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Florida Judge Rules IP Address Can't Identify a BitTorrent Pirate
An anonymous reader writes "Florida District Court Judge Ursula Ungaro has dismissed a lawsuit brought by Malibu Media against an alleged BitTorrent pirate. Though Malibu Media explained how they geolocated the download site and verified that the IP address was residential rather than a public wifi hotspot, the judge reasoned that the 'Plaintiff has not shown how this geolocation software can establish the identity of the Defendant....Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence's computer and who would actually be using it to infringe Plaintiff's copyright.' Judge Ungaro's ruling is not the first of its kind, but it could signal a growing legal trend whereby copyright lawsuits can no longer just hinge on the acquisition of an IP address."
Headline makes it sound like a judge ruled on a point of fact.
I run a hot spot from my router, open to all.
Note as firmly plugged in as we thought
There has to be a blind squirrel involved somehow.
I'm connected to an ISP in Brisbane, Australia. But my ISP bought a block of IP addresses from someone else so most GeoLocation services tell me I'm sitting somewhere in France.
...and grandparents can breathe easier today.
Scribd is completely broken in browsers without javascript. Anyone got a link to the actual ruling?
How sad is it that the only sane ruling in these kinds of cases is big news?
Is this the first time a competent defense lawyer has been involved in a case of this nature?
This is one of those cases where the settlement shakedown, even with the threat of publicly exposing one's porn viewing habits, has failed. Some more here: https://www.eff.org/cases/mali.... Maybe they will eventually give up the cause but I expect the X-Art lawyers to keep going in every other district and jurisdiction while there is still a buck to be extracted.
Patent litigation: A doctrine of Mutually Assured Destruction... in which everyone seems willing to push the button
I mean of all places florida?
What about Comcast wifi routers that offers hotspots to other Comcast subs with there newer wifi routers being placed at homes. What do they show up as?
IANAL but isn't making the assumption that the registered user of an IP address is responsible for any and all illegal activity that involve that IP address the same kind of leap of logic that you'd make if you assumed that any crime committed with a gun directly implicates the registered owner of said firearm?
You know how this will eventually play out. They'll wind up amending the law to state that whoever the ip address is assigned to is prima facie liable and will have to prove their innocence. Loophole closed.
There are two kinds of people: 1) those who start arrays with one and 1) those who start them with zero.
GASP! You mean that copyright trolls now have to have actual evidence? It's about time. Now we need to apply this same logic to the RIAA's extortion machine.
Is Malibu Media one of the Prenda Law (Pretend-a-Law is more truthful) firms phoney shell companies? Is this scam still in operation or did the owners finally get sent to prison?
You know how this will eventually play out. They'll wind up amending the law to state that whoever the ip address is assigned to is prima facie liable and will have to prove their innocence. Loophole closed.
Not just that, because the pro-privacy/freedom side is just gloating about how they keep getting wins, while the MPAA/RIAA/anti-privacy side is busy lobbying, any eventual amendment will likely be the worst possible amendment, with no input from the pro- side.
An airtight defense.
I often thought running a tor exit node gateway for other users may pose a reasonable doubt?
I wondered the same thing. Maybe this offers plausible deniability and a reason not to opt out.
I doubt the hotspot would have the same IP as the subscriber. Otherwise they would allow guests to easily intercept the subscriber's traffic and bypass their wireless encryption completely.
The cameras are similar. Unless there's a clear view of the driver in the photo, there's no way to be sure that the registered owner of the vehicle was driving at the time of the violation.
The ruling is good. Let's enjoy that.
However, this is a HORRIBLE writeup. It suggests that "...IP-address evidence can't identify the person who actually downloaded the pirated file."
Under current US law:
1. There is no copyright infringement in downloading a file.
2. Files are. They just are. They are not "pirated files."
3. MAKING INFRINGING CONTENT AVAILABLE TO OTHERS is what is considered copyright infringement/distribution. THAT is why an IP address is important... if one SHARES and MAKES AVAILABLE A FILE. It takes a court to determine whether the actions constitute an actionable behavior.
