Another ISP Fighting US Copyright Group Subpoenas; Why Aren't More ISPs Protecting Your Privacy?
from the unfortunate dept
With US Copyright Group filing tens of thousands of lawsuits against people accused of sharing movies like Hurt Locker online, we've been disappointed that many ISPs don't seem willing to stand up for their subscribers' rights, and are willing to hand over names without a thought. Time Warner Cable fought the subpoenas, but its main concern was the volume, not the concept. However, a small ISP in South Dakota, Midcontinent Communications is also asking for the subpoenas to be quashed, noting that its privacy policies say that it cannot hand out customer information to third parties without a court order. It also questions how it can be covered by the jurisdiction of a Washington DC court.Bravo to Midcontinent Communications for actually standing up for its users. But, the real story here is why other ISPs are not doing this? This should be how pretty much any ISP responds to questionable subpoenas of this nature.
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Filed Under: copyright, isps, privacy, subpoenas
Companies: midcontinent communications, time warner cable, us copyright group
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"We respect our customers' privacy...unless paid appropriately"?
"Tom Simmons, a spokesman for Midcontinent, said Friday that his company is objecting to this partly because Voltage hasn't offered to compensate the company for expenses related to looking up IP addresses and because the request puts an undue burden on the company. But Midcontinent is most concerned with protecting customer privacy, Simmons said."
http://news.cnet.com/8301-31001_3-20014970-261.html?part=rss&subj=news&tag=2547-1_3- 0-20
Hmmm, I wonder how strong the concern for protecting customer privacy would have been if Voltage had agreed to compensate Midcontinent.
Also, pardon my ignorance on this topic, but why do ISPs keep records in the first place which would link an IP address to a specific customer? Unless this is mandated by law, wouldn't it be easier to just not log this information at all? I know there are probably legitimate technical hurdles to this, but if I were running an ISP, I'd want to be in a position where, if asked for the personal information associated to an IP address, I could honestly say "Sorry, we don't have that information."
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Re: "We respect our customers' privacy...unless paid appropriately"?
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Well, first off, if you have a truly unlimited plan, you don't need to track bandwidth usage. Secondly, surely there's a way to track bandwidth usage of the user and not of the public IP address.
also, I believe there are Federal laws mandating they keep logs for so many years.
I'm sure you're right, but I wonder if you got down into the specifics of the law, there wouldn't be some loophole that, if you were an ISP really interested in privacy, you could avoid storing identifying information.
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Until the consumers/customers start getting angry and telling these people "If you comply with these things, I am going to take my business elsewhere out of sheer principle!" things are not going to change!
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People in the U.S. don't have alternatives, most people are trapped in a exclusive area/building plan or just don't have another option.
That is one reason probably the ISP's don't care they will not loose anyone they don't risk loosing anything even if people get mad.
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As to your larger point, Mike has been saying for years that it's competition that would rectify this, not net neutrality laws that will be influenced by entrenched concerns.
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And yeah, I've read Mike's thoughts on broadband competition, and totally agree, though I don't see it happening any time soon. We can't even get FIOS in DC, which would at least make Comcast work a little harder.
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Net Neutrality was just one move, not the end of the game.
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Comcast policy
"We make every reasonable effort to protect subscriber privacy as described in this notice. Nevertheless, we may be required by law to disclose personally identifiable information or individually identifiable CPNI about a subscriber. These disclosures may be made with or without the subscriber’s consent, and with or without notice, in compliance with the terms of valid legal process such as a subpoena, court order, or search warrant.
For subscribers to our high-speed Internet and phone services, the Cable Act requires Comcast to disclose personally identifiable information and individually identifiable CPNI to a private third party in response to a court order, and we are required to notify the subscriber of the court order. The Cable Act requires us to disclose personally identifiable information and individually identifiable CPNI about subscribers to high-speed Internet and phone services to a government entity in response to a subpoena, court order, or search warrant, for example. We are usually prohibited from notifying the subscriber of any disclosure of personally identifiable information to a government entity by the terms of the subpoena, court order, or search warrant."
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What is missing is the renew part, there is no renewing on the market inside the U.S. and that will cost dearly.
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Just what rights would ISPs be standing up for? The right to infringe on other people's copyrights?
I've read the motion to quash, and in this specific case, it does appear that the subpoena isn't proper. What does this have to do with subpoenas in other cases? On what basis would an ISP object to a motion to quash if the subpoena was properly issued?
Jesus, Mike, how do you get it wrong so often? I truly wonder.
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Or - assume that you (as a military dictator) wish to find out who might be plotting against you. How are you supposed to do it without torturing and murdering people?
The point is that if you make bad assumptions you'll get bad conclusions.
When copyright law was invented your question was fairly easy to answer without requiring oppressive enforcement.
