Judge Allows US Copyright Group To Shakedown 23,322 IP Addresses For Downloading The Expendables

from the shakedown dept

We’ve seen a good trend in the various mass file sharing lawsuits lately, with judges blocking so-called “fishing expeditions” by the various lawyers filing these things. The judges are properly recognizing that these lawsuits are more about scaring people into settling, rather than any sort of reasonable lawsuit. However, not all the judges feel that way, and apparently the judge handling the latest (and biggest) lawsuit from the US Copyright Group, representing the producers of The Expendables, has apparently allowed subpoenas to go out on 23,322 IP addresses, the largest single group of people sued in one of these lawsuits. It’s really unfortunate that the judge didn’t realize how improper it is to lump all these defendants together and didn’t realize how this is really just a business model choice by the company, rather than a reasonable lawsuit.

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Companies: us copyright group

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Comments on “Judge Allows US Copyright Group To Shakedown 23,322 IP Addresses For Downloading The Expendables”

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100 Comments
DCX2 says:

Re: Re:

If the police just came busting in everyone’s door, I’m sure there’s not one door behind which illegal activity would be occurring.

There’s also the standard boiler-plate response. IP != person. This will be used for settlement letters, where innocent people will end up paying to make the lawsuit go away. They also are going for “making available”, not “downloading”, so is there any proof that the downloader waited had a share ratio above 1. There’s also the abuse of copyright law which was meant to punish criminals running a large-scale commercial operation, now being used against ordinary citizens engaged in small-scale non-commercial infringement.

Capitalist Lion Tamer (profile) says:

So, it's ok to go settlement phishing again

Obviously they have no desire to drag 23,000+ people into the courtroom. In essence, the judge is saying “See how much you can shake out of them and we’ll deal with the leftovers in court.”

Some judge should actually make them bring a separate case against each “violator.” That should temper these subpeona requests a bit.

Jay (profile) says:

Re: Stop using the term downloading for uploading

Everyone has been going to court for copyright infringement. Right we get it. But how about recognizing that in these circumstances, the people in a bittorrent swarm are doing both? Also recognize that this is still a stupid lawsuit made to legally extort money from possibly innocent people.

DCX2 says:

Re: Stop using the term downloading for uploading

Do they have proof that all of the IPs were actually uploading? Torrent clients allow you to throttle your bandwidth. What if they turned their upload speed down to 0? What if they left as soon as it downloaded, and their share ratio was 0.01? Does uploading 1% of a movie count? Would the final judgement be reduced by 99% to compensate for how much of the movie was actually uploaded?

aldestrawk says:

Re: Re: Re: Stop using the term downloading for uploading

The BitTorrent, peer-to-peer file sharing protocol, uses TCP. TCP is a “reliable” packet transfer protocol and so, uses acknowledgments. Until a set of packets (the window size) is acknowledged by the receiver no more are sent. If you’re IP address is still part of the swarm when a download is finished, the downloader can be sure that you’re IP was a source, successfully delivering some part of that file.
The investigators find these IP addresses by using BitTorrent to download the movie (file) in question.

Jeff Rife says:

Re: Re: Re:2 Stop using the term downloading for uploading

The BitTorrent, peer-to-peer file sharing protocol, uses TCP.

In most cases, TCP is only used as a last resort for current BitTorrent clients. Most are set by default to prefer UDP, and only try a TCP connection if the UCP socket open fails.

Anonymous Coward says:

Re: Re: Re:3 Stop using the term downloading for uploading

I don’t actually use bitTorrent, so I only know what I read. My understanding is the UDP is only used with BitTorrent DNA (Delivery Network Accelorator) and that it is more centralized, oriented toward publishers offering it commercially.
Anyway, without knowing the architecture of DNA, I am pretty certain it also uses ACKs but in a way that is more efficient than TCP in this context.

Paddy Duke (profile) says:

I want in on this game.

This seems to be a fantastic business model where you?re guaranteed a return whether you succeed or not, so I want in. Who wants to help me make a crappy film?

If it takes off and becomes popular, we?ll be rich!

If it doesn?t, we can blame piracy and sue/shake down tens of thousands of people who allegedly shared it for hundreds of times more than they would have ever have paid us to see it. We?ll be rich!

In fact I hope it?s a flop.

bob (profile) says:

So what is a "reasonable model"?

Ah, the creator haters here like to cling to the idea that perhaps there’s one or two innocent grandparents that are caught in this dragnet and so maybe the whole thing is invalid.

But why? Day in and day out, laws are enforced with an assembly line mentality. Parking tickets? The meter maids write up license plate numbers and the owners get stuck with the bill even if someone else is responsible. Noise complaints? The police write a citation to the owner, even if the owner is on vacation and the house sitter (really the kid) is responsible. This kind of inexact justice happens all the time at every level. Only OJ Simpson got the amount of adjudication that he deserved and boy did that work out well for society.