I can't believe Torrentfreak got it wrong. At least they got the headline right. And this is a good ruling.
Hopefully fightcopyrighttrolls.com and dietrolldie.com won't make that mistake.
See it's like someone identifying your car in a crime. Doesn't prove you ere driving. Well, more like a crime that occurred in your garage and your car never actually left the garage.
Some drink at the fountain of knowledge. Others just gargle.
So is the first step putting ICANN under UN control. Next come treaties where you have to "identify" yourself to use their internet. Then they can track you better.
Oh yea, and in order to identify yourself you will have to pay a tax to the UN, or whoever is doing it.
This is COMPLETELY wrong.
Yes, there is. Making a copy, any copy, without permission is copyright infringement except for limited exceptions allowed by law such as fair use.
You're splitting hairs. That's like saying there are only cars, not stolen cars.
Nope. It's just more worthwhile for content owners to go after those who are distributing. Both are against US law.
Just for fun, I did a quick googling. Here's a guy who claims to have defended people accused of downloading copyrighted content. Note that none of his proposed legal defenses is "it's legal to download copyrighted files."
http://thompsonhall.com/copyri...
I beg to differ.
Please provide a source cite to a statute that indicates the act of "downloading" (feel free to
massage as appropriate; I am not splitting hairs) is unlawful.
As for the lawyer cited, he isn't a very good lawyer: "Fighting a subpoena that attempts to reveal your identity is a waste of money because you will reveal your identity by fighting it."
Lawyers that give advice on the Internet are not creme de la creme. Lawyers that give incorrect advice less so.
E
I beg to differ.
Please provide a source cite to a statute that indicates the act of "downloading" (feel free to massage as appropriate; I am not splitting hairs) is unlawful.
17 USC 106:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords...
What you were referring to in your earlier post was the distribution right. That's farther down in the statute:
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
So, yes, you were right that uploading - or distributing copies - is infringement. But you're wrong, in that downloading - or making copies - is also infringement.
For example, check out 17 USC 117, which contains an exception under which copying is not infringement:
(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
This is a very important exception, because it (1) allows copying from a hard drive to RAM; or (2) copying to a backup drive or CD. But if you don't meet those exceptions, then copying is infringement.
As for the lawyer cited, he isn't a very good lawyer: "Fighting a subpoena that attempts to reveal your identity is a waste of money because you will reveal your identity by fighting it."
Lawyers that give advice on the Internet are not creme de la creme. Lawyers that give incorrect advice less so.
On the other hand, people should never take legal advice about copyright from someone who's apparently never read the copyright act.
And I thought Florida was just a state where you could get away with murder.
Chewbacon
The Bible is like Wikipedia: written by a bunch of people and verifiable by questionable sources.
Torrent software results in simultaneous download/upload activity, the upload portion of which qualifies as distributing copyrighted material and is thus copyright infringement.
The courts have never held that doing a straight HTTP/FTP download is infringement, mostly because it's impossible to track down everyone that's doing it.
Further, it's difficult to quantify what is lost. I call attention to your "stolen car" statement. If someone steals your car, you can't use it. But say the technology existed to create a complete duplicate of your car, down to the last molecule. Then the copier drives off in the copy, leaving your car as it was. How does that affect you in the slightest?
This is the fundamental argument against trying to brand copyright infringement as theft - theft by nature requires something to have been appropriated, taken, or otherwise used in such a manner as it is depriving the original owner of their right to own. Copying a file does none of these things, save potentially resulting in a "lost sale". However, this too is almost impossible to prove; as getting something for free is one thing, paying for it is entirely another. Most folks tend to have a certain standard of quality for something that is not free.
Don't let the ongoing litigation confuse you; the issue is not nearly so simple as the content owners would like us to believe.
No seriously...
In most cases, you can't prove the copy on the disk is illegitimate.
You can legally record TV programs and radio/TV songs and transcribe books to text files.
A file sitting on the disk is not innately proof of a violation.
Sure- if it is still in theatres you might have an argument.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
It really doesn't mean much if it hasn't been tested in court. If no one is prosecuting based on a law, and no court has upheld it, that means it may be against the law, based on your reading.
