More Mass Porn Copyright Infringement Lawsuits Get Dumped
from the not-looking-so-good dept
In the middle of December, we wrote about a judge in West Virginia tossing out all but one of the defendants in one of the many, many "mass" copyright infringement lawsuits that were filed in 2010. The same judge has also done the same with another of the lawsuits, dropping 7,097 defendants. This one involved the movie Batman XXX: A Porn Parody, from Axel Braun Productions. When you think about it, of course, it's rather amusing that such a lawsuit was filed over this movie, since it very clearly relies on fair use to defend using Batman. To then get upset about alleged infringement of your own work is somewhat ironic. However, it appears that Axel Braun is not backing down. His response after all of those subpoenas were quashed:"Heads will roll. I said it once, and I'll say it again, Fuck 'em all. I didn't get into this fight thinking it was going to be an easy one, but I can assure you that I am not quitting."Well, okay, then, but you may go broke trying. Of course, as one of our commenters astutely pointed out, under the Copyright Act, filing against all of these defendants in a single lawsuit is actually a really bad idea for those suing, since the Copyright Act says that statutory damages are per work and not per infringement. Thus, if you have 7,000 defendants accused of sharing a single file in a single lawsuit, it likely would mean a single statutory damages award, split between them all.
In the meantime, in another one of these lawsuits -- again, involving a movie that relies on fair use to exist -- Time Warner Cable has refused to reveal more than 10 names per month. The lawyer, Evan Stone, who's been filing a lot of these mass lawsuits lately, is pissed off about this, but apparently the client, Larry Flynt Publishing, has decided not to push the issue, since it has separate business dealings with TWC. Of course, I also do wonder if the public campaign to request Larry Flynt reconsider these lawsuits, in the form of an open letter to Larry Flynt, had an impact as well...
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Filed Under: copyright, joinder, lawsuits
Companies: axel braun productions, larry flynt publishing, time warner cable
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I don't know how you can see a situation like this and conclude that is just. Do you really believe everyone should have the right to take a porn producer's work without paying just because they bought an ISP subscription?
That porn producer no doubt invested money in making it. If you want amateur porn, plenty freely exists. If you want professional porn, what is so wrong with paying for it?
What is wrong with a system that punishes those who choose to pilfer that which was not licensed to them?
No law is enforceable without both stick and carrot.
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So? Porn piracy's been around since porn was invented, and the very existence of this film relies on the current state of copyright law.
"Do you really believe everyone should have the right to take a porn producer's work without paying just because they bought an ISP subscription?"
I don't see that claim being made. In fact, the article states that the way he's going about the lawsuits is a bad idea, not that he shouldn't be paid at all.
"That porn producer no doubt invested money in making it."
As did the people who made the Batman franchise he's ripping off (sorry, parodying). Presumably, he'd fight attempts to make him pay a licence to DC or Warner, that's what makes this case a little more amusing than most.
Sorry, but nobody has an instant right to make money. Braun might feel he's losing money via these downloads, but there's no evidence that he's lost sales directly through them. I'd be willing to bet that most of the people downloading would never have paid and only did so because they were curious about the subject matter. That doesn't make it right, but as ever the money being lost is probably a lot smaller than he thinks.
Either way, the people he's accusing of downloading have the right to due process and a fair trial before they're forced to pay out. This doesn't change just because he finds the current situation too difficult.
"What is wrong with a system that punishes those who choose to pilfer that which was not licensed to them?"
Nothing, so long as said punishment is fair and based on solid evidence of guilt. The problem with most of these cases (especially mass lawsuits like this) is that neither is usually true, and so it's right to make sure the defendant gets a fair shot at due process and a fair trial.
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If the internet had been around at the time copyright laws would never have been invented at all.
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I don't see how you can see a situation like this and conclude that it is not just. Do you really believe everyone should have the right to sue specific people because their IP number was seen somewhere?
That porn producer no doubt invested money in making it. If you want amateur porn, plenty freely exists. If you want professional porn, what is so wrong with paying for it?
Pirates no doubt invested a few bucks in IP spoofing software. Or, if they wanted free anonymity, plenty of open or crackable WiFi connections exist. If you want to sue the person who downloaded your IP, what is so wrong with finding the right person?
What is wrong with a system that punishes those who choose to pilfer that which was not licensed to them?No law is enforceable without both stick and carrot.