Further more, many of the creator haters here are quite happy to simply punish the big company for the sins of an employee. They’re happy to argue that the Big Record Company is evil just because some accountant made a sleezy call. Many of the other artists may be rich and living in mansions, but the file sharing apologists love to punish all with a blunderbuss.

Unfortunately, assembly line justice is the best we can hope for in this world and I’m not sure some lazy couch potato who’s too cheap to pay for a legit subscription from Netflix deserves more justice than a parking ticket scoflaw or the vandal down at central booking.

Would it make you happy to file 23,000 individual cases? Nope. You would just be screaming about how this is some how unfair to the individuals because it would force them to make the same argument again and again.

This scheme is actually pretty nice to the cheap couch potatoes. At least they have a chance of banding together and paying one lawyer to make their hail mary claims about how they’re all just innocent and this is fair use and if the judge punishes them, all of the innovation on the Internet will come to an end and we’ll go back to living in grass huts. At least in this case the law school lawyers can take their cash from Big Student Debt, Big Search, Big Hardware and Big Piracy to argue this one. If there were 23,000+ individual cases it would be much harder for them.

The eejit (profile) says:

Re: So what is a "reasonable model"?

But the argument is simalar to that gainst Stephens Media: IT’s a “pay up or we sue” scheme. That’s called extortion where I come from (Pay up, or something bad will happen).

And as for paying just one lawyer, that’s bullshittery of the highest order – there’s the funny little thing called jurisprudence. And unless the USCG has passed that Bar in each state and obtained a license to practice, then without a partner in each and every state, it simply can’t be enjoined.

It shouldn’t have gone this far, as an IP address != the downloader. For a start, it is possible that the network/router was unsecured, or that someone was there who wasn’t the bill-payer who doanloaded it.

Moreover, The Expendables is the right name for it; after five minutes, I expended the energy to delete it form my brain.

bob (profile) says:

Re: Re: So what is a "reasonable model"?

IP!=downloader? It’s close enough. Ambiguity happens all of the time in police work and the police usually send everyone to jail. There are guys who’ve received life in prison just for riding along on some robbery that went bad. They were found guilty of murder.

When it comes down to it, the connection between the IP address and the downloader is about as strong as many of the other pieces of evidence that convict people. How do we know the eyewitness didn’t see a twin or just someone who looks similar? Happens all of the time but people still go to jail. DNA evidence? How do we know the DNA wasn’t planted or just deposited through innocent activity? There are people convicted of rape with DNA evidence who go to jail claiming it was all consensual.

Think about it.

bob (profile) says:

Re: Re: Re:2 So what is a "reasonable model"?

Sorry dude. I’m not comparing the acts, I’m comparing the prosecution of the acts. And given that they’re much worse, we might expect that the prosecutors would require strong evidence. But I’m claiming that many people are convicted on evidence that’s not as strong as the IP address. So maybe the judge is being reasonable, at least commpared to the other prosecutions..

Irate Pirate says:

Re: Re: Re:3 So what is a "reasonable model"?

I’m claiming that many people are convicted on evidence that’s not as strong as the IP address.

Which is why such flimsy convictions are easily overturned on appeal, and in part why appeals even exist.

“better that ten guilty persons escape than that one innocent suffer” – Blackstone’s formulation

So what is a “reasonable model”?

Figuring that out is not the responsibility of the consumer, nor shall it ever be. The only thing constant in life is change. Common sense tells us, and nature shows us, that those who refuse to adapt, die. If you insist on using a faulty, outdated business model, expect to go out of business.

Christopher (profile) says:

Re: Re: Re:2 So what is a "reasonable model"?

I have to agree, DCX2…. bob sounds like a copyright/law&order troll who apparently cannot realize that there is a difference between civil and criminal investigations.

Oh, and with all due respect, bob…. no, they do NOT send everyone away if there is ambiguity.

The thing that you referred to, where someone rides along in a robbery, is stated that they are taking part in the robbery so anything that happens there is somewhat their fault, even a murder that happens, because they KNOW that they are there to rob the place.

The same thing does NOT hold true for copyright infringement, where someone could be using someone else’s connection illegitimately without their knowledge.

bob (profile) says:

Re: Re: Re:3 So what is a "reasonable model"?

I never said that they sent everyone away with ambiguity, but it happens often enough. The fact is that we can’t get the kind of justice that we want from the world.

Mike suggested that it was unreasonable to bundle these suits together and I disagree. It seems just as reasonable as many of the decisions that are made about far more serious matters. Furthermore, the IP address is probably a better form of evidence than many others used in court. Not perfect of course.

DCX2 says:

Re: So what is a "reasonable model"?

I’m not sure some lazy couch potato who’s too cheap to pay for a legit subscription from Netflix deserves more justice than a parking ticket scoflaw or the vandal down at central booking.

