The RIAA? Amateurs. Here's how you sue 14,000+ P2P users(arstechnica.com)
arstechnica.com
The RIAA? Amateurs. Here's how you sue 14,000+ P2P users
http://arstechnica.com/tech-policy/news/2010/06/the-riaa-amateurs-heres-how-you-sue-p2p-users.ars
54 comments
All it takes is a few people to stand up for themselves with some help from a great organization like the EFF and suddenly those expensive lawyers are racking up huge costly hours.= and these lawsuits look less attractive.
http://www.eff.org/about/contact
"If you're in trouble, you can contact us at [email protected]."
http://www.eff.org/about/contact
"If you're in trouble, you can contact us at [email protected]."
You may be suggesting an answer to this in your posting, but I'm still curious: Do you think that any of these cases will actually be brought forth?
It seems to me that none will be, and to bring one to trial would be a very bad idea. The only way that it would be an easy case is if the defendant did not have wireless, was the leasee of the internet service, and was the only one on the network. Change any one of these variables, or add countless other things (VPN, etc.), and the case becomes progressively harder. Let's say that a case is brought forward: It will have widespread national media attention and everybody will be watching. Attorneys will be lining up to represent the defendant. Most importantly: The whole business model of the firm representing the complainant will hinge on the decision of the case.
It seems to me that none will be, and to bring one to trial would be a very bad idea. The only way that it would be an easy case is if the defendant did not have wireless, was the leasee of the internet service, and was the only one on the network. Change any one of these variables, or add countless other things (VPN, etc.), and the case becomes progressively harder. Let's say that a case is brought forward: It will have widespread national media attention and everybody will be watching. Attorneys will be lining up to represent the defendant. Most importantly: The whole business model of the firm representing the complainant will hinge on the decision of the case.
RIAA messed up its litigation strategy by pushing its cases to the extreme and drawing headlines such as "$4.2 million verdict for downloading 28 songs" and the like. That strategy was clearly a bullying strategy but it was a stupid bullying strategy. It was stupid because it caused the public to recoil at the thought that a poor student (or some such person) would be ruthlessly crushed at the hands of a bunch of greedy record labels for having done something that didn't seem to deserve anywhere near such punishment. Eventually, the courts themselves came to the same position and dramatically reduced the damages awarded in such cases. RIAA had to abandon this strategy once it became clear that it would not really deter such downloading that much and, if it did, it would not be worth the price of the public relations disaster it was causing.
One thing to note about the RIAA strategy, however, is that, whatever the caliber of the legal talent on the defense side, RIAA still managed to win most of the cases on their merits. In other words, however much a defendant resisted, liability tended to be imposed at some level. Thus, it was primarily the excessive damage claims that got RIAA into trouble, not the legal merits of its claims as such.
Given that background, in this current spate of cases, you still have nothing more than institutional bullying, just as with RIAA but it is a low-level type of bullying of the "pay us $1,500 and we will forget this ever happened" variety and not of the "we will crush you and take your last penny" variety. This means that anyone who wants to fight this - even with good defense help from quality lawyers - will be at risk of incurring costs and liabilities that will easily exceed the walk-away payout that would simply allow them to put a bad episode behind them. And, if even a quality defense will not likely spare you from liability of some sort in the average case, it just isn't worth fighting for the average person. Thus, by not overreaching, the plaintiffs in these suits have actually strengthened their position. In effect, they are playing the numbers - by intimidating thousands of individuals into paying small amounts, they are ultimately gaining a significant payout in the aggregate.
Of course, this would not necessarily hold in more doubtful cases where a real defense might exist. But for the average user who simply did an improper download, there is no percentage in fighting it.
It might be that EFF has a good answer and their hearts are in the right place - but, unless there is radical change made to existing copyright laws, basically there is no good institutional response to this pattern of low-level bullying. Yes, an individual case might be successfully fought but, even if that case is won, it will only be for some failure of proof to show liability in that case alone. This does nothing to change the template for the mass of cases. And, if the plaintiffs in such cases can't be shamed into dropping them (as RIAA was), I don't see that they will.
Sorry to sound a down note but I think this is a realistic assessment. I would love to be wrong on this.
One thing to note about the RIAA strategy, however, is that, whatever the caliber of the legal talent on the defense side, RIAA still managed to win most of the cases on their merits. In other words, however much a defendant resisted, liability tended to be imposed at some level. Thus, it was primarily the excessive damage claims that got RIAA into trouble, not the legal merits of its claims as such.
Given that background, in this current spate of cases, you still have nothing more than institutional bullying, just as with RIAA but it is a low-level type of bullying of the "pay us $1,500 and we will forget this ever happened" variety and not of the "we will crush you and take your last penny" variety. This means that anyone who wants to fight this - even with good defense help from quality lawyers - will be at risk of incurring costs and liabilities that will easily exceed the walk-away payout that would simply allow them to put a bad episode behind them. And, if even a quality defense will not likely spare you from liability of some sort in the average case, it just isn't worth fighting for the average person. Thus, by not overreaching, the plaintiffs in these suits have actually strengthened their position. In effect, they are playing the numbers - by intimidating thousands of individuals into paying small amounts, they are ultimately gaining a significant payout in the aggregate.
Of course, this would not necessarily hold in more doubtful cases where a real defense might exist. But for the average user who simply did an improper download, there is no percentage in fighting it.
It might be that EFF has a good answer and their hearts are in the right place - but, unless there is radical change made to existing copyright laws, basically there is no good institutional response to this pattern of low-level bullying. Yes, an individual case might be successfully fought but, even if that case is won, it will only be for some failure of proof to show liability in that case alone. This does nothing to change the template for the mass of cases. And, if the plaintiffs in such cases can't be shamed into dropping them (as RIAA was), I don't see that they will.
