Yet Another Study Says Enforcement Won't Bring Back Consumer Spending On Music; But Will Strangle New Biz Models

Judge Says Mass Suing People For Infringement Is Perfectly Fine And Even 'Benefits' Defendants

from the uh-what? dept

Thu, Mar 24th 2011 8:28am — Mike Masnick

While a bunch of courts have rejected attempts by various law firms and movie producers to join together thousands of totally unrelated people in charges of copyright infringement of various movies, one judge has now said that it's perfectly fine to join all those defendants together. In fact, Judge Beryl Howell directly suggests that the defendants are better off this way:

"Given the administrative burden of simply obtaining sufficient identifying information to properly name and serve alleged infringers, it is highly unlikely that the plaintiffs could protect their copyrights in a cost-effective manner. Indeed, Time Warner urges the Court to sever the defendants for this very reason. Time Warner asserts that, if joinder were disallowed, its burden of complying with subpoenas would be diminished because the plaintiffs would not be able to proceed against all of the putative defendants individually At this procedural juncture, the plaintiffs have met the requirements of permissive joinder under Rule 20(a)(2). The putative defendants are not prejudiced but likely benefited by joinder, and severance would debilitate the plaintiffs' efforts to protect their copyrighted materials and seek redress from the putative defendants who have allegedly engaged in infringing activity."

I find this reasoning to be odd, and I'm sure there will be an appeal on this point. The purpose of accurately suing individuals in the proper jurisdiction, rather than lumping together totally unrelated people, is not about what's easiest for the copyright holder. It's about basic fairness and due process. As discussed, each of the defendants may have totally different defenses. Some, surely, did infringe, and it's fine if they face the legal consequences of what they've done. Others, certainly, did not infringe. Still others may have additional defense depending on the details. Joining them all together is completely unfair to the defendants who have no actual connection. The judge doesn't seem to think it'll be a problem if each defendant presents a separate defense, but it's hard to see how that's fair to the defendants.

The judge here seems to mistakenly believe that the purpose behind these rules is to figure out what is easiest for the copyright holder. But that's simply not the case. Furthermore, the court ignores the key point: which is that these lawsuits have never been about actually suing people for copyright infringement. It's always been about abusing the court system as a part of a business model, using the threat of a lawsuit as a way to get people to pay up. It's a classic shakedown, and it's disturbing that a court would think that's a reasonable setup.

The court also rejects the jurisdictional question, even though it was pointed out that it seems quite likely most of the people being sued have no connection to the region covered by the court. The judge's reasoning here is also questionable, basically saying that since you can't be sure where the person is, it's fine to charge them all in whichever district court. This seems wrong to me, but assuming we accept it, it seems like this argument could easily be flipped. If it's true that IP addresses cannot adequately locate a user, isn't it equally true that the IP address alone does not adequately identify a user? Thus, by this judge's own argument, the IP address should not be accurate evidence for the sake of such a lawsuit.

Finally, there's an interesting discussion on the First Amendment rights of the users. To be honest, I found this claim to be pretty uncompelling in the first place. While I'm a huge supporter of the First Amendment, as well as the First Amendment's protections for privacy, that doesn't mean that you can hide behind it completely. If there is actual evidence of law breaking, then such protections no longer apply. Where I have questions is whether or not such evidence really has been presented. As mentioned above, even the judge seems to note that IP addresses are not really identifiers. Still, the ruling does get interesting in that the judge actually does state, flat out, that "file-sharing does involves aspects of expressive communication." This is interesting because in our debates about the the domain seizures, we've had critics in the comments insist this is simply not true. That said, the court does say that the First Amendment protections here are "minimal." Still, the court does recognize a key point:

Nevertheless, file-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants' anonymity by compelling the production of these defendants' identifying information.

I'm happy to see the judge get this point correct. I'm not necessarily convinced that the plaintiffs really do provide enough evidence to get over this barrier, but I think it's fair to say that if there is enough evidence, that it's reasonable to expect someone to be identified. So this part of the ruling actually does make sense to me (even if I'm not convinced that the evidence really is enough to overcome the hurdle).

No matter what, it's quite likely this case will be appealed. I'm hopeful that an appeals court will reverse on the issue of joinder, but hopefully uphold the key point that there is a First Amendment issue, and certain hurdles need to be met to remove anonymity.

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Filed Under: copyright, joinder, lawsuits, pre-settlement

107 Comments

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Anonymous Coward, 24 Mar 2011 @ 8:42am

Boo-ya!

oh Mike, you poor little pirate lover.

Want some Maalox?
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Al, 24 Mar 2011 @ 8:43am

I wonder why the judge didn't just find every doe guilty? Wouldn't that make it easier for the poor wittle pwaintiffs?
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Anonymous Coward, 24 Mar 2011 @ 8:45am

It seems like a judge has agreed with my basic logic in these cases. It's nice to see someone on the bench not getting tricked by smoke and mirrors and instead looking at the situation with a balanced approach.

Most importantly is the idea of jurisdiction. I think the judge has realized that until the Does are identified, a claim of not being in the jurisdiction isn't valid because nobody knows who the people are except the ISP, and they will not release the information without a court order. He has spotted the paradox here that blocks plaintiffs from being able to move forward with their cases.

Once a defendant is identified and then notified of the case, they only have make a motion before they court that they are not in the jurisdiction for that discussion to be had. To have it before identification is meaningless, because nobody knows who they are.

The judge appears to have gotten this right. Let the players be identified properly, and then things can move forward from there.
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Anonymous Coward, 24 Mar 2011 @ 8:52am

Re:
Thats a very nice explanation, but can you dumb it down a little bit so Mike can understand that?
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Jay (profile), 24 Mar 2011 @ 8:57am

Re:
Isn't there a problem with the time costs of figuring out which IP address is which?