Parking tickets and vandalism nail you for tens to hundreds of dollars. Settlements alone are thousands of dollars, and if you lose in court you’re looking at millions.

Downloaders don’t deserve more justice. But they do not deserve less, either.

bob (profile) says:

Re: Re: So what is a "reasonable model"?

Yeah, but the evil content companies usually settle for about the same amount as the parking fines. More or less. Heck, I’ve heard of speeding tickets from automated cameras going into the $300-$500 range. That’s about the same amount per infraction as is found in many settlements.

I’ve always been a bit uncomfortable with the high size of the fines. I’m sure that the lawyers could net more money if they just asked for $300/infraction. Then it wouldn’t be worth it for the file traders to fight the charge.

My guess is that the high size of the fines is actually a blessing to the never-pay-for-content side because it motivates the fight. No one fights parking tickets more than once because the state always wins. A lower fee would change things.

bob (profile) says:

Re: Re: Re:2 So what is a "reasonable model"?

Fair? Of course not. But I bet that it’s fairer than most other parts of the law. There are people being sprung from death row all of the time even though they were convicted by eyewitness testimony. I’m pretty sure that the IP addresses are a better indication of guilt that many of the other forms of evidence that send people away for life.

The criminal justice system is not very fair at all, even though many people who work in it try pretty hard to make it as fair as possible.

bob (profile) says:

Re: Re: Re:4 So what is a "reasonable model"?

First, learn what a straw man is.

Second, I’m not saying anything about whether people choose to defend their innocence. I know enough about computers to know that the IP address is a pretty good indicator. It’s just as good as a license plate that’s used to give a parking ticket.

If people want to defend their innocence, that’s fine but I would be quite surprised to find more than a few mistakes in that list of 23000. But most people won’t be able to defend their innocence because someone connected to that modem was guilty.

Ikarushka (profile) says:

Re: Re: Re:5 So what is a "reasonable model"?

I know what strawman is, and I admit that I applied it wrongly in this particular case.

But your entire logic is a strawman: we say that the business model of trolls is questionable/immoral/flawed, you wrongly associate this problem with whether people can be accused based on IP and trying to disprove that, creating an impression that copyright trolls are decent folks worrying about copyright protection. And your liberal comparison of civil vices to criminal actions is 100% strawman.

I also puzzled by you use of the term “guilty” here: first, it is not applicable to civil cases, and second, I though only court can conclude that a person is guilty/liable.

Chosen Reject (profile) says:

Re: Re: Re:5 So what is a "reasonable model"?

An IP address is a whole lot worse than a license plate as an identifier.

A license plate is attached to a specific vehicle and doesn’t get changed willy nilly. IP addresses can be behind a router with NAT so any number of devices can be sharing the same IP address. IP addresses acquired through DHCP can change a lot.

An IP address can be spoofed. Sure, it’s possible to spoof a license plate, but it’s not nearly as easily done. Also, anyone who has seen the license plate has also seen the car and possibly the driver/occupants, so it would require the license plate spoofer to also have the same car as the person who owns the real license plate, and possibly to look like the owner or authorized user as well.

And speaking of NAT, with wireless routers it’s possible for someone to join a network who is not the network owner. Most people will not let just anyone drive their car (and by extension, use their license plate). For example, I will not let my 4 year old drive my car. However, I will let her use my network, and by extension, my IP address. And I certainly wouldn’t let a stranger who I’ve never met use my car. But they can use my network (whether I allow them to or not, whether my network is secured or not).

I’m not saying license plates are perfect identifiers. I’m only saying that IP addresses are even worse.

bob (profile) says:

Re: Re: Re:4 So what is a "reasonable model"?

First, learn what a straw man is.

Second, I’m not saying anything about whether people choose to defend their innocence. I know enough about computers to know that the IP address is a pretty good indicator. It’s just as good as a license plate that’s used to give a parking ticket.

If people want to defend their innocence, that’s fine but I would be quite surprised to find more than a few mistakes in that list of 23000. But most people won’t be able to defend their innocence because someone connected to that modem was guilty.

Any Mouse (profile) says:

Re: Re: Re:3 So what is a "reasonable model"?

Okay, so, to recap, you think that because other laws are unfair we should shut up about copyright. That’s basically what you keep saying. Stop trolling, and rehashing points that others have either debunked (an IP address is close enough!), or dismissed as being based upon emotional responses (rape! murder!).

DCX2 says:

Re: So what is a "reasonable model"?

Oh, by the way. That “reasonable model”?

Leave non-commercial infringement alone. Most downloaders were never going to be your customer, so you didn’t lose any money.

Pursue commercial infringement instead. The people who buy goods from commercial counterfeiters often believe they’re buying the real deal. Those are the customers that are being stolen from you.

bob (profile) says:

Re: Re: So what is a "reasonable model"?

