CBS Reporter Posts YouTube Video Of Grammys... Only To Have CBS Send Takedown Notice

Woman Hits Back At Liberty Media; Asks For Dismissal From P2P Shakedown Saying She Never Downloaded Gay Porn

from the good-work dept

Tue, Feb 15th 2011 3:49pm — Mike Masnick

Porn producer Liberty Media has been quite aggressive of late in jumping into the whole mass infringement lawsuits business, with some really questionable moves, including a questionable quiet settlement, targeting third parties and a laughable demand that people pay $1,000 and confess to file sharing its movies before it even accused them of doing so.

However, copyright lawyer Ray Dowd points us to one woman's response to the accusation that she had downloaded gay porn. While the filing is technically pro se from this woman, who notes that her profession is as an electrician, Dowd notes that the motion is surprisingly well-written for a non-lawyer (and also refers to herself in the third person), raising questions if there's an anonymous lawyer helping out. Either way, she points out that she never downloaded the film in question and had never even heard of it or the company. She notes that she lives in New Jersey and any such lawsuit should be in New Jersey. She also notes that Liberty failed to follow basic civil procedure rules for serving her with the lawsuit, and says that the lawsuit fails the statute of limitations test, because it does not provide a date when she was supposed to have infringed.

You can read her entire filing below.

On a separate note, reading this, it's the first time I realized that Marc Randazza is apparently representing Liberty Media. That's unfortunate, as Randazza quite frequently does really good work in favor of protecting people's First Amendment rights -- and, as a reader recently noted, Randazza's firm is even listed on the EFF's website of law firms that are willing to help those accused of file sharing in lawsuits exactly like this one! It's too bad. I usually support the work that Randazza does, but supporting Liberty Media in this overreaching campaign seems like a mistake.

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Filed Under: jurisdiction, p2p, porn, shakedown
Companies: liberty media

103 Comments

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The eejit (profile), 15 Feb 2011 @ 2:56pm

Well, that's interesting to read. Good to see someone fighting back.
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Anonymous Coward, 15 Feb 2011 @ 3:55pm

I notice though that her claim is short on information, like anyone else residing at her home, her marital status, if she shares her internet connection in any manner, etc.

I have to love to that all the names of gay porn downloaders are coming up on the list. Very interesting.

I would hope the lawyers would agree and refile on her in Jersey.
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btr1701 (profile), 15 Feb 2011 @ 4:01pm

Re:
> I would hope the lawyers would agree and refile
> on her in Jersey.

Without knowing anything about this woman, why would you hope that?
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ChurchHatesTucker (profile), 15 Feb 2011 @ 4:24pm

Hrm?
"Dowd notes that the motion is surprisingly well-written for a non-lawyer (and also refers to herself in the third person), raising questions if there's an anonymous lawyer helping out."

Or she's using language lifted from some legal textbook.

Which I suppose could raise copyright questions on its own...
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Anonymous Coward, 15 Feb 2011 @ 4:24pm

Re:
i hope they file against you for not downloading anything like her.
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Anonymous Coward, 15 Feb 2011 @ 4:27pm

Re:
They were the ones that sent the letter to HER. If it was someone else's doing, that's their problem, not hers.
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Anonymous, 15 Feb 2011 @ 4:29pm

She's accused of "bypassing the necessary payment and login steps required of users" - so is this not part of big Bittorrent suit Corbin Fisher claimed to be filing against 35,000 people? Because it sounds very different to me.
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RD, 15 Feb 2011 @ 4:29pm

Re: Re:
"Without knowing anything about this woman, why would you hope that?"

Because accusation means guilt, at least according to rights holders and their message board shilltrolls.
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Anonymous, 15 Feb 2011 @ 4:34pm

Re:
"I notice though that her claim is short on information, like anyone else residing at her home, her marital status, if she shares her internet connection in any manner, etc."

Maybe because none of that is pertinent to her specific arguments used here?
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iamtheky (profile), 15 Feb 2011 @ 4:39pm

Shouldn't they have a huge EFFing problem with Randazza? I would have to assume that his firm is not offering defense or consultation services for these lawsuits, that would be far too fantasticly retarded.
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Anonymous Coward, 15 Feb 2011 @ 4:42pm

Re:
I'm sorry but "because we said so" is no longer accepted as valid proof in a court of law.
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coldbrew, 15 Feb 2011 @ 4:43pm

Re: Re:
Well, I don't know this AC, but I hope he gets raped in his eye-socket with AIDS by xmas critters :)
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Josh in CharlotteNC (profile), 15 Feb 2011 @ 4:50pm

Re:
I notice though that her claim is short on information, like anyone else residing at her home, her marital status, if she shares her internet connection in any manner, etc

What does that matter? She is one of the defendants named by the plaintiff in the case, and a possibly non-existant husband or other person residing at her home are not.

Maybe if the plaintiff wanted to insure they didn't name the incorrect party in a lawsuit, they should have investigated before demanding money from someone.
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Anonymous, 15 Feb 2011 @ 5:13pm

Since members of Randazza's legal group are listed on EFF as folks who can advise people accused of illegal file-sharing, I wonder if their advice is always "Settle for whatever they ask, and fast"?
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Anonymous Coward, 15 Feb 2011 @ 5:42pm

Re:
Well the "good" advice has been to settle or let us try to get a better amount to settle for. Most people do not have the money to get a lawyer to attempt to tear apart the filing. If the extortion team actually carried out their threat to take you to court, settling would be the best advice. So that is what so many of them are told.
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Anonymous, 15 Feb 2011 @ 5:53pm

I've heard of all those other referenced Corbin Fisher suits, but not about this one against hackers of its website. Anyone know more about it - such as if the defendants were ever offered settlements?
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MrWilson, 15 Feb 2011 @ 6:30pm

Re: Re: Re:
Copyright violators are just like witches, communists, and terrorists. They must be guilty if someone has accused them! If they choose to insult us with claims on innocence, they must immediately offer proof of their innocence with full disclosure of all personal, and preferably embarrassing details. If they wish to not be held responsible for their crimes of being accused, they must point the finger at their co-conspirators, their children, their spouses, their nannies, and their babysitters. And they shouldn't forget to tip the plaintiff's lawyers for screwing them either.
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Anonymous Coward, 15 Feb 2011 @ 6:34pm

Re: Re: Re: Re:
If you're on the internet then chances are, you're guilty!
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Anonymous Coward, 15 Feb 2011 @ 7:12pm

Re: Re:
Because I am hoping that the lawyers aren't just ambulance chasing. She puts up a defense, but one that can be poked at. Filing in jersey (and serving her appropriately) would be a very good sample case.

