Another ISP Fighting US Copyright Group Subpoenas; Why Aren't More ISPs Protecting Your Privacy?

from the unfortunate dept

With US Copyright Group filing tens of thousands of lawsuits against people accused of sharing movies like Hurt Locker online, we've been disappointed that many ISPs don't seem willing to stand up for their subscribers' rights, and are willing to hand over names without a thought. Time Warner Cable fought the subpoenas, but its main concern was the volume, not the concept. However, a small ISP in South Dakota, Midcontinent Communications is also asking for the subpoenas to be quashed, noting that its privacy policies say that it cannot hand out customer information to third parties without a court order. It also questions how it can be covered by the jurisdiction of a Washington DC court.

Bravo to Midcontinent Communications for actually standing up for its users. But, the real story here is why other ISPs are not doing this? This should be how pretty much any ISP responds to questionable subpoenas of this nature.


Reader Comments (rss)

(Flattened / Threaded)

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    Hulser (profile), Aug 30th, 2010 @ 8:36am

    "We respect our customers' privacy...unless paid appropriately"?

    From the linked article...

    "Tom Simmons, a spokesman for Midcontinent, said Friday that his company is objecting to this partly because Voltage hasn't offered to compensate the company for expenses related to looking up IP addresses and because the request puts an undue burden on the company. But Midcontinent is most concerned with protecting customer privacy, Simmons said."
    http://news.cnet.com/8301-31001_3-20014970-261.html?part=rss&subj=news&tag=2547-1_3- 0-20

    Hmmm, I wonder how strong the concern for protecting customer privacy would have been if Voltage had agreed to compensate Midcontinent.

    Also, pardon my ignorance on this topic, but why do ISPs keep records in the first place which would link an IP address to a specific customer? Unless this is mandated by law, wouldn't it be easier to just not log this information at all? I know there are probably legitimate technical hurdles to this, but if I were running an ISP, I'd want to be in a position where, if asked for the personal information associated to an IP address, I could honestly say "Sorry, we don't have that information."

     

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      Berenerd (profile), Aug 30th, 2010 @ 9:25am

      Re: "We respect our customers' privacy...unless paid appropriately"?

      They need to keep records for tracking bandwidth usage also, I believe there are Federal laws mandating they keep logs for so many years.

       

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        Hulser (profile), Aug 30th, 2010 @ 9:49am

        Re: Re: "We respect our customers' privacy...unless paid appropriately"?

        They need to keep records for tracking bandwidth usage

        Well, first off, if you have a truly unlimited plan, you don't need to track bandwidth usage. Secondly, surely there's a way to track bandwidth usage of the user and not of the public IP address.

        also, I believe there are Federal laws mandating they keep logs for so many years.

        I'm sure you're right, but I wonder if you got down into the specifics of the law, there wouldn't be some loophole that, if you were an ISP really interested in privacy, you could avoid storing identifying information.

         

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        Christopher (profile), Aug 30th, 2010 @ 1:44pm

        Re: Re: "We respect our customers' privacy...unless paid appropriately"?

        Yes, there are things mandating that they keep records HOWEVER.... those records only have IP address in them. Not things like MAC Addresses (which even those are easily faked), etc. that would DEFINITELY point to one person or another!

         

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          Shawn (profile), Aug 30th, 2010 @ 2:14pm

          Re: Re: Re: "We respect our customers' privacy...unless paid appropriately"?

          People do not have MAC addresses. a MAC address does not identify a PERSON any further than an IP address or shoe size does.

           

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    Christopher (profile), Aug 30th, 2010 @ 8:40am

    Many of these organizations are not challenging these things because it costs too much to challenge them, and the loss of one customer is not going to hurt them too much so they just comply with the legal requests.

    Until the consumers/customers start getting angry and telling these people "If you comply with these things, I am going to take my business elsewhere out of sheer principle!" things are not going to change!

     

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      Anonymous Coward, Aug 30th, 2010 @ 9:07am

      Re:

      Take elsewhere where?

      People in the U.S. don't have alternatives, most people are trapped in a exclusive area/building plan or just don't have another option.

      That is one reason probably the ISP's don't care they will not loose anyone they don't risk loosing anything even if people get mad.

       

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      Jon Renaut (profile), Aug 30th, 2010 @ 9:08am

      Re:

      The problem is, where is elsewhere? I live in downtown Washington DC, and my choices for broadband are Comcast cable and Verizon dsl. That's it. And much of the country has even fewer options than I do.

       

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        ChurchHatesTucker (profile), Aug 30th, 2010 @ 9:49am

        Re: Re:

        Also Clear wireless. (But if you're on a Mac, just stick to the 'on the go' modem. I've been dealing with them for a week and have burned through two of their 'home modems.')

        As to your larger point, Mike has been saying for years that it's competition that would rectify this, not net neutrality laws that will be influenced by entrenched concerns.

         

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    Andrew Duane (profile), Aug 30th, 2010 @ 8:47am

    Comcast policy

    According to Comcast's Privacy page:

    "We make every reasonable effort to protect subscriber privacy as described in this notice. Nevertheless, we may be required by law to disclose personally identifiable information or individually identifiable CPNI about a subscriber. These disclosures may be made with or without the subscriber’s consent, and with or without notice, in compliance with the terms of valid legal process such as a subpoena, court order, or search warrant.

    For subscribers to our high-speed Internet and phone services, the Cable Act requires Comcast to disclose personally identifiable information and individually identifiable CPNI to a private third party in response to a court order, and we are required to notify the subscriber of the court order. The Cable Act requires us to disclose personally identifiable information and individually identifiable CPNI about subscribers to high-speed Internet and phone services to a government entity in response to a subpoena, court order, or search warrant, for example. We are usually prohibited from notifying the subscriber of any disclosure of personally identifiable information to a government entity by the terms of the subpoena, court order, or search warrant."

     

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    Spaceman Spiff (profile), Aug 30th, 2010 @ 8:59am

    pockets

    Me thinks that how an ISP acts in such cases depends a lot upon who's hands are in their pockets/pocketbooks, and who they have financial "arrangements" with. In the case of Comcast, they are not only an ISP, but a cable operator, so they have a vested interest in protecting their suppliers. Caveate emptor!

     

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      Krazy Kevin, Dec 2nd, 2010 @ 4:22pm

      Re: pockets

      I'm sure that they'd rather have you purchase a pay per view movie from them instead of downloading the same movie for free. Charter also provides internet and cable TV and they will actually send you threatening letters if you download a movie over their service. What a$$hole$!

       

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    TDR, Aug 30th, 2010 @ 9:04am

    And this is why companies should never be allowed to grow beyond a certain size. They should automatically be broken up into smaller non-profit sharing companies once they reach a certain threshold (regional, perhaps).

     

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      Hulser (profile), Aug 30th, 2010 @ 9:16am

      Re:

      The trouble with that policy is that any country which would implement it would be at a huge disadvantage to countries which didn't. No matter what your opinion is of corporations or capitalism, there are advantages to being big. Personally, I think there is plenty of room between being large enough to reap the benefits of economies of scale and being so large as to be "too big to fail". The problem of course is there is no objective rule for where a company falls on this continuum.

       

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        Anonymous Coward, Aug 30th, 2010 @ 12:07pm

        Re: Re:

        You see that is why I love capitalism, if this was a real capitalism economy those companies would have bite the dust long ago and new ones would have sprung in their places.

        What is missing is the renew part, there is no renewing on the market inside the U.S. and that will cost dearly.

         

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        Christopher (profile), Aug 30th, 2010 @ 1:46pm

        Re: Re:

        No, they wouldn't be at a disadvantage, those countries that didn't break up monopolies. In fact, they would be at MORE of an advantage because they would have TRUE competition in their countries, which would DRIVE DOWN PRICES!

         

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        Krazy Kevin, Dec 2nd, 2010 @ 4:41pm

        Re: Re:

        I know there are about half a dozen satellite internet providers in Canada, I wonder if they are allowed to sell their service to customers in the U.S.? Canada already has some pretty good internet privacy laws in place. I imagine that if a huge internet privacy movement started in the U.S. and several thousand U.S. citizens decided that a Canadian satellite internet service provider deserved their business. That might actually get the attention of the spineless U.S. internet service providers who don't think your privacy is important!

         

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    btrussell (profile), Aug 30th, 2010 @ 9:10am

    My ISP just forwards me any message received without giving my info to requester. If there was a court order, they would hand over my info.

     

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      average_joe (profile), Aug 30th, 2010 @ 9:27am

      Re:

      With US Copyright Group filing tens of thousands of lawsuits against people accused of sharing movies like Hurt Locker online, we've been disappointed that many ISPs don't seem willing to stand up for their subscribers' rights, and are willing to hand over names without a thought. . . . Bravo to Midcontinent Communications for actually standing up for its users. But, the real story here is why other ISPs are not doing this? This should be how pretty much any ISP responds to questionable subpoenas of this nature.