Printing equipment was large and difficult to hide. Infringement without mass distribution for money was inconceivable because of the high cost of the process.
Now technology has changed and this law cannot be enforced without a police state. Logic says the laws has to go - or at least be changed radically.
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Further, saying that it is right to abuse the law because no judge, lawyer, or congress has changed it is foolish. It weakens your argument.
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The most recent changes to the laws are to make the penalties steeper. This indicates to me that Congress wants to crack down on infringement, no lighten up on it.
I never said it's right to abuse the law. The ones abusing the law are the infringers. The law makes that very clear.
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Also, try not to confuse money and lobbying power with justice.
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Sometime the law is about justice - but at other times it is about power.
If you want to live in the society that will be the outcome of this trend then you can of course support it, but I advise you to examine the consequences before you do.
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Not because it is so rampant - but rather because the measures needed are so oppressive. It is not the amount of infringing traffic that is the problem - it is the amount of innocent traffic that has to be snooped on in order to find it.
Your problem is that you believe that the ends justify the means.
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That isn't the balance I'm concerned about. I'm concerned about the balance between rights holders and innocent 3rd parties. I think that balance has to be struck strongly in favour of the third parties.
You will of course protest about the rightsholders plight - but the point is that there really is no solution to their problems in that direction. If enforcement against current methods of piracy (bittorrent) ever became effective then all that would happen is that piracy would just move to the next more secure/private platform and carry on as before. Freenet is up and running. All it needs is to be needed - and it will take off. This is just a continuation of the process that started with Napster and progressed through Kazaa and others to bit torrent. The important point is that, although each stage in the process makes piracy less convenient it also makes anti-piracy measures more expensive. The rightsholders are thus bound to lose in the end unless they can can persuade the government to force the 80% of the population who are neither rightsholders nor infringers to pay the bill.
I see very little thought about the rights holders in these comment sections. It really makes me wonder about the values of those posting here.
On the contrary there is plenty of thought here about rights holders (or at least about content creators and the subset of middlemen who perform a useful function).
We are thinking of ways that they can continue to create and earn a living without turning the country into a police state.
What I don't see in your comments is much concern for reality, you seem to believe that the law and the actions of one particular legistlature (the US one) should be the standard against which opinions are judged - whereas most of us prefer the laws of physics and economics.
The values I see from most commenters are based on a respect for reality and morality.
Until you accept that basic human morality as laid out in the Sermon on the Mount should trump the law and that physics and economics inevitably do trump the law. then your opinions will always clash with most commenters here.
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Most of what I've posted in this thread is just my understanding of how these things play out in court and not my personal opinion. I'm get a lot of hostility for just telling it like it is, but I don't really mind.
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I don't think in a case where there is one "infringer" at question is the problem. They are asking for thousands of peoples names so that they can sue them based on nothing more than an acusation. Don't they need some kind of court order to force the isp's to hand over all their customer data? If not, why not just say everyone is an "infringer" and sue the whole world while your at it? Hell we could extort the entire planet, even if only 1% pony up the extortion money on our make shift website, we would be rich!
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See how silly it gets? And how quickly it gets there?
Maybe it makes sense to AJ but I daresay it doesn't to anyone else.
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Personally, I like to understand both sides of an argument, but you do what you want.
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And you're right. The IP address only gives them the name and address of someone they suspect and are ready to accuse of being an infringer without much, if any, evidence to back up the suspicion or accusation.
One example, you and your partner are foster parents and are currently fostering, say, 5 children all of whom have access to one or another computing device.
I'm average_joe and I feel you've infringed on my world renowned dissertation about how to legally flatten copyright infringers by running them over with the tracks of a D-9 cat and a M-1 tank. (Don't take that too seriously average_joe, if you can manage it.) Not only has someone at that address with that ISP done that but they must have somehow gotten the bound, full colour version of the dissertation complete with appendix, supporting case law back to Pliny the Elder and illustrations of his proposed device which he as also submitted to the USPTO. It's been posted on Techdirty of all places! Smarmy blogger Mike!
Now there are 7 people having access to machines at that IP and at that address not counting war divers who land on the WiFi all day long.
Now, this has to be a reasonable inference that you are the sole and only "guilty" party at that location because, in his world, he needs nothing else to slap you across the face with a lawsuit. And, somehow, having assumed that he further assumes that somewhere along the line the English presumption of innocence has become the Continental presumption of guilt in the United States. The lawsuit doesn't even have to include any detail on just what the heck it is you are presumed to have violated.
One small problem. No one was home that day and the wifi was turned off though the modem was left running with all the computing devices save one, attached to the alarm system, were turned off. You even have clear cut evidence that no one was there because you and the family were at an event where one of the foster children was being honoured for the fact that her scholastic achievement has skyrocketed from perennial F student to the honour roll in one year. You know. Photos, a couple of hundred eye witnesses and so on.