It is unlikely she personally is the consumer of gay porn. But if someone in her household is, well... :)

It would be a very nice test case (for both sides) if they lawyers don't chicken out.
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Anonymous Coward, 15 Feb 2011 @ 7:14pm

Re: Re:
Josh, they can only name the person who's name is on the internet connection. It it sort of the same as being responsible for your own phone bill, when it's in your name, even if it is someone else in your family calling those 900 numbers for spiritual guidance.
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Josh in CharlotteNC (profile), 15 Feb 2011 @ 8:12pm

Re: Re: Re:
Josh, they can only name the person who's name is on the internet connection.

Which is why I said they should investigate. Once they've done the Doe case and know who's account it is, they need to file for discovery, and follow the process to establish whether the account holder actually performed the act or not. If the defendant wishes, they can get a lawyer or talk to the judge themselves. Once that has occurred and there is sufficient evidence then if they want to offer a settlement or go to full trial, go for it. Sounds fair to me.

Only reason it won't happen is because that is costly, and the whole point of these lawsuits is to make a quick buck extorting people.

It it sort of the same as being responsible for your own phone bill, when it's in your name, even if it is someone else in your family calling those 900 numbers for spiritual guidance.

Bad analogy. If I had a landline phone line (seriously, people still do?) I agreed to pay the bill for use of that line to the phone company and nothing more. If I've got a friend over, and they use that line to call 911 and put in a bomb threat, I expect the police to show up, but not to throw me in jail just because the line was in my name. I'd expect them to listen to the tape of the call and realize it wasn't my voice and investigate to see who's voice it was.
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Anonymous Coward, 15 Feb 2011 @ 8:19pm

Re: Re: Re: Re:
...and how do you expect them to do it?
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Marc John Randazza, 15 Feb 2011 @ 8:23pm

Our comment on the suit
I was a little disappointed to find this "hit piece" on here, yet nobody contacted me asking for a comment. Mr. Masnick certainly knew how to contact me last week when he knew someone who wanted a favor from me. So, I am surprised that he didn't bother to contact me to get a comment about this case.

Let me share at least a few of the misrepresentations in the article.

1. This is not a P2P case. This is a hacking case. While my client has brought copyright claims in the case, the key issue here is that these defendants are accused of hacking into Liberty Media's members' areas without authorization.

2. Mr. Masnick calls a prior settlement "questionable" and refers to an article of January 10. If it is "questionable," then perhaps he would like to ask some "questions"? If he has questions, I will gladly answer them.

Of course, I do appreciate that Masnick acknowledges that I frequently do good work in favor of protecting people's First Amendment rights. In fact, that's my prime directive. I not only do that, but I often do it for free, only to then be scolded by my financial advisor and my wife.

My firm has taken a strong position on the fact that even P2P cases must be done properly and ethically. And thus, we are all but too pleased to represent defendants in P2P cases when they are the victims of unethical tactics.

I don't expect Techdirt to cheerlead for me on every case. I do, however, ask that Techdirt show just a little bit of class and ethics.

Despite this, I'm still a huge Techdirt fan and a huge Masnick fan. I do wish, however, that my email address had been used to ask me a question or two.
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DS, 15 Feb 2011 @ 8:33pm

Re: Re: Re: Re:
If you weigh more than a duck, you illegally downloaded!
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DS, 15 Feb 2011 @ 8:37pm

Re: Re: Re:
Well... what? Is there someone wrong if someone wants to watch gay porn?

Also, are you implying that if she's found not guilty of "bypassing payment steps" that random people who live or have ever visted the house should be brought into a court of law without evidence as well?
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DS, 15 Feb 2011 @ 8:39pm

Re: Re: Re:
So, did you produce the gay porn in question, or just star in it?
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MrWilson, 15 Feb 2011 @ 9:23pm

Re: Re: Re: Re: Re:
"And what do we burn besides witches?"

"More copyright violators!"
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Lawrence Weinbaum, 15 Feb 2011 @ 11:34pm

"Marc John Randazza" is asking for class and ethics? That's hysterical. Are your shakedowns ethical? Practice it first yourself, then you can ask for it.

If you want a website to be a mouthpiece for your unending propaganda, stick to xbiz.
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The eejit (profile), 16 Feb 2011 @ 12:50am

Re: Our comment on the suit
Thank you for at least taking the time to address the issues raised. At least you have responded, unlike a considerable number of other commentors.

As for your questions offer, I'd like to try and take you up on that:

1) Please clarify the differences between the infringement cases we so often see as shakedowns and this one, which appears to be the same on the surface, if possible.

2) In some cases, a prior settlement is useful, but it's being abused by firms such as Dunlap, Grubb and Weaver. What suggestions would you propose to reduce the levels of abuse, whilst encouraging genuine settlement cases?

3) the suit mentioned above seems pretty far-fetched, timeline-wise. What would normally happen in a case where there is a high possibility of a hacked network?

Thank you for your time.
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Richard (profile), 16 Feb 2011 @ 3:34am

Re: Re: Re: Re: Re:
and how do you expect them to do it?

I don't. I expect them to realise that pursuing this kind of case is pointles and give up.
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Richard (profile), 16 Feb 2011 @ 4:21am

Re: Our comment on the suit
. This is not a P2P case. This is a hacking case. While my client has brought copyright claims in the case, the key issue here is that these defendants are accused of hacking into Liberty Media's members' areas without authorization.

Although this is a hacking case the evidence you are presenting is just an IP address as it would be in a P2P case - so it isn't very different.

In fact - since it is a hacking case this evidence is even more questionable than it would be in a P2P case.
It is a reasonable assumption that anyone who has the technical capability to hack the website also has the technical ability to forge their IP address - therefore the IP address that you see is highly likely to be inaccurate. In these circumatances it is unethical to pursue the claim without further investigation - since the probability is that you will be pursuing and innocent person.

