Copyright Troll Sues Tor Exit Node, Gets Partial Win

from the spray-and-pray(ers-for-relief) dept

Copyright trolls still labor under the (deliberate) misconception that an IP address is a person. Sometimes judges allow it. Sometimes judges remind them not to conflate the two. And sometimes — well, maybe just this once — the IP address being sued is actually a Tor exit node, evidence of nothing. (h/t Raul)

In an opinion handed down by Judge Michael Simon, the person Dallas Buyers Club is suing for infringement will be subject to adverse jury instructions thanks to the Tor exit node DBC sued. The order refers to alleged evidence spoliation by the defendant, who shut down his exit node after being sued. The defendant has (correctly) pointed out “Evidence of what?” because it’s highly unlikely his node would cough up any usable identifying information about infringers utilizing the node.

All DBC had was an IP address, and it wasn’t linked to the defendant — at least not in terms of it being his personal computer.

The internet protocol (“IP”) address identified by Plaintiff as infringing on Plaintiff’s movie is an IP address associated with a one of Defendant’s servers. Defendant operated this server as a virtual machine (“VM”). Using VM technology, Defendant migrated information from his old multiple servers onto two servers operating as VMs. One of these is the physical machine associated with the allegedly infringing IP address (“Infringing Machine”).

On the Infringing Machine, Defendant installed Tor Network software and created a “Tor Node,” which facilitates use of the Tor Network by end users by routing information through Defendant’s machine. Also on this machine were VMs for two email servers. The Infringing Machine had two hard drives, which were mirrored. Defendant did not use the Infringing Machine as a personal computer and did not attach any personal computer to this machine. The Infringing Machine was located on a server rack.

It wasn’t until 10 months after the original filing that DBC finally submitted an amended complaint actually naming a human defendant (along with his business “Integrity Computer Services”). Prior to being served himself, the defendant learned of the lawsuit and participated in some discovery conferences. At two points between the lawsuit’s filing and his appearance at the conferences, the defendant attempted to fix his malfunctioning RAID system by deploying a utility that basically wiped everything off the drives. He left the Tor node running and moved anything related to his personal business off the server.

DBC claimed this was done to destroy evidence. The defendant countered, explaining it was highly unlikely a Tor exit node would produce usable information. (He had also offered to shut down the node to “amicably resolve” the lawsuit by ending the alleged infringement his node was supposedly “allowing” to happen.)

The Court finds credible Defendant’s statements that he genuinely believed that his hard drives would not contain any information that would identify or provide relevant data relating to the alleged infringement, based on his understanding of how Tor Nodes operate. Defendant explained his understanding and the basis for it in detail.

The Court also finds instructive the unique facts of this case. The Infringing Machine was not a personal computer from which all data was wiped with after-market software. The Infringing Machine was a Tor Node that routed information for other end users around the world. As Defendant points out, it is questionable that he had a motive to deceive the Court by wiping information that may or may not have identified some unknown user somewhere in the world.

Despite this, the court has decided to sanction the defendant for not preserving what may have been completely useless data. It won’t go as far as DBC wants it to (the troll asked for a default judgment in its favor) but it won’t help the defendant much if this case goes to trial.

Accordingly, the Court orders that the jury shall be instructed as follows:

Defendant John Huszar has failed to preserve computer hard drives that may have contained evidence relevant to this case. You may presume that the lost evidence was favorable to Plaintiff. Whether this finding is important to you in reaching a verdict in this case is for you to decide.

A partial win for the speculative invoicing team at DBC. If this case goes to trial, the defendant starts with a strike against him when the jury goes to deliberate. Perhaps the jury will see the case for what it is: a copyright troll suing a Tor exit node because it can’t be bothered to go after those actually committing infringement. Then again, the discussion of RAID controllers, IP address-cloaking efforts, and other technical details may become “evidence” the defendant had “something to hide.” “Normal” computer users don’t run Tor exit nodes or multiple servers, and when the facts seem weird and ungainly, they tend to work against the person deploying them.

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Companies: dbc

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Comments on “Copyright Troll Sues Tor Exit Node, Gets Partial Win”

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16 Comments
ThatOneOtherGuy says:

What part of malfunctioning raid system is confusing?

RAID array malfunctions often end up requiring reformating/restoring.

In this case, reformating and probably re-installing to get back to business as a TOR exit node is the easiest thing to do.

