballistic testing on all guns that passed through their control and on all bullets recovered, however, they never did much with those records. On September 20 of 2000, the new commander of the ballistics unit reported on a statistical comparisons made possible by new computer technology. What they found, he said, indicates that the common fear about a new influx of guns flooding streets is deeply misguided. What their data base revealed was that a limited number of guns were fueling a large number of violent crimes. In an 18 month period one gun had zig zagged across the city getting involved in at least a dozen crimes until finally being recovered in an abandoned U-Haul. "

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 10:54 · Score: 1

In comparison, I keep a strong wifi password, as I just found out that my wifi is line-of-sight accessible from the picnic pavilion in the park across the street (literally line of sight, the router is in the living room with only a few panes of glass between).

Get some ceramic window film installed. It'll increase your privacy and reduce your heating costs. On the downside, it'll be a bit of a problem if you use your wireless in your yard, but that sacrifice may be worth it.

Re:If these cases involved guns.... by RoknrolZombie · 2013-02-21 10:58 · Score: 1

Yet...

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 11:02 · Score: 0

terrible analogy.

nobody is OR CAN use ur guns from the other side of the globe to commit crimes.

Re:If these cases involved guns.... by Abalamahalamatandra · 2013-02-21 11:04 · Score: 1

Wanna bet? VOIP + SWATting = win.

Great... as far as it goes... by Anonymous Coward · 2013-02-21 11:04 · Score: 0

But that does nothing about TANGIBLE property law being applied to the metaphor for property that results from IP laws, or the court system being wielded like a cudgel to prop up an obsolete economic paradigm, namely physical media acting as the gatekeeper for possessing the content that was, once upon a time most efficiently distributed on it.

I wonder if we'll see a day when you're not allowed to THINK about a song or a movie or a book, without having paid for the right to do so. A snippet of a song plays in your head, and you get a bill e-mailed to you. You quote a line from a movie in a private conversation with a friend, you get a bill, and if you don't pay, you get hit up with a suit for "infringement".

Too bad bribery is legal in this country, as long as they use the word "lobbying" to describe it. Maybe if it weren't, we wouldn't have these fucked up laws. Even if they're only debating them, the insult and injury are done by the fact that we pay these politicians their wages, and in exchange for their pay, they debate how best to subjugate us and strip us of our rights. Wish the states paid them, not the federal government, then each state could vote on what percentage of the established maximum to pay their legislator, based on his/her attendance and performance. Ah, to live in an idea world...

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 11:09 · Score: 1

It also makes your windows look like they haven't been washed in a decade.

Re:If these cases involved guns.... by Synerg1y · 2013-02-21 11:11 · Score: 1

I'm almost positive the internet's been blamed for killing people before.

Re:If these cases involved guns.... by cheater512 · 2013-02-21 11:12 · Score: 1

Actually that would be a very interesting configuration in court.

The **AA would not be able to prove what wifi was used to commit the offence, and it makes it even more plausible that you hand out the guest account to anyone including neighbours who perhaps had net issues once.

Re:If these cases involved guns.... by BradleyUffner · 2013-02-21 11:16 · Score: 1

I guess I should have made the key part of my statement bold. That being the "at the same time" part.

The no negligence ruling may be more important by ODBOL · 2013-02-21 11:20 · Score: 1

From the judge's decision:

To the extent that Plaintiff’s negligence claim alleges that Defendant failed to properly secure his internet connection or failed to properly monitor the use of his secured internet connection by others, Plaintiff’s claim fails because there is no underlying duty. One who fails to act to protect another is generally not liable for breaching a duty unless there is a special relationship giving rise to a duty to act. Mid-Cal National Bank v. Federal Reserve Bank of San Francisco, 590F.2d761, 763 (9th Cir. 1979). There is no special relationship between Plaintiff and Defendant which gives rise to a duty on the part of Defendant to ensure, through heightened security measures and hawkish monitoring of internet usage, that nobody uses his internet connection to infringe Plaintiff’s copyright.

This part of the decision applied only to claim 3 of negligence, which was dismissed, not to claims 1 & 2 of copryight infrigement, which were held pending further information. It appears to nix the notion that individuals are required to police Internet connections for which they subscribe, and take liability for the behavior of other users.