The potentially embarrassing nature of your clients business just makes this worse.
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Wind Song (profile), 16 Feb 2011 @ 4:22am

"I do, however, ask that Techdirt show just a little bit of class and ethics."

Like outing vulnerable gay teenage internet users to their parents and then trying to financially destroy their families? Or extorting money from people under the threat of making their porn habits (and sexual preferences) public knowledge?

As classy and ethical as that, Mr Randazza?
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Anonymous, 16 Feb 2011 @ 4:28am

Exactly right, Wind Song. Regardless of how much Mr. Randazza may have done to protect free speech, the potentially tragic fallout from his mass p2p cases overwhelmingly negates the bit of good he may ever have accomplished.
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Michael, 16 Feb 2011 @ 4:33am

Re: Our comment on the suit
Thanks again for responding. I too think you have done some great work defending our free speech rights - thanks a lot for that.

"This is not a P2P case. This is a hacking case"

If so, do you know if criminal charges are being filed?
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alex, 16 Feb 2011 @ 4:51am

Re: Re: Our comment on the suit
hacking probably means going in some irc chatroom and copying a login/password listed there into the website form
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Michael, 16 Feb 2011 @ 4:55am

Re: Re: Re: Our comment on the suit
Possibly, but the lawyer for the plaintiff indicated that this woman is being accused of hacking. He's a lawyer and knows the difference between using a colloquial term and making an accusation that someone has committed a crime, so I assume he has not mis-spoken and has evidence that a crime has been committed.
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iamtheky (profile), 16 Feb 2011 @ 5:02am

Re: Randazza
You can expect far more berating than cheerleading. There is no need to ask questions when you file publicly. How many 'hackers' get told if they pay $$ they can return to their daily activities.

And if there is no conspiracy, and many john does, think there may be some other technical flaws allowing access?
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average_joe (profile), 16 Feb 2011 @ 5:57am

Re: Our comment on the suit
I was a little disappointed to find this "hit piece" on here, yet nobody contacted me asking for a comment. Mr. Masnick certainly knew how to contact me last week when he knew someone who wanted a favor from me. So, I am surprised that he didn't bother to contact me to get a comment about this case. . . .

And no response from Mike. Really classy, Mike. Real classy. Another POS hit piece from techdirt.
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Davey, 16 Feb 2011 @ 5:58am

"I don't expect Techdirt to cheerlead for me on every case" - especially those like this one and your mass John Doe cases where your clients are using "evidence" that is technologically unsupportable, i.e. an IP address equals an infringer. Techdirt readers are way too smart for that.
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RGN, 16 Feb 2011 @ 6:04am

Re: Our comment on the suit
"I am surprised that he didn't bother to contact me to get a comment about this case. . . ."

Like you reached out to all the people you have sued/will sue to get their side of the story before exposing them to scrutiny? Doesn't feel good, does it?
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average_joe (profile), 16 Feb 2011 @ 6:35am

Re:
"I don't expect Techdirt to cheerlead for me on every case" - especially those like this one and your mass John Doe cases where your clients are using "evidence" that is technologically unsupportable, i.e. an IP address equals an infringer. Techdirt readers are way too smart for that.

Are they "too smart for that"? I hadn't noticed.

You do understand that it's never been the argument that the IP address necessarily means that the particular subscriber is the infringer. The IP address is evidence that allows the case to move forward. If you couldn't move forward using the IP address, how could you ever identify the actual infringer?

What you complainers never, ever do is suggest a viable alternative method for rights holder to go after infringers.
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Davey, 16 Feb 2011 @ 6:47am

Re: Re:
"You do understand that it's never been the argument that the IP address necessarily means that the particular subscriber is the infringer."

Oh, please. When the *account holder* of the IP address gets a letter saying pay up or we'll sue *you* for infringing, that's exactly the argument that's being used.

"The IP address is evidence that allows the case to move forward. If you couldn't move forward using the IP address, how could you ever identify the actual infringer?"

But these mass p2p cases almost never do move forward, do they? Because that's not the point of them. Identifying the actual infringer is expensive. Using false arguments to scare people into settling is the goal. From an article in South Florida Gay News, concerning one of the Liberty Media mass suits: "Randazza said his company doesn�t want to sue these individuals and that�s why the company offered the amnesty."
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Richard (profile), 16 Feb 2011 @ 7:17am

Re: Re:
What you complainers never, ever do is suggest a viable alternative method for rights holder to go after infringers.

That is because there isn't one. If you grasp that point then you will have made a big step forward.

There is no reason to suppose that every problem must have a solution.

Otherwise you get into the "something must be done, this is something therefore it must be done" fallacy.
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Shon Gale (profile), 16 Feb 2011 @ 7:17am

Hope you follow through and continue reporting on this so we can read the Judgement of the court. Interesting defense. I like it.
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average_joe (profile), 16 Feb 2011 @ 7:17am

Re: Re: Re:
Oh, please. When the *account holder* of the IP address gets a letter saying pay up or we'll sue *you* for infringing, that's exactly the argument that's being used.

No, it's not. They are able to sue because there is prima facie evidence of infringement. It is not necessarily true that the subscriber in fact infringed. They could very well be able to mount a successful defense.

But these mass p2p cases almost never do move forward, do they? Because that's not the point of them. Identifying the actual infringer is expensive. Using false arguments to scare people into settling is the goal. From an article in South Florida Gay News, concerning one of the Liberty Media mass suits: "Randazza said his company doesn�t want to sue these individuals and that�s why the company offered the amnesty."

There is no "false arguments" being used. Whether or not to move forward with the case is the right holder's prerogative, just as it's the prerogative of the accused subscriber to settle or not.

And again, none of you has ever suggested a viable for rights holders to identify infringers.
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Richard (profile), 16 Feb 2011 @ 7:24am

Re: Re: Re: Re:
And again, none of you has ever suggested a viable for rights holders to identify infringers.

