Court Shoots Down Mass Porn Copyright Infringement Lawsuits

from the slowly-but-surely dept

Over the last 9 months or so, we've seen a whole bunch of mass copyright shakedown firms pop up -- quite frequently focusing on using claims of infringement over porn movies to try to get people to pay up to avoid being taken to court (and, more specifically, being taken to court for your porn habits). Thankfully, it looks like judges are starting to recognize the problems with these lawsuits. We've already noted that the US trailblazer for these types of lawsuits, US Copyright Group had to drop most of the defendants in a couple of its lawsuits, and it's not clear if the firm will really file the new lawsuits it's promised.

The key to making this all economical, of course, is for the shakedown factory to sue a whole bunch of defendants at once, to try to force the ISPs to hand over names as cheaply as possible. However, in a group of lawsuits filed over some porn films, a judge has said that the copyright holder improperly joined together so many defendants. Rather than dismiss the cases outright, the court has simply said that joining all the cases together in one case is improper, and narrowed the cases down to a single defendant each -- meaning that the subpoenas for the thousands of other defendants were all quashed. All of the court orders are effectively the same, so I'll just include one after the jump in this post.

However, the reasoning is pretty simple. Basically, it makes no sense to lump together hundreds or thousands of people who had nothing to do with each other, just because each of them may have done the same thing. The court notes various case law examples that say that just because a group of people all did the same thing, it does not mean you get to sue them all in the same lawsuit. Part of this is because each defendant may have a totally different defense, noting that one defendant may be an innocent parent, another might have a roommate who used his or her computer, while others may have actually infringed. Thus, it makes no sense to lump them all together. Hopefully, other courts dealing with similar lawsuits follow these rulings as an example.


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  •  
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    fogbugzd (profile), Dec 17th, 2010 @ 2:49pm

    $350 filing fee

    The $350 filing fee for each case is enough to damage this business model pretty severely.

     

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      Anonymous Coward, Dec 17th, 2010 @ 2:57pm

      Re: $350 filing fee

      Not if they charge more for the settlement.
      That guy really wants his money...I mean your money, I doubt that this small hurdle will stop him from doing it.

       

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        Anonymous Coward, Dec 17th, 2010 @ 3:31pm

        Re: Re: $350 filing fee

        The more they ask for, the more likely people are to fight it in court. That is a very large hurdle - the last thing they want people to do is call their bluff.

         

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        Richard (profile), Dec 17th, 2010 @ 3:38pm

        Re: Re: $350 filing fee

        Not if they charge more for the settlement.
        That guy really wants his money...I mean your money, I doubt that this small hurdle will stop him from doing it.


        Actually it will because he still has to pay the $350 for all those people who don't roll over.

        At present the business model works something like this

        Spend $10 per head threatening 10,000 people. 15% pay up $1000.

        Income $1,500,000, expenditure $100,000 ,profit $1,400,000

        Add in a $350 filing fee

        Income $1,500,000 expenditure $3,600,000 loss $2,100,000

         

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    Anonymous Coward, Dec 17th, 2010 @ 3:51pm

    Sadly, it's another example of why the current copyright laws (and things like the DMCA) are non-functional for rights owners.

    The time required to pirate a file? Minutes. Cost? pennies. Time required to track down and move a defendant to civil court? Months or even years. Cost? insane.

    When you have situations like this, it is only a short time before business oriented lawmakers will be working to change the system, to balance things out. So you can laugh at the copyright owners for the moment, but in the end, change will come, and you probably won't like it.

     

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      abc gum, Dec 17th, 2010 @ 4:54pm

      Re:

      "The time required to pirate a file? Minutes. Cost? pennies. Time required to track down and move a defendant to civil court? Months or even years. Cost? insane."

      Time for Ma & Pa Kettle to defend themselves against scattergun litigation?

      Ahhh ... They never stood a chance.

