NZ Copyright Tribunal: Accusations Are Presumed Infringement, Despite Denials
from the guilt-upon-accusation dept
A few weeks ago, we noted that the first "three strikes" case of infringement in New Zealand was set to go to the Copyright Tribunal (an earlier case was dropped after the recording industry (RIANZ) realized it had screwed up). The Tribunal has now issued its first ruling, demanding that the accused pay a grand total of $616.57 NZ (about $515 US). The person was accused of downloading and sharing Rihanna's Man Down twice, and Hot Chelle Rae's Tonight Tonight once. The tribunal noted that the first song retailed for $2.39 and the latter at $1.79, so it doubled the first one, and started with $6.57 (all NZ dollars). Then it added $50 to pay for infringement notices being sent out. Another $200 covers the fee that RIANZ paid to bring the case, and then it tacked on a "deterrent sum" of $360 -- or $120 per song. Add it all up and you've got $616.57.The full ruling is a bit odd, but highlights the ridiculousness of NZ's three strikes law. The Tribunal notes that, since this is the first such ruling, it was going to explain each point carefully, and it did. But the really crazy stuff is that it notes that, under the law, it basically has to assume that the accusations mean guilt. The accused responded by admitting only to downloading Man Down a single time, and guessing that the second time had to do with a problem with uTorrent. She denies entirely that she or anyone in her household downloaded the other song.
"The letter outlines three separate infringements recorded on an internet connection in my name. The first song downloaded was a song called man down by rihanna. I accept responsibility for this. I downloaded this song unaware that in doing so from this site was illegal. When this song was downloaded to my computer; a whole utorrent program downloaded onto my computer [W]hen I turned my computer on it said that the song was still downloading and maybe that caused the song to register twice as it being downloaded? l'm unsure if this is possible or not but don't know why it shows that I would try to download the same song twice.So, basically, of the three strikes, she admits to one, suggests the other one, if done, was completely by accident, and vehemently denies the final download. The Tribunal basically ignores all that and says that, under the law, an accusation is as good as guilt unless you provide evidence of innocence -- and then says she failed to do so. Think about that for a second. You need to prove a negative here -- which seems close to impossible, but that's what the law apparently requires.
l kept receiving a pop up notice saying it seems like utorrent is already running but not responding, please close all utorrent processes and try again ... I figured out how to delete the song that was still trying to download but still couldn't figure out how to delete the whole program until just recently when I got someone to look at it as after I received the letter, i assumed having this program on my computer was causing the warning regarding downloading?
When I received the letter warning me of the download and consequences and that it was illegal, I didn't challenge the letter as I took responsibility for my actions and realised I was in the wrong and took it as a warning and didn't do it again.
I would never intentionally do anything illegal and you can see this from my criminal record as it is clean. I didn't realise that it was illegal and I apologise sincerely for this mistake and have removed it from my computer.
In regards to the song 'tonight tonight' by Hot Chelle Rae being downloaded, I can't claim responsibility for this as it wasn't done by myself or anyone in this household but if I find the person responsible for downloading this through my internet then I will definitely enforce the consequences behind doing so."
The Act creates a presumption that each incidence of file sharing identified in an infringement notice constitutes an infringement of the right owner's copyright in the work identified. An account holder may submit evidence that this presumption does not apply, or give reasons why it should not apply. In this case, the Respondent has not provided any evidence that the presumption should not apply. In fact, she acknowledges that at least some manner of infringement has taken place and has apologised for this.You would think that admitting honestly to that single download might make the Tribunal wonder if perhaps the other two accusations were inaccurate, but instead it take it as proof that "some manner of infringement" has taken place, so it can assume that the accusations were all accurate. The Tribunal basically throws up its hands and says that since there is "insufficient evidence" it just assumes "guilty."
There is insufficient evidence before the Tribunal for it to make detailed findings on these factual issues. That is the nature of a decision being made on the papers. On the basis of the information available to it, however, together with the statutory presumption that each incidence of file sharing identified in an infringement notice constitutes an infringement of the right owner's copyright in the work, the Tribunal is satisfied that file sharing took place via the Respondent's internet account as alleged.In the normal world, "insufficient evidence" means that you're presumed innocent, not guilty. But this is copyright law we're talking about, where the normal rules don't apply.
If there's any silver lining to the ruling, it's that the Tribunal did not go as far as RIANZ wanted. It had argued that the accused should have to pay a lot more than the cost of purchasing the track for that initial cost, because (it argued) any upload could be shared multiple times. The Tribunal rejects that idea, saying that it is "not relevant" to the cost issue, though it may be relevant concerning deterrence. On the issue of deterrence, the Tribunal more or less sticks its finger in the air and picks $120.
RIANZ tried to argue that the deterrence fee should be high, because it insisted the downloading of three songs (really only two songs) was clearly "flagrant." Why? Well, because she used uTorrent! Therefore, she must be a serial infringer.
The fact that the account holder had BitTorrent protocol (uTorrent version 2.2.0) software installed on her computer. It notes that the locating downloading, installing and configuring of such software is a deliberate act and does not occur without direct action on behalf of a computer user.The fact that uTorrent is perfectly legal and has significant non-infringing uses is not something that the RIANZ cares to concede. RIANZ also claimed that three whole downloads proves "flagrancy." Oh, and they insist that she "took no action to alter her behavior" -- again as an argument for flagrancy. Of course, the woman argues that she did, in fact, change her behavior. Either way the Tribunal notes that these arguments have nothing to do with flagrancy, since they'll automatically apply to just about anyone who shows up in front of the panel.
On the whole, it seems doubtful that this is going to suddenly make people start buying music again, but why let that get in the way of shaking down some music fans?
