from the informal-fallacy dept
Definition of straw man
by Nina Paley
Fri, Sep 16th 2011 10:03am
by Mike Masnick
Wed, Sep 14th 2011 10:30am
by Mike Masnick
Wed, Aug 10th 2011 7:47am
The Third Degree Films complaint and ex parte request for expedited discovery form yet another in a wave of suits in which copyright infringement plaintiffs seek to “tag” a defendant based solely on an IP address. However, an IP address is not equivalent to a person or entity. It is not a fingerprint or DNA evidence – indeed, far from it. In a remarkably similar case in which an adult entertainment content producer also sought expedited discovery to learn the identity of persons associated with IP addresses, United States District Judge Harold Baker of the Central District of Illinois denied a motion for expedited discovery and reconsideration, holding that, “IP subscribers are not necessarily copyright infringers…The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.” Order of Apr. 29, 2011, VPR Internationale v. DOES 1-1017, No. 2:11-cv-02068 (Central District of Illinois) (Judge Harold A. Baker) [hereinafter VPR Internationale Order], attached hereto as Exhibit C. The point so aptly made by Judge Baker is that there may or may not be a correlation between the individual subscriber, the IP address, and the infringing activity. Id. The risk of false identification by ISPs based on internet protocol addresses is vividly illustrated by Judge Baker when he describes a raid by federal agents on a home allegedly linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP (in the same fashion as Plaintiff seeks to extract such information from Wide Open West.) After the raid revealed no pornography on the family computers, federal agents eventually learned they raided the wrong home. The downloads of pornographic material were traced to a neighbor who had used multiple IP subscribers’ Wi-Fi connections. Id. This risk of false identification and false accusations through disclosure of identities of internet subscribers is also presented here. Given the nature of the allegations and the material in question, should this Court force Wide Open West to turn over the requested information, DOE No. 605 would suffer a reputational injury.Separately, it notes that those using these tactics are using high pressure efforts to get people to pay up to settle:
If the mere act of having an internet address can link a subscriber to copyright infringement suits, internet subscribers such as DOE No. 605 will face untold reputational injury, harassment, and embarrassment. The reputational risk that Judge Baker found to be an undue burden is equally presented here: “[W]hether you’re guilty or not, you look like a suspect.” Id. at 3. Moreover, this case presents the same extortion risk that so concerned Judge Baker:From there, it argues that since an IP address does not identify the user, the subpoena itself is invalid:“Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case.”Id. Discovery is not a game. Yet, plaintiffs in these types of cases use discovery to extort settlements from anonymous defendants who wish to avoid the embarrassment of being publicly associated with this type of allegation. Id. Such abuse of the discovery process cannot be allowed to continue.
Additionally, this subpoena should not have been issued in the first place because the information sought is not relevant to Plaintiff’s allegations. Implicit in the rule granting subpoena power is a requirement that the subpoena seeks relevant information. See Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998)(“the reach of a subpoena issued pursuant to [FED. R. CIV. P. 45] is subject to the general relevancy standard applicable to discovery under [FED. R. CIV. P. 26(b)(1)].”). The information linked to an IP address cannot give you the identity of the infringer. VPR Internationale Order, at 2. Because the infringer could have been anybody with a laptop passing within range of the router, the information sought by Plaintiff is not relevant to the allegations in any way. Id. Moreover, even if the information has some small amount of relevance to the claim—which it does not—discovery requests cannot be granted if the quantum of relevance is outweighed by the quantum of burden to the defendant. FED. R. CIV. P. 26(b)(2)(C)(iii). Plaintiff’s request fails that balancing test. Given that DOE No. 605 was only one of many persons who could have used the IP address in question, the quantum of relevance is miniscule at best. However, as discussed above, the burden to DOE No. 605 is severe. The lack of relevance on the one hand, measured against the severe burden of risking a significant reputational injury on the other, means that this subpoena fails the Rule 26 balancing test. Id. Plaintiff’s request for information is an unjustified fishing expedition that will cause reputational injury, prejudice, and undue burden to DOE No. 605 if allowed to proceed. Good cause exists to quash the subpoena served on Wide Open West to compel the disclosure of the name, address, telephone number and e-mail address of DOE No. 605."Nice to see more people fighting back against obvious fishing expeditions. Hopefully more judges start realizing what these kinds of requests are really about.
by Mike Masnick
Mon, Aug 8th 2011 9:39am
In addition to finding that Eon-Net filed an objectively baseless infringement action, the district court also determined that Eon-Net filed the lawsuit in bad faith and for an improper purpose... In particular, the district court found that Eon-Net's case against Flagstar had "indicia of extortion" because it was part of Eon-Net's history of filing nearly identical patent infringement complaints against a plethora of diverse defendants, where Eon-Net followed each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation.Check out those bolded parts. Sound familiar?