It doesn't mean you can be punished for it.
I used to have a PDF of a court decision on my desktop that, unless it has since been superceded, declared downloading illegal. That is, the law forbade it, and the law was correct. Sad thing is, that was re-imaged years ago. Perhaps the archives of NYCL have it.
If you find it, that will bolster your case. And if you find it has been overturned, or a higher court ruled another way, obviously you are wrong.
Someone's reading of a law does not matter. Yours in particular, given your ignorance about who decides what is actually illegal. Only when it is tested does it hold any water. If the judge sides with the law, you're sunk. If the judge decides the law isn't worth anything, it never really was illegal.
Just saying
This case is wonderful because the judge decided since they had no physical evidence of who was actually being sued, ie no name, and apparently no way to verify that the IP address itself was actually located in Florida, that they did not prove that Florida was the proper venue to handle this case.
All the filers actually have to do is refile the case once new evidence has been obtained, like through either submitting the case to the FBI and asking them to contact the ISP in question of concern of the alleged copyright infringement, thus identifying the person's and the ISPs actual location and name/address/etc, and then the case can proceed once all this additional information is figured out. All the judge is saying is he doesn't have any proof that this IP belongs to a Florida resident, and that the evidence is not enough to warrant the judge to order any type of "discovery" of information or to force the ISP to provide additional information about the owner of the IP or the particular computers which may have been used to download the copyrighted content.
If the plaintiff comes back once all this has been figured out through other means then most likely the case will not be dismissed so easily.
This is a common error. The law doesn't have to spell out each and every possible method of infringement, just like they don't have to spell out each and every method of murder (with a gun, with an axe, etc). Did you make a copy? Yes. Did you have the permission of the copyright owner, or was it fair use, parody, etc? No? Then it doesn't matter if you copied it with a quill or HTTP or had it sequenced into your DNA.
Here:
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
That's from 17 USC 101. Maybe you can convince a judge that FTPing something onto your hard drive doesn't qualify, but it seems pretty clear cut to me.
Another common error. I don't argue that it's theft. In fact, in doing a little digging I found that there's case law that establishes precedent that copyright infringement ISN'T theft. But again, I didn't say that it is, just that downloading copyrighted material without the permission of the copyright holder, or fair use exemption, yadda yadda, is copyright infringement.
It's not my intention to get into the philosophical argument here. I can't defend $150,000 statutory damages over downloading a 99 cent song, I'm just pointing out that claiming downloading a 99 cent song is legal without paying for it or otherwise getting a license is wrong by about $149.999.01. The copyright owner doesn't get to sue you because you might have deprived them of a 99 cent sale. They get to sue you because the law says they get to sue you. They even get to sue you for a LOT of money because the law says they can.
I replied to the original poster because so often these discussions boil down to people saying it's ok because $LOGIC and $REASONS and $ETHICS. You're not wrong that downloading a song you'd never buy probably doesn't hurt anyone. It's still illegal, and if you end up in court over it what will matter is what the law actually says, not what you or anyone else thinks it should say.
If you download a file, you are not copying it. Copying implies possession of a copy to begin with. You are just receiving a copy, not making a copy. If someone mailed you a copy of something unsolicited, would that count as copying? Not really. Whether you ask for it or not doesn't make a difference. It still isn't you who is making the copy. You can't copy something you don't have.
When you make legal copies, do you typically name them with scene names and matching nfo files? You name your files like this?
Naughty.Cheerleaders.Club.PROPER.XXX.720p.WEBRiP.x264-TBP
You're splitting hairs, too. :-P
If you illegally download a file, it's "pirated". You're saying it can't be proven sometimes. Granted. Facts and proof are different things.
X-Art happens to be a banner for some of the better porn these days. It's sexy, erotic, something you can watch with your partner without feeling bad, and doesn't have any bullshit camerman antics and almost no speech (if any). It's what could best be described as "classy porn".
But if this is how they want to go after folks instead of finding ways to entire people, then fuck em (not literally).