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Filed Under: accusations, copyright, new zealand, three strikes, tribunal
Companies: rianz
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Yeah, I laugh at that too. Some people need to go back to school and learn what Communism actually is. Here's a hint, it is not Soviet Russia/China/Cuba etc.
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Great legacy the MAFIAA is leaving behind eh? I'd be ashamed.
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Ditto Google Chrome, which I can use to download any infringing file stored on an FTP or HTTP server. That must mean having Chrome means you're a pirate, right?
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Objectives
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I laughed heartily at that one.
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Re: Objectives
Thank God it ain't working.
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- First rule of Oppressive Regime Club is, you admit nothing.
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Unintended consequences anyone?
I mean, if you take innocence and guilt out of the equation, and boil it down to 'well they said you were guilty, so we're just going to take their word on it and sentence you accordingly', then whether or not a person has actually committed the offense/crime in question becomes a completely moot point.
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M$ should sack the entire IE team.
Reminds me of an IE ad I saw on TV a few weeks ago. Microsoft may have deep pockets but that alone won't save IE if it can't even do the basic properly anymore.
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M$ should sack the entire IE team.
Reminds me of an IE ad I saw on TV a few weeks ago. Microsoft may have deep pockets but that alone won't save IE if it can't even do the basic properly anymore.
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Mike--
This really isn't hard to understand.
(1) Everyone is presumed innocent.
(2) Evidence is produced which tends to show that infringement happened over a subscriber's line.
(3) That evidence is what then changes the presumption of innocence.
(4) The burden shifts to the subscriber to rebut the presumption.
Everyone is still presumed evidence. Evidence is needed before the presumption changes. It's just like if your phone is used to make a $400 phone call to China. The burden would then shift to you to show that you didn't make that phone call. Otherwise, you'd be on the hook for it.
This really isn't hard. I know you'll whine about this and everything else about copyright until the day you die, all the time pretending like you're completely unable to have any opinion about whether we should even have copyright. But maybe one day you'll man up, calm down, and actually look at things in a reasonable manner. I doubt it. But just maybe.
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Re: Unintended consequences anyone?
I download with 0 remorse. This way I know my money is not funding such idiocy.
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That's a completely stupid analogy. Making a $400 call to China does not in any way violate the law.
So shut the fuck up AJ. You are not a lawyer. You are not a lawyer in training. If you were, you'd be pissed that the principle of innocent until proven guilty has been turned on its head
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Except that IPs can be spoofed, wireless networks can be breached. You imply that the mere presence of your car at the scene of a crime should suffice to make you guilty. Except that further investigation may show that you were actually working and the car was stolen and used in the crime (and you could not report it because you did not know your car was stolen). Got it?
It's just like if your phone is used to make a $400 phone call to China. The burden would then shift to you to show that you didn't make that phone call. Otherwise, you'd be on the hook for it.
My dad got his phone cloned a while back and many, many calls were made including for services that required money. He did not pay a cent because a simple investigation into his previous bills showed that it was completely off the behavior. So you are wrong yet again. But this poses another issue: connections would have to be logged for posterior checking and this poses serious privacy issues. Not even phone calls are logged without warrants. We move back again to the fact that further investigation is needed upon identifying that she downloaded something. Was her router open or compromised? Dis her account history show any suspect behavior? Are there further pieces of information that should be considered (ie: the downloads occur while there's nobody at home or everyone is asleep)?
This really isn't hard.
It is, you are the one that can't grasp the complexity.
But maybe one day you'll man up, calm down, and actually look at things in a reasonable manner. I doubt it. But just maybe.
Talking to yourself?
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"any opinion about whether we should even have copyright"
It doesn't matter how often you lie about people here, that doesn't make the lies true. Again, your lack of ability to understand the posts you attack does not make this claim suddenly factual.
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That's the one thing that's constantly pissing me off about those on the other side of the fence. No matter how many times we point out that what they say here is completely false and wrong, they still parrot it. I want them to actually debate us, to argue nuances. Not for them to endlessly repeat false information.
Hey, AJ! Answer this question or you're running away, just like you accuse Mike of doing. Why is it that despite the fact that everything you say is so easy to shred, you still post it as if its gospel truth? You haven't once said anything on this site that swings towards your favour. If you were to tell me the sky is blue, I'd have to look outside my window for a good few minutes before I'd admit you were telling the truth: that's how bad you are. If you truly want to convert myself and others to your side, then give us some correct information that cannot be denied: give us proof that Mike is the evil manipulator you claim he is. Trot out a line of artists who've all gone bankrupt because of online file sharing (and prove it was file sharing that did it, undeniable proof please).
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And none of that changes the fact that SHE WAS PRESUMED INNOCENT. Mike is being willfully blind about that fact, of course. Anything to spin this his way and get everything he can out of it "for the cause." Nobody prevents honesty from getting in the way like Mike.
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Wrong. The sick copyright law has changed that. Clearly you didn't read the article.
"The Act creates a presumption that each incidence of file sharing identified in an infringement notice constitutes an infringement"
"There is insufficient evidence before the Tribunal for it to make detailed findings on these factual issues."
So now, accusation = automatic guilt. She was presumed guilty the moment that the copyright holder accused her. The tribunal even admits that it had insufficient evidence to use, but still found her guilty anyway.
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Re: Unintended consequences anyone?
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"any opinion about whether we should even have copyright"
It doesn't matter how often you lie about people here, that doesn't make the lies true. Again, your lack of ability to understand the posts you attack does not make this claim suddenly factual.