The record supports the district court's finding that Eon-Net acted in bad faith by exploiting the high cost to defend complex litigation to extract a nuisance value settlement from Flagstar. At the time that the district court made its exceptional case finding, Eon-Net and its related entities, Millennium and Glory, had filed over 100 lawsuits against a number of diverse defendants alleging infringement of one or more patents from the Patent Portfolio... Each complaint was followed by a "demand for a quick settlement at a price far lower than the cost of litigation, a demand to which most defendants apparently have agreed."... In this case, as with the other cases, Eon-Net offered to settle using a license fee schedule based on the defendant's annual sales: $25,000 for sales less than $3,000,000; $50,000 for sales between $3,000,000 and $20,000,000; and $75,000 for sales between $20,000,000 and $100,000,000. Rule 11 Sanctions Order, at 3—4.
In this case, Flagstar expended over $600,000 in attorney fees and costs to litigate this case through claim construction. Supplemental Order on Fees and Costs, at 8—11. Viewed against Eon-Net's $25,000 to $75,000 settlement offer range, it becomes apparent why the vast majority of those that Eon-Net accused of infringement chose to settle early in the litigation rather than expend the resources required to demonstrate to a court that the asserted patents are limited to processing information that originates from a hard copy document. Thus, those low settlement offers—less than ten percent of the cost that Flagstar expended to defend suit— effectively ensured that Eon-Net's baseless infringement allegations remained unexposed, allowing Eon-Net to continue to collect additional nuisance value settlements.Separately, the court clearly noted the "non-practicing entity" part of the business in pointing out that, "As a non-practicing entity, Eon-Net was generally immune to counterclaims for patent infringement, antitrust, or unfair competition because it did not engage in business activities that would potentially give rise to those claims."
by Mike Masnick
Mon, Jul 18th 2011 1:35pm
by Tim Cushing
Fri, Jul 8th 2011 9:38am
A study conducted by researchers at Northwestern University has reached a conclusion that many of us have entertained but dismissed as "not having a study conducted by researchers at Northwestern University behind it." Namely: trolling is like being sloppy drunk.
According to the science guys:
A new study has found that anonymity gives people the same feeling of abandon as power and alcohol intoxication.Ah, "loss of inhibition!" Is any combination of words sweeter to the ears (and livers) of trolls and drunkards alike? To be a troll is to be transported back to the heady days of frat house "Pre-Saturday Night Party" parties, where the cheap beer flowed like cheap beer and many bad decisions were made, most of them irrevocable.
"Although these pathways appear to be unrelated on the surface, they all lead to disinhibited states through a common psychological and neurological mechanism," said Jacob Hirsh of the university's Kellogg School of Management.
Dr Hirsh's colleague Professor Adam Galinsky said the loss of inhibition led to "significant behavioural consequences".
When people lose their inhibitions, they often behave in a manner more consistent with their true motives or character. At the same time, they also tend to be more easily influenced by their environment.
"In effect, disinhibition can both reveal and shape the person, as contradictory as that may sound," Professor Galinsky said.
The end result is that power, alcohol and anonymity can all inspire either strong pro- or anti-social sentiments in people.
The study may help explain why anonymous commentators on the web often appear to hold extreme views.Extreme views? Anti-social sentiments? Random hollering about someone's day job? It's all here. And for all the talk about "not feeding the trolls," it's hard to resist, especially when they're packing a buzz and getting the conversational munchies. Besides, who wouldn't want the chance to respond to a non sequitur composed of misspelled words and terrible analogies? We really want to take the high road, but the troll road is like a free ride straight downhill into STFU-ville. (Plus, the troll booths are closed! Bonus!)
Or this one?
Need one more?
Don't let the Anonymous Coward label fool you, though. Techdirt is filled with thoughtful and humorous AC's, while also serving as a host for a variety of proudly-named trolls. The real trolls are the commenters who show up for one reason: to insult as many Techdirt readers as possible while simultaneously trying to reframe the debate around their own twisted logic. You'd think it would be harder to type with such an outsized chip on your shoulder, but the internet never ceases to amaze.
Trolls, like the ones singled out above, are like the uncle you purposely uninvited to your wedding. The one who shows up anyway and spends the entire night alternately abusing the open bar and the wedding guests, bitterly decrying organized religion and the institution of marriage to anyone who will listen and others who are actively eyeing the exits. He swaggers around in a state of progressive drunkeness, alienating people left and right, before collapsing anti-climatically in the coat room after making a last-ditch pass at your newly-minted sister-in-law.
As the hangover ebbs, he remains secure in his belief that he "totally ripped those backwaters rubes a new one" when in all reality, all he did was pound home the fact that people hate him for a reason.
