US Copyright Group Says BitTorrent's Architecture Explains Why It's Ok To Lump 5,000 Defendants Into One Lawsuit

from the they-could-all-be-sharing! dept

US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) is the group that famously has sued thousands of people not to actually take anyone to court, but in an attempt to find out who they are so it can send them "pre-settlement" letters, demanding payment of thousands of dollars to get them to drop a potential lawsuit. Of course, for this "business model" to work, it can't actually get involved in costly lawsuits or even go to the trouble of spending the fees involved in filing lots of separate lawsuits in the location where the defendants actually live. So it lumped them all together into a single lawsuit in DC. Lots of folks quickly pointed out that this seems to violate the law, and the judge in one of the cases has asked USCG to explain why she shouldn't dump all but one of the defendants from the suit.

THREsq is reporting on USCG's response, where it tries to defend lumping all of the defendants into one giant case through the somewhat amusing claim that, due to the way BitTorrent works, all the defendants are linked because (who knows!?!) all of the defendants may have actually shared bits of the file with each other! Seriously.
Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload a file via a BitTorrent network.... This is called "seeding." ... Other users ("peers") on the network connect to the seeder to download.... As additional peers request the same file, each additional user becomes a part of the network (or "swarm") from where the file can be downloaded, which means that such additional user's computer is connected not only to the seeder/uploader but also to other peer/downloaders.... Unlike the older P2P protocols, each new file downloader is receiving a different piece of the data from each user who has already downloaded that piece of data, all of which pieces together comprise the whole.... This means that every "node" or peer user who has a copy of the infringing copyrighted material on such a network--or even a portion of a copy--can also be a source of download for that infringing file, potentially both copying and distributing the infringing work simultaneously....

This distributed nature leads to a rapid viral spreading of a file through peer users, all of whom are both uploading and downloading portions of the file simultaneously.... As more peers join the swarm, the likelihood of a successful download increases... Because of the nature of the BitTorrent protocols, any peer that has downloaded a file prior to the time a subsequent peer downloads the same file is automatically a possible, and even likely, source of the file for the subsequent peer.... Essentially, because of the nature of the swarm downloads as described above, every infringer is simultaneously stealing copyrighted material through collaboration from many other infringers, through a number of ISPs, in numerous jurisdictions around the country.
Of course, no one charged anyone with theft here, so it's a bit odd to see USCG claim that "stealing" happened. If that were the case, why not go to the police? But, more importantly, USCG is trying to argue that because BitTorrent involves little bits shared via a swarm, that it makes sense to link all the lawsuits since they may have been together in a swarm.

I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm.

On top of that, I do wonder if calling out some of the specifics of how BitTorrent works could actually do harm to any case that actually goes to court (as if that will ever happen). Some have pointed out that with the way BitTorrent is set up, that anyone doing the sharing is contributing such a minimal part to the whole (something USCG seems to be admitting here), that users have a stronger (though, certainly not concrete) fair use claim, in that the amount they share/receive is tiny and not a large portion of the file.

Either way, this response seems pretty weak, and hopefully the judge agrees.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    ChurchHatesTucker (profile), Jun 22nd, 2010 @ 11:25am

    Well, that makes sense

    After all, if you find a drug dealer, you can arrest all his neighbors on the assumption that they had some dealing with him, and it must have involved drugs, right?

    (Coming soon, to a neighborhood near you. Possibly very near.)

     

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    cc (profile), Jun 22nd, 2010 @ 11:33am

    Clearly, each of the accused could only have downloaded the file *at most* once, and the entire swarm(s) could only have uploaded the file *at most* once for each downloader.

    Each user downloaded the file independently and the method in which the file was downloaded makes no difference: it could easily have been downloaded from a file-locker, streaming site, usenet, ftp or whatever. Not all these users downloaded the file at the same time, so it is disingenuous to claim they were all in it together.

    Bittorrent users are rarely ever a massive swarm of users. The overlay network is for many different reasons fragmented, especially for popular files, even when the clients are connected through the same tracker. For instance, some users may be unreachable by others for technical reasons like network slowness/timeouts, or they may only be connected to a tiny number of other users (typically 40 or 50) compared to the size of the overall swarm. Also, not all users seed -- as far as they can prove, all the sharing could have been done by one person.

    Most importantly, can USCG provide evidence that all these users downloaded the *same exact* file, or were their lackeys monitoring a number of *different versions* of the films? Or, are they caught in a lie?

     

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    PaulT (profile), Jun 22nd, 2010 @ 11:35am

    There was a concert with 5,000 people. A fight broke out and somebody was injured, but nobody knows who threw the punch. Better to charge everybody who attended (or, more aptly, everybody whose address appeared on the receipt for the ticket) with assault, right?

    As for the actual case, it would be interesting to see how the defences against even single infringement notices would play out. For example, some people will probably have been misidentified through either ISP incompetence or 3rd party malice. One or two people might have actual fair use claims (for example, most torrents include artwork and/or a sample file and programs allow you to select the files to download within a torrent - surely those only downloading a 20-30 second segment would have a legitimate fair use defence?). The odds of having legitimate defendants on a case surely rise exponentially if you try to include them all.