No law is enforceable when you attempt to use said enforcement against people who didn't break the law.
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I can't wait...
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And that is meaningful because...
Laws existed befor the USA republic was formed regarding real state property and where changed. Laws exist before the automobile and were changed after. Laws change as situations change.
So it is in the best interest of justice to transform courts into money making schemes, where you sue somebody without enough proof, with the only intent of scaring people into paying a settlement never wanting to sue anyone to redress a real grievence?
If that is justice, I don't want to live in your world dude, more this is base for armed confrontation.
That producer as pointed out relyied on exemptions of copyright to be able to create what he created, he also did not prove any harm since he cannot possibly be able to prove that sales will go down because of piracy, people assume that it is bad, but how do we know that for sure?
Care to provide a solid base for it?
Can he not make his own DVD's still and sell them?
With those who pilfer that is nothing wrong in punishment, but trying to acuse people without enough proof to get money is extortion and should never be alowed or you like the idea of being acused of anything and being forced to pay up?
No law should be enforced at all if the harm is minimal or non-existent. Law is no substitute for dialogue and because it is imperfect it should not be used as a first instance but as a weapon of last resort.
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Evan Stone?
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So what you are saying is that parody deserves less protection than other works?
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It is the sort of comment that is typical here, where one day fair use is absolute and the most important thing, comparable to any great new work, and the next it is something worth less protection, all because he doesn't like the way the protection is being used.
If you can't see how that is two faced, I don't know what else I can do to explain it.
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Please try. I *think* I know what you're getting at, but I don't see any contradiction at all.
Where fair use is defended in other stories, it tends to be in response to stories where fair use is attacked directly by the industry (payments demanded for 30 second previews, or YouTube videos removed because a Prince song is playing in the background for 20 seconds).
Here, nobody's right to fair use is being attacked, nor is it suggested that he should get less protection. All that's being noted is the irony of his demanding overreaching copyright on a product that depends on such fair use protections. Protections that many in his own industry would gladly remove, should they view it as a way to increase their own profits.
He has every right to the fair use protections guaranteed to everybody else. Automatically make a profit based on a shaky and overbearing lawsuit? Not so much.
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But your malice wouldn't let you acknowledge that would it?
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Given a statement given by Stone in another article about how he can prove they are all sharing the same file from the .torrent file one wonders how he plans to prove it. Of course the simplest way to prove this is to create the .torrent yourself and seed it. Which would explain how Stone's amazing system of having a guy making screen-shots and writing down IP address on a spreadsheet is irrefutable proof, if he was the initial seeder he could capture all of this data. But trying to overcome the idea of using an regular client that was contributing to the very same copyright infringement seems to be a questionable tactic. Unless his copy was authorized, then one needs to wonder if they are all identical copies are they all authorized?
"“This swarm is the group of users that are connected to each other to obtain the data referenced in the .torrent reference file… such as a reference file for a motion picture. For this process to work, each user must have the same .torrent file. It is not enough for a user’s .torrent file to merely reference a copy of the same motion picture. It must reference the same specific copy of the motion picture as everyone else in the swarm for that user to participate in the swarm,” he added."
http://www.zeropaid.com/news/91741/time-warner-fights-mass-porn-bittorrent-lawsuits/
But then Stone is a creepy bottom feeder out to make a quick buck. The missteps he has made in his filings are hysterically sad, and sending "settlement" extortion attempts regular mail with no idea if his target ever receives them. Using a recycled fax machine that transmits a non-profits ID tag. Filing for copyright on a film that had been out for over a year, and then using the fact he filed to get a John Doe case in court before being granted copyright. Trying to use an answering machine and PO Box for legal documents. Can't wait until the Judges in TX actually enforce the limits on how long the case can sit on the docket and dismiss the case. And let us not forget those outside the personal jurisdiction of that court who never should have been included, except of course when your trying to abuse the court system to extort people. It is amazing these technically savvy minds who can prove from an IP address alone who is guilty, can't figure out what ISPs and IP addresses are not in a courts jurisdiction.
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We all know what those lawsuits are and that is extortion.
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And I don't think it's necessarily extortion. Assuming you have a defendant that downloaded the plaintiff's work and violated the plaintiff's rights, a federal lawsuit is pretty much that plaintiff's only legal recourse.
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About extortion, well only if the plaintiff is serious about it, because as it was shown those people have no intention to start legal proceedings they want to collect settlements and will harm those who have serious claims.