Thing is that in filing for the subpeona he reversed two characters in the last octet of the IP address. Totally inadverently of course.
And as you discovered when you returned home someone had tried to break in and the alarm had gone off sending grainy still and video shots of the alleged B&E "artist" who tried to jimmy the shop door thereby attracting the attention of the territorial great dane you have who angrily took exception to his presence on the dog's property.
The person with the real IP address turns out to be someone one state over with the same ISP. He and average_joe, both now articling at the RIAA, had gotten into a bar room brawl over one of the finer points of intellectual property law so this is the guy that downloaded and spread the stuff in a fit of rage after he was released from hospital with a broken nose and shattered gold tooth.
Remember, though, that he had a reasonable inference even after he received the information back again to have the barest of slightest of suspected "evidence" that it was you and insisted on taking you to court. Moments before the case was called average_joe is suddenly confronted with the screw up and drops the case though for months he and his employer have been having a field day at your (so far unnamed) expense all over the Interwebs.
It may make sense to average_joe and a court clerk or magistrate who will sign any subpeona request that comes their way late in the afternoon before heading off the the Jolly Barrister's Bar and Grille for a burger and beer for supper.
No harm done. Right? All quite reasonable. Right? All very real world, right?
Well no, because in the REAL real world that's not how the Internet works or has ever worked or is likely to ever work, average_joe's fevered imagining or not.
Again, I deeply apologize for the mix up and the insult it must have been for you.
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How do you propose we enforce this?
Some laws are not easy to enforce and should have been looked at harder before making those laws.
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So you think it makes sense to make a law that you know in advance cannot be enforced?
I'm afraid that line of reasoning was debunked over a thousand years ago by Cnut.
"Henry of Huntingdon, the 12th-century chronicler, tells how Cnut set his throne by the sea shore and commanded the tide to halt and not wet his feet and robes; but the tide failed to stop. According to Henry, Cnut leapt backwards and said "Let all men know how empty and worthless is the power of kings, for there is none worthy of the name, but He whom heaven, earth, and sea obey by eternal laws." He then hung his gold crown on a crucifix, and never wore it again.[88]"
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this really isn't (and never was) a legal matter, it is an economic matter. People don't need a middle man to make copies for them. It isn't the general public's fault that creators tired their profits directly to the middle men's profits. A new business model is needed, not new laws. Of course, no one here expects you to believe that, as it is in your best interests to keep it a legal matter.
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Even with an IP number doesn't identify an individual only a location. Hell, it doesn't identify a human being!
How else would they know? They don't even with that.
Got a better way? Sure, how about a little (more expensive) research before unleashing the legal hounds of war?
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It doesn't create a reasonable inference at all except in the minds of the stupid, average_joe, which you apparently are.
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I'm not sure why my pointing out how the real world works upsets you guys so much.
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I strongly suspect that because the issuing of John Doe subpoenas hasn't been well tested in these cases that, in the end, a court will understand and rule that an IP address doesn't create any sort of reasonable inference other than and address. Maybe. It certainly, in the real world, doesn't point it's finger at the responsible individual.
At times the real world doesn't agree with the legal world about how the real world works. It takes time but eventually it's an argument the REAL real world wins all the time.
Unless, of course, it's a third rate student, apparently, who does nothing more that spout off expressions and spin of the recording and movie industry as you do. Not very well, either.
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Now I'm "third rate"? LOL! You haven't let reality guide you in any of your other opinions that I've read. Why start now?
What I'm talking about is how things really work in the real world. Why does that upset you so?
I know you don't know about the things that I'm talking about. You can choose to learn something new, or you can choose to brush it off. I don't really care either way.
You strike me as one of the most vocal yet uniformed people I've ever met on the 'net. Congrats!
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Right to Privacy - 4th Amendment
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There are some very serious arguments to the contrary. I believe I've recommended the book "No Law" to you, as it makes a rather compelling case that copyright law, as it stands today, is a huge violation of the First Amendment.
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And I believe here that the 6th amendement would come into play: the right to confront your accuser?
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It's time time wake up and start making money from this instead of pouring money into the black hole.
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Excellent rebuttal.
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Not as much as they would if they were selling it totally offline or if the internet didn't exist, but a good bit.
The thing that the internet allows you to do is "Try before buy", which a lot of people are really whining about. They don't like that people are trying their music or movies, finding out that they are crap, and then not buying them.
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I think this has been shared with you before, AJ. But, for your reference, the rights an ISP would be standing up for by refusing to hand over personal information would be our Fourth Amendment rights in the U.S.
The problem with the "guilt by IP address en masse" method, is that IP addresses can be shared, hijacked and even spoofed. By initiating these area-of-effect lawsuits, they are going to fuck at least a few innocent people every time. The innocent have much less chance at proving their innocence when they are addressed by the court as a herd of cattle.