      Just what rights would ISPs be standing up for? The right to infringe on other people's copyrights?

      I've read the motion to quash, and in this specific case, it does appear that the subpoena isn't proper. What does this have to do with subpoenas in other cases? On what basis would an ISP object to a motion to quash if the subpoena was properly issued?

      Jesus, Mike, how do you get it wrong so often? I truly wonder.

       

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        The Infamous Joe (profile), Aug 30th, 2010 @ 9:39am

        Re: Re:

        They are handing over personal information to a third party on an allegation. Perhaps you don't see a problem with that but I do.

         

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          average_joe (profile), Aug 30th, 2010 @ 10:10am

          Re: Re: Re:

          They are responding to a subpoena issued by a court. The underlying facts of the case are immaterial to their duty to respond.

           

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            The Infamous Joe (profile), Aug 30th, 2010 @ 10:24am

            Re: Re: Re: Re:

            When will you learn that an IP address isn't a person? If I thought someone with brown hair copied my book, I don't automagically get to know personal information on everyone with brown hair.

             

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              average_joe (profile), Aug 30th, 2010 @ 10:31am

              Re: Re: Re: Re: Re:

              When did I say an IP address is a person? An IP address creates a reasonable inference. How else would a copyright holder know who to go after? Got a better way?

               

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                The Infamous Joe (profile), Aug 30th, 2010 @ 11:22am

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

                Yeah, adapt to new technology and stop suing your underserved potential customers.

                 

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                  average_joe (profile), Aug 30th, 2010 @ 11:27am

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

                  You didn't answer my question though. Assume for the sake of argument that the rights holder wants to exercise their rights against an infringer. How else could they identify the infringer? That's my question.

                   

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                    Richard (profile), Aug 30th, 2010 @ 11:40am

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

                    Assume for the sake of argument that the rights holder wants to exercise their rights against an infringer.

                    Or - assume that you (as a military dictator) wish to find out who might be plotting against you. How are you supposed to do it without torturing and murdering people?

                    The point is that if you make bad assumptions you'll get bad conclusions.

                    When copyright law was invented your question was fairly easy to answer without requiring oppressive enforcement.

                    Printing equipment was large and difficult to hide. Infringement without mass distribution for money was inconceivable because of the high cost of the process.

                    Now technology has changed and this law cannot be enforced without a police state. Logic says the laws has to go - or at least be changed radically.

                     

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                      average_joe (profile), Aug 30th, 2010 @ 11:45am

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

                      So you think rights holders should not be able to bring suit for online infringement because online infringement is so rampant? If that's your point, I disagree. So do all three branches of government.

                       

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                        The Infamous Joe (profile), Aug 30th, 2010 @ 11:59am

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

                        What he is saying, and I agree, is that the law was written with the assumption that anyone infringing would be devoting a large amount of money to do so, so it assumes a financial return. Going after people who infringe non-commercially for huge fines is simply a perversion of the law. The law no longer fits with the times. It sucks for people who depended on the law in question to make a living, but that, sadly, is the way it has to be. The only other option, e.g. attempting to prevent infringement, requires a very strict police state to be successful. And before you jump on that bandwagon you should check to see if you have the rights to your avatar image.

                        Further, saying that it is right to abuse the law because no judge, lawyer, or congress has changed it is foolish. It weakens your argument.

                         

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                          average_joe (profile), Aug 30th, 2010 @ 12:11pm

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

                          How did you come to the conclusion that the law was written with that assumption in mind? If Congress didn't like how the courts were interpreting their laws, they would change the laws.

                          The most recent changes to the laws are to make the penalties steeper. This indicates to me that Congress wants to crack down on infringement, no lighten up on it.

                          I never said it's right to abuse the law. The ones abusing the law are the infringers. The law makes that very clear.

                           

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                            The Infamous Joe (profile), Aug 30th, 2010 @ 12:17pm

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

                            I assume that because the only way to mass infringe when the law was written the printing press.

                            Also, try not to confuse money and lobbying power with justice.

                             

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                            Richard (profile), Aug 30th, 2010 @ 3:37pm

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

                            The most recent changes to the laws are to make the penalties steeper. This indicates to me that Congress wants to crack down on infringement, no lighten up on it.

                            Sometime the law is about justice - but at other times it is about power.

                            If you want to live in the society that will be the outcome of this trend then you can of course support it, but I advise you to examine the consequences before you do.

                             

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                              average_joe (profile), Aug 30th, 2010 @ 8:22pm

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

                              Copyright isn't going anywhere anytime soon. You can count on more infringement by defendants, and more plaintiffs taking them to task. Doesn't bother me in the least.

                               

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                        Richard (profile), Aug 30th, 2010 @ 3:43pm

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

                        So you think rights holders should not be able to bring suit for online infringement because online infringement is so rampant?

                        Not because it is so rampant - but rather because the measures needed are so oppressive. It is not the amount of infringing traffic that is the problem - it is the amount of innocent traffic that has to be snooped on in order to find it.

                        Your problem is that you believe that the ends justify the means.

                         

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                          average_joe (profile), Aug 30th, 2010 @ 8:24pm

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

                          I don't think the means are that oppressive. I think it's a good, reasonable balance between rights holders and infringers. I see very little thought about the rights holders in these comment sections. It really makes me wonder about the values of those posting here.

                           

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                            Richard (profile), Aug 31st, 2010 @ 5:15am

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

                            I don't think the means are that oppressive. I think it's a good, reasonable balance between rights holders and infringers.

                            That isn't the balance I'm concerned about. I'm concerned about the balance between rights holders and innocent 3rd parties. I think that balance has to be struck strongly in favour of the third parties.

                            You will of course protest about the rightsholders plight - but the point is that there really is no solution to their problems in that direction. If enforcement against current methods of piracy (bittorrent) ever became effective then all that would happen is that piracy would just move to the next more secure/private platform and carry on as before. Freenet is up and running. All it needs is to be needed - and it will take off. This is just a continuation of the process that started with Napster and progressed through Kazaa and others to bit torrent. The important point is that, although each stage in the process makes piracy less convenient it also makes anti-piracy measures more expensive. The rightsholders are thus bound to lose in the end unless they can can persuade the government to force the 80% of the population who are neither rightsholders nor infringers to pay the bill.

                            I see very little thought about the rights holders in these comment sections. It really makes me wonder about the values of those posting here.

                            On the contrary there is plenty of thought here about rights holders (or at least about content creators and the subset of middlemen who perform a useful function).

                            We are thinking of ways that they can continue to create and earn a living without turning the country into a police state.

                            What I don't see in your comments is much concern for reality, you seem to believe that the law and the actions of one particular legistlature (the US one) should be the standard against which opinions are judged - whereas most of us prefer the laws of physics and economics.

                            The values I see from most commenters are based on a respect for reality and morality.

                            Until you accept that basic human morality as laid out in the Sermon on the Mount should trump the law and that physics and economics inevitably do trump the law. then your opinions will always clash with most commenters here.

                             

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                              average_joe (profile), Aug 31st, 2010 @ 6:10am

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

                              I know lots of people here have strong opinions on these things, but I don't think they really understand the balancing that's gone on in the legislature or the courts. Without understanding that, I think people's opinions are based on less than the full picture.

                              Most of what I've posted in this thread is just my understanding of how these things play out in court and not my personal opinion. I'm get a lot of hostility for just telling it like it is, but I don't really mind.

                               

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                    AJ, Aug 30th, 2010 @ 11:57am

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

                    "You didn't answer my question though. Assume for the sake of argument that the rights holder wants to exercise their rights against an infringer. How else could they identify the infringer? That's my question."

                    I don't think in a case where there is one "infringer" at question is the problem. They are asking for thousands of peoples names so that they can sue them based on nothing more than an acusation. Don't they need some kind of court order to force the isp's to hand over all their customer data? If not, why not just say everyone is an "infringer" and sue the whole world while your at it? Hell we could extort the entire planet, even if only 1% pony up the extortion money on our make shift website, we would be rich!

                     

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                      average_joe (profile), Aug 30th, 2010 @ 12:04pm

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

                      How does the number of defendants change anything? I don't see how it does. They aren't suing everyone, just the people they have reason to believe infringed on their rights. They get a subpoena from a court against the ISP to identify the infringers. How else could they know who infringed on their rights? These cases aren't as nefarious as people make them out to be.

                       

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                        Anonymous Coward, Aug 30th, 2010 @ 2:24pm

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

                        I believe you have infringed my rights. Please reveal all your personal information.

                         

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                          TtfnJohn (profile), Aug 30th, 2010 @ 3:46pm

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

                          Glady, as long as you reciprocate by revealing all your personal information to me.

                          See how silly it gets? And how quickly it gets there?

                          Maybe it makes sense to AJ but I daresay it doesn't to anyone else.