Sorry. That’s not a reasonable model if it becomes clear that every consumer has a choice: pay money at Amazon/iTunes/whereever or get it for free from ISOHunt. Do you think most people are going to foolishly pay for content just so you can get yours for free? And believe me, most of the world knows how to get things for free now.

bob (profile) says:

Re: Re: Re:2 So what is a "reasonable model"?

Nope. People will pay when there’s effective enforcement of copyright. Law suits like this are part of the effective enforcement.

If we adopted this fellow’s business model and gave everyone the right to download anything they wanted as long as it wasn’t commercial, I’m sure sales at iTunes would drop precipitously.

Ikarushka (profile) says:

Re: Re: Re:3 So what is a "reasonable model"?

I was not aware that Radiohead folks were starving.

Someone said that people are willing to pay for otherwise free content, if there is an additional value in it. For me starting a Netflix stream (even if I had to pay for each movie) is more convenient. And for me convenience is value, as saving time and hassle is.

I don’t argue that enforcement does not work. In Singapore drug usage is extremely low because the penalty is death. The question is: who wants to live in a police state?

bob (profile) says:

Re: Re: So what is a "reasonable model"?

Yes, I would like the legal system to be much fairer. I’m sure everyone would agree, especially the people in the system who seem to try quite hard.

Let’s turn this around. You’re on the jury trying to decide the fate of an accused murder. You hear the testimony of 4 eyewitnesses who seem pretty reasonable. Yet you also know that sometimes eyewitnesses make mistakes. Do you refuse to convict because there’s a small chance that the eyewitnesses were wrong?

What if the stakes are lower? No evidence is perfect. DNA evidence can be planted. Would you stop convicting people until it can be made sufficiently fair for your standards?

AdamR (profile) says:

Re: So what is a "reasonable model"?

“But why? Day in and day out, laws are enforced with an assembly line mentality. Parking tickets? The meter maids write up license plate numbers and the owners get stuck with the bill even if someone else is responsible. “

Why do you bullshit creators always bring up stuff like this?
The car is physical property not virtual. Don’t know about you but i have gotten tickets and got them thrown out. The last one was for a missing registration sticker, it was on the windshield still but two corner the glue wasted away and where peeling back. I enter my not guilty plea on the web site and stated the sticker was there but peeling away on the corners and i won! My word against the ticket person.

AJ says:

Re: Re: Re:2 So what is a "reasonable model"?

“Is an IP address sufficient? Maybe you should try asking the guys who had the FBI bust down their doors when someone else used their wifi to download CP.”

The IP address was sufficient enough to get a search warrant, hence the search. It is not evidence of guilt, nor should anyone simply throw their hands up in defeat and admit guilt simply because they don’t understand technology.

Anonymous Coward says:

Re: So what is a "reasonable model"?

But parking tickets and noise complaints don’t cost one thousands of dollars – up to $150,000 per infringement is being threatened, so while most people in the 23K may truly be guilty, is is unacceptable that the few innocents have to pay a settlement to avoid an even more expensive defense to avoid that possible huge judgement. I try to be a calm, understand human being as a matter of practice, but at this point I’m actually hoping that you or someone you care about gets this kind of treatment. That seems like the only thing that might make you see the injustice in this extortion scheme.

bob (profile) says:

Re: Re: So what is a "reasonable model"?

Of course I see the injustice. But I also see the injustice when the creators watch their hard work passed around by people who seem thrilled to not pay. This blog is filled with creator haters who squalk and squalk about the injustices of suits, but look for any bit of sophistry to celebrate not paying.

In other words, the P2P fan club is just as capable of abusing the system. If you want to cry about injustice, at least pay attention to all of the injustice out there.

Anonymously Brave says:

Re: So what is a "reasonable model"?

So, what you are saying is, you’d be perfectly fine with constantly paying for undeserved tickets and being arrested every once in a while, even though you are innocent…simply because you believe that they “get it right most of the time?”

That is a bunch of BS. You would be screaming just as loud as everyone else if you were on the receiving end of one of these and you did nothing to deserve it.

Yes, mistakes occassionally happen in criminal law enforcement, but you’d be hard-pressed to find even a handful of people who are willing to say that it’s no big deal and any innocents who happen to get wrongfully busted should just shut up, pay the fines and do the time ’cause it’s all for the greater good.

There is also a huge difference between enforcing criminal and civil laws, the latter of which is what copyright infringement falls under. Stop trying to blur those lines. At the very least, most of what you described involves physical evidence, not a digital address that most ISP rotate to someone new a dozen or more times a day.

Besides, when was the last time you heard about cops arresting 23,000 people in a single bust?

“Would it make you happy to file 23,000 individual cases?…This scheme is actually pretty nice to the cheap couch potatoes. At least they have a chance of banding together and paying one lawyer….”