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How am I ignoring evidence?
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...unless the filing lawyers ask for unreasonable search and seizure, which seems to be the case when they ask for identities without substantiation or court order.
No, in this case, Wikipedia "just made stuff up". Oh, also in this case, the The U.S. Constitution is also "just making stuff up".
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This is not correct. Several Ammendments - such as the First - do specify in their language that they are restrictions upon what government bodies can do, but not this one. It's wording is very plain:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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How about any civil case other than a civil forfeiture proceeding?
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Privacy rights? Not important to you? Wow.
No one is saying that users have a right to infringe, and you know it. It's ridiculous for you to even suggest that. But simply giving an IP address and demanding your identifying information in a mass lawsuit is a huge privacy violation.
Jesus, Mike, how do you get it wrong so often? I truly wonder.
Heh. When in doubt resort to misguided insults. Classy.
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So you think privacy rights trump the rights of copyright holders? Can you find a single court that agrees with your assessment?
And why does the number of defendants matter so much? What's the difference rights-wise if they file one big lawsuit or several individual suits?
Misguided? You really don't ever see how wrong you are, do you? It's not misguided at all to point out your mistakes.
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You regularly make appeals to authority without specific example to back your counter claims.
Even worse, you are now acting as if you have repeatedly shown Mike to be wrong. I have seen no instance of this.
So I demand citations from you.
tl:dr - CITATIONS NAO!!!11
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Fancy that.
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Figures
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You said, quite clearly, that the only rights ISPs might be standing up for were rights to infringe on copyrights.
Since you ignored privacy rights, I assumed -- quite reasonably, I believe -- that you do not support privacy rights.
And why does the number of defendants matter so much? What's the difference rights-wise if they file one big lawsuit or several individual suits?
Lawsuits that unfairly link together totally disparate acts are unfair to the defendants as it is more difficult to defend themselves. Don't they teach this stuff in law school?
Misguided? You really don't ever see how wrong you are, do you? It's not misguided at all to point out your mistakes.
I have not made a mistake. You disagree with my opinion. Learn the difference, and you might come across as a little more interesting rather than a law student who just discovered copyright law.
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You seem quite convinced that a copyright holder's suspicions of infringement, a civil not criminal act, trump the right to privacy. Based, mostly on that an IP address is assigned to household A and was assigned to that household when the suspected infringement took place. I'm kinda sure that such a claim wouldn't hold water in a civil or criminal court. Suspicion is not admissible evidence. Given the weakness of IP assignment tracing at the best of times there is little more than suspicion at play here based on very flimsy information.
Let's see how that stands up against a claim of legally protected privacy.
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Do some homework yourself if you want to learn more.
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That hasn't stopped copyright holders from trying to go after suspected infringers it's just forced them to do a little more research on the subject before they waste the courts time. Thankfully in civil law "John Doe" subpoenas in Canada aren't allowed. The closest you get is "John Smith et al" and as the plaintiff you had better have the "et al" sorted out before John Smith ends up in court or you've lost.
I seem to have had more experience in the civil legal system in my life than you have even if it's in a different country. In many ways our systems are parallel so it's damned good chance that a law company fighting an infringer would have a hard time getting a judge to enforce based on suspicion given the evidence is an IP address and less than that if it's an address inhabited by more than one person.
Even on suspicion alone without corroborating evidence of date, time, which files and so on you have nothing that trumps the right to privacy.
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I'm not sure how you've decided you know more about copyright infringement in the US than me. As far as I can tell, you know absolutely nothing about it and you've never read any case law.
But hey, whatever makes you feel good.
If you want to look at the factors that a court looks at to determine if the subpoena is good in an infringement case, see, e.g, Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004).
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You don't think it's a good idea for ISPs to stand up for their users' privacy in the face of mass automated copyright filings based on little evidence? I'm glad you don't run an ISP.
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I just think there are no viable arguments to be made in such infringement cases by the ISP if the subpoena is valid. Not privacy arguments anyways.
I've researched this specific issue and come up empty. Lots of arguments have been tried. All failed.
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Is Clear actually a viable alternative?
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Why?
More ISPs do not take a similar approach, however, because fighting the subpoenas can have substantial monetary costs, and it usually costs quite a bit more to fight the subpoena than it does to simply comply with the subpoena or discovery request. This analysis becomes even easier for the ISP when considering that many (but not all) states have laws that limit liability as a result of complying with third-party discovery requests or subpoenas.
Yasha Heidari
Attorney-at-Law
www.heidariplank.com
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Re: Why?
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Re: Re: Re: Re: Why?
Clearly the best option for the ISPs is what most of them are actually doing - which is to fight the subpoena in every possible way short of actually opposing it directly. This means making life as awkward and expensive as possible for the plaintiffs and introducing any delay in the process that they can.
