EFF, Public Citizen And ACLU Ask Judge To Quash Mass Subpoenas From US Copyright Group

from the standing-up-for-rights dept

Thu, Jun 3rd 2010 2:32pm — Mike Masnick

While companies like Verizon apparently won't stand up to protect their users' rights against the ridiculous and overly broad mass copyright infringement lawsuit filings made by a group called US Copyright Group (really a DC-based lawfirm called Dunlap, Grubb and Weaver), Time Warner Cable is pushing back, but mainly on procedural issues -- not in any way to stand up for the rights of those being sued. Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.

Those three organizations filed an amicus brief with the court in the Time Warner Cable case, where they point out that there are multiple reasons why the subpoenas should be quashed. Among the many problems with the process used by USCG are the ideas of suing thousands of people in a single lawsuit and all in Washington DC. Obviously, this makes it easier and cheaper for Dunlap, but it's not how the legal system is supposed to work. First, it only makes sense that each lawsuit should be filed individually, as each involves different circumstances. Second, they should be filed in the proper jurisdiction, not in DC. As the briefing notes:

This Court cannot consider this case unless it has personal jurisdiction over the Doe Defendants, and it is Plaintiff's burden to show that such jurisdiction exists. The Constitution imposes that burden on every plaintiff as a fundamental matter of fairness, recognizing that no defendant should be forced to have his rights and obligations determined in a jurisdiction with which he has had no contact. These requirements "give[ ] a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

Plaintiff has not met this burden. Instead, the very information upon which Plaintiff relies as a basis for seeking the identity of the Doe defendants -- their Internet Protocol (IP) addresses -- indicates that few, if any, reside in this District. If, as it appears, the vast majority of the Doe defendants do not have sufficient minimum contacts with this jurisdiction to satisfy due process, the Court should quash the subpoena for information about out-of-district defendants.

....

Requiring individuals from across the country to litigate in this District creates exactly the sort of hardship and unfairness that the personal jurisdiction requirements exist to prevent. It requires the individuals urgently to secure counsel far from home, where they are unlikely to have contacts. In this particular instance the hardship is very clear. When the underlying claim is a single count of copyright infringement, the cost of securing counsel even to defend a defendant's identity is likely more than the cost of settlement, and possibly even more than the cost of judgment if the Defendant lost in the litigation entirely.

As for lumping all of the lawsuits into a single filing, the brief shows that courts have rejected this approach in the past as unreasonable and should do so again here:

There is little doubt that Plaintiff's joinder of more than 4,500 defendants in this single action is improper and runs the tremendous risk of creating unfairness and denying individual justice to those sued. Mass joinder of individuals has been disapproved by federal courts in both the RIAA cases and elsewhere. As one court noted:
Comcast subscriber John Doe 1 could be an innocent parent whose internet access was abused by her minor child, while John Doe 2 might share a computer with a roommate who infringed Plaintiffs' works. John Does 3 through 203 could be thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs' property and depriving them, and their artists, of the royalties they are rightly owed. . . .

Wholesale litigation of these claims is inappropriate, at least with respect to a vast majority (if not all) of Defendants.
BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004) (severing lawsuit involving 203 defendants).

Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against them must arise from a single transaction or a series of closely related transactions. Specifically:
Persons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.
Fed. R. Civ. P. 20. Thus, multiple defendants may be joined in a single lawsuit only when three conditions are met: (1) the right to relief must be "asserted against them jointly, severally or in the alternative"; (2) the claim must "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences"; and (3) there must be a common question of fact or law common to all the defendants. Id.

Joinder based on separate but similar behavior by individuals allegedly using the Internet to commit copyright infringement has been rejected by courts across the country. In LaFace Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008), the court ordered severance of lawsuit against thirty-eight defendants where each defendant used the same ISP as well as some of the same peer-to-peer ("P2P") networks to commit the exact same violation of the law in exactly the same way. The court explained: "[M]erely committing the same type of violation in the same way does not link defendants together for purposes of joinder." LaFace Records, 2008 WL 544992, at *2. In BMG Music v. Does 1-4, No. 3:06-cv- 01579-MHP, 2006 U.S. Dist. LEXIS 53237, at *5-6 (N.D. Cal. July 31, 2006), the court sua sponte severed multiple defendants in action where the only connection between them was allegation they used same ISP to conduct copyright infringement.