TWC made the argument that to look up all of those IPs that supposedly file shared and are assigned an address would be quite time consuming to say the least.

It's not cost effective to really HAVE these lawsuits for 100+ IP addresses on the part of the ISP having to look them up.
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Anonymous Coward, 24 Mar 2011 @ 8:58am

Re:
There's no paradox here. Any idiot can run a whois on an IP address and find out what ISP it is coming from. So why not file suit in whatever district the ISP is in?
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william (profile), 24 Mar 2011 @ 9:01am

Re:
Mike: so once again I told you, eating poison ivy is not a good idea!

Nutcase: eating poison ivy is good for your immune system and has a lot of fiber!

AC: Boo-ya! Oh Mike, you poor little poison ivy hater. Want some Maalox?
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Overcast (profile), 24 Mar 2011 @ 9:05am

I wonder... if the judge here got a trojan on his home PC - and someone used it as a proxy to host torrents and/or data - if he would feel the same?

I have a feeling he might not.
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Bengie, 24 Mar 2011 @ 9:06am

IPs
You can nail an IP down to a city for free. Just do a whois on that IP from one of the many free web sites and you can see where it originated. From there you can tell which district it would land in.
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Anonymous Coward, 24 Mar 2011 @ 9:08am

Re: Re:
Jay, considering at (a) the information is all in machine readable form, and (b) it isn't much to automate the process, to at least get it down to a few records, it would seem that that TWC doth complain too much.

They have to maintain the records to prove user actions (and to track bandwidth usage, example). They have it all there. It is at best a question of a few hours of programming time to set up a system to reveal all log ins per an IP on a given period, example, which could then be checked manually without much effort.

100 IPs might take a few hours to sort through. That isn't exactly a huge financial burden for anyone.
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Anonymous Coward, 24 Mar 2011 @ 9:13am

Re: Re:
The problem is this:

Many of the major ISPs operate in multiple states, in multiple jurisdictions. But the whois information all comes back to their main data center. There is nothing legally binding them to use a given IP in a given area. In fact, they could easily configure their networks to allow any IP they have control over to be used anywhere at any time.

Further, VPNs, tunnelling, and proxies make it possible for people to appear to be here, when they are in fact there. Until the end user is identified (and the location from which they logged in noted), it is very difficult to be certain as to the jurisdiction.

Does have no jurisdictional rights. They are Does. Until they are identified, they have very few rights. This judge just wants to put the horse back in front of the cart, finding out who the defendants are and then ruling on if they are part of the class or not. Without knowing who they are, the judge is absolutely correct to declare them in the right jurisdiction, because they are Does.

Anonymous actions cut both ways. You cannot have your legal cake and eat it too ;)
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Michael, 24 Mar 2011 @ 9:14am

Interesting
It does talk about the severance being an issue if multiple IP addresses refer to a single individual being a problem for the defendants being severed. This makes sense as being sued twice for even multiple instances of infringement would make more sense to join the cases. However, it seems to make more sense to start with the cases being separate and having the defendants request they be joined as it is more likely that each defendant is represented by only one IP.

This, however is the weird piece about jurisdiction:

"The present situation, however, is different. Here, the plaintiffs have only limited information about the putative defendants, namely their IP addresses and information about the methodology used to engage in allegedly infringing activity. See Id. at 1352 (record before the court was �plainly inadequate� and �[j]urisdictional discovery will help to sort out these matters.�). Without additional information, the Court has no way to evaluate the defendants� jurisdictional defenses."

Yes, it seems that saying an IP address cannot determine jurisdiction would mean that it cannot identify WHERE a person is primarily located. If it cannot do that, how could it possibly identify a person? Now, lots of things can impact jurisdiction, but where the criminal COMMITTED THE ALLEGED CRIME is usually at the top of the list.
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Anonymous Coward, 24 Mar 2011 @ 9:14am

Re: Re:
It's hard. I expect the usual "section 230" rants to start in 3... 2... 1...
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Anonymous Coward, 24 Mar 2011 @ 9:15am

On a unrelated note ;-) ...
Beryl A Howell has just purchased a new 20 room mansion in the Potomac Manor-Potomac Falls Estates.
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crade (profile), 24 Mar 2011 @ 9:15am

I think it's still too hard, can't we just make everyone pay them unless they can prove beyond the shadow of a doubt that they didn't infringe (in which case they only need to pay half)?
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Dlang (profile), 24 Mar 2011 @ 9:18am

Soo
Correct me if I'm wrong, but since he is grouping everyone together and suing them as a whole... you couldn't rule against one individual right? You would have to make a ruling across the group as a whole?
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Anonymous Coward, 24 Mar 2011 @ 9:24am

Re: Interesting
Yes, it seems that saying an IP address cannot determine jurisdiction would mean that it cannot identify WHERE a person is primarily located. If it cannot do that, how could it possibly identify a person? Now, lots of things can impact jurisdiction, but where the criminal COMMITTED THE ALLEGED CRIME is usually at the top of the list

You are confusing the legal knowledge of the location of the accused with the knowledge of the infringement. They know that the user connected to a given IP at a given point in time did X (whatever the infringing act is). They do not know, and cannot know who that user actually is until the ISP reveals it. The result? "Without additional information, the Court has no way to evaluate the defendants� jurisdictional defenses".