If US law is like UK law then they will be able to recover the cost of compliance from the plaintiff later, and be immune from prosecution themselves, provided that they maintain some kind plausible compliance. On the other hand they also want to reassure their customers by not just obviously caving in.
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I wonder why Time Warner can only do 28 lookups per month? LOL!
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Ah, the rule of law. If we got a demand for the details on thousands of IP addresses based on very weak evidence, you better damn well believe we'd stand up for our users in court before just handing them over.
I find it slightly disturbing that you don't think companies should stand up for their users.
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The fact that refusing to provide the information doesn't seem to have resulted in further action in cases it has been refused tells me that the subpoena is based on legally dubious merits. Mostly they appear to have been dropped.
Oh, as you don't sound like any average_joe or average_josephine I've ever met may I inquire as to who you're employed by and your relationship to this issue?
I ask only to clarify as I've seen these sorts of arguments in the past from people who are, later, clearly linked to organizations and/or corporate entities clearly interested in nothing more than maximizing copyright "protection" for their own good and rarely for the group that are loosely called "creators" by such institutions.
I won't hold my breath waiting for a response as, when challenged, like those I reference in the previous two paragraphs you fall silent or try change the subject.
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It is becoming clear that no matter what logic is shown to you, you will stick to your guns out of stubbornness. You have aspirations of becoming an IP lawyer, I bet.
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It is becoming clear that no matter what logic is shown to you, you will stick to your guns out of stubbornness. You have aspirations of becoming an IP lawyer, I bet.
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Re: Re: Re: Re: Re: Re: Re: Why?
Do you think the legal system should just shrug its shoulders whenever a defendant uses the internet?
This stuff is really trivial. Courts do it all the time.
I'm sorry if my explaining to you how the real world works means I'm stubborn. I don't see how it does, though.
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Lawsuits against John Doe's go to trial all the time. These subpoenas are not for the purpose of going to trial, they are for the purpose of sending the "pre-settlement (AKA Extortion)" letters. These guys absolutely do NOT want to go to trial. and if you think otherwise, you're as deluded as the IAA's that you're so staunchly defending.
THAT is what's happening in the real world.
In your idyllic little world, if you were served a subpoena for something, you just roll over and comply without even considering whether it's justified. Why bother with annoying things like trials?
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Why?
Subpoenas may lead to a settlement offer and not a trial, but that fact is also immaterial as to whether or not the subpoena can be successfully challenged in court.
My world is a pragmatic one. I don't see the point in trying to fight a subpoena if I know my arguments are completely futile. I'm sure attorneys would be happy to file such useless motions, but I don't see the point.
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Um, no, they haven't:
According to Thomas Dunlap, a lawyer at the firm, the program captures IP addresses based on the time stamp that a download has occurred and then checks against a spreadsheet to make sure the downloading content is the copyright protected film and not a misnamed film or trailer.
- New Litigation Campaign Quietly Targets Tens Of Thousands Of Movie Downloaders
The USCG did not download anything, nor verify that the file was actually their content (other than by checking the filename against a spreadsheet).
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I wouldn't rely on a news article for this info--go to the source.
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Where did you get your info?
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Two of my web references were from the plaintiffs themselves - U.S. Copyright Group, and (more importantly) GuardaLey's websites.
The other was by a security group called CSS, which is totally gone now. I don't know why. (Lawsuit, maybe?)
In all those cases, the technology was described exactly as I presented it. GuardiaLey's tech is basically a modified BitTorrent client that keeps a log of IP addresses and timestamps. (GuardiaLey is not legally allowed to download the torrents, as that would constitute copyright infringement, at least in Germany.)
So, if they're claiming what you say they are, this presents two scenarios:
1. The info on their own websites was wrong.
2. They are lying to the courts.
Either way, it will be interesting to see how this plays out.
I'm not about to pay for a PACER account just to win an argument on the internet.
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Here's a description of their process from one of their filings:
"In order to assist Plaintiff in combating copyright infringement on P2P networks, the USCG retained Guardaley Limited (“Guardaley”), a company incorporated in England and Wales under company number 06576149. Guardaley provides torrent anti-piracy and copyright protection services through sophisticated technology and proprietary technology and software programs. (See Decl. of Patrick Achache, at ¶ 4.) Guardaley caused searches of several P2P networks to be conducted for infringing copies of the copyrighted motion picture, “Far Cry”. The search function of the P2P network was used to look for network users who were offering for distribution audiovisual files that were labeled with the names of Plaintiff’s copyrighted motion picture. Guardaley then conducted a careful and thorough review of the data contained in logs obtained from the servers of certain P2P networks using its proprietary technology. Guardaley determined from these logs those network users who were offering for distribution audiovisual torrent files that were labeled with the name of Plaintiff’s copyrighted motion picture. (See Decl. of Patrick Achache at ¶¶ 8-14.) When a network user was located who was making such torrent files available for distribution, either through use of the search function of a P2P network or from a review of the logs from the server of a P2P network, Guardaley downloaded and retained both the torrent files that were being offered for distribution and other specific information in order to confirm that infringement was occurring and to identify the infringer by the unique Internet Protocol (“IP”) address assigned to that Defendant by his/her ISP on the date and at the time of the Defendant’s infringing activity. (See Decl. of Patrick Achache at ¶¶ 13-14.) In addition, the downloaded audiovisual torrent files were reviewed by Guardaley in order to confirm that the files were in fact copies of substantial portions of the motion picture to which Plaintiff holds the exclusive licensing and distribution rights. (See Decl. of Patrick Achache ¶¶ 15-17.)"
