legitimacy of torrent lawsuits by porn companies

[Jamie Gardner]

I have been reading about Judge Gary Brown getting in the way of porn company lawsuits against people who download torrents of their movies. The judge is claiming that an IP address, by itself, is not sufficient to prove that a person downloaded a porn movie from a torrent. Brown says there is the possibility that other family members or visiters could have downloaded movies rather then the person who owns the IP address. If you go by his logic, should many cases of possession of child pornography be thrown out?

When child pornography is found on a computer, it is assumed that it's there because of the owner of the computer. On the TV show TO CATCH A PREDATOR, text messages were used as evidence that a person coming to a house intended to have sex with someone underage. According to the show, the crime already was committed whether the person shows up at the house or not. There was no video camera footage showing people typing and sending the messages. There were no witnesses to the messages being written. Most of the time, Chris Hansen was able to get people to confess to writing the messages. What if a person continued to deny writing the messages, despite the persistance of Chris Hansen?

Another thing that Judge Gary Brown's decision reminds me of is video cameras at red lights. The video cameras take pictures of the license plates of the cars. How do we know the owner of the car was driving it? It is possible that someone else could have borrowed the car, possibly without the owner's knowledge. A number of years ago, the big concern with the video cameras was that the timing of the lights was changed so that
more people would not get through before it turned red.

[Tom_PM]

Well when it comes to local storis of CP I can tell you that I've never heard of one that was based on IP alone. Usually the common element is police carting out usually a couple or few computers with content physically/digitally on them from the residence.

So I think the judge could be correct until there is more security. You know people sometimes have been known to drive around looking for hotspots, then park and do their online surfing using that open router, with "someone elses" IP showing all the while right? Not too good for identifying definitively.

[TisMe]

Regarding the traffic cameras, I think you are responsible for your car, unless it's reported stolen. Doesn't matter who is driving, just like a parking ticket, it's your responsibility as the owner of the car.

I've seen other courts finding that an IP is enough to blame someone for computer activities.

Going to be interesting to watch.

[JFK]

I have seen shots with the person driving the car being clearly visible

[Jamie Gardner]

Originally Posted by JFK

I have seen shots with the person driving the car being clearly visible

I wondered about whether you could see the person's face. How often would the camera show someone's face? Would it be a matter of luck for the camera to capture someone's face at the right moment? If someone had sunglasses and a hat on, this would make someone less identifiable.

[Quentin]

There are many differences between a criminal CP prosecution and a civil case involving allegations of copyright violation. I don't know enough about it all to get into the (significant) procedural differences, or the ways in which standards of evidence vary between criminal and civil cases, but I will note one fact that I think is significant here: Possession of CP is a "strict liability" crime, while copyright infringement is not.

From that one fact flows most of the substantive difference between criminal CP possession/creation/distribution cases and civil intellectual property claims, it seems to me. CP itself is patently illegal, as well as patently illegal to possess no matter how you ended up in possession of it. Thankfully for ALL of us, copyrighted materials are not automatically illegal to have in your possession. Sure, the means by which you obtained a digital copy of any given movie or song that is subject to copyright could be illegal, but there's nothing patently illegal about the movie/song itself.

I also suspect it makes a big difference to the court in these copyright cases whether the plaintiff(s) appear to have any intent to actually litigate their claims. In the cases that Judge Brown was ruling and commenting on, it appears that he has not been persuaded that the plaintiffs intend to litigate; he thinks they are just fishing for the identity of people that they can enter into settlement negotiations with, and have no real intent to follow through with a lawsuit against any who do not settle.

Whether or not he's sympathetic to the plaintiffs' claims or the plight of their businesses that stems from widespread pirating of their content, a judge has to consider the court's interests, as well. At the end of the day, the court really isn't supposed to be merely a means by which plaintiffs can secure a list of possible defendants to pressure into settlements -- particularly if the court gets the sense that the plaintiff's plan does not include litigation, at all, and that the whole point of lumping defendants together in a single complaint is to avoid paying the court $350 per filing to go after each defendant individually.

