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Federal Court Pulls Plug On Porn Copyright Shakedown
netbuzz writes: "The Electronic Frontier Foundation is calling it a 'crushing blow for copyright trolls.' A federal appeals court today has for the first time ruled against what critics call a shakedown scheme aimed at pornography downloaders and practiced by the likes of AF Holdings, an arm of notorious copyright troll Prenda Law. The United States Court of Appeals for the District of Columbia Circuit called the lawsuit 'a quintessential example of Prenda Law's modus operandi' in reversing a lower court ruling that would have forced a half-dozen ISPs to identify account holders associated with 1,058 IP addresses."
Wow, you Republicans are getting more brazen. Creating a system where the poor can't afford to sue because they may have to pay for the other guy's legal costs means that only the rich would be able to afford to defend themselves. The legal system would become instead of 80% biased for the Republicans like we have now to 100% against the normal people. That is a horrible idea.
I was just torrenting Game of Bones: Winter is Cumming for the articles........?
Yeah, you sue MegaCorp, Inc. because you slipped on their slippery floor, and *you* pay for their 15 lawyer defense team should you loose...
The problem becomes: Pay how much? A set standard rate regardless of what the loser actually paid their attorney? If I bring a lawsuit against a large corporation with an internal team of lawyers, how do I know much it really cost them to litigate? And even if I 'win' against a guy with no money, so what? And when is someone considered a 'loser', since there are so many levels of appeal?
I think the bigger problem with our legal system is that it even requires a lawyer to handle the most basic of procedures. That shows that the legal system has just become too complex to be useful. But since the legal system is ruled by lawyers (on all sides of the equation), there is little incentive for them to make the system more simplified and easy to access for the average person.
Creating a system where the poor can't afford to sue because they may have to pay for the other guy's legal costs means that only the rich would be able to afford to defend themselves.
That's already true, so lets make life better for most instead of none (legally speaking).
Well ,unless you really love lawyers who benefit most from the "sue everyone and see what sticks" approach.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Why not make the losing plaintiffs the lesser of the 2 legal bills? Big corp sues small guy. Small guy wins. Big corp pays his costs.
Small guy sues big corp. Small guy loses. Small guy pays the equivalent of his legal bills to the big corp.
That way, overspending isn't covered.
Peter predicted that you would "deliberately forget" creation 2000 years ago...
s/internal/infernal
If God forks the Universe every time you roll a die, he'd better have a damned good memory.
It wasn't inserted it was pulled!
The current system sucks, but "loser pays" is even worse because it assumes that the person who is "wrong" is the person who always loses, and that simply is not the case.
Why not make the losing plaintiffs the lesser of the 2 legal bills? Big corp sues small guy. Small guy wins. Big corp pays his costs.
Small guy sues big corp. Small guy loses. Small guy pays the equivalent of his legal bills to the big corp.
That way, overspending isn't covered.
So, BigMegaCorp fucks you over and you sue them. They can afford to throw more lawyers at you and you lose. This happens. A lot.
It isn't bad enough that BigMegaCorp fucked you, now you get to pay extra for getting fucked.
Wow, you Republicans are getting more brazen. Creating a system where the poor can't afford to sue because they may have to pay for the other guy's legal costs means that only the rich would be able to afford to defend themselves. The legal system would become instead of 80% biased for the Republicans like we have now to 100% against the normal people. That is a horrible idea.
Wow, Talk about knee-jerk smears.
How the hell is holding lawyers accountable for this kind of crap REPUBLICAN???
You want your little guy to have the ability to sue? Exempt class-action suits from loser-pays, or, better yet, make the plaintiff's LAW FIRM pay in class-action suits, or maybe even in suits with contingency-based fees.
Capcha: slither. Quite appropriate when responding to someone defending lawyer's ability to win huge fees no matter what the outcome of the case is.
That's his point. Prenda lost because someone actually could afford to defend.
This is a problem that must be fixed ASAP. Putting other issues in front of holy making of the profit is communism.
Stupid "it's the Republicans" troll makes another idiotic post. Please dry up and blow away, moron.
If you actually read anything about this case or ones brought by the MPAA: plaintiffs cannot file lawsuits against multiple people at once that are not joined or related. If the copyright holders wish to sue any individual they have to bring individual lawsuits.
Well, there's spam egg sausage and spam, that's not got much spam in it.