                           

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                            average_joe (profile), Aug 30th, 2010 @ 8:27pm

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

                            It makes sense to me, and it makes sense to the courts. Do you even understand the logic of the courts that you are dismissing? I don't think so.

                            Personally, I like to understand both sides of an argument, but you do what you want.

                             

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                      TtfnJohn (profile), Aug 30th, 2010 @ 4:27pm

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

                      First off let me apologize for inadvertantly confusing you and our not very average_joe. (And how's that for a recording and movie industry shill nick? :))

                      And you're right. The IP address only gives them the name and address of someone they suspect and are ready to accuse of being an infringer without much, if any, evidence to back up the suspicion or accusation.

                      One example, you and your partner are foster parents and are currently fostering, say, 5 children all of whom have access to one or another computing device.

                      I'm average_joe and I feel you've infringed on my world renowned dissertation about how to legally flatten copyright infringers by running them over with the tracks of a D-9 cat and a M-1 tank. (Don't take that too seriously average_joe, if you can manage it.) Not only has someone at that address with that ISP done that but they must have somehow gotten the bound, full colour version of the dissertation complete with appendix, supporting case law back to Pliny the Elder and illustrations of his proposed device which he as also submitted to the USPTO. It's been posted on Techdirty of all places! Smarmy blogger Mike!

                      Now there are 7 people having access to machines at that IP and at that address not counting war divers who land on the WiFi all day long.

                      Now, this has to be a reasonable inference that you are the sole and only "guilty" party at that location because, in his world, he needs nothing else to slap you across the face with a lawsuit. And, somehow, having assumed that he further assumes that somewhere along the line the English presumption of innocence has become the Continental presumption of guilt in the United States. The lawsuit doesn't even have to include any detail on just what the heck it is you are presumed to have violated.

                      One small problem. No one was home that day and the wifi was turned off though the modem was left running with all the computing devices save one, attached to the alarm system, were turned off. You even have clear cut evidence that no one was there because you and the family were at an event where one of the foster children was being honoured for the fact that her scholastic achievement has skyrocketed from perennial F student to the honour roll in one year. You know. Photos, a couple of hundred eye witnesses and so on.

                      Thing is that in filing for the subpeona he reversed two characters in the last octet of the IP address. Totally inadverently of course.

                      And as you discovered when you returned home someone had tried to break in and the alarm had gone off sending grainy still and video shots of the alleged B&E "artist" who tried to jimmy the shop door thereby attracting the attention of the territorial great dane you have who angrily took exception to his presence on the dog's property.

                      The person with the real IP address turns out to be someone one state over with the same ISP. He and average_joe, both now articling at the RIAA, had gotten into a bar room brawl over one of the finer points of intellectual property law so this is the guy that downloaded and spread the stuff in a fit of rage after he was released from hospital with a broken nose and shattered gold tooth.

                      Remember, though, that he had a reasonable inference even after he received the information back again to have the barest of slightest of suspected "evidence" that it was you and insisted on taking you to court. Moments before the case was called average_joe is suddenly confronted with the screw up and drops the case though for months he and his employer have been having a field day at your (so far unnamed) expense all over the Interwebs.

                      It may make sense to average_joe and a court clerk or magistrate who will sign any subpeona request that comes their way late in the afternoon before heading off the the Jolly Barrister's Bar and Grille for a burger and beer for supper.

                      No harm done. Right? All quite reasonable. Right? All very real world, right?

                      Well no, because in the REAL real world that's not how the Internet works or has ever worked or is likely to ever work, average_joe's fevered imagining or not.

                      Again, I deeply apologize for the mix up and the insult it must have been for you.

                       

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                        average_joe (profile), Aug 30th, 2010 @ 8:36pm

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

                        Now I'm a shill? LOL! Nope. I'm a student. I'm obsessed with learning all I can about these issues from all different sides. What do you know? What have you read? What do you study? Not copyright infringement in the US. That much is perfectly clear. I bet you've never read one court opinion on the matter. I read several every day.

                         

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                    btrussell (profile), Aug 30th, 2010 @ 5:36pm

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

                    It is against the law to harvest Marijuana.

                    How do you propose we enforce this?

                    Some laws are not easy to enforce and should have been looked at harder before making those laws.

                     

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                      average_joe (profile), Aug 30th, 2010 @ 9:13pm

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

                      So you think substantive law should be based on how easy it is to enforce? Pass the dutchie on the left hand side. :)

                       

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                        Richard (profile), Aug 31st, 2010 @ 5:39am

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

                        So you think substantive law should be based on how easy it is to enforce? Pass the dutchie on the left hand side. :)

                        So you think it makes sense to make a law that you know in advance cannot be enforced?

                        I'm afraid that line of reasoning was debunked over a thousand years ago by Cnut.

                        "Henry of Huntingdon, the 12th-century chronicler, tells how Cnut set his throne by the sea shore and commanded the tide to halt and not wet his feet and robes; but the tide failed to stop. According to Henry, Cnut leapt backwards and said "Let all men know how empty and worthless is the power of kings, for there is none worthy of the name, but He whom heaven, earth, and sea obey by eternal laws." He then hung his gold crown on a crucifix, and never wore it again.[88]"

                         

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                          average_joe (profile), Aug 31st, 2010 @ 6:12am

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

                          But it can be enforced. It is being enforced. And the reality is, it will be continue to be enforced. I haven't seen anything that leads me to believe rights holders are throwing in the towel. Quite the opposite in fact.

                           

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                            The Infamous Joe (profile), Aug 31st, 2010 @ 6:42am

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

                            Yes, it can be enforced, but looking at the big picture, it is a losing battle. The *only* way the rights holders can stop piracy is to remove everyone's privacy. You can't possibly be so deluded to feel that the loss of privacy is worth propping up a failing business model. (I hope)

                            this really isn't (and never was) a legal matter, it is an economic matter. People don't need a middle man to make copies for them. It isn't the general public's fault that creators tired their profits directly to the middle men's profits. A new business model is needed, not new laws. Of course, no one here expects you to believe that, as it is in your best interests to keep it a legal matter.

                             

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                              average_joe (profile), Aug 31st, 2010 @ 7:04am

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

                              I don't really care what the laws are either way. If Congress were to legalize all file sharing tomorrow I'd be just as happy. I don't think they will though, not anytime soon.

                               

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                TtfnJohn (profile), Aug 30th, 2010 @ 1:45pm

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

                Ahh, the identity number of the dataset in the computer being used? Say in a household with mutliple computers accessing the net?

                Even with an IP number doesn't identify an individual only a location. Hell, it doesn't identify a human being!

                How else would they know? They don't even with that.

                Got a better way? Sure, how about a little (more expensive) research before unleashing the legal hounds of war?

                 

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                  average_joe (profile), Aug 30th, 2010 @ 2:03pm

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

                  If all you have is the IP address of the infringer, how would you do more research without being able to put a name to the IP address? That's the whole point of the subpoena.

                   

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                    Anonymous Coward, Aug 30th, 2010 @ 2:14pm

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

                    If thats all you have, then you don't really have anything do you? The only reason an IP address is thought of as actual evidence is because it can be use to issue subpoenas. If subpoenas aren't valid/legal, then the ip is worthless. You method for detecting infringes is flawed if all it generate is IPs. Do a real investigation, locate people attempting to sell copied content, use a network of informants, do some real investigation rather then just coping down a bunch of ip address you think were involved in downloading/uploading a movie.

                     

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                      Anonymous Coward, Aug 30th, 2010 @ 8:10pm

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

                      It's not much, but it's enough to get a subpoena. That gets the ball rolling in an infringement case.

                       

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                Christopher (profile), Aug 30th, 2010 @ 1:50pm

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

                No, it doesn't create a 'reasonable inference' with things like EASILY hacked home wireless networks and easily tapped wired networks.

                It doesn't create a reasonable inference at all except in the minds of the stupid, average_joe, which you apparently are.

                 

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                  average_joe (profile), Aug 30th, 2010 @ 2:00pm

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

                  You may not think that it creates a reasonable inference, but courts hold that it does all the time. That's why subpoenas are issued in these Doe cases. Of course, the defendant can rebut the inference, but that part comes later in the process. To get the subpoena, though, it's enough.

                  I'm not sure why my pointing out how the real world works upsets you guys so much.

                   

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                    TtfnJohn (profile), Aug 30th, 2010 @ 3:54pm

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

                    Because the real world doesn't work that way? :)

                    I strongly suspect that because the issuing of John Doe subpoenas hasn't been well tested in these cases that, in the end, a court will understand and rule that an IP address doesn't create any sort of reasonable inference other than and address. Maybe. It certainly, in the real world, doesn't point it's finger at the responsible individual.

                    At times the real world doesn't agree with the legal world about how the real world works. It takes time but eventually it's an argument the REAL real world wins all the time.