I only care about the truth. The truth is that Mike pretends like he has no opinion whatsoever so to whether we should have copyright. You and I and everyone else knows that that's bullshit, and Mike is the most opinionated person on earth when it comes to copyright. But the fact remains that Mike is too ashamed to admit his honest beliefs on that and many other issues. Nobody runs away from an honest and frank discussion about these issues faster than Mike Masnick. He has no interest at all in actually discussing things honestly. He just wants to pump out article after article with copyright-hating FUD.
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LOL! Coming from you, that's rich. You're one of the dumbest posters on TD, and that's saying something. I assume that you're just one of the sockpuppets, so I usually don't bother to read anything you say.
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The evidence they produced was NOT evidence since it was found to be unreliable and irrelevant to the instance at hand.
In other words the evidence was not forensically sound, was not authenticated, was not reliable and most certainly was not relevant. Therefore it didn't tend to show anything whatsoever, in fact the Tribunal made that absolutely clear.
Though you could in a logic fail of some sort, which I'm sure your very familiar of having, say this was some sort of exculpatory evidence. Because it damn sure wasn't inculpatory.
As for your strange statement about Onus and phone calls to china.. Not only does no-one else know what you are trying to say.. by your slip-up of typing "presumed evidence" neither do you!
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Then, the next sentence you post is a provable lie, along with the rest of your delusional paragraph. Look back at my previous responses to you for evidence - it's easily viewable to anyone honest enough to bother. I'm tired of responding to such a pathological liar who can't take on board the most basic ideas that run contrary to his inexplicable obsession.
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No, the reason you don't answer is because you CAN'T. At least, not without exposing yourself even more for the fool you are. You saw this article, saw a woman accused of copyright infringement and immediately said to yourself she's guilty. Yes, she admitted to the first and second counts, but the way the court did its job should raised alarm bells with you, Mr. I'm a Lawyer in Training. The court here said that the accusation equaled guilt, that she has to prove she didn't download the files in question (which, for anyone who knows computers, is an impossible task to do). They admitted they had insufficient evidence, but ruled her guilty anyway, completely destroying the truism of "Let ten guilty men go free rather than falsely imprison one innocent man".
If she was in fact guilty, fine, but at least let her have a fair and open trial. One where the accuser's word isn't treated as if its gospel, where it should be only one word against another.
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this is NOT USA kangaroo court. Read up on tribunals, how they fit into the NZ justice system, and the NZ laws and procedures that they have to follow under Statutory acts (as well as bench rules) before you go blathering off at the mouth on something you doth not know.
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According to copyfags, by purchasing music/movies/software, you purchase a license to listen to/watch/use it
1. If you purchased a piece of music in any form, you purchased a license to listen to it. So why is it infringement if you format/time shift it or download it from any kind of source? You already paid for the license, and just obtaining the data you're licensed to use
2. Why downloading the same piece of music count as two separate infringement? Don't tell me it's like stealing 2 CD-s instead of one, because it's bollocks
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Though also the old thing that if you believe something long enough and shout it enough you can convince yourself of anything is also very relevant in AJ's situation now.
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And how many times must you admit to being the saddest excuse for a human being on this planet? Every time you "try" to debate, you always admit that your sole reason for existence is to try and prove one man wrong. If you really want to annoy Mike, send a million letters to his house. Ring his phone a million times a day. Make his e-mail inbox implode. But, for the sake of us all, do not draw the rest of us here into your private one man war on the Infamous Satan Worshipper Mike Masnick. We are sick of being caught in the crossfire (sorta like what happens when copyright maximilists promote the expansion of copyright law and the general public is harmed)
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After all, if the labels are going to go out of their way to 'protect' their artists, it's only fair for the artists to pay for their defense isn't it? /s
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Re: Re: Unintended consequences anyone?
1. Buy a few songs, online or in other format
2. Download said songs with torrent
3. They catch you downloading
4. Since you already own the song (or according to the music industry: own a license to it), you didn't committed any infringement.
it cost the RIANZ 250$ per case according to the article
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2) because the cartels didn't get any money; and
3) stop being rational about this, you're stealing from the cartels!
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Think of it as Due Process for Civil and Administrative Law matters.
It has three main rules to it.
1. The Bias Rule - any decision needs to be made by an unbiased and disinterested trier of facts (judge, magistrate, tribunal member) and they can not act in a biased way nor seen to be biased by a reasonable person.
2. The Hearing rule - any accused has to have the full ability to confront their accusers on an equal footing (this in tribunals like in this instance means NO lawyers/counsel can be present)
3. The No Evidence Rule - Which is that Evidence needs to be fully and logically probative, Needs to be procedural followed - since normally the criminal rules of evidence do not have to be used though relevance is paramount and any decision made using the evidence needs to be reasonably provable.
The USA does not have this type of system, which is strange since it evolved from the Magna Carta using the same parts that the Due Process Clause in the US Constitution (contained in 5th & 14th Amendments) came from too.
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In fact I've had some nice conversations with him (mostly arguing about something.. but civil in tone and respect). Lately though (if it is him) his demeanour has changed dramatically - which is a concern, especially for someone who is just beginning to enter the weird, wacky, stressed out and also at times wonderful world of Law.
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2) Because the TOS says so, and it cost LOTS OF MONEY to copy those bits, so they deserve to get paid LOTS OF MONEY anytime someone else copies it, and it is like stealing 2 CDs because they don't have the imagination to understand the digital world, and because they already have LOTS OF MONEY so they deserve more LOTS OF MONEY.
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A series of numbers. That's it. It does not say whether the accuser is lying, it does not say whether the tracker is poisoning their own list of IP addresses, it does not say what machine was behind the router, it does not say what PERSON was behind the machine that was behind the router.