--
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/

Re:The no negligence ruling may be more important by Anonymous Coward · 2013-02-22 05:41 · Score: 0

Any chance that could be used to dismantle DMCA?

Was this ruling because the content was porn? by JDG1980 · 2013-02-21 11:32 · Score: 1

While this is a great ruling, I've noticed a recent pattern: most of the cases where judges have come down hard on copyright trolls do not involve material from major studios. They involve pornography, often gay pornography. There are quite a few of these cases chronicled on TorrentFreak. I wonder to what extent the judges are letting their disgust of the underlying material come through in their rulings. Would they be making the same rulings if these people were accused of downloading mainstream music or films?

That said, these precedents can probably be used in other cases, even against major studios, since there is no legal distinction between large and small copyright holders and no copyright-relevant distinction between pornographic and non-pornographic content. I'm willing to take victories against the monolith of "IP" wherever they are available.

Re:Was this ruling because the content was porn? by NewYorkCountryLawyer · 2013-02-21 16:25 · Score: 1

While this is a great ruling, I've noticed a recent pattern: most of the cases where judges have come down hard on copyright trolls do not involve material from major studios. They involve pornography, often gay pornography. There are quite a few of these cases chronicled on TorrentFreak. I wonder to what extent the judges are letting their disgust of the underlying material come through in their rulings. Would they be making the same rulings if these people were accused of downloading mainstream music or films?
Good question. I don't know the answer. It certainly seems that the overt sleeziness of the current crop of plaintiffs -- as opposed to the camouflaged sleeziness of the RIAA plaintiffs -- has alerted the judges to the fact that there's something wrong here.

--
Ray Beckerman +5 Insightful
Re:Was this ruling because the content was porn? by stepdown · 2013-02-21 23:47 · Score: 1

I imagine that where the material is deemed unsavoury a John Doe approach might have better success.

If being publicly accused of downloading pornography is enough to cause embarrassment people might be more likely to settle out of court, regardless of whether they think the case has merit.

I don't see where the judge forbade discovery by ODBOL · 2013-02-21 11:52 · Score: 1

From the post above by MobyDisk:

The problem is that the judge forbids discovery. Apparently no one on Slashdot knows what that means. It means that they are forbidden from obtaining any more evidence or doing any more research.

I hunted through the judge's decision, and could not find where he forbade discovery. I found that he required some alleged facts actually connecting the defendant to the alleged infringement. He didn't require evidence at this stage, merely a statement of a plausible specific claim that the Plaintiff possessed some evidence associating the Defendant with the alleged copyright infringement. From the judge's decison, a footnote:

In its Opposition, Plaintiff states in a footnote that “Plaintiff’s allegations and identification of Defendant are based off of much more information than a lone IP address . . . .” Plaintiff does not, however, specify what information it has.

It appears to me that the judge was requiring Plaintiff to explain in a bit of detail the reason for associating the defendant with the alleged copryight infringement. Elsewhere, the judge mentions that the Plaintiff has not even alleged specifically that the IP address in question is associated in any particular way with Defendant:

Indeed, the FAC does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IPaddress 68.8.137.53. (The Court notes that it is actually unclear whether the IP address is registered to Defendant).

So, it appears (pending a reading of the complaint, to see whether the judge described it correctly) that Plaintiff sued Defendant, mentioned "68.8.137.53" as though this were relevant, but did not explain the connection between that number and Defendant, and the judge required an explanation. There is more in the decision to indicate that a mere registration of the number would not suffice, but no indication at all that Plaintiff's ability to discover additional facts is actually inhibited if they can provide a plausible explanation.