    I wonder how these will affect the ultimate decisions, let alone the technical aspects of torrenting that means that many people would honestly not have been aware of the uploading. Meanwhile, the actual losses incurred by this lawsuit will almost certainly outweigh whatever was "lost" through torrents.

     

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    Free Capitalist (profile), Jun 22nd, 2010 @ 11:39am

    Re: Well, that makes sense

    Don't forget you can take their stereo too.

     

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    Dan (profile), Jun 22nd, 2010 @ 11:41am

    There's a choice to be made here

    Either the judge can decide to require individual filings [with associated filing fees]

    OR

    decide that individual fillings make the law unenforceable and allow this.

    If the judge requires individual filings, and entertainment [shortsightedly] follows through, the court load may spur a law change. Since congress is bought and paid for, the changed law will be to the citizen's detriment.

     

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    Dan (profile), Jun 22nd, 2010 @ 11:53am

    Re:

    I'm curious to see how a fair use defense based on bittorrent's use of pieces would be possible in any case. Since no single piece is ever intended to be utilized without the whole, the argument for fair use falls flat.

     

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    ChurchHatesTucker (profile), Jun 22nd, 2010 @ 11:59am

    Re: Re:

    "Since no single piece is ever intended to be utilized without the whole, the argument for fair use falls flat."

    Um, what? Any one piece is a tiny bit of the original. And they're not (barring one seeder and one leacher) being shared with just one person. Frankly, it's hard to see how that could be considered anything but.

     

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    AJ, Jun 22nd, 2010 @ 12:04pm

    Re: Re:

    What about people that never achieve the whole file, or quit in the middle of it?

    So if someone started the download, did not complete it for whatever reason, how can they be charged with infringing if the part they got is useless without the whole? How would you prove they got the whole file?

     

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    Josh in CharlotteNC (profile), Jun 22nd, 2010 @ 12:06pm

    Re: There's a choice to be made here

    "decide that individual fillings make the law unenforceable and allow this."

    In other words, enforcing copyright law means you get to lump possibly guilty parties in with innocent parties and litigate them all at once, even though none of them know each other.

    Maybe a better solution is to not have unenforceable laws at all.

     

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    Rabbit80, Jun 22nd, 2010 @ 12:10pm

    By this logic, it is a single infringement that occurs carrying a maximum $150,000 fine. Split that evenly between all the defendants (should they lose) and they only owe $30 each!

     

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    PaulT (profile), Jun 22nd, 2010 @ 12:12pm

    Re: Re:

    Not pieces, but the individual files. Let's say, for example, that you have a torrent containing the following files:

    1. a copy of the movie
    2. a 20 second sample of the full movie
    3. a text file with information about the encoding and more information about the movie
    4. a copy of the DVD's front cover
    5. a copy of the movie's trailer
    6. a zip file containing subtitles (i.e. fansubs) in several different languages

    A torrent client will allow you to download any or all of those files - you usually have the choice when adding the torrent. It's quite conceivable that somebody just wanting to check out the trailer or check out a sample - or download fansubs that in a language not supplied on the DVD in their region - will not download the movie itself.

    The point is that a person doing this will usually NOT have been involved in uploading or downloading the movie. therefore, you can argue a fair use (sampling a short segment of the movie) or uncopyrighted/CC material (the text file and fansubs) even though they're technically part of an infringing torrent.

    Some of these files might have questionable legal status - I know that studios tend to try to stop people from "unauthorised" distribution of trailers even though the whole damn point is that people watch them and want to buy the movie. But it's nowhere near as cut and dried as it might seem at first glance, even if all 5000 people have been correctly identified (unlikely).

     

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    Anonymous Coward, Jun 22nd, 2010 @ 12:12pm

    Even better, as discussed above, in order for the plaintiff to prove infringement, they must prove that a person uploaded the entire file, and that a single person downloaded the entire file from a single person....
    of course, they could always argue RICO covers this situation.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 12:13pm

    or each one of them is guilty of Conspiracy to commit infringement?

     

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    AJ, Jun 22nd, 2010 @ 12:16pm

    Re:

    Or.. suspicion of conspiracy to commit infringement?

     

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    Adam Fisk (profile), Jun 22nd, 2010 @ 12:20pm

    BitTorrent copied this architecture...

    Swarm downloading using chunks from different peers was hardly new with BitTorrent. SwarmCast, Gnutella, and iMesh were all doing this before BitTorrent. Basically any P2P program that didn't use swarm downloading after about 2001 was getting stale.

    The fact multi-source downloading is associated with BitTorrent has always been a mystery. I think everyone just didn't quite understand the fact that every other major p2p company was already doing it when BitTorrent came along, and that became the headline reporters used to explain what was different about BitTorrent.

    So, "legally" (emphasis on quotes), this crazy approach applies to almost all p2p architectures out there!

     

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    cc (profile), Jun 22nd, 2010 @ 12:21pm

    Re:

    That's a very good point!

     

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    Anonymous Coward, Jun 22nd, 2010 @ 12:21pm

    C'mon...

    ...you have to admit this argument is pretty clever. If I were the USCG lawyer who thought of this I'd totally be patting myself on the back for it, even if it doesn't end up working. (It would almost make sense even if all the defendants had actually been using the same torrent at the same time (but they're careful not to actually say that because it's most likely false).)