The courts have already ruled the same thing against the RIAA and MPAA in other cases.
Well, there's spam egg sausage and spam, that's not got much spam in it.
Have both parties pay into a pool managed by the court, legal bills need to be addressed to the court and each party can only spend half of the pool. Frivolous cases can still be reimbursed as with the current system, but you need to think more carefully about any money you spend since that money also helps your opponent.
This isn't RIAA/MPAA. It's the Prendateers.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
Wow, you Republicans are getting more brazen. Creating a system where the poor can't afford to sue because they may have to pay for the other guy's legal costs means that only the rich would be able to afford to defend themselves.
But the poor would only have to pay if they LOSE. If they have a legit lawsuit, that wouldn't be an issue.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
You've obviously never had to pay for a lawyer for anything. The system is rigged that whoever wins or loses in a trial, the lawyers always get paid.
Harrison's Postulate - "For every action there is an equal and opposite criticism"
The ruling is the same: Copyright holders cannot file lawsuits en masse like this. They have to file individual suits to go after individuals.
Well, there's spam egg sausage and spam, that's not got much spam in it.
The defedant always has the option of counter-suing the plantif. They can also file a complaint to the local bar association asserting barratry against the plantif's lawyers.
Cheers,
Dave
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
Lawyers work on a contingency basis all the time. There would likely be a market for a contingency-based lawyer in the loser-pays paradigm where the less-moneyed party can get a lawyer who is willing to bet his fee on the outcome of the case. Sure, the fee would probably be high under that model, but that's still a fair bit better than risking financial ruin for losing a case you ought to win because you're outclassed in the legal department. At least in a loser pays system there is an actual incentive to win the case, instead of wear the other side down with endless legalese. There are obviously no perfect solutions in the legal arena, but a loser-pays system is certainly the least bad when it comes to patent trolling and other litigious litigation. Then there is some hazard to reckless litigation, where currently the side with the most money nearly always wins. Under a loser-pays paradigm the side with the better case would have a much better chance of winning, and bad-faith actors in the legal system would have an incentive to act in bad faith less often.
...there might be a judge who knows how to torrent.
Wow, you Republicans are getting more brazen...The legal system would become instead of 80% biased for the Republicans...
Blaming "loser pay" advocacy on political affiliation shows you haven't done your homework.
They used to send twenty to thirty emails to support a month. They would call and tell me I was required to deliver them to our customers. I told them fine as long as they were willing to pay fifty dollars a truck roll we would hand deliver their emails to our customers. They never called back.
This would be made complicated by staff lawyers - many larger companies have staffs of lawyers in house.
I don't read AC A human right
The current system sucks, but "loser pays" is even worse because it assumes that the person who is "wrong" is the person who always loses, and that simply is not the case.
If you can't make the basic assumption that the person in the wrong is the one who loses then the system is completely broken and needs to be reformed until
you CAN safely make that assumption. Saying that loser-pay is a bad idea because the system is completely broken doesn't really support your argument.
Wow, you Republicans are getting more brazen. Creating a system where the poor can't afford to sue because they may have to pay for the other guy's legal costs means that only the rich would be able to afford to defend themselves. The legal system would become instead of 80% biased for the Republicans like we have now to 100% against the normal people. That is a horrible idea.
Its already 100% biased against the poor. We just want all lawyers to work probono.
Except that you'd have to pay to set up the pool in the first place. Most of the costs come from miscellaneous stuff. Essentiallly just about any piece of paperwork filed with the courts costs a fee, it's the only way most courts in the US are funded. So the small guy could be out of money even before the courts can decide on the amount of the pool.
In general governments and "well-thinking" pressure groups don't like porn. It seems to me that a perfect and easy way to give that industry a heavy blow is to rule that porn cannot be copyrighted. So why is this not done?
I have an even better idea. We could all be required by law to pay an equal amount into a pool that is then used to pay all lawyers. The government will hire a few private contractors to manage who pays in and who gets paid.
Or maybe take a bit of personal responsibility and notice the wet, slippery floor and avoid it. Do you also sue God or Mother Nature for the ice and rain?
I doubt they kept any records of porn rentals in the 1950s.
If you think I voted for Trump because of this post, you're wrong. I voted for Dr. Jill Stein of the Green Party. Again.
Prenda lost because they violated their rules and kept pissing off a judge who actually did some due diligence in the area they were suing.
