IP Address Snapshots Not Sufficient Evidence To File Infringement Suit; Prenda Lawyer Faces Sanctions

from the copyright-trolling-smackdown dept

Fri, Feb 8th 2013 3:33pm — Tim Cushing

It looks as if Judge Otis Wright is about done humoring Brett Gibbs and Prenda Law/AF Holdings/Ingenuity 13 LLC's continued legal asshattery. In a lengthy order that reads more like a smackdown, Wright attacks Gibb's abuse of the legal system and thoroughly dismantles his so-called "business model."

First, Wright takes on the evidence Prenda Law presents, consisting of a "snapshot" of possible infringement in progress. He points out that a time-coded screenshot hardly makes the case that actual infringement occurred.

This snapshot allegedly shows that the Defendants were downloading the copyrighted work—at least at that moment in time. But downloading a large file like a video takes time; and depending on a user’s Internet-connection speed, it may take a long time. In fact, it may take so long that the user may have terminated the download. The user may have also terminated the download for other reasons. To allege copyright infringement based on an IP snapshot is akin to alleging theft based on a single surveillance camera shot: a photo of a child reaching for candy from a display does not automatically mean he stole it. No Court would allow a lawsuit to be filed based on that amount of evidence...

And as part of its prima facie copyright claim, Plaintiff must show that Defendants copied the copyrighted work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). If a download was not completed, Plaintiff’s lawsuit may be deemed frivolous. In this case, Plaintiff’s reliance on snapshot evidence to establish its copyright infringement claims is misplaced. A reasonable investigation should include evidence showing that Defendants downloaded the entire copyrighted work—or at least a usable portion of a copyrighted work. Plaintiff has none of this—no evidence that Defendants completed their download, and no evidence that what they downloaded is a substantially similar copy of the copyrighted work. Thus, Plaintiff’s attorney violated Rule 11(b)(3) for filing a pleading that lacks factual foundation.

TorrentLawyer summarizes Wright's opening salvo as laying down two rules via case law, ones that will adversely affect copyright trolling in California, and which could affect proceedings elsewhere:

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

This sort of lawsuit has almost always relied on little more than a snapshot and an IP address as "evidence," the latter of which has been shot down by multiple courts for its inability to correctly identify alleged infringers. Now, Wright is throwing out Gibb's precious bundle of snapshots as well.

Wright tackles the IP address issue next, under a heading titled "Lack of reasonable investigation of actual infringer's identity." He points to earlier explanations by the plaintiffs as to how they arrived at the identity of the alleged infringer and picks apart their "methodology." Here's Ingenuity 13 LLC's explanation of their deductive process.

Though the subscriber, David Wagar, remained silent, Plaintiff’s investigation of his household established that Benjamin Wagar was the likely infringer of Plaintiff’s copyright. As such, Plaintiff mailed its Amended Complaint to the Court naming Benjamin Wagar as the Defendant in this action. (ECF No. 14, at 2.)...

In cases where the subscriber remains silent, Plaintiff conducts investigations to determine the likelihood that the subscriber, or someone in his or her household, was the actual infringer. . . . For example, if the subscriber is 75 years old, or the subscriber is female, it is statistically quite unlikely that the subscriber was the infringer. In such cases, Plaintiff performs an investigation into the subscriber’s household to determine if there is a likely infringer of Plaintiff’s copyright. . . . Plaintiff bases its choices regarding whom to name as the infringer on factual analysis. (ECF No. 15, at 24.)

"Factual analysis?" Really? Wright calls it for what it is.

The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff’s “factual analysis” cannot be characterized as anything more than a hunch.

Wright gives Ingenuity 13 LLC several suggestions on how to narrow this list of suspects down, including "wardriving" to check whether the WiFi connection in question is open, whether several downloads have occurred at the same IP address, or just a good old-fashioned stakeout.

Such an investigation may not be perfect, but it narrows down the possible infringers and is better than the Plaintiff’s current investigation, which the Court finds involves nothing more than blindly picking a male resident from a subscriber’s home.

This sentence is damning enough, but the followup is the killer:

But this type of investigation requires time and effort, something that would destroy Plaintiff’s business model.