Sorry to sound a down note but I think this is a realistic assessment. I would love to be wrong on this.
No need to apologize, because while this seems to mostly be an issue of ethics and social factors, I am not very interested in these issues and more in the specific legal issues that this practice and these potential trials bring about.
To be more specific: As we all know, one IP address does not equal one user (in many instances). So let's say that a case regarding the matter at hand is brought to trial. Could a potential ruling be that the lessee or provider of the IP address is the one liable for damages? It is my opinion that it is a necessity for this issue to be decided upon because we are not dealing with Kazaa and any individually distinguishing characteristics (such as a username) really other than the IP address. If the lessee or provider is found to be the one liable, the consequences of this decision would be massive. And I feel that this is an understatement.
To be more specific: As we all know, one IP address does not equal one user (in many instances). So let's say that a case regarding the matter at hand is brought to trial. Could a potential ruling be that the lessee or provider of the IP address is the one liable for damages? It is my opinion that it is a necessity for this issue to be decided upon because we are not dealing with Kazaa and any individually distinguishing characteristics (such as a username) really other than the IP address. If the lessee or provider is found to be the one liable, the consequences of this decision would be massive. And I feel that this is an understatement.
I went to torrentfreak to double check the Hurt Locker numbers, because I could have sworn they were going after 'tens of thousands.'
http://torrentfreak.com/piracy-will-earn-hurt-locker-more-th....
Looks like this 5,000 for Hurt Locker was just the first batch, with more to come. I was surprised to see that 'thousands' of people are still downloading the movie. Somebody should tell those people :/.
I guess I'm glad I stopped running a TOR exit node. Ran one for a while, and always expected to eventually get a DMCA letter. Never did. Looks like these guys really don't care if the Does are innocent or not, they just need the money.
http://torrentfreak.com/piracy-will-earn-hurt-locker-more-th....
Looks like this 5,000 for Hurt Locker was just the first batch, with more to come. I was surprised to see that 'thousands' of people are still downloading the movie. Somebody should tell those people :/.
I guess I'm glad I stopped running a TOR exit node. Ran one for a while, and always expected to eventually get a DMCA letter. Never did. Looks like these guys really don't care if the Does are innocent or not, they just need the money.
Please bear with me for a while.
A proposition: let's just start splitting our P2P downloads, initially and for simplicitly, in two counterparts of equal size that are XORed together to form the actual work whose copyright we want to infringe.
Downloading random data can't possibly be illegal—oh wait, despite of this naive scheme (that is almost out of Applied Cryptography and one that almost smells of a one-time pad), wouldn't my download still be non-random because it somehow must contain a kind of a half of a copyrighted work or something? Wouldn't it still infringing? Mere lawsuit-fodder?
It happens that if we have any blob of data of, say 700MB in size, then no matter what you do, someone can always construct another 700MB that—when XORed together—yields a copy of a recent movie.
If I legally download a Ubuntu live CD image, I can't possibly be infringing any copyright, right? Even if someone has constructed another image of the same size, that when XORed with the Ubuntu live CD yields a copy of Die Hard? Duh, easy: it's obviously the other 700M blob of data that's infringing copyright! Off to prosecute me if I do that, then.
Now, if I do happen to be downloading the other blob, what exactly would I be infringing? Again, the blob I'm downloading contains random bits and can contain—depending on the other half—any movie you can think of, under copyright or not. Or no movie. If someone gives me a suitable set of ten other halves, then I can get exactly ten movies out of the single 700M blob. But you can't possibly fit ten high-quality movies into a single 700M blob, so obviously the other blobs, again, must contain the actual payload and be illegal copies, and not this particular one...
If neither of the blobs is a public, recognized piece of data, how can you tell which is which? They're just both random data. If I individually XOR these blobs with other blobs and happen to get Ubuntu live CDs, Fedora installation CDs, WinXP corporate installer CDs, Die Hard and other movies, and memtest diagnostics CDs popping out of them, it's obvious that someone has been XORing these blobs with copyrighted works.
But you can't tell who exactly infringed the copyright; you can't tell who exactly downloaded the copyrighted works; and you can't tell who exactly uploaded them, either.
The infringing will eventually happen, should one choose to do so, in the privacy of one person's home. But how could anyone know? Especially MPAA/RIAA/<insert_goons>? Besides, fair use says that personal copies can be made, doesn't it. Or something like that.
Lawyers would of course, at this point, laugh at this feeble technicality and start aiming their prosecution guns at me, drooling off all the way. But as long as they could only observe IP numbers logged off a BitTorrent tracker or magnet swarm, what would they produce as evidence? They could try to convince the court that because I was downloading a 700MB blob named b8501756a0db1fc96a79920c30edd29e40a050b4 I was downloading and sharing a particular movie? Possibly, but how could they prove that?
They could carefully examine the logs and try to find out whether I've also downloaded and shared the particular XOR counterpart of this first part. But what if I got it off a website? They can't track direct downloads. Or what if there were three counterparts? Two of them available on torrents and a third counterpart of public data that I could legally and separately download somewhere or have it delivered over with an USB stick. Or I got some of them from FreeNet?
I guess they would have to show that I first had all the required parts and then actually assembled the files together in order to prove that I did, in fact, infringe the copyright of one work. If they don't, then why would downloading anything from internet not infringe the copyrights of all copyrighted works there are.
Please, someone tell me why this wouldn't work. Convenience? The maneuvers here do sound complicated but they could be mostly automated away.
I'm not stupid enough to think that this would somehow hold water, otherwise we'd be doing this already; I'm just stupid enough to not figure out why exactly would it fail, and I mean fail totally. Not just "yaa, they'd probably try to sue you anyway".
Because paying 2x or 3x bandwidth for the freedom to download and seed as much as you can would be a bargain. (And, yes, I would legally buy the best of all the warez I would download.)