What the court seeks to do is to have the action taken to identify the users (turn them from Does to individuals, which is signfiicant), and then rule on jurisdictional and case splitting issues at that point. Until the court is aware of the jurisdiction of the users (by identifying them to the court), there is no way for them to rule that the Does in question aren't in the right jurisdiction.
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Anonymous Coward, 24 Mar 2011 @ 9:27am

Re: Re:
The censorship people are out in force today, "reporting" posts. Mike, I think you need to remove that feature, it is being used to stifle free speech.
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RD, 24 Mar 2011 @ 9:28am

Re: Soo
"Correct me if I'm wrong, but since he is grouping everyone together and suing them as a whole... you couldn't rule against one individual right? You would have to make a ruling across the group as a whole?"

AND any judgment and damages.
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Jesse (profile), 24 Mar 2011 @ 9:28am

If it's true that IP addresses cannot adequately locate a user, isn't it equally true that the IP address alone does not adequately identify a user? Thus, by this judge's own argument, the IP address should not be accurate evidence for the sake of such a lawsuit.

In the immortal words of Randall Munroe: "QED bitches!"
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Anonymous Coward, 24 Mar 2011 @ 9:30am

If it's true that IP addresses cannot adequately locate a user, isn't it equally true that the IP address alone does not adequately identify a user? Thus, by this judge's own argument, the IP address should not be accurate evidence for the sake of such a lawsuit.

My last poke before I am back to work. Mike, this just isn't the case. You are trying to make a logical leap that isn't supported here.

The lack of location information on an IP address doesn't negate the ISPs ability to know who is using it. The problem is the plaintiffs have no way to know, without the ISP revealing the information. The information is out there, it is protected, and the courts want to know it BEFORE they make a ruling on jurisdiction.

That location information isn't readily available to the plaintiffs in no manner makes IP / user matching impossible for the ISP. To even consider that as a logical argument makes me shake my head.

You don't seem to be having a good week this week. The NYT thing, and now this. Oh yeah, and piracy being down since Limewire sank. But you won't touch that either, will you?
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vivaelamor (profile), 24 Mar 2011 @ 9:32am

Re: Re: Re:
"it is being used to stifle free speech."

Technically, if you don't have the right then it's not free speech. Where did you get the idea that you're entitled to not be censored here?
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crade (profile), 24 Mar 2011 @ 9:39am

Re: Re: Re:
You forgot to address why they should be allowed to sue everyone under the sun all at once. Thats the one I'm struggling with. Of course you know the location (with better accuracy that you can id a person anyway) if you know the IP, thats obvious. But why, when it's so obviously a giant scam that seperate companies are being created to make a profit of solely suing people, would we want to allow it? It's not like it's helping anything, now we have just as much piracy plus a giant scam extorting money from random people.
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Jon Healey, 24 Mar 2011 @ 9:46am

A historical note
I think Anonymous Coward has it right on this one, Mike, as did Judge Howell. Please recall that ISPs -- specifically, Verizon and to a lesser extent SBC -- forced copyright holders to go the John Doe route by successfully challenging the DMCA subpoenas that record labels issued to obtain, pre-lawsuit, the names of the account holders associated with the IP addresses that allegedly infringed. That put all these actions into the context of "sue first, ask questions later," because they couldn't even start asking questions until a lawsuit was filed.

There may be a joinder issue if the IP addresses can accurately be traced back to a specific data center. But even if you could start to divide these cases into smaller bundles, there would still be bundles of John Does joined until they could be identified.
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Anonymous Coward, 24 Mar 2011 @ 9:48am

Re: Re: Re: Re:
Yes, you whine all day about how your "rights" are being censored when you can't pirate music, yet it's ok to censor actual protected speech here?

That's so precious.

The censorship around here and Masnick's recent insane rants give the impression that you zeros sense the party is almost over.
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vivaelamor (profile), 24 Mar 2011 @ 9:51am

Re:
"Mike, this just isn't the case. You are trying to make a logical leap that isn't supported here."

It's nice to see that you can identify actual flaws in his reasoning sometimes. I agree, the fact that plaintiff cannot locate a user by the IP address does not correspond with whether the IP address identifies a user. The subscriber details are held by the ISP whereas the IP location details are often public.

"That location information isn't readily available to the plaintiffs in no manner makes IP / user matching impossible for the ISP"

It may not be readily available, but it probably is. My location information is in the FQDN corresponding to my IP. While I'm unsure about the issues of reverse class actions and what burden there is to show jurisdiction generally, it seems quite possible to make a better estimate of location than the plaintiff tried to in this case.
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Sean T Henry (profile), 24 Mar 2011 @ 9:53am

Re:
I think the reason why is that if one of the defendants can show that they were not the one infringing (a case they would win being the only one sued) then the case will get dismissed in the favor of the defendants.

Now if that happens I hope that they can have the court and lawyer fees covered by the plaintiff, and if so I hope that each person got a different lawyer. :)
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crade (profile), 24 Mar 2011 @ 9:53am

Re: Re: Re: Re: Re:
lol, can't pirate music, thats a good one.
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vivaelamor (profile), 24 Mar 2011 @ 9:56am

Re: Re: Re: Re: Re:
"Yes, you whine all day about how your "rights" are being censored when you can't pirate music, yet it's ok to censor actual protected speech here?"

Your speech isn't protected from Mike or the community deciding which comments to show on his own site. That you cannot understand this suggests that you haven't a clue about what protected speech means. Yes, I would call it censorship. No, you're not protected against it.
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Anonymous Coward, 24 Mar 2011 @ 9:58am

Re: Re: Re: Re: Re: Re:
I found a bunch of awesome stuff on Limewire today.

oh wait, no I didn't.
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The eejit (profile), 24 Mar 2011 @ 9:58am

Re: Re: Re:
But matching them to a particular computer at a particular time is incredibly difficult, because you also need the computer's MAC address, which is stored at the user's end. So not only do you neeed the IP address. you then need to match it to the MAC address at the date and time specificed.

