How Else Could The NY Times Have Spent $40 Million?

Porn Company Says You Owe $25k If Content In Your Account Ends Up Pirated... Even If You Prove You Were Hacked [Updated]

from the good-luck-with-that dept

Fri, Apr 1st 2011 11:53am — Mike Masnick

Liberty Media/Corbin Fisher continues its somewhat aggressive attempts to blame everyone but itself for failing to put in place a better business model. Remember, we just noted the bizarre claim that it made in the mass infringement lawsuit it filed that anyone who did not secure their internet routers to block all infringing material was negligent. In the comments to that post, someone pointed out that the company also had recently changed its terms of service to say that if anyone with an account had content from that account end up pirated, the user owed $25,000 even if they could prove that the account was hacked (see update below):

6.6
You agree to take all possible measures to keep your username and password secure.

6.7
You agree that if your password security is breached, you are solely responsible for any damage or liability occurring by this breach.

6.8
You agree that, even if you can prove hacking by clear and convincing evidence, you are still liable for any 3rd party use of your username and password.

6.9
You specifically agree that if your account is used to download any of Our content and that content is later found on a one-click hosting site, a file locker site, a torrent site, a tube site, or any other site, service or server or any other medium used for sharing content, that You will pay liquidated damages of $25,000 to Us."

Whether or not you can give up such a right via a terms of service, I'm not sure, but from a business standpoint, this seems like a really, really dumb move on the part of Liberty Media/Corbin Fisher. As this information gets out, who's actually going to sign up for an account? A move like this puts tremendous liability on customers, and makes a clear case for interested people not to become customers in the first place. Who wants to take on the possibility that, even if you're hacked and had nothing to do with it, you might owe $25,000? The entire strategy here seems brain-dead from a business standpoint.

Update: It appears that after the original site posted this information, the company did, in fact, change their terms of service, adding a line noting that you would not be liable for the $25k if you could prove that you were hacked.... There was a comment made on the site that explains:

I brought your issues to to our general counsel. After reviewing your concerns about the terms and conditions on Corbin Fisher we adjusted the language to be more relaxed. We do not want to punish our users for our own security issues or system breaches. We are specifically targeting users who share their accounts with infringers or are direct copyright infringers who lie and use the "my account was hacked" excuse.

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Filed Under: copyright, hacked
Companies: corbin fisher, liberty media

65 Comments

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crade (profile), 1 Apr 2011 @ 11:29am

It won't affect them from a business standpoint. The point of terms of service is to trick people into agreeing to things they normally wouldn't. They are designed so that there is no real agreement. The fact that some specific porn company has something especially bad or wierd in their terms of service is never going to become common knowledge. 99.9% of their potential customers will have no idea what they are supposedly automatically agreeing to.
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Nom du Clavier (profile), 1 Apr 2011 @ 11:32am

I think the only response to this can be: Kindly go fuck yourselves.
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Anonymous Coward, 1 Apr 2011 @ 12:03pm

Which is what this all comes down to in the end. They "the content cartels" want you "the average netizen" to be liable for hacking. Which, oddly enough, the federal Govt. is unable to stop with all of it's/our resources.

It's almost as if they should be trying to take it out of MS for selling insecure software... They probably understand how bad of an idea that is though.
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Jay (profile), 1 Apr 2011 @ 12:05pm

Re:
They're a gay porn company...

The jokes are there but I don't want to come off as sexist in any way, shape or form.

Nuf' said...
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Jay (profile), 1 Apr 2011 @ 12:06pm

Re:
So if the EULA is binding, then this should really worry us, no?

It's damn near the same situation that Sony is dealing with in regards to Geohot.
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Capitalist Lion Tamer (profile), 1 Apr 2011 @ 12:06pm

Re:
And its follow-up: Kindly Go Fuck Yourself 2, and the spin-off Kindly Meets Buttman.
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Capitalist Lion Tamer (profile), 1 Apr 2011 @ 12:08pm

Re: Re:
Obviously, I have no such restraint.
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Capitalist Lion Tamer (profile), 1 Apr 2011 @ 12:12pm

Re: Re: Re:
... although I was unaware they were a gay porn company until you pointed it out... which I didn't see until after I had submitted my comment.