    Seriously though, I'd love to see a "my share ratio was less than one, so I was actually impeding, rather than assisting, the infringement of others" defense in court.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 12:30pm

    I don't think this could end well for the RIAA. Kicking people off the Internet for the sake of copy protection laws will only draw more attention to our broken laws and if you push people too hard (directly) they tend to push back.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 12:30pm

    Re:

    Sorry, wrong thread.

     

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    AJ, Jun 22nd, 2010 @ 12:31pm

    Also....

    If one act of infringement = 150,000... and they can't prove you downloaded/uploaded the entire file.... how do they figure out how much you had, and what your fine should be? Better still.... if they had the file on one of their servers, and was baiting it out to see who was downloading it, is it really infringement? They PUT the file/part of the file up there of their own free will knowing it would be downloaded..... i would hardly call that infringement.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 12:43pm

    Re: Well, that makes sense

    only if all of them also have drugs. imagine a single mega hookah with tubes running to every house. that is sort of how this ends up working.

    the reality is that this is basic conspiracy theory: in order for each of these people to have a copy of this material, it is likely that each of them at some point or another either traded data or traded data with someone who traded with them, etc. six degrees of trading a file. it is actually a potential major legal weakness in bit torrent piracy. everyone is linked together, proving one implies all the other by simple conspiracy.

     

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  22.  
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    Anonymous Coward, Jun 22nd, 2010 @ 12:43pm

    Re: Well, that makes sense

    only if all of them also have drugs. imagine a single mega hookah with tubes running to every house. that is sort of how this ends up working.

    the reality is that this is basic conspiracy theory: in order for each of these people to have a copy of this material, it is likely that each of them at some point or another either traded data or traded data with someone who traded with them, etc. six degrees of trading a file. it is actually a potential major legal weakness in bit torrent piracy. everyone is linked together, proving one implies all the other by simple conspiracy.

     

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  23.  
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    Anonymous Coward, Jun 22nd, 2010 @ 12:47pm

    Re:

    fail. there is 4577 duplicate infringements, so they are liable to $30 from each of the infringements. fail.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 12:52pm

    Re: There's a choice to be made here

    if the judge requires individual filings, it will only be fuel on the fire to raise the statutory minimum liablity in copyright cases, to allow for the significant increased costs in moving forward with such a case.

    further, the judge would have to consider the implications for the legal system. what would the court system look like with tens if not hundreds of thousands of cases dropped into the system all at once? each one of those suits would have to be treated on its merits, and could not dismissed en block.

    i think what the judge did here was take care of a potential route of appeal up front, making the plaintiff at least put something on the table to take care of the issue. i suspect the ruling will be "we move forward as a group" and see where it lands.

     

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  25.  
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    Anonymous Coward, Jun 22nd, 2010 @ 12:55pm

    Re:

    turning bit torrent into a corrupt criminal enterprise would be slick. pretty much would solve the issue of widespread file sharing overnight, because just connecting and download or peering would become part of the criminal enterprise, intentional or not.

     

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  26.  
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    PaulT (profile), Jun 22nd, 2010 @ 1:01pm

    Re: Re: Well, that makes sense

    ...or the ISP cocked up and identified the wrong IP address (this has happened)

    ...or somebody who doesn't even own a computer has been identified by mistake (this has happened)

    ...or somebody owning a device not capable of downloading a torrent has been identified (this has happened)

    ...or their supposedly secured wifi has been hacked and is being used without their knowledge (this has happened)

    ...or they did not download any copyrighted material despite being linked to the torrent (see my post above)

    The only reason these cases don't get routinely laughed out of court is that the burden of proof is much lower for civil cases than for criminal. If these were in a criminal case, the "evidence" usually supplied would not be acceptable to prosecute.

    Meanwhile, they're doing nothing to convince people to actually, you know, buy the DVD.

     

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    Richard (profile), Jun 22nd, 2010 @ 1:02pm

    Re: Re: Well, that makes sense

    the reality is that this is basic conspiracy theory: in order for each of these people to have a copy of this material, it is likely that each of them at some point or another either traded data or traded data with someone who traded with them, etc. six degrees of trading a file. it is actually a potential major legal weakness in bit torrent piracy. everyone is linked together, proving one implies all the other by simple conspiracy.

    But that argument could only be applied after the defendants had been identified. Even if one accepts you idea about conspiracy at face value, at this stage the defendants are arguing about whether they are part of the conspiracy or not, and that means that each one is likely to have a different defence, and therefore needs to be considered separately.

     

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  28.  
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    Anonymous Coward, Jun 22nd, 2010 @ 1:06pm

    Re: Re:

    You don't know how the internet works, do you?

     

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    bknabe (profile), Jun 22nd, 2010 @ 1:19pm

    Re: Re: Re:

    For fair use the tiny piece has to be useable. You can take a few sentences from a book or copy a few minutes of a movie to a tape or DVD, but in most cases if you only download a small piece of a torrent you won't be able to do anything with it. Fair use allows copying for backup, and using small samples of the work for education and other uses.

    There are also other reasonable limits to fair use, but I wouldn't want to argue that up - or down - loading a torrent file fell within the bounds of any of them in a court of law.

     

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    Overcast (profile), Jun 22nd, 2010 @ 1:20pm

    So - if three different parties share a gun to rob banks - you can lump them all into one case?