A proposition: let's just start splitting our P2P downloads, initially and for simplicitly, in two counterparts of equal size that are XORed together to form the actual work whose copyright we want to infringe.
Downloading random data can't possibly be illegal—oh wait, despite of this naive scheme (that is almost out of Applied Cryptography and one that almost smells of a one-time pad), wouldn't my download still be non-random because it somehow must contain a kind of a half of a copyrighted work or something? Wouldn't it still infringing? Mere lawsuit-fodder?
It happens that if we have any blob of data of, say 700MB in size, then no matter what you do, someone can always construct another 700MB that—when XORed together—yields a copy of a recent movie.
If I legally download a Ubuntu live CD image, I can't possibly be infringing any copyright, right? Even if someone has constructed another image of the same size, that when XORed with the Ubuntu live CD yields a copy of Die Hard? Duh, easy: it's obviously the other 700M blob of data that's infringing copyright! Off to prosecute me if I do that, then.
Now, if I do happen to be downloading the other blob, what exactly would I be infringing? Again, the blob I'm downloading contains random bits and can contain—depending on the other half—any movie you can think of, under copyright or not. Or no movie. If someone gives me a suitable set of ten other halves, then I can get exactly ten movies out of the single 700M blob. But you can't possibly fit ten high-quality movies into a single 700M blob, so obviously the other blobs, again, must contain the actual payload and be illegal copies, and not this particular one...
If neither of the blobs is a public, recognized piece of data, how can you tell which is which? They're just both random data. If I individually XOR these blobs with other blobs and happen to get Ubuntu live CDs, Fedora installation CDs, WinXP corporate installer CDs, Die Hard and other movies, and memtest diagnostics CDs popping out of them, it's obvious that someone has been XORing these blobs with copyrighted works.
But you can't tell who exactly infringed the copyright; you can't tell who exactly downloaded the copyrighted works; and you can't tell who exactly uploaded them, either.
The infringing will eventually happen, should one choose to do so, in the privacy of one person's home. But how could anyone know? Especially MPAA/RIAA/<insert_goons>? Besides, fair use says that personal copies can be made, doesn't it. Or something like that.
Lawyers would of course, at this point, laugh at this feeble technicality and start aiming their prosecution guns at me, drooling off all the way. But as long as they could only observe IP numbers logged off a BitTorrent tracker or magnet swarm, what would they produce as evidence? They could try to convince the court that because I was downloading a 700MB blob named b8501756a0db1fc96a79920c30edd29e40a050b4 I was downloading and sharing a particular movie? Possibly, but how could they prove that?
They could carefully examine the logs and try to find out whether I've also downloaded and shared the particular XOR counterpart of this first part. But what if I got it off a website? They can't track direct downloads. Or what if there were three counterparts? Two of them available on torrents and a third counterpart of public data that I could legally and separately download somewhere or have it delivered over with an USB stick. Or I got some of them from FreeNet?
I guess they would have to show that I first had all the required parts and then actually assembled the files together in order to prove that I did, in fact, infringe the copyright of one work. If they don't, then why would downloading anything from internet not infringe the copyrights of all copyrighted works there are.
Please, someone tell me why this wouldn't work. Convenience? The maneuvers here do sound complicated but they could be mostly automated away.
I'm not stupid enough to think that this would somehow hold water, otherwise we'd be doing this already; I'm just stupid enough to not figure out why exactly would it fail, and I mean fail totally. Not just "yaa, they'd probably try to sue you anyway".
Because paying 2x or 3x bandwidth for the freedom to download and seed as much as you can would be a bargain. (And, yes, I would legally buy the best of all the warez I would download.)
It doesn't matter if you really downloaded a movie in this case or not. In the US the lawsuit handling costs are likely >= the requested fine. Even if you're right, you've lost. They would have to prove something only if you wanted to challenge their claim.
Sounds like a reasonable amount compared to what RIAA is trying to get in a full suit.
Here the penalty for taking public transportation without a valid ticket is roughly 50 times the cost of the ticket (and the excuse that you wouldn't have bought the ticket anyway is not a valid defense here either), and this ($1500 vs $20 cost of a new movie) is of similar scale.
Perhaps this will encourage movie viewers to use alternative modern distribution channels a la Netflix. Personally I do not bother with full-priced DVDs; Lovefilm (netflix.eu) is enough for me, together with older discounted DVDs. There's enough backlog of good movies that I don't need to buy Transfomers 2 on DVD for a long, long while.
Here the penalty for taking public transportation without a valid ticket is roughly 50 times the cost of the ticket (and the excuse that you wouldn't have bought the ticket anyway is not a valid defense here either), and this ($1500 vs $20 cost of a new movie) is of similar scale.
Perhaps this will encourage movie viewers to use alternative modern distribution channels a la Netflix. Personally I do not bother with full-priced DVDs; Lovefilm (netflix.eu) is enough for me, together with older discounted DVDs. There's enough backlog of good movies that I don't need to buy Transfomers 2 on DVD for a long, long while.
this ($1500 vs $20 cost of a new movie) is of similar scale.
The examples cited are all (with 1 exception, The Hurt Locker) all of the straight-to-video $5 bargain bin variety. 50 x $5 = $250. Compared to $1500 (let alone $2500) that's quite a bit different.
The examples cited are all (with 1 exception, The Hurt Locker) all of the straight-to-video $5 bargain bin variety. 50 x $5 = $250. Compared to $1500 (let alone $2500) that's quite a bit different.
Where do you live? In Seattle it's around 8x the cost.
In Copenhagen, Denmark the penalty is between 500 and 750 DKK ($82 - $123) -- while you can use the same ticket on all types of public transportation, the light rail and real rail are run by different companies and charge slightly different penalties.