If it was me I would want to see how the data is collected, because if they have no logs of a transaction actually taking place(data transfer) I would just move to quash based on faulty collection basis and claim they were not diligent enough and made a mistake because P2P protocols actually send false IP's to clients, so if you didn't filter that you are not doing the job right, more if you didn't even bother to correlate the IP to a region you probably didn't do the minimum necessary to ascertain anything basically you are blind shooting and hopping to hit something, that looks like something serious to you?
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The Plaintiff filed a suit that has shaky claims that he probably didn't put much thought in it to collect that data.
The plaintiff was not diligent to filters the IP's by regions, the plaintiff has not shown how the data was collected since it is well known that P2P protocols send fake IP's as a countermeasure to exactly that type of monitoring, so unless the plaintiff have a log showing actual data transfers occurred others can just move on to dismiss that.
Besides they will never actually go to court because that would just not be profitable, and since they are not after justice but money, what they are doing is abusing the legal system to make a profit, or are you saying that they will bring everyone to court? you believe that?
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I think that's the main sticking point for a lot of people - that's a big assumption, and an IP address isn't really enough to positively identify an individual.
The reason why "extortion" tends to get used with these kinds of actions is because the hope seems to be that most of those people (many of whom are in fact innocent or at least wrongly identified) will just pay up instead of fight in court. I'm not sure if this is the case here, but it still seems fishy, especially if Mike's correct about him getting more compensation if the suits were filed separately.
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Except the number of cases brought to trial by any of these extortion mills is 0.
They often file John Doe papers against thousands of people in 1 filing to save the costs.
Several of the firms have 1 or 2 lawyers on staff, they have no hope of appearing in all of these cases.
They file against IP addresses that can be shown to be well outside the courts jurisdiction, claiming they have no way of being able to tell, stretching the truth.
They claim to be experts on this type of technology, but often do not understand how BitTorrent or the internet works.
They get the names and then send out "settlement" letters with exaggerated claims that they can prove you did it.
They suggest you seek council, but then say if you waste any time the price jumps $1000.
They claim if your wifi was open, if you knew it or not, your still responsible for another persons actions.
They claim 100% an IP address proves you did it, let us just ignore the laser printer that university has framed multiple times now.
The only answer they accept is you did it, or are in someway responsible - CC # please.
The ACS:UK leak proves these legal giants are often aware they are pursing people who are innocent. That the technology is not as airtight as they claim. The money is more important than the law.
A painfully simple solution to this is -
The "damages" for the average P2P downloader should be the retail cost. Not some stupidly high made up amount then multiplied by the number of people we think shared from you.
People sharing over P2P networks are not making money. They are not burning these onto DVDs and selling them on eBay and actually denying the Rightholders income. Many of them actually buy things, despite the claims otherwise.
Considering many of the films being pursued would at best be $9.98 in the Walmart bargain bin, I suspect the cases would dry up. It is the ability to terrify people with the idea of we can make you pay us $150,000 and our fees, so pay us $3000 and make it all go away that is wrong.
People are slowly waking up to the idea if they had such a slamdunk case that would get them $150,000, why would they take such a pittance.
Intellectual Property is so very important to the US!
And let us not forget the IP owned by NBC includes a masturbating bear in a diaper.
Heaven forbid someone copy that!
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You really think those people would spend hundreds of millions of dollars to sue everyone?
With fillings each month reaching 20 thousands IP's asking for names and addresses?
It is transparent to everyone that no one will be taken to court they just want to take the settlements, even you cannot say that this is not true with a straight face.
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I should clarify that issue a bit (my understanding of it, anyway). You can have 7,000 defendants accused of sharing the same file in a single lawsuit and have one award for damages split between them. Or you can have 7,000 separate awards for damages. It depends on the facts.
In the US Copyright Group cases, they took the arguments for joinder too far. In order to justify joining so many defendants together, they went into great detail about how each defendant was working in concert with all of the other defendants. They said that each defendant was both a seed and a peer. In doing so, USCG set up the perfect situation for the defendants to argue that damages for only one infringement should be split between them.
Apparently, in these porn cases the plaintiffs' attorneys aren't arguing that the defendants were acting in concert. Nor are they arguing enough interrelatedness between the defendants to justify joinder. I say apparently because the complaints that I've looked up have been sealed so I can't read them. I have to go by what the judge says, which isn't much.