    Why does that *not* make even a lick of sense - even for a moron in a hurry.

    But - hey, I guess the same argument could apply in the corporate world.

    Let's say 'Mr. Doe' at said lawfirm of Kanwe, Cheatem, and Hoewll commits a crime with the company computer system. Then ALL employees of the firm could be charged and ALL go to jail in the same single trial - because, of course, those computers 'shared network switches' and servers.

    WTF ever, lol

     

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  31.  
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    bknabe (profile), Jun 22nd, 2010 @ 1:24pm

    Re: Re: Re:

    You make some good points. The hard part would be proving you didn't download the whole movie. The class action could work in the defendants favor in this case. To prove they all downloaded the actual movie would require getting records for the specific dates and times. Sharp lawyers will force the USCG to prove that each person actually is a member of the class.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 1:27pm

    Re: Re: Well, that makes sense

    "everyone is linked together, proving one implies all the other by simple conspiracy."

    Guilt by association. So if I talked to (exchanged information with) a drug dealer that makes me a drug dealer because I am associated to them. Typical IP maximist logic.

     

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    Berenerd (profile), Jun 22nd, 2010 @ 1:31pm

    My senerio...

    06-22-2010 @ 18:31, a Cop in RI pulls a guy over for speeding. 85MPH in a 55MPH zone. he writes down every plate number from every car he sees drive by. They all get a ticket because they were all driving on the same road at the same time in the same direction. Therefore, per this brilliant act, they must have all been speeding or conspiring to speed.

    Right? Right? yeah you all are now waiting for your mail to come...

     

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  34.  
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    Anonymous Coward, Jun 22nd, 2010 @ 1:32pm

    Re:

    Well, they can do file comparison I suppose. Different versions of the same file will tend to (almost certainly) be encoded somewhat differently. If you downloaded two MP3's originating from different sources of the same song the files will likely not be identical.

     

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  35.  
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    Anonymous Coward, Jun 22nd, 2010 @ 1:35pm

    Re: Re: There's a choice to be made here

    Or better yet lets eliminate nefarious laws altogether (ie: 95 or more year copy protection laws).

     

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  36.  
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    Anonymous Coward, Jun 22nd, 2010 @ 1:38pm

    Re: My senerio...

    Well, if one person goes 85 MPH and another goes 75 and another goes 90 what the cop can do is average them out and say that they were all traveling the average of all the speeds and fine them all based on the average. Wouldn't that be more economically efficient after all?

     

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    Hephaestus (profile), Jun 22nd, 2010 @ 1:45pm

    Re: Re: Re:

    Here is one you forgot. Distribution of promotional music files distributed by the labels themselves. Hmm is this legal to do? they distributed them with the intent of having them distributed.

     

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    PaulT (profile), Jun 22nd, 2010 @ 1:49pm

    Re: Re: Re: Re:

    I have no doubt that the burden of proof would be on the defendants who didn't download the movie (although this is also a major problem, IMHO). I was really just musing about what would happen if one or two of the class managed to prove their innocence - and if you're suing thousands of people based on evidence as flimsy as an IP address, innocent people will get sued. The more people get attacked, the more the group is likely to contain some honestly innocent parties (as we see all the time with C&D and settlement letters).

    It just seems to me to be yet another wasteful and inefficient strategy that will ultimately do nothing to either encourage legal purchases or regain any of the "lost" money, but get plenty of bad press and newly forged enemies for the movie industry.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 1:58pm

    Wouldn't that also include the ip harvester? why isn't the company that harvested the ip's included in the lawsuits?

     

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    Ben, Jun 22nd, 2010 @ 2:02pm

    Re: Well, that makes sense

    If you knew that your neighbor was dealing drugs and did not report it that makes you guilty of aiding and abetting and perhaps accessory after the fact!

    Turn in your neighbors!
    Think of the children!
    Stop terrorism!
    End Communism!

     

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    nasch (profile), Jun 22nd, 2010 @ 2:05pm

    Re: Re: There's a choice to be made here

    further, the judge would have to consider the implications for the legal system. what would the court system look like with tens if not hundreds of thousands of cases dropped into the system all at once?

    I hope that "there would be too many lawsuits" is not a sufficient reason to skirt around joinder rules.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 2:28pm

    Re: Re:

    They are claiming that they all shared the same file. One file, thats why they can sue them all at once. Think of a commercial counterfeiting operation, the reason the statutory damages can be so high ($150,000), is so that the counterfeiting operation has to pay for all the copies they may have distributed. In this case they are claiming that the nature of bittorrent is that they are all distributing a single file that someone seeded once. If we could find them, that one person, the first seeder, should be wholly responsible for the infringement, just like a counterfeiter would be.

     

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    NAMELESS.ONE, Jun 22nd, 2010 @ 4:18pm

    BY the same rationale

    we could lump all hand gun and rifle crimes into one big CRIME case too why not saves loads a money
    WHO THE HELL CARES ABOUT CITIZENS RIGHTS
    not these people
    greedy fuckin lawyers, hollywood drug alcohol crazed morons

     

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    NAMELESS.ONE, Jun 22nd, 2010 @ 4:22pm

    oh and

    so if the original seeder outs a copy
    then stops
    then you all have a copy of the original file
    then someone gets a copy of that
    YOUR in affect getting a copy of a copy right
    THE original uploader didn't give it to you he may have died and or the aliens took him back to civilization where the gene roddenberry replicators not only copy files but food

    YES FOLKS its just damn evil not to share and copy

     

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    ChurchHatesTucker (profile), Jun 22nd, 2010 @ 4:54pm

    Re: Re: Re: Re:

    "For fair use the tiny piece has to be useable."