Add in the complcations of spoofing, and you'll have a LOT of fun trying to filter the information.
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Anonymous Coward, 24 Mar 2011 @ 10:00am

Re: Re: Re:
The comment

"Thats a very nice explanation, but can you dumb it down a little bit so Mike can understand that?"

Is offensive, and provides no useful content whatsoever. It wasn't censored (I can still see it very clearly), it was just marked as offensive...which it is. But YOU have the power to change that. YOU can vote it insightful or funny, if you think it is worthy.

So, how's it going to be AJ? Are you going to keep annoying the hell out of people, or are you actually going to do something useful?

Turns at Mike:

Maybe we should have a scoring system for comments. Something that says "5 people found this funny, 2 found this offensive, etc" or something. Having a red marks saying "This is offensive!!11" is not very descriptive. How many "votes" trigger that? 3? 5? A million? It's good for both parties: it's good for us because it keeps things transparent and it's good for you because trolls can't just go like "OMG! Techduh censors comments!!1111oneone".

Of course, I'm just a lowly AC, who's unaware of the complications of such a system.
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Sean T Henry (profile), 24 Mar 2011 @ 10:00am

Re: Re: Re: Re: Re:
Speech is allowed to be censored as long as it is not done by the government or done in violation of a law.
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Anonymous Coward, 24 Mar 2011 @ 10:01am

Re: Re: Re: Re: Re: Re: Re:
Have you tried Froswire, which, incidentally is exactly the same thing, but no one has noticed yet?
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Michael, 24 Mar 2011 @ 10:01am

Re: Re: Interesting
"They know that the user connected to a given IP at a given point in time did X (whatever the infringing act is). They do not know, and cannot know who that user actually is until the ISP reveals it. The result? "Without additional information, the Court has no way to evaluate the defendants� jurisdictional defenses"."

But even the jurisdictional defenses themselves are likely to be different for each defendant. Some of the defendants may be in the jurisdiction (making this not a defense) and others could be in different states or different countries. Still others may live in a difference place than where they were when the alleged infringement occurred. The court sided with the plaintiff in allowing these cases to be joined leads to pretty immediate problems.

This is a lot like beginning a trial for everyone in the country that has committed murder to make it easier for prosecutors to obtain a single subpoena. It might be easier for the prosecutors, but it seems to stretch the legal system into doing something it should not be used for.
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Howard the Duck, 24 Mar 2011 @ 10:02am

Re:
So CD sales must be back on track then? Digital sales? No? You won't touch that will you?
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kemcha (profile), 24 Mar 2011 @ 10:02am

Federal Judge Creating an Automatic Appeal for Defendants
This is ridiculous. Simply because the judge is saying that this is perfectly fine because it benefits defendants. I think the judge has it wrong. It doesn't benefit the defendant, it benefits the plaintiff.

The judge even states that by not allowing the joinder action that plaintiffs would not be able to "protect their copyrights in a cost-effective manner."

Excuse me, but, the judge is allowing joinder action because it's more cost effective for plaintiffs copyright lawsuits? If that isn't a Federal judge agreeing with the copyright industry and showing bias against those accused of downloading, then the judge is automatically creating an appeal for any defendant who appears within his courtroom.
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Joe, 24 Mar 2011 @ 10:03am

Anybody who supports this decision=you support the mass extortion of money from potentially innocent people. You have got to be kidding me. So what, is USCG suddenly going to start filing thousands of lawsuits in different jurisdictions now across the country because of this? Absolutely not. They will continue to file a case here and there in whatever jurisdiction they can find a scumbag lawyer willing to take it on and that will be it. All this does is allow them to continue the process of shaking down people. You know, the whole "Pay us some money or we will make problems for you...." bit. All this does is reinforce their extortion scheme. This will do NOTHING to curb copyright infringement. All it does is make lawyers rich.
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Anonymous Coward, 24 Mar 2011 @ 10:03am

Re: Re: Re: Re: Re: Re: Re: Re:
Yeah, John Morton and I were just talking about Frostwire today.
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Mike Masnick (profile), 24 Mar 2011 @ 10:04am

Re: A historical note
I think Anonymous Coward has it right on this one, Mike, as did Judge Howell. Please recall that ISPs -- specifically, Verizon and to a lesser extent SBC -- forced copyright holders to go the John Doe route by successfully challenging the DMCA subpoenas that record labels issued to obtain, pre-lawsuit, the names of the account holders associated with the IP addresses that allegedly infringed. That put all these actions into the context of "sue first, ask questions later," because they couldn't even start asking questions until a lawsuit was filed.

Right. I get that part of it, and even said that in the post. But that doesn't excuse the joinder issue.

Separately, there *is* at least some First Amendment issue here, as the judge noted, and I agree that the bar here may be low, but to simply say that because we accuse an IP address of being an infringer, they must be identified. The likelihood of abuse there is pretty high.

There may be a joinder issue if the IP addresses can accurately be traced back to a specific data center. But even if you could start to divide these cases into smaller bundles, there would still be bundles of John Does joined until they could be identified

I still don't see why they should be joined, and every other court that's ruled on this issue has made the same point. It's clear that these are all individual actors, not acting in concert. So joinder doesn't make any sense.
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The eejit (profile), 24 Mar 2011 @ 10:05am

Re: A historical note
And this is the key point: whilst I understand and agree with the judge's reasoning, I disagree with the why. The major joinder issue is that this can';t be proven, and the subpoenas sent by certain groups *coughUSCGcoughhack* were not formally signed upon by a judge and sent to the ISPs. This causes a very thorny issue of something called privacy.