The brief also takes issue with the evidence that Dunlap presents in the USCG filings:

Moreover, Plaintiff provides no specific evidence other than its summary declarations to establish that its investigation was done for each Doe. And such evidence ought to be readily available, including screen shots showing the IP addresses of the Doe defendants so the Court can see that the addresses submitted to the Court match those discovered during the investigation, copies or real-time capture of the activities of the "proprietary technologies" used, and shots of the P2P server logs that to which Plaintiff apparently had access. Without those, the declarations merely describe downloading activity in general, and fail to provide the Court with real information linking each of the individuals sued to the alleged infringement.

This is a big concern because Dunlap and USCG are seeking to reveal private information based on incredibly flimsy evidence:

Robust protection for the right to engage in anonymous communication -- to speak, read, view, listen, and/or associate anonymously -- is fundamental to a free society. See, e.g., Talley v. California, 362 U.S. 60 (1960) (recognizing the First Amendment right to communicate anonymously); McIntyre v Ohio Elections Comm'n, 514 U.S. 334 357 (1995) (same; "Anonymity is a shield from the tyranny of the majority."); Lamont v. Postmaster General, 381 U.S. 301 (1965) (recognizing the First Amendment right to receive ideas in privacy). This fundamental right enjoys the same protections whether the context for speech and association is an anonymous political leaflet, an Internet message board or a video-sharing site. See Reno v. ACLU, 521 U.S. 844, 870 (1997) (there is "no basis for qualifying the level of First Amendment scrutiny that should be applied to" the Internet).

Courts in this District have recognized that First Amendment protections extend to the anonymous publication of expressive works on the Internet even where, as here, that publication is alleged to infringe copyrights. In re Verizon Internet Servs. Inc., 257 F. Supp. 2d 244, 260 (D.D.C.), rev'd on other grounds, 351 F.3d 1229 (D.C. Cir. 2003) (hereinafter "Verizon"); see also UMG Recordings, Inc., v. Does, No. 06-0652 SBA, 2006 WL 1343597, at *2 (N.D. Ca. March 6, 2006) (citing Sony Music Entm't, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564 (S.D.N.Y. 2004)). As the court in Sony noted:
Arguably, however, a file sharer is making a statement by downloading and making available to others copyrighted music without charge and without license to do so. Alternatively, the file sharer may be expressing himself or herself through the music selected and made available to others. Although this is not "political expression" entitled to the "broadest protection" of the First Amendment, the file sharer's speech is still entitled to "some level of First Amendment protection."
326 F. Supp. 2d at 564 (quoting Verizon) (citations omitted). The Sony court continued: "Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns."

No one is arguing that a legitimately filed lawsuit shouldn't entitle USCG to get the right to an individual's information. The issue is that not nearly enough evidence is presented in these cases, and what is presented is done in a way that does not allow an individual to protect their First Amendment rights. This destroys the basic balance that the courts have established to permit such lawsuits to go forward.

The filing is an important one, and it's unfortunate that it had to come from three public interest groups rather than the ISPs themselves. In an email from Verizon PR, in response to a question on this issue from reporter Dave Burstein, Verizon PR gave the "we're just following orders" response, and tries to suggest it goes above and beyond by giving their customers a week or less of notification to fight this on their own. Verizon (and Time Warner Cable) could be making these same arguments on behalf of their customers, and it's a shame that they have not and, in fact, have handed over information on such flimsy proof in such questionably filed lawsuits.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, first amendment, jurisdiction, lawsuits, subpoenas
Companies: aclu, eff, public citizen, us copyright group

56 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

:Lobo Santo (profile), 3 Jun 2010 @ 2:47pm

Makes me wish...
If only I could afford to donate to these fine institutions which are standing up for liberty.
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 3:13pm

welcome to legal tiddly winks. you cannot have jurisdiction unless you know who they are, and you cannot know who they are until the court orders the records revealed. sorry, this one doesnt float. it would create a legal contradiction. either the isp is personally liable, or they should be obliged to disclose the user information to the courts. otherwise, you would have a black hole that would create more protected free speech and activity as an internet user than in public, which would be weird.
[ link to this | view in thread ]
Chryss, 3 Jun 2010 @ 3:17pm

Re:
Not entirely true. Through a whois, a general area in which an IP originates can be determined.
[ link to this | view in thread ]
:Lobo Santo (profile), 3 Jun 2010 @ 3:24pm

Re:
Shyah, seriously. Can't have more free speech, that would just be dumb. [/sarc]
[ link to this | view in thread ]
Ccomp5950 (profile), 3 Jun 2010 @ 3:35pm

Re:
Even still the joining of so many defendants is ridiculous and over burdensome of the legal system. Essentially the USCG screen scraped a bunch of IP addresses and expects to print out hundreds of pages of IP addresses for a court to sort through. Each defendant will have different reasons for quashing subpeonas and even then may be denied that right because ISP's lack a back bone. Expecting the court to trudge through each action like this is nothing more then a waste of tax payers money and time.