    Huh? So fair use doesn't cover unusable fragments? Hookay. Are you saying portions of a torrent aren't usable?

    "You can take a few sentences from a book ..."

    Fine. What if a few hundred of us do that?

     

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    Anonymous Coward, Jun 22nd, 2010 @ 4:57pm

    Re: Re: Re: Well, that makes sense

    "ut that argument could only be applied after the defendants had been identified. Even if one accepts you idea about conspiracy at face value, at this stage the defendants are arguing about whether they are part of the conspiracy or not, and that means that each one is likely to have a different defence, and therefore needs to be considered separately." - chicken and the egg. until they are identified, there is no way for them to determine this. in the end, it would be for each defendant, once properly identified, to move for severing their case. that would be considered after the does have been turned into specific people, and not before. if the judge accepts this logic, they would probably also have to prove they are not part of a conspiracy to share files, and specifically having no connection in any way with any of the other defendants. good luck proving that!

    further, the brief pretty much makes it clear: with nearly 5000 defendants, and potential each one being a source at some point for the material that have gone to others, you would need only a single defendant in the jurisdiction for it to be valid in the jurisdiction, as at least part of the conspiracy happened there.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 4:58pm

    Re: Re: Re: Re: Re:

    you cannot have fair use on something you dont have use on to start with. what do you have fair use of, exactly?

     

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    Anonymous Coward, Jun 22nd, 2010 @ 5:01pm

    Re: Re: Re:

    i understand fine, you are just being ignorant. if each of 5000 people gives you 1/5000 of a stolen car, in the end you have 1 car, stolen by 5000 people. getting 5000 file pieces from 5000 people just means that they are all in on a conspiracy to share the file (to each other too). you start with a single file, and at the end, there are 5000 copies.

    see, i understand. you on the other hand are a poor version of the usual shoutdown clown, which suggests he is on a day off and mike had to have one of his other lackeys do the job.

     

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  49.  
    icon
    bknabe (profile), Jun 22nd, 2010 @ 5:18pm

    Re: Re: Re: Re: Re:

    "Huh? So fair use doesn't cover unusable fragments? Hookay. Are you saying portions of a torrent aren't usable?"

    Do you understand the meaning of the word, "use"? By definition if it's unusable, there can be no fair use. Of course, if it's unusable there's no reason to sue you for it, either. Ok, whether a portion of a torrent will be usable or not depends on what it is. small piece of DVD, probably not usable. Small piece of a text document, probably usable.

    "You can take a few sentences from a book ..."

    Fine. What if a few hundred of us do that?


    You all teaching a class?

     

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  50.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 5:32pm

    Re: Re: Re: Re:

    How is a digital file like a stolen car? Fucking moron.

     

    reply to this | link to this | view in thread ]

  51.  
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    crade (profile), Jun 22nd, 2010 @ 6:01pm

    The "swarm" they are talking about is only 5-6 nodes big.. It would take a serious coordinated effort to get very many nodes connected to the same file at the same time.

     

    reply to this | link to this | view in thread ]

  52.  
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    crade (profile), Jun 22nd, 2010 @ 6:04pm

    This is kindof like arguing that all the servers that are part of the internet are collaborating on any infringement because they are all interconnected, and the traffic could be routed through any number of other machines..

     

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  53.  
    identicon
    abc gum, Jun 22nd, 2010 @ 6:15pm

    Re: Re: Re: Well, that makes sense

    What - collateral damage ?
    I doubt they care about that.

     

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  54.  
    identicon
    abc gum, Jun 22nd, 2010 @ 6:30pm

    Re: Re:

    "turning bit torrent into a corrupt criminal enterprise"

    Bit torrent is a protocol, it can be used for good or evil. But you knew that ... so, by what logic would you propose the protocol be declared illegal? Would this logic be similar to that used in gun control legislation? What else might you want to include in this proposal? Possibly that all internet connections allow government installed spyware to track your every click in addition to recording audio and video. What a wonderful world you envision for the rest of us. I'll pass thank you.

     

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  55.  
    identicon
    abc gum, Jun 22nd, 2010 @ 6:34pm

    Re:

    "Let's say 'Mr. Doe' at said lawfirm of Kanwe, Cheatem, and Hoewll commits a crime with the company computer system. Then ALL employees of the firm could be charged and ALL go to jail in the same single trial"

    You are absolutely correct - because corporations are now people.

     

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  56.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 6:43pm

    Re: Re: Re: Re: Re:

    "Meanwhile, they're doing nothing to convince people to actually, you know, buy the DVD." - you (and mike) make the same mistake on this one. they arent trying to convince anyone to buy a dvd (or see the movie in a theater). they have plenty of marketing done for that already. what they are trying to do is remove the 'zero cost' competition that is giving people who want to see the movie an option that does not give the film makers anything (except maybe a warm feeling).

    they arent trying to build a boat, they are trying to plug the gaping hole in the side that is sinking it.