I'll retract the Buttman thing. After all, he's a straight character.
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Anonymous Coward, 1 Apr 2011 @ 12:16pm

I may be reading this wrong, but look closely at 6.9

It seems to imply that anyone who downladed a given piece of content that is later pirated owes them $25k
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Anonymous Coward, 1 Apr 2011 @ 12:16pm

Why does Masnick read queerty.com? That seems to be the real story here.
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Nathan, 1 Apr 2011 @ 12:16pm

Re:
Sorry mate, but a lot of their employees already are doing that.
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Al, 1 Apr 2011 @ 12:19pm

Doesn't the TOS suggest that they must be watermarking the files with the customer's identification data? How else would they track unauthorized (notice I didn't say "pirated") content back to an individual user? If this is true, seems like a gross violation of privacy.
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Queazy Art, 1 Apr 2011 @ 12:21pm

Re:
Yeah, you don't even have to look closely at 6.9; you could just read the headline of this article.
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:Lobo Santo (profile), 1 Apr 2011 @ 12:22pm

Re: Re:
Binding EULA's that nobody reads is a chance to make your own laws!
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Anonymous Coward, 1 Apr 2011 @ 12:37pm

Awesome Business Model
Couldn't they have their own database hacked and then charge each of their users $25K?
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trilobug, 1 Apr 2011 @ 12:42pm

Re:
Make sure you record it though.
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crade (profile), 1 Apr 2011 @ 12:50pm

Re: Re:
Anyone who thinks these are binding is dillusional. Anyone who tries to enforce one that actually matters to someone with pull will get nowhere. Can you honestly imagine any court awarding me millions from all my clients because I said so in my license agreement and my clients "signed" it without reading it?
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Greg G (profile), 1 Apr 2011 @ 12:52pm

Re: Re:
It's no mistake that 6.9 (69 with a period) contains the language that states you owe them money no matter what.

I'm willing to bet EULA # 69 is much more satisfying.
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Anonymous Coward, 1 Apr 2011 @ 12:56pm

Re: Re:
I think what he's saying is that 6.9 seems to indicate that if you download video A, I download video A, and the copy I downloaded ends up on an "unauthorized" site, both of us owe 25k. Mike's article seemed to be focusing on the fact that just I, the person who's copy ended up somewhere else, would owe 25k.
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CommonSense (profile), 1 Apr 2011 @ 12:57pm

Hack proof
Signing up and agreeing to those Terms and Conditions is like saying "Hey, I'm stupid, take my money!"

A company that would try to make you liable for their security getting breached, probably wouldn't be above 'hacking' your account themselves, just to get that $25k
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Donnicton, 1 Apr 2011 @ 1:00pm

Real question is, if we're on the topic of making up complete BS terms that may not even hold up in court, why stop at twenty-five grand? Why not fifty? Why not a hundred? Why not your first born child and ten Oxen of sturdy build?
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Dark Helmet (profile), 1 Apr 2011 @ 1:08pm

Re:
"Why does Masnick read queerty.com? That seems to be the real story here."

Amazing. This is what I love about the true douchebags that troll here. This is obviously either TAM or AJ (likely the latter), based on his use of Mike's last name. For those that maybe not be familiar with Queerty.com, it's a blog written for homosexuals. So the implication is plain here: If Mike is reading an article on that blog, he must be gay AND being gay is bad (otherwise what would be the point of pointing this out?).

Honest question: what backwater fucktard community are you a part of where you think that calling someone "gay" is in any way a hip or creative insult? It's clear that you're about as big a bigot as I can fathom. And you know what? I'm pretty sure this is you, Average Joe, because this is right up your jackass alley (pun fully intended).

Previously you went out of your way to insinuate that Mike was protecting child molestors. Now you've moved on to your latest incindiary verbal fecal matter, jabbing at sexual orientation. Frankly, I don't know or care what Mike is. All I care about in this instance is that you're a homophobic bigot jackass that I hope never gets that law degree you're working oh so hard on (pun fully intended again) for fear that you would turn your legal mumbo jumbo on some poor gay kid who'd gotten his ass kicked while you defend his attackers.