It also tainted any future subpoenas that are sent by non-LEA personnel, meaning that the LEA's enforcement is tangled up whilst someone ensures that the request is legitimate. For example, in the UK a breach of acceeding to a false subpoena can be punished with a fine of �75,000. Now, imagine that multiplied by 100. That's a fair chunk'a change.
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Anonymous Coward, 24 Mar 2011 @ 10:07am

Re: Re: Re: Re:
Maybe you worms shouldn't cry so much when someone splashes you with a little water.
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Anonymous Coward, 24 Mar 2011 @ 10:08am

Re: Re: Re:
You forgot to mention the quality of the data provided to the ISP since all of this is based on time that is very weak the margin for error is great.
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Berenerd (profile), 24 Mar 2011 @ 10:09am

Re: Re: Re:
Actually, the posts have not been removed, merely marked as annoying so they are collapsed so people don't need to ready your stupid childish banter that adds nothing to the conversation

One day you might need to grow up and put on big boy pants and stop wetting your bed.
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The eejit (profile), 24 Mar 2011 @ 10:11am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I have a question for you: is it censorship if the comment is simply flagged by the community, even though the comment is literally a click away?
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crade (profile), 24 Mar 2011 @ 10:12am

Re: Re: Re: Re: Re: Re: Re:
I don't know what limewire is, was that a previous site that the pirates used to use? Anyway regardless of where they do it, I've yet to see a single report to suggest anything they have tried since the inception of the DMCA has been even the least bit successul at cutting down the number of infringers. Successful at making people's lives miserable, yes.. At stopping (or even slowing down a little tiny bit), no.
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Berenerd (profile), 24 Mar 2011 @ 10:13am

Re: Re: Re:
Actually, you are quite wrong on this. Doe's have the same rights as any other human.
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Anonymous Coward, 24 Mar 2011 @ 10:13am

Re: Re: Interesting
Really, how would you check to see if the user you are accusing is the real one?

Time-stamps are no good for that, if you are accusing somebody on the west-coast and you collected the evidence on the east-coast the time-stamps won't match and you probably will be accusing somebody else depending on how the data was collected.

IP and time are not good enough without knowing how that was collected.
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Anonymous Coward, 24 Mar 2011 @ 10:13am

Re: Re: Re: Re:
That's not AJ (I can personally guarantee this, since I'm AJ). You guys should stop trying to guess who is AJ and focus on the merits of each post.
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Howard the Duck, 24 Mar 2011 @ 10:16am

Re:
You have NO way to tell if piracy is down because Limewire is gone.
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The Devil's Coachman (profile), 24 Mar 2011 @ 10:16am

Re:
So how much do you get paid shilling for the industry? Must be pretty good, since you spend an extraordinary amount of time here posting the same inane drivel repeatedly.
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Berenerd (profile), 24 Mar 2011 @ 10:21am

Re: Re: Interesting
"They do not know, and cannot know who that user actually is until the ISP reveals it. The result? "Without additional information, the Court has no way to evaluate the defendants� jurisdictional defenses"."

Actually this wont give them the name of the Doe that did the infringement, it will only give them the IP address of the modem of which was used to do the infringing.
Drive down any major city street and see how many open wireless APs you find. To go further, how about Viruses on the ones that ARE secure? That is like the speeding ticket I got a couple of years ago. I was apparently tagged for doing 55 in a 35. They had a picture of my plate. The date and time of the incident? The car was in the shop getting a tuneup and get the breaks fixed. I went to court and it was thrown out. Soon after the police lost funding for their cameras. Apparently around 84% of the cases that went to court got thrown out because they couldn't tell who was driving. Another 9% got off with a warning.
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Kevin (profile), 24 Mar 2011 @ 10:22am

Re: Re: Re:
Considering that you can simply click on the flagged post and view it so quickly voids your complaint.
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Anonymous Coward, 24 Mar 2011 @ 10:24am

Re:
Simple solution: don't break the law.

See how easy that was? You're welcome.
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joe, 24 Mar 2011 @ 10:27am

Re: Re:
That was pretty stupid. Everybody is guilty until proven innocent with you huh? How would you like if you got a letter demanding a couple grand when you did nothing wrong?
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Anonymous Coward, 24 Mar 2011 @ 10:28am

Re: Re: Re: Re: Re: Re: Re:
Just try Jamendo it is the easiest legal way to pirate music these days LoL

Also to get stuff for free you can go to Youtube, the labels are putting all there for free, if that is not good enough you have Spotify.

And if you are into the kinky stuff how about Retroshare have you tried there? there is also GNUNet, I2P, TOR Hidden Services, StealthNet, Bittorrent, encrypted emails and etc.

Pss...don't tell anyone I just got an email from a friend who sent me 100s of songs that I didn't even ask for. I just deleted all of them since I'm disgusted by the industry.

You think I'm going to pay those people?