     

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  57.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 6:46pm

    Re:

    no, you are missing the point, your examples are not really valid.

    3 people plan to rob a bank, one of them gets the gun, one of the drives the get away car, and one of them commits the actual robbery. guess what? each of them is guilty of consiracy to commit armed robbery, and if someone was killed during the robbery, they could all be in really, really deep.

    your "three different parties share a gun to rob banks" isnt the same because they are three separate crimes. not the same.

     

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  58.  
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    bad analogy guy, Jun 22nd, 2010 @ 7:17pm

    Re: Re:

    I must have missed the part where 5000 people met and planned out their copyright infringment.

     

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  59.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 7:21pm

    Re: Re: Re: Re:

    But, as discussed above, what if those other people have only part of the files or only have freely available content that is also part of the torrent?

    Also, suppose this scenario: you have 5000 people that have only small portions of the file (not the complete file, so it is useless) and have stopped downloading, but the chunks add up to one complete file. This means that, if anyone connects, they can get a complete file. Only one person infringes on this setup (the "new" guy connecting to get the file), despite the fact that 5000 people are connected to the torrent, seeding it, and have only small parts of the file (as you described). You have 5001 people, with only 1 of them infringing.

    Also notice that no one is stealing anything here. Unlike the car, in the end, you can have millions of copies built from those chunks, unlike the car.

    So you see, you don't understand all that much.

    (PS: the guy that can rebuild a stolen car from 5000 individual pieces should either get a praise for reassembling a car from that many pieces alone or be arrested for stupidity and not stealing).

     

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  60.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 7:24pm

    Re: Re: Re:

    What the AC doesn't understand is that the English language (and any other human language) is a communication protocol (just like bittorrent) that can be used for much evil (just like bittorrent).

    And yet, we have free speech.

     

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  61.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 9:49pm

    Re: Re: Re: Re: Re: Re:

    But they just hit an iceberg called the internet. The ship is going down, regardless.

     

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  62.  
    identicon
    Anonymous Coward, Jun 22nd, 2010 @ 10:41pm

    Re: Re: Re:

    if it was shown that 'bit torrent' (the people who created and maintain the protocol) are knowingly part of the distribution of copyrighted materials without permission (aka piracy), or they have made any overt acts to help the piracy (such as support extensions that make it easier to 'hide' or 'disguise' the packets), they could be part of an overall conspiracy charge. remember, the left hand does not have to know exactly what the right hand is doing, only that they are together doing things in furtherance of the illegal act.

    that changes have been made over the years to bit torrent specifically to avoid detection, or to get around legal restrictions placed by judgements against file sharing would be a good place to start.

    you see, bit torrent isnt just a protocol, its a company:
    http://www.bittorrent.com/company/management

     

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  63.  
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    Mike Masnick (profile), Jun 22nd, 2010 @ 11:21pm

    Re: Re: Re: Re:

    you see, bit torrent isnt just a protocol, its a company:

    You would think, that for someone who so insists that everyone else has it wrong, and he alone has it right, that e.e. trollings here would at least do a *little* checking to realize that BitTorrent, the protocol, and BitTorrent the company are two different things.

    In fact, BitTorrent the company has worked hard to do deals with Hollywood and the entertainment industry, and for the most part has not been a part of any effort to avoid detection -- most of which are done by other companies.

    But, of course, details are not his strong suit.

     

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  64.  
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    Richard (profile), Jun 22nd, 2010 @ 11:30pm

    So, I take it then that this case against 5000 people is for 1 infringement? Or are 5000 people each responsible for 5000 infringements? If it's the former, would that mean the punishment would be spread across the 5000 people? If it's the former, would then each person be responsible for 5000x the normal infringement penalty?

     

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  65.  
    identicon
    Rabbit80, Jun 23rd, 2010 @ 12:52am

    Re:

    Or is each piece of the file transferred an infringement - potentially resulting in thousands of infringements per user for a single file?

     

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  66.  
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    Richard (profile), Jun 23rd, 2010 @ 5:10am

    Re: Re: Re: Re: Well, that makes sense

    The general point about the defendants still holds. If these were serious lawsuits - going to trial then the plaintiff would have no problem doing a separate discovery on each one. Usually lawsuits are grouped for the benefit of the group. Normally the opposition would much prefer to "divide and conquer". The fact that they are not in this case just shows that the motivations here are not justice - but money.

     

    reply to this | link to this | view in thread ]

  67.  
    icon
    Richard (profile), Jun 23rd, 2010 @ 5:16am

    Re: Re: Re: Re: Re: Re:

    Everyone has use of everything.

     

    reply to this | link to this | view in thread ]

  68.  
    identicon
    Anonymous Coward, Jun 23rd, 2010 @ 5:56am

    Re: Re: Re: Re: Re:

    "You would think, that for someone who so insists that everyone else has it wrong, and he alone has it right, that e.e. trollings here would at least do a *little* checking to realize that BitTorrent, the protocol, and BitTorrent the company are two different things." - gee mike, you think i dont know? but who is the controller of the protocol? who is the leader of the open source movement here? who has modified or supported modifications in the past specifically to help pirates to use bit torrent protocol to avoid legal issues?

    bit torrent as a company and minder of the protocol are not unaware of the issues, and they have not shied away from supporting modifications and extentions to the protocol created to aid in the illegal distribution of ip.

    you know it, i know it, but then again, acknowledging reality on these sorts of things isnt your strong suit.