This is compounded by the fact that the evidence is flimsy, I can make a torrent tracker spoof my IP address but in doing so I won't be able to seed but because of the way torrents work I will be able to download and will show up in the logs of peers that USCG has collected. Anyone know the IP block for the RIAA?
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 3:41pm

Re:
Perhaps that imaginary contradiction could be alleviated by locating and using real evidence.
[ link to this | view in thread ]
Jeremy7600 (profile), 3 Jun 2010 @ 3:46pm

Re:
"a black hole that would create more protected free speech"

Wait, you have a problem with free speech? You like posting here on Techdirt, anonymously, don't you?

Otherwise, why would you be here, anonymously?
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 4:00pm

Re: Re:
not true. any ip block can be used almost anywhere. the recent shut down 3fn russian group was using "european" ip address on american servers, and the other way around. some isps have a presence in many states, and use the ip blocks in different ways at different times on their networks. while you might be able to glean some information, most often it is not that accurate, and certainly not accurate enough for the courts.
[ link to this | view in thread ]
jjmsan (profile), 3 Jun 2010 @ 4:01pm

Rules
The thing about playing by the rules is that everyone has to abide by them. You want the rule of law to apply to copyright? Fine, by the rules of law and evidence apply to you; even if they are expensive and onerous and difficult. If that makes it too expensive to run your business then time to find a different business.
[ link to this | view in thread ]
Chryss, 3 Jun 2010 @ 4:05pm

Re: Re: Re:
You just helped make the case the EFF and others are trying to make. The evidence is flimsy at best. What's to say the IP addresses weren't spoofed? Clearly they've gone through the tracker logs and separated out the US addresses from the rest in order to know whom to subpoena. They obviously are aware that location can be established - although there is a high probability that many of these IP owners had their wireless hijacked, IP spoofed, etc.

There is no reason that they shouldn't be first forced to file suits in the jurisdictions of each ISP to seek only the LOCATION of the IP holders and then seek subpoenas in their jurisdictions. These protections exist for a reason. Are you ready to sacrifice your rights just so a few can abuse the legal system in what amounts to little more than an extortion scam?
[ link to this | view in thread ]
Big Al, 3 Jun 2010 @ 4:13pm

Re:
You seem to have missed the main point here (as is usual for you).
The requests for court orders should be lodged per IP address, not as a single request for 4500 which effectively says you believe all 4500 are a 'gang' of related people.
Of course, if the requests had to be filed individually the costs would go up and the US Copyright Group's 'business model' would not be so lucrative...
[ link to this | view in thread ]
Uncle Joe, 3 Jun 2010 @ 4:28pm

Re: I wish I Could Come Up With A Subject
...more protected free speech and activity as an internet user than in public...

nah, freedom, anywhere, is overrated.
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 5:04pm

RIAA IP Address
76.74.24.200
I use it for my bitTorrents
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 5:06pm

Re: Re:
76.74.24.200 is for www.riaa.com
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 5:27pm

Re: Re: Re: Re:
no, i didnt say ip addresses can be spoofed, far from it. what i am saying is that whois information for ip blocks have nothing to do with the jurisdiction that they are used in. since the action is on the federal level, it isnt really meaningful.

spoofing had nothing to do with my comments, nor was i talking about spoofing.
[ link to this | view in thread ]
Rob, 3 Jun 2010 @ 5:37pm

Class action
Can the subscribers of, say, Time-Warner, bring a class action suite against Time-Warner to prevent the disclosure of information? Or against USCG?

Just a thought.
[ link to this | view in thread ]
Bubba Gump (profile), 3 Jun 2010 @ 6:05pm

Re: Re: Re: Re: Re:
AC is obviously in support of this extortion scam.
[ link to this | view in thread ]
FormerAC (profile), 3 Jun 2010 @ 6:14pm

I wonder ...
Telephone companies rolled over and gave up information without warrants in the name of national security. It shouldn't be a surprise when they roll over for an actual subpoenas.
[ link to this | view in thread ]
Mike Masnick (profile), 3 Jun 2010 @ 6:30pm

Re:
welcome to legal tiddly winks. you cannot have jurisdiction unless you know who they are, and you cannot know who they are until the court orders the records revealed. sorry, this one doesnt float.

I love it when you just pretend what the law says, in direct contradiction to what the law and the courts actually say, which is what is highlighted in the filing.