                    Unless, of course, it's a third rate student, apparently, who does nothing more that spout off expressions and spin of the recording and movie industry as you do. Not very well, either.

                     

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                      average_joe (profile), Aug 30th, 2010 @ 8:31pm

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

                      You can "strongly suspect" all the BS you want, or you can actually take the time to understand to understand what is happening. I choose the latter, but you clearly do not.

                      Now I'm "third rate"? LOL! You haven't let reality guide you in any of your other opinions that I've read. Why start now?

                      What I'm talking about is how things really work in the real world. Why does that upset you so?

                      I know you don't know about the things that I'm talking about. You can choose to learn something new, or you can choose to brush it off. I don't really care either way.

                      You strike me as one of the most vocal yet uniformed people I've ever met on the 'net. Congrats!

                       

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            Jay (profile), Aug 30th, 2010 @ 10:25am

            Re: Re: Re: Re:

            By a court clerk, not necessarily the judge. Also, it's the First Amendment that should allow a person to respond to a request, not have their information taken away to be used against them.

             

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              Jay (profile), Aug 30th, 2010 @ 10:26am

              Re: Re: Re: Re: Re:

              *not First Amendment*

              Right to Privacy - 4th Amendment

               

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              average_joe (profile), Aug 30th, 2010 @ 10:32am

              Re: Re: Re: Re: Re:

              Copyright infringement is not free speech protected by the First Amendment.

               

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                The Infamous Joe (profile), Aug 30th, 2010 @ 11:26am

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

                Isn't fair use based on the idea that some copyright infringement should be protected to allow for freedom of expression?

                 

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                  average_joe (profile), Aug 30th, 2010 @ 11:33am

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

                  Sure, but that's not the point. An ISP responding to a subpoena has nothing to do with the fair use privilege.

                   

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                Mike Masnick (profile), Aug 30th, 2010 @ 12:11pm

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

                Copyright infringement is not free speech protected by the First Amendment.

                There are some very serious arguments to the contrary. I believe I've recommended the book "No Law" to you, as it makes a rather compelling case that copyright law, as it stands today, is a huge violation of the First Amendment.

                 

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              DH's Love Child (profile), Aug 30th, 2010 @ 12:43pm

              Re: Re: Re: Re: Re:

              Also, it's the First Amendment that should allow a person to respond to a request, not have their information taken away to be used against them.

              And I believe here that the 6th amendement would come into play: the right to confront your accuser?

               

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        TPBer, Aug 30th, 2010 @ 9:41am

        Re: Re:

        If you have not yet figured out that any file on the net is up for grabs. I feel for you and your ignorance. This is an unstoppable force that's impossible to even slow down.

        It's time time wake up and start making money from this instead of pouring money into the black hole.

         

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          average_joe (profile), Aug 30th, 2010 @ 10:12am

          Re: Re: Re:

          LOL!

           

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          Christopher (profile), Aug 30th, 2010 @ 1:59pm

          Re: Re: Re:

          Right in one. The fact is that there are MANY people who are able to make money on their stuff by selling it on the internet.

          Not as much as they would if they were selling it totally offline or if the internet didn't exist, but a good bit.

          The thing that the internet allows you to do is "Try before buy", which a lot of people are really whining about. They don't like that people are trying their music or movies, finding out that they are crap, and then not buying them.

           

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        Free Capitalist (profile), Aug 30th, 2010 @ 9:53am

        Re: Re:

        ust what rights would ISPs be standing up for? The right to infringe on other people's copyrights?

        I think this has been shared with you before, AJ. But, for your reference, the rights an ISP would be standing up for by refusing to hand over personal information would be our Fourth Amendment rights in the U.S.

        The problem with the "guilt by IP address en masse" method, is that IP addresses can be shared, hijacked and even spoofed. By initiating these area-of-effect lawsuits, they are going to fuck at least a few innocent people every time. The innocent have much less chance at proving their innocence when they are addressed by the court as a herd of cattle.

         

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          average_joe (profile), Aug 30th, 2010 @ 10:14am

          Re: Re: Re:

          The Fourth Amendment has nothing to do with a civil copyright infringement case. Do you just make this stuff up?

           

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            Modplan (profile), Aug 30th, 2010 @ 10:20am

            Re: Re: Re: Re:

            So copyright infringement trumps privacy?

             

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            Jay (profile), Aug 30th, 2010 @ 10:27am

            Re: Re: Re: Re:

            And it starts... The stating of one belief while ignoring all evidence to the contrary.

             

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              average_joe (profile), Aug 30th, 2010 @ 10:34am

              Re: Re: Re: Re: Re:

              I actually look at these things from the plaintiff's and the defendant's perspectives. I look for balance. I don't think many people who comment here do the same.

              How am I ignoring evidence?

               

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                Jay (profile), Aug 30th, 2010 @ 12:23pm

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

                I'm seriously doubting you're looking at a defendant's perspective if you're saying the 4th Amendment, a natural right we're given by our Constitution, supposedly doesn't apply even in a civil case.

                 

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            Free Capitalist (profile), Aug 30th, 2010 @ 10:34am

            Re: Re: Re: Re:

            The Fourth Amendment has nothing to do with a civil copyright infringement case.

            ...unless the filing lawyers ask for unreasonable search and seizure, which seems to be the case when they ask for identities without substantiation or court order.

            Do you just make this stuff up?

            No, in this case, Wikipedia "just made stuff up". Oh, also in this case, the The U.S. Constitution is also "just making stuff up".

             

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              average_joe (profile), Aug 30th, 2010 @ 11:22am

              Re: Re: Re: Re: Re:

              The Fourth Amendment protects against unreasonable searches and seizures carried out by government actors. Again, it does not apply in a civil infringement case.

               

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                John D (profile), Aug 30th, 2010 @ 11:54am

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

                The Fourth Amendment protects against unreasonable searches and seizures carried out by government actors. Again, it does not apply in a civil infringement case.

                This is not correct. Several Ammendments - such as the First - do specify in their language that they are restrictions upon what government bodies can do, but not this one. It's wording is very plain:

                The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

                 

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                  average_joe (profile), Aug 30th, 2010 @ 11:59am

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

                  Can you name a single civil infringement case where the Fourth Amendment was at issue?

                  How about any civil case other than a civil forfeiture proceeding?

                   

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                    Modplan (profile), Aug 30th, 2010 @ 12:03pm

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

                    How many civil infringement cases involved demands for personal info that had to be granted via a court before any reasonable evidence was presented to justify said handing over of personal information?

                     

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                      average_joe (profile), Aug 30th, 2010 @ 12:30pm

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

                      The Doe defendant cases work this way. They have been challenged on many different grounds, and as far as I know, never successfully.

                       

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        Mike Masnick (profile), Aug 30th, 2010 @ 10:03am

        Re: Re:

        Just what rights would ISPs be standing up for? The right to infringe on other people's copyrights?

        Privacy rights? Not important to you? Wow.

        No one is saying that users have a right to infringe, and you know it. It's ridiculous for you to even suggest that. But simply giving an IP address and demanding your identifying information in a mass lawsuit is a huge privacy violation.

        Jesus, Mike, how do you get it wrong so often? I truly wonder.


        Heh. When in doubt resort to misguided insults. Classy.

         

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          average_joe (profile), Aug 30th, 2010 @ 10:28am

          Re: Re: Re:

          Did I say privacy rights aren't important to me? Nope. Can you ever debate me without misstating my position? Apparently not.

          So you think privacy rights trump the rights of copyright holders? Can you find a single court that agrees with your assessment?

          And why does the number of defendants matter so much? What's the difference rights-wise if they file one big lawsuit or several individual suits?

          Misguided? You really don't ever see how wrong you are, do you? It's not misguided at all to point out your mistakes.

           

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            Modplan (profile), Aug 30th, 2010 @ 11:55am

            Re: Re: Re: Re:

            CITATIONS NAO!!!11

             

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            Mike Masnick (profile), Aug 30th, 2010 @ 12:14pm

            Re: Re: Re: Re:

            Did I say privacy rights aren't important to me? Nope.

            You said, quite clearly, that the only rights ISPs might be standing up for were rights to infringe on copyrights.

            Since you ignored privacy rights, I assumed -- quite reasonably, I believe -- that you do not support privacy rights.

            And why does the number of defendants matter so much? What's the difference rights-wise if they file one big lawsuit or several individual suits?

            Lawsuits that unfairly link together totally disparate acts are unfair to the defendants as it is more difficult to defend themselves. Don't they teach this stuff in law school?

            Misguided? You really don't ever see how wrong you are, do you? It's not misguided at all to point out your mistakes.

            I have not made a mistake. You disagree with my opinion. Learn the difference, and you might come across as a little more interesting rather than a law student who just discovered copyright law.