I personally haven’t used TOR or operated an exit node, but wouldn’t the idea of “logs” being on an exit node kind of violate the intended purpose of the TOR network to begin with?

What kind of data is logged, if any on a TOR exit node?
Perhaps this person would benefit from an amicus brief by someone who is an expert in TOR operations?

Roger Strong (profile) says:

Re: What part of malfunctioning raid system is confusing?

The defendant would have to be able to afford that expert. And even then Dallas Buyers Club might have trotted out an "expert" of their own to claim otherwise. In this sort of case, whoever has the most money wins.

Dallas Buyers Club didn’t have to disprove the facts (Tor node not keeping records.) They only had to cast doubt on them. And so the judge has essentially declared:

Defendant John Huszar has failed to preserve computer hard drives that may have contained evidence that 2+2=4. You may presume that the lost evidence was favorable to Plaintiff.

Doug says:

Running a Tor node

All this kind of stuff is chilling probably in exactly the way trolls want it to be. I have a desire to run a Tor exit node myself. It feels like the right thing to do for many reasons. But I don’t because I don’t want the hassle of dealing with any accusations like these, and because I absolutely can’t afford the potential costs if the accuser gains traction in ways like DBC did in this article.

Anonymous Coward says:

Re: Running a Tor node

I have also really wanted to run a exit node for several reasons. For one I think it would be fun, it also would really screw with online tracking. The reason I don’t though is because I can’t afford to have my home raided and all computers taken as “evidence”.

There is also the fact that I am not about to pretend I have nothing to hide. I am not that stupid. If someone grabs all my computers and does a witch hunt I know I would be screwed, just like probably over 90% of the population. Everyone has something to hide and most of the time what they want hidden will be on their computer or at least mentioned there.

My_Name_Here says:

Re: Running a Tor node

The plaintiff needs only the slightest bit of traction to turn this into a serious shit show. You can ask Mike how much time, effort, and expense goes into defending yourself, especially when the lawsuits is filed in a different state or jurisdiction.

In this particular case, the actions of the defendant, while perhaps innocent, are enough to give the legal system pause. The reformatting of the drives may have been done for totally innocent reasons (or not) but most certainly give the impression of trying to hide something. He probably isn’t hiding anything, but you never know.

Don’t be surprised if at some point someone wins the point and it is ruled that TOR exit nodes are not protected under the DMCA. It seems perfectly reasonable that a court could find that a node operator set it up with full intention to allow others to violate the law, and to shield them from prosecution.

I would not recommend operating a TOR exit node. It’s not worth the risks and costs!

Anonymous Coward says:

Re: Re: Running a Tor node

Of course, when people perform routine data maintenance, you will loudly claim the right to suspicion.

But when Guardaley refuses to show the judge the accuracy of their pirate-catching methodology, you demand the benefit of doubt. Curious! You realize that VPNs and other methods of masking yourself are why you can continue to spam your shit on Techdirt, right jackass?

Anonymous Coward says:

Evidence of “something to hide” doesn’t necessarily mean “evidence relevant to the case”. We all have “something to hide” and that’s why there are privacy laws in place to begin with. The judge already admitted that there probably wasn’t any relevant evidence on those drives to begin with as a TOR exit node doesn’t normally keep any relevant logs and even if it did (in the case of malicious nodes) it wouldn’t give the originating address of the data stream.

Question is, whether the plaintiffs can create enough of a song and dance to confuse the jury into thinking “something to hide” is automatically sinister (and that’s actually likely to happen thanks to general ignorance and considering computers an arcane art to the general public).

That One Guy (profile) says:

Re: Re:

Depending on how computer savy the jury and/or defense lawyer is even ‘evidence … favorable to Plaintiff’ isn’t necessarily that helpful for the prosecution, given it involves a system that the defendant didn’t actually use directly, but which was used by other people to route traffic through.

‘Evidence’ regarding what someone else might have done doesn’t do squat as far as demonstrating guilt of the defendant.

just sayin says:

Exit node

I type this IRONICALLY on a Tor Exit node.

A funny thing happened on the way out of my Exit node, I got stuck in this muck called CLOUDFARE. lol

Many articles seem to be written about this.

But I just added another proxy afta the exit node, and all was good with the world again.

Now we can laugh and giggle and tickle and play and give hugs and kisses again.

I mostly use tor to reach parts of the internet which DownFOrEveryoneOrJusTMe says is down for just me.

I also use it to SPY on progressives and marxist communists without getting on their hit lists

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