Because there isn't one.
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Anonymous Coward, 16 Feb 2011 @ 7:59am

""It is not necessarily true that the subscriber in fact infringed. They could very well be able to mount a successful defense."" A successful defense? At what cost? The beauty of this scam is most people will not want to go to trial to prove their innocence, they simply cannot afford the lawyers fees. This fact is exploited, extortionists consistently remind those they accuse to just settle, as it is much cheaper. What is occurring is a total misuse of the judicial system.
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Aaron, 16 Feb 2011 @ 8:04am

Liberty Media
And here's some commentary from individuals who actually took the time to read the case.

http://blog.internetcases.com/2011/02/03/subpoena-attorney-anonymous-isp-unmask-john-doe-co pyright-infringement/

http://www.techdirt.com/articles/20110215/05093813105/woman-electrician-hit s-back-liberty-media-asks-dismissal-p2p-shakedown-saying-she-never-downloaded-gay-porn.shtml#comment s
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Re: Re: Re: Re: Re:, 16 Feb 2011 @ 8:54am

If this was "ghost-written" by another attorney, he or she better have thought about the ethical issues of doing so in New Jersey. The state bar considers ghostwriting pleadings ethical only within certain limited circumstances: http://lawlibrary.rutgers.edu/ethics/acpe/acp713_1.html
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Mike Masnick (profile), 16 Feb 2011 @ 10:53am

Re: Re: Our comment on the suit
And no response from Mike. Really classy, Mike. Real classy. Another POS hit piece from techdirt.

There was a response. Via email. And things have been cleared up. You'll see more on the site eventually.
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Anonymous Coward, 16 Feb 2011 @ 10:59am

Re: Re: Re:
"It is unlikely she personally is the consumer of gay porn. But if someone in her household is, well... :)"

...then they should sue that person, not her.

It makes sense to hope that, *if* they're going to sue her, they do it in New Jersey.

But if you think it's unlikely she infringed the copyright, why hope for her to be sued at all?
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average_joe (profile), 16 Feb 2011 @ 11:01am

Re: Re: Re: Our comment on the suit
Well, good then. Thanks.
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Anonymous Coward, 16 Feb 2011 @ 11:04am

Re: Re: Re:
"Josh, they can only name the person who's name is on the internet connection. It it sort of the same as being responsible for your own phone bill, when it's in your name, even if it is someone else in your family calling those 900 numbers for spiritual guidance."

If you can point me to any source of law saying that a defendant can be liable for copyright infringement simply because someone else used an internet connection that defendant paid for, I'd be interested to see it.

I don't believe such law exists.
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Anonymous Coward, 16 Feb 2011 @ 11:06am

Re: Re: Re: Re: Re:
Not sure if they can, but I don't see why we should hope for a non-infringing defendant to bear the financial burden for this suit/discovery as opposed to the copyright holder.
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Anonymous Coward, 16 Feb 2011 @ 11:13am

Re: Re: Re:
The IP address is evidence. It does not need to be 100% foolproof evidence for the suit to be proper or ethical.

100% foolproof evidence does not exist.
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Anonymous Coward, 16 Feb 2011 @ 11:16am

Re:
This is true and a problem. But that doesn't make it a better or worse problem than the problem of not being able to address infringement.

I know that Techdirt readers generally don't care much about infringement, which is why they identify more strongly with the defendants' problems.
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Jeff Rife, 16 Feb 2011 @ 11:18am

Re: Re:
Well the "good" advice has been to settle or let us try to get a better amount to settle for.

I assume that your quotes around "good" mean that you are being facetious, since it is never good advice to tell someone to pay money so they won't get sued for something they didn't actually do.

It's far better to make them take you to court and make them pay for your legal fees when they lose.
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Marc J. Randazza, 16 Feb 2011 @ 11:42am

Re: Re: Re: Our comment on the suit
I will confirm that Mike did reply to me privately, it was classy, it was reasonable, and I remain a loyal fan.
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Anonymous Coward, 16 Feb 2011 @ 12:37pm

Re: Re: Re: Re:
Yet.
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Anonymous Coward, 16 Feb 2011 @ 12:43pm

Re: Re: Re: Re: Re:
TECHNOLOGY HARD!!!
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vivaelamor (profile), 16 Feb 2011 @ 1:25pm

Re: Re: Re:
"Well, I don't know this AC, but I hope he gets raped in his eye-socket with AIDS by xmas critters :)"

Is it supposed to be funny because it's a South Park reference? They should do an episode devoted to Hitler to nullify Godwin's Law.
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vivaelamor (profile), 16 Feb 2011 @ 1:29pm

Re: Re: Re:
"It is unlikely she personally is the consumer of gay porn. But if someone in her household is, well... :)"

Isn't the claim against her specifically? If so then what has her household got to do with it?
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vivaelamor (profile), 16 Feb 2011 @ 1:34pm

Re: Re: Re: Re:
"So, did you produce the gay porn in question, or just star in it?"

Please explain. I'm intrigued how this could possibly be something other than homophobia.
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Anonymous Coward, 16 Feb 2011 @ 1:39pm

Re: Re: Re:
Here's another good piece of advice: don't give advice about things you don't know about.

It is rare, in the U.S. anyway, for a winning party to get their legal fees paid by the losing party.

It is common (to a near certainty), that litigation is really expensive.

Thus, it is often good advice to settle a dispute for a certain sum rather than bear (a) the almost certainly high expense of litigation, and (b) the potential cost of a judgment for damages.
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vivaelamor (profile), 16 Feb 2011 @ 2:00pm

Re: Re: Re: Re:
"They are able to sue because there is prima facie evidence of infringement."

But it's not prima facie evidence that the subscriber was the infringer, which was the issue raised.

"none of you has ever suggested a viable for rights holders to identify infringers."

Are any of us claiming that a viable way exists?
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vivaelamor (profile), 16 Feb 2011 @ 2:03pm

Re: Re: Re: Re:
"The IP address is evidence. It does not need to be 100% foolproof evidence for the suit to be proper or ethical."

No, but it needs to be reasonable. The mere fact that other people live in the house may reduce the chance of the subscriber being the offender by 100% (if they don't use the internet).
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vivaelamor (profile), 16 Feb 2011 @ 2:05pm

Re: Re:
"But that doesn't make it a better or worse problem than the problem of not being able to address infringement."

Why doesn't it? On one hand you have companies complaining about 'lost sales' while on the other you have actual costs incurred by innocent people.
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Anonymous Coward, 16 Feb 2011 @ 2:13pm

Re: Re:
What you complainers never, ever do is suggest a viable alternative method for rights holder to go after infringers.