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What that actually says was that Guardaley downloaded the torrent files. Torrent files do not contain copies of the actual movie. They only contain metadata.
There is no such thing as an "audiovisual torrent file," so that language is pretty unclear. In fact, there's a lot of unclear language here.
But from what I can tell, this says their technology works exactly as I described it. They find a file that is "labeled with the name" of the movie; download the .torrent file, and connect to the swarm; and record the IP addresses of all the other users in that swarm, with a timestamp. There is no language here that suggests Guardaley actually downloaded the movie itself.
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"In addition, the downloaded audiovisual torrent files were reviewed by Guardaley in order to confirm that the files were in fact copies of substantial portions of the motion picture to which Plaintiff holds the exclusive licensing and distribution rights."
USCG filed other documents describing the process, and it's pretty clear they downloaded the movie and watched it to make sure it was the right movie.
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Re: Why?
Just my personal opinion...
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Why ask why
It really may just boil down to these content industries getting behind closed doors and scratching the ISPs backs for the info they want. I think for the most part this is already happening with the big ISPs.
Now it is just the smaller ISPs that remain that are resistant to cooperation because they haven't gotten their slice of the pie yet.
Of course having a diverse population of ISP providers would help in some degree to prevent this sort of collusion, but that is not what we have here in the USA. Competition is definitely not the American way when it comes to ISPs.
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ISP and Subpoena
If the ISP attorney determines it is not valid, she ought to challenge it.
If she believes it is valid, she ought to notify the ISP customer and afford her the opportunity to quash it.
It is that simple.
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Re: ISP and Subpoena
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Re: ISP and Subpoena
AJ never lets reality get in the way of his first term, first year understanding of law.
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Re: Re: ISP and Subpoena
I'm only telling people the realities of the case law, of which I've read and understood tons of, and of which you apparently have zero knowledge.
I said in my first post in this thread that I thought Midcontinent was right to challenge the subpoena under these specific facts.
That challenge will not work in general.
My understanding of the law is deep. Yours is practically nonexistent.
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When Joe man comes back Joe's head will crack
Just what rights would ISPs be standing up for? The right to infringe on other people's copyrights?
The right to privacy, for one; the right to due process, for another. But others have explained this better.
Copyright infringement is not free speech protected by the First Amendment.
The two are naturally in conflict. Copyright is, by nature, the statutory right to prevent expression. It may not be original expression, but the First Amendment makes no requirement that the protected speech be original. That may not be apropos in this case, but it is in others - particularly regarding "derivative works." See e.g. the "sequel" to Catcher In The Rye that is illegal in this country.
So you think rights holders should not be able to bring suit for online infringement because online infringement is so rampant?
Personally, I think rights holders should not be able to bring suit for online infringement because that infringement is non-commercial in nature. Copyright was always supposed to protect publishers from competing publishers. The fact that rights holders are going after individuals is a perversion of copyright, and creates all of the dangers that the original founders explicitly warned against. In my opinion.
This case is a good example. Quite obviously the defendants' right to privacy is being violated in the worst sort of way, and by private corporations - who shouldn't have this ability in any situation. It is turning the country into a surveillance state at the request of corporate rights holders. Whether legal or not, it is wrong.
What's the difference rights-wise if they file one big lawsuit or several individual suits?
Well, there's the question of jurisdiction, for one. For another, not all the defendants may have committed the same crime, to the same degree, and many are probably innocent.
In criminal cases, lumping defendants together is usually a sign of a miscarriage of justice. That should apply to civil cases as well.
It also reveals the U.S. Copyright Group's motives. They are not looking to prevent infringement, and it makes no difference to them whether or not the infringement resulted in losses. It is simply a money grab. Before they took it down, their website presented these lawsuits as a way for content creators to "monetize" filesharing. If they had actually followed the law, and filed one "John Doe" suit per defendant in the correct jurisdiction, they would lose a lot of money in filing fees. That's not a big deal if they ever intended to go to court, but that's not really their intent - they just want to send out legal nastygrams so that the defendants will be frightened into settling. It's "extortion by lawsuit," and if it's not officially an abuse of the courts, we really need to change the laws.