             

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              average_joe (profile), Aug 30th, 2010 @ 12:22pm

              Re: Re: Re: Re: Re:

              You said ISPs should stand up for their subscribers' rights. I asked which rights you meant. I wondered if you meant the right to infringe. It was a tongue-in-cheek comment. I now understand that you meant the subscribers' privacy rights. I don't see how an ISP could even make that argument and have it be considered by a court. I'm pretty sure it doesn't work that way. If you have information otherwise, please, do tell.

               

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                TtfnJohn (profile), Aug 30th, 2010 @ 1:56pm

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

                As has been demanded from you before please cite court cases where the copyright holder (who, more often than not, is not the creator) has won a case where privacy rights have been raised. Preferably to the US Supreme Court.

                You seem quite convinced that a copyright holder's suspicions of infringement, a civil not criminal act, trump the right to privacy. Based, mostly on that an IP address is assigned to household A and was assigned to that household when the suspected infringement took place. I'm kinda sure that such a claim wouldn't hold water in a civil or criminal court. Suspicion is not admissible evidence. Given the weakness of IP assignment tracing at the best of times there is little more than suspicion at play here based on very flimsy information.

                Let's see how that stands up against a claim of legally protected privacy.

                 

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                  average_joe (profile), Aug 30th, 2010 @ 2:06pm

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

                  Do you really think you've just discovered an argument that trumps all, and anyone making it will evade liability in an infringement suit? LOL! Like people haven't tried that.

                  Do some homework yourself if you want to learn more.

                   

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                    TtfnJohn (profile), Aug 30th, 2010 @ 2:32pm

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

                    I'll admit to not researching US law on the matter but as privacy is a guaranteed right under the Charter of Rights and Freedoms in Canada, part of our constitution that was tried exactly once in Canada and tossed due to the circumstances I described. That it was never appealed tells me volumes.

                    That hasn't stopped copyright holders from trying to go after suspected infringers it's just forced them to do a little more research on the subject before they waste the courts time. Thankfully in civil law "John Doe" subpoenas in Canada aren't allowed. The closest you get is "John Smith et al" and as the plaintiff you had better have the "et al" sorted out before John Smith ends up in court or you've lost.

                    I seem to have had more experience in the civil legal system in my life than you have even if it's in a different country. In many ways our systems are parallel so it's damned good chance that a law company fighting an infringer would have a hard time getting a judge to enforce based on suspicion given the evidence is an IP address and less than that if it's an address inhabited by more than one person.

                    Even on suspicion alone without corroborating evidence of date, time, which files and so on you have nothing that trumps the right to privacy.

                     

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                      average_joe (profile), Aug 30th, 2010 @ 8:08pm

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

                      I've read lots of case law on point, and when I say I'm telling people how it is, it is because I've researched what I'm saying extensively beforehand. I don't try to pass off my opinion as fact, and I'm very careful to qualify what I say when necessary. I work for a judge, I'm in law school, and I read about the law all of my waking hours, every day of the week.

                      I'm not sure how you've decided you know more about copyright infringement in the US than me. As far as I can tell, you know absolutely nothing about it and you've never read any case law.

                      But hey, whatever makes you feel good.

                      If you want to look at the factors that a court looks at to determine if the subpoena is good in an infringement case, see, e.g, Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004).

                       

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                Mike Masnick (profile), Aug 30th, 2010 @ 4:32pm

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

                You said ISPs should stand up for their subscribers' rights. I asked which rights you meant. I wondered if you meant the right to infringe. It was a tongue-in-cheek comment. I now understand that you meant the subscribers' privacy rights. I don't see how an ISP could even make that argument and have it be considered by a court. I'm pretty sure it doesn't work that way. If you have information otherwise, please, do tell.

                You don't think it's a good idea for ISPs to stand up for their users' privacy in the face of mass automated copyright filings based on little evidence? I'm glad you don't run an ISP.

                 

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                  average_joe (profile), Aug 30th, 2010 @ 8:40pm

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

                  I do think it would be a good idea for an ISP to stand up for their users' privacy. I'm with you there.

                  I just think there are no viable arguments to be made in such infringement cases by the ISP if the subpoena is valid. Not privacy arguments anyways.

                  I've researched this specific issue and come up empty. Lots of arguments have been tried. All failed.

                   

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    TPBer, Aug 30th, 2010 @ 10:15am

    Is Clear actually a viable alternative?

    @ 3MB/sec, it's fine for emailing and light surfing. Netflix streams over wifi to the Roku just fine as long as nobody else is using any bandwidth.

     

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    Yasha Heidari (profile), Aug 30th, 2010 @ 10:59am

    Why?

    I personally agree that other ISPs should take a similar approach.

    More ISPs do not take a similar approach, however, because fighting the subpoenas can have substantial monetary costs, and it usually costs quite a bit more to fight the subpoena than it does to simply comply with the subpoena or discovery request. This analysis becomes even easier for the ISP when considering that many (but not all) states have laws that limit liability as a result of complying with third-party discovery requests or subpoenas.

    Yasha Heidari
    Attorney-at-Law
    www.heidariplank.com

     

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      average_joe (profile), Aug 30th, 2010 @ 11:25am

      Re: Why?

      Assume the subpoena wasn't defective and the cost of litigation wasn't an issue. On what basis would the ISPs fight the subpoena? What are the arguments? I can't think of any that hold water.

       

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        AJ, Aug 30th, 2010 @ 12:01pm

        Re: Re: Why?

        Money! If they fight and win against a single subpoena, they may not have to fight anymore, or give up the info. Would only cost them once to win, could cost them for a lifetime if they loose...

         

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          average_joe (profile), Aug 30th, 2010 @ 12:17pm

          Re: Re: Re: Why?

          If there were a simple argument that ISPs could make to get out of these subpoenas, I bet they would make that argument. I don't think there is such an argument.

           

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            TtfnJohn (profile), Aug 30th, 2010 @ 1:57pm

            Re: Re: Re: Re: Why?

            References and illustrations, preferably case law, please.

             

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            Richard (profile), Aug 31st, 2010 @ 6:13am

            Re: Re: Re: Re: Why?

            If there were a simple argument that ISPs could make to get out of these subpoenas, I bet they would make that argument. I don't think there is such an argument.

            Clearly the best option for the ISPs is what most of them are actually doing - which is to fight the subpoena in every possible way short of actually opposing it directly. This means making life as awkward and expensive as possible for the plaintiffs and introducing any delay in the process that they can.
            If US law is like UK law then they will be able to recover the cost of compliance from the plaintiff later, and be immune from prosecution themselves, provided that they maintain some kind plausible compliance. On the other hand they also want to reassure their customers by not just obviously caving in.

             

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              average_joe (profile), Aug 31st, 2010 @ 6:21am

              Re: Re: Re: Re: Re: Why?

              USCG is supposed to pay the ISPs for their efforts in doing these IP lookups, or else it wouldn't be fair. I believe Midcontinent said they could do the roughly 250 lookups in about three hours, and it would cost them about $300 (I don't remember the exact numbers, but that's about right). USCG would pay for this. One of Midcontinent's objections was that USCG hadn't offered to pay in their fax.

               

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                average_joe (profile), Aug 31st, 2010 @ 6:33am

                Re: Re: Re: Re: Re: Re: Why?

                I looked up the actual numbers with Midcontinent: 143 lookups, 3.5 hours, and $350.

                I wonder why Time Warner can only do 28 lookups per month? LOL!

                 

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        The Infamous Joe (profile), Aug 30th, 2010 @ 12:04pm

        Re: Re: Why?

        Mike has access to your ip address. You are okay with him getting your personal information based on a mere accusation of a civil infraction?

         

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          average_joe (profile), Aug 30th, 2010 @ 12:14pm

          Re: Re: Re: Why?

          If Mike receives a valid subpoena to turn over information, I'm pretty sure he would turn over the information if he could. If not, he would find out what the "poena" part of subpoena means.

           

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            Mike Masnick (profile), Aug 30th, 2010 @ 12:18pm

            Re: Re: Re: Re: Why?

            If Mike receives a valid subpoena to turn over information, I'm pretty sure he would turn over the information if he could. If not, he would find out what the "poena" part of subpoena means.

            Ah, the rule of law. If we got a demand for the details on thousands of IP addresses based on very weak evidence, you better damn well believe we'd stand up for our users in court before just handing them over.

            I find it slightly disturbing that you don't think companies should stand up for their users.

             

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              average_joe (profile), Aug 30th, 2010 @ 12:25pm

              Re: Re: Re: Re: Re: Why?

              On what basis would you combat such a subpoena? I don't see how you would be in a position to argue the merits of the complaint.

               

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                Shawn (profile), Aug 30th, 2010 @ 12:31pm

                Re: Re: Re: Re: Re: Re: Why?

                If you believe the subpoena you've received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. ...

                 

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                TtfnJohn (profile), Aug 30th, 2010 @ 2:08pm

                Re: Re: Re: Re: Re: Re: Why?