Sorry, your argument doesn’t apply. They only lump 23,000 IP addresses together in a single case to get the names and addresses from the ISPs. As soon as they get the info, they drop the case and send out the settlement notices. If anyone fails to pay the settlement, they will file a new case against that person individually. This is how the content industry abuses the court system to work this business model. It’s not like they will actually hold a single trial against all 23,000 people at once.

What you should have said is, this scheme is actually pretty nice to the cheap IP lawyers. At least they have a chance of banding together thousands of “infringers” and paying one filing fee to get all of their names and addresses. If there were 23,000 individual filings it would be much harder (and expensive) for them.

Cowardly Anon says:

The only good part of that movie was the one gun. If you have seen the movie you know exactly what gun I’m talking about. 🙂

I find it rather funny that they couldn’t get people to pay to see this movie because it’s so bad. They really should just be happy that people are actually willing to watch it for free!

I wonder what would be found if someone look closer at this judge. Perhaps they have a slight conflict of interest? That’s the only way I could see something like this going through. That or maybe the judge hasn’t seen the movie yet either….

AJ says:

All BS anyway...

Let’s pretend that someone is guilty as hell. They download, watch/listen, then remove the file from their computer with a secure delete program that performs multiple data over-writes, or they change out hard drives as soon as they get a settlement letter. Aside from the IP address, there is absolutely no way to prove that they have/had the file, and since the IP address has been proven unreliable, what proof do they have really?

Yes i know that replacing your hard drive would be illegal, but if your committing an illegal act anyway, whats the difference? Do you think some 14 year old is going to care that tossing his removable drive out with the trash is against the law? Any idea how many removable drives you can but for the average settlement letter?

J Doe says:

Re: Judges are different

Sam Sin,
Note that some judges have different opinions, and some don’t have enough information, so it is very important to inform them. This is practically what I have been trying to accomplish by my court filings in my case: https://fightcopyrighttrolls.wordpress.com/io-group-inc-v-does-1-244/ (see the link for Court Documents there).

Overcast (profile) says:

So.. what’s to stop a person, after getting the summons – to just run out and buy the movie. Get to court, claim they already owned it, but it’s scratched so they downloaded ‘alternate media’?

And yes…

“Any idea how many removable drives you can but for the average settlement letter?”

Or even how many fixed drives for that matter. Hell, I could toss the whole computer out and say I didn’t even own one.

bob (profile) says:

Re: Re:

And people will try this. You can be sure.

The problem for Mike and all of the apologists is that 95%+++ of the people who are on this list are guilty of uploading content. They knew what they were doing and they were probably egged on by sites like this that constantly valorize and apologize for the pirate sites.

Yet Mike wants to somehow claim that he’s not anti-copyright. He’s just not willing to support any kind of punishment whatsoever. And if you’re not going to punish infringement, why bother having the law?

bob (profile) says:

Re: Re: Re: Re:

You don’t need to prove who did it. Someone at that address did it. We enforce many laws like noise ordinances that way. Parking tickets go to the car owner. Heck, there are people in jail for murder even though they were only riding along on an armed robbery that went badly.

The thing is that the IP address is better evidence than many other forms of evidence that are convicting people for worse crimes.

AJ says:

Re: Re: Re:2 Re:

“The thing is that the IP address is better evidence than many other forms of evidence that are convicting people for worse crimes.”

Again I’m going to have to call BS on this one. IP address is evidence that a device at some number downloaded/uploaded something, not a person. Since that number is not assigned to a person, but a physical object/possible location/group of objects, it’s not actually evidence of anything beside an offense occurred. Without additional evidence, your going to have a hard time getting a victory in a court room. Hell, in some cases the Judge won’t even give up the physical address the number was tied to without additional evidence…

Stop spreading FUD bob. Your comparing infringement with parking tickets (Physical object parked on a road), and robbery, (physical property taken). Big difference!

bob (profile) says:

Re: Re: Re:3 Re:

Yeah, and a smoking gun in a person’s hand is just proof that some object ignited some gun powder. It had nothing to do with that person next to the object. Sure.

Remember that the jury won’t be filled with aspergery nerds who are thrilled with their legal sophistry.

Someone worked hard to produce something. Someone acquired it without paying. Most people with jobs understand that if the payment loop isn’t closed, the system falls apart. Only the morons around here keep making a distinction between physical goods and digital goods. Both take work and worker need to be paid so they can eat.

AJ says:

Re: Re: Re:4 Re:

I’m not sure if your trying to be funny or not bob. No ones arguing morals with you here, and I seriously doubt many of these cases will ever make it in front of a jury. Historically speaking, it’s not profitable for a legal firm to go after file sharers in mass. Try looking up “ACS Law” and you’ll see what I mean.

BTW.. insulting the readers here will earn you troll status faster than you can type one of your emotional rants…. just a thought…

Overcast (profile) says:

“Obviously they have no desire to drag 23,000+ people into the courtroom.”