A far better system: loser pays his opponent the lesser of the two side's legal costs. This way, the little guy can still sue the mega-corp, as he's never on the hook for more than double his own legal costs.
Socialism: a lie told by totalitarians and believed by fools.
copyright is, by definition, narrow. If no one actually copied the artistic work attached to the copyright, then there's no infringement.
It might not be as narrow as one might naively think, especially when the copyright-owning plaintiff claims nonliteral similarity.
His proposal would double your court costs in case of a loss.
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
And if the lawyer volunteers his/her time, just to spite the mega-corp?
If a pro-bono lawyer defeats the legal department of a mega-corp, then I would say that the it is extremely likely that justice has been done. I am deriving this conclusion from the fact that the pro-bono lawyer must have had such an airtight case that no amount of money blown on high-priced corporate lawyers could scuttle the case or indefinitely delay the judgement.
Most slashdot readers won't like what I have to say, so I guess I'm hoping that the parent AC comes back to look at any replies to his/her post.
Let's start with this proposition: if there were no fear of having copyright enforced, copyright holders would make less money due to the virtual ubiquitous availability of free copyrighted material on the Internets. Taking the position(s) that a copyright shouldn't exist, or that statutory damages are wrong/inflated, or that copyright term is too long, or that individuals shouldn't be liable for infringement of the distribution right are all fine- but I think it leaves you out of this conversation because your problem is with Congress, the Copyright Act, the Berne treaty, and, frankly, a million other things that aren't going to change in our system.
That being said, can you identify things Prenda has done wrong here? Absolutely. Personal jurisdiction over a defendant has been in the bedrock of the US legal system forever- there is simply no excuse for presenting a court with an unverified list of IP addresses on some assumption that the court has jurisdiction. Their tactics in other cases? Reprehensible... but that shouldn't be grounds for throwing out a newly-filed case. It certainly seems like it'd be grounds for close supervision by the district court judge, but any good-faith copyright plaintiff should have no problem with a court approving content of settlement letters, paying actual costs to ISPs for translating IP addresses to physical addresses, or indeed paying reasonable fees to the court for dealing with bulk action. Prior failure to take a case to trial? Irrelevant: should no crime be prosecuted in my county because 98% of all charges filed result in plea agreements rather than trials?
We still have the joinder issue, though. Reasonable people can disagree on this, and in general, courts themselves have. But here's the federal rule: defendants may be joined if "any right to relief is asserted against them... with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences." Myself, I have a hard time reconciling what I actually know about, say, BitTorrent, and how it wouldn't be a "series of transactions." Or, least of all, how a court can definitively determine that there is no nexus when no discovery pertaining to the defendants has taken place. All it'd take is one guy with logs to say yep, I've got those IP addresses in my download log.
But anyway, that's not really my point. The problem is one where if nobody gets joined, justice isn't served. Plaintiffs have a choice of not enforcing their copyright (which, as above, I believe they should be able to do) or pulling random numbers from a hat to see who gets incredibly screwed. "Well, your honor, we'd have been happy to settle with the defendant over there, but we just spent $12,000 in court costs filing against 30 John Doe individuals in separate lawsuits, and she's the only one who hasn't moved and isn't judgement-proof. To say nothing of the paralegal time, the subpoena response fees, defendant credit check fees, or even lawyer time invested. Not to mention our client actually wants to see some of the damages. So we need, say, $100,000- which your honor will note is less than the maximum statutory damages- and we think she's good for it, but she only offered us $10 for that movie she could have rented for $2. Really, it only gets worse if we have to win at trial just because people think there's something wrong with settling." By refusing joinder, a court essentially says that this is the only model for enforcement. I think if we consider those choices as:
1) Copyright is no longer really enforceable;
2) Some defendants' lives are ruined because the costs of enforcement are placed on them individually; or
3) We let some of this actually play out under better judicial supervision, deterring copyright infringement, getting at least some cash into the copyright holder's pocket, and nobody really pays that much individually.
Did I mention under no. 3 you can always move to have your case severed? Or that you could indeed defend yourself?
Anyway...
The current system (in U.S. District courts) *is* loser pays (see U.S. F.R.Civ.P. rule 54(d)).
Where the federal courts differ from most "loser pays" systems is that evidence of offers to settle ahead of a trial is generally excluded as a matter of policy.