       

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        Anonymous Coward, Dec 17th, 2010 @ 5:26pm

        Re: Re:

        I don't think you understand. The porn business is a little like the canary in the coal mine for other content producers (music and video) because they are a much smaller business, with other issues to handle.

        The porn business is essentially out of business at this point. Most of the major companies are not producing new movies anymore, most porn websites are dying (usually 2 or 3 years out of date), and that is pretty much that.

        The industry withers as a result of a lack of buyers. No shortage of interest (porn is still some of the most searched things online), just a shortage of paying customers, considering almost every video ever made has been pirated, and almost every online pay membership style site ripped repeatedly for easy download.

        Without the luxury of movie theater releasing and $10 tickets, the porn industry has pretty much died.

        The movie and music industries are looking on with great interest, because when they look over at the porn industry, they see where they are headed next.

        It isn't from lack of interest in their products, just a generation who's mentality is that they can just take without paying, with no concern to the consequences.

        The results are already in, with more and more poor quality movies being made (one report here has movies ticket sales dollars rising, actual ticket sales flat, but more than twice as many movies being made to try to get it there). More and more movies are junk, and the old "Direct to DVD" market is drying up fast.

        Actually, to link this back to porn (just because it's fun to do), consider the 2010 release Middlemen (starring Kelsey Grammer, who surely doesn't want to be remembered for this movie). It cost somewhere between 20 and 30 million to make, and grosses box office of about $800,000 total - with good advertising and full on distribution. The results for this movie are common to many releases in 2010, and with a smaller and smaller after market, these movies that might appeal to a niche market are instead just pirated and that is that, with no income.

        The legal remedies against piracy are painful, they are long, and they are most often not very satisfactory. They are expensive, and more often than not, the defendants in the cases are poor enough not even to be able to recoup legal costs from. They could have afforded the $10 to see a movie or even the money to join Netflix or whatever, but they chose not to. They have little to lose.

        There is no free lunch. When everyone in the room wants the free lunch and nobody wants to foot the bill, at some point, there is no more lunch.

        For the federal government, who looks at the movie (and music) industries as major economic players, they are unlikely to let that go on forever. The situation is intolerable, and the remedies that exist in law right now for civil action are entirely inadequate. The recent government actions against torrent sites is an indication that they are no longer willing to risk this piece of the economy.

         

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          SImon, Dec 17th, 2010 @ 6:08pm

          Re: Re: Re:

          ...no longer willing to risk this piece of the economy.
          I never understand this argument, what do people think happens to the money? Do they think it just gets burnt? Surely the money stays in the economy, it just gets spent on different things.

           

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          Jim O (profile), Dec 17th, 2010 @ 6:39pm

          Re: Re: Re:

          "The porn business is essentially out of business at this point."

          -Citation Needed

           

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          Kingster (profile), Dec 18th, 2010 @ 7:00am

          Re: Re: Re:

          Funny... The Porn industry seems to blame its decline on lots of things... Certainly, piracy is one, but... What about other things like porn star hookers, free sites, video games, and the proliferation of "small" players, willing to take less than the "going rate"?

          People post themselves all over the place, go check out Reddit's GoneWild section - there's some 35K followers, and a large number of contributors, all of their own amateur stuff.

          So is the porn industry playing canary? Maybe, in some ways, but, maybe, they're falling behind those that are grasping these new models: we see amazing videos (movies, really) created for a couple hundred bucks posted on YouTube and Vimeo. We see teams crowdsourcing and releasing their products on torrent sites (PioneerOne, anyone?). The same is occurring for the music industry.

          Again - it's either change business model, or die.

          And if any group has a capacity to CwF+RtB... It's the porn industry... Especially in the CwF department... Ba dum bum!

           

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          abc gum, Dec 18th, 2010 @ 9:03am

          Re: Re: Re:

          AC -> "I don't think you understand."