Wright notes the difference between criminal and civil suits that rely on IP addresses for identification. In criminal proceedings, the court usually can rely on the fact that an actual investigation has taken place prior to the charges being brought. In a civil case, the court has no such guarantee, but that doesn't mean the judicial system has to entertain these claims.

[W]hen viewed with a court’s duty to serve the public interest, a plaintiff cannot be given free rein to sue anyone they wish—the plaintiff has to actually show facts supporting its allegations.

Back to TorrentLawyer with another addition to California federal court case law and another blow to trolling-as-business-model.

RULE 3. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST DO A “REASONABLE INVESTIGATION” TO DETERMINE THAT IT WAS THE NAMED DEFENDANT WHO DID THE DOWNLOAD, AND NOT SOMEONE ELSE WITH ACCESS TO HIS INTERNET CONNECTION.

All in all, this smackdown is going to make copyright trolling in California a rather unprofitable venture. Expect to see some venue-shifting in the future. Unfortunately for Ingenuity 13 LLC, it's already entrenched in a losing battle, and it's going to get even worse. Wright also had some choice words for Brett Gibbs' misconduct. Two allegations stem from his failure to comply with the Court's orders to cease discovery. Gibbs first told the court the plaintiffs had not obtained any information about the subscribers in question, before later regaling the court with tales of its efforts to obtain the forbidden information when responding to Orders to Show Cause.

The third allegation is more serious, alleging fraud on the court. This circles back to the mysterious "Alan Cooper."

Upon review of papers filed by attorney Morgan E. Pietz, the Court perceives that Plaintiff may have defrauded the Court. (ECF No. 23.) At the center of this issue is the identity of a person named Alan Cooper and the validity of the underlying copyright assignments. If it is true that Alan Cooper’s identity was misappropriated and the underlying copyright assignments were improperly executed using his identity, then Plaintiff faces a few problems.

First, with an invalid assignment, Plaintiff has no standing in these cases. Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious, as these cases were filed for a facially improper purpose. And third, the Court will not idle while Plaintiff defrauds this institution.

Wright then orders Gibbs to show cause why he should not be sanctioned for this misconduct, while declining to extend the sanctions to AF Holding and Ingenuity LLC -- based on Gibbs' "fiduciary interest" in the plaintiffs and the likelihood that the plaintiffs are "devoid of assets."

Wright gets in a little dig at the still-nonexistent Alan Cooper:

If Mr. Gibbs or Mr. Pietz so desire, they each may file by February 19, 2013, a brief discussing this matter. The Court will also welcome the appearance of Alan Cooper—to either confirm or refute the fraud allegations.

Things were already looking pretty grim for Brett Gibbs, but the worst may still be on the very near horizon:

Based on the evidence presented at the March 11, 2013 hearing, the Court will consider whether sanctions are appropriate, and if so, determine the proper punishment. This may include a monetary fine, incarceration, or other sanctions sufficient to deter future misconduct. Failure by Mr. Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt.

What started out for Gibbs and co. as a route to easy money has morphed into possible jail time and a complete undermining of the "business model" Prenda Law, AF Holdings and Ingenuity 13 LLC hoped would make them, if not actual millionaires, at least slightly richer. And so another chapter of the Gibbs/AF Holdings/Prenda Law saga concludes, leaving us with the sort of cliffhanger that only those whose names haven't been listed above will enjoy seeing played to its conclusion.

Prenda Smackdown (PDF)Prenda Smackdown (Text)

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Filed Under: brett gibbs, copyright, evidence, hunches, ip address, prenda, snapshot, subscribers
Companies: af holdings, prenda law

85 Comments

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Anonymous Coward, 8 Feb 2013 @ 3:41pm

POPCORN!!!! GET YOU POPCORN HERE!!!
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S. T. Stone, 8 Feb 2013 @ 3:42pm

I can sum this up in two words: holy shit.
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Mason Wheeler (profile), 8 Feb 2013 @ 3:42pm

It's about time.
So good to see the judge finally getting around to this...
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Anonymous Coward, 8 Feb 2013 @ 3:45pm

Wow. I think a lot of these cases are bullshit, and potentially violate Rule 11 in some cases, but that is a very surprising order that is a pretty far departure from any other Rule 11 cases I've seen.

Rule 11 does not require that you already have all the evidence you'll need to prove your case before you file your case.