There's plenty of room for disagreement here. What there isn't room for is blatant prejudice, at least not in my world. I'm pretty sure you owe an apology on this one, though being as how you couldn't conjure one up after your last bit of asshatic ignorance, I won't be holding my breath....
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Anonymous Coward, 1 Apr 2011 @ 1:12pm

Stupid TOS, or amazing business plan?
This may be their (Liberty Media/Corbin Fisher ) attempt at a new business model. Given that they're saying that no matter what happens, if someone else uses your username/password to get data that later winds up being pirated, whats to stop them from deliberately releasing that info themselves?

Wait till there are an adequate number of clients signed up, leak the user account details, wait, then Profit!
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MrWilson, 1 Apr 2011 @ 1:14pm

Re: Re: Re:
Exactly. Their lawyers need to read up on unconscionability.
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Unanimous Cow Herd (profile), 1 Apr 2011 @ 1:14pm

Re:
That's what the Leprechaun said.
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HM, 1 Apr 2011 @ 1:15pm

here is what confuses me. So i download some content from them and it ends up on the pirate-net, now i owe them 25k. But how do they know I am the one who released that content. I mean if 5,000 people have all downloaded that piece of content do they all owe 25k now? Or are they watermarking the content to me when i download it?

It seems this company could just take its most popular piece of content, get it on the pirate-net themselves and then try to collect 25k from anyone who has ever accessed it.
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Anonymous Coward, 1 Apr 2011 @ 1:17pm

Re: Stupid TOS, or amazing business plan?
Blasted keyboard...

Given that they're saying that no matter what happens, if someone else uses your username/password to get data that later winds up being pirated, you are the responsible party and own $$, whats to stop them from deliberately releasing that info themselves?
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Anonymous Coward, 1 Apr 2011 @ 1:19pm

Re:
if the watermark is just a number or hash that is attached to your account I don't know how thats a violation of privacy.

If watermarking is how they track the leak I highly doubt they are watermarking it with any personally identifiable information. Just some random code that is assigned to the account.
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Anonymous Coward, 1 Apr 2011 @ 1:21pm

Re:
Heck, its the same with your freaking bank account. Somebody hacks your bank account and steals all your money and racks up $100,000 in debt? Not your bank's problem, no no, its yours!
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Patrick, 1 Apr 2011 @ 1:29pm

Re: Re:
Damn, DH, Way to tear him a new asshole (pun fully intended).
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Mike Masnick (profile), 1 Apr 2011 @ 1:31pm

Re:
Why does Masnick read queerty.com? That seems to be the real story here.

Have you really stooped to gay bashing, now? Really?

Not that it matters, but I even pointed out clearly in the post that I found this article via a link in the comments on yesterday's article. But, even if I did read that site, why would that be "a story" other than displaying that you're a homophobic loon?
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Dark Helmet (profile), 1 Apr 2011 @ 1:32pm

Re: Re: Re:
"Damn, DH, Way to tear him a new asshole (pun fully intended)."

I mean, whatever. I know that's average joe. I can tell. Maybe it's that I'm one of those city slicker types, but there has to be a special place in hell for anyone who thinks sexual preference is something to mock.

What a dick....
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Greg G (profile), 1 Apr 2011 @ 1:46pm

Re: Awesome Business Model
I was thinking the same thing.
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Scote, 1 Apr 2011 @ 1:48pm

Also True of Video Rental Stores
"You agree that, even if you can prove hacking by clear and convincing evidence, you are still liable for any 3rd party use of your username and password."

This is unconscionable, but it is also with precedent in physical video rentals. The Blockbuster Video rental agreement (at the store I went to years ago) said that you were responsible for anything rented under your account, no matter how the thieves managed to check out items using your account, even if your card was stolen. Blockbuster did not check photo IDs upon rental, either, so they refused to take any reasonable means to protect user accounts. The only difference between Blockbuster and this stupid contract is, presumably, the amount of liability demanded.
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Zauber Paracelsus (profile), 1 Apr 2011 @ 1:52pm

Maybe this is part of a huge conspiracy to get people to stop watching porn.
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vivaelamor (profile), 1 Apr 2011 @ 3:22pm

Re: Re:
"So the implication is plain here: If Mike is reading an article on that blog, he must be gay AND being gay is bad (otherwise what would be the point of pointing this out?)."