A basic ticket is 13.50 (if you buy 10 in advance which can then be activated at any time, as is most common) to 23.00 DKK (if you buy a single one in a machine or via a text message); it lets you travel for an hour and change as much as you wish. If you travel every day between home and work you'll usually buy a flat-rate subscription.
(The prices get higher if you travel through multiple fare zones -- there are almost 100 different zones that cover Zealand and its 2 million inhabitants; it can be a somewhat confusing system sometimes resulting in travel from A to B not costing the same as travel from B to A; if you didn't buy enough fare zones you're also liable for that 750 DKK penalty above)
Bus travel require you to show a ticket at the entrance, so there's rarely secondary control, but the light rail system you have to buy or stamp a ticket yourself I guess has perhaps a 15% chance of being checked. I'd estimate at least 98% people have valid tickets on the lines I use.
A basic ticket is 13.50 (if you buy 10 in advance which can then be activated at any time, as is most common) to 23.00 DKK (if you buy a single one in a machine or via a text message); it lets you travel for an hour and change as much as you wish. If you travel every day between home and work you'll usually buy a flat-rate subscription.
(The prices get higher if you travel through multiple fare zones -- there are almost 100 different zones that cover Zealand and its 2 million inhabitants; it can be a somewhat confusing system sometimes resulting in travel from A to B not costing the same as travel from B to A; if you didn't buy enough fare zones you're also liable for that 750 DKK penalty above)
Bus travel require you to show a ticket at the entrance, so there's rarely secondary control, but the light rail system you have to buy or stamp a ticket yourself I guess has perhaps a 15% chance of being checked. I'd estimate at least 98% people have valid tickets on the lines I use.
Do people bother buying tickets? It seems like with those sort of fines it would be cheaper to simply pay the fine the few times you get caught. Unless of course Seattle have some very active ticket checks.
My ticket gets checked less then monthly and I commute to work daily. The monthly ticket costs at least 50€, the penalty is 40€. From a mathematical point of view, it makes no sense to buy a ticket.
There are a couple of caveats. When I don't have a ticket, e.g. because I forgot my wallet, I'm on a constant lookout and the train ride becomes really stressful. If you get caught several times they might press charges against you, so it is not feasible to go without ticket on a regular basis anyway. And last but not least, I'm using a service, so I pay for it.
There are a couple of caveats. When I don't have a ticket, e.g. because I forgot my wallet, I'm on a constant lookout and the train ride becomes really stressful. If you get caught several times they might press charges against you, so it is not feasible to go without ticket on a regular basis anyway. And last but not least, I'm using a service, so I pay for it.
> There are a couple of caveats. When I don't have a ticket, e.g. because I forgot my wallet, I'm on a constant lookout and the train ride becomes really stressful. If you get caught several times they might press charges against you, so it is not feasible to go without ticket on a regular basis anyway. And last but not least, I'm using a service, so I pay for it.
I used to ride without a ticket a lot when I was in school. You are right about the stress. (On the other hand, riding with a ticket afterwards is much more boring.)
I used to ride without a ticket a lot when I was in school. You are right about the stress. (On the other hand, riding with a ticket afterwards is much more boring.)
Similar with my uni car parking, the fine would only be like 5 times maybe, the problem is that they end up targeting you if you always park without a permit so while it would be cheaper if you got caught a normal amount of times you end up getting caught a heap of times in a row.
This is an interesting article on the subject:
http://www.npr.org/blogs/money/2010/05/dont_pay_your_fare_on...
http://www.npr.org/blogs/money/2010/05/dont_pay_your_fare_on...
If enough people are paying, then they won't take you at a court, because it's just work for them without giving them a lot more.
If nobody pays, they don't have a business, because it wouldn't pay out for them, if they've to take everyone at the court.
If nobody pays, they don't have a business, because it wouldn't pay out for them, if they've to take everyone at the court.
Aside: what the hell happend to Val Kilmer? _The Steam Experiment_?
Old age is the most unexpected of all the things that happen to a man. - - - - Leon Trotsky
Maybe he is on a global warming kick, he also played a part in The Thaw http://www.imdb.com/title/tt1235448/
The article states:
Data from the recording industry lawsuits, revealed in a court case, showed that 11,000 of the 18,000 Does settled immediately or had their cases dropped by the labels
And:
Dunlap, Grubb, & Weaver generally asks for $1,500 to $2,500, threatening to sue for $150,000 if no settlement payment is forthcoming. Assuming that 90 percent of the current targets settle for $1,500, this means that the lawyers, studios, and P2P detection company would split $19.7 million.
I accept that I could be missing something here and would welcome enlightenment from someone better informed than me, but I find it difficult to believe that the lawyers have downloaded 18,000 copies (i.e. one for each John Doe) of the infringing material.
Without doing this, how can they have a case that actually stands up in court, and one that successfully proves that the John Doe actually made the material available? Surely it would only take a few hundred people to successfully challenge them for the profits to be lost?
Data from the recording industry lawsuits, revealed in a court case, showed that 11,000 of the 18,000 Does settled immediately or had their cases dropped by the labels
And:
Dunlap, Grubb, & Weaver generally asks for $1,500 to $2,500, threatening to sue for $150,000 if no settlement payment is forthcoming. Assuming that 90 percent of the current targets settle for $1,500, this means that the lawyers, studios, and P2P detection company would split $19.7 million.
I accept that I could be missing something here and would welcome enlightenment from someone better informed than me, but I find it difficult to believe that the lawyers have downloaded 18,000 copies (i.e. one for each John Doe) of the infringing material.
Without doing this, how can they have a case that actually stands up in court, and one that successfully proves that the John Doe actually made the material available? Surely it would only take a few hundred people to successfully challenge them for the profits to be lost?