LoL

Not a dime.
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joe, 24 Mar 2011 @ 10:28am

Re: Re:
That was pretty stupid. Everybody is guilty until proven innocent with you huh? How would you like if you got a letter demanding a couple grand when you did nothing wrong?
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Rich, 24 Mar 2011 @ 10:29am

Re: Re: Re:
You are completely wrong. A Doe is entirely within his rights to fight in court and remain a Doe.
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The Devil's Coachman (profile), 24 Mar 2011 @ 10:32am

Re:
Your use of the term "scumbag lawyer" technically constitutes a redundancy. The only qualifiers that should apply to the word lawyer are things such as "dead", "disbarred", "jailed" and other non-subjective terms. Absolutely proscribed are things such as "honest", "charitable", "compassionate", "selfless", "human", and others similar in meaning or tone.
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The Devil's Coachman (profile), 24 Mar 2011 @ 10:34am

Re: Re:
Your grotesque simplification of the situation can mean only one thing - that you are a simpleton. See how simple that conclusion was to reach? You're welcome.
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Jay (profile), 24 Mar 2011 @ 10:34am

Re: Re: Re:
Another aspect you have forgotten : Dynamic IP addresses. If the IP add. is recycled daily, add a few more hours to the look ups. In no way is this cost effective to anyone.
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Rich, 24 Mar 2011 @ 10:35am

Re: Re:
Sure, because everyone sued or accused of a crime is automatically guilty.
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crade (profile), 24 Mar 2011 @ 10:39am

Re: Re:
How would that help? Not breaking the law makes no difference in the least. Thats the whole problem. What we *want* is for breaking the law to make a difference as to whether or not you can be extorted by the scam companies. What we have is that it doesn't make any difference.
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Anonymous Coward, 24 Mar 2011 @ 10:39am

Rationale behind the ruling
Screw due process, I can make an activist ruling because it makes things easier and cheaper for my former boss' campaign donors.

"From 1993 to 2003, Howell served on the staff of the United States Senate Committee on the Judiciary as a senior advisor to Chairman Patrick Leahy, including as the Committee�s General Counsel starting in 1997."
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Anonymous Coward, 24 Mar 2011 @ 10:40am

Re: Re: A historical note
I still don't see why they should be joined, and every other court that's ruled on this issue has made the same point. It's clear that these are all individual actors, not acting in concert. So joinder doesn't make any sense.

If you use bittorrent to obtain a file, then every person you got a piece of that file from is someone you acted in concert with. Your peers and seeds are also your codefendants if you get caught. Makes perfect sense to me.
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Anonymous Coward, 24 Mar 2011 @ 10:42am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Except the flagging system is rigged, so the ability to censor isn't even really a community choice.
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Any Mouse (profile), 24 Mar 2011 @ 10:44am

Re: Re: Re:
Inputting the IP addresses, themselves, will take more than 'a few hours.' Having worked at an ISP, and sorted these records, before, I can tell you that it is not as easy as you make believe. And remember, you're paying someone a minimum of $12/hour to look through those records.
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Anonymous Coward, 24 Mar 2011 @ 10:45am

Re: Re: Re: Re: Re:
Nice try, Terry Hart.
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vivaelamor (profile), 24 Mar 2011 @ 10:48am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"is it censorship if the comment is simply flagged by the community, even though the comment is literally a click away?"

In my opinion, yes. While some definitions may be interpreted narrowly as relating to removal or blocking of material, the origin of the word stems from the act of choosing what to block or remove. If you're choosing what to limit access to (even cosmetically) then it is the choosing that makes it censorship more than how far you go in limiting access. That is why the domain seizures were censorship even if they failed to block any content.
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Anonymous Coward, 24 Mar 2011 @ 10:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
SPEECH HARD!!!
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Joe, 24 Mar 2011 @ 10:50am

This judge has just aided these scumbag firms in continuing their moneymaking adventure. USCG has got to be beside itself with glee today. It really is a brilliant scheme if you have no conscience and don't mind getting rich off of other peoples misery. I have no doubt that many, if not the majority of these folks are guilty of purposefully committing copyright infringement. But it's the small amount, even if it is 1%, that make this whole thing disgusting. How many innocent people still pay up? Quite a few I bet. Getting sued is scary. Add in the fact that they have set these settlement prices just about where you can expect to pay a lawyer to defend you and probably much less if they decided to pursue further. And it's an entirely different argument on whether one should have to pay thousands of dollars for downloading a $25 dvd.

It's one thing to believe in copyright protections. It's another thing to actually believe these lawsuits actually have anything to do with combating copyright infringement. They don't. At all.
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Anonymous Coward, 24 Mar 2011 @ 10:51am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Allah Oh Hakubar!
Rise against the tirany brother, don't be afraid of death because you shall receive a hundred virgins for your martyrdom LoL

Seriously, more probably you are just annoying and people don't like your comments.
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Anonymous Coward, 24 Mar 2011 @ 10:56am

Re: Re:
Don't break the law LoL

When should I have my eyes removed and my hearing disable?

There is no human being in the universe that cannot not break those laws, people infringe on those laws everyday even without knowing.
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Michael, 24 Mar 2011 @ 11:00am

Re: Re: Re: A historical note
Is there a charge of conspiracy to commit infringement alleged here?
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Dark Helmet (profile), 24 Mar 2011 @ 11:06am

Re: Re: Re: Re: Re:
"That's not AJ (I can personally guarantee this, since I'm AJ). You guys should stop trying to guess who is AJ and focus on the merits of each post."

I'm guessing you're AJ.

DING DING DING! I win!!!!

Techdirt prize: An MP3 of Mike saying "Heh" over and over again.

Aw, dammit...
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crade (profile), 24 Mar 2011 @ 11:07am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You mean like when you move something to the off topic section?
I always called it categorization, but to each their own :)
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Anonymous Coward, 24 Mar 2011 @ 11:10am

Re: Re: Re: Re: Re: Re:
Nice try, Terry Hart.

LOL! I'm flattered to be compared with him, thank you, but I am not he.
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Anonymous Coward, 24 Mar 2011 @ 11:11am

Re: Re: Re: Re: A historical note
Is there a charge of conspiracy to commit infringement alleged here?