There already is a viable method. Its called the court system.

What is NOT a viable idea is claiming a "song" is worth $1,500 per infringement. Or having the FBI enforce the private contract of infringement.
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average_joe (profile), 16 Feb 2011 @ 2:30pm

Re: Re: Re: Re: Re:
No, it is prima facie evidence that the subscriber is the infringer. That's why a case against such a subscriber can withstand a motion to dismiss. It's not frivolous, and the balance of probabilities is that in fact the subscriber is the infringer.
[ link to this | view in thread ]
vivaelamor (profile), 16 Feb 2011 @ 2:52pm

Re: Re: Re: Re: Re: Re:
"No, it is prima facie evidence that the subscriber is the infringer."

Iif IP address is valid prima facie evidence of identity then that's a really low bar. My understanding is that it should be enough evidence to win a case unless refuted. I'm not sure the the defendant pointing out that an IP address is insufficient evidence is what they mean by refuted.
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Teddy_Bear, 16 Feb 2011 @ 2:53pm

Odds are that there are PLENTY of homeowners who have their Internet access in their names while their teen age kid is downloading something. Odds could almost be 50/50 that the person on the bill is the person tapping the keys at any given time.
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Anonymous Coward, 16 Feb 2011 @ 3:38pm

Re: Re: Re: Re: Re:
There may be plenty of evidence that the subscriber is not the infringer, but it's not the plaintiff's burden to come up with such potential defense evidence that may or may not exist.

Evidence that a person paid for an IP address that was used to infringe is certainly enough evidence to file the suit and progress to discovery, at which point both sides can get more evidence from the other side.
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Anonymous Coward, 16 Feb 2011 @ 3:38pm

Re: Re: Re:
"the private contract of infringement"

The what now?
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Anonymous Coward, 16 Feb 2011 @ 3:39pm

Re: Re: Re: Re: Our comment on the suit
He didn't say a crime has been committed. He used a colloquial term that is not necessarily associated with some particular criminal statute.
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Anonymous Coward, 16 Feb 2011 @ 3:43pm

Re: Re: Re:
Well, first, I don't think whether a party is a "company" or an "actual person" entitles them to any bias from the judicial system.

Second, both parties are incurring costs associated with the litigation.

Third, in some cases you'll have innocent defendants incurring costs, and in some cases you'll have owners of legitimately infringed copyrights incurring costs.

I think neither situation is desirable. I don't want innocent people having to spend money to defend false claims. I don't want copyright holders (which includes "actual people") to have their works infringed with impunity.

So, that's why I say it's not clear which problem is better or worse.
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vivaelamor (profile), 16 Feb 2011 @ 4:23pm

Re: Re: Re: Re: Re: Re:
"There may be plenty of evidence that the subscriber is not the infringer, but it's not the plaintiff's burden to come up with such potential defense evidence that may or may not exist."

No, but it is their burden to come up with enough evidence for a case. Even the clerks should know by now that IP addresses aren't sufficient evidence.

"Evidence that a person paid for an IP address that was used to infringe is certainly enough evidence to file the suit and progress to discovery, at which point both sides can get more evidence from the other side."

How many cases have to be dropped before it is accepted that an IP address isn't enough evidence? The system is supposed to avoid unnecessary cases by stopping ones that have no hope of success. Are you arguing that a case can be won on the basis of an IP address alone?
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vivaelamor (profile), 16 Feb 2011 @ 4:29pm

Re: Re: Re: Re:
"Well, first, I don't think whether a party is a "company" or an "actual person" entitles them to any bias from the judicial system."

Where did you get "actual person" from? It wasn't me. Your whole point here seems to be a straw man.

"Second, both parties are incurring costs associated with the litigation."

But only one had the choice to avoid them by not litigating.

"Third, in some cases you'll have innocent defendants incurring costs, and in some cases you'll have owners of legitimately infringed copyrights incurring costs."

I didn't take issue with legitimacy, I took issue with the concept of lost sales V actual costs. Lost sales are hypothetical, actual costs aren't.

"I think neither situation is desirable. I don't want innocent people having to spend money to defend false claims. I don't want copyright holders (which includes "actual people") to have their works infringed with impunity."

And my point is that having your work infringed is not equivalent to spending money. Again you throw in "actual people" like it's something I said.

"So, that's why I say it's not clear which problem is better or worse."

It's clear which is measurable and which is hypothetical.
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Anonymous Coward, 16 Feb 2011 @ 5:15pm

Re: Re: Re: Re: Re: Re: Re:
It might not be sufficient to win a case, but it's sufficient to file a case and get to discovery. That link (to another Techdirt article) doesn't state otherwise.

Having an IP address =/= "no hope of success."

I'm not sure if you understand the litigation or discovery process very well. That's not meant to be a dig, as most non-attorneys (and many transactional attorneys) do not.

You merely have to have a good faith belief that facts exist showing a claim is *plausible* to file suit.

At that point (well, a little bit later, but close enough), you can get "discovery." This means you can depose people, request documents, etc. in the hopes of gathering evidence to support your claims (or defenses, or counterclaims, etc.)

If, after discovery, you don't have enough evidence that a jury could (not necessarily *will*, but *could*) see the facts your way to support your claim, then you might get could case dismissed before trial (or the plaintiff might win before trial).

If there's evidence supporting both factual accounts, then it goes to trial.

So, what I'm saying is that evidence showing an IP address was used to infringe is sufficient evidence to support a *plausible* claim that the subscriber for that IP address infringed.
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Anonymous Coward, 16 Feb 2011 @ 5:22pm

Re: Re: Re: Re: Re:
My apologies for mistakenly attributing "actual people" to you. I jumbled up "actual costs" with "innocent people."

In some cases, it is true that people infringe in a manner causing actual economic damage to the copyright holder, even if some cases of infringement do not actually damage the copyright holder.

In some cases, it is true that innocent defendants may be accused, even if in some cases defendants do infringe in a manner damaging the copyright holder.

I don't know what the best way is to correct the first problem without allowing/increasing the second, or correcting the second problem without allowing/increasing the first.