Thank you for beating me to that. Pretty much made my day.
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Socrates, 1 Apr 2011 @ 3:38pm

Get it right people
An account cannot be hacked!!(unless you make it do something that wasn't intended)
Stupid journalists keep using hacker when they KNOW the right word is CRACKER.Don't let ignorance get the best of you!
LEARN THE FUCKING DIFFERENCE!!!
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Anonymous Coward, 1 Apr 2011 @ 3:46pm

Re: Get it right people
If I hack your server, then get your passwords, I'm clearly a hacker. If I steal your encryption and crack it, THEN I'm a cracker. Learn the difference.
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Anonymous Coward, 1 Apr 2011 @ 3:48pm

Re: Re: Awesome Business Model
According to this, it would also be your fault. So, are you going to legally acquire any of their products, knowing that they could sue you for it?

I think they're trying really hard to sign their own death warrant.
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Anonymous Coward, 1 Apr 2011 @ 3:53pm

But but but... that's what everyone uses as defence! "I was hacked, therefore I'm not guilty." I was just a matter of time before brain-dead retards started trying to do this sort of shit. And who else than porn? They drive everything online; it was to be expected, really.
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vivaelamor (profile), 1 Apr 2011 @ 4:39pm

Re: Re:
"The jokes are there but I don't want to come off as sexist in any way, shape or form."

I mean to be a pedant and choose to point out that sexist is different from homophobic. Unless you're making a subtle comment on the concept of gender roles, in which case: kudos!
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vivaelamor (profile), 1 Apr 2011 @ 4:47pm

Re: Re: Re:
"Obviously, I have no such restraint."

Me neither. Here's some Stewart Lee.
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Another AC, 1 Apr 2011 @ 5:58pm

Heh
Just for "fun" i went and read the TOS on the main page, this is my favorite part

"5.2.4

No employee of the United States Department of Homeland Security and especially no fucking U.S. Transportation Security Administration employees may be members. "

Also, if you can prove the breach was due to their site being hacked you are not liable.

Anyway, off to youporn to cleanse the pallet.
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Anonymous Coward, 1 Apr 2011 @ 7:03pm

Re: Re:
It was just a joke. Sheesh.
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Anonymous Coward, 1 Apr 2011 @ 7:13pm

Mike, scroll down the TOS to around #12 I think...
You agree they can just then sell the debt to a collection agency, since you signed a contract accepting all the blame.

When in doubt in the shakedown business, go back to the German model?
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Dark Helmet (profile), 1 Apr 2011 @ 7:25pm

Re: Re: Re:
Bull. You're a homophobic twat and you're "jokes" at the expense of people literally struggling for their rights is sickening.

Seriously. Go figure out a way to get cancer....
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techflaws.org (profile), 2 Apr 2011 @ 12:37am

Re:
Actually the question is why do you troll so badly?
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G Thompson (profile), 2 Apr 2011 @ 1:39am

Seems that this is an organisation just begging to be placed onto the radar of 4chan and anonymous.

Then once they are fully 'hacked' they will then have no recourse than suing their account holders otherwise they themselves would be in breach of their own TOS.

Resulting in so many counter suits and sanctions by every single account holder, rights activist organisation, et.al against them that their own baratry against alleged infringers would be the least of their concerns.
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vivaelamor (profile), 2 Apr 2011 @ 2:15am

Re: Re: Re:
"It was just a joke. Sheesh."

Like on top gear?

Here's a tip: don't make jokes where the punchline is that you're a bigot.
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Marc John Randazza, 2 Apr 2011 @ 8:34am

It seems unfortunate that Mike didn't do any fact checking before simply cutting and pasting from the Queerty blog.

Perhaps if he had read the actual TOS, he'd have found something different from what Queerty posted.