It's really entertaining.
[ link to this | view in thread ]
Hephaestus (profile), 3 Jun 2010 @ 6:36pm

Re: Re: Re:
Dude to funny ... do they have a proxy server? and what is its address? ... ;)
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 6:38pm

Re: Re: Re: Re: Re: Re:
it isnt extortion. if the people are not violating copyright, they dont have anything to worry about. if they think they are in the right, they can decline the offer of a pre-settlement and invite a lawsuit (and all that comes with it). you need to learn what extortion is.
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 6:41pm

Re: Re:
mike, really. do you not read what you post?

'This Court cannot consider this case unless it has personal jurisdiction over the Doe Defendants, and it is Plaintiff's burden to show that such jurisdiction exists. The Constitution imposes that burden on every plaintiff as a fundamental matter of fairness, recognizing that no defendant should be forced to have his rights and obligations determined in a jurisdiction with which he has had no contact. ' - combine that with the idea of an isp who is not willing to reveal client information, and what do you have? copyright holders with no way to 100% ascertain the jusrisdiction, and no cooperation from the people who can. you are the one telling them they should go to court to get user information, and when they go, they are getting told there is no jurisdiction. talk about circular legal logic.

so please, do explain why you think this is good (without linking to recent law school graduates).
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 6:53pm

Re: Re: Re: Re: Re: Re: Re:
"the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."

Sending threatening settlement letters with little to no proof that the person they are sending them to infringed on their clients copyright sure seems to fit that definition to me
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 7:08pm

Re: Re: Re: Re: Re: Re: Re:
Threatening potentially innocent people with a lawsuit that will inevitably cost more than the settlement offer is the DEFINITION of extortion. Sorry TAM, try again next time.
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 7:10pm

Re: Re: Re:
Feel free to offer counter-evidence to the numerous cited laws/rulings, TAM.

That would require you to actually have knowledge on the subjects you babble about, unfortunately.
[ link to this | view in thread ]
Hephaestus (profile), 3 Jun 2010 @ 7:17pm

Re: Re:
"I love it when you just pretend what the law says, in direct contradiction to what the law and the courts actually say, which is what is highlighted in the filing."

That is the nature of disinformation, repeated fictitious statements, and failing belief systems. Rationalization and attempting to repeat it so often it becomes fact to the rest of us. People are smarter than that
[ link to this | view in thread ]
Good idea, 3 Jun 2010 @ 7:20pm

Re: RIAA IP Address
"76.74.24.200
I use it for my bitTorrents"

How do you do this?
[ link to this | view in thread ]
Mike Masnick (profile), 3 Jun 2010 @ 7:43pm

Re: Re: Re:
combine that with the idea of an isp who is not willing to reveal client information, and what do you have? copyright holders with no way to 100% ascertain the jusrisdiction, and no cooperation from the people who can. you are the one telling them they should go to court to get user information, and when they go, they are getting told there is no jurisdiction. talk about circular legal logic.

The filing itself explains this in great detail. Your failure to actually read what the filing says, where it explains exactly what the plaintiff can do to meet its burden of proof is quite stunning.

so please, do explain why you think this is good (without linking to recent law school graduates).

Remind me again, where did you obtain your legal degree? Thanks.
[ link to this | view in thread ]
Hephaestus (profile), 3 Jun 2010 @ 7:43pm

Re: Re: Re:
AC - I have no idea who you are and do not care.

Time Warner should only supply the Jurisdiction of the IP address in question.

"The Constitution imposes that burden on every plaintiff as a fundamental matter of fairness, recognizing that no defendant should be forced to have his rights and obligations determined in a jurisdiction with which he has had no contact"

This prevents Time Warner from being held legally accountable to its subscribers. It also forces the plantiff to file in each jurisdiction, making this a no win situation financially for plantiff. It also prevents future repeats of the same types of Bull sh!t lawsuits.
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 8:01pm

Re: Re: Re: Re:
did i make any claim to a legal degree? no. just applying the same good common sense that you (non lawyer) apply to things. if you want to play that card, you need to stop posting legal entries in your blog.