Not yet. I'm sure ICE is cooking that up.
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harbingerofdoom (profile), 24 Mar 2011 @ 11:16am

Re: Re: Re:
1. no one is being censored, the comment is being hidden. you can still click on the notice that it was flagged and read the comment. perhaps framing your idea in somewhat of a reality based fashion would help... (but of course you couldnt because that would also destroy the completely erroneous point you were trying to make)

2. this is a privately owned forum. as such, you do not have an expectation of free speech here. learn some rudimentary basics before making charges of such else you wind up looking like an idiot.

3. if you dont like it... the door is -----> that way.
feel free to use it at any time.
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Anonymous Coward, 24 Mar 2011 @ 11:24am

Re: Re: Re: Re:
When Google started blocking certain results from appearing in their autocomplete, Mike called that "censorship," despite the fact that the actual search results were not being filtered.

If that's "censorship," then how is this not? Sure, the posts are still there, but I have to click on the post to see it, just like I have to hit "enter" in Google. Seems exactly the same to me. By Mike's own definition of the word, it's "censorship."

Of course, the whole Techdirt censoring apparatus is dumb, because I always make it a point to read posts that are flagged. It's the Streisand Effect at play.

If you don't like something, post a response. Don't flag it so more people read it.
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Dark Helmet (profile), 24 Mar 2011 @ 11:28am

Re: Re: Re: Re: Re:
"If you don't like something, post a response. Don't flag it so more people read it."

I actually 100% agree w/this....
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Atkray (profile), 24 Mar 2011 @ 11:40am

Re: Re: Re:
Obviously you are not an attorney.
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crade (profile), 24 Mar 2011 @ 11:43am

Re: Re: Re: A historical note
that would still be only like 3-5 people grouped together. It's not like you have thousands of seeders per download.
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vivaelamor (profile), 24 Mar 2011 @ 12:15pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"You mean like when you move something to the off topic section?"

It depends why you moved it there. If you moved it because it was off topic then that is categorisation. If you moved it because it was objectionable then that would be censorship. I apologise if I wasn't clear, I didn't mean to suggest that choosing is the only defining element of the word, just the origin.
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Killer_Tofu (profile), 24 Mar 2011 @ 12:27pm

Re: Re: Re:
It is kind of funny, I just covered this in another thread yesterday. When all that is brought here is personal attacks, and nothing to debate, then it will be reported. I (and others judging from the support I saw in the other thread) are just tired of the pointless flaming. It is not needed. It adds nothing to the conversation. If the only thing in my post was a giant string of name calling and expletives about you, your mother, and your neighbor's dog, I would expect the community here to mark it 'reported' because it adds less than nothing to the conversation.

So, to avoid being reported, refrain from pointless comments that do nothing but attack people. (Yes, I realize you aren't the same AC that has the hidden comment, but my statement is to people in general)
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Anonymous Coward, 24 Mar 2011 @ 12:29pm

Re: Re: Re: Re: A historical note
Most bittorrent clients limit the number of connections by default is only a hundred.
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crade (profile), 24 Mar 2011 @ 12:31pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Well, being objectionable isn't the only reason things get censored is it? Maybe you are censoring everything that is off topic :)

Or what if you named your topic objectionable content?
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Killer_Tofu (profile), 24 Mar 2011 @ 12:48pm

Re:
Couple things,
1) I pretty much agree with the area they are sued.
2) Even the ISP has NO idea who was using the connection at any given time. The only thing they know is who pays the bill for that connection. Nothing more with regards to who used the connection.
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Anonymous Coward, 24 Mar 2011 @ 12:52pm

Re: Re: Re: Re:
The MAC address of the modem in question is part of the request for an IP address, so there is no problem tracing the action to a single client. They cannot get an IP address without providing the MAC address.

Try again!
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Anonymous Coward, 24 Mar 2011 @ 1:01pm

Re: Re: A historical note
Separately, there *is* at least some First Amendment issue here, as the judge noted, and I agree that the bar here may be low, but to simply say that because we accuse an IP address of being an infringer, they must be identified. The likelihood of abuse there is pretty high.

I think the judge was just covering his ass there, making sure to mention that there are minor first amendment issues that may come up. I think it does everyone a good service for the judge to state on the record that he has considered those issues, and considers them minor.

There is always potential for abuse in any legal process. Plaintiffs can claim almost anything, but they need to have the material to back it up to show "good faith" efforts. They cannot take a random list of IP addresses and say "they did it" without supporting evidence.

I still don't see why they should be joined, and every other court that's ruled on this issue has made the same point. It's clear that these are all individual actors, not acting in concert. So joinder doesn't make any sense

Think of it like a class action suit in the other direction. Everyone makes an individual purchase of something, which turns out to have a defect. By your logic, every purchase is a separate event and thus should not be joined.

The use of a common tool (bit torrent) to obtain a common file (the content in question) should be enough. That they are likely to have exchanged pieces (directly or indirect) amongst themselves (especially if they were all tracked from the same system in a similar time frame) would make it appear that they are working together in some fashion.

They appear to be as good a reverse class and many normal class actions have.
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Joe, 24 Mar 2011 @ 1:01pm

"The MAC address of the modem in question is part of the request for an IP address, so there is no problem tracing the action to a single client. They cannot get an IP address without providing the MAC address.

Try again!"

