Another Judge Blasts Copyright Trolls

from the swarms dept

We’ve been seeing more and more judges reacting negatively to copyright trolls. What’s interesting is that they seem to be getting more aggressive in their statements against the trolls, and it seems clear that fewer judges are falling for their antics. The latest is from Judge Harold Baer in the Southern District of New York, who you could say is not impressed by some copyright trolling cases that have ended up in his court, coming from Media Products and Patrick Collins. He had allowed for expedited discovery, which is what copyright trolls want, but it seems quite clear that Baer regrets that decision and now seeks to reverse it. Expedited discovery basically gives the trolls what they want: it lets them subpoena ISPs to find out contact info of users based on the IP addresses they’ve collected. From that point on, they have no intention of ever proceeding with the actual lawsuit. They just want to start pressuring people into “settling.”

Judge Baer clearly understands what’s going on here. He notes early on the very serious potential problem of IP addresses not being particularly good identifiers of who has done the actual infringement:

Particularly troubling for courts is the high probability of misidentified Doe defendants (who may be the bill-payer for the IP address but not the actual infringer) settling a case for fear of the disclosure of the allegations against them or of the high costs of litigation.

He notes that he’s not ready to “wade into” the question of whether or not joinder is appropriate, especially in cases where all of the IP addresses are part of the same BitTorrent swarm, but he is clearly worried about a different kind of “swarm”:

Ironically, there are swarms on both sides, for copyright locusts have descended on the federal courts, exacting low-cost settlements from embarrassed John Does and then moving on to the next District

Yes, Judge Baer seems familiar with the M.O. of these trolls, and how they’ve effectively been “run out of” other districts after judges realized what they were up to. In fact, he quotes a ruling in the Central District of California approvingly:

… the federal courts are not flexible enough to be shaped into “cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that [Plaintiffs have] no intention of bringing to trial.

He also worries that the plaintiffs have already pressured defendants into settling, noting “that some Doe defendants have already been voluntarily dismissed at this early stage in the litigation.” For that reason, he’s decided that joining all the cases together at this stage is inappropriate, and has (like many other courts) severed and dismissed all but one Doe.

He then goes back to talk about his overall concerns with how copyright trolling is a troubling development, and quotes a bunch of other cases from other district courts around the country:

The Plaintiffs’ tactic, if left unchecked, could turn copyright protection on its head. Congress intended to incentivize the creation of useful arts by providing a statutory right and a means of enforcement that would reward authors for their labors, hardly the Plaintiffs’ strategy here…. In the BitTorrent pornography cases, settlements are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls. Severing the Doe defendants does not destroy the incentive to prosecute infringers who use peer-to-peer protocols; it merely restores the balance that Congress intended, not to mention that it ensures that courts receive the filing fees that Plaintiffs otherwise avoid.

And one final point, since he already allowed for discovery, he wants the plaintiffs to destroy the info, and if he finds out that they pursue those people anyway, it sounds like there may be trouble:

Plaintiffs shall not contact any Doe defendant who does not remain in this or a subsequently-filed case, and any pending settlement not with John Doe 1 in each named case shall immediately cease. If after 14 days Plaintiffs have not reinstituted cases against the remaining Doe defendants, Plaintiffs shall destroy whatever personal information they presently have for those defendants and shall not use the information for any purpose. Ifany Doe defendant no longer named in a case is contacted following entry ofthis Order, I encourage them to contact the Court.

Elsewhere, he orders the plaintiffs to pass along this order to all the ISPs they’ve subpoenaed, and to have them distribute it to all the people in question, so (hopefully) they understand to contact the court if the plaintiffs violate the order and continue to go after them.

One really good thing here: Judge Baer clearly spent time looking into these cases, and seeing just how common they are and what’s happening in them. Above, we’ve already noted that he cited a few such cases — but in a footnote that takes up about half the page, he goes on to name a whole bunch of them, noting that “this is but a sample” and pointing out:

It is difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.

Hopefully other judges are beginning to recognize the same thing. It seems clear that more and more judges are putting these cases into the proper context, understanding what’s really happening and how the copyright trolls are abusing the court system as a part of a business model, rather than for any legitimate legal reason.

Filed Under: , , , ,
Companies: media products, patrick collins

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Another Judge Blasts Copyright Trolls”

Subscribe: RSS Leave a comment
91 Comments
average_joe (profile) says:

But Mike, this judge is 79 years old. Are you not going to impugn him based on his age like you did the last federal judge? http://www.techdirt.com/articles/20120823/16473120140/district-court-675000-non-commercially-sharing-30-songs-is-perfectly-reasonable.shtml

“So… back down at the district court, with a different judge, who doesn’t seem nearly as sympathetic. Given that the judge is 80-years-old, it’s perhaps not a surprise that she seemed to spend more time talking about what a naughty kid Tenenbaum was, rather than the actual reasonableness of the rates.”