"The filing itself explains this in great detail. Your failure to actually read what the filing says, where it explains exactly what the plaintiff can do to meet its burden of proof is quite stunning." - actually, it explains *in their opinion* what they think the plantiff should have to do. but read it closely, it is all but impossible to accomplish without the cooperation of the isp in question.
[ link to this | view in thread ]
Anonymous Coward, 3 Jun 2010 @ 8:20pm

Re: Re: Re: Re: Re:
TAM yet again fails to provide any actual details in support of his arguments. Unsurprising, considering vague generalities are much easier to come up with.
[ link to this | view in thread ]
RD, 3 Jun 2010 @ 8:24pm

Re: Re: Re:
"combine that with the idea of an isp who is not willing to reveal client information, and what do you have? copyright holders with no way to 100% ascertain the jusrisdiction,"

If you arent 100% sure of who has violated the law, or 100% that you even have the right person, you have no case. Thats the bitch about the law: you have to have enough proof and certainty. Too bad for your corporate butt buddies.
[ link to this | view in thread ]
RD, 3 Jun 2010 @ 8:29pm

Re: Re: Re: Re:
"so please, do explain why you think this is good (without linking to recent law school graduates).

Remind me again, where did you obtain your legal degree? Thanks."

bwahahahahahaha!! Owned like a fucking little BITCH! buh-bye now, you now have to STFU according to your OWN rules! hahahahaha!
[ link to this | view in thread ]
Mike Masnick (profile), 3 Jun 2010 @ 11:01pm

Re: Re: Re: Re: Re:
did i make any claim to a legal degree? no.

No, but you did demand that I only back up my argument with support from a lawyer. And, in fact, I did. The brief in question was filed by a well respected lawyer.

just applying the same good common sense that you (non lawyer) apply to things. if you want to play that card, you need to stop posting legal entries in your blog.

Son, you played the card. Not me. I just called you on it. I was not saying that you had to be a lawyer to discuss this. Just pointing out how ridiculous it is for you to claim I had to support my argument with a lawyer.

That you can't figure this out suggests, yet again, congenital reading comprehension problems on your part. Perhaps you should look into it.

actually, it explains *in their opinion* what they think the plantiff should have to do.

Heh. I see. So I can only support my position with the backing of a lawyer, and then when I do so, it doesn't count because it's that lawyer's opinion.

You are the master of logical inanity.

but read it closely, it is all but impossible to accomplish without the cooperation of the isp in question.

Again, as is stated both in the post and in the filing -- which you appear to have not read -- it is absolutely possible to present the requisite evidence for discovery. Your inability to read is not an excuse for bad logic. I would suggest, as I have in the past, that you take some time and carefully consider your thought process before posting further. I doubt you will take this advice.
[ link to this | view in thread ]
Anonymous Coward, 4 Jun 2010 @ 4:00am

Re: Re: Re: ACS:Law IP address
91.103.216.62 i think for ACS:Law
[ link to this | view in thread ]
Technopolitical (profile), 4 Jun 2010 @ 4:39am

Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.
MIKE:
"Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out. "

Me: As I think/hope you know Mike , , the ACLU & co, are arguing a civil liberties point that is tangential to the core case, but not really addressing the matters of that core case. they do that all the time . ( remember the Col. Ollie North case for example.)

I think that is an important point that you missed-- iF i read all correctly.
[ link to this | view in thread ]
Sneeje (profile), 4 Jun 2010 @ 5:14am

Re: Re: Re:
Well said. This is what frustrates so much about TAM--I don't care if he or others disagree, in fact, I'm very interested in different perspectives.

Unfortunately, he, technopolitical, etc. offer no thoughtful counterarguments. They only offer fallacious interpretations that literally ignore facts and logic. It worries me that there are people that don't see through their rhetorical tricks. If Mike said 2+2=4, TAM would still figure out some way to deflect and distract: Mike isn't a mathematician, not if we assume 2=3, there is no spoon, the cake is a lie, etc.

I'm convinced that TAM was not only a former lawyer, but also foreign counterintelligence.
[ link to this | view in thread ]
Christopher Weigel (profile), 4 Jun 2010 @ 6:30am

Re: Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.
Except that, in this case, said civil liberties point is absolutely essential to the USCG's way of doing business, and therefore to the core case as a whole.

Filing separate briefs in each defendant's home jurisdiction would make their approach non-profitable, so it's highly likely that should such a situation happen they'll not file on those who refuse to "settle".

Failure to do so, in turn, reveals this scheme as what it truly is: Extortion.

For that matter, it's hardly "tangential to the core case". What they're arguing is that the "core case" is a violation of basic civil liberties (which it is...) so it should be thrown out. It's hard to view a point that can result in the case being trashed as "tangential"... unless you're trying to dismiss it.
[ link to this | view in thread ]
kirillian (profile), 4 Jun 2010 @ 8:01am

Re: Re: Re:
Actually, sadly...some people are NOT smarter than that...
[ link to this | view in thread ]
SomeGuy (profile), 4 Jun 2010 @ 8:40am

Re: Re: Re: Re: Re: Re: Re:
if they think they are in the right, they can decline the offer of a pre-settlement and invite a lawsuit (and all that comes with it).