Pretty much no loser-pays system (and that includes federal courts and several private law systems in the various states) actually requires that the loser *always* pays the full costs of the other side *in all circumstances*; wide latitudes are given to the courts to assess costs in a way it feels is just, or appropriate to the behaviour of the parties, etc. U.S. district courts have narrower latitude than both, owing in part to statute.
Generally speaking, if no offers to settle out of court are made (and thus also not rejected), then the loser generally is assessed costs unless it would be unjust to do so, thus "loser pays". However, offers to settle out of court are normal and even in district courts are encouraged to avoid unnecessary court costs and time dealing with controversies which can be worked out by the litigating parties outside of court.
In most loser-pays systems costs are assessed against parties who should have ended litigation sooner. For example under most systems that use a regulated offer along the lines of the Calderbank rules (this is definitely untrue of many state systems and U.S. district courts, but is true in some states, such as Florida), a winning party that was made an offer to settle out of court that it rejected and subsequently did not beat in court is usually assessed at least some proportion of the offeror's costs after that point, even if the offeror is ultimately the losing party. That is, even though the party won, it could have achieved the same result with fewer costs to the parties and the courts, and should therefore bear some of those avoidable costs. There are often codified forms of offer which make it even more clear that refusing a well-pitched offer could be expensive (as in Part 36 of the Civil Procedure Rules (England and Wales)) for a party that does not subsequently better it.
Additionally, most systems allow the parties to agree on how to split costs in order to avoid further litigation on who should pay which costs; the motions under F.R.Civ.P rule 54(d)(1)&(2) are frequently consent motions agreed between the parties after judgement.
http://www.nlrg.com/public-law...
Even better...both sides pay into a "lawyer fund" and each side is given exactly half the fund, this would be for criminal as well as civil...this way rich corp (or the state) can't stack the deck with a whole legal team complete with a dozen experts for hire while the poor person can't afford more than an ambulance chaser.
As an upside this would discourage lawsuits as the case would have to be about the merits NOT who could hire the best legal team. Frankly this would IMHO bring things back to the way the founding fathers had originally envisioned which is two ordinary folks arguing their case before a judge who would then weigh the case and decide. if you want a fair legal system you have to take money OUT of the equation and by making both sides 100% equal on funds you have made money no longer a deciding factor.
ACs don't waste your time replying, your posts are never seen by me.
of poiticians that were in possesion of some porn or maybe just one powerfull one?
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
Instead of loser pays or, worse, having the government decide on damage caps, I would eliminate the special lawyer-enriching set of privileges the civil legal system enjoys by making it operate by the same stringent rules as criminal procedure. I would put civil plaintiffs in the same legal position as criminal prosecutors: they would have to win cases on a unanimous jury vote, rather than a majority, and using a 'beyond a reasonable doubt' evidence standard, rather than 'preponderance of evidence'. The junk forms of evidence allowable in civil cases, such as hearsay, would also get chucked in favor of criminal-quality standards. Doing this would cause huge wads of junk torts to simply never get filed.
All I'm saying is I only hire lawyers who buy me Chinese food every day!
Interesting that you somehow want to penalise lawyers for doing a job that they are requested to do. Perhaps we should get rid of lawyers altogether? Take estate agents/realtors and door to door salesmen as well. And parking enforcement officers. And other people who are annoying despite having a function that could be beneficial to society...
Lawyers do not provide guarantees but they do frequently take on a case at a risk of not being paid which is the quid pro quo for the cases that are successful. There are also lawyers who assist with other matters too such as property transactions and assistance when a loved one dies. It's best not to tar everyone with the same brush you basement dwelling mummy's boy ;-)
In the UK there are some interesting developments with Qualified One-Way Shifting (synopsis) which allows someone to take on the mega-corp with little to no risk of being landed with an adverse costs order in the event that they lose their case. It is a relatively new concept which has not been rigourously tested and it has its pitfalls such as the drain on resources by fruitless claims but the drain is much smaller (technically) that the system which is being replaced where lawyer's fees, a percentage success fee (up to 100%) and a massive insurance premium could be claimed from the loser.
The problem is 2 fold. 1) the law is made to be as complex as possible so the lawyers can talk about small points of the issues.
2) Voir Dire - Jury Selection - is designed to get the stupidest dozen people in the county onto the jury. If you know anything about the issues involved, you are out.