This would be like if I were to accuse you of reckless driving by randomly quoting a licence plate number to the police, all without ANY OTHER EVIDENCE, like say CCTV or a photo.
Now AJ (or whatever you want to call yourself), how would one go about proving she didn't download the file? Go on. Put yourself in her shoes. She's been placed in front of a tribunal that have admitted she started out presumed guilty (read the quotes from them, jackass, they said that) and now she's been told to prove herself innocent, which flies in the face of innocent until proven guilty. As far as can be determined, she has no background in computer science or anything, so such a thing would be beyond her (and beyond those who do have such a background, since you're asking to prove a NEGATIVE).
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No, this is a folk belief, most common, I suspect, among computer users, who have been misled by EULAs into thinking that it is normal or necessary for end users to be licensed to use copyrighted works. Generally, though, it is not true. In fact, since copyright licenses can only apply to activities that fall within the handful of exclusive rights that comprise copyright, and since things like private performance don't fall under them, there could be no license anyway. It's rarely seen outside of things you install on or download to a computer, and then just in that context, usually unnecessary, and always very clear, with an express written license, not an implied one.
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What evidence? How was it gathered? Is the manner in which it was gathered reliable, and not prone to false positives? Does it actually point to the individual responsible?
If some random internet commenter can see the huge gaping hole in the case, what does it say about your law education that you don't?
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When not logging in (presuming this is him), he seems incredibly obsessed and cannot discuss any point without distorting it, and also seems incapable of understanding basic technical points that are raised. Any evidence presented as a claim must be the truth, and any attempt to point out how weak it is just means you support piracy.
If we are to assume it's him, then it is a little worrying. He does seem to be using the latter method too often, but even in his form where he admits his identity he seems incapable of following any argument that's not preconceived in his head. That seems problematic in any career, but doubly so if his field is going to be anywhere near technology (and which isn't nowadays?).
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The evidence consisting of a claim by a 3rd party that an IP address was seen to be downloading a file, and evidence provided by an ISP that the IP address was assigned to her router at the time. That's it. The "evidence" is so weak as to be laughable without corroborating evidence (a confession or examination of her hard drive finding the file, for example). She may well be guilty, but that's an astonishingly low level of evidence to shift the presumption of innocence.
"That shifts the burden to her to prove that she's not liable."
...which is utterly impossible, hence the problem. She can provide her computer for forensic examination, every receipt for anything she's ever bought and logs for every person she knows to have accessed the router complete with times and dates, and it still wouldn't prove she hadn't downloaded anything. I can prove I bought 100 DVDs in the last year, that my network is secure, etc., but if you were to accuse me of downloading one movie I cannot possibly prove it, even if it's an outright lie.
So, the weak evidence provided (which is more like a 3rd party saying "I saw this car speeding the other night" rather than being caught via official police equipment known to have been calibrated, logged, photographed, etc.) cannot possibly be refuted, yet the mere presence of said "evidence" means that defending yourself is now impossible.
See the problem yet?
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/s
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If some random internet commenter can see the huge gaping hole in the case, what does it say about your law education that you don't?
Read the law there if you're really interested: http://www.legislation.govt.nz/act/public/2011/0011/latest/whole.html#DLM2764354
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In fact I've had some nice conversations with him (mostly arguing about something.. but civil in tone and respect). Lately though (if it is him) his demeanour has changed dramatically - which is a concern, especially for someone who is just beginning to enter the weird, wacky, stressed out and also at times wonderful world of Law.
I'm bummed that Mike proves over and over again that he has no desire to actually discuss his beliefs about copyright on the merits. I use to think he was one of the best and brightest in the copyright debate. He was on the other side of the fence from me (we all know he is, even though he can't admit as much) so I really wanted to dig into the minutia. After having seen him run away from any sort of productive conversation hundreds of times, I've grown sour and angry because I know that he's not operating in good faith. I know that he doesn't care about the truth. Heck, I can point to threads in the past couple months where he started to have an interesting discussion, but as always happens he runs away when he realizes he can't back up what he says. Now I just see him as an angry zealot who can't defend even the most point he makes. It's sad.
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1) Person A makes an accusation
2) That accusation MUST be taken as gospel by the ISP. At the time of accusation, it is not examined as to whether its false or the evidence underlying the accusation is reliable.
3) The ISPs MUST issue warnings and later, enforcement actions, to the accused subscriber.
4) The rights holder can demand action be taken against the subscriber, all without having gone to a court or the subscriber proven guilty.
This law is fucked up beyond belief. As I've stated before, it completely destroys what the law is like in Western democracies. You are not allowed challenge the claim until late in the game, you are pronounced guilty upon being accused and you have the burden of proving yourself innocent, an impossible task.
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I know you hate that, but that's the way it is. That evidence is what takes away the presumption of innocence (really it's the presumption of not liable since this is civil and not criminal, but it's the same idea).
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"I've grown sour and angry "
At least you admit it, although I don't understand why you're so obsessed with posting here if you don't like anything written. I despise the Daily Mail, so guess whose site I don't comment on, rather than obsessing over why their editors don't debate me and admit they're fascist liars?
Ignoring Mike, why won't you debate the real points made by others here, along with their clearly held views on copyright? Even if you ignore the articles themselves, there's often lively and honest debate here?
"Now I just see him as an angry zealot who can't defend even the most point he makes."
No, that's a mirror. Look the other way.
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And according to the wording of the law, her accuser is allowed to say "Nope! My accusation stands".
"What happened instead was that she admitted to having installed and used a file sharing program."
And since when is using a file sharing program illegal? Web browser? Dropbox? IRC? All of those are examples of file sharing programs but none of them are illegal. Neither is utorrent or Bittorent. So the court fucked up there.