You are entitled to your own opinion. You are not entitled to your own facts.
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Christopher (profile), 2 Apr 2011 @ 9:12am

Re: Re: Re:
Not according to the judges who have had these things come up in front of them and negated them as not being equal to other contracts because unlike other legal contracts hardly anyone ever reads them.
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Christopher (profile), 2 Apr 2011 @ 9:14am

Re: Re:
Actually, it is your bank's problem, because if you can prove that the charges are fradulent (pretty easy to do in most states) they have to immediately put that money back into your account.
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Christopher (profile), 2 Apr 2011 @ 9:20am

Re: Also True of Video Rental Stores
You are forgetting that BlockBuster was sued over that as well. I remember the lawsuits that lead to them changing their policy on that, especially when people were pointing out that "Hey, I was miles away at the time these things were checked out with my card! If I cannot be held liable when someone uses my car to hit someone when they have stolen it, I cannot be held liable here either!"
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Christopher (profile), 2 Apr 2011 @ 9:22am

Re: Re:
Any watermarks are EASILY removed by recoding, even so called 'invisible' ones. So this is absolute stupidity on their part.
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Anonymous Coward, 2 Apr 2011 @ 6:09pm

Re:
Just because Corbin Fisher changed them after Queerty publicized them doesn't negate the fact that this is what they originally were. Since I will not give CF even a single click of traffic to read the TOS myself, can you tell us if you have now removed all liability for CF members if their accounts get hacked?
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Anonymous Coward, 2 Apr 2011 @ 7:35pm

Re:
Maybe you need to go check on your sock puppets.

briceforshin made statements in several places about the new TOS, and then forwarded the mocking to you.

Accusing sites that have nothing to do with torrents of trying to farm your sites login and passwords to get content to share via bittorrent really is a cute claim that I am sure your willing to back up. Or were we just trying to lend support to your interesting conspiracy claims?

Of course you do all of this using a sockpuppet so you can claim later that no one knows the real truth.

New TOS were posted that were stupid, and after the public went wild with them they were then "clarified". Because you changed them after does not alter the fact LMH/CF posted ridiculous terms.

As for making up facts, please post the evidence of actual harm and loss suffered by LMH/CF so that we can validate your claims in this area.

Please post the methodology used to capture the swarm information, so that it can be peer reviewed and we can make sure your not just taking a run at innocent people who will accept your ridiculous terms to avoid the social stigma of you trying to link them with gay porn.

It must be hard trying to fund a new studio complex in Vegas in a recession. Why else would you attempt to farm your customers in this manner, even go so far as getting the terms to sell the "debt" in the TOS?

You can play indignant all you want, but you have launched multiple attacks against your customers and fans. How does it feel to be the one who set fire to a brand that is slowly fading?

I'm sure if you go check the briceforshin accounts my writing style will become clear, you know who I am and you know I'm smarter and faster than you. I actually even held out an olive branch, but your determined to get money at any cost, and that cost is the destruction of the whole studio in the pursuit of it. Well played. *giggle*

Stomp your foot and cry some more, it worked so well for Lucas. So when do you think Texas is going to disbar Stone for his antics?

Oh and a protip - If your going to sell the idea that they are straight guys, once they start to get a rosebud retire them - it kills the illusion.
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Skippy, 2 Apr 2011 @ 9:02pm

The actual TOS were just as the author of this article posted. The website only changed them many days later after it was posted and harshly ridiculed on more than a few sites by their own subscribers.

It's par for the course though, this "legal team" has given their client so much poor council that these gaffes have come to be expected now.
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Anonymous Coward, 3 Apr 2011 @ 1:39pm

The author of this post did not make up any facts. The TOS they posted were copied and pasted directly from CorbinFisher.com. The were only changed after the TOS was made public. So Marc Randazza is a scumbag liar if he's claiming anything inaccurate was posted here.

And the TOS that is posted on that site now is still total bullshit and anybody who signs up with that company is an idiot. They can't be trusted. Especially not with scum like Randazza on their payroll.
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vivaelamor (profile), 4 Apr 2011 @ 5:19am

Re: Re:
"Of course you do all of this using a sockpuppet so you can claim later that no one knows the real truth."