If you have any kind technical knowledge or skill at understanding complex issues, you are out. The lawyers want it to be about who has the best law team.
Jury select should be only a few questions - Do you know these people personally?, Do you have a direct financial interest in the outcome of this case?
Maybe a couple others, then the first dozen that pass is your jury. How uninformed did someone have to be to get on the O.J. jury?
-- Loser pays, actually helps the small guy. If you are poor and lose, you go bankrupt and walk away. If you spend a huge amount to sue a rich guy, your bill could be for more than the damages.
I agree that the first order effects should assume that the system generally works, but it is also important to consider second order effects of the inevitable failures that will occur, and whether the consequences of those failures are acceptable.
However, even the secondary effects of a loser pays system aren't too bad. It would add some Type I error for a (hopefully much larger) reduction in Type II error, which probably makes the system a little better overall.
Not that a single fuck should have been given even if he rented Midget Transexual Extreme BDSM Gangbang IV every other day. It's ad hominem and completely irrelevant what he watches in his spare time.
Unity? Screw that: XFCE. Slashdot Beta? Screw that: SoylentNews. Australis? Screw that: Pale Moon. UX developers DIAF
He's not talking about "limiting liability" at all - he's talking about getting reimbursed for court costs. Today, if you lose a case that is not deemed frivolous, you are usually out just your own court costs. Under "loser pays", you would be out court costs x 2. It's better than just "loser pays", but it would still pretty much kill off contingency I would think.
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
I stay fit and will probably get a concealed carry permit at some point. Works for me. I also avoid bad neighborhoods.
Translation for the current discussion: If you're a corporation, straighten up and fly right. The best way to avoid being sued is to not do anything that would attract a law suit. Likewise, maintain/retain a legal team that is notoriously good (IBM and MoFo come to mind: the Nazgul eviserated the SCO legal team in a way that sends a loud and clear message of "don't mess with my client").
Cheers,
Dave
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
George Sr.: Thank you for coming down on Christmas Eve.
Barry: Oh it's like any other day except that I bill double.
YOU ARE SQUEALING LIKE A STUCK PIG BECAUSE THE ACCUSATION IS TRUE.
(In normal conversational "voice" mode.) Let's look at a real world example. I know this is painful for you, because the truth hurts. It hurts even more when you have to leave Republican fantasy land, which you almost never do.
Let's take the very powerful and influential lobbying group, the US Chamber of Commerce. This is what I found when I asked Mr. Google the search terms "US Chamber Republican Democrat".
http://www.opensecrets.org/outsidespending/detail.php?cmte=US+Chamber+of+Commerce
http://www.sourcewatch.org/index.php/U.S._Chamber_of_Commerce
So over here in the Real World big corporate interests are spending vast amounts of money to put "pro-business" (in reality pro-big business) politicians in office using untraceable money.
The Chamber is also a big players in the climate change denier network. (I'm tired of doing all this work for you, look it up yourself.)
So yes REPUBLICANS ARE WORKING FOR THE INTERESTS OF THE ULTRA RICH AND AGAINST THE INTERESTS OF EVERYONE ELSE. Glad I could explain that to you in your own language.
Why is Snark Required?
A cynic might argue that the key difference in this case was that, for a change, the ISP's, and not merely defendants, were challenging the subpoenas; but of course we all know that justice is 'blind'.
:)
An ingrate might bemoan the Court's failure to address the key underlying fallacy in the "John Doe" cases, that because someone pays the bill for an internet account that automatically makes them a copyright infringer; but who's complaining over that slight omission?
A malcontent like myself might be a little unhappy that it took the courts ten (10) years to finally come to grips with the personal jurisdiction issue, which would have been obvious to 9 out of 10 second year law students from the get go, and I personally have been pointing it out and writing about it since 2005; but at least they finally did get there.
And a philosopher might wonder how much suffering might have been spared had the courts followed the law back in 2004 when the John Doe madness started; but of course I'm a lawyer, not a philosopher.
Bottom line, though: this is a good thing, a very good thing. Ten (10) years late in coming, but good nonetheless. - R.B. )
Ray Beckerman +5 Insightful
Can this be used as precedent to dismiss all the pending RIAA and MPAA lawsuits? What about reversing past suits whose victims are already in the body count?
Don't I wish.
Ray Beckerman +5 Insightful