" Sure, she denied one infringement. But she admitted the other two."
And yet, was found guilty of all three, using asinine methods that no court room full of college trained law personnel should have done.
Sure, she may actually have been guilty of the first two charges, but the court system is not supposed to run roughshod over its own rules and practices simply to find a guilty verdict. If it turns out a person is technically guilty, but the court cannot actually pronounce them so without turning the judicial process on its head, then that person deserves to go free.
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LOL! Here ya go AJ - http://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-techdirt .shtml?threaded=true#c1210
I know it's not the answer you want, but he has addressed you several times now. At this point, you're just digging for dirt to justify your ego crusade.
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I mean, you just must be really bored with life.
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Why is it you are incapable of realising the fact that an IP address is perhaps the weakest, most UNRELIABLE form of evidence when it comes to computers?
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After all, that's what happened with OJ Simpson. Everyone knows he's guilty of the murders, but what happened was that the investigators fucked up with the DNA handling. The court could not pronounce Simpson guilty with the evidence being shown to be that weak, so they had no choice but to let him go.
However, when its copyright law? Suddenly, all the normal rules of evidence go out the window and people are pronounced guilty upon being charged.
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You're right, I - mistakenly - lumped the two things together (not that I believe in this whole "you pay full price, but we just license it for you" crap software companies keep spewing)
The point stands tho:
You the concept behind this whole mess is by buying the song, you reimburse the artist. You maybe had to paid for the carrying media, delivery or bandwidth too, but the point is that you bought an intangible product (especially if you bought it online), the artist is reimbursed, and you "own a song" in a sense.
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Personally I don't think of this site (TD) as an Opinion piece of Mikes, though yes he owns it, is cin control of all articles (to an extent) and writes brief opinions on the relevant news that the community wants (and sometimes themed serial posts), but even though he does sometimes join the discussions he is trying to run a business and only has a limited time to answer every single query and criticism. Whereas the main opinionated body of the site is the other commentators who are a strange, pseudo-anonymous, esoteric bunch who are who you need to be debating with.
Stop worrying yourself about Mike and falling into that trap, life's too short and soon I suspect if you are just starting as a fresh faced young attorney (who is basically a human gopher) you will be going mad trying to find enough time in the day to even scratch yourself let alone worry about TD... and some of Us will miss the ability to debate civilly with someone like yourself.
Oh and the truth, as you will find is overated in law.. though always please remember the law is about people and without people the law cannot work. So treat them respectfully. Nuff said, I'm off to bed (2:35am here). Have a good one. And thankyou for the response
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I mean, you just must be really bored with life.
Nobody here wants to fix anything. Mike is even too dishonest to state an opinion of whether we should even have any copyright at all. He just wants to criticize everyone else's beliefs while pretending he has none of his own. I dare him to discuss his beliefs honestly and frankly. Never happen.
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then it is clear you have major psychological problems. My older sister was the exact same way. She was full of anger growing up and always acted out on it, harming others around her and never once accepting responsibility for her own emotions.
Using your "logic" a man is justified to rape a woman because using her beauty, she causes him to feel lust and he can't help himself.
No, you have responsibility for your own emotions and your own actions. So fucking what if what Mike does pisses you off? You do not have to constantly whine about it. If Techdirt and Mike piss you off so much, then get the fuck out and never darken the comments again. The Westboro Baptist Church pisses me off. Al'Qaeda pisses me off. A lot of people piss me off and cause me to feel anger. What I DON'T do is fucking stalk them, cyber or not, for years on end, demanding they debate me.
Get some help. You desperately need it. Do not come back to Techdirt until you do. What I and the others want is sane, rational debate between different viewpoints. Not having to waste our precious time reading the deranged ravings of an angry madman.
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Yet it didn't. The system identified her as sharing the third song - which she did not.
If you are presuming that when the accuser presents some evidence that it is valid, then in a fair system, if the defender presents conflicting evidence (she did), then the onus should be back onto the accuser to show that theirs is valid.
And you're damn right that we're freaking out about this. I have a hard time understanding how anyone who sees this isn't. There is no due process, no presumption of innocence, no evidentiary control, and at best there is a appearance of a conflict of interest. This is the new Mccarthyism and Salem witch trials.
Sure, its file sharing and copyright infringement, which I don't think is in any way wrong (unlike many others who are also arguing against this that do think violating copyright is wrong). I would be arguing against this for other crimes - criminal or civil - for the same reasons. I'm against people running red lights, but I'm against red light cameras that only capture a license plate and presume guilt of the owner of the car with no evidence they were behind the wheel and no fair process to dispute a ticket. I'm against murder, but I'm against intimidating a suspect into confessing based on faulty evidence.
I find it truly offensive that just because a person potentially broke a law, their rights to due process and a fair trial are not being respected.
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I love the way you openly lie to the very people you're talking about.
"honestly and frankly"
Let me know when you start learning what those words mean yourself.
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Wow, I can definitely say you've got the lawyer's ability to bullshit on lockdown as well as the ego.
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If you pulled your head out of Mike's ass, I'm sure you'd see there are plenty of people who want things fixed.
It's okay, Aj, we know your inflated ego makes you apathetic about the way things are, but we'd rather have constructive conversation, not a pissing contest.
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Yes, your identity can be stolen. It doesn't matter.
Yes, DNA evidence can be contaminated. It doesn't matter.
Yes, cops can railroad a mentally challenged person into confessing to murder. It doesn't matter.
Fuck. That. Shit.
It all matters. Some of us want to live in a society that respects the rights of individuals. Some of us want laws to be respected and understandable by ordinary people. Some of us want to be able to trust our government to look out for us. Some of us want a fair justice system so we can resolve disputes based on facts.