          I understand that there will be cases where the accused party neither owns a computer nor has access to the internet. Innocent people will be accused, this is a given with any of the various industries fighting copyright infringement in this manner. Collateral damage is only acceptable in very limited situations and this is definately not one of them.

          AC -> "There is no free lunch. When everyone in the room wants the free lunch and nobody wants to foot the bill, at some point, there is no more lunch."

          Not everyone in the room wants lunch, and if they did many would pay for it. Not sure where you are from, but your presumption of guilt is contrary to many judicial systems across the globe.

           

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          Anonymous Coward, Dec 20th, 2010 @ 7:34am

          Re: Re: Re:

          To #10:

          While I agree with SOME of your input, I have to point out that you did not mention the obvious issues that continue to cause some of this problem, that is the fault of the movie industry. The business models that are used by the industry are partly at fault for crippling their income stream. Having to wait an extra month or so to rent a movie online, as opposed to getting it at the Video store or buying it, is very poor business sense. The majority of viewers will soon be online viewers and downloaders who want to rent NOW, and not have to wait the extra time. I could go on, but you should start with that.

           

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      Anonymous Coward, Dec 17th, 2010 @ 6:34pm

      Re:

      So what you're saying is that making more than 10% of your population into criminals doesn't work?

      Good, we're in agreement then.

       

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      jd, Dec 17th, 2010 @ 8:27pm

      Re:

      No, you got that wrong. What has been going on has a been a complete injustice to everyone who has been accused. Only the mafia would use tactics like this.

       

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      Anonymous Coward, Dec 20th, 2010 @ 2:41pm

      Re:

      We still have the Bill of Rights, friend. And I don't care what you have copyrighted, there is still due process. You don't get to sidestep the rights of others just because the process is expensive. You argue that infringers have it easy and cheap. You could make the argument that, based on where the burden lies, that any criminal has it easy compared to the plaintiff or the prosecution. They still don't get to trample on rights without good reason. And even if they have good reason... they don't always get away with infringing on the rights of the individual.

      And "business oriented lawmakers" sounds like a euphemism for "lawmakers that will support business interests over Constitutional rights." If those guys ever hold the reigns, I'm pretty sure I will be jumping into the Grand Canyon. Unless of course that process has been patented by then.

      Oh, and if you're an ACTA supporter, have fun in your world of corporate sponsored lies and engineered information. Orwell called it.

       

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    average_joe (profile), Dec 17th, 2010 @ 4:09pm

    The argument in the USCG case was that for purposes of joinder it was the "same transaction, occurrence, or series of transactions or occurrences" because the defendants were sharing the same movie, i.e., the same torrent from the same seed. If people are sharing the same torrent from the same seed, even if at different times, it is a "series of transactions" since each defendant necessarily can trace their copy back to the same seed. If I take a DVD and make copies for two friends, and they make copies for two of their friends, etc., we are all liable for the same infringement. I think that's a fairly settled issue of copyright law.

    Perhaps the plaintiff didn't argue the "torrent swarm equals joint tortfeasors" theory. If not, I wonder why not. I tried to get a copy of the complaint for this case from PACER to see what was argued, but it tells me I'm not authorized to see it. I guess the case is sealed.

    The judge here says, "merely committing the same type of violation in the same way does not link defendants together for purposes of joinder." I certainly agree with that, but I think it misses that point that sharing the same torrent from the same seed is more than merely committing the same type of violation in the same way. Every person in the swarm is an actor in the same series. All are taking part in the same infringement, and all are joint tortfeasors.

     

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      Anonymous Coward, Dec 17th, 2010 @ 5:17pm

      Re:

      This is a huge problem with the law, which anyone should really be able to parse without a law degree if they have any chance to actually follow and abide the law.

      Tortfeasors? Like "Set your phasers to Tortfeasor!"?

      All I'm saying is it sounds like a made up word and it made me snort-laugh. That is all.