You don't need to download a complete copy to convince a judge/jury of copyright infringement. Don't forget that these are civil cases. It's not that hard to write a custom bittorrent client that automatically searches torrent sites for the media you're after, gathers lists of ip addresses, feeds it into your case management system and have that spit out the paperwork. You come into your office in the morning, run the software, and you can file 500 cases before lunch.
Actually I was describing this setup just a few weeks ago to my girlfriend. It's an awesome money machine, and it's what's going to eradicate 80% of todays user base of p2p programs over the next few years. Once a few high-profile publications publish stories of people paying thousands and Oprah runs an item 'how to prevent your kids from bankrupting you with p2p software', most casual infringers will become too scared to use illicit sources of media.
Actually I was describing this setup just a few weeks ago to my girlfriend. It's an awesome money machine, and it's what's going to eradicate 80% of todays user base of p2p programs over the next few years. Once a few high-profile publications publish stories of people paying thousands and Oprah runs an item 'how to prevent your kids from bankrupting you with p2p software', most casual infringers will become too scared to use illicit sources of media.
Ok, I get that civil court cases have a much lower standard of proof required, but this still gets me:
You don't need to download a complete copy to convince a judge/jury of copyright infringement
Why on earth not? If the burden of proof is that low, why not defend along the lines of "I put a file on my computer with that name as a joke."
I would love to see what evidence they use to prosecute, if it's only hashes or checksums alone, surely it'd be easy enough to write a fake client that lies?
You don't need to download a complete copy to convince a judge/jury of copyright infringement
Why on earth not? If the burden of proof is that low, why not defend along the lines of "I put a file on my computer with that name as a joke."
I would love to see what evidence they use to prosecute, if it's only hashes or checksums alone, surely it'd be easy enough to write a fake client that lies?
I've helped defend victims in a few of these cases (in the UK) so this is my best guess.
Ultimately the evidence they have is pretty good. They grab a torrent and begin to download the file, they watch which IPs connect - both seeds and peers - and record them. They then apply for a subpheona from the courts.
The argument (for peers) is that the user has connected to the P2P network and is trying to download copyrighted material. Under civil law this is a reasonable burden of proof (and, honestly, I can't really argue with it). With seeds it is an even stronger argument; because the seed has at least a partial copy of the copyrighted work and is facilitating the sharing of it.
This will stand up in court; and, to be honest, I don't think it is disputable under current law.
What we should be disputing (and I have helped with successes here in the past) is that the damages are completely disproportionate. The way I've managed this is by explaining how P2P really works to judges/courts - and usually they start to come round to the idea.
We also should, outside of the cases, be working to promote the idea of copyright reform so that this becomes less of a cash cow.
Ultimately the evidence they have is pretty good. They grab a torrent and begin to download the file, they watch which IPs connect - both seeds and peers - and record them. They then apply for a subpheona from the courts.
The argument (for peers) is that the user has connected to the P2P network and is trying to download copyrighted material. Under civil law this is a reasonable burden of proof (and, honestly, I can't really argue with it). With seeds it is an even stronger argument; because the seed has at least a partial copy of the copyrighted work and is facilitating the sharing of it.
This will stand up in court; and, to be honest, I don't think it is disputable under current law.
What we should be disputing (and I have helped with successes here in the past) is that the damages are completely disproportionate. The way I've managed this is by explaining how P2P really works to judges/courts - and usually they start to come round to the idea.
We also should, outside of the cases, be working to promote the idea of copyright reform so that this becomes less of a cash cow.
I've got a theory about this, maybe you can enlighten me.
Suppose that the movie/song/whatever being downloaded is actually wrapped in a ZIP or RAR -- even better, suppose that it's encrypted (granting that the downloader would have the decrypt key). And suppose that somebody downloads a chunk of it (say 10%) from me.
That 10% chunk alone is absolutely useless. As it stands, it's effectively random data that cannot be used to recover any of the intellectual property that's inside the archive.
One might claim, then, that I did not actually give the downloader any copyrighted materials. It's only his action, in combining it with the other chunks, that allows the IP to be extracted. Thus, neither I nor the 9 other people who hypothetically provided chunks of the file could be blamed individually for providing copyrighted materials to the downloader. At most, each of us aided and abetted the downloader by providing a necessary but insufficient piece.
Obviously IANAL, but those are my thoughts. How do they strike you?
Suppose that the movie/song/whatever being downloaded is actually wrapped in a ZIP or RAR -- even better, suppose that it's encrypted (granting that the downloader would have the decrypt key). And suppose that somebody downloads a chunk of it (say 10%) from me.
That 10% chunk alone is absolutely useless. As it stands, it's effectively random data that cannot be used to recover any of the intellectual property that's inside the archive.
One might claim, then, that I did not actually give the downloader any copyrighted materials. It's only his action, in combining it with the other chunks, that allows the IP to be extracted. Thus, neither I nor the 9 other people who hypothetically provided chunks of the file could be blamed individually for providing copyrighted materials to the downloader. At most, each of us aided and abetted the downloader by providing a necessary but insufficient piece.
Obviously IANAL, but those are my thoughts. How do they strike you?
This is actually a pretty common "idea" (not a bad one, just it comes up a lot :)) that an accused comes up with when I meet them. The same argument, really, applies to anything transmitted over P2P - you usually only download a small chunk from one person, encrypted or not.
My response is usually: "were you uploading copyrighted stuff?". Answer: "yes". Me: "well then..."
Saying "but I only gave him a small piece of data - what he does with it is his own business" doesn't stand up because clearly your intent was to give him part of the file so he could construct the file (this argument has been used for centuries to try and get out of things and almost always fails :P)
Seriously? I think people should just suck it up, admit they did something wrong (currently wrong anyway...) and then fight the idiotic fine.
Ultimately the law is not really about the exact bits you exchange (one of the few things I agree with, actually) but about your intent and facilitation of the shared file.