--
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/

Re:I don't see where the judge forbade discovery by MobyDisk · 2013-02-22 05:08 · Score: 1

From the ruling:

Courts limit discovery regarding Doe defendants in BitTorrent cases to ensure that potentially innocent subscribers are not needlessly humiliated and coerced into unfair settlements...
I took this to mean the judge won't allow discovery.
I understand limiting discovery so that everyone on the planet doesn't get their computers scanned just because some jerky copyright holder wants to track down a few downloads. But they already know the IP address, and since they named someone that means they must have already contacted the ISP and found the subscriber. At that point, it is pretty much down to someone in the house, or someone who used their wifi. That's not a fishing expedition, that's a pretty targeted accusation. If someone broke my window with a baseball then ran into a house I don't think anyone would have a problem with searching the house for a baseball glove.
I'm unclear how this is different. I suspect that the key difference is that geeks want to be able to download everything they can for free, and I've chosen the wrong forum for a reasoned discussion on the topic. Just remember: if we forbid discovery in these cases, then we force copyright holders to start lobbying for potentially invasive laws. We should be using the legal framework we already have in place, where applicable.
Re:I don't see where the judge forbade discovery by ODBOL · 2013-02-22 05:18 · Score: 1

But they already know the IP address, and since they named someone that means they must have already contacted the ISP and found the subscriber.

That's an interesting assumption, but the decision explicitly says that Plaintiff provided no information (no allegations) regarding the connection between Defendant and the given IP number. Plaintiff did not state whether the number is assigned to Defendant by some ISP, according to the judge Plaintiff merely mentioned the number. The segment that you quoted was part of the judge's explanation of further information required to justify proceeding in the suit, but was not part of a dismissal. He asked Plaintiff to reveal Plaintiff's information about Defendant's relation to the IP number cited. According to the article, Plaintiff withdrew the suit without ever providing that explanation.
E.g., instead of this being a case, as you "suspect," of "geeks want to be able to downlad everything they can for free," it might just as well be a case of Plaintiff having made a clerical error, accusing the wrong Defendant, and withdrawing the suit when that error became apparent. Since Plaintiff did not reveal the connection that he alleged between the IP number and Defendant, we don't know what it was, much less whether it was correct. The judge merely required Plaintiff to reveal that information.

--
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/

That's not what "no discovery" means by ODBOL · 2013-02-21 12:00 · Score: 1

MobyDisk:

The problem is that the judge forbids discovery. Apparently no one on Slashdot knows what that means. It means that they are forbidden from obtaining any more evidence or doing any more research.

Well, I do know what "discovery" means (Wikipedia entry). The judge indicated that Plaintiff had not explained allegations well enough to justify certain types of discovery. By no means did he say "that they are forbidden from obtaining any more evidence or doing any more research." "Discovery" means requiring others, including the opposition, to deliver information that may support the case. Plaintiff had, and was apparently already using, other means of obtaining evidence and doing research. As I understand the decision, Plaintiff must explain a plausible case well enough to justify placing that burden upon others, and the judge ruled that Plaintiff had not done so.

--
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/

Re:If these cases involved guns.... by ogdenk · 2013-02-21 12:02 · Score: 2

My state has no gun registration.... on purpose. Private person->person sales are just peachy and require no registration. Purchases at a gun store are registered so the gun shop owner can keep his FFL but after initial purchase, guns can be sold time and time again and end up in some pawn shop somewhere. And ya know what? I like it that way.

Judge only required plausible allegation by ODBOL · 2013-02-21 12:21 · Score: 1

MobyDisk:

This ruling says that they must tie it to an individual, but they are not allowed to do any investigation that would help them in doing that.

I have hunted the 7-page decision in vain for the spot where the judge forbade Plaintiff "to do any investigation that would help ... ." The judge merely required Plaintiff to mention some alleged facts that, if proved, would associate Plaintiff with the alleged copyright infringment. According to the decision, Plaintiff merely mentioned an IP number, and did not even claim that it was associated with a service subscribed to by Defendant. Plaintiff was at liberty to do all sorts of other investigation, or merely to share with the judge the details of earlier investigation. Until then, the Plaintiff would be unable to demand that Defendant or other parties (such as ISP) do the investigation for Plaintiff under the rules of discovery.

--
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/

Re:If these cases involved guns.... by dissy · 2013-02-21 12:32 · Score: 1

You're just not hitting the clerk in the head with the wireless hard enough.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-21 13:04 · Score: 0

Or hold an automobile owner liable for any crimes committed by anyone using it, including carjackers.

while forbidding the only means for doing so. by pavon · 2013-02-21 13:23 · Score: 1

The only way that a Plaintiff could obtain the evidence needed is with a subpoena. The judge dismissed the case before allowing any subpoenas to occur. Therefore the judge forbade the Plantiff from doing any useful investigation.