Or do you only cast aspersion upon their age when you don’t agree with their conclusion (i.e., you work backwards)?

Anonymous Coward says:

Re: Nice show (of lack of logical reasoning ability)

“Property Y (old age) is a possible explanation for behavior X (making wrong judicial decision)” does not imply “Property Y necessarily leads to behavior X”.

The fact that you think Mike necessarily needs to “cast aspersion” to be logically consistent merely shows your lack of understanding of the rules of logical reasoning.

Anonymous Coward says:

I would say that this judge is attempting to re-write the law from the bench (again).

If there is no direct reason to deny the plaintiff’s motions except for a feeling about what might happen later, the judge would be incredibly remiss if they blocked the motion on that basis. It would be an incredible waste of everyone’s money (including taxpayers) to just keeping grinding this through court to it’s same inevitable conclusion.

As Average_Joe mentioned, why aren’t you calling this judge out for being a senior citizen? Oh wait, you agree with his views this time, so he’s right no matter what.

Transparent.

Anonymous Coward says:

Re: Re: Re:2 Re:

Unlike you, the judge chose to cite examples in which plaintiffs have similarly been abusing the system, and decided to nip it in the bud.

“Deck is stacked against the victims”? You’re joking, right? Or are you just mad that judges have figured people like Andrew Crossley, Evan Stone and John Steele out?

Rikuo (profile) says:

Re: Re: Re:4 Re:

And of course, Mr. “The Law is the Law!”, when the judicial system is not practical to obtain “justice”, its okay then to abuse it? That is what is happening here. How would you like it if one of the porn companies sent you threatening letters saying you’d watched Nazi Gay Concentration Camp XXX Volume 3 and wanted a few hundred dollars to make the case go away?

Gwiz (profile) says:

Re: Re: Re:4 Re:

These lawsuits are a symptom of the problem, which is that it’s not practical or possible for a victim to file a separate federal lawsuit for every separate infringer.

Then maybe they shouldn’t IMO. Suing potential customers just never seems like good response to me. Even if you win, the bad press and general dislike for your brand that inevitably follows really can’t be good for future business.

Just out of curiosity, how would you solve this issue in a way that doesn’t depend on skirting due process or doling out punishment on mere accusations?

Donglebert the Lengthy says:

Re: Re: Re:6 Re:

Whilst I would in no way call you a TOTAL COCK or even imply that you were a TOTAL COCK, the mere suggestion that it could be considered that TOTAL COCK would be a valid description of you could be construed as a validation that calling you a TOTAL COCK may have some semblance of justification.

So in the same way I’m not calling you a TOTAL COCK, but others may disagree.

That Anonymous Coward (profile) says:

Re: Re: Re:4 Re:

“I think the violation of someone’s rights is itself a harm.”
So then why are you silent about the fact I can not use things I purchase how I want to because they made it illegal for me to try and format shift?
What about my right to make a backup copy that is voided because of a crappy piece of DRM code?

Why is it the rights of corporations are more important to you than regular people?

average_joe (profile) says:

Re: Re: Re:5 Re:

So then why are you silent about the fact I can not use things I purchase how I want to because they made it illegal for me to try and format shift?

What specifically makes it illegal for you to format shift?

What about my right to make a backup copy that is voided because of a crappy piece of DRM code?

DRM doesn’t violate your rights.

Why is it the rights of corporations are more important to you than regular people?

Everybody’s rights are important.

Anonymous Coward says:

Re: Re: Re:6 Re:

“DRM doesn’t violate your rights.”

Digital rights management (DRM) is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale.

Like I told bob last week, THAT is the definition of DRM. Which, as is rather obvious, DOES indeed violate a person’s rights. Notably, “limit the use of digital content and devices after sale”. Note that word “limit”. Limit is “something that bounds, restrains, or confines”. Do I go on?

DRM is the definition of violating a person’s rights, more so after the fact. Because the majority of times people are for the most part not aware that DRM exist until after a purchase has been made, and regarding digital content, there is no “return” policy. “You bought it, deal with it” tends to be the sentiment of those selling digital content that is DRM-laden.

Also, it’s worth pointing out that circumventing DRM is against the law.

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.

Which, just fyi, answers your “What specifically makes it illegal for you to format shift?” question.

The Digital Millenium Copyright Act makes it illegal to format shift. How so? Because most content has one form of DRM or another on it, and circumventing it is illegal (but not always), but the tools to circumvent it very much always are. As such, it is illegal to format shift the majority of content.

And no, everybody’s rights aren’t important. Or better said they are, but they’re not treated as such. Or do you need me to start linking to various articles showing the rights of some are more important than others?