Yeah – that’s why all 23,000 should request a full jury trial.

If I’m ever in these shoes, I will. But I almost never download anything anyway. It’s about ethics to me. But that being said, I have downloaded a few games and movies..

In those cases it is in fact due to damaged media.

But in those cases, I can categorically prove I already ‘bought the rights’ to the movie/software.

bob (profile) says:

Re: Re:

And I’m sure Big Content would be happy if everyone requested a trial. In my experience jury trials are 50/50 toss ups. The rational person who’s guilty would still stake a reasonable settlement offer because the cost of paying for a defense in a jury trial is high and the chance of winning is only 50/50.

In the scheme of things, the settlement offers may seem like extortion, but it’s usually better than taking your chances with a jury. Even the fancy lawyers from Harvard can’t produce good odds.

AJ says:

Re: Re: Re:

“And I’m sure Big Content would be happy if everyone requested a trial.”

I’m going to have to call BS on this one. Big content would be happy if everyone settled and no one went to trial. They would have almost zero investment and maximum return. If everyone took them to task on this, they may win some, they may not, either way it’s going to cost them money and time.

“In the scheme of things, the settlement offers may seem like extortion, but it’s usually better than taking your chances with a jury. Even the fancy lawyers from Harvard can’t produce good odds.”

The above statement couldn’t be further from the truth. The more people role over, the braver these guys will get. The best way to stop this is to make it as difficult and as costly as possible, yeah there will be some casualties, but that’s better than just handing out money because it would be “easier”>…

J Doe says:

Re: Re: Re: Fighting breaks down troll's strategy

Right, AJ. Your argument is an exact statement of the reason why I decided to fight. To make this fight effective, more people should fight. This is why I have been calling for getting the Does united:
http://www.techdirt.com/articles/20110509/14493614216/judge-lets-us-copyright-group-subpoena-23322-ip-addresses-to-shakedown-over-expendables-download.shtml#c451

J Doe says:

People on these cases should unite

It is very likely that IFF will step in here – on the case, which has the greatest number of Does. However, the Does on smaller cases will probably have to choose whether to fight on their own. This makes the issue of uniting the efforts of these Does crucial.

Please note that Wired?s link for the Judge?s order allowing early discovery shows the order on the case with 6,500 Does. I guess these 23, 000 Does are on several cases filed at about the same time. In the past, IFF would pick one of such cases and file an amicus brief for this one case. (Obviously, they don?t have resources for each and every case.) At the same time they encourage people on other cases to fight on their own.

Along with pretty high attorney fees, one of the problems that I see with individual fights is that once your actions enrage the troll, you are very likely to become his target for selective prosecution. For this reason Does on these cases would rather sit and wait, and not fight. (BTW, this is what many honest attorneys recommend to do: fighting is too costly in many respects.) The way out could be preserving your anonymity, but no attorney will agree to work with you unless you either disclose your IP or file for a protective order (which still leaves your initials and your city disclosed). This is why I have decided to fight on my own, without an attorney, and note that the court (in the Northern District of CA) has been filing my papers signed just ?John Doe? with my e-mail (created purposefully for this case) being my only identifier. EFF briefs gave me a good idea which arguments to bring up.

Those who read my comments to an earlier blog post here may enjoy reading my latest filing (finally uploaded to Pacer by the court yesterday): http://www.scribd.com/doc/55048420/310-Cv-03647-WHA-Docket-38-Motion-to-Dismiss . In this filing I have repeated the improper joinder argument that worked on other cases in the past, and also gave a detailed outline of the jurisdiction argument (I even included the list of all the Does? IP addresses with the states that have jurisdictions over them).

It would be great if other Does would not just seat and wait, but would also try fighting on their own. I would be happy if they could make use of my filings.
Whether Does fight or not, it would be fair to get them together, so that they could share their experience or at least get some support, which is especially important for those who, like myself, did not download the movie that the troll says they downloaded. I have created a blog (https://fightcopyrighttrolls.wordpress.com ) where I report my actions. The same site also lists information for my case (https://fightcopyrighttrolls.wordpress.com/io-group-inc-v-does-1-244 ), and in the comments to this information another Doe (Steven, who read my info in a comment to an earlier blog post here) has started a discussion about the fairness of these litigations and a way for Does to unite to at least share attorney fees.

So I thought that it would be wise to get a place (a forum) where Does could get together. With some luck EFF may post a link to this forum on its web site. We could also try to ask our ISP to inform the Does about this forum. I see the following two basic requirements for the forum platform: 1) a possibility to create folders (so that, in addition to general issues, Does could discuss issues that are specific for their Plaintiffs and their trolls-attorneys), and 2) a possibility to preserve one?s anonymity (including a possibility to post using Tor (http://en.wikipedia.org/wiki/Tor_(anonymity_network))): there are still thousands of Does not discovered by plaintiffs yet, and now we have 23,000 more of them.