Christopher Meatto: If the ISP attorney determines it is not valid, she ought to challenge it.
average_joe: Exactly.
Yet this is exactly what the ISP is doing, and you are objecting to it.
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Re: When Joe man comes back Joe's head will crack
The right to privacy, for one; the right to due process, for another. But others have explained this better.
A subscribers' expectation of privacy is just one factor courts consider in these Doe defendant infringement cases. I've not seen a case where a subpoena was challenged on due process grounds. I can't imagine how such an argument would be fruitful though. The subpoena is a threshold matter, not the whole enchilada.
The two are naturally in conflict. Copyright is, by nature, the statutory right to prevent expression. It may not be original expression, but the First Amendment makes no requirement that the protected speech be original. That may not be apropos in this case, but it is in others - particularly regarding "derivative works." See e.g. the "sequel" to Catcher In The Rye that is illegal in this country.
Justice Ginsburg explained it to Prof. Lessig during oral arguments in Eldred: "The First Amendment securely protects the freedom to make — or decline to make — one's own speech. It bears less heavily when speakers assert the right to make other people's speeches."
Personally, I think rights holders should not be able to bring suit for online infringement because that infringement is non-commercial in nature. Copyright was always supposed to protect publishers from competing publishers. The fact that rights holders are going after individuals is a perversion of copyright, and creates all of the dangers that the original founders explicitly warned against. In my opinion.
This case is a good example. Quite obviously the defendants' right to privacy is being violated in the worst sort of way, and by private corporations - who shouldn't have this ability in any situation. It is turning the country into a surveillance state at the request of corporate rights holders. Whether legal or not, it is wrong.
There's certainly a good argument to differentiate commercial and non-commercial infringement, and that difference comes into play in certain circumstances when it comes to burdens in a trial. However, I don't agree that an infringement's commercial nature changes much in the way of whether it's justifiable for the plaintiffs to enforce their rights.
Well, there's the question of jurisdiction, for one. For another, not all the defendants may have committed the same crime, to the same degree, and many are probably innocent.
In criminal cases, lumping defendants together is usually a sign of a miscarriage of justice. That should apply to civil cases as well.
It also reveals the U.S. Copyright Group's motives. They are not looking to prevent infringement, and it makes no difference to them whether or not the infringement resulted in losses. It is simply a money grab. Before they took it down, their website presented these lawsuits as a way for content creators to "monetize" filesharing. If they had actually followed the law, and filed one "John Doe" suit per defendant in the correct jurisdiction, they would lose a lot of money in filing fees. That's not a big deal if they ever intended to go to court, but that's not really their intent - they just want to send out legal nastygrams so that the defendants will be frightened into settling. It's "extortion by lawsuit," and if it's not officially an abuse of the courts, we really need to change the laws.
Jurisdiction is certainly a problem, but not at the subpoena stage of proceedings. The whole point of jurisdiction is to identify the defendants so jurisdiction can be determined. There may be some innocent defendants caught in the mix--this is inevitable--but on the balance of it all such things are justifiable. Innocent people are accused wrongly of civil and criminal offenses everyday. The system isn't perfect, but it strives to be.
USCG is following the law. They even had the unusual step of having to justify their grouping of defendants together in one suit to the judge in the "Far Cry" case. They did so and were permitted to proceed. What you call a miscarriage, the court called proper. Agree with it or not, USCG has done things by the book.
And USCG is going to court, individually, after the people who didn't settle. This kind of ruins the argument that people have been making all along that they aren't going to do so.
Yet this is exactly what the ISP is doing, and you are objecting to it.
Not at all. In Midcontinent's specific case, they were right to challenge the subpoena. The subpoena was flawed.
In general, though, there isn't a good basis to do so.
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Re: Re: When Joe man comes back Joe's head will crack
Yeah, I think I might need a twelve-step program or something.
I've not seen a case where a subpoena was challenged on due process grounds.
In that case, what is the justification for a "motion to quash?" Aren't things like lack of jurisdiction, unlawful basis, wrong identification, etc. due process issues?
Justice Ginsburg explained it to Prof. Lessig during oral arguments in Eldred: "The First Amendment securely protects the freedom to make - or decline to make - one's own speech. It bears less heavily when speakers assert the right to make other people's speeches."
The key here is "bears less heavily." The conflict does not go away. Ginsburg also made that clear when she said the lower court "spoke too broadly" when it found that copyrights were "categorically immune" from attack under First Amendment rights.
As with all contradictory rules set by the Constitution, a balance must be achieved. That balance is now tipped heavily towards content creators, and against free speech rights. The "Catcher" example should be a slam-dunk case of free speech, but it's not.