The "all that comes with it" bit is the clincher, because that includes legal fees, probably travel fees, lost productivity, etc and so on. For most people, that's enough to destroy them even if they're found not liable.
[ link to this | view in thread ]
SomeGuy (profile), 4 Jun 2010 @ 8:44am

Re: Re:
The point he had was more protection online than in public, not more protection period.

Though I'm still not sure what the problem with more pretection is, he's not quite as absurd as you're reading him.
[ link to this | view in thread ]
Richard (profile), 4 Jun 2010 @ 8:47am

Re: Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.
You're labouring under the illusion that USCG is interested in reducing piracy by prosecuting the guilty. They aren't. What they are trying to do is to make money out of piracy (rather like what the Pirate Bay is supposedly doing).

They key point is that they actually don't want to take anyone to court. The sister organisation in the UK (Davenport - Lyons - later ACS Law) does not seem to have taken anyone to court is several years of activity. See http://bit.ly/thehandbook for details.

Their business model is to scare large numbers of people into paying a moderate amount of money under the threat of legal action. Actually taking anyone to court is very expensive and would knock a big hole into their bottom line. Although the outcome might be bad for the defendant, it is unlikely that many would even be able to pay ACS law's costs and so ACS law would be losing money.

That is why they are making such efforts to do the initial court action (to discover the identities behind the IP addresses) in bulk. If they thought they would actually be taking the individuals to court with the final lawsuit then it the initial discovery action would be a small overhead on a much larger activity and so would not be a problem.

No, the fact is that this is all about cost minimisation in order that the can charge an affordable "settlement fee" and still make a profit. In fact they want to keep the sums of money small because they actually want piracy to continue. It is their revenue stream.

As you may no I'm not a fan of copyright or it's enforcement, but if I was then these peoples activities would have me hopping mad because they are:

1) Bringing copyright enforcement into disrepute.

2) Not doing anything effective to stop piracy. (Why would they - for them it is the goose that lays the golden egg).

3) Not bringing in significant revenue to rightholders. They mostly make money for themselves.
[ link to this | view in thread ]
Darryl, 4 Jun 2010 @ 9:01am

Finding the illegal file sharers is trivial, and accurate.
If you're used P2P networks, you know too well, that for each particular file, when you click on the download button, and the P2P software starts, then you can log specifically for that file, all the IP address of the seeders and leeches, for that file.

This is a list of every person who is either downloading the file, and uploading it at the same time, or have allready downloaded that file, and are seeding it for others.

The joiner here is that everyone of those IP address are taking the exact same product, as well as making that product available for others to take. (thats how P2P works).

Most p2p software will let you slowdown the upload rate but not turn it off completely, therefore if you're downloading the file you're uploading at as well, and you're IP is logged, and is available for all to see and log.

So if the product that was stolen is from D.C. Then the people who stole it took it originally from the source, ie, washington D.C.

So it makes sense to jointly charge these people for taking the same product from a specific location, from a specific company that owns the rights to that product.

And BTW: I did not know there was an upper limit on convicting criminals, what is the upper limit with bank robbery until there are too many to litigate.

And there is a thing called a "class action" where lots of people take action against one entity or person. There is also a requirement for "balance in the law", which means if you can get a large group litigating against one, you can get one litigating against many.

As for joining them, it will also be much cheaper for those that would be convicted, if they took it to trial, (which they all have the right to do). (everyone is entitled to their day in court).

But dont individually, would be very very damaging to those convicted, having to pay court costs for individual cases.

Most of these would be easily settled out of court, the way it should be, sending out letters, is just the wake up call, it's not a conviction, and if you are innocent, then you go to court and fight it, if you are guilty, then you face the music, and pay for you're crimes.

Thats how the system works, it does work, and it works in general very well.

As for parents and minors, it often the case that the guardian is responsible for the minors actions, therefore if little jonny is downloading the latest games and movies, and he gets busted, it's the guardians responsibility.

Most mature adults teach their children not to take things that are not yours. It's a good and simple rule.

And the other good thing to tech people is not to do things that are against other peoples wishes.

And ofcourse, dont break the law. thats always a good one, and it does not matter if you dont like the law or not, as long as it is the law, dont break it.

so simple, most dont have any trouble living their entire lives and not breaking any of those simples rules to any great degree, (ofcourse, sometimes you have to do things that other people dont like, but you should never do it "just" because they dont like it.