If you don't want those things, then please go Die. In. A. Fire.
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It's okay, Aj, we know your inflated ego makes you apathetic about the way things are, but we'd rather have constructive conversation, not a pissing contest.
I'd love a constructive conversation where each side is frank and honest. You tell me when Mike's ready. I'll be there.
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It's just like if they find your bloody knife next to a body with your fingerprints on it. That you weren't in the country when the murder occurred would be a defense that you raise after the prosecutor establishes his case and the burden shifts to you.
But yeah, telling me to die in a fire is awesome. If I were Mike, I'd pull that out every time I couldn't carry my side of a discussion with you and needed a way out. I'm not that sensitive/slimy/desperate. I hope I don't die in a fire. That would suck.
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Wow, I can definitely say you've got the lawyer's ability to bullshit on lockdown as well as the ego.
Yes, I want to debate the most opinionated person on the copyright hating side of the debate. That he's unable to do so only tells me I'm on the right side of things.
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Hell, you two should battle it out on TD. Each of your responses could be a blog post here as you go back and forth.
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And that right there is the problem. Why are we, the commentators, now suddenly responsible for scheduling a debate between you and Mike? Why is it we have to suffer through your whining that he won't debate you? I honestly couldn't care less if he does or doesn't. I don't know you personally. I don't know Mike personally. I have never met either of you.
If you want to constantly bug Mike for a debate, then make sure its through private channels. Mail him, phone him, or email him. Do not drag us into it. Do not constantly bring up the fact he doesn't. Since he doesn't debate you, then leave this site. Whining about it won't convince him to. It only proves you have the mentality of a three year old. Three year old kids whine, whine and whine until they get what they want. However, in this case, they're better than you, because the three year olds grow up and stop doing it. Not you. You've been whining for YEARS.
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Because AJ is the knight in shining armor out to slay Mike the dragon and prove to everyone here he is a terrible person.
Gotta love the subtle high school overtones of AJ's angst towards Mike.
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Nope, you are Sir AJ, Knight of the Copyright Table, whose honour, intelligence and wit are unquestionable. You're the tragic hero of this story, of a lone voice crying out in defiance against the vile manipulator hidden in the shadows...
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Try assuming that infringement = theft
Basically the real world equivalent of a kid stealing a drink and a pack of chips from a corner store and being caught on a HD security camera. Obviously the kid would have to pay cost of their stolen goods and I would suggest perhaps doubling the value as punishment - but if the kid admits their crime and pays up it should end there. If they decide to fight the charge and are then found guilty then they should clearly incur costs, but how much? If the store owner hires million dollar lawyers then that would be clearly unjust to force the kid to pay for them. I would suggest that the costs should bring the damages up to no more than triple value ie 300%, $19.71 in this case. Instead the alleged infringer is expected to pay 9385% in damages? How does this make any sense at all, even remembering that we are taking the accusers claims at face value in this case?
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She did:
"In regards to the song 'tonight tonight' by Hot Chelle Rae being downloaded, I can't claim responsibility for this as it wasn't done by myself or anyone in this household"
As I stated above, if you are going to take the word of the accuser for granted, in a fair trial then you must take the word of the defendant for granted as well.
Without evidentiary controls and without further investigation, all we have are two parties making statements. One side said 'this person downloaded song1 twice and song2 once' and that person has responded saying 'I downloaded song1 once, the seond instance of song1 was the result of a technical problem, but I did not download song2 at all.' The burden is back on the accuser to show that their evidence for song2 is reliable. They didn't, and the tribunal just assumed she was guilty.
As to the DIAF comment:
1) It is common internet hyperbole
2) It was only directed at you if you did not want to live in the society I outlined (I guess you don't)
3) You get awful bent out of shape for someone who throws provably untrue insults at others in nearly every post. You are that sensitive/slimy/desperate as your posting history shows.
and
4) Go DIAF. :)
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In any case, the evidence is NOT strong enough. Nobody keeps logs of what went through their routers. And it is very hard to determine if a router security has been breached. It requires detailed forensics and *SURPRISE SURPRISE* the cops should be doing that. You see, if the person has not downloaded they can, say, cooperate with the cops to try and figure if their wireless network was compromised. Even if it was not, the signal can be tracked to the actual downloader.
This requires both time and shitloads of resources. Which are NOT tuned to the severity of the crime (because, well, it is not a crime and it is done widely all over the world). The knife analogy is flawed. When the burden is shifted to me I can try backtrack and prove that I was elsewhere using credit card records, witnesses, flight tickets and so on. This is simpler (albeit not nearly as simple as you seem to think the original case is).
Just because I have a damn screenshot that shows YOUR ip on a swarm it doesn't mean it's YOU downloading. I hope your IP gets spoofed. I'm sure it'll be simple for you to prove you are not guilty, right? I'm sure you won't mind spending time and a lot of resources with the burden on your shoulders, right?
I'll go childish for a moment here and throw an insult at you: MORON.
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Heck, don't you remember the time he demanded an apology from Mike when Mike finally had enough and stopped to his level and insulted him back? (And if memory serves me correctly, Mike's "insult" wasn't even that bad. Definitely not anywhere near the league of insults AJ has used against Mike.)
At the end of the day, put simply, AJ can dish it out but he can't take it. He's INCREDIBLY thin skinned. And what's more, he has no shame. That's evident based on the arrogant levels of hypocrisy he displays. "You insulted me. Apologize! You dishonest, slimy bastard with an agenda! I hope you get cancer and die!" (Note that as well, he has on numerous occasions stated that last line to Mike or aimed it in Mike's direction. But telling AJ to "Go DIAF" is low and childish of you and whoever else said it recently in the comments just now.)