       

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      Kingster (profile), Dec 18th, 2010 @ 7:18am

      Re:

      Interesting. So, what you're saying is that they are all part of the same infringement? Sounds like... They should share the fine for that singular infringement... So on a peerlist of 50K, the $5K fine works out to a dime? Sounds good to me. I'm in.

      And no. You can't combine them all. It's not fair to do so, since there are LOTS of different things that can govern. An open wireless access point (I keep mine open, as do most of my neighbors in our small neighborhood, so we can all work from all over, while hanging out, and keeping an eye on the kids), a hacked access point, a kid that downloaded unbeknownst to their clueless parent, etc. You can't assume that someone knows exactly whats flowing across their gateway. And why would you bring people up in YOUR local court, rather than theirs, except for the fact that your not licensed to practice in every state?

      There's so many things wrong with these copyright troll groups like this idiot and USCG, that I'm glad this new industry is failing miserably. If Warner Brothers wants to sue me? Great. Charge me in my local court (which is where the infringement occurred). File ONE suit for each of my infringements (because, as you pointed out, each seed is a different instance!). Once their cost of entry is so high, they will start to figure something else out. Like, make deals with Netflix, of which I am a proud member.

      Tell you what... You get Warner to release new movies on Netflix as streams the day they release the DVD, and I'll even pay MORE. I can see it now - Netflix tiers. Each "movie house" is an extra buck. For $20/month, I could have 12 movie houses. For 5 more, I could have each of the big TV stations - so I could watch TV shows streamed rather than have cable. Then, I could get rid of cable TV, that I get 5000 channels, 4975 of which I don't EVER watch.

       

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        average_joe (profile), Dec 18th, 2010 @ 9:49am

        Re: Re:

        Interesting. So, what you're saying is that they are all part of the same infringement? Sounds like... They should share the fine for that singular infringement... So on a peerlist of 50K, the $5K fine works out to a dime? Sounds good to me. I'm in.\

        That's exactly right. If they're going to argue that the defendants should be joined together like that into one lawsuit, then that means they are all liable for ONE infringement. They would split the liability between them. If there's 5,000 defendants and the liability is the maximum $150,000, then each defendant is on the hook for $30.

        From the Copyright Act: "the copyright owner may elect . . . an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally." 17 U.S.C. 504.

        It's the number of works infringed that matters, not the number of infringements of that work and not the number of infringers. I'm really surprised that this is getting more attention since it's pretty detrimental to the mass infringement suit business model.

        If defendants knew that they are only potentially on the hook for their share of one infringement they probably wouldn't be inclined to settle. In one sense, the more defendants joined together, the better.

        These mass infringement lawsuits can't have it both ways. They can't argue that the defendants acted in concert for the purpose of joining them together into the same lawsuit, and then later pretend like the defendants didn't act in concert when it comes time to look at damages.

        They're trying to have their cake and eat it. Spread the word. :)

         

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      Justin Olbrantz (Quantam) (profile), Dec 18th, 2010 @ 12:51pm

      Re:

      So let's apply that principle to other crimes. Every single person to ever attempt to hold up a particular bank is a co-conspirator even if the crimes were committed at different times and with zero collaboration between the different people involved other than the fact that the illicit goods (the money) came from the same source.

      Drug dealers who get their product from a single source are automatic co-conspirators even if the purchases do not overlap and there's no collaboration between buyers.

      I'm sorry, but the law simply doesn't work like that, never has, and if logic is any indication (admittedly that's a pretty big if, when politicians are involved), never will.

       

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        average_joe (profile), Dec 18th, 2010 @ 2:47pm

        Re: Re:

        The bank robbers in your hypo would not be conspirators because you're missing all three elements of the crime. There is no actus reus since the requisite agreement and mutual understanding is missing. There is no mens rea since there is no intent to enter into an agreement with the other robbers to commit a robbery. The is no overt act since none of the alleged conspirators has taken a step that has a tendency to further the objective of the conspiracy. If you were missing any one element it wouldn't be a conspiracy. You're missing all three.