You just have to have a reasonable belief, based on a reasonable pre-filing investigation, that you can obtain such evidence.

Aside from the IP address issue (which is important), a snapshot of a download in progress seems like a reasonable basis to believe the download occurred, and that there would be evidence of the download obtainable through discovery.
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Josh in CharlotteNC (profile), 8 Feb 2013 @ 3:52pm

Re:
+1
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Rikuo (profile), 8 Feb 2013 @ 4:02pm

Re:
The key word here is reasonable. Now, if I'm recalling all the facts from this case correctly (feel free to correct me if I'm wrong somewhere) the main evidence is that snapshot, where they can point to the IP address and say "Well, as far as we thought, someone was downloading our copyrighted work" (let's ignore for now all their other shenanigans with Alan Cooper and John Steele).
Anyone with any kind of background in the Internet will know that an IP address, especially as the sole piece of evidence, is the WEAKEST evidence imaginable. At the very least, last I heard, most if not all torrent trackers poison their lists with fake IP addresses. Everyone knows this. So to take a snapshot and say that's enough for a reasonable assumption...just doesn't fly with me.
Let's take the judge's example of accusing a kid of stealing a candy bar. The IP address is not enough. Just seeing the kid with outstretched arms is not enough. Perhaps after checking and finding the bar gone, someone else had actually taken it.
Yes, you don't need all the evidence, but in cases like this, you need more than just a single snapshot of an IP address. You need a lot more before you can say you have a reasonable belief.
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Nigel (profile), 8 Feb 2013 @ 4:19pm

Thank You Prenda!
All amusement aside, these clowns have paved the way for precedents to be established that do not allow this sort of shit to go on.

The irony is frankly off the charts here.

Nigel
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sophisticatedjanedoe (profile), 8 Feb 2013 @ 4:20pm

Note that the words �imprisonment� and �bench warrant for contempt� in an order to show cause are anything but common. Some serious pants soiling is happening somewhere at this moment.
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Anonymous Coward, 8 Feb 2013 @ 4:28pm

Re: Thank You Prenda!
And actual irony for a change. Not the "irony" that people use as a generic term for almost everything but.

Prenda law tried to spam copyright cases to make a quick buck, but their actions have resulted in it becoming progressively harder to spam copyright cases to make a quick buck. Ironic!
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Hugs, 8 Feb 2013 @ 4:28pm

Who is the Judge? I want to send him flowers and give him a hug.
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Anonymous Coward, 8 Feb 2013 @ 4:30pm

This started going through my head halfway through reading that judicial smackdown. I can't wait to find out what happens next!
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Nigel (profile), 8 Feb 2013 @ 4:31pm

Re:
https://www.google.com/search?q=Judge+Otis+Wright&ie=utf-8&oe=utf-8&aq=t&rls=org.moz illa:en-US:official&client=firefox-a

there ya go..

N.
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Anonymous Coward, 8 Feb 2013 @ 4:32pm

How would I know if it was infringement
As someone who has (often enough) gone to the internet to locate "free porn" - I will assert that as someone seeking to download porn, I would have no clue if it was infringing or not until I watched it, and saw a copyright notice.

This is where the "downloaders are infringing" bit is quite ridiculous. If I find a video of naked chicks getting banged by huge black cocks - I wouldn't immediately assume: "shit, i bet this is pirated" - no, cuz porn doesn't work that way on the internet.

It's the willful uploaders that should be pursued here - not the ignorant downloaders. There's enough legally free porn on the internet that I think it would be difficult for any random person to know what was illegal or not.
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Anonymous Coward, 8 Feb 2013 @ 4:41pm

Nice finally they get bitten for this BS.
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MrWilson, 8 Feb 2013 @ 4:42pm

Re: Re:
And from my younger days working retail, I recall that the stores I worked at would not consider accusing someone of shoplifting unless they had eyes on the suspect from pretty much the beginning of their visit to the store until the end when they walked out with something. Suspicion wasn't considered reasonable unless a loss prevention employee was watching the person either in person or on video cameras and saw them shove something in their pocket and try to leave the store. Some people would ditch their stolen items before leaving and technically didn't commit a crime. Same goes for Wright's argument.
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loaderboy (profile), 8