All of this [points at AJ's comments and general behavior/personality] are clear and perfect reasons for why no one should debate AJ, much less Mike. And the fact that he doesn't see any of his behavior issues, past or present, as detrimental to his need/urge to get debated says a lot about him. Add to that the fact that for some reason he feels Mike needs to debate him, of all people on the planet. AJ who is essentially a nobody, and definitely not in the same league as some of the more reputable and knowledgeable people Mike has debated and/or discussed issues with. Says a lot. Arrogant doesn't even begin to describe him.
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I'd love to magically know his IP address to spoof it and download a lot of gay porn to get him to the courts so he could be convicted without a solid evidence (with the plus side of probably ruining his macho reputation).
Ignorance is a bliss, eh?
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This really isn't hard to understand.
(1) Everyone is presumed innocent.
(2) Insufficient evidence is produced which does not show that infringement happened over a subscriber's line.
(3) That lack of evidence should not change the presumption of innocence.
(4) The subscriber can't rebut something that doesn't exist.
Nobody is still presumed evidence. Evidence is not needed before the presumption changes. It's just like if somebody claims without evidence that your phone is used to make a $400 phone call to China. The burden would not then shift to you to show that you didn't make that phone call. Because otherwise, you'd be on the hook for it.
This really isn't hard. I know you'll whine about this and everything else about copyright until the day you die, all the time pretending like you're completely unable to have any opinion about whether we should even have copyright. But maybe one day you'll man up, learn to read, and actually look at things in a reasonable manner. I doubt it. But just maybe.
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I'd love to magically know his IP address to spoof it and download a lot of gay porn to get him to the courts so he could be convicted without a solid evidence (with the plus side of probably ruining his macho reputation).
Ignorance is a bliss, eh?
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Re: Try assuming that infringement = theft
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"I'm always frank and earnest with women. Uh, in New York I'm Frank, and Chicago I'm Ernest. - Mitch Henessey in The Long Kiss Goodnight
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I don't know how things work in New Zealand, but in the US, this is certainly not true.
What changes the presumption of innocence is when enough evidence is introduced that there is no need for a presumption of anything. In other words, when guilt is proven.
There is no concept that introducing suggestive evidence changes the presumption of innocence at all. Practically speaking, it is wise to try and counter such evidence in court, but the legal presumption of innocence remains nonethelesss.
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Based on your commenting history, that seems to be the main thing that you don't care about.
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> complete and utter crap. It keeps crashing out of the blue.
Yes, and it also crashes for every average joe.
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Wait, wait, is that literally the IP address they're using?
If so, then this case needs to be dismissed immediately. 192.168.anything.anything does not uniquely identify any machine on the internet at all. That address range only identifies a machine in its local LAN, not the internet.
I have at least four different machines I use every day that has that IP address.
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1. rikuo is -in fact- one of the more perspicacious posters here, thank you very much...
2. which proves you are just a nasty piece of work; not difficult to believe you are training to be a parasite on society...
3. there is not ONE PERSON on the inertnet who believes you: you have squandered any goodwill or respect with your tiresome, repetitive, crybabyin' about 'chubby won't debate me...' wah wah wah... really, i'm embarrassed for you...
4. you do NOT engage in intellectually honest debate no matter who it is; while even a blind pig will find an acorn every once in a while, your argumentative stench makes it pointless to follow your posts for that one acorn...
5. as a disagreeable character myself, you make me look like fucking mary poppins...
art guerrilla
aka ann archy
eof
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So glad I'm not in NZ
Why, just this week I tried downloading Ubuntu 12.04, then realized about 20% through that I should be downloading the 64-bit ISO instead. So, I cancelled the 32-bit torrent, and downloaded the 64-bit one. After a lot of trial and error (more error than trial, really) I settled on CrunchBang (this is for a server I ended up removing the GUI from anyway, but the install process for standard Debian is a freaking nightmare) and torrent-ed that.
So nevermind that I'm using a perfectly legal program to download free, open source software. Had I been in NZ, not only would they find me guilty of 2 counts - I'd be guilty of a third count of this nonsense due to the TOTALLY UNUSABLE 20% DOWNNLOAD of 32-bit Ubuntu I didn't even freaking finish.
Just...wow.
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... although the defining features weren't to do with communism, rather authoritarianism - a point that is generally, deliberately obfuscated.
When you talk about "going back to school and learning what communism is", I think you're talking about trying to rewrite the meaning of communism to suit some bizarre, twisted American ideal, based on bizarre twisted American politics.
Because it is isn't it? American politics? It's bizarre and twisted?
Sure looks that way to the rest of the world.
Meantime here in NZ - we're still living with the benefits created for us by our unionised ancestors. The benefits of being a New Zealander are benefits that were fought for, and won, by socialists. The schools, the libraries, the healthcare. Hell... our police don't even need to carry guns.
All of which is being gradually whittled away of course, because... like all other democracies in the world, we're being infected by corporatism... what in the 1930s was called fascism.
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Angling for a temporary insanity ruling maybe?
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She admitted to one, said the other one was probably here when she accidentally downloaded it again, and then denied the third. Her honesty is refreshing, but simply denying something doesn't rebut a presumption. Else all accused criminals would just deny their crimes and then go home.
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Try me. Name even one true thing that I deny.
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What changes the presumption of innocence is when enough evidence is introduced that there is no need for a presumption of anything. In other words, when guilt is proven.
There is no concept that introducing suggestive evidence changes the presumption of innocence at all. Practically speaking, it is wise to try and counter such evidence in court, but the legal presumption of innocence remains nonethelesss.