Or as George Orwell once wrote, “All animals are equal, but some are more equal than others.” I know the word “Orwellian” gets banded about quite a bit, but in light of corporations being considered people, the wants and needs of corporations being placed ahead of the rights of the people, and so on and so forth, copyright and the laws surrounding it have started painting quite the Orwellian picture of the current state of affairs in the United States. (Yes, I just compared the views of some to further expand copyright to something Orwellian. Deal with it.)

But suffice it to say, I just answered, irrefutably, all your questions. Your response? Because I’m oh so eager to read just what you’ll have to say to dismiss what I said.

average_joe (profile) says:

Re: Re: Re:7 Re:

Digital rights management (DRM) is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale.

Like I told bob last week, THAT is the definition of DRM. Which, as is rather obvious, DOES indeed violate a person’s rights. Notably, “limit the use of digital content and devices after sale”. Note that word “limit”. Limit is “something that bounds, restrains, or confines”. Do I go on?

Even if you have the right to copy something, it doesn’t follow that it violates your rights to sell you something that is difficult to copy. Can you cite the source of your alleged right to be free from any limitation on your ability to copy?

That argument has been tried and failed:

Defendant relies heavily on congressional intent to preserve fair use but that congressional intent does not change the analysis. The Act expressly disclaims any intent to affect the rights, remedies, limitations, or defenses to copyright infringement, including the right of fair use. 17 U.S.C. ? 1201(c). Congress’ expressed intent to preserve the right of fair use is not inconsistent with a ban on trafficking in circumvention technologies, even those that could be used for fair use purposes rather than infringement. Fair use of a copyrighted work continues to be permitted, as does circumventing use restrictions for the purpose of engaging in a fair use, even though engaging in certain fair uses of digital works may be made more difficult if tools to circumvent use restrictions cannot be readily obtained.

The inescapable conclusion from the statutory language adopted by Congress and the legislative history discussed above is that Congress sought to ban all circumvention tools because most of the time those tools would be used to infringe a copyright. Thus, while it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention. That is part of the sacrifice Congress was willing to make in order to protect against unlawful piracy and promote the development of electronic commerce and the availability of copyrighted material on the Internet.

***

Defendant’s arguments are not persuasive. First, the DMCA does not ?eliminate? fair use. Although certain fair uses may become more difficult, no fair use has been prohibited. Lawful possessors of copyrighted works may continue to engage in each and every fair use authorized by law. It may, however, have become more difficult for such uses to occur with regard to technologically protected digital works, but the fair uses themselves have not been eliminated or prohibited.

For example, nothing in the DMCA prevents anyone from quoting from a work or comparing texts for the purpose of study or criticism. It may be that from a technological perspective, the fair user my find it more difficult to do so?quoting may have to occur the old fashioned way, by hand or by re-typing, rather than by ?cutting and pasting? from existing digital media. Nevertheless, the fair use is still available. Defendant has cited no authority which guarantees a fair user the right to the most technologically convenient way to engage in fair use. The existing authorities have rejected that argument. See Corley, 273 F.3d at 459 (?We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original…. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.?)

United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1125-31 (N.D. Cal. 2002).

Third, the Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format.34 Their examples of the fair uses that they believe others will be prevented from making all involve copying in a digital format those portions of a DVD movie amenable to fair use, a copying that would enable the fair user to manipulate the digitally copied portions. One example is that of a school child who wishes to copy images from a DVD movie to insert into the student’s documentary film. We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a ?horse and buggy? technique in making fair use of DVD movies,35 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.

Universal City Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).

I’m just not buying your arguments, and I’m not aware of any court that ever has.

That Anonymous Coward (profile) says:

Re: Re: Re:6 Re:

Because often to format shift one needs to break DRM, which is illegal.

DRM gets in the way of me exercising my rights, otherwise I wouldn’t have to pray that they decide to allow me to jailbreak a phone.

The right to a fair trial is voided by these cases.
Let us look at Evan Stone.
He admitted in a news report that his method for gathering IP addresses made the problem worse. He fully participated in the swarms he then went on to sue, unclean hands.
His “expert” was a former VP from a cell company, with no training or expertise. He lied on a copyright application to try and qualify for statutory rather than actual damages.
He filed a lawsuit when he did not have the copyright.
He fabricated subpoenas in violation of the courts instructions and hid the fact he had done so while arguing before the judge he should be allowed to send them out.
He lied about the cases and the evidence, and ran with the new idea that if you pay the bill your responsible for the actions of 3rd parties.

He abused the legal system and the farce continues, and yet people scared into settling with him have no one trying to get their money back. Many people who settle do so out of fear rather than guilt, this entire process as it is being run is extortion run with a courts blessing.