Re:while forbidding the only means for doing so. by gstoddart · 2013-02-21 16:07 · Score: 4, Insightful

The only way that a Plaintiff could obtain the evidence needed is with a subpoena. The judge dismissed the case before allowing any subpoenas to occur.
No, the judge forbade them from going on a fishing expedition to try to make their case based on nothing other than an IP address.
Lack of evidence isn't a basis to get a subpoena to gather more evidence. It means you lack evidence.

Therefore the judge forbade the Plantiff from doing any useful investigation.
No, the judge correctly identified that they haven't done any useful investigation, and that they need something more substantial to file a lawsuit.
Or do you think that if I loudly accused you of embezzling money you should be immediately arrested and your stuff searched to provide evidence that what I said is true? I suspect you'd demand that I show evidence first. These guys are asking to be provided with evidence for their accusations, but haven't provided enough to support the claim.
The judge hasn't hampered the case of the plaintiff, he's told them they haven't established one with anything they can link to the named individual. It actually puts the burden of proof on them, which is the way it should be.

--
Lost at C:>. Found at C.

not forbidding the only means for doing so. by ODBOL · 2013-02-21 13:33 · Score: 2

The only way that a Plaintiff could obtain the evidence needed is with a subpoena. The judge dismissed the case before allowing any subpoenas to occur.

That's not what the decision says. The judge did not dismiss the 2 copyright infringment claims. He did not require evidence. He required before proceeding that Plaintiff reveal information, which Plaintiff claimed to possess already, linking Defendant to the IP number. Plaintiff dropped the suit without revealing that information. Subpoenas are by no means neccesary for all forms of investigation. There was no indication of a request for a subpoena of ISP registration information. The judge noted that Plaintiff had not even stated that the IP number in question was registered in any way to Defendant. Accepting the judge's statement (I did not check it against the actual complaint), Plaintiff merely mentioned the IP number, alleged that it was involved in an alleged copyright violation, accused Defendant of that copyright violation, but did not even mention any alleged connection between Defendant and the IP number, much less any other detail regarding Defendant's actual behavior. The judge did not require evidence, merely plausible statement of the evidence that Plaintiff expected to produce.

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Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/

Just a matter of degree. by raehl · 2013-02-21 14:46 · Score: 1

Two people can't use the same IP address at the same time either - your packets are interleaved.

It just so happens that your packets are interleaved on the microsecond scale while gun use is interleaved on the order of hours/days/weeks.

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paintball

Re:If these cases involved guns.... by CycleMan · 2013-02-21 16:27 · Score: 2

How many gun owners let other people use their guns?

Nancy Lanza did.

Moral of the story: secure your weapons better than your Wifi.

Re:If these cases involved guns.... by xenobyte · 2013-02-21 21:33 · Score: 1

The gun analogy doesn't fly... An IP can be abused or shared without actual knowledge. This is much harder with a physical item like a gun.

Remember - not only can members of a household share an IP and not only can wireless access be hacked/abused to allow unknown external parties to participate in the sharing - external parties also hook into the network either by ethernet cable or through a rogue access point hidden somewhere. This has actually happened in real life.

The judge got it right: You cannot use an IP to unique identify the user of that IP. Too many possibilities for abuse and/or misidentification.

--
"For every complex problem, there is a solution that is simple, neat, and wrong." -- H.L. Mencken (1880-1956) --

Re:If these cases involved guns.... by thyristor+pt · 2013-02-21 23:13 · Score: 2

What if the case involved a home owner? Someone got killed in a backyard, so the owner of the house has to be the one who's guilty. No trial needed.

Re:If these cases involved guns.... by parkinglot777 · 2013-02-21 23:50 · Score: 1

Someone got killed in a backyard, so the owner of the house has to be the one who's guilty.

Guilty? I think the word is too strong. A suspect would be more appropriate. No trial needed? Hmm... The word "got killed" is very vague. There could be tons of reason how the situation occurs on the owner property -- when it happened, how it happened, any witnesses, etc. -- so there will be an investigation. Usually, as I have seen in the U.S., there would be a trial for this kind of cases when (and in most cases) the owner does not admit the crime and hire a lawyer. Your analogy is quite off.