The law in NZ says that the presumption of innocence is rebutted when this evidence is produced. This evidence was introduced, hence the burden shifted to her. I understand that you don't think this evidence is sufficient to shift the burden, but the lawmakers in NZ disagree with you. I know that this sort of evidence has shifted the burden in US caselaw as well. Not sure how you're disagreeing with the facts that I'm reporting.
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The girl admitted DLing. You're fighting the wrong battle here.
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This really isn't hard to understand.
(1) Everyone is presumed innocent.
(2) Insufficient evidence is produced which does not show that infringement happened over a subscriber's line.
(3) That lack of evidence should not change the presumption of innocence.
(4) The subscriber can't rebut something that doesn't exist.
Nobody is still presumed evidence. Evidence is not needed before the presumption changes. It's just like if somebody claims without evidence that your phone is used to make a $400 phone call to China. The burden would not then shift to you to show that you didn't make that phone call. Because otherwise, you'd be on the hook for it.
This really isn't hard. I know you'll whine about this and everything else about copyright until the day you die, all the time pretending like you're completely unable to have any opinion about whether we should even have copyright. But maybe one day you'll man up, learn to read, and actually look at things in a reasonable manner. I doubt it. But just maybe.
Cry all you want, but such IP evidence is sufficient to shift the burden. Read the actual law we're talking about: http://www.legislation.govt.nz/act/public/2011/0011/latest/whole.html I understand that you would draft the law differently, but that doesn't change the fact that the evidence they had on her shifted the burden to her and removed her presumption of innocence. The IP evidence they had was enough. Sorry you don't like it, but that is the fact of what happened.
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I'm describing the law. The evidence they had was enough to make the prima facie case of infringement. That shifted the burden to her to prove that she didn't do it. She couldn't prove that she didn't do it, so she lost. This is how things work in all areas of law. It's funny how you guys freak out because it's copyright.
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Heck, don't you remember the time he demanded an apology from Mike when Mike finally had enough and stopped to his level and insulted him back? (And if memory serves me correctly, Mike's "insult" wasn't even that bad. Definitely not anywhere near the league of insults AJ has used against Mike.)
At the end of the day, put simply, AJ can dish it out but he can't take it. He's INCREDIBLY thin skinned. And what's more, he has no shame. That's evident based on the arrogant levels of hypocrisy he displays. "You insulted me. Apologize! You dishonest, slimy bastard with an agenda! I hope you get cancer and die!" (Note that as well, he has on numerous occasions stated that last line to Mike or aimed it in Mike's direction. But telling AJ to "Go DIAF" is low and childish of you and whoever else said it recently in the comments just now.)
All of this [points at AJ's comments and general behavior/personality] are clear and perfect reasons for why no one should debate AJ, much less Mike. And the fact that he doesn't see any of his behavior issues, past or present, as detrimental to his need/urge to get debated says a lot about him. Add to that the fact that for some reason he feels Mike needs to debate him, of all people on the planet. AJ who is essentially a nobody, and definitely not in the same league as some of the more reputable and knowledgeable people Mike has debated and/or discussed issues with. Says a lot. Arrogant doesn't even begin to describe him.
Dish it to me all day long. I couldn't care less. I won't run away. I won't dodge your questions. I answer direct questions with direct answers. I'm open, honest, and human.
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Translation: I'm so bored ruight now, I'm just hear troll people for my own amusement. I been kicked out WOW for greifting so many people. I have no life.
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Yeah, I'm being called a liar yet I'm actually describing the actual law that's actually being applied to this actual situation. I know, I know. It's TD, and the truth isn't welcome here. Keep trolling, AC. You really hit me hard with that criticism. I'm reeling from the sting.
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Ah well...
*sigh*
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LOL! Huh? My head hurts. I don't believe I am lying. If you think I've lied, show me where. I'll discuss anything directly.
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When it comes to copyright everyone is guilty unless proven innocent
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You're keyboard seems to have glitched a bit, and left out a few words. I assume this is what you meant to say.
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I hear you can solve that problem with some solid evidence.
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Re: So glad I'm not in NZ
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http://t.qkme.me/35ke38.jpg
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It's refreshing when you admit how biased you are. It can be presumed that she's guilty based on the word of one of the corporations you worship, but she can rebut that - with pretty much the same level of evidence - and her word means nothing.
"Else all accused criminals would just deny their crimes and then go home."
Yes, that how it works. If you have insufficient evidence to prove someone guilty and they claim they are not guilty, they go home because the evidence is insufficient. It shouldn't matter if it's a murder charge or shoplifting - if you can't prove someone did it, they don't get punished. It's up to the prosecutors to prove the accused committed the crime. Not the other way around. We don't punish people based on an accusation, especially based on something so flimsy and unspecific as an IP address.
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You'll notice that even the US Constitution that the Teabots worship so (selectively) incorrectly has had to be amended a couple of dozen times or so, including something like 10 times right after it was first created!
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Yes, you're the epitome of honesty alright.
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> replace "innocent till proven guilty"
> with the opposite?
The only thing new about this 'presumption' idea is its application to copyright. U.S. drug laws, for example, have had similar presumptions for decades.
Get caught with more than a certain amount of weed, and the law presumes you're a drug dealer, not just a drug user. And you have to prove your innocence of that charge.
Get caught in the same car or room with some drugsm and five other people, if no one owns up to them, the law presumes you (and everyone else) are in possession of them, and it's up to you to provide evidence that they weren't yours.
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Re: Unintended consequences anyone?
> pirate stuff left and right?
If you're gonna have to do the time, you might as well do the crime.
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