It's common sense and common morals. and most copy very well abiding by these simple rules.

ofcourse., our entire human society and structure is based on "reward when reward is due", That means you pay for what you get, if someone does something for you, or provides a product or service you use, you pay them for that. You reward them for their work. (when reward is due).

It could be money, it could be fame, it could be being elected, or promoted, they are all "rewards when rewards are due".

It could be rewarding the local supermarket for providing you with food to eat.

Or it might be a purchase of a CD or a movie ticket, as a reward for some effort.

what is not right is using something to you're advantage and not providing reward when reward is due. That is considered immoral, to the point where it is also inshrined in law, scriptures, and human morality.

so if someone invents something that makes my life better for some reason, I am happy to reward that person for their contribution, whereas someone who takes that invention, and does nothing but provide it for a cheaper price, does not deserve any form of reward.

It's like giving a bank robber a cash bonus for stealing more money than any other bank robber, and taking that cash bonus out of you're bank account !.

Society does not reward crime, and the law does not wish to promote crime, in this the law is following the moral inclination of the people.

People in general dont like having their things, ideas, or inventions stolen, just as they dont like their wallet stolen. And the laws reflect this moral objection the theft.

That is why there are laws restriction where you can go, what dores you can open, what places you can enter, just as there are laws stopping you taking non-tangable items, such as personal identity, bank account numbers, pin numbers, software, movies, pictures, music, books.

People who own those assets (the right to copy and sell their product), like the company that makes and sells car parts has to right to ensure security of thier product, so locks, guards, and laws stopping you from entering places you should not and have no right to be. is a crime.

Dont take things that are not yours is a basic human tenant, it's a part of the law, it's a strong part of human morals, and it's inshrined deeply also in religion.

So no matter how you want to look at it, "dont take what is not yours to take" is enough for most people, some people require more incentive, such as locks and laws, but most dont need them. And can be trusted.

Locks only keep honest people from making a mistake, the difference between an honest person and a theif is that when an honest person sees a lock, he says, "they dont want me in there" so they dont go any further, the theif says "i wonder what goodies are behind that lock?".

Defeats the lock and commits a crime.
[ link to this | view in thread ]
Anonymous Coward, 4 Jun 2010 @ 9:15am

Re: Re: Re: Re: Re: Re: Re: Re:
sorry, but your assumption is that the people are innocent. they arent selected at random, they are spotted online infringing. that makes the rest of your opinion moot.
[ link to this | view in thread ]
harbingerofdoom (profile), 4 Jun 2010 @ 9:18am

Re: Re: Re: Re:
first, the cake is a lie... no doubt about it.

second, it doesnt worry me that there are people out there like that... if media has taught us anything its that the world actually does need that useless third such as telephone sanitizers.
my real concern is that somehow that useless third has figured out a way to get themselves to the higest level of corporate offices, legal practice and elected government.
quite honestly it scares the s**t out of me.

we need stupid people, but we need them digging ditches, not placed in leadership positions where they can hold society back.
[ link to this | view in thread ]
Fushta, 4 Jun 2010 @ 9:29am

Re: Re: Re: Re:
Actually, 2+2=5 (for large values of 2...in which case, 2+2=6 for very large values of 2.)
[ link to this | view in thread ]
Fushta, 4 Jun 2010 @ 9:50am

Re: Finding the illegal file sharers is trivial, and accurate.
TLDR
also, please don't compare bank robbery (criminal offense) with copyright infringement (civil offense). it is offensive to me.
[ link to this | view in thread ]
weneedhelp (profile), 4 Jun 2010 @ 9:56am

Re: Re: Re: Re: Re: RD is p0ned
"Owned like a fucking little BITCH! buh-bye now, you now have to STFU according to your OWN rules! hahahahaha!"
What are you like 12?

Go away little girl, the adults have things to discuss you will never understand.

And yet again, it appears as if the educational system in this country has failed another child. poor poor RD. If only she used her internet connection for something useful.
[ link to this | view in thread ]
Anonymous Coward, 4 Jun 2010 @ 10:16am

Re: Finding the illegal file sharers is trivial, and accurate.
Tealdeer burps up its filling meal of presumption and lack of basic situational understanding.

Accusation =/= guilt.
Infringement =/= theft.
IP address =/= proof.
[ link to this | view in thread ]
The Infamous Joe (profile), 4 Jun 2010 @ 1:10pm

Re: Finding the illegal file sharers is trivial, and accurate.
and if you are innocent, then you go to court and fight it

..and who pays for that? Who takes time off work for that? Who has to pay to fly out to where the court case is held?