How are people supposed to defend themselves in court rooms far across the country from themselves?
Oh that’s right the court doesn’t actually have personal jurisdiction over those Does, but still grants subpoenas.
Does attempt to raise issues about jurisdiction and how the evidence is gathered and motions are denied because the Judge feels they are not a party to the lawsuit yet, able to ignore serious issues because its just discovery.
The so called “experts” in these cases are well paid from each settlement, rather than a flat fee. They have a financial interest in getting settlements that is not disclosed to the courts.

These parasites are using a law written for another century meant to stop people counterfeiting content and profiting, to punish people who pay for an internet connection.
There is no discovery beyond getting the name of the person who pays the bill to find the guilty party. If actual discovery is mentioned they talk about asking everyone in your neighborhood if they were the ones who downloaded “scandalous porn title” on your connection, as well as everyone who has been in your home in the last 6 months.

These are cases run to maximize damage to the alleged criminals name, so they will settle rather than try to fight. Oh and the people who do fight back, get dropped from cases or win awards in settlements because the case isn’t real. There is no proof, there is no evidence, and the trolls are abusing the legal system.

Don’t tell me everyone’s rights are important, because 300,000 people (at least) have been targeted in these extortion games and not a single Judge has asked for evidence that the IP gathering is legit and actually points to the infringer. People are considering suicide because of these actions and the harassment that follows, and yet more cases get filed.

Hell with the current system you don’t even need something with a copyright or that qualifies for a copyright, the court just rubber stamps it. How can you violate copyright on something without a copyright? Yet people are paying thousands to avoid the scandal the troll threatens.

G Thompson (profile) says:

Re: Re: Re:4 Re:

Bullshit! The statutory damages were put there at the behest of huge corporate pressure in the days of the railways in the USA. It has nothing to do with the current scenarios.

Oh and the USA is the only place in the world where statutory damages are allowed for a civil problem in such an extreme, the other 95% of the planet deems them to be an abomination.

Based on your logic statistical analysis above and elsewhere this means that the USA is violating respondents rights on a MASSIVE scale.

Ophelia Millais says:

Re: Re: Re:5 Re:

The statutory damages were put there at the behest of huge corporate pressure in the days of the railways in the USA. It has nothing to do with the current scenarios.

Initially, yes, but Congress looked at this part of the law in 1999 and increased the damage range to adjust for inflation and to be a deterrent specifically in response to widespread online infringement.

http://www.gpo.gov/fdsys/pkg/CRPT-106hrpt216/pdf/CRPT-106hrpt216.pdf
http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=1999_record&position=all&page=H6798

So an argument that the statutory damages aren’t meant to apply to Internet activity is incorrect. However, this doesn’t undermine your other points.

RonKaminsky says:

Re: Re: Re:2 Re:

> These lawsuits are an attempt to right a wrong
> where the deck is stacked against the victims.

I’m glad that you are so intimately acquainted with the rightsholders, and are sharing the personal information you have about their motivations.

Just like Thomas and Tennenbaum are exactly not the correct poster children for taking the infringement/punishment balance question to court, these pornographers and their multiply-sanctioned lawyers are not exactly ideal poster children for the other side…

G Thompson (profile) says:

Re: Re: Re:2 Re:

Prove it!

In fact an argument could now be made that infringement of works by persons (humans) that would never of been able to afford those works years ago has now enriched the human experience for them and given to them a culturally expanding experience allowing them to create their own works..

Not to mention the ability to obtain works that should be already public domain (and are in numerous jurisdictions) but have been retrospectively placed back on the ‘money train’ instead by corporate cronies.

John Fenderson (profile) says:

Re: Re:

If there is no direct reason to deny the plaintiff’s motions except for a feeling about what might happen later

It’s more than a “feeling” — it’s acknowledging that abuse has factually occurred and continues to occur as an inherent part of the business model for these entitites.

It seems entirely appropriate for judges to act to prevent the outright abuse of the law.

That Anonymous Coward (profile) says:

Re: Re: Re:

They claim they are related because they were all a part of the same “swarm”. So what if the dates of each recorded IP hit is months apart, so what if you can’t connect the people to a coordinated plan to violate copyright, so what if you don’t even make sure the material is copyrighted.

Most of these cases had been rubber stamped with no questions asked, like how much of each “settlement” is paid to the company providing the IP hits. There has been fraud perpetrated on the court, but half the Judges refuse to listen to any arguments from the Does because they aren’t named in the case… something that rarely happens.

Joinder had its uses, in this case it is just allowing them thousands of names to extort thousands from for the low low cost of $350.

Anonymous Coward says:

Re: Re:

You’ve clearly not read the article, have you? The judge specifically pointed out that there are cases in which unnamed Does were dropped – as though there was never a want to litigate them. This happens in most cases – very few named Does ever end up in court. Why is this so? Supporters of these cases like Maurice Ross insist that 90% of the Does are guilty – why aren’t 90% of the Does being named, then? Pornographers’ rights have been violated, right? IP address = person, right?

average_joe (profile) says:

Re: Re: Re:

Once a Doe settles, there’s no reason to press on with the lawsuit. So I don’t understand your point. An IP address is enough to establish a prima facie case that the subscriber is the infringer, so I don’t see the problem there either. Sure, the defendant might have some defense, but that doesn’t negate the plaintiff’s prima facie case.