EDIT: to clarify/extend something. I think it is a dangerous road to bring the idea of what the individual bits you send mean - because that starts to open up the idea the a certain ordering of bits could be illegal (take a CP case - if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within a music file you own. Or perhaps the bits in an MP3 appear by random occurrence in a video file you own. This is a dangerous weapon to hand people :P)
My response is usually: "were you uploading copyrighted stuff?". Answer: "yes". Me: "well then..."
Saying "but I only gave him a small piece of data - what he does with it is his own business" doesn't stand up because clearly your intent was to give him part of the file so he could construct the file (this argument has been used for centuries to try and get out of things and almost always fails :P)
Seriously? I think people should just suck it up, admit they did something wrong (currently wrong anyway...) and then fight the idiotic fine.
Ultimately the law is not really about the exact bits you exchange (one of the few things I agree with, actually) but about your intent and facilitation of the shared file.
EDIT: to clarify/extend something. I think it is a dangerous road to bring the idea of what the individual bits you send mean - because that starts to open up the idea the a certain ordering of bits could be illegal (take a CP case - if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within a music file you own. Or perhaps the bits in an MP3 appear by random occurrence in a video file you own. This is a dangerous weapon to hand people :P)
> Saying "but I only gave him a small piece of data - what he does with it is his own business" doesn't stand up because clearly your intent was to give him part of the file so he could construct the file (this argument has been used for centuries to try and get out of things and almost always fails :P)
You're right. More specifically, programmers have argued that complex schemes involving encryption and similar technologies will protect them in court[1] from lawsuits. The essay "What Colour are your bits?" at http://ansuz.sooke.bc.ca/entry/23 explains in detail why this won't work.
1: as opposed to keeping people out of court in the first place, which crypto technologies can plausibly do.
You're right. More specifically, programmers have argued that complex schemes involving encryption and similar technologies will protect them in court[1] from lawsuits. The essay "What Colour are your bits?" at http://ansuz.sooke.bc.ca/entry/23 explains in detail why this won't work.
1: as opposed to keeping people out of court in the first place, which crypto technologies can plausibly do.
Upvoted because you partially answered my question -- but I'm not quite satisfied.
My point isn't that "it's just a little piece". Like being "a little bit pregnant", I don't think that "infringing a little bit" could amount to much of an argument.
It's that with certain methods of encoding, a piece is entirely worthless without the rest of the file. That is, I could give a chunk to the IP owner to inspect, and there's no way that he could tell me if it represented a part of his work.
if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within...
This makes me think of the Judas Priest "back masking" trial way back when [1]. The wikipedia article notes "The case was dismissed by the judge for insufficient evidence of Judas Priest's placement of subliminal messages on the record", and that's a little ambiguous: do we read that to refer to the existence of the message, or to the intent to put the message on the record?
Anyway, for the danger that you outline, I would think that if it's possible to transform a data stream into a different context in which it could be construed as illegal, then the evidence would also need to include possession of, or access to, a means of accomplishing that transform.
Without some kind of consideration of this, steganography would throw a wrench into everything.
[1] http://en.wikipedia.org/wiki/Backmasking#Court_cases
My point isn't that "it's just a little piece". Like being "a little bit pregnant", I don't think that "infringing a little bit" could amount to much of an argument.
It's that with certain methods of encoding, a piece is entirely worthless without the rest of the file. That is, I could give a chunk to the IP owner to inspect, and there's no way that he could tell me if it represented a part of his work.
if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within...
This makes me think of the Judas Priest "back masking" trial way back when [1]. The wikipedia article notes "The case was dismissed by the judge for insufficient evidence of Judas Priest's placement of subliminal messages on the record", and that's a little ambiguous: do we read that to refer to the existence of the message, or to the intent to put the message on the record?
Anyway, for the danger that you outline, I would think that if it's possible to transform a data stream into a different context in which it could be construed as illegal, then the evidence would also need to include possession of, or access to, a means of accomplishing that transform.
Without some kind of consideration of this, steganography would throw a wrench into everything.
[1] http://en.wikipedia.org/wiki/Backmasking#Court_cases
It's that with certain methods of encoding, a piece is entirely worthless without the rest of the file. That is, I could give a chunk to the IP owner to inspect, and there's no way that he could tell me if it represented a part of his work.
Surely, even without encoding, the piece is pretty worthless without the remainder of the file.
But I see what you mean though (you couldn't even reconstruct a portion of the file).
Im not sure it matters; the point is definitely the intent to supply the copyrighted media in whatever form. It's similar to the persons idea not long ago of supplying obfuscated MP3's by encoding them as Tweets and then supplying the code or algorithm to recover and reconstruct the file. It's all part and parcel of the same thing. It's just obfuscating the delivery method not the actual package/intent.
More importantly I don't think the court will be sympathetic to the idea; and if that is the case it risks invalidating other arguments you may bring.
(there is a similar thing in money laundering; many launderers try and get away with it by rotating very small parcels of money from lots of different batches through legitimate transfers. The idea is twofold; it's difficult to reconstruct the original larger packets of illegal money and b) they can claim, for various reasons, they had no idea of the origin of the money. This argument, as you can imagine, doesn't last long in court :))
I think, ultimately, it is not currently possible to fight the idea that distributing copyright materials in any form could be legal (or at least not illegal).
Surely, even without encoding, the piece is pretty worthless without the remainder of the file.
But I see what you mean though (you couldn't even reconstruct a portion of the file).
Im not sure it matters; the point is definitely the intent to supply the copyrighted media in whatever form. It's similar to the persons idea not long ago of supplying obfuscated MP3's by encoding them as Tweets and then supplying the code or algorithm to recover and reconstruct the file. It's all part and parcel of the same thing. It's just obfuscating the delivery method not the actual package/intent.
More importantly I don't think the court will be sympathetic to the idea; and if that is the case it risks invalidating other arguments you may bring.