I think it's pretty easy to see where Judge Brown is coming from, at least from the court's perspective. He isn't completely against porn companies enforcing their copyrights; he just wants to see it done in ways that are consistent with the rules of civil procedure, the federal rules of evidence, and that respect the court's purpose and protocols. That's why he is severing all but one John Doe in the Malibu Media cases, but allowing the cases to proceed against "John Doe #1," and dismissing the other defendants without prejudice, which enables Malibu to refile against those defendants (albeit one at a time) in the future

[raymor]

There's a difference between a) proof beyond a reasonable doubt (criminal, CP), the preponderance of the evidence (civil, copyright), and clear and specific (for a subpeona).

The plaintiffs need not argue that an IP alone would be enough to WIN their case, only that it (along with the timestamp) specific enough to let the ISP find the record. It can then be used with other evidence. For example, once the plaintiff has the defendant's name, they can simply ask / imply and the defendant may admit that they comparef the copyright:

Plaintiff: I see that you downloaded Gothic Whores 2. I.hope you enjoyed it. You owe us $29.95 for that movie.

Defendant: Yeah, sorry. It WAS a good flick. Here's your $29.95.

or

Defendant: Fuck you, I'm not paying for that crap. Those weren't even real goth girls, just porn stars with their hair dyed.

Most may not admit it, but the point is, requesting a supeona for certain evidence doesn't mean there is isn't any other evidence and never will be any.

[u-Bob]

Originally Posted by TisMe

Regarding the traffic cameras, I think you are responsible for your car, unless it's reported stolen. Doesn't matter who is driving, just like a parking ticket, it's your responsibility as the owner of the car.

Let's say a friend borrows my chainsaw because he wants to cut down some trees in his backyard. He gets into a fight with his wife and kills her using my chainsaw. Am I responsible for what he did with my chainsaw?

Over here when one of those traffic cameras takes a picture of your car, you get a letter in the mail telling you the camera recorded a traffic violation. Attached to the letter is a form. You then have 3 options:
- do nothing and wait for the follow up letter that'll tell you how much you need to pay.
- fill out the form telling them you refuse to pay the fine and that you'll plead your case in court.
- fill out the form telling them it wasn't you who was driving the car at that moment in time. The cops will then go after the guy who according to your statement was driving the car. If he denies he was driving, an investigation will follow.

So you're not automatically responsible for what people do using your property.

[Barry-xlovecam]

Originally Posted by Quentin

[ i]t makes a big difference to the court in these copyright cases whether the plaintiff(s) appear to have any intent to actually litigate their claims. In the cases that Judge Brown was ruling and commenting on, it appears that he has not been persuaded that the plaintiffs intend to litigate; he thinks they are just fishing for the identity of people that they can enter into settlement negotiations with, and have no real intent to follow through with a lawsuit against any who do not settle.

Whether or not he's sympathetic to the plaintiffs' claims or the plight of their businesses that stems from widespread pirating of their content, a judge has to consider the court's interests, as well. At the end of the day, the court really isn't supposed to be merely a means by which plaintiffs can secure a list of possible defendants to pressure into settlements -- particularly if the court gets the sense that the plaintiff's plan does not include litigation, at all, and that the whole point of lumping defendants together in a single complaint is to avoid paying the court $350 per filing to go after each defendant individually. ...

This is the real reason -- the Plaintiff was "playing horse with the Court" and angered the Judge.

[uniquemkt]

In a past life I worked at a major ISP and among other things dealt with the FBI on CP and similar cases. In my experience, before the cops knock on the door, they had gathered data over a period of at least a few weeks to a) make sure they have the right guy and b) make sure they have enough evidence for a conviction.

[mikesouth]

while i agree with ray it should be remembered that the government has double standards that red light photo is plenty good enough when used against you, use the same scenario against the government and not only will it not hold up they will arrest you for doing it.

At one time judges weren't the puppets of the government that they are now

It is a damn shame what has become of freedom and the right to privacy in this country.

Im afraid the only way change will come now is through the barrel of a gun.

once you give up a freedom to government the only way you will ever get it back is you and like minded people are willing to die to get it back.

[garce]

Judge Brown probably has the single largest collection of underage homosexual incest porn on the face of the earth. Was he a Catholic altar boy, per chance?

