Hurt Locker Subpoenas Arrive With New Language... And Higher Demands

from the the-$400-oscar-bounty dept

Well, it took a while, but US Copyright Group (really DC law firm Dunlap, Grubb & Weaver) have finally gotten around to getting subpoenas out to ISPs in the Hurt Locker lawsuit. While that lawsuit was filed months ago, the subpoenas just went out, in part, because of the fight in another of USCG's lawsuits over certain aspects of the threat letters. That ended with a requirement for USCG to work with groups like the EFF to come up with more informative threat letters. The results don't look all that more reasonable, but it does note that those accused have the right to try to fight the subpoena, and removes the misleading threat of a $150,000 penalty hanging over their heads. Of course, being just slightly more honest has its cost. The pre-settlement fee demanded has been increased from $2,500 to $2,900 this time around.

Separately, in Greg Sandoval's article, he talks to Cindy Cohn from the EFF who notes that they're hearing from a lot more people on the receiving end of USCG lawsuits who have no idea what it's all about and aren't BitTorrent users at all. That happened with the RIAA lawsuits as well, but apparently at a much lower rate. This certainly calls into serious question the techniques that USCG is using to identify file sharers and to make sure they're not suing innocent people. Of course, when you look at the economics of it all, to USCG it really doesn't matter. When it makes mistakes, the actual likelihood of getting in trouble for it times the likely cost of such a mistake is so low as to make the incentive such that there's little reason to care about false positives. Yet, on the flip side, the cost of defending yourself against a bogus threat from USCG is certainly going to be more than $2,900 in almost every case. As Cohn notes:
"When it comes to copyright," Cohn said "the law is set up so that truth, whether someone actually violated the law or not, takes a back seat to financial considerations."
And, really, that's what's so nefarious about this whole process. The incentives are totally screwed up. USCG has no incentive to weed out the false positives, and the innocent folks threatened have powerful economic incentives to just pay up. It's still not "extortion," in that USCG can claim to have a legitimate legal basis for the demands, but it certainly comes damn close in practice.

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  1. icon
    Modplan (profile), 5 Sep 2010 @ 10:57am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    That's how big boys make arguments.

    Here you go again. It's no wonder you're so popular.

    Once again, Mike's interpretation is completely implausible.

    No it isn't. USCG delaying and using the new letters ordered from the Far Cry case allows them to not have to go through this issue again should EFF or others bring similar complaints in other cases. The subpoena took so long to arrive in this case precisely because of the suit in the other case, which may have meant they'd have to fight against similar claims (which they wouldn't want to waste money on - produce the new letter and send that one instead when it's done).

    There is no claim that CNET has been a go between for any defendants. That seems to be a misinterpretation on your part.

    This isn't only Mikes interpretation either, from the CNET article:

    So why did DGW wait so long between filing the Doe suits and sending subpoenas to ISPs? Well, the law firm certainly had its hands full with all the opposition it faced. The Electronic Frontier Foundation and American Civil Liberties Union took DGW to court about whether it was proper to name thousands of individuals in a single lawsuit. Time Warner Cable objected to being compelled to look up thousands of customer records and claimed it was an undue burden. Just last week, an ISP from South Dakota filed a motion to quash one of DGW's subpoenas and argued that a U.S. District Court in Washington, D.C., doesn't have jurisdiction over it.

    In the EFF case, a federal judge sided with DGW, but EFF and the ACLU did convince the judge to prod DGW to change the language it uses when notifying accused file sharers of the allegations. EFF and the ACLU argued that former notices were confusing.

    In a correspondence between DGW and the Qwest customer who contacted CNET, the law firm told him that file sharers have a right to fight or "quash" the subpoena and specified the kind of information Voltage Pictures requested from Qwest. DGW appears to have done away with passages about how copyright owners can sue copyright violators for up to $150,000.

    "Well, it's not what I would have written," said Cindy Cohn, EFF's legal director. "I think the letters are much better than they were, but I don't think [DGW] has done a great job of explaining what is happening."

    Another change from the previous forms is the price accused file sharers can pay to settle their case. For example, last May, DGW gave Houston-resident John Harrison a chance to settle out of court for $2,500. For allegedly downloading "The Hurt Locker," DGW told the Qwest customer from Denver that settling the case early would cost $2,900, according to documents reviewed by CNET.

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