I don't see either as more or less actual/hypothetical. They both happen.
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Ronald J Riley (profile), 16 Feb 2011 @ 7:06pm

Marc Randazza does have a good reputation
Marc Randazza does have a good reputation and that makes me wonder if he knows something we don't.

Ronald J. Riley,

President - www.PIAUSA.org - RJR at PIAUSA.org

Other Affiliations:
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
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Richard (profile), 17 Feb 2011 @ 1:52am

Re: Re: Re: Re: Re: Re: Re: Re:
It might not be sufficient to win a case, but it's sufficient to file a case and get to discovery.
It may at present be regarded as sufficient to move to the next stage. However in a hacking case (as opposed to a P2P case) I think it should not be. Anyone smart enough to hack a reasonably secure system is smart enough to forge an IP address. If your system isn't reasonably secure you should fix it before you even think about bringing legal claims.
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Richard (profile), 17 Feb 2011 @ 1:56am

Re: Marc Randazza does have a good reputation
Marc Randazza does have a good reputation and that makes me wonder if he knows something we don't.

He replied once on this thread and he didn't take advantage of the opportunity to enlighten us. He didn't even claim to know something that he was not at liberty to divulge so you can stop wondering.
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vivaelamor (profile), 17 Feb 2011 @ 5:50am

Re: Re: Re: Re: Re: Re:
"In some cases, it is true that people infringe in a manner causing actual economic damage to the copyright holder"

The same can be said of many legal activities. The point is that it's probable damages (at best), V actual costs. To say that the probable damages are the bigger issue when they are notoriously inaccurate and without making an actual calculation anyway seems wrong.

"I don't see either as more or less actual/hypothetical. They both happen."

One is measurable, the other is not; how is one not more actual than the other?
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vivaelamor (profile), 17 Feb 2011 @ 6:05am

Re: Re: Re: Re: Re: Re: Re: Re:
"It might not be sufficient to win a case, but it's sufficient to file a case and get to discovery. That link (to another Techdirt article) doesn't state otherwise. "

Maybe my lack of familiarity with the US legal system is at fault, but my understand is that the lowest level of proof for civil cases is that something is more likely than not. Are you seriously suggesting that an IP address is more likely than not to identify an specific person?

"You merely have to have a good faith belief that facts exist showing a claim is *plausible* to file suit."

The issue here is that the claim isn't plausible enough.

"So, what I'm saying is that evidence showing an IP address was used to infringe is sufficient evidence to support a *plausible* claim that the subscriber for that IP address infringed."

If it were then why do they keep dropping the cases?
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Anonymous Coward, 17 Feb 2011 @ 6:35am

Re: Re: Re: Re: Re:
Because the only way that someone could make such blind wild statements would be because they have a direct connection to the movie, or the case.

Or that Green Snowflake AC is implying that there is something wrong with watching gay porn, so I'm using the shame that they are trying to put on someone else onto themselves.

And sometimes a gay joke isn't done out of hatred of homosexuals.

Doubly so when the person making the joke wrote, just scant moments before "Well... what? Is there someone wrong if someone wants to watch gay porn?".

The fact that you instantly saw my comment as homophobia says a lot more about you than it does me.
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DS, 17 Feb 2011 @ 6:36am

Re: Re: Re: Re: Re: Re:
Sorry, forgot to type in my two letter name...
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Anonymous, 17 Feb 2011 @ 6:56am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"If it were then why do they keep dropping the cases?"

Because judges are telling them they have to sue each defendant individually, and that is not cost-effective in their scheme. They are in these suits to make fast, easy money. The pre-trial settlement extortion letters they send out make them gobs of money for almost no work. Especially in gay porn cases - there is still enough stigma attached to it that even most innocent people won't want their identities released in association, so they'll settle.

I think the mass extortion part of the scheme is here to stay unless someone challenges them on that part of it, which no one has yet. Well, the cable companies have started to fight mass subpoenas for identifying ip address holders, but to my knowledge no one has argued against the practice of sending out thousands of "pay up or we'll sue" letters at once. I wish someone like the Electronic Frontier Foundation would take that on, and hopefully nip these types of suits in the bud.
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vivaelamor (profile), 17 Feb 2011 @ 9:54am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Because judges are telling them they have to sue each defendant individually, and that is not cost-effective in their scheme."

Just to clarify, they were dropping cases before that. The link was from 2006.
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Anonymous, 17 Feb 2011 @ 10:05am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Just to clarify, they were dropping cases before that. The link was from 2006."

But it hasn't slowed them down a bit, has it? They still get a bit initial payout from the extortion letters, and it doesn't cost too much to *try* to take the rest to the next level. So there is really no reason for this to stop this method of making money.
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Anonymous, 17 Feb 2011 @ 10:07am

Re:
crap, typing too fast, that should read "big initial payout"
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vivaelamor (profile), 17 Feb 2011 @ 10:39am

Re: Re: Re: Re: Re: Re:
"Or that Green Snowflake AC is implying that there is something wrong with watching gay porn, so I'm using the shame that they are trying to put on someone else onto themselves."

Fair enough. Had your posts and his been the only ones in the thread I might have spotted that. Techdirt doesn't have very advanced threading, which is why I tend to be specific about context.

"And sometimes a gay joke isn't done out of hatred of homosexuals. "

Most of them aren't, but when I saw someone using gay as a disparagement just the other week, someone brought out the excuse that 'it's just another meaning'. You don't have to hate something to belittle it.

'Doubly so when the person making the joke wrote, just scant moments before "Well... what? Is there someone wrong if someone wants to watch gay porn?".'

I didn't notice that comment (and probably wouldn't have noted the name if I did). Apologies, but I'm just not that good at keeping track of things.

"The fact that you instantly saw my comment as homophobia says a lot more about you than it does me."

No it doesn't, but I'll tell you anyway. I grew up in a school where kids called everything they didn't like gay and tended to be homophobic in the very real sense. I'm not in school any more so I choose not to put up with people treating homosexuality like a joke. I may be hypersensitive to the issue but I'm happy with that.

I responded to your comment with a polite request for an explanation, which you have provided. The last person who I responded to for an unequivocally homophobic comment I called a moron.
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Anonymous Coward, 17 Feb 2011 @ 12:43pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Maybe my lack of familiarity with the US legal system is at fault, but my understand is that the lowest level of proof for civil cases is that something is more likely than not."