Sure you can. All you need to do is invent a mechanism for copying a thing you don't have. Perhaps a computer somewhere else that has a bunch of files that you don't have, but will make a copy for you if you ask. Arguing that you can ask for the copy to be made and not be responsible for the making of it is like arguing that you weren't speeding, you were merely pressing on the accelerator.
Aside from the fact that someone could hack my wifi, or malware could take control, anyone in my house can access my PC. That includes not just family, but occasionally friends as well. Of course I trust them, but the point is the IP address alone could not reliably identify the user.
I swear I've learned more 4th hand about Aussie Law on Slashdot than any year in college!
So the way this site works, we get about *eleven* countries chipping in!
USA of course, Australia apparently, Germany, three Scandinavian countries, four people from China and Iran as AC, Britain, Ireland, and your choice of four more!
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
In my country the owner of the ISP account is liable.
How do you "illegally" download a file? Downloading is not illegal, it's the distribution part that infringes copyright law.
The downloader isn't the one doing the copying (except for the RAM copying). The uploader is.
The uploader has a file. He then sends A COPY of that file to the downloader. He does not sent the original, which the downloader then makes a copy of, before sending the original back.
And by asking for a pay rise, I'm responsible for my boss robbing a bank, because he didn't actually have the money to pay me that much?
I didn't ask for a pay rise through illegal means, just as I didn't ask for an illegal copy of that file. How am I supposed to know whether or not the uploader has permission to make copies, without asking? How am I supposed to know that the uploader is going to say yes, even when he doesn't have permission to do so?
Just as my boss could say no to the pay rise, or he could be say yes because he does have the money to pay me.
Some would argue that maybe I should have known that downloading software is illegal, and thus I should have known that the file I'm downloading is illegal, and so it's my fault for asking. The people arguing that are those that are responsible for cases such as a stack of Firefox CDRs being confiscated. Because everybody knows that downloading is illegal.
Or maybe I should have known that even though Firefox is legal to download, Adobe software is not legal to download. Even so, I would argue that I should not be responsible for knowing that, the uploader should be responsible for only sharing things he has permission to copy. Recently I did download some Adobe software, and everything hinted that doing so was legal. The software in question was called "Flash Player". Tell me again, how I should have known that this was illegal, because downloading Adobe software is not legal?
When I FTP something, a copy goes from existing in the cable, to existing on my hard drive. When it exists on my hard drive, it no longer exists in the cable.
That does not count as having copied the file. Only one copy exists when the download is finished.
As for what happens when I request a download: The sender makes a copy and sends it to me. He does not send the original, from which I then make a copy before sending the original back.
Two police officers are patrolling a street in Queens, NY.
A gunshot rings out. One officer falls, gasping, and dies in a pool of blood.
The detective investigating the case correctly identifies the house from which the gunshot came.
Do we simply look up the owner, arrest him and charge him with the crime? He is after all responsible for the house, so maybe 3-6 hours of violent anal dilation in jail will convince him to turn over the miscreant.
Or is a more nuanced question, such as whose finger was actually on the trigger, required?
IPs get passed around like high school cheerleaders and it's actually in our best interests to give people incentive to freely share bandwidth.
For that reason, it's essential to identify the triggerman (actual downloader) and not simply arrest the homeowner.
Futurist Traditionalism
Someone's reading of a law does not matter. Yours in particular, given your ignorance about who decides what is actually illegal.
Beg your pardon, but wtf are you talking about? I was asked for a statute identifying copying as illegal. I linked to 17 USC 106, the statute identifying copying as illegal. Did you perhaps mean to reply to some other individual with your attempt at condescension? Or is this some sort of "the law can be wrong and therefore nothing is actually illegal until it has been upheld by the highest court" attempt at pedantry? Because if so, you're very wrong - first, statutes are prima facie constitutionally valid, so even if your argument were based on a true premise, your understanding of how the process works is incorrect. Second, "illegal" merely means "against the law", and in this case, the statute identifies copying as an illegal act of infringement. Illegality says nothing about constitutionality. Your premise, accordingly, is false too. Thus, for two independent and separate reasons, you are wrong. Perhaps you should rethink your antagonistic approach in general, particularly when you have no understanding of what you're talking about.