     

    reply to this | link to this | view in thread ]

  69.  
    identicon
    darryl, Jun 23rd, 2010 @ 7:15am

    Copyright infringement/violation/theft and legal definitions !!

    "Or is each piece of the file transferred an infringement?"

    No, not even the entire file being downloaded is an infringement, nor is it theft of the file.

    What it is, is the violation of the copyright of the legal, right full owner of the copyright.

    You are not stealing a song, or a file, or data, you are taking away from the right full owner his right to copy his work as he wishes. As defined by copyright law.

    So it is theft, and you do take away from the owner intangable property, and that property is his copyright, not the song or movie or book, its the copyright of that works, the movie, song etc.

    The technical details of bittorrent or FTP or http or whatever has no bearing on the end result, its not the way you steal, its the fact you have, and your intension in doing so.

    That is how the law looks at it, and how society looks at it, and if you read copyright law, you will see its the copyright that is being stolen, not the material.

    Everyone who goes onto bittorrent, has specific INTENT to gain a file or content they desire. The technicalities of file transfers, means that you have to download the complete file, for it to be at all usable. Download part of a program, movie or song will result in a checksum error or a failed attempt to view the movie etc.

    Everyone who gets on bittorrent, who become leaches **and** seeders are all there with the intent to gain the full file, the complete work, and while you gain that, the data that you have allready downloaded, is available for upload. Meaning at 100% download, and or all of the file on your computer will be download by other sharers.

    You cannot claim fair use, even by the weak definition of that term used here.
    You would expect to be able to claim fair use, because you only download a file a bit at a time ?

    What about the 4 point balancing test for fair use?


    COPYRIGHT INFRINGEMENT:
    Copyright infringement (or copyright violation) is the unauthorized or prohibited use of work covered by copyright.
    In a way that violates one of the copyright owners *EXCLUSIVE RIGHTS*, such as the right to reproduce or perform the copyrighted work, or to make a derivative works.

    What that means is that you dont steal the song or movie, you steal the copyright owners exclusive rights.

    That is the theft, and that is the intangible property you steal off the right full owner of the copyright.

    So we should not hear from people who should know better that "its not theft" as you are not taking away anything.

    You are, your taking away his property, his copyrights.

    ____________

    Mike said:

    "I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm. "

    Actually, you cannot do these actions independently, you are very dependent on the seeders, or the original seeder. You cannot do anything to get a file independently, unless you produce that file yourself.

    If you are downloading something (again source of the crime is not important), then someone is uploading it, on torrents that is often hundreds, or yes 5000's or more for a popular file.

    There was well over 5000 seeders and leechers for the michiel jackson movie on PTB, it would have been a trivial exercise to log the IP addresses of the partcipants.

    Then if you are honest, and did not download/upload the file, you have nothing to worry about. Your what they call innocent.

    If you did download the file, and lets face it here, you dont go to pirate bay to download a part of a file you dont want right..

    Those 5000 were there for a reason, the same reason everyone else goes there, to download files.

    They had INTENT, and that is all you need.

    I would say it would be more closely aligned to organised crime, rather than individual actions.


    THEFT:

    The 'actus reus' of theft is usually defined as an unauthorised taking, keeping or using of another's property (interlectual property in this case), which must be accompanied by a 'mens rea' of dishonesty and/or **INTENT** to permanently deprive the owner or the person with right possessino of that property or its use.
    (ie, permanently deprive the owner of exclusive rights to copy his works).

    "actus reus', appropriation, the assumption of any of the owners rights. (not necessilary ALL the right).

    Copyrights, is "rights".

    "Belonging to another", that property belongs to another if that person has ownership, possession, or a proprietary interest in the property. (as with copyright).

    'Mens Rea'
    "intention to permanently deprive, as treating the property as it belongs to the accused, rather than the owner".

    That means the owner has the *EXCLUSIVE* right to copy his works, you are permanently depriving, the right full owner of the right to exclusively copy his works.

    You are commiting, THEFT, by the very legal definition of the term.
    And yes you are also violating, infringing specific laws,

    So what of the defined defenses do you propose to use to defend against the claims that anyone who downloads a complete file, does not in breach of the law, of copyright, and is by definition theft.

    And Mike if a theft occures, you dont necessarily have to call the police.

     

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  70.  
    icon
    The Infamous Joe (profile), Jun 23rd, 2010 @ 10:02am

    Re: Copyright infringement/violation/theft and legal definitions !!

    You are, your taking away his property, his copyrights.

    You are the worst type of idiot. A right is not property, and you know it. You can't "steal" a right to an exclusive monopoly-- but you can infringe on it.

    Then if you are honest, and did not download/upload the file, you have nothing to worry about. Your what they call innocent.,/i>

    Right, because lawyers don't charge you if you tell them you're innocent. I don't know about you, but if I have to pay a lawyer and take time off work to prove I'm innocent because the plaintiff doesn't want to be bothered to do their due diligence *because it would be too much work* then I'd consider that a misuse of the legal system.

    And Mike if a theft occures, you dont necessarily have to call the police.