That is to win a case, not to file a case and proceed to the discovery process.

"Are you seriously suggesting that an IP address is more likely than not to identify an specific person?"

I'm not saying it is, but I don't think that's necessarily some absurd proposition. I wonder what the percentages actually are. In other words, is the person who signed up for internet service usually (i.e., more than 50% of the time) the one using that service and associated IP address.

"If it were then why do they keep dropping the cases?"

There are certainly lots of reasons for that, but I'm not aware of anything suggesting that failure to meet the low standard needed to simply file a lawsuit and proceed to discovery, based on an IP address, is the reason.
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Anonymous Coward, 17 Feb 2011 @ 12:48pm

Re: Re: Re: Re: Re: Re: Re:
I don't think the fact that people sometimes lose money legally is relevant at all.

Ialso don't think distinguishing between "costs" and "damages" makes sense in this scenario. An opportunity cost is just as costly as another type of cost.

More to the point, I don't think that something must be measurable to an absolute certainty to be worth considering and weighing, even against a cost that is more certainly measurable.

I mean, if that were the case, we wouldn't consider the future lost earnings of someone paralyzed in a car crash, because we'd care more about the defendant's measurable legal expenses.

I think that's nonsense.
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Anonymous Coward, 17 Feb 2011 @ 12:49pm

Re: Re: Marc Randazza does have a good reputation
I don't think "he didn't say something so something doesn't exist" is valid.
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DS, 18 Feb 2011 @ 10:36am

Re: Re: Re: Re: Re: Re: Re:
Fair enough, but realize that just because you assign meaning to a word, it does not mean that the person saying the word assigns the same meaning. Look at the up and coming use of the term Ginger. It could be used as a compliment, an insult, or as a flavor/ingredient.

Just about all jokes, regardless of intent or subject matter, can be seen as offensive to someone.

But you just confirmed that when you saw a my comment, you thought it was from a place of anger because of how you felt based on events that took place when you grew up. You've admitted that you are hypersensitive to some types of jokes. I'm not hypersensitive about any jokes, and request explanations if I am able to find an opportunity to be offended. Again, (but keep in mind, it's not intended to be disparaging, as you asked an honest question, and you were able to understand an honest answer) the offensive content that you detected said a lot more about your background and sensibilities, than it did any of my thoughts on homosexuality (which by the way, is I don't care what someone's kink is... why would I or should I care what consenting adults do when they engage in behaviors that do not cause harm to a non-involved party?). That's essentially the point that I was trying to make.
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vivaelamor (profile), 18 Feb 2011 @ 12:47pm

Re: Re: Re: Re: Re: Re: Re: Re:
"Look at the up and coming use of the term Ginger. It could be used as a compliment, an insult, or as a flavor/ingredient. "

Which is why context is important. Having not seen your other comments (or connected it with Anon's previous comment which was further up the thread), your comment seemed homophobic. In future I will endeavour to make more effort than reading the parent post to get the context.

As for the meaning, while the exact origin of gay being used as a general derogative seems unknown, it came about around the same time that the gay community made widespread use of the word to describe themselves. While both uses might be OK for people not sensitive to such issues, for the rest of us it's as grating as hearing someone called a faggot, or queer, or a pansy. The people who defend such usage tend to ignore the fact that none of those using it seem to be aware of an origin other than homosexual or happy. Generally words used as a disparagement are meant as a comparison, saying something is shit implies that your opinion of it is on par with your opinion of faeces.

"Just about all jokes, regardless of intent or subject matter, can be seen as offensive to someone. "

I love offensive jokes. I watch South Park, Sarah Silverman and many other edgy comedy shows and acts. What they tend to have in their favour though, is that it's obvious they're mocking the very idea that's offensive because that is part of their comedy persona. I'm also a big fan of freedom of speech, including the freedom to call people morons when they're being bigoted, whether it's funny or not.

"the offensive content that you detected said a lot more about your background and sensibilities, than it did any of my thoughts on homosexuality"

No, it didn't. You are building the idea that challenging humour only happens because someone is hypersensitive. That is bullshit, not least of which because the only reason I thought your comment needed challenging was because I didn't understand the context. That may say something about my observational skills but it says nothing about my sensibilities, which are coincidental. Had the same comment been said by someone who wasn't being (apparently obviously) sarcastic then I would have no reason to apologise for suggesting it was homophobic.

"which by the way, is I don't care what someone's kink is"

Homophobia isn't always about hate, often it is merely a lack of respect. For example, referring to homosexuality as a kink implies a lack of distinction between sexual orientation and lifestyle choice. That doesn't make you homophobic, but it does suggest a lack of understanding about the issue.
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vivaelamor (profile), 18 Feb 2011 @ 1:53pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"That is to win a case, not to file a case and proceed to the discovery process."

From West's Encyclopedia of American Law on prima facie: "A fact presumed to be true unless it is disproved.

For most civil claims, a plaintiff must present a prima facie case to avoid dismissal of the case or an unfavorable directed verdict. The plaintiff must produce enough evidence on all elements of the claim to support the claim and shift the burden of evidence production to the respondent. If the plaintiff fails to make a prima facie case, the respondent may move for dismissal or a favorable directed verdict without presenting any evidence to rebut whatever evidence the plaintiff has presented. This is because the burden of persuading a judge or jury always rests with the plaintiff".

An IP address only provides evidence of the subscriber, not the infringer. You cannot say that it is presumed that the subscriber is also the infringer, because that's a baseless assumption.

"I'm not saying it is, but I don't think that's necessarily some absurd proposition. I wonder what the percentages actually are. In other words, is the person who signed up for internet service usually (i.e., more than 50% of the time) the one using that service and associated IP address. "

Given that the burden of proof starts with the plaintiff, I would hope that they could tell us. Regardless, here's a start: "The number of one-person households has been on the increase worldwide. In 2006, the number of single households worldwide reached 202.6 million (up from 153.5 million in 1996), accounting for 11.8% of total households."

It goes on to say that the percentage for North America is just under 27%.

"There are certainly lots of reasons for that, but I'm not aware of anything suggesting that failure to meet the low standard needed to simply file a lawsuit and proceed to discovery, based on an IP address, is the reason."