We don't all have jobs that keep paying us for one project for 70+ years after we die.
[ link to this | view in thread ]
Darryl, 4 Jun 2010 @ 8:33pm

@ Fusha
"TLDR

also, please don't compare bank robbery (criminal offense) with copyright infringement (civil offense). it is offensive to me."

Then your delicate sensibilities are going to more offended when you learn that some copyright offences are most certainly criminal offenses.

And you would be also upset to know, that the only difference between civil action and criminal action is one is action taken by the state, (police, governments etc) and civil action is done by "the people".

It's really just a matter of who pressed the charges, civil punishments can be just as severe as criminal charges.

And to put forward the concept that if it's only a civil crime and not a criminal action by the state is somehow 'better' or more honest.

It's not, and stating that it is, is offensive to me :)

But nice try, pull out the old strawman argument, that is "civil so it's ok to break the law".

It's just as non-logical to state that "if enough people do it, it's ok" or to suggest there should be some magical number that represents the total number you can take action against, that have BROKEN THE LAW.

The law comes first, then the act against the law, (the crime), then the determination of the nature of the crime, and the suitable punishment for breaking that law.

Being 'civil' or 'criminal' or "federal" of "district" it does not matter, the fact is you are in breach of the laws, and if found guilty will be punushed by the law.

Trying to downplay breaking the law by saying it's "civil" so it's ok, you should know better. It's clear to see where you're moral compass is pointing !
[ link to this | view in thread ]
Anonymous Coward, 5 Jun 2010 @ 3:26pm

Re: Finding the illegal file sharers is trivial, and accurate.
Dont take things that are not yours is a basic human tenant, it's a part of the law, it's a strong part of human morals, and it's inshrined deeply also in religion.

I think maybe you need to study morals and religion a little more before making such statements. So you think it is illegal, immoral and against "religion" to freely share copies of things with other people? Perhaps you've never heard the story of the religious man who made copies of some fish and loaves of bread and shared them with a crowd that had gathered to hear him preach. His name was Jesus. In your greed for money you have characterized Jesus himself as an immoral criminal. I think you should seriously reconsider your position while you still can. Remember, Jesus said that a camel could more easily pass through the eye of a needle than a rich man could get into heaven.
[ link to this | view in thread ]
corberlaw (profile), 5 Jun 2010 @ 5:59pm

the destruction of he constitution
Truly surprising that attorneys who have pledged to uphold the constitution would seek to destroy th first amendment rights found in that constituion. The founding father never envisioned that their copyright provision would destroy their first amendment provision.

Send USCG back to law school and hold them for detention.
[ link to this | view in thread ]
Anonymous Coward, 5 Jun 2010 @ 9:35pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
TAM doesn't know what the world "potentially" means. Amusing.
[ link to this | view in thread ]
Carl Hungus (profile), 17 Jun 2010 @ 4:47am

Re: @ Fusha
"And you would be also upset to know, that the only difference between civil action and criminal action is one is action taken by the state, (police, governments etc) and civil action is done by "the people". "

Gee, I'm not a lawyer, but you have no understanding of the difference. What about:
A) One returns verdicts (guilty/NG); the other returns civil judgements for liability (go ahead: tell me the difference is trivial)
B) One sends you to prison/jail or gives you fines; the other, again, results in judgements that may not carry any financial burden
C) Completely different rules of procedure
D) Completely different evidentiary standards (reasonable doubt vs preponderance of the evidence)
E) One operates under your constitutional protection under the full Bill of Rights; the other doesn't (go ahead: try to tell me the 4th/5th Amendments mean shit when you're in civil court)
F) One gets you a lawyer if you can't afford one; the other doesn't (oh yeah, just anybody can cough up $10,000 to defend themselves from this bullshit)
G) One allows greedy lawyers to file mass lawsuits, bypassing legislative intention, in order to generate a revenue stream
H) One is a crime; the other is not (go ahead: tell me the difference is trivial)

Moral compass? You're right, it's perfectly right and just that we should bankrupt 19 year-olds to the tune of $150,000 for sharing a $0.99 song simply because, well, it's the LAW. I think your moral compass was left on the short bus. You're a fucking idiot.
[ link to this | view in thread ]
Carl Hungus (profile), 17 Jun 2010 @ 4:53am

Re: the destruction of he constitution
Founding father? I'm not sure who he was, but I doubt he had anything to do with copyright law.

IP law was designed by lawyers for exactly the purpose by which it is being abused. Seems these guys were smarter than I gave them credit for.
[ link to this | view in thread ]