    No, you don't. But if you call the person who has stolen from you can threaten to call the cops unless he gives you $5,000 then you are now guilty of extortion, aren't you?

    Also, if they are all accused of sharing 1 file, then the MAX that can be awarded is $150,000 divided by each defendant, right?

     

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  71.  
    identicon
    Rabbit80, Jun 23rd, 2010 @ 2:24pm

    Re: Copyright infringement/violation/theft and legal definitions !!

    Here is a specific example of where you are wrong.

    Torrents often contain several files. It is easily possible to download and view only one of those files. Even with movies, it is possible to view partially downloaded movies by simply pointing VLC at the temporary files. I quite often do this to watch a couple of minutes worth in order to assess if it is worth buying the movie or going to the cinema to see it.

     

    reply to this | link to this | view in thread ]

  72.  
    identicon
    abc gum, Jun 23rd, 2010 @ 6:15pm

    Re: Re: Re: Re: Re: Re:

    "who is the controller of the protocol"
    "who is the leader of the open source movement "
    "who has modified or supported modifications in the past specifically to help pirates to use bit torrent protocol to avoid legal issues"

    All of the above -> irrelevant.
    You imply there is illegal activity associated with the design, creation and maintenance of a protocol. Please specify, exactly, what statutes are being violated and give detailed reason for each - otherwise I assume you are blowing smoke.

     

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  73.  
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    ChurchHatesTucker (profile), Jun 23rd, 2010 @ 6:18pm

    Re: Re: Re: Re: Re: Re:

    "You all teaching a class?"

    Yes, but you're not paying attention.

     

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  74.  
    identicon
    nuckchorris, Jun 23rd, 2010 @ 10:57pm

    Y'all thieves

    Y'all sinners! Y'all gonna burn in hayell! Y'all.

     

    reply to this | link to this | view in thread ]

  75.  
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    PaulT (profile), Jun 24th, 2010 @ 5:07am

    Re: Re: Re: Re: Re: Re:

    As ever, you're talking out of your ass.

    I haven't seen The Hurt Locker, but I tend to like both bomb disposal films and Bigelow's body of work.

    However, the digital download of the movie is more expensive than the DVD. The UK release of the DVD is missing the commentary and other extras present on the American DVD so is not an attractive product. Thanks to region coding, I am not allowed to play the US import on my primary DVD player (an XBox 360, which I am not willing to hack as I like being able to access Live). Therefore, I was unsure of whether I wanted to buy the DVD - these actions have cemented the fact that I will not.

    They are causing their own problems, and morons like yourself would do well to stop defending them while they're shooting themselves in the foot.

     

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  76.  
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    Yeebok (profile), Jun 24th, 2010 @ 5:13am

    Re: Re: Re: Re: Re: Re:

    For those of playing at home .. theoretically I can open my browser and I can go to www.fluffykittensthatloveyourgovernment.com or I could visit www.terroristkiddiepornfilesharingkittehcrimerings.com
    (on the basic assumption the URL bears some relation to a website's function, of course).

    Simply, accessing either is via the http protocol. Since it can be used for illegal file sharing (you can download an infringing file from a web page) using that protocol, you evidently support banning it too. Extrapolating it further why are you using a protocol you think should be illegal ?

    Next you'll want to get rid of dihydrogen monoxide because it's a cause of many drownings.

     

    reply to this | link to this | view in thread ]

  77.  
    identicon
    darryl, Jun 26th, 2010 @ 1:00am

    Re: Re: Copyright infringement/violation/theft and legal definitions !!

    "You are the worst type of idiot. A right is not property, and you know it. You can't "steal" a right to an exclusive monopoly-- but you can infringe on it. "

    May be im the worst type of idiot, but can I say you are the best kind of idiot.

    "A right is not property, and you know it".

    Do I, so why are patents and copyright, blanked under interlectual PROPERTY laws.

    A right is property, you have a right to drive a car if you own a licene to do so. Your right and the license is property, no one else can use your property (the right to drive as determined by your licence) to drive a car.

    You have a right to drive a car, using your property that is enshrined in your drivers license, no one else has that right, **under YOUR drivers licence and rights**.

    You license to drive is your right, and your property.
    Its also a physical manifestation of interlectual property.
    Your right to drive with the property of that right enshrined in your licence, is **interlectual property** ie you have to display specific knowledge of driving and road rules to be allowed the right to drive.

    So rights are **property** by the legal and normal definitions of the term.

    If you are found guilty of sharing 1 file, (not accused) then the MAX according to you is $150000.

    You might want to look up the US "NET" legislation, that makes the fine $250,000, and or 5 years inside with some VERY friendly people !!.

    "NET" stands for "network electronic THEFT" legislation, you might want to check it out, so you actually know what your talking about.

    But just saying that copyright is not physical property, or property is just wrong, may be you should look a little further than Mike for your information.

     

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  78.  
    identicon
    tony, Oct 29th, 2010 @ 7:20am

    Darryl

    YOU CANT STEAL A "RIGHT"....i have a right to free speach, it cant be stolen, only infringed upon. Why dont you get it. You DONT have a right to drive a car, it is a priviledge and that priviledge can be taken away. The copyright is infringed upon. Stealing a copyright would make the thief the new owner of the work, giving him the rights to distribute and profit from it.

     

    reply to this | link to this | view in thread ]


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