[gideongallery]

Originally Posted by Jamie Gardner

I have been reading about Judge Gary Brown getting in the way of porn company lawsuits against people who download torrents of their movies. The judge is claiming that an IP address, by itself, is not sufficient to prove that a person downloaded a porn movie from a torrent. Brown says there is the possibility that other family members or visiters could have downloaded movies rather then the person who owns the IP address. If you go by his logic, should many cases of possession of child pornography be thrown out?

When child pornography is found on a computer, it is assumed that it's there because of the owner of the computer. On the TV show TO CATCH A PREDATOR, text messages were used as evidence that a person coming to a house intended to have sex with someone underage. According to the show, the crime already was committed whether the person shows up at the house or not. There was no video camera footage showing people typing and sending the messages. There were no witnesses to the messages being written. Most of the time, Chris Hansen was able to get people to confess to writing the messages. What if a person continued to deny writing the messages, despite the persistance of Chris Hansen?

You do realize the person showing up is confirmation

How did he know which house to go to unless they were in communication with the person.

despite the law making it illegal just to communicate no one gets convicted on just the text messages.

Chris Hansen doesn't go to the cell phone owners house and arrest the person, they wait for the person to show up.

Another thing that Judge Gary Brown's decision reminds me of is video cameras at red lights. The video cameras take pictures of the license plates of the cars. How do we know the owner of the car was driving it? It is possible that someone else could have borrowed the car, possibly without the owner's knowledge. A number of years ago, the big concern with the video cameras was that the timing of the lights was changed so that
more people would not get through before it turned red.

the camera system shows a lot more then just the licience plate

[Jamie Gardner]

Originally Posted by mikesouth

while i agree with ray it should be remembered that the government has double standards that red light photo is plenty good enough when used against you, use the same scenario against the government and not only will it not hold up they will arrest you for doing it.

On Fox News, John Stossel had a story about a woman who was arrested for videotaping the police. In contrast to what happened to her, there was a policeman who was encouraging people to videotape him doing his duties. The reason why the Rodney King beating became so well known is that someone videotaped the policemen beating him up. During the Chicago Democratic convention of 1968, police were filmed and photographed while they beat up protestors. Along with the protestors, people from the news media were beaten up by the police and their equipment attacked.

[pornguy]

Originally Posted by PR_Tom

Well when it comes to local storis of CP I can tell you that I've never heard of one that was based on IP alone. Usually the common element is police carting out usually a couple or few computers with content physically/digitally on them from the residence.

So I think the judge could be correct until there is more security. You know people sometimes have been known to drive around looking for hotspots, then park and do their online surfing using that open router, with "someone elses" IP showing all the while right? Not too good for identifying definitively.

I think his point is not arguing that the CP was on the computer, but arguing Who put it there.

The man gets arrested for it. Could it have been the wife? Or even the kid?

With the abilities of some viruses that are around today, and RDP working on windows units, I think this is going to take a big change in the near future.

And most likely not for the good.

[DamianJ]

Hoorah for yet ANOTHER judge seeing sense and realising an IP address /= a person.

[The Porn Nerd]

Never piss off a judge. Period.

[raymor]

Originally Posted by Barry-xlovecam

This is the real reason -- the Plaintiff was "playing horse with the Court" and angered the Judge.

Indeed. It seems that in previous cases when potential defendants did not settle, the plaintiff did not pursue legal action. The court reasoned it wasn't really a lawsuit since they didn't actually file against defendants. The Judge felt this was an abuse of process - subpoenas are supposed to be used for court cases, not for settlement demands that will not be followed up by a court case.

This is one reason that someone taking action regarding a related matter like unauthorized access via stolen passwords should sue in those few cases not resolved by a confidential settlement. Though 99% of thieves may pay a reasonable settlement that allows them to preserve their privacy, in the other 1% of cases the court wants to see that you're serious.

[DamianJ]

Originally Posted by raymor

This is one reason that someone taking action regarding a related matter like unauthorized access via stolen passwords should sue in those few cases not resolved by a confidential settlement. Though 99% of thieves may pay a reasonable settlement that allows them to preserve their privacy, in the other 1% of cases the court wants to see that you're serious.

I don't think a single case regarding IP fishing expeditions for torrents, or now for Steve's "password" campaign has ever gone to court. Certainly didn't in the UK where the scam was originated. And the lawyer involved has now been disbarred and fined. Rightly.