Perhaps you could offer some other possible reasons. I'm sure they're there, but to assess the possibilities I would need to know them.
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vivaelamor (profile), 18 Feb 2011 @ 2:02pm

Re: Re: Re: Re: Re: Re: Re: Re:
"I don't think the fact that people sometimes lose money legally is relevant at all."

Feel free to leave the discussion any time.

"More to the point, I don't think that something must be measurable to an absolute certainty to be worth considering and weighing, even against a cost that is more certainly measurable."

Neither do I. But we're not weighing carefully thought out economic estimations here, we're weighing the words of organisations who are notorious for lying (or being 'creative') about anything to do with money.

"I mean, if that were the case, we wouldn't consider the future lost earnings of someone paralyzed in a car crash, because we'd care more about the defendant's measurable legal expenses."

We're not comparing future lost earnings, we're comparing supposed previous lost profits. Plus, in your example the equivalence would be whether there was an injury, not the damages involved.
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Mr Sparky The Nwa Electrician, 18 Feb 2011 @ 3:31pm

Bout time!
Good!! I'm glad to see someone fighting back!!!
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DS, 18 Feb 2011 @ 4:54pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"While both uses might be OK for people not sensitive to such issues, for the rest of us it's as grating as hearing someone called a faggot, or queer, or a pansy."

Fair enough, but what about things like "Queer Eye for the Straight Guy". If that's OK, then it's an OK word to use. Also, someone being called a faggot or pansy does not always imply that someone's a homosexual, nor does being a homosexual imply that you are a faggot or a pansy. Again, words are fluid. They still may sound grating to you, but I could say the same thing about a lot of other words that I find 'low brow'.

"You are building the idea that challenging humour only happens because someone is hypersensitive."

No, I was trying to make the point that humor is humor, and someone being hypersensitive about something does not negate or change the intent or meaning.

"Homophobia isn't always about hate, often it is merely a lack of respect."

I'm not sure why for me to not care if someone is gay or not, that I would also need to "respect" them if they were (or were not). I respect people based on their behaviors and accomplishments, not because of their sexual orientation, race, hometown, favorite sports team, etc.

For me to respect something, I would have to care about that thing.

For example, one of my heroes, someone I do respect, James Randi came out as being gay somewhat recently. I feel bad for the pain that he felt having to hide himself, but when it comes down to it, I don't care... His sexuality wasn't something that I ever wondered about. So no, I don't "respect" that someone is gay, the same way I don't "respect" when someone is straight.

I used the term 'kink' to make it more of a general statement that I honestly don't care what consenting adults do to each other.

Either way, I'm going to punch out on this one, because well, this is a discussion to be had over a good six pack... and if we did meet over a sixer, I'm sure you'd find we had more in common than you may realize.
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mattgmd, 19 Feb 2011 @ 12:54am

"A lawyer with a briefcase can steal more money than a hundred men with guns." -Mario Puzo, 'The Godfather'
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vivaelamor (profile), 20 Feb 2011 @ 7:33pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Fair enough, but what about things like "Queer Eye for the Straight Guy". If that's OK, then it's an OK word to use."

I can't say I've ever watched the show, but from what little I know about it I wouldn't want to use it to defend anything. Regardless, some people use the word as an endearment, usually friends or those who aren't heterosexual themselves (see usage of the word nigger for a comparable case). Two of the Queer Eye creators are openly gay. It can be an offensive word though, even the dictionary agrees with me on that.

"Also, someone being called a faggot or pansy does not always imply that someone's a homosexual, nor does being a homosexual imply that you are a faggot or a pansy."

It wasn't my intention to imply that those words refer specifically to homosexuals. They were merely brought up as examples of commonly heard offensive terms.

"They still may sound grating to you"

They don't sound grating to me, what I meant was that I find the commonly offensive usage of the words grating. Unless you're being ironic then queer is an offensive word to refer to gays. If you're being ironic then it helps to make sure you're distinguished from those who use the word offensively. A show devoted to gays, by gays, is damned obviously using the word ironically.

"No, I was trying to make the point that humor is humor, and someone being hypersensitive about something does not negate or change the intent or meaning. "

But context does distort it. Your intention doesn't matter if the audience is unaware of it. While I admit to being the one at fault for missing the context, it serves as an example of using irony to mock something then potentially backfiring and having the opposite effect. You apparently don't like people making homophobic comments, or you probably wouldn't mock them, so I would hope you find it equally important to not seem homophobic yourself.

"I'm not sure why for me to not care if someone is gay or not, that I would also need to "respect" them if they were (or were not). I respect people based on their behaviors and accomplishments, not because of their sexual orientation, race, hometown, favorite sports team, etc."

I think you're muddled about my use of the word respect here. I mean respect as in treating equally, not treating better.

'For example, one of my heroes, someone I do respect, James Randi came out as being gay somewhat recently. I feel bad for the pain that he felt having to hide himself, but when it comes down to it, I don't care... His sexuality wasn't something that I ever wondered about. So no, I don't "respect" that someone is gay, the same way I don't "respect" when someone is straight.'

You can care about the fact that he was oppressed without caring about the fact that he's gay. I'm not sure why you believe that you don't respect when someone is straight. You seem to be using an overly narrow definition of respect.

"I used the term 'kink' to make it more of a general statement that I honestly don't care what consenting adults do to each other. "

Referring to homosexuality as a kink implies that it is merely an abnormal sexual practice, rather than a wider issue. You also say that you honestly don't care about what consenting adults do to each other, which implies that the issue is about a decision only adults can make. Obviously that wasn't your intention, but by narrowly defining the issue as something to do with sex between adults you have completely disregarded all gay children. That shows a lack of respect.

"Either way, I'm going to punch out on this one, because well, this is a discussion to be had over a good six pack... and if we did meet over a sixer, I'm sure you'd find we had more in common than you may realize."

I would find that prohibitive as I don't drink alcohol.
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SadMom (profile), 8 Jun 2011 @ 5:44pm

Re: Our comment on the suit
Mr. Randazza,
Do you have any idea how this is ruining lives? Do you care? My teenage son hasn't been able to get out of bed or eat without vomiting since we received notice of this suit. Is Liberty Media going to be responsible if he hurts himself because of this?
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