I understand that some individual defendants probably have individual defenses that would make joinder impractical. But at this early stage of the proceedings, where no Doe defendant has even been named in the suit, I think it’s premature to sever based on that possibility.

Anonymous Coward says:

Re: Re: Re: Re:

You’re making the assumption that dropping the suit means that the Doe has settled. If you’ve been following sites that follow these cases there have been many people who received letters but have never heard of anything beyond that. They didn’t even know that they were being dismissed until they verified it with sites like SJDs.

But given you, it’s not surprising that you don’t understand the point.

sophisticatedjanedoe says:

Re: Re: Re: Re:

If it is premature to sever based on possibility, why isn’t is premature to file a frivolous lawsuit based on 70% possibility?

70% likelihood of the alleged connection is not a prima facie case.

Once again, talk to those 30% wrongly accused (which translates to > 60,000), preferably in person, and then come back.

Alternatively, you can try to disprove the 30% number, but for that you are expected to have the first person knowledge of the IP address collection technology, or at very least point to the forensic certifications of the alleged experts.

In the meantime feel free to continue asserting that you have no clue about the topic.

average_joe (profile) says:

Re: Re: Re:2 Re:

If it is premature to sever based on possibility, why isn’t is premature to file a frivolous lawsuit based on 70% possibility?

The lawsuit is what enables the plaintiff to gather information about the infringer. Without it, the plaintiff could not issue a subpoena to the ISP to get the subscribers’ information. Plaintiffs could never go after anonymous infringers since they wouldn’t even know where to begin. At that point, there isn’t even a lawsuit against a named defendant. The lawsuit is against the Doe, whose identity the plaintiff doesn’t even know yet. You seem to have a strange idea that lawsuits aren’t filed until the plaintiff knows 100% that the defendant did it. That’s not how it works. The lawsuit is what enables the plaintiff to gather more information via discovery.

70% likelihood of the alleged connection is not a prima facie case.

If a plaintiff has evidence that a subscriber’s IP address was used to infringe on their copyrights, then the plaintiff has made out a prima facie case against that subscriber. The burden shifts to the defendant to make out some defense, and if the defendant can’t or if they default, the plaintiff will win.

And I’m not convinced that the 70/30 thing is accurate for all cases.

btr1701 says:

Re: Re: Re:3 Re:

> If a plaintiff has evidence that a subscriber’s
> IP address was used to infringe on their
> copyrights, then the plaintiff has made out
> a prima facie case against that subscriber.

That’s just factually wrong. An IP address address does not even satisfy the “more likely than not” preponderance of the evidence burden in these civil cases, let alone the “beyond a reasonable doubt” standard that rightsholders and the government must meet in criminal copyright suits.

average_joe (profile) says:

Re: Re: Re:4 Re:

That’s just factually wrong. An IP address address does not even satisfy the “more likely than not” preponderance of the evidence burden in these civil cases, let alone the “beyond a reasonable doubt” standard that rightsholders and the government must meet in criminal copyright suits.

The “beyond a reasonable doubt” standard is irrelevant in these civil mass infringement cases. As far as the civil standard goes, can you cite one court that agrees with you?

I can find several that don’t:

Thirteen putative defendants argue that they should be dismissed from the lawsuit because the plaintiff has improperly joined them with other putative defendants.17 The putative defendants’ argument that they are improperly joined may be meritorious should they be named as defendants in this action. At this stage in the litigation, however, when discovery is *11 underway to learn identifying facts necessary to permit service on Doe defendants, joinder, under Federal Rule of Civil Procedure 20(a)(2), of unknown parties identified only by IP addresses is proper. As discussed below, this conclusion is further supported by the allegations set forth in the Complaint, which sufficiently establishes a prima facie case of infringement of plaintiff’s copyrights by users of the same file-sharing software program that operates through simultaneous and sequential computer connections and data transfers among the users.

Maverick Entm’t Group, Inc. v. Does 1-2,115, 810 F.Supp.2d 1, 10-11 (D.D.C. 2011).

btr1701 says:

Re: Re: Re:5 Re:

> The “beyond a reasonable doubt”
> standard is irrelevant in these
> civil mass infringement cases.

No shit, Professor Pedantic. That’s why I distinguished the two.

> As far as the civil standard
> goes, can you cite one court that
> agrees with you?

I said *factually* wrong. Not legally wrong. There are plenty of legal rulings that fly in the face of real-world facts. Like the court that ruled that wifi is not a radio signal, when it factually is a radio signal. In that case a judge wanted to reach a specific conclusion and wifi being radio was somewhat inconvenient for him, so he just ruled that it wasn’t radio.