                As I said before the merits of the subpoena are dubious at best as they rest on mere suspicion rather than the most basic information.

                The fact that refusing to provide the information doesn't seem to have resulted in further action in cases it has been refused tells me that the subpoena is based on legally dubious merits. Mostly they appear to have been dropped.

                Oh, as you don't sound like any average_joe or average_josephine I've ever met may I inquire as to who you're employed by and your relationship to this issue?

                I ask only to clarify as I've seen these sorts of arguments in the past from people who are, later, clearly linked to organizations and/or corporate entities clearly interested in nothing more than maximizing copyright "protection" for their own good and rarely for the group that are loosely called "creators" by such institutions.

                I won't hold my breath waiting for a response as, when challenged, like those I reference in the previous two paragraphs you fall silent or try change the subject.

                 

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            The Infamous Joe (profile), Aug 30th, 2010 @ 12:30pm

            Re: Re: Re: Re: Why?

            You misunderstand. He has your ip address. He feels you have wronged him and wants to sue you, for emotional distress or something. He goes to a court and says you have wronged him but all he knows is this string of numbers that may or may not actually be you and wants all the personal information your ISP has on the account linked to that IP address. You see no problem with that?

             

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              average_joe (profile), Aug 30th, 2010 @ 12:36pm

              Re: Re: Re: Re: Re: Why?

              If my behavior was truly tortious, then no, I don't have a problem with that.

               

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                The Infamous Joe (profile), Aug 30th, 2010 @ 12:45pm

                Re: Re: Re: Re: Re: Re: Why?

                Are all law students as dense as you? You just (inadvertently) hit the nail on the head. There has been no trial, only allegations. It has yet to be shown if you have wronged him in any way. Yet, he gets access to your personal information? That seems to be an invasion of privacy where I stand.

                It is becoming clear that no matter what logic is shown to you, you will stick to your guns out of stubbornness. You have aspirations of becoming an IP lawyer, I bet.

                 

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                The Infamous Joe (profile), Aug 30th, 2010 @ 12:45pm

                Re: Re: Re: Re: Re: Re: Why?

                Are all law students as dense as you? You just (inadvertently) hit the nail on the head. There has been no trial, only allegations. It has yet to be shown if you have wronged him in any way. Yet, he gets access to your personal information? That seems to be an invasion of privacy where I stand.

                It is becoming clear that no matter what logic is shown to you, you will stick to your guns out of stubbornness. You have aspirations of becoming an IP lawyer, I bet.

                 

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                  average_joe (profile), Aug 30th, 2010 @ 1:06pm

                  Re: Re: Re: Re: Re: Re: Re: Why?

                  There hasn't been a trial, but there has been allegations. The subpoena allows the matter to continue to trial. Without the subpoena, the case could never get off the ground.

                  Do you think the legal system should just shrug its shoulders whenever a defendant uses the internet?

                  This stuff is really trivial. Courts do it all the time.

                  I'm sorry if my explaining to you how the real world works means I'm stubborn. I don't see how it does, though.

                   

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                    DH's Love Child (profile), Aug 30th, 2010 @ 1:38pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Why?

                    You're missing the point here. Subpoenas are fought in court ALL THE TIME. And the reason they do so is to get the COURT to determine that there actually is enough REASONABLE CAUSE for the subpoena in the first place.

                    Lawsuits against John Doe's go to trial all the time. These subpoenas are not for the purpose of going to trial, they are for the purpose of sending the "pre-settlement (AKA Extortion)" letters. These guys absolutely do NOT want to go to trial. and if you think otherwise, you're as deluded as the IAA's that you're so staunchly defending.
                    THAT is what's happening in the real world.

                    In your idyllic little world, if you were served a subpoena for something, you just roll over and comply without even considering whether it's justified. Why bother with annoying things like trials?

                     

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                      average_joe (profile), Aug 30th, 2010 @ 1:56pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                      Of course subpoenas are fought all the time, but on what basis? My point is that there's no reason for Mike to lament the lack of ISPs fighting for their subscribers' privacy rights when ISPs aren't able to make those arguments in this context.

                      Subpoenas may lead to a settlement offer and not a trial, but that fact is also immaterial as to whether or not the subpoena can be successfully challenged in court.

                      My world is a pragmatic one. I don't see the point in trying to fight a subpoena if I know my arguments are completely futile. I'm sure attorneys would be happy to file such useless motions, but I don't see the point.

                       

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                        Anonymous Coward, Aug 30th, 2010 @ 3:31pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                        I dunno, lack of evidence? Seeing an IP on a torrent tracker isn't evidence of wrong-doing.

                         

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                          average_joe (profile), Aug 30th, 2010 @ 8:20pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                          Right. But they have more than that. In these cases the plaintiffs have actually downloaded the infringing file from the defendant and verified that it's their property being infringed.

                           

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                            Karl (profile), Aug 31st, 2010 @ 3:51am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                            In these cases the plaintiffs have actually downloaded the infringing file from the defendant and verified that it's their property being infringed.

                            Um, no, they haven't:

                            According to Thomas Dunlap, a lawyer at the firm, the program captures IP addresses based on the time stamp that a download has occurred and then checks against a spreadsheet to make sure the downloading content is the copyright protected film and not a misnamed film or trailer.

                            - New Litigation Campaign Quietly Targets Tens Of Thousands Of Movie Downloaders

                            The USCG did not download anything, nor verify that the file was actually their content (other than by checking the filename against a spreadsheet).

                             

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                              average_joe (profile), Aug 31st, 2010 @ 6:03am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                              Several of the documents I've read in the "Far Cry" case go to great lengths to explain exactly how USCG hired a company called GuardaLey to investigate the file sharing. GuardaLey downloaded the movie from the defendants and watched it to verify that it was the plaintiff's work.

                              I wouldn't rely on a news article for this info--go to the source.

                               

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                                Karl (profile), Aug 31st, 2010 @ 10:54am

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                                Actually I did have other sources, but they've been taken off the web.

                                Where did you get your info?

                                 

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                                  average_joe (profile), Aug 31st, 2010 @ 11:17am

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                                  I pulled the actual court documents from the court's website. Anyone can set up a PACER account and download the documents for 8 cents per page.

                                   

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                                    Karl (profile), Aug 31st, 2010 @ 8:07pm

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                                    This is actually very interesting.

                                    Two of my web references were from the plaintiffs themselves - U.S. Copyright Group, and (more importantly) GuardaLey's websites.

                                    The other was by a security group called CSS, which is totally gone now. I don't know why. (Lawsuit, maybe?)

                                    In all those cases, the technology was described exactly as I presented it. GuardiaLey's tech is basically a modified BitTorrent client that keeps a log of IP addresses and timestamps. (GuardiaLey is not legally allowed to download the torrents, as that would constitute copyright infringement, at least in Germany.)

                                    So, if they're claiming what you say they are, this presents two scenarios:

                                    1. The info on their own websites was wrong.
                                    2. They are lying to the courts.

                                    Either way, it will be interesting to see how this plays out.

                                    I'm not about to pay for a PACER account just to win an argument on the internet.

                                     

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                                      average_joe (profile), Aug 31st, 2010 @ 8:42pm

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                                      It wouldn't be copyright infringement for GuardaLey to download the files since they were doing so with the permission of the rights holder while acting as their agent.

                                      Here's a description of their process from one of their filings:

                                      "In order to assist Plaintiff in combating copyright infringement on P2P networks, the USCG retained Guardaley Limited (“Guardaley”), a company incorporated in England and Wales under company number 06576149. Guardaley provides torrent anti-piracy and copyright protection services through sophisticated technology and proprietary technology and software programs. (See Decl. of Patrick Achache, at ¶ 4.) Guardaley caused searches of several P2P networks to be conducted for infringing copies of the copyrighted motion picture, “Far Cry”. The search function of the P2P network was used to look for network users who were offering for distribution audiovisual files that were labeled with the names of Plaintiff’s copyrighted motion picture. Guardaley then conducted a careful and thorough review of the data contained in logs obtained from the servers of certain P2P networks using its proprietary technology. Guardaley determined from these logs those network users who were offering for distribution audiovisual torrent files that were labeled with the name of Plaintiff’s copyrighted motion picture. (See Decl. of Patrick Achache at ¶¶ 8-14.) When a network user was located who was making such torrent files available for distribution, either through use of the search function of a P2P network or from a review of the logs from the server of a P2P network, Guardaley downloaded and retained both the torrent files that were being offered for distribution and other specific information in order to confirm that infringement was occurring and to identify the infringer by the unique Internet Protocol (“IP”) address assigned to that Defendant by his/her ISP on the date and at the time of the Defendant’s infringing activity. (See Decl. of Patrick Achache at ¶¶ 13-14.) In addition, the downloaded audiovisual torrent files were reviewed by Guardaley in order to confirm that the files were in fact copies of substantial portions of the motion picture to which Plaintiff holds the exclusive licensing and distribution rights. (See Decl. of Patrick Achache ¶¶ 15-17.)"