(there is a similar thing in money laundering; many launderers try and get away with it by rotating very small parcels of money from lots of different batches through legitimate transfers. The idea is twofold; it's difficult to reconstruct the original larger packets of illegal money and b) they can claim, for various reasons, they had no idea of the origin of the money. This argument, as you can imagine, doesn't last long in court :))
I think, ultimately, it is not currently possible to fight the idea that distributing copyright materials in any form could be legal (or at least not illegal).
Your zip or rar or encrypted form or whatever of the IP is directly derived from the original, and as such it is still subject to the same restrictions as the original. Derived material is protected in the same way as the original.
If you ROT13 a book, and upload one chapter, is that infringing? Answer: yes, because it is distribution of a work derived from a protected work. Does it matter if the original is recoverable? No. If the receiver of the ROT13 version doesn't know about ROT13, it's still infringing. If it's even technically impossible to recover the original (because it's part of a larger encrypted file, because you don't know the password/decryption key, ...), is it still infringing? Answer: yes.
If you ROT13 a book, and upload one chapter, is that infringing? Answer: yes, because it is distribution of a work derived from a protected work. Does it matter if the original is recoverable? No. If the receiver of the ROT13 version doesn't know about ROT13, it's still infringing. If it's even technically impossible to recover the original (because it's part of a larger encrypted file, because you don't know the password/decryption key, ...), is it still infringing? Answer: yes.
what about the argument that someone could have used my unsecured wireless network to download copyrighted material with my IP address without my knowledge?
While most people protect their wireless, I know many mom and pops who still have no clue how to do any of that stuff and could be victims of their neighbor's crimes.
While most people protect their wireless, I know many mom and pops who still have no clue how to do any of that stuff and could be victims of their neighbor's crimes.
That would maybe work for a clueless old lady. The standard for someone with a technical background, of whom can be expected that he should know about these issues, would be higher than for someone who can make a reasonable case of not knowing about these things. At some point it becomes an "assumed liability" (that's probably not the proper term in common law systems) - what I mean is a liability for something not arising from doing or not doing something (like punching someone in the face - that's something you actively do), but rather from being in a certain position, like when you own a house, and a roof tile falls off on someone's head, you're still liable because it's your house (again this is technically not correct in tort-based systems but the principle holds). In the same way one could argue, in my opinion reasonably, that owning & using certain equipment (wireless routers) brings with it a certain responsibility, in this case making a reasonable effort to make sure that the equipment is not used to violate other people's rights. It will depend on the circumstances if this is acceptable.
In that case, Bruce Schneier is a genius... By publicizing his open wireless network, he has an excuse to download whatever he wants. And if the prosecution wants to argue for "assumed liability", what expert witness is going to trump Bruce Schneier? :)
http://www.schneier.com/blog/archives/2008/01/my_open_wirele...
http://www.schneier.com/blog/archives/2008/01/my_open_wirele...
Your assertion doesn't follow from the article. Like the other commenter remarked, Schneier is merely saying that because of the large amount of open wireless netwokrs, the chances that he's the one that'll be caught are so small that the risk outweighs the benefits.
Secondly, Schneier (as knowledgeable about crypto and security in general as he is) is in no position to be an expert witness on the interpretation of legal concepts like whether or not this liability exists in the present case. Even worse, by publicizing this article, he is basically making it public that he knows about the dangers yet deliberately ignores it, and thus enables eventual wrongdoers. I think he should talk his lawyer friends again that he mentions in the article to assess the potential extra damage he's doing to himself by publishing this. In effect it's what I mentioned in another comment above about people who are technically adept and therefore will be held to a higher standard. He's handing the (hypothetical) opposition their argument on a silver platter.
Secondly, Schneier (as knowledgeable about crypto and security in general as he is) is in no position to be an expert witness on the interpretation of legal concepts like whether or not this liability exists in the present case. Even worse, by publicizing this article, he is basically making it public that he knows about the dangers yet deliberately ignores it, and thus enables eventual wrongdoers. I think he should talk his lawyer friends again that he mentions in the article to assess the potential extra damage he's doing to himself by publishing this. In effect it's what I mentioned in another comment above about people who are technically adept and therefore will be held to a higher standard. He's handing the (hypothetical) opposition their argument on a silver platter.
He admits there, though, that he is playing the law of averages (and is probably correct in thinking he is pretty safe).
His assertion that it is a usable defence is, I think, pretty groundless according to legal commentary around that article.
His assertion that it is a usable defence is, I think, pretty groundless according to legal commentary around that article.
Yes, that is a good defense and, if true, should be brought up if you are accused.
You can use that as a "defense", yes. But really, put yourself in the shoes of somebody who has nothing at stake in this argument. What position is more reasonable:one guy saying "I think my rights are being violated, I have proof x y and z of that" (logs, checksums, whatever); and then another mounting a defense saying "yes it seems like that from the outside but I just faked all of that as a joke! Hahaha!" Why would anyone put files with wrong names on their computers "as a joke"? As a defendant you then have to substantiate your claims, basically because they're so outrageously far-fetched. Let's be honest, it's in the same category as a defendant in a tort suit (e.g. car accident) mounting an "It's my evil twin brother who stole my car and then parked it on my driveway!" defense. You can claim things like this all you want but in the end it comes down to a "reasonable" interpretation of the facts by a judge. And contrary to popular opinion, they're not stupid.
Hmm as I understand it they are suing for the fact that the person is downloading the unauthorized copy (i.e. suing the peers). As to suing seeds; I guess the argument is that they have made the copy available - are facilitating the transmission of a copyrighted works.