I don't agree that an infringement's commercial nature changes much in the way of whether it's justifiable for the plaintiffs to enforce their rights.
Those rights are primarily economic in purpose, so I don't see how it can't change the situation. In any case, for-profit entities have very different (and fewer) rights than members of the public, and should be treated differently (Citizens United notwithstanding).
USCG is following the law. They even had the unusual step of having to justify their grouping of defendants together in one suit to the judge in the "Far Cry" case. They did so and were permitted to proceed. What you call a miscarriage, the court called proper. Agree with it or not, USCG has done things by the book.
I'm not sure the court gave the stamp of approval you think it did. The motion to deny on "joinder" grounds was not outright rejected; the court just held that this objection could only come from the defendants themselves, not Time Warner or amicii like the EFF. It can still be used in a motion to quash, and possibly as a defense if any of these lawsuits actually go to trial.
And USCG is going to court, individually, after the people who didn't settle. This kind of ruins the argument that people have been making all along that they aren't going to do so.
They're preparing to go to court, actually. Not one case has actually made it to any court of law. We'll see if any do. My guess is that this is more muscle to back up USCG's threats, and they're counting on few (if any) cases actually going to trial.
If they do, you can bet that their clients will be very unhappy, because they'll end up losing a lot of money. (USCG itself will still get paid, of course.)
Not at all. In Midcontinent's specific case, they were right to challenge the subpoena. The subpoena was flawed.
Isn't this exactly the same subpoena filed against the other ISP's? Those subpoenas are likely just as flawed, yet most ISP's rolled over and gave up without a fight.
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Re: Re: Re: When Joe man comes back Joe's head will crack
You are right that the First Amendment challenges are valid on their face. It's in their application that they fail in these cases.
And it's definitely about balance. Most things in law are.
Joinder is actually one of those things that the judge can challenge sua sponte, meaning without any party even raising an objection. That's Federal Rule of Civil Procedure 21.
The news reported on THR Esq. and repeated here on Techdirt is that USCG has made arrangements with 15 law firms nationwide and they are proceeding to sue the defendants who didn't settle individually. I haven't seen any of these new complaints yet, but I haven't looked either. If I have time later I'll see if I can find any.
The difference between the Midcontinent case is that USCG just faxed them the subpoena, and the court that issued the subpoena in D.C. didn't have jurisdiction over them as they are in the Midwest. I don't think the other subpoenas had these defects.
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Well Said (not so) average_joe
So they were left with little, or no choice..
And the company does not issue lawsuits, the court does, the company files for a suit, then if it is accecpted, the clark of the court signs it.. Its a court document.
If the court has determined that a possible crime has taken place (they have because they signed the lawsuit).
Then, if the ISP refused give up the information, then they are liable for perverting the course of justice.
And 'harbouring a crime, or ciminal'.
The ISP has every right to contest the lawsuit, or to agree with it and abide by the request.
Its the correct legal channels, overseen by the courts, approved by the courts, and controlled by the courts.
If you are an ISP, and you were made aware that someone or many people were using your equipment in the conduct of crimes, then it is up to them to work with the law to bring those crimes to an end.
And like it or not, illegal filesharing of copyright material, **IS** a crime..
I guess you dont like it (mike), but its the law as it stands. And whinning about people, groups, or authorities enforcing the law makes detracts from your integrity.
Mike, if every day, when you come home you find a number of item missing in your house, after awile you get annoyed at it, you know your next door neibour knows who it is, that person entering and stealing off you everyday.
But your next door neibour will not tell you who it is, even though YOU KNOW that HE KNOWS..
What are you going to do Mike ?
Tell the next door guy, "it is your right not to tell me", so I will just live with being broken into each day.
Im sure you would not do that Mike, you would do whatever you could to find that person, and then try to get him to stop.
(I would just stay home one day, and put him in intensive care, but thats just me)..
If I could not do that, I would probably go to court, and make the neibour tell me who it is, then go to the police and have him arrested.
(it was probably the neibour himself, doing the crime).
Certainly profiting from the crime, and would the ISP who gets paid to allow those users who are breaking THE LAW, to continue.
Profiting off crime, is in itself just as significant a crime..
Midcom, would have given up the names in a second, if they could have got someone to dish up some money for them to do it.. extortion anyone ??
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Re: Well Said (not so) average_joe
It is NOT a crime, it is a CIVIL matter.
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Re:
I wouldn't call copyright infringement laws unenforceable. USCG is enforcing the law on behalf of their clients. I wouldn't call it unreasonable either. I think it's unreasonable to say it's OK for people to infringe on other people's rights.
People can think what they want, and reasonable people can disagree.
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That's mine!
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Our ISP requires a lawful order before revealing personal info.
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Re: Our ISP requires a lawful order before revealing personal info.
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