                                       

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                                        Karl (profile), Sep 1st, 2010 @ 5:19am

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                                        Here's a description of their process from one of their filings:

                                        What that actually says was that Guardaley downloaded the torrent files. Torrent files do not contain copies of the actual movie. They only contain metadata.

                                        There is no such thing as an "audiovisual torrent file," so that language is pretty unclear. In fact, there's a lot of unclear language here.

                                        But from what I can tell, this says their technology works exactly as I described it. They find a file that is "labeled with the name" of the movie; download the .torrent file, and connect to the swarm; and record the IP addresses of all the other users in that swarm, with a timestamp. There is no language here that suggests Guardaley actually downloaded the movie itself.

                                         

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                                          average_joe (profile), Sep 1st, 2010 @ 6:14am

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?

                                          I think the last sentence makes it clear they downloaded the actual movie file:

                                          "In addition, the downloaded audiovisual torrent files were reviewed by Guardaley in order to confirm that the files were in fact copies of substantial portions of the motion picture to which Plaintiff holds the exclusive licensing and distribution rights."

                                          USCG filed other documents describing the process, and it's pretty clear they downloaded the movie and watched it to make sure it was the right movie.

                                           

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      AJ, Aug 30th, 2010 @ 12:12pm

      Re: Why?

      What happens when the subpoena is for thousands of people? In this case, let's say 20,000? If they start giving up the info now without a fight, tomorrow it could be 40,000. I think they will discover the that between loosing customers, and actually putting together all that data, they will come out ahead fighting.

      Just my personal opinion...

       

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    Reed, Aug 30th, 2010 @ 12:57pm

    Why ask why

    I think the answer to the question of this post is moot. We already know that ISPs are more than willing to hop in bed with anyone who has the cash and their concerns about privacy are very little if any.

    It really may just boil down to these content industries getting behind closed doors and scratching the ISPs backs for the info they want. I think for the most part this is already happening with the big ISPs.

    Now it is just the smaller ISPs that remain that are resistant to cooperation because they haven't gotten their slice of the pie yet.

    Of course having a diverse population of ISP providers would help in some degree to prevent this sort of collusion, but that is not what we have here in the USA. Competition is definitely not the American way when it comes to ISPs.

     

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    Christopher Meatto (profile), Aug 30th, 2010 @ 1:51pm

    ISP and Subpoena

    At the very minimum, the ISP attorney ought to review the subpoena and underlying litigation facts and determine whether she believes the subpoena is valid as a matter of law and jurisdiction.

    If the ISP attorney determines it is not valid, she ought to challenge it.

    If she believes it is valid, she ought to notify the ISP customer and afford her the opportunity to quash it.

    It is that simple.

     

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      average_joe (profile), Aug 30th, 2010 @ 2:09pm

      Re: ISP and Subpoena

      Exactly.

       

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      TtfnJohn (profile), Aug 30th, 2010 @ 2:35pm

      Re: ISP and Subpoena

      Something lost in AJ's attempts to divert the discussion is that the ISP has done exactly that. They are questioning, quite properly, the jurisdiction of a court located in another jurisdiction the right to enforce the subpoena.

      AJ never lets reality get in the way of his first term, first year understanding of law.

       

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        average_joe (profile), Aug 30th, 2010 @ 8:15pm

        Re: Re: ISP and Subpoena

        Again, I've no idea how you can say I don't understand the law. Nor do I understand how you think I'm trying to divert the discussion.

        I'm only telling people the realities of the case law, of which I've read and understood tons of, and of which you apparently have zero knowledge.

        I said in my first post in this thread that I thought Midcontinent was right to challenge the subpoena under these specific facts.

        That challenge will not work in general.

        My understanding of the law is deep. Yours is practically nonexistent.

         

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    Karl (profile), Aug 30th, 2010 @ 5:33pm

    When Joe man comes back Joe's head will crack

    Hello, Mr. Joe. Or may I just call you "Average?"

    Just what rights would ISPs be standing up for? The right to infringe on other people's copyrights?

    The right to privacy, for one; the right to due process, for another. But others have explained this better.

    Copyright infringement is not free speech protected by the First Amendment.

    The two are naturally in conflict. Copyright is, by nature, the statutory right to prevent expression. It may not be original expression, but the First Amendment makes no requirement that the protected speech be original. That may not be apropos in this case, but it is in others - particularly regarding "derivative works." See e.g. the "sequel" to Catcher In The Rye that is illegal in this country.

    So you think rights holders should not be able to bring suit for online infringement because online infringement is so rampant?

    Personally, I think rights holders should not be able to bring suit for online infringement because that infringement is non-commercial in nature. Copyright was always supposed to protect publishers from competing publishers. The fact that rights holders are going after individuals is a perversion of copyright, and creates all of the dangers that the original founders explicitly warned against. In my opinion.

    This case is a good example. Quite obviously the defendants' right to privacy is being violated in the worst sort of way, and by private corporations - who shouldn't have this ability in any situation. It is turning the country into a surveillance state at the request of corporate rights holders. Whether legal or not, it is wrong.

    What's the difference rights-wise if they file one big lawsuit or several individual suits?

    Well, there's the question of jurisdiction, for one. For another, not all the defendants may have committed the same crime, to the same degree, and many are probably innocent.

    In criminal cases, lumping defendants together is usually a sign of a miscarriage of justice. That should apply to civil cases as well.

    It also reveals the U.S. Copyright Group's motives. They are not looking to prevent infringement, and it makes no difference to them whether or not the infringement resulted in losses. It is simply a money grab. Before they took it down, their website presented these lawsuits as a way for content creators to "monetize" filesharing. If they had actually followed the law, and filed one "John Doe" suit per defendant in the correct jurisdiction, they would lose a lot of money in filing fees. That's not a big deal if they ever intended to go to court, but that's not really their intent - they just want to send out legal nastygrams so that the defendants will be frightened into settling. It's "extortion by lawsuit," and if it's not officially an abuse of the courts, we really need to change the laws.

    Christopher Meatto: If the ISP attorney determines it is not valid, she ought to challenge it.

    average_joe: Exactly.


    Yet this is exactly what the ISP is doing, and you are objecting to it.

     

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      average_joe (profile), Aug 30th, 2010 @ 9:07pm

      Re: When Joe man comes back Joe's head will crack

      Hi Karl. I knew you'd show up. :)

      The right to privacy, for one; the right to due process, for another. But others have explained this better.

      A subscribers' expectation of privacy is just one factor courts consider in these Doe defendant infringement cases. I've not seen a case where a subpoena was challenged on due process grounds. I can't imagine how such an argument would be fruitful though. The subpoena is a threshold matter, not the whole enchilada.

      The two are naturally in conflict. Copyright is, by nature, the statutory right to prevent expression. It may not be original expression, but the First Amendment makes no requirement that the protected speech be original. That may not be apropos in this case, but it is in others - particularly regarding "derivative works." See e.g. the "sequel" to Catcher In The Rye that is illegal in this country.

      Justice Ginsburg explained it to Prof. Lessig during oral arguments in Eldred: "The First Amendment securely protects the freedom to make — or decline to make — one's own speech. It bears less heavily when speakers assert the right to make other people's speeches."

      Personally, I think rights holders should not be able to bring suit for online infringement because that infringement is non-commercial in nature. Copyright was always supposed to protect publishers from competing publishers. The fact that rights holders are going after individuals is a perversion of copyright, and creates all of the dangers that the original founders explicitly warned against. In my opinion.

      This case is a good example. Quite obviously the defendants' right to privacy is being violated in the worst sort of way, and by private corporations - who shouldn't have this ability in any situation. It is turning the country into a surveillance state at the request of corporate rights holders. Whether legal or not, it is wrong.


      There's certainly a good argument to differentiate commercial and non-commercial infringement, and that difference comes into play in certain circumstances when it comes to burdens in a trial. However, I don't agree that an infringement's commercial nature changes much in the way of whether it's justifiable for the plaintiffs to enforce their rights.

      Well, there's the question of jurisdiction, for one. For another, not all the defendants may have committed the same crime, to the same degree, and many are probably innocent.

      In criminal cases, lumping defendants together is usually a sign of a miscarriage of justice. That should apply to civil cases as well.

      It also reveals the U.S. Copyright Group's motives. They are not looking to prevent infringement, and it makes no difference to them whether or not the infringement resulted in losses. It is simply a money grab. Before they took it down, their website presented these lawsuits as a way for content creators to "monetize" filesharing. If they had actually followed the law, and filed one "John Doe" suit per defendant in the correct jurisdiction, they would lose a lot of money in filing fees. That's not a big deal if they ever intended to go to court, but that's not really their intent - they just want to send out legal nastygrams so that the defendants will be frightened into settling. It's "extortion by lawsuit," and if it's not officially an abuse of the courts, we really need to change the laws.