        Comparing copyright infringement to criminal conspiracy liability is problematic. One sounds in tort and the other in criminal law. Let's stick to tort principles if we're talking about copyright infringement. The biggest problem with your analogies is that copyright infringement is a strict liability tort. This means intent is irrelevant. Conspiracy, on the other hand, requires an intent element to be proved beyond a reasonable doubt.

         

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    Supertec2u, Dec 17th, 2010 @ 4:59pm

    Porn story

    and my eyes are drawn to "firms pop up". I should get out more.

     

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    Andrew D. Todd, Dec 17th, 2010 @ 6:54pm

    Ma and Pa Kettle Have Teeth (To: abc gum, #7)

    As an adoptive West Virginian (15 years residence), let me acquaint you with certain basic facts. Each fall, out of a population of two million, about two hundred thousand go hunting. They bag about two hundred thousand white-tail deer, and smaller numbers of black bear and wild boar. Those are the regulated game animals-- no account is taken of rabbits, etc. It's not merely a matter of sport-- it is also the pragmatic matter of venison. One winter, my taxicab driver remarked that he knew it was a hard winter, because he had gotten his buck, and the buck was such a shrimpy little fellow that the taxicab driver felt almost ashamed to shoot him. This is gotyerdeeryet country, in short. If even a small number of the local hunters should decide to go hunting lawyers instead of white-tail deer, the results would be drastic.

    The great folly of these mass lawsuits is that sooner or later they come up against mass-man. In the United States, at least, mass-man carries a Winchester or Marlin lever-action carbine. It is only a matter of time before someone goes too far.

    The judge is really being very kind to the U. S. Copyright Group lawyers. They would surely have stumbled into a worse misadventure if he had not slowed them down. It is probably for the best-- lawyers are not really edible.

     

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      abc gum, Dec 18th, 2010 @ 9:12am

      Re: Ma and Pa Kettle Have Teeth (To: abc gum, #7)

      There was no insult intended, please do not shoot me.

      Years ago I enjoyed watching the Ma & Pa Kettle shows and they definately did not have access to the internet. My guess is that there are many today who still do not have internet access and yet they will receive letters accusing them of copyright infringement. They are guilty until proven innocent. This is unacceptable. It causes significant financial impact which most likely is unrecoverable.

       

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    Teddy_Bear, Dec 18th, 2010 @ 7:41am

    The whole "Torrent Jurisdiction" argument makes no sense. First off an IP owner could very likely NOT be the infringer, second..whats the argument for filing ANYWHERE? Simply because the law firm suing happened to be in the jurisdiction filed in? What jurisdiction would be the popper one to file in? This sounds like an "all too easy" argument. Lets drag people from across the country to this jurisdiction based on a flimsy "torrent seed" argument? Based in an IP address and no other due diligence? Bah. I don't buy it and the judges aren't buying it either.

     

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      Anonymous Coward, Dec 18th, 2010 @ 12:22pm

      Re:

      Most of the time, because the user information is not available, the case is filed in a district where the ISP(s) in question operate. There really is no simple way to determine where a user is located until the user is identified.

      The courts have yet to explain how one is suppose to figure out where to file IP address based Doe lawsuits. To file them in the right districts (if you look at it that way) would require knowledge which is not known at the time of filing. Chicken and the egg.

       

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        Teddy_Bear, Dec 19th, 2010 @ 8:06am

        Re: Re:

        While filing in the ISP's headquarters jurisdiction could at least be presented as a valid argument, I dont think thats what is being done here. I doubt that Washington DC is where ALL the ISP's that DGW are filing subpoenas for are headquartered. But it is "conveniently" where DGW is headquartered.