Any idea which forum platform (already available on the web) would be good for this purpose?

FUDbuster (profile) says:

I’m going to have to throw my theory back out there, especially as we see more and more defendants joined together in one case. The basis for joining all of these defendants together was because they were all members of the same swarm. USCG is claiming that each peer is a seed, and that every downloader is an uploader. In other words, USCG is saying that the defendants acted in concert and were joint tortfeasors.

The Copyright Act allows for only one award of damages if any two defendants in a suit are liable jointly and severally. USCG is essentially arguing that ALL of the defendants are liable jointly and severally. If that’s the case, then all the plaintiff could collect in a mass infringement case is one award of damages, or $150,000 max. This means that if USCG proceeded against all 23,322 defendants in one suit, the most any one of them could be liable for is 1/23,322 of $150,000, or about $6.43 each.

Of course, USCG does not pursue a suit against all the defendants in one suit. Instead, they are dismissing defendants without prejudice and then suing them individually for an entire award of damages each. I don’t think is right. If the most USCG could get from each defendant is $6.43 if they were sued in one suit, then why does USCG get to ask for $150,000 from each defendant if it thereafter files individual suits?

The caselaw I’ve read about joint tortfeasor liability suggests it doesn’t work this way.

These damages issues have come up in a few recent rulings by Judge Kimba Wood (she is a cougar–google her) in the LimeWire litigation: http://www.scribd.com/doc/51594494/Arista-v-Limewire-Order-Doc-602 and http://www.loeb.com/files/Publication/2448934a-e3dd-44d4-b6df-d5b719548f08/Presentation/PublicationAttachment/87330698-36f1-4de8-acea-d9481ba525ca/Arista%20Records%20v%20Lime%20Wire%20SDNY%20April%207%202011.pdf

In a footnote, Judge Wood points to a footnote in a copyright case out of Maryland:

The Court construes ?the action? as including all claims that could have been brought in a single case. Otherwise, a Plaintiff could multiply statutory damage awards through the device of filing separate lawsuits against joint infringers.

Bouchat v. Champion Products, Inc., 327 F. Supp. 2d 537, 554 (D. Md. 2003) aff’d on other grounds sub nom. Bouchat v. Bon-Ton Dept. Stores, Inc., 506 F.3d 315 (4th Cir. 2007).

And that’s exactly the problem. USCG is seeking to “multiply statutory damage awards through the device of filing separate lawsuits against joint infringers.” I don’t think it works like that.

I believe that even though USCG is filing separate suits against individual defendants, they are stuck with what they’re pleading in the mass infringement lawsuits–that the defendants are jointly and severally liable. In other words, if they split this suit up and sued all 23,322 defendants separately, they should only be entitled to receive $6.43 from each defendant.

In fact, I think that those who have settled are likely to be entitled to a refund if what they paid was greater than what their pro-rata share would have been. So if someone settles for $2,500, they are entitled to a refund of all but $6.43.

As USCG is now suing several (dozens I believe) individuals, perhaps we’ll see some arguments along these lines come out. I don’t see how they can have it both ways. The defendants can’t be joint tortfeasors for the purposes of joinder, but then not joint tortfeasors for the purposes of damages, right? I’m sure my reasoning is flawed though… Comments? Insights?

Anonymous Coward says:

“Sorry, your argument doesn’t apply. They only lump 23,000 IP addresses together in a single case to get the names and addresses from the ISPs. As soon as they get the info, they drop the case and send out the settlement notices. If anyone fails to pay the settlement, they will file a new case against that person individually. This is how the content industry abuses the court system to work this business model. It’s not like they will actually hold a single trial against all 23,000 people at once.”

But will they (file individual suits)?? They have only refiled a very small handful in areas that DGW apparently has friends. There is no way a 13 person firm is going to refile all those individual cases all around the country. No way. Other than a FUD example here or there to keep the settlement mill running. Only the people in the filing courst jurisdiction should consider doing ANYTHING at this point IMO. Everybody else should just wait.

That Anonymous Coward says:

Do the companies selling them the lists of IP addresses have the proper investigator licenses as required in several states?
Most often – No.

Do the companies collecting this information have a financial stake in providing this information?
Always.

Do these companies have any independent review of their methods?
No.

Are these companies the source of the original file?
In some cases Yes.

Do some of these companies actively participate in the infringement act by downloading and seeding themselves?
Yes.

Has the list of IP addresses been vetted in any way?
No.

Are these cases being file in such a way to minimize the costs to the lawyers?
Yes.

While claiming it is impossible to figure out where these IP addresses are based, they file in a state convenient to themselves against people well outside of that courts jurisdiction. The point of this is 2 fold, savings on cost and to make any attempt to fight against these subpoenas financially impossible for the accused.