Whether or not this is actually Marc John Randazza, the guy is a real lawyer who has represented porn companies. I'm not sure why you call him a sock puppet, unless you're making a meta metaphor pointing out how obvious the connection is.
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Anonymous Coward, 4 Apr 2011 @ 6:53am

Re: Re: Re:
Actually briceforshin is the sock puppet. It is an anagram of Corbin Fisher, and it has been making the rounds on several sites posting LMH/CF propaganda.

Its been pimping the settlement agreement, and the recent TOS changes, and then trying to do damage control after they were posted and mocked. The "concerns" were forwarded on to their lead counsel in this matter.

As Randazza has been pushing everything LMH/CF is doing, it seems unlikely he is unaware of this sockpuppet speaking on his behalf. It is disingenuous his posting here that they don't say that, when it is very clear they did say that.

briceforshin at least made the attempt to "manage" the situation while Randazza insists on denying its existence.

They really need to take a meeting and get all of them saying the same things.

And it is possible that was posted by Randazza, it is flippant enough to be his pouting style when things do not go his way.
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vivaelamor (profile), 4 Apr 2011 @ 10:59am

Re: Re: Re: Re:
"Actually briceforshin is the sock puppet. It is an anagram of Corbin Fisher, and it has been making the rounds on several sites posting LMH/CF propaganda."

Oh, that makes sen... Wait. Someone actually used an anagram for their sock puppet? Do they also burn up in sunlight and treat 'bloody mary' as a literal description for a drink?
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Anonymous Coward, 4 Apr 2011 @ 5:06pm

Re: Re: Re: Re: Re:
They anagramed the sock puppet and thought no one would notice. I go back to my original statement of smarter and faster.

Randazza refereed to their clientele as thieving little bastards, suggested nothing bad would happen from outing people, and really is loosing touch with reality.
The TOS is just the latest in a campaign of trying to scare people into handing them money.

I read the terms of the amnesty agreement, I even sent Mike a copy, the high points were -
If your ever naughty again your on the hook for the rest of the 25K. But no definition of how they plan to track that.

Even if you sign and pay, they still might take you to court anyways. Oh and then this contract is actually a signed confession.

While I supported the efforts against the person selling bootleg DVDs of CF content on eBay, you know what the law was meant to stop, they are now pursuing silly claims and trying to use the fear of outing and public shaming as a gay porn perverts to extract money.

Of course the timing of this has nothing to do with the ACS:Law model being imported into the US.
With LMH/CF trying to build a new studio in Vegas (someones been calling the neighbors of the house in Florida where they shoot - those nice Republican people were so "HAPPY" to learn what was happening).
The sudden press release of the "premier" site desperately trying to rebrand itself and move past the boring content that was their staple that the customers grew bored of.

So pretty much, they lit their brand on fire - fanned the flames - added a bunch of gas - and now want to try to be friends with the community they have shown obvious disdain for.
See cause all of the fallout from this is people who never even considered filesharing their content, now want nothing to do with them, and they will tell 2 friends and they tell 2 friends... and so on and so on...
Because on the internet Gay Porn with "Straight" guys is soooooo hard to find, and even pairing your models with a guy and a girl to "prove" they are straight wasn't enough.

Maybe they should have accepted the offer of help when I made it the first time, because right now anything I could have suggested or done to help them adapt to the new business models won't work.

Because you see me as evil thieving scum, rather than a customer you never tried to reach. Despite the propaganda, not all of us are stick it to the man give it all away free people.
Now you can get mad and try to name me in a lawsuit like the Unicorn guy cause you see that as an admission of guilt... except I never liked your content so I never bothered with it.
In fact I actively suggest people skip it because your insane and the contents not that good.
So I'm helping... I'm getting people to stop sharing your content... so they can forget all about you and you can go away.
Its win win.
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Mike, 4 Apr 2011 @ 7:46pm

Where is anon when you need them, lol? I bet if they dug into these people's past they would find at least one skeleton in the closet.
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Frezada, 6 May 2011 @ 8:46pm

Re: Re:
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Anonymous Coward, 7 May 2011 @ 12:02pm

Porn said
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