A judge can issue rulings that a horse is a zebra all day long, but that won’t mean the animal in question has stripes. Despite what they may think, putting on a black robe does not make these men gods, and they do not have the power to bend reality to their will.

average_joe (profile) says:

Re: Re: Re:6 Re:

You brought up an irrelevant point only to distinguish it, and I’m pedantic? I don’t see it.

OK, you want to argue “facts” in response to my “legal” assertion. Have at it. You haven’t disproved that what I said is legally correct though, counselor.

I think it makes sense that more often than not the subscriber is the infringer. The other poster had mentioned the 70/30 number from one case. That “fact” supports the “legal” view.

What are your “facts”? Let’s take a look.

btr1701 says:

Re: Re: Re:7 Re:

> You brought up an irrelevant point only
> to distinguish it

It’s hardly irrelevant to criticize the courts for rulings that fly in the face of reality.

If a judge claims an IP address is a reliable enough indicator of identity to meet the standard of “more likely than not”, then he (or she) is full of shit and deserves to be criticized for it, regardless of whether they have the power to legally impose it or not. Hell, *especially* because of that.

> and I’m pedantic?

Yes.

> I don’t see it.

That much has been clear from the start.

average_joe (profile) says:

Re: Re: Re:8 Re:

It’s hardly irrelevant to criticize the courts for rulings that fly in the face of reality.

But the point you brought up had nothing to do with “rulings that fly in the face of reality.”

You said: ” An IP address address does not even satisfy the “more likely than not” preponderance of the evidence burden in these civil cases, let alone the “beyond a reasonable doubt” standard that rightsholders and the government must meet in criminal copyright suits.”

I pointed out that the issue isn’t the burden of proof in criminal cases, to which you replied: “No shit, Professor Pedantic. That’s why I distinguished the two.”

I then pointed out that the one being pedantic is you since you brought up an irrelevant burden of proof.

I don’t understand why you’re so angry? Are you not able to discuss these things like an adult?

And I’m still waiting to hear your “facts” about why an IP address is insufficient to state a prima facie claim. All you have are unsupported conclusory statements.

And you never explained exactly how any of it violates due process, as you intimated. Do you actually have a substantive argument on that point?

Or are you just an angry old man with nothing to add? Seems like it.

average_joe (profile) says:

Re: Re: Re:4 Re:

70/30 was a ratio provided by the plaintiffs who admitted the error rate when asked about it. You don’t think that this is problematic given the sheer number of settlement letters and threats they send out?

That was the admitted error rate in one case with one plaintiff. I have no idea what the number is in different cases, and neither do you. Even if that 30/70 is correct, that’s still prima facie evidence (which just means more than 50% chance).

RonKaminsky says:

Re: Re: Re: Re:

I understand that some individual defendants probably have individual defenses that would make joinder impractical.

Then you should also understand that actually bringing more than a handful of the defendants to trial seems even less likely. Which leads us to the conclusion that severing at the start is not actually damaging, in any practical form, to the plaintiff’s actual ability to proceed against the defendants as a whole (in any way I can think of, except to send out blanket extortion/settlement offers).

That Anonymous Coward (profile) says:

Re: Re: Re: Re:

“An IP address is enough to establish a prima facie case that the subscriber is the infringer”

Really? Where is the case law backing this up?

You do understand that technology being used to record these IP addresses at best is flawed, at worst is possible because a party being paid to gather the IP addresses is making the file available in the first place.

average_joe (profile) says:

Re: Re: Re:2 Re:

Really? Where is the case law backing this up?

It’s all around you. See, e.g.,

In order to establish a claim for copyright infringement, Liberty Media must show that it holds a valid copyright and that the moving defendants violated one of their exclusive rights as the copyright owner. London?Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 165 (D.Mass.2008) (Gertner, J.); see 17 U.S.C. ? 501. Liberty Media has produced sufficient evidence as to both these requirements to establish a prima facie claim. Liberty Media has shown that it holds a valid copyright to the Motion Picture, see Compl., Ex. 1, Certificate of Registration, ECF No. 1?1, and the copyright is not disputed here. Moreover, Liberty Media’s investigator, Malte Dinkela, has demonstrated that Does 1?38 violated Liberty Media’s exclusive right as the copyright owner to reproduce and distribute the copyrighted material.

Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F.Supp.2d 444, 449 (D. Mass. 2011).

That Anonymous Coward (profile) says:

Re: Re: Re:3 Re:

You really want to quote a company represented by Marc Randazza that lost a case because they were unable to provide the court with the name of the copyrighted material?

The lawyer who used the case about a tugboat having a radio to claim that people have a duty to LMH to secure their connections or pay him $10,000.

Or maybe you’d prefer their inability to actually serve defendants while moving for default against them in a case the defendant knows nothing about.

And Randazza is the one who said he would depose the entire neighborhood about who allegedly downloaded the gay porn on the targets connection, because threatening someones good name is a good legal tactic.

Or failure to serve someone 4 times, before admitting to the court the target was outside the jurisdiction of the court – but had tried to hide that fact for months and trying to get a default judgement.

Or finding Federal Court to hard and trying to file a case in a state court to bypass the limitations Federal Judges have put into place? And then dropping that case when a Doe moved the case to Federal Court where they have to actually state a claim?

They have a prima facie case against the unknown Does who infringed upon the copyright, who might not be the people who pay the bills. And Malte Dinkela might need to answer how much his company is paid for each settlement, and if the contract contains the same wording as their old contracts allowing them to put the material on the filesharing networks as a honeypot to gather IP addresses, because you can collect more money if you create the violation yourself.

average_joe (profile) says:

Re: Re: Re:4 Re:

I quoted the opinion of the court, not Mr. Randazza. There’s other cases too that make the same point about how evidence of an IP address being used is prima facie evidence that the owner is an infringer. I think that’s the correct view. All it means is that it’s more likely than not.

Randazza is a character, I’ll give you that. I thought his “leaving your wifi open is negligence” theory was stupid. I think he’s a good attorney, though a bit too aggressive at times.

That Anonymous Coward (profile) says:

Re: Re: Re:5 Re:

Many courts have finally figured out that the account holder is not automatically guilty, despite the claims of the trolls. The first ruling that IP =! person was damaging to the trolls, but getting there took far to long.

Good attorneys do not fail to make sure defendants are served multiple times.
Good attorneys who run their own shakedown operation, do not take on clients targeted by another shakedown and then proceed to screw that client by taking the position that a well know copyright troll might take them to court so they should ignore another Doe’s motion, because the precedent would damage his operations.
Good attorneys do not file paperwork that is incomplete and inaccurate.
Good attorneys do not copyright troll.

What I do know is that millions of dollars have been collected by the copyright trolls, with a majority staying with the lawyers and “experts”.
I know that movies unable to get copyright, have had copyright cases filed for them and the Judges allow them to proceed.
I know that some copyright trolls have gotten “new” copyrights issued on older material to bolster their claims of damage.
I know that this has not done anything good for society or the producers of content, the ones getting rich are the lawyers.
I know an IP address is not evidence of a persons guilt.
I know that robodialing people with lawyers and those dismissed from cases with prejudice demanding payment is illegal, but these actions are still happening.
I know these lawsuits are about fear and trying to embarrass people into paying hush money to a blackmailer.
I know this is a growing business that creates nothing useful and is harmful to the economy.
I know the imaginary lost dollars they are chasing represent future sales they will not get.
I know that they are repeating the **AA playbook with more “success” but only because they threaten peoples good names and coerce them into comments to damage their position.
I know any lawyer who sends out a letter telling a potential defendant not to challenge the jurisdiction of one of these cases, because he will make an example of them should be illegal and result in them being disbarred.
I know these cases are filed where its convenient for the troll, not where the alleged crime was committed.
I know filing a copyright case in a state court should carry a penalty for the troll trying to forum shop.

That Anonymous Coward (profile) says:

Re: Re: Re: Re:

http://dmca.cs.washington.edu/

IP address = prima facie case simply because Judges have been denied information. The FBI raid of the innocent man that a pedophile had hacked into his wifi helped wake some of them up.
“Experts” routinely leave out the inconvenient truth that their tech is flawed, that they can with some certainty geolocated possible does, and they file these mass cases just to save money and get before Judges who still believe these trolls aren’t lying.

They stand to be awarded upto $150,000, why settle for $3-5 thousand? Because that is what it will cost for someone to defend their good name, not to mention the time and expense of having to get the case moved to the defendants home state instead of across the country in a court without jurisdiction.

RonKaminsky says:

Re: Re:

As Average_Joe mentioned, why aren’t you calling this judge out for being a senior citizen? Oh wait, you agree with his views this time, so he’s right no matter what.

As the AC pointed out above, believing that this puts Mike in a bad light makes no sense whatsoever.

to it’s same inevitable conclusion.

You seem to have a very interesting ideal of justice. I suppose in your world, it is a waste of time and money to actually give people the chance for a trial.

That Anonymous Coward (profile) says:

Re: Re: Re:

There are no good arguments for these cases.
The way these cases are being handled is streamlined to allow for the extortion of people on the basis of questionable evidence.
Threats of your name showing up in a Google search next to “something something anal sluts 17” really is motivating for a payment. Much like charges of being a pedophile, even if it is proved to be inaccurate or an outright fabrication people remember the claim not the truth.
These cases are being used by an industry that used to adapt and push technology ahead that grew fat and sat on its laurels. The boogeyman of the internet is stealing form the performers really helps explain why the top execs haven’t taken a paycut while trimming what they pay the “talent”.
The losses they are suffering are due to anyone being able to create and monetize porn with nothing more than a cellphone now. Their once exclusive club now has regular people in it posting material catering to various tastes, not having to try and focus their offering to the middle of the road set.

If this were a case of another studio or someone stealing a movie and selling it for profit, more power to them. But to use the underhanded tactics to extort settlements from people who very well could be innocent but can’t afford reputational damage or take the hounding of 30 calls a day is completely abusing the law.

Anonymous Coward says:

Re: Re: Re: Re:

“The way these cases are being handled is streamlined to allow for the extortion of people on the basis of questionable evidence.”

It doesn’t matter. The judge needs to deal with the validity of the motion in front of the court at the time the motion is there. They are not suppose to rule based on the implications further in the legal system. By making a decision based on what the judge thinks the plaintiff might do, they are moving away from a judgement of fact, and moving towards a judgement of opinion.

It’s shocking that you cannot see how silly it is for a judge to act in this manner.

Oh, and the jails are full of innocent people who didn’t do it. Few people want to admit that they were the ones downloading the gay sado-mazo porn videos and the Hello Kitty design set. Once pinned, they squeal like little girls, because they don’t want their naughty secrets to get out.

Anonymous Coward says:

Re: Re: Re:2 Re:

>They are not suppose to rule based on the implications further in the legal system.

Because fuck due process? Judges have no problem with plaintiffs bringing cases to court assuming that they’re doing it properly; e.g. not joining up every single Doe in a case, especially when the Does live in different states. Plaintiffs in these cases usually don’t, which ends up pissing the judges off.

>Once pinned, they squeal like little girls, because they don’t want their naughty secrets to get out.

“Only someone guilty would claim they’re not guilty! Therefore he’s guilty, your Honour!” Yeah, really convincing.

That Anonymous Coward (profile) says:

Re: Re: Re:2 Re:

“The judge needs to deal with the validity of the motion in front of the court at the time the motion is there”

So misrepresenting the copyright status of a movie should be a crime and there should be punishment.

Judges also have to make sure that they are not being used as part of an extortion scheme where the case will never actually move to trial, these cases are being brought in bad faith.

When you have 100’s of cases showing exactly what they will do there is not might, it is fact. And the fact is they will never bring these cases before the Judge having named anyone.

Its shocking that you take issue with there needing to be balance and fairness in the law.

So because someone doesn’t want their name associated with a scandalous porn title, they must be guilty.

Anonymous Coward says:

Re: Re: Re:3 Re:

“Judges also have to make sure that they are not being used as part of an extortion scheme where the case will never actually move to trial, these cases are being brought in bad faith.”

What you are asking the judge to do is be a sort of “future cop”, and to see what might happen tomorrow, and pass judgement as a result. That seems somehow against the basic concept of law. You rule on what you know, not on what you think MIGHT happen at some point later.

“Its shocking that you take issue with there needing to be balance and fairness in the law.”

There always needs to be balance and fairness. But that doesn’t mean the judge can pass judgement on the future.

That Anonymous Coward (profile) says:

Re: Re: Re:4 Re:

No asking the Judge to wake the hell up and look at the other 20 cases this troll filed and the number of named Does… 0.
I think, IIRC, 1 troll admitted to 118 cases and never having served a single person.
Do we think it was thousands of people who paid up for their crimes? Or was it their fear of getting into court and having the Judge understand how flimsy the case actually is. These cases are filed for economy on the parts of the troll, and if you stood to get handed $150,000 from each and every wrongdoer why would you never take anyone to court?
Abuse of the legal system is something a Judge can take into account.

abc gum says:

Re: Re: Re:2 Re:

“Oh, and the jails are full of innocent people who didn’t do it.”

I believe you intended this in as a droll sarcastic insult, however – it is in fact true. Prisons contain a surprisingly large number of people who were convinced that the plea bargain offered by the DA was the best option simply because they were poor and can not afford an attorney. The public defenders are over worked, under paid and less experienced – so yeah, they go to jail even though they did nothing. This is not hyperbole, is well documented.

“Few people want to admit that they were the ones downloading …. blah blah blah”

Yeah, including the ones falsely accused – but it is less expensive to simply pay the extortion than to get a real lawyer now isn’t it? And the extortionists set their “price” accordingly don’t they?

Anonymous Coward says:

This shit sucks I’ve been pirating files left and right trying to get one of the fuckers to sue me so I can troll them back and make a mother fucking media circus out of it.

Soon as they contact me I’ll have my 15 at their expense with some really fucked up abuse of freedom of speech on my part. Goddamn that would be so fun 😉 it almost gives me wood thinking about it.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »