Copyright Troll Malibu Media Allowed To Get Six Strikes Info From Comcast

from the bad-decision dept

A few weeks ago, we wrote about how Malibu Media was up to its old tricks again, demanding six strikes data from Comcast as part of its evidence gathering for its copyright trolling. Apparently, no one fought the request, so a magistrate judge has granted Malibu Media’s request and told Comcast to comply with the forthcoming subpoena. When the six strikes plan was first put into place, many people worried that the information from it would be used in lawsuits, but people hadn’t realized that it might also get abused by copyright trolls. All the more reason to question whether or not such a program is a good idea. When you have a system that allows “strikes” to be issued with no due process at all, which can then be used by a company currently responsible for 40% of all copyright lawsuits — nearly all of which they’re really using to shake down settlement fees — it should make you wonder if the six strikes program is really such a good idea.

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Companies: comcast, malibu media

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Comments on “Copyright Troll Malibu Media Allowed To Get Six Strikes Info From Comcast”

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That One Guy (profile) says:

For those who see no problem with this:

Something to keep in mind: A ‘strike’ is an accusation, nothing more, nothing less, not a finding of guilt.

All it means is that you’ve been accused of something, and in no way guarantees guilt, yet you can be damn sure MM is not going to be explaining it that way in their shakedown letters, or, if they let it get that far, in court(very unlikely, the last place a troll ever wants to be is in court, given their ‘evidence’, much like mythological vampires, always seems to go up in smoke when exposed to daylight), but will instead be pushing, strongly, the idea that only those guilty would ever get a strike filed against them.

If you’re the kind of person who can’t tell the difference between ‘accusation of guilt’ and ‘finding of guilt’… well, be thankful that should you ever find yourself in the legal crosshairs, the two categories are generally not treated the same by any judge who actually cares about the law and seeing justice done, despite how much copyright extortionists, and those that support them, might wish otherwise.

Michael (profile) says:

Re: For those who see no problem with this:

and in no way guarantees guilt

Wrong, wrong, wrong. It guarantees that you are guilty of having received 6 strikes. Where there is smoke, there is fire, and if these freetards pay up when they received a letter from Malibu Media, we know they are guilty.

Of course, if the 6 strikes could all be received for a single incident, or because a copy machine is downloading porn, or because someone else has used your open Wifi router, or (considering Comcast can’t do basic math for billing) they should not have received 6 strikes yet, or material has been misidentified as infringing, or there was a case of fair use, or the cost of defending a case is considerably higher than the settlement offer, or…well, you get the point.

What idiot judge doesn’t think allowing them access to this information is crazy?

Anonymous Coward says:

Re: Re: For those who see no problem with this:

or…well, you get the point

an admin accidentally pushed the wrong button (and since the accused doesn’t understand the power of a strike, doesn’t argue), DHCP address changes during the sampling period, no easy way to defend against this, and you get 6 times to make the same mistake, 6 strikes only means you need to change ISP’s, and you might be wanting to make a statement/protest because there isn’t any other options in your area, the material wasn’t deemed copyright,

Anonymous Coward says:

Re: Re: For those who see no problem with this:

Where there is smoke, there is fire,

Conquest of the Planet of the Apes (1972)

[Rephrased to fit the situation]

Caesar: “Where there is fire, there is smoke. And in that smoke, from this day forward, my people will crouch and conspire and plot and plan for the inevitable day of Malibu Media’s downfall – the day when it finally and self-destructively turns its weapons against its own kind (Remember the Prenda). The day of the writing in open court, when your lawsuits lie buried under counter suits and discovery motions! When the sea of subpoenas is a dead sea, and the land of false lawsuit threats is a wasteland out of which I will lead my people from their lack of due process! And we will build our own open networks in which there will be no place for copyright trolls except to serve our ends (fetching pizza and beer)! And we shall found our own army of lawyers, exercise our own right to due process, require our own day in open court in which Malibu Media will be class action countersued into complete and utter non-existence! And that day is upon you… NOW!

That Anonymous Coward (profile) says:

Re: For those who see no problem with this:

The standard in civil litigation is ‘more likely than not’ aka 51%.
They just want to put something on their side of the scales.

Given the subject matter is porn the existence of a penis in the equation is often seen as damning evidence. While one can safely make the claim that many men enjoy porn, it hardly should be considered a smoking gun in the legal system.

The following is the hypothetical…

MM could accuse me of having downloaded all of their porn.
I have a penis so I could look really guilty.
They could show I’ve used BT, & have a better than average understanding of the tech.
I might have even infringed copyrights (show me someone who never has, and I’ll show you someone in a coma).
They can dog and pony show all sorts of things about my understanding of network security so it was unlikely I was hacked.
They can show evidence easily that I am outspoken about copyright and how broken the system is.
They can even claim I am a member of a psychopathic ‘Internet Hate Group” who targets those poor defenders of copyright.

This is a mountain of evidence and on that alone it looks like 51%.

Except that I’ve held copyrights.
Except that I’ve stated I hate bullies, and see these litigation mills as bullying with a dead sheep on the wall.
Except that I’ve suspected wrongdoing in these cases and the record reflects there has been much of that.
Except I’ve been involved in making sure people were educated about the actual law, and not believe the lies contained in the settlement letters.
Except if I was a psychopath who hates copyright, why am I ‘friends’ with people who report on & try to change the system?

Oh and 1 tiny little inconvenient truth… that whole TAC is a homo thing.

But given how these cases have gone, I would have to appear in a court room and affirm on the record that I’m a homo. (hopefully if they demand I prove it the bailiff is cute.)
I would have to expend a large amount of resources to even attempt to make it into the courtroom, and still have next to no chance of getting any of that money back.

Or I could pay less than what a basic defense would cost, and make these scum go away. Keep my privacy, keep myself from being publicly tied to allegations that would be damaging to me.

This is another attempt to tilt the scales, and there is no recovery available to targets who have their lives devastated by these questionable allegations. They dared to not just fold & pay up, and now it is about piling on hoping they crack.

That Anonymous Coward (profile) says:

MM is infamous for the amount of effort they will put into keeping their secret “black box” ip gathering systems from any sort of review.
CCI outright lies to the public about their system, and the company running the program has an impressive list of abject failures in providing accurate capture information. (See Also: DtectNet demands Google Delist HBO for infringing on HBO copyrights.)

By being able to show that MM wants to use questionable, untested, not independently reviewed technology to support their own claims leads to CCI and MM having to submit their tech to such a review to make sure it meets the standard of being actual evidence.

A 6 Strikes Notice is an accusation where the accused is limited to a tiny list of possible answers and has to PAY to challenge… meaning most people don’t bother. The system is opaque about what might happen and until there is a negative effect imposed, won’t even notice. 6 Strikes also has the tiny corporate law backup that if it happens on your account you are at fault, even if you had no involvement.

6 Strikes Notices are not legal, and are merely being used to bolster already questionable claims. The difference is being able to say that these notices came from CCI, the RIAA, the MPAA, and a long list of “upstanding” companies who would NEVER allow a broken system into place.

These should have as much weight in evidence as ‘Your Honor he has a penis, this is porn, he must be GUILTY!!!!’.

I am hoping that these requests being allowed to move further are a trap, that will finally force MM to come clean about how they get their data, the contracts, and the suspected wrongdoing behind the scenes.

But hey maybe we’ll see the ISPs & CCI show up to rain the the parade. It will be curious to see 2 well funded sides battling it out over who has the better secret system, and what information will come out about both systems.

Game on.

Anonymous Coward says:

Re: Re:

These should have as much weight in evidence as ‘Your Honor he has a penis, this is porn, he must be GUILTY!!!!’.

See the TorrentFreak article, the accused is a female, so they must be trying to bolster their evidence because they cannot use that line.
Malibu have also stated

“Bandwidth usage is relevant because people who are heavy BitTorrent users use significantly more bandwidth than normal internet users,” the company’s sweeping generalization reads.

Rikuo (profile) says:

Re: Re: Re:

“Your Honour, the accused receives lots of delivery packages, therefore when we accused him of receiving stolen goods, simply the fact he receives lots of packages must mean he is guilty”.

That’s how I see it. I use P2P software to share Linux distros all the time. In fact, that and Youtube are what make up the bulk of my bandwidth usage in the past couple of months.

Anonymous Coward says:

Re: Re: Re: [actually use the bandwidth]

Well, I’m hosed then. Between my cord-cutting and Freenet node, I only manage to chew about 150-200GB monthly. So, in order to consume the remainder of my Comcast limit (without going over) I unleash the torrents (Kali at the moment). Haven’t “wasted” but 1-4 GB in the past several months, since Comcast announced the usage cap in my area. Yup! Up to no good, indeed.

PaulT (profile) says:

Re: Re: Re:

“Bandwidth usage is relevant because people who are heavy BitTorrent users use significantly more bandwidth than normal internet users”

Given that Netflix traffic regularly outpaces torrent traffic in more recent surveys, citation needed from them, methinks. Not to mention, isn’t it grand that such circumstantial and speculative things are being presented in court as though they were proof of something?

Candid Cameron says:

Re: Re: Re: Re:

Netflix, Youtube, Steam, GoG, Amazon, HBO, Acronis and other online backup services, Spotify (and other legitimate music services), Vimeo, Digital Tutors (and many others, like, Gnomon, etc), home business / working from home (photography, videography, game development, etc), online gaming (World of Warcraft, Call of Duty, Battlefield, and a zillion others), File Hippo and the like, Windows/Linux/OSX and other software updates, potential viruses (like being part of a botnet), VOIP (like video conferencing over Skype), TOR (especially being an exit node), Folding@Home (and others such as Seti@Home, Rosetta@Home, Poem@Home, etc), buggy/poorly/lazily written software, Bitcoin (day trading?), “legitimate” file sharing, and Adobe software which they want everyone to rent rather than purchase physically (expect other software developers to try this soon).

These are the ones I can think of just off the top of my head and there are likely others I’ve forgotten about. I also have a feeling that as ISP’s invest in their networks and overall bandwidth improves, software developers will slowly become lazy (or lazier) about their net code. And just like how an IP address does not automatically equal an infringing file sharer, high bandwidth usage does not automatically equal one either.

I think it’s safe to say that a lot of an ISP’s customers do at least two or more of those things on a regular basis (my PC is always on, doing its thing) and a number of them do indeed use quite a bit of bandwidth. Plus as far as I know, Bittorrent traffic isn’t automatically illegal anywhere in the world. In fact it has a lot of legitimate uses, the number of which has been slowly increasing with time well beyond things like Linux distros and video game updates.

TL;DR version? It is the height of stupidity to believe one can assess the legality of an internet user just by looking at their bandwidth usage.

PaulT (profile) says:

Re: Re: Re:2 Re:

Of course, I agree. There’s a great many services other than Netflix that can use a high level of bandwidth, and of course a great many legal uses of torrents even if that is shown to be the source of traffic.

I was merely commenting on surveys like the following, that show that Netflix uses several times more overall bandwidth than torrents, and so the very basis of the claim is faulty even if you accept their false premise.

Anonymous Coward says:

Re: Re: Re:2 Re:

Folding@Home (and others such as Seti@Home, Rosetta@Home, Poem@Home, etc),

These are not high data bandwidth applications, they are problems that a huge number of CPU cycles to analyze a relatively small data set, like hours of computation to a few seconds of message traffic.

Candid Cameron says:

Re: Re: Re:3 Re:

Admittedly I only did a cursory glance via Google. What I read was that up to one gigabyte per month can be consumed by one of those (can’t remember which) and my thinking at the time was that nobody does just one of those things from the list. It’s all cumulative no matter how small.

That Anonymous Coward (profile) says:

Re: Re: Re:

I get confused, they have so many cases where they claim I am a psychopath, have signatures that don’t validate, and contain perjury in affidavits.

They have another case where they went after the wife, and now seek to switch to the husband…. and still charge the wife as well.

They have a history of switching to someone with a penis in the home, because claiming a woman did the alleged act isn’t as believable.

Anonymous Coward says:

Six strikes differs little from red light cameras or mobile, automated radar speed enforcement devices. Run afoul of one of these, a ticket shows up in the mail. Don’t agree? Go to a hearing. Most people don’t because most people are guilty and they know it.

Don’t worry though, as the [alleged] freeloaders will not be limited in their defense when they face off against Malibu Media.

Anonymous Coward says:

Re: Re:

Six strikes differs little from red light cameras or mobile, automated radar speed enforcement devices.

I’d say it’s more like a sleepy guy sitting in a lawn chair by the side of the road, writing down license plate numbers and shouting “them lousy kids, always hot-roddin’ ’round my neighborhood in their souped-up jalopies! I’ll teach them!”

That One Guy (profile) says:

Re: Re:

Oh sure, no difference at all… assuming license plates were able to be swapped out at will and used by complete strangers without the knowledge of the original owner, the ‘photo’ taken was of nothing but the license plate, so it was impossible to determine with accuracy what the vehicle it was attached to at the moment looked like, anyone at all could set up a camera and send in ‘photos’ accusing you of speeding, you were only allowed certain defenses when you showed up in court…

Oh yeah, ‘just like’ red-light cameras and automated tickets. /s

As an aside, every time I see the argument of ‘Well only guilty people are accused/go to court/go to jail, so if you don’t want to suffer those, don’t do the crimes!’, I can’t help but think two things.

First, the blinders you wear going through life have got to be massive, if you really don’t think completely innocent people could end up thrown into the meat-grinder of the courts, or accused of something they were innocent of.

(Well that or you’re one of those sociopathic scum who don’t care how many innocent people suffer, as long as those you think are guilty do as well.)

Second, I imagine you’d be a whole lot sympathetic if you went through that process yourself, where you were the one on the wrong side of an accusation of guilt, and, rather than feel sorry for the mistake that was now costing you time and money(and only time and money, if you’re lucky), others like you simply did what you do now: assumed accusation equals guilt, and treated you accordingly.

Now, while I would hope such an experience would open the eyes of people like you, people who automatically link accusation of guilt with actual guilt, such a change would also require admitting that you were wrong to think so in the first place, and I’m not quite that optimistic.

That Anonymous Coward (profile) says:

Re: Re:

Yep they are very much like red light cameras.

A company making money from them has every reason to pretend it is perfect and never makes a mistake. They will use much of that money to protect that illusion, and keep anyone from looking to see if there is actually a problem.

Funny they have found time and time again these cameras making errors well outside of the claimed error rates, but because it is technology the law sides with it.

Many people pay the ticket because taking the day off of work results in them losing more money than the ticket will cost them.

It works alot like the early settlement letters in these trolling cases… if you just pay this it’ll cost you less.
(and lets not mention MM’s history of allegations designed to ruin targets reputations based on the same untested monitoring software.)

When the legal system is based on financial decisions rather than truth… it is broken.

PaulT (profile) says:

Re: Re:

“Six strikes differs little from red light cameras or mobile, automated radar speed enforcement devices.”

…apart from the fact that it’s a profit-driven private enterprise making the accusations, rather than a government enforcement agency. Oh, and the fact that no truly uniquely identifying information is being used to make the accusation (most people don’t have fixed IPs, and even the ISPs have made mistakes identifying the people involved using rented IPs, even when the copyright trolls have asked for the correct one in the first place). Plus the fact that the details gathered are far flimsier than a photo or your car. Plus, numerous other reasons why it’s a far, far different situation. Other than that, you’re right.

“will not be limited in their defense when they face off against Malibu Media”

Wasn’t it decided that only a small subsection of defenses would be allowed, with the list missing off numerous valid reasons why the activity in question was legal (e.g. the material is public domain/cc licenced) or the accusation false? Or, am I think of a different iteration of this one-sided bullshit?

Michael (profile) says:

Re: Re:

Six strikes differs little from red light cameras or mobile, automated radar speed enforcement devices

Six strikes is counting the number of accusations of copyright infringement from an internet connection, red light cameras capture images of vehicles passing a red light, and automated radar speed enforcement devices capture images of vehicles passing locations as speeds higher than the limit for that location.

Yup, different.

Anonymous Coward says:

Re: Re:

Six strikes differs little from red light cameras or mobile, automated radar speed enforcement devices

In that they’ve already been proven to have been inaccurate, and don’t prove that the guilty person responsible is the same as the owner.

People don’t challenge things because most people know that trying to argue with an idiot or asshole playing with a stacked deck is a fool’s errand.

But keep waving that around like it’s some ironclad proof of guilt. It’s not like the RIAA’s ever sued anyone innocent before, right? /sarc

PaulT (profile) says:

Re: Re: Re:

“People don’t challenge things because most people know that trying to argue with an idiot or asshole playing with a stacked deck is a fool’s errand.”

There’s also other factors, such as that the time, effort and financial cost involved in fighting the ticket (not just legal charges but taking time off work, travel costs, etc.) are often the same or more as just paying a ticket. On top of that, if the car is used by multiple people, the car owner who is fined (although this varies considerably depending on where you are), and that person may simply assume guilt even if the driver protests. The driver might even just assume that they must have been guilty, if they can’t remember what they were doing at that particular time and the accusation is from an area they usually drive through.

Unless they start getting multiple false accusations and/or start to incur serious penalties, many innocent people will just let this slide and pay regardless of guilt. Of course, this tendency is exactly what Malibu’s business model depends on, as due process would remove their profitability.

steell (profile) says:

Re: Re:

How is it that you know that most people are guilty? Or is this just an assumption you make based upon your own guilt? Could it be that most people don’t challenge the red light tickets because they lose more money from taking time off work, than it cost to just pay the fine? Or maybe feel the system is so slanted against them that they don’t stand a chance anyway?

You can speak for yourself, but you can’t speak for me or anyone else.

Michael (profile) says:

Re: Re:

Dear Mr. ODonnell,

Thank you for ruling out all of the possible defenses you have for this case of copyright infringement other than you having lied and were home downloading movies when the infringement happened. We at Malibu Media are working to ensure that our clients can continue to provide high-quality content for your enjoyment and are certain that your minor oversight in obtaining the proper rights to download “Huge Cocks in Tight Dresses 3: The New Adventures”.

We would like to offer you a settlement of $2,232.50 ($32 for the film and $2,200 for our fees and a $.50 processing fee) to settle this matter before we begin the discovery phase and contact your neighbors to ensure you were home at the time and that they did not download the film.

We access cash in a plain brown envelope. Once you have it, please contact us so we can send our enforcement officers to collect it.

– Malibu Media

Anonymous Coward says:

Re: Re:

It’s well-known that some torrent trackers add bogus (randomly-generated) addresses to their lists of peers. It’s also well-known that some monitoring companies do not verify the list given by the tracker (see for instance the infamous “networked printer accused of file sharing” case).

That is the most probable explanation for your notice: when the monitoring system downloaded the list of peers, one of the randomly-generated fake IP addresses was yours.

That Anonymous Coward (profile) says:

Re: Re: Re:

the printer was actively framed as part of a university study.

The problem is this system is touted as being perfect, and it appears it is not.
Its inner workings are secret, and they gave lip service to experts looking it over but it wasn’t a real study.
Then add the companies massive failures in other areas, and one seriously needs to question why these things are 100% accepted.

Anonymous Coward says:

Even though this seems like a bad thing, if a court rules against the 6 strikes and kills it, we’d have to thank Malibu Media. The MPAA and RIAA would be smart enough to not let the 6 strikes system see light in a courtroom, where even the slightest scrutiny could kill it. But trolls like MM are so hungry for cash that they put the copyright cartel’s golden egg on the skillet, and either 6 strikes keeps the status quo or dies under court scrutiny.

Anonymous Coward says:

of all the problems there are in the USA, i would say that one of the biggest is the ridiculous rulings even more ridiculous judges put out. having said that though, why wasn’t it made clear the rules and reason the ‘6 strikes law’ came out and what it was meant to do? what this judge has done is take a law and stand it on it’s head, just to make it easy for a company that he knows is branded as a copyright troll, to get information that it should not be able to get. and this is American justice? what a screw up!!

DB (profile) says:

Yes, this could be the case that ‘six strikes’ starts to be taken down.

MM doesn’t benefit from six strikes, so they won’t be motivated to defend it.

If there are zero strikes, that’s exculpatory.
If there are a few strikes, then the possible reasons for false positives can be brought into play. Even a single strike that can be positively dis-proven shows that strikes are unreliable accusations. The next case where ‘six strikes’ comes into play might find the claim is regarded as presumptively unreliable, eventually moving to presumptively false.

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