Bearing in mind how P2P works Im not sure I understand why they would have to download 18,000 copies? The whole point of P2P is that you can download 1 copy from 18,000 [sic] people :)
(I don't agree with their argument in the slightest but what you've said doesn't appear to sync up with what is being argued)
Bearing in mind how P2P works Im not sure I understand why they would have to download 18,000 copies? The whole point of P2P is that you can download 1 copy from 18,000 [sic] people :)
(I don't agree with their argument in the slightest but what you've said doesn't appear to sync up with what is being argued)
I'm a bit surprised that this seems to be a new development in the United States. In Germany this is the prevailing mechanism to make money from filesharing. They use cease and desist letters instead of subpoenas, but the principle is the same: Pay us and we don't take you to court.
I'm surprised that the extortion angle hasn't been used against them, yet. Wasn't a RICO suit filed against the RIAA for this behavior?
Interesting - I wonder how they are getting people's identities. They gloss over it in the article saying they can subpoena for it, but I assume that is rather difficult with bitorrents and tiny pieces coming from hundreds of ISPs. How are they getting a list of people who downloaded a particular movie?
The BitTorrent tracker contains a list of IPs of people connected to each individual torrent. Everyone that connects to the tracker obtains the list for that torrent so that you can find other peers with pieces of the file. All they have to do is connect to the tracker and record the IPs. Then they file Joe Doe lawsuits to find out who those IPs belong to.
{update} I assume that they have to wait for a connection from someone to exchange a piece of the movie though. It is possible to connect to a tracker, falsely advertise the percentage of the file that you have, and just sit there disallowing connections. Unless you transfer something other than communication w/ the tracker I don't know how they could find that you've infringed copyright. [Maybe someone should purposely do this to try and get sued by them.]
Is it illegal to set up a shop that purports to sell illegal devices, even though you don't actually have any illegal devices and never buy or sell an illegal device?
{update} I assume that they have to wait for a connection from someone to exchange a piece of the movie though. It is possible to connect to a tracker, falsely advertise the percentage of the file that you have, and just sit there disallowing connections. Unless you transfer something other than communication w/ the tracker I don't know how they could find that you've infringed copyright. [Maybe someone should purposely do this to try and get sued by them.]
Is it illegal to set up a shop that purports to sell illegal devices, even though you don't actually have any illegal devices and never buy or sell an illegal device?
Logic experiment:
AFAIK, you can't download a torrent without participating in seeding it (at least while you're downloading it). Assuming that whomever is gathering the IP addresses is an authorized representative of the copyright holder, they are actively involved in distributing the video (at least while they're collecting IP addresses).
So, a defendant could claim "At the time you caught me downloading it, an authorized representative of the copyright holder was publishing the content on BitTorrent".
Of course, the problem is that the law isn't logical ;)
AFAIK, you can't download a torrent without participating in seeding it (at least while you're downloading it). Assuming that whomever is gathering the IP addresses is an authorized representative of the copyright holder, they are actively involved in distributing the video (at least while they're collecting IP addresses).
So, a defendant could claim "At the time you caught me downloading it, an authorized representative of the copyright holder was publishing the content on BitTorrent".
Of course, the problem is that the law isn't logical ;)
> So, a defendant could claim "At the time you caught me downloading it, an authorized representative of the copyright holder was publishing the content on BitTorrent".
They could be publishing data, but you'd have to prove that they weren't just uploading bogus data into the stream. BitTorrent hashes all of the chunks it downloads, but that doesn't prevent someone from constantly uploading bogus data that is only rejected once you've downloaded it. [IIRC, there are clients that will blacklist peers that consistently send corrupt chunks though.] They could just claim that they were uploading random data, and you would have to have some way to refute that (which you wouldn't unless you keep an audit trail of all peers you connect to over BitTorrent).
They could be publishing data, but you'd have to prove that they weren't just uploading bogus data into the stream. BitTorrent hashes all of the chunks it downloads, but that doesn't prevent someone from constantly uploading bogus data that is only rejected once you've downloaded it. [IIRC, there are clients that will blacklist peers that consistently send corrupt chunks though.] They could just claim that they were uploading random data, and you would have to have some way to refute that (which you wouldn't unless you keep an audit trail of all peers you connect to over BitTorrent).
Most bittorrent clients rank their peers by upload speed when they choose who to upload their pieces to. You could still download a file if you refused to upload (afaik seeds will upload to anyone), but you would probably experience a decrease in speed.
Apart from the fact that you can disallow download and only query the tracker (you'd get horrible download speeds but presumably that wouldn't matter for this use case), you logic is flawed. Merely co-distributing pieces of material doesn't automatically grant others use rights. The co-sharing could be a necessary step in discovering the identity of infringers.
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I'd assume: start downloading the movie, and track peer IP addresses. Bully ISPs, nail users.
Dunno about this situation, but there's a discussion in
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/...
starting at about paragraph 110. They are coy about the details, I suppose to make circumvention harder or something.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/...
starting at about paragraph 110. They are coy about the details, I suppose to make circumvention harder or something.
Good thing I live in Canada, where they will slavishly adopt this practice maybe two or three years from now.
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"monetizing infringement" ... a wonderfully cromulent idea!
On the one side: people who are all set up for the fight, who have done the detailed research, who have drafted the key documents, and who are familiar and comfortable with a legal setting in which they hold all the advantages.
On the other side: an individual who gets a complete packet up front (detailed letter, draft complaint) in the form of a certified letter, who learns from his lawyer that he has no good defenses, and who discovers that it will take many thousands (if not tens of thousands of dollars) to defend this, and who ultimately has no stake in putting good money after bad to launch a major fight over a stupid download of what was likely a crappy movie anyway.
Basically, one who becomes a target here is like a chess player left only with his king to try to resist an opponent who has a range of big pieces. He could make a few futile moves before checkmate or he can resign immediately and accept the inevitable.
That is why it is a no-brainer to just pay the $1,500 and be done with it. Even with an arguably good defense, it just is not worth it for an average person to step into the fight.