We now have courts ruling that accused Does have no standing in the cases seeking their information. How is that for a nice catch 22, even if your motion to quash has merit (its often just as reliable as the initial complaint) you are not a party to the case that seeks another uninvolved party to turn over your private records.

This is part and parcel the ACS:Law business model.
USCG is currently suing a grandmother in MN for having downloaded one of the horrible films they are “protecting”. The flaw in the case seems to be Grandma does not own a computer, but merely is an account holder.
Rather than accept her claim of not being a massive bittorrent pirate, they demanded $1000 on top of the amount demanded in the “settlement” letter.

There are several cases proceeding forward currently many of them now trying to create precedence that if your the account holder, you are responsible for the actions of anyone who, with or without your permission, commits an alleged infringement.

This really is warping and bending of the law, being done to turn a rotten film into a box office smash.

These lawyers often engage in “questionable” actions…
Evan Stone lied in a copyright application, to try to obtain a better damages scale.
Evan Stone created subpoenas not authorized by the court, illegally obtained private information, and then managed to extort payments out of some of the named parties. He was then angry that the court and opposing council pointed out his breaking the law.
USCG attempted poorly to hide what firm they actually were, because these actions would draw much negative press.
Steele and Randazza often highlight in their “settlement” negotiations that if you do not pay this, everyone will know your porn habits. Mind you they can only prove that, maybe, you were the account holder at the time of the alleged infringement. But they rely on the fear and public response that if your accused you must be guilty to sway people who might be completely innocent to settle.

While some people would like everyone to believe that the accused must be guilty, that flies in the face of the basis of law in this country. Innocent until PROVEN guilty is the standard we are to use. (Yes these are civil cases and the burden is more likely than not, but the point remains.)

Using “proprietary” methods to gather the information should be banned until such time as they can prove there is no possible margin for error in the system.

Noncommercial infringement, which represents nearly all of the file sharing activity (commercial pirates learned faster than studios that you can not compete with free), should have a cap of 2 x Retail Value. I doubt you would see so many law firms churning along chewing up everyone in their path to “win” $40.00.

The claims that films are loosing untold millions or billions (depending on how much they paid to have the study created) are ridiculous. The math has been debunked on so many levels. Seeing the country trying to force the world to create laws that are solely for the benefit of corporations, who do everything they can to keep their profits including paying off government officials (donate, bribe, contribution – anyone who thinks this money isn’t buying favors at this point needs a chaperone for life.) to invade the lives of the people they represent in the chase for possibly $20 more.

Oh those evil pirates they just want to stick it to us… or maybe they did not want to wait for the stupid 30 day window to rent the damn thing. Maybe they didn’t want to wait until you got over the whole its $60 for 2 months, then 50 then 40… until we get to the 9.98 price you will sell it for at walmart. If it was available at a reasonable price from the beginning, do you honestly think people would still go through all of the hassle to try and “pirate” your precious bundle when they can just go buy it?

This really does highlight the attempts of a dinosaur industry that is kicking and screaming to avoid having to change with the times. Change is hard, if we can not create artificial scarcity we might have to charge a lower price and compete.

Imagine the technology we could have today if they funneled all of the “contributions” into exploring new technology. As they try to kill off NetFlix and Hulu, 2 major advances that if they embraced really do “hurt” “piracy” they show us the consumer is the last thing they are concerned with, and they wonder why consumers could give a crap about them.

That Anonymous Coward says:

Re: Re: Re:

Because gathering information in this way in several states actually requires an investigators license.
IIRC There was an RIAA case blown out of the water when it was shown the company they were using lacked the proper license to gather information in the state.
There has also been talk that the reason Copyright Defense Agency seems to have “vanished” is because Green lacked an investigators license.

People who have licenses are expected to follow the law, and not just harvest wide swaths of IP addresses with proof gathered by following methods never held up for review. There are limits to how they gather the information, but these are all hidden in “proprietary” systems and methods no one is allowed to question the accuracy or veracity of.

As some of these “investigators” are using unmodified bittorrent clients that upload and download the infringing material this brings to question how clean the hands of the lawyer is. They are paying someone to increase the amount of infringement happening to obtain a larger payday.

Some of the companies have seeded their own copies of the files in order to obtain every ip address that connects to them, at the same time the industry is trying to sue others for contributing to infringement this does not seem to concern anyone.

If you were an investigator and downloaded what was labeled as the film your were to protect, but it turned out it was another companies movie mislabeled should you turn yourself in?

Some of these “investigators” are hired on Craigslist, do you think that the judge is aware that is how XYZ IP Tracker Enforcement Company does business? You have have an impressive title, but if your using faulty methodology this should call into question if the “evidence” meets the burden to unmask an alleged infringer.

We’ve seen nonexistant IP addresses in legal filings, and another fun thing to note – While they always claim they do not know where the people are located, why is it not a single non-US IP address is ever in the lists submitted to courts?

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