I think the takeaway is that the plaintiffs' attorneys need to argue enough connection between the defendants to justify joinder, but not so much connectedness as to justify the defendants splitting only one award for damages. I think USCG took it too far and the porn guys didn't take it far enough. I'm sure both are learning from their mistakes, and we'll see "better" complaints in the future from each.
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Thanks for going into this point about damages more. Based on just the comment in the post, and honestly even on your previous comment that was immediately linked to, the idea seemed to come out of nowhere. Even with the explanation, though, I've gotta say I'm still skeptical.
Damages would be shared for "all infringements...for which any two or more infringers are liable jointly or severally." If there was an infringement for which all the infringers were jointly and severally liable, I could see it. But if each collection of infringements is actually attributable to a different set of two or more infringers, I don't read the statutory damages provision as limiting the plaintiff to one total statutory damages amount.
In other words, in a hypothetical case where A+B infringed jointly and severally, and so did C+D, and so did E+F, it might be possible to read the statutory language such that each of these was committed by at least two infringers, and therefore falls within a single award of statutory damages. This would be to read the statute as giving plaintiff an award for "all infringements committed by multiple infringers," regardless of whether the infringements are related, the infringers are the same, etc.
But I believe the proper reading would be that this language only consolidates infringements committed by the same set of "any" multiple infringers. A plaintiff in that case would be entitled to three awards of statutory damages, if he managed to do it all in one case somehow. (Note: I'm not saying that this breakdown of separate pairs describes the downloading example, I'm just using it to examine the statutory language.)
Downloading torrents differs, in that there's going to be overlap between varying sets of multiple infringers. But even with overlap, I wouldn't expect a chain of seeders/peers/leechers to all be considered jointly and severally liable for any particular infringement(s) involved. And based on what the result should be in the example without any overlap, I think defendants would have to point to at least one infringement jointly and severally shared by everyone in order to argue that all defendants split just one statutory damages amount. Rather, if the plaintiff elects for statutory damages, it seems like he would get an in-between number of statutory damages, based on how many sets of joint and several infringers there are.
By the way, in your earlier comment, you mentioned an example of a chain of friends making copies of copies being a settled issue---I haven't seen that line of cases before, but if you have examples on hand I'd love to take a look. It sounds like language in those cases might affect what I'm saying, so it's possible that some of this comment won't hold up against the precedent you're talking about. Not having seen the precedent yet, the above is my understanding based just on the statutory language and caselaw that I have seen.
Oh, and unrelatedly, I'll agree with the comments implying that Mike's "fair use" line in the original post was just a random, empty jab at the plaintiffs without making a real point. The work relies on fair use, and he's suing over people sharing copies of the movie...I don't see the irony. It's not like he's trying to overcome a fair use defense, or otherwise suing defendants whose infringement was somehow analogous to his own conduct.
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Downloading torrents differs, in that there's going to be overlap between varying sets of multiple infringers. But even with overlap, I wouldn't expect a chain of seeders/peers/leechers to all be considered jointly and severally liable for any particular infringement(s) involved. And based on what the result should be in the example without any overlap, I think defendants would have to point to at least one infringement jointly and severally shared by everyone in order to argue that all defendants split just one statutory damages amount.
You're probably right. I came to my conclusion after reading Nimmer, Patry, and some caselaw. I didn't take any notes on what I read, so unfortunately I can't cite to any of it. In the USCG cases, as I recall, they argued that every single defendant potentially supplied every single other defendant with a portion of the same file. In a couple cases, USCG was ordered to show cause why the defendants shouldn't be severed for misjoinder. I thought the memo they supplied the court was a manifesto of how the defendants were all acting in concert. Acting in concert means joint tortfeasors, and joint tortfeasors means joint and several liability. That was my take anyway. I never found any caselaw involving members of a torrent swarm being held jointly and severally liable for the same infringement, so I was going out on a limb by suggesting it.
By the way, in your earlier comment, you mentioned an example of a chain of friends making copies of copies being a settled issue---I haven't seen that line of cases before, but if you have examples on hand I'd love to take a look.
Woops. Rereading what I posted, I see that I misspoke. What I should have said is: If I take a DVD and make copies for two friends, then I am liable jointly and severally with each of those two friends. They are not, however, jointly and severally liable to each other. USCG was arguing that each person in the swarm is sharing parts of the file with everyone else. If that's true, then each person would be jointly and severally liable with everyone else. Again, this is my take, and it's certainly likely that I'm wrong.