Re:If these cases involved guns.... by Anonymous Coward · 2013-02-22 01:18 · Score: 0

Your glass might provide a better barrier to RF than your wall. Often, your wall is just some gypsum board, plastic, fiberglass, and wood or plastic on the outside. Your window on the other hand may have a low e coating, which is usually metallic. It's a huge issue on large office buildings when they build the whole thing out of low e glass and then walk inside and realize no one's cellphone works anymore.

Re:If these cases involved guns.... by medcalf · 2013-02-22 03:15 · Score: 1

So why should someone else be bound by the GP's notions of whether and how guns should be loaned out?

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-- Two men say they're Jesus. One of them must be wrong. - Dire Straits

Re:If these cases involved guns.... by indy_bob_twobears · 2013-02-22 03:35 · Score: 1

This has always been I question of mine in these court cases. How do they correlate IP Address to User Login? Do they subpoena records from the ISP? Are the logs from an ISP sufficiently accurate to say that a User is logged in on a specific IP at the time the infringement occurred?

Re:If these cases involved guns.... by obarthelemy · 2013-02-22 14:33 · Score: 1

What percentage of guns do you think are securely locked AND not bought w/o background checks ? Judging from recent events: very few.

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The Cloud - because you don't care if your apps and data are up in the air.

Re:If these cases involved guns.... by BronsCon · 2013-02-22 14:45 · Score: 1

What percentage of guns can be taken from inside the home they're sitting in, locked up or not, without setting foot in that home? The analogy just doesn't fit, quit trying to force it.

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APK quotes people (including myself) without context and should not be trusted. Just thought you should know.

Re:If these cases involved guns.... by obarthelemy · 2013-02-22 21:06 · Score: 1

It does fit, on whethter owner/seller = responsible for use

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The Cloud - because you don't care if your apps and data are up in the air.

Re:If these cases involved guns.... by BronsCon · 2013-02-23 04:56 · Score: 1

If you own a car, you have an alarm on that car, you put The Club on that car, you lock that car, you keep that car in a locked garage, and you keep those keys on your person at all times; you know, every reasonable security measure; and that car is stolen and used in a crime or involved in an accident, you are not liable. In fact, you can to much less to secure that car (pretty much anything that doesn't involve leaving the keys in it or handing the keys over to someone else) and still not be held liable for the actions of another party who used your vehicle.

This is very similar to an internet connection, in that it can be secured or not secured, used with permission and used without permission, even used with or without your knowledge, and the rules of liability should be similar, as well.

To blow another large hole in your gun analogy, I'd like to point out that, in most jurisdiction within the US, if it can not be proven that you fired the gun, it must be proven that you willingly supplied the gun to whoever did fire it before you will be held liable for the results of that firing. [primary source: my father in law, credentials withheld due to active duty status (nonmilitary); secondary source: my coworker's stepfather, a recently retired cop; tertiary source: my coworker's mother, a recently retired police dispatcher] Even your analogy indicated that the "owner" of an internet connection should not be held liable for the use of that connection to commit an infringement unless, as is the case with a car or gun, it can be proven that they, or a party they explicitly authorized, were, in fact, the one who used that connection to commit said infringement. The laws governing liability for acts committed with firearms and vehicles do account for security, as well, in that they do place liability on the shoulders of the owner if a vehicle is left with the keys in the ignition or a gun is left sitting out in the open, or similar situations where parties not explicitly authorized by the owner may have easy access; the law places liability on the owner in those cases, and I agree that similar laws regarding internet connections should place liability on the "owner" of the connection when an ethernet port is left in an unsecured location (e.g. unlocked utility box on the side of the building) or a wireless router is left unsecured. The flip side of that is that, if steps are taken to secure the resource, just as with firearms and vehicles, liability should fall on the party who circumvented those measures and used the resource without the permission or knowledge of the "owner".

The law is already very clear on this, but for some reason people get confused when you throw in the phrase "on a computer". See: USPTO.

--
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.

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