An IP address will clearly identify my neighbors as pirates.
>> What about Comcast wifi routers that offers hotspots to other Comcast subs with there newer wifi routers being placed at homes. What do they show up as?
XFinityWifi has a separate IP range.
-- I was raised on the command line, bitch
. . . that they close that loophole.
1. Attract attacks from some botnet. (We all get viruses and spam already)
2. The ip address owners are now liable
3. Pick the rich ones and sue for damages. Time and bandwith lost, repairing equipment, troubleshooting . . .
4. Profit!
And even more fun rooting people. Run torrent services from the botnets you control - corporations with bad security gets to pay.
You're required to log in to use that feature, even if you're sitting in a van on the street. As such, it makes the tie back to an identity a bit stronger than an IP address alone would provide, and since they'd know it was a Comcast address, it'd be simple to at least subpoena whether it was the homeowner's account or not. If you were the guy in the van, you'd have to explain how your account got logged in at their wifi access point across town. If you're the homeowner, they'd have evidence that it was not, in fact, some guy in a van taking advantage of Comcast's service.
Of course, if you set up your own wifi access point and connected it to Comcast's, there's nothing preventing you from configuring it for open access.
the point is no one can prove as a fact that x person at that adress which is linked to that physical address was there at that precise moment in time. Unless theres a photo or something else that can prove it. That is very hard to prove. Besides, IP Addresses from a DHCP pool in an ISP changes not that often. Well not on an hourly or daily basis but its possible.
PC Gaming enthousiast that gives comments, opinions and reviews on Games. I'm just having fun with games while doing let
What is this embedded PDF crap? Around here we have a tradition of warning people when a link goes to a PDF, and now they're being embedded right in the story? I thought I opted out of the beta shit.
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
No one has ever secured a judgement against an defendant who simply downloaded a file (i.e. HTTP or FTP sites). Almost all cases for online infringement is brought against defendants who participate in P2P networks they are both downloaders and uploaders at the same time as well or users who upload to file sharing sites. This is the crux of the "making available" theory that is the basis for pretty much all litigation in this area.
No, but they should be liable to share a 3D scanner and printer big enough to do that job.
This is a common error.
The common error is yours, my friend. Please cite an example wherein a defendant was accused of downloading (not distributing, nor "torrenting", if you will) a copyrighted file. You will find none, because this activity is not prosecuted.
Another common error. I don't argue that it's theft
But you do. From your own previous post:
You're splitting hairs. That's like saying there are only cars, not stolen cars.
For emphasis, I will say it again: Copyright infringement is not theft. There is a concerted, ongoing effort from the content owners to try and redefine this to be so. I prefer to contradict blatant lies wherever I see them.
Our argument is not philosophical at all. We live in a real world, and copyright infringement is a part of it. I'm not arguing with you that copyright infringement isn't illegal. I'm arguing with you that it isn't always unethical, nor does it constitute theft. And I shouldn't need to address what is essentially financial murder, either - the number of people that agree with that action is undeniably a very small minority.
Private (NAT) IP range, I'm sure. You still have but one **public** IP address on the WAN side of that router.
Your point is valid.
And once the file is renamed to "Naughty Cheerleaders Club.mp4"?
Or how about if I have multiple files titled, "Naughty.Cheerleaders.Club.PROPER.XXX.720p.WEBRiP.x264-TBP" but which all contain different data- one a picture of flowers, another a text file with a script for the empire strikes back, and another a video of some highschool cheerleaders?
And if a half dozen other people have access to my computer, then who do you fine?
I'm assuming none of these are criminal cases where the standard is beyond a reasonable doubt because some of the total BS the anti-piracy groups have pulled would not stand up in court today as people become aware just how ludicrous their technical statements are.
However- IF you had a file AND it most to all of the actual "NC Club" movie, that should pass in a civil trial. If a hash of the film were the same as those distributed through pirate channels, then it's probably sufficient for a criminal trial.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.