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From McClatchey:
Nimmer's hypo as summarized in the case:
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In terms of the USCG cases, your summary does make it sound like the plaintiffs may have been shooting each other in the foot a bit in their effort to prove joinder. The fact that various members can be simultaneously receiving and providing copies to the same other parties all at once...I see your/USCG's logic about how each recipient is also acting in concert to infringe. And whichever way the damages thing goes, it does sound like torrent cases can be exceptionally complicated if important issues of fact could hypothetically revolve around exactly when particular seeders turned off Azureus for the day or stopped seeding.
The McClatchey language is very interesting, I'll have to look at those cases in-depth. The court and I appear to disagree about what the statutory language means in these kinds of situations, and each of us thinks the other is rewriting the statute. (Ha, how unusual.) But I don't know if there's any basis in J&S liability (or anything else) to make one the more sound answer.
One curious result of the court's reasoning is that it would incentivize further infringement once the first act has been committed. The initial torrent seeder would want as many infringing downloads as possible, to minimize his own share of the single statutory award, as would each downloader, encouraging him to seed further. That seems like a very strange result, one that I doubt the court considered at the time.
Though, I'm also noting that, in McClatchey, the court was specifically limiting the first level infringer, AP, to one statutory damage award. On a first skim, I don't see language about whether a case against both AP and its downstream infringers would be limited to one statutory award as a whole. I haven't thought through the next step yet, but there could be a worthwhile distinction based on the particular motion that McClatchey was granting, I'm not sure.
In any case, thanks for the follow-up. I'm definitely still very skeptical, but it's an interesting issue.
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One curious result of the court's reasoning is that it would incentivize further infringement once the first act has been committed. The initial torrent seeder would want as many infringing downloads as possible, to minimize his own share of the single statutory award, as would each downloader, encouraging him to seed further. That seems like a very strange result, one that I doubt the court considered at the time.
I had thought of that too. It's certainly a quirky result if true. The more defendants that infringe the work, the less each defendant is liable. It also leads to the possibility that once there's been a lawsuit over a particular swarm, subsequent lawsuits over the same swarm might be precluded by res judicata.
Perhaps it not a bad result though. Say you had 1,000,000 people in a swarm sharing plaintiff's work. Is plaintiff really supposed to be able to recover $750,000,000 for the infringement of one of his works (at the minimum statutory damages of $750 per infringement)? That seems like a ridiculous result too.
I think the bigger issue is that the Copyright Act just isn't set up to handle the situation now possible where you can have thousands of people sharing the same file. The Act's preference for claim splitting doesn't fit well with the realities of piracy on a massive scale.
In any case, thanks for the follow-up. I'm definitely still very skeptical, but it's an interesting issue.
And thank you for the thoughtful reply. People should be skeptical whenever I'm interpreting and applying caselaw. LOL! I'm taking a seminar on advanced torts this coming semester, and I was hoping to bend my prof's ear about these damages issues. I'm always open to insight on these issues. Fun stuff!
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Only if you consider torrenting a copyrighted work without the copyright-holder's permission to be equivalent to fair use.
Listen, I'm as much of a copy-fighter as anybody, but as the law stands now, there's clearly a difference between fair-use parody (which "Batman XXX whatever" is) and torrenting.
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Those people were accused and they are not guilty of anything as of yet, also as it is clear to most people, the data used is most likely not trustworthy which can lead to many false positives, for which individuals have no other recourse but to pay or face legal proceedings that are costly.
People should file a motion to quash based on that fact alone, the issuing party should show to the court that it didn't make a mistake and show how they collected that data, for which defendants could see for themselves how they were named to such a frivolous action.
If that fails go for the joinder path for which it was already proven to be successful, since claimants have the ability to filter IP by region they should file on those regions to get identities of defendants.
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Consumer screaming with sold out frustration
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Jamendo is ok, Miro, VODO and Youtube are kings, what else do I need?
Your precious?
Keep it dude.
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Thank you!
Sadly the lawyer Evan Stone is not the same as the actor Evan Stone. The lawyer Evan Stone became a lawyer on May 5th of 2010 simply to run this racket-like lawsuits. This is all detailed in my open letter to Larry Flynt, which is the last link in the story. I appreciate everyone who cantake the time to read it.
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