         

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    John Doe, Dec 18th, 2010 @ 2:35pm

    These cases are clearly acts of extortion from the studios. Really presenting an IP address as evidence? If they truly intended on stoppping piracy they would have turned that information over to authortites and pressured them into action. Instead they used courts to unveil these individuals in mass so they could collect money using threats of exposure.

    I beleive the studios have rights to protect there product but not at the misuse of the legal system. Using authorities to make arrests would not be expensive to them just the tax payers. Anyone found guilty could then be sued to recoup costs that would be involved and they might actually have evidence of the crime at that stage.

     

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      Teddy_Bear, Dec 19th, 2010 @ 8:00am

      Re:

      Because the standard of proof in a criminal case are to high of a hurdle for these shysters to jump. "Beyond a reasonable doubt" can't be met without a ton of work.

       

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    ?????, Dec 18th, 2010 @ 10:22pm

    I doubt the industry will go belly up soon.

    The problem is that there is so much "free" stuff on the WWW.

    And, the only way to find some sites is if they actually distribute some "free" info which will lead you back to where it came from. But, if everyone puts free stuff up, then there is no need to go back to the commercial sites. Then some people get carried away with redistributing other people's non-free stuff.

    As an industry, the Adult industry needs to clean up their act.

    Some people have had bad experiences with a single online purchase leading to years worth of offensive junk mail and spam.

    Pay for a 3 day "trial"... and discover later that the company is regularly raiding your bank account.

    Clicks often take one in circles.

    And, if they are really worried about distribution of materials, go after those industries (often adult) that post their advertizements next to other people's work.

    Certainly on the internet there is a general issue that nobody wants to take responsibility.

    Anyway, rather than trying to punish, and otherwise turn away their own customers... they need to figure out what will bring the customers back.

    I.E. Work on something like a I-Tunes Model.
    Charge a "reasonable" price...
    Wide Selection.
    Privacy is key... any company that breaks it and it hurts the whole industry.

    And they need to make a brand/trademark that will indicate whether or not the information being sold is legit. While there are complaints about censorship... one could at least knock any sites that would counterfeit the "legit" trademark.

    And, they'll get more cooperation from everyone if they ask for $20... or perhaps $100. Maybe an annual subscription to their "services", rather than demanding $5000 - $150,000 (or more) of money they may not be justified to receive.

    Digital fingerprinting is possible. Some effort needs to be put into tracking the actual "source" of the distributions if it is believed to be a problem. I could imagine doing tiny changes to 1000 pixels (slight color shade change)... that would be virtually indetectible, and one could uniquely identify a single, or a small group of source materials.

     

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    Anonymous Man, Dec 19th, 2010 @ 6:15am


    When you have situations like this, it is only a short time before business oriented lawmakers will be working to change the system, to balance things
    out. So you can laugh at the copyright owners for the moment, but in the end, change will come, and you probably won't like it.

    You are a moron. Copying is easy and impossible to track.
    Only in a world where every digital copying apparatus is identified by an unique fingerprint is stopping sharing going to work.
    Shut down the public sites, and people move to encryption.

    Ban encryption and force people to use steganography, and as a last resort impose bandwidth caps.

    I can copy a terabyte of data down to a hard disk and distribute it to trusted friends. Use post boxes and the physical postal service.


    Only massive government infiltration and surveillance will catch a fraction of illegal file sharing, as soon as people move from the internet back to physical distribution.
    File sharing did not begin with the internet and will persist after the RIAA succeeds in crushing all public sites.

     

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    Teddy_Bear, Dec 19th, 2010 @ 7:56am

    And of course the large risk with joining defendants in a suit where they will share the penalty is arguing that the teen who did in fact download and distribute the movie in question is as liable as the 40 yo housewife who's 12 yo downloaded it w/o her permission. Or the person who may have only downloaded a few kb of the file.

    If we are honest though we all know that the real reason for joining all these defendants together is for the ease of "business operation" the law firms desire. The legal arguments justifying it are all after the fact.

     

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