Trolls, just remember that your spluttering anger and misplaced indignity is often a source of amusement for us. Other times, it's just the same old shit, like when dad starts hitting the sauce and pounding out angry letters to the editor decrying the city council's recent decision to change local street signs to initial caps only. Sure, he seems to be truly perturbed by this now, but by the next day, it's just another piece of paper that ends up going straight from the Smith-Corona into the nearest wastebasket. The only difference is that, thanks to the miracle of THE INTERNET, the "angry letter" can be submitted instantly, 24/7, requiring nothing more of the brainstem-operating troll than the minute amount of hand-eye coordination needed to push a button.
So, bring on the worn-out cries of "Freetard!" and "Kool-Aid!", you trolling lushes. Just remember, our beverage of choice is booze-free.
by Mike Masnick
Fri, May 13th 2011 12:40pm
by Mike Masnick
Fri, Mar 11th 2011 1:36pm
by Mike Masnick
Mon, Jan 24th 2011 7:56am
Then we spoke. And I (dammit) liked him. Without invisibility or the support of his 54 Twitter followers or the superhuman powers supplied by a warm keyboard, Matt was meek and apologetic. "I was just trying to get a rise out of you," he said. "You're a known sports writer, and I thought it was cool. That's all. I never meant for it to reach this point."And that, of course, is how trolling works. Still, I do wonder if this column will lead to more or less future haters going after Pearlman.
by Mike Masnick
Tue, Jan 5th 2010 5:17pm
Explore some core concepts:
|11:01||White House Vaguely Agrees Outdated ECPA Should Be Reformed But Only With An Eye On The Government's 'Interests' (5)|
|10:56||Daily Deal: iFixit Pro Tech Screwdriver Set & Jimmy Tool Bundle (7)|
|09:59||White House Finally Answers Snowden Pardon Petition: The Only Good Whistleblowing Is Punished Whistleblowing (77)|
|08:51||DOJ To Court: Hey, We're Shutting Down Section 215, So We Can Probably Stop Arguing About The Legality Of Bulk Collection (25)|
|07:35||Director Of National Intelligence Hammers Final Official Nail Into Bulk Phone Records Program (9)|
|05:27||Happy Birthday Copyright Bombshell: New Evidence Warner Music Previously Hid Shows Song Is Public Domain (133)|
|03:27||Obviously, No One Ever Would Have Thought Of Remote Controlled Sex Toys Without This Patent (30)|
|23:23||Portland City Officials Agree Not To Sue Over Portland Oregon Sign To Keep Court From Ruling On Trademark (12)|
|17:00||DailyDirt: Out Of This World (And On To Others) (6)|
|15:21||Police Shut Down Hologram Concert Of Rapper Because They Don't Like His Lyrics; Pretty Clear First Amendment Problem (47)|
|13:44||Even If The State Of Georgia Can Copyright Legal Annotations, Should It? (32)|
|12:43||India's New Net Neutrality Guidelines Suggest Facebook's Internet.org Is Just Glorified Collusion (5)|
|11:36||Both Michael Hayden And Michael Chertoff Surprise Everyone By Saying FBI Is Wrong To Try To Backdoor Encryption (29)|
|10:35||Eight Years After Bogus Expulsion Over Supposed 'Threat,' Former Student Obtains $900k Settlement From University (32)|
|10:30||Daily Deal: Corporate Bridge Business Courses: Lifetime Subscription (3)|
|09:27||Topsite Operator, Who Admitted To Operating Servers With Tons Of Pirated Movies, Gets Off With Just Probation (53)|
|08:04||Judge Slams Meddling Sheriff Thomas Dart For Likely First Amendment Attack On Backpage (29)|
|05:50||Cablevision Follows Comcast Down The Compulsory WiFi Hotspot Rabbit Hole (73)|
|03:51||Yeah, Russia Probably Forged A Weapons Cache Supposedly From The US Using A Video Game To Model The Weapons (48)|
|12:00||Funniest/Most Insightful Comments Of The Week At Techdirt (1)|
|12:00||This Week In Techdirt History: July 19th - 25th (1)|
|09:00||Awesome Stuff: A Little Box Of Videos (3)|
|19:39||Smoking Gun: MPAA Emails Reveal Plan To Run Anti-Google Smear Campaign Via Today Show And WSJ (198)|
|18:25||DEA's Confidential Informant Program Basically Being Run With No Oversight Whatsoever (19)|
|17:00||DailyDirt: So You Want To Grow Your Own Food? (6)|
|15:57||Government Appoints Insider With Terrible FOIA Track Record To Head Up Gov't Info Services At National Archives (6)|
|14:49||Toronto Cab Drivers Sue Uber For Interference With Their Super Profitable Business Model (29)|
|13:51||FCC Approves AT&T's $69 Billion DirecTV Merger, Announces It Late Friday And Hopes Nobody Notices (11)|
|12:43||Chilling Effects: UK Police Admit To Investigating Journalists For Covering Snowden Leaks (22)|
|11:38||Officer Indicted For Lying On Warrant Application That Led To Toddler Being Burned By Flashbang Grenade (48)|