      Jurisdiction is certainly a problem, but not at the subpoena stage of proceedings. The whole point of jurisdiction is to identify the defendants so jurisdiction can be determined. There may be some innocent defendants caught in the mix--this is inevitable--but on the balance of it all such things are justifiable. Innocent people are accused wrongly of civil and criminal offenses everyday. The system isn't perfect, but it strives to be.

      USCG is following the law. They even had the unusual step of having to justify their grouping of defendants together in one suit to the judge in the "Far Cry" case. They did so and were permitted to proceed. What you call a miscarriage, the court called proper. Agree with it or not, USCG has done things by the book.

      And USCG is going to court, individually, after the people who didn't settle. This kind of ruins the argument that people have been making all along that they aren't going to do so.

      Yet this is exactly what the ISP is doing, and you are objecting to it.

      Not at all. In Midcontinent's specific case, they were right to challenge the subpoena. The subpoena was flawed.

      In general, though, there isn't a good basis to do so.

       

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        Karl (profile), Aug 31st, 2010 @ 3:09am

        Re: Re: When Joe man comes back Joe's head will crack

        Hi Karl. I knew you'd show up. :)

        Yeah, I think I might need a twelve-step program or something.

        I've not seen a case where a subpoena was challenged on due process grounds.

        In that case, what is the justification for a "motion to quash?" Aren't things like lack of jurisdiction, unlawful basis, wrong identification, etc. due process issues?

        Justice Ginsburg explained it to Prof. Lessig during oral arguments in Eldred: "The First Amendment securely protects the freedom to make - or decline to make - one's own speech. It bears less heavily when speakers assert the right to make other people's speeches."

        The key here is "bears less heavily." The conflict does not go away. Ginsburg also made that clear when she said the lower court "spoke too broadly" when it found that copyrights were "categorically immune" from attack under First Amendment rights.

        As with all contradictory rules set by the Constitution, a balance must be achieved. That balance is now tipped heavily towards content creators, and against free speech rights. The "Catcher" example should be a slam-dunk case of free speech, but it's not.

        I don't agree that an infringement's commercial nature changes much in the way of whether it's justifiable for the plaintiffs to enforce their rights.

        Those rights are primarily economic in purpose, so I don't see how it can't change the situation. In any case, for-profit entities have very different (and fewer) rights than members of the public, and should be treated differently (Citizens United notwithstanding).

        USCG is following the law. They even had the unusual step of having to justify their grouping of defendants together in one suit to the judge in the "Far Cry" case. They did so and were permitted to proceed. What you call a miscarriage, the court called proper. Agree with it or not, USCG has done things by the book.

        I'm not sure the court gave the stamp of approval you think it did. The motion to deny on "joinder" grounds was not outright rejected; the court just held that this objection could only come from the defendants themselves, not Time Warner or amicii like the EFF. It can still be used in a motion to quash, and possibly as a defense if any of these lawsuits actually go to trial.

        And USCG is going to court, individually, after the people who didn't settle. This kind of ruins the argument that people have been making all along that they aren't going to do so.

        They're preparing to go to court, actually. Not one case has actually made it to any court of law. We'll see if any do. My guess is that this is more muscle to back up USCG's threats, and they're counting on few (if any) cases actually going to trial.

        If they do, you can bet that their clients will be very unhappy, because they'll end up losing a lot of money. (USCG itself will still get paid, of course.)

        Not at all. In Midcontinent's specific case, they were right to challenge the subpoena. The subpoena was flawed.

        Isn't this exactly the same subpoena filed against the other ISP's? Those subpoenas are likely just as flawed, yet most ISP's rolled over and gave up without a fight.

         

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          average_joe (profile), Aug 31st, 2010 @ 5:59am

          Re: Re: Re: When Joe man comes back Joe's head will crack

          I would say challenges to jurisdiction and the like are more procedural than constitutional.

          You are right that the First Amendment challenges are valid on their face. It's in their application that they fail in these cases.

          And it's definitely about balance. Most things in law are.

          Joinder is actually one of those things that the judge can challenge sua sponte, meaning without any party even raising an objection. That's Federal Rule of Civil Procedure 21.

          The news reported on THR Esq. and repeated here on Techdirt is that USCG has made arrangements with 15 law firms nationwide and they are proceeding to sue the defendants who didn't settle individually. I haven't seen any of these new complaints yet, but I haven't looked either. If I have time later I'll see if I can find any.

          The difference between the Midcontinent case is that USCG just faxed them the subpoena, and the court that issued the subpoena in D.C. didn't have jurisdiction over them as they are in the Midwest. I don't think the other subpoenas had these defects.

           

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    identicon
    darryl, Aug 30th, 2010 @ 10:17pm

    Well Said (not so) average_joe

    what choice did the USCG have ? The ISP's refused to make that information available by being nice and just asking.

    So they were left with little, or no choice..

    And the company does not issue lawsuits, the court does, the company files for a suit, then if it is accecpted, the clark of the court signs it.. Its a court document.

    If the court has determined that a possible crime has taken place (they have because they signed the lawsuit).

    Then, if the ISP refused give up the information, then they are liable for perverting the course of justice.
    And 'harbouring a crime, or ciminal'.

    The ISP has every right to contest the lawsuit, or to agree with it and abide by the request.

    Its the correct legal channels, overseen by the courts, approved by the courts, and controlled by the courts.

    If you are an ISP, and you were made aware that someone or many people were using your equipment in the conduct of crimes, then it is up to them to work with the law to bring those crimes to an end.

    And like it or not, illegal filesharing of copyright material, **IS** a crime..

    I guess you dont like it (mike), but its the law as it stands. And whinning about people, groups, or authorities enforcing the law makes detracts from your integrity.

    Mike, if every day, when you come home you find a number of item missing in your house, after awile you get annoyed at it, you know your next door neibour knows who it is, that person entering and stealing off you everyday.

    But your next door neibour will not tell you who it is, even though YOU KNOW that HE KNOWS..

    What are you going to do Mike ?

    Tell the next door guy, "it is your right not to tell me", so I will just live with being broken into each day.

    Im sure you would not do that Mike, you would do whatever you could to find that person, and then try to get him to stop.

    (I would just stay home one day, and put him in intensive care, but thats just me)..

    If I could not do that, I would probably go to court, and make the neibour tell me who it is, then go to the police and have him arrested.

    (it was probably the neibour himself, doing the crime).

    Certainly profiting from the crime, and would the ISP who gets paid to allow those users who are breaking THE LAW, to continue.

    Profiting off crime, is in itself just as significant a crime..

    Midcom, would have given up the names in a second, if they could have got someone to dish up some money for them to do it.. extortion anyone ??

     

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      DH's Love Child (profile), Aug 31st, 2010 @ 7:10am

      Re: Well Said (not so) average_joe

      And like it or not, illegal filesharing of copyright material, **IS** a crime..

      It is NOT a crime, it is a CIVIL matter.

       

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        average_joe (profile), Aug 31st, 2010 @ 7:19am

        Re: Re: Well Said (not so) average_joe

        I'm well aware of the legality. Copyright infringement can be a civil matter, a criminal matter, or both. For civil infringement, see 17 U.S.C. § 501 et seq. For criminal infringement, see 18 U.S.C. § 2319 et seq.

         

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      nasch (profile), Aug 31st, 2010 @ 10:38am

      Re: Well Said (not so) average_joe

      Oh, snap. I don't even have to read joe's comments if darryl agrees with him.

       

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

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    TDR, Aug 31st, 2010 @ 6:41am

    AJ, are you even aware of the fact that just because something is a law, doesn't necessarily make it good or right? And that ignorance of an unenforceable and unreasonable law is not wrong? I suspect not.

     

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      average_joe (profile), Aug 31st, 2010 @ 7:02am

      Re:

      Of course I'm aware of that concept. I presumably draw a different conclusion than you do in these things, and that's OK. To each his own.

      I wouldn't call copyright infringement laws unenforceable. USCG is enforcing the law on behalf of their clients. I wouldn't call it unreasonable either. I think it's unreasonable to say it's OK for people to infringe on other people's rights.

      People can think what they want, and reasonable people can disagree.

       

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    nasch (profile), Aug 31st, 2010 @ 10:39am

    That's mine!

    That's my ISP! Go midco! OK so bascially who cares, but I was obviously interested. :-)

     

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    Brett Glass, Sep 1st, 2010 @ 10:20pm

    Our ISP requires a lawful order before revealing personal info.

    However, we will reveal it in that case, not only because the law compels us to do so but because it's important to fight crime. Copyright infringement is theft.

     

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      nasch (profile), Sep 1st, 2010 @ 11:06pm

      Re: Our ISP requires a lawful order before revealing personal info.

      I don't know whether to laugh, or congratulate you on a good troll, or what.

       

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


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