And this means absolutely nothing in regards to somebody stealing somebody elses wireless connection. Duuuuuuuuh. Try again.
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Joe, 24 Mar 2011 @ 1:18pm

Surely you know that there are many people running no encyrption or low(WEP, WPA) on their wireless routers dont you? Shoot, I live in an apartment complex and I can pull up three neighbors who have unsecured connections right now. So whats your argument there? Let me guess.......they shouldve secured their connections? Okay, so are we now going to sue people for being computer illiterate?
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JMT, 24 Mar 2011 @ 1:19pm

Re: Re: Re: Re: Re:
It's not censored you clown, you're not prevented from seeing anything. One click and it's right there!
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Anonymous Coward, 24 Mar 2011 @ 1:26pm

Re: Re: Re: Interesting
Those who are not in the jurisdiction just have to ask to be removed from the class, as they don't fit the requirements. Basically, for the moments all the Does are the same. Only upon discovery can there be any way to tell the Does apart and remove those who are not in the jurisdiction. Until discovery is completed, there is no way to do it.

This is a lot like beginning a trial for everyone in the country that has committed murder to make it easier for prosecutors to obtain a single subpoena.

Not at all. First, it isn't "everyone in the country", and second, it is the type of action where many people did the same thing. Remember also, this is civil and not criminal, the standards are very different here.
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Anonymous Coward, 24 Mar 2011 @ 1:58pm

Re: Soo
you are wrong
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vivaelamor (profile), 24 Mar 2011 @ 4:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Well, being objectionable isn't the only reason things get censored is it?"

Not entirely, no. For example, you could censor something because you feared it might cause distress, but the distinction between objectionable and sensitive is a fine line. The key thing is that you're making a judgement about whether something is appropriate. A voluntary ratings system is probably the least forceful example of censorship, where content gets graded for suitability but people are free to ignore it.

"Or what if you named your topic objectionable content?"

Heh.
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vivaelamor (profile), 24 Mar 2011 @ 4:47pm

Re: Re: Re: Re: Re:
"If you don't like something, post a response. Don't flag it so more people read it."

I can certainly see the logic there. I think perhaps a sort of downmod button would be at least as effective and less intrusive, where posts can be marked as trollish or some such rather than insightful or funny. Or an option to not hide reported posts (if there isn't one already somewhere).
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Jay (profile), 24 Mar 2011 @ 6:14pm

Re: Re: Re: Re: Re: Re:
Maybe a troll button? Those don't get reported, but when you report, that's the one for actual spam options.
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Anonymous Coward, 24 Mar 2011 @ 6:52pm

Re:
If someone is innocent and just pays up, then they're an idiot.
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Anonymous Coward, 24 Mar 2011 @ 10:41pm

Re: Re:
People who like being employed targeted by this would much rather pay than have anything show up in any sort of background check. I once again pull out the example of - people who are accused of being pedophiles and then are cleared, they still get run out of neighborhoods and sometimes much worse done to them on a mere accusation. There are people who could find themselves completely innocent of these accusations, but the mere accusation could destroy them.

Or if you look at the cases following this pattern in the porn realm, they are afraid of being branded as a deviant.
Every settlement from the porn groups hints that settling is the only way to keep your name being associated with porn publicly.

It would be nice at some point for a Judge to actually raise the question of how this information is gathered, and make sure it actually is as definitive as they lawyers would like to claim before allowing these cases to proceed.
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The eejit (profile), 25 Mar 2011 @ 1:56am

Re: Re: Re: Re: Re:
No, it's private information provided by the individual syatem, and it can be made false. The IP address is typically provided by a modem. What could be done, is to give the plaintiffs all the information, unfiltered, and ask them to find it. Not sure what privacy issues there'd be here.
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Anonymous Coward, 25 Mar 2011 @ 9:29am

Re: Re: Re: Interesting
They have this amazing thing called time zones. You know, you collect the information in one time zone, and they can offset it by a pre-determined amount when they look at another time zone.

Your argument is so weak, as to be meaningless.
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Teddy_Bear, 27 Mar 2011 @ 9:12pm

Why should a person outside of the courts jurisdiction have to "Ask" to be removed from anything at all. They are outside the courts jurisdiction.

To an extent I can almost see the "subpoena the information as a group" argument , but once the information shows that the person is outside the courts jurisdiction that should be it.
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Lawrence D'Oliveiro, 29 Mar 2011 @ 12:51am

Did You Know ...
... judge Howell used to be an RIAA lobbyist?
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Ken, 1 Apr 2011 @ 7:49am

Re:
In our Constitutional system the rights of the defendants have always trumped the convenience or expedients of a plaintiff or prosecutor. If a copyright holder wishes to assert their copyrights it is incumbent on them to incur the costs and the burden of proof is on them not the defendant. This ruling turns our Constitutional system on its head by subordinating the rights of a defendant for the needs or wants of the plaintiff.

Also the main point here is this judge should have never heard this case let alone ruled on it. She has been a career long copyright activist and cannot fairly adjudicated these cases, and even if she could every decision she makes on a copyright case will be tainted.
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D, 22 Apr 2011 @ 5:53pm

well one thing is for sure... i won't even think about torrenting anything for a long long long time. its just not worth the risk. look... if the plantiffs have enough money... they'll win, and you know that they'll eventually get the money they need to lobby and bribe. so watch out and just pay the price for what ever movie, album, or program that you are thinking about stealing. hey... lets say you have to pay 2 grand a year for movies, games, programs... thats better than ten grand being demanded of you.
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Dolton Stokes, 25 May 2011 @ 4:51pm

Re:
You are mistaken. You can verify location of an IP address quite easily. Type it into google... you will see at least a county and possibly a town it is assigned to. With that alone you can argue juridiction.

Maybe you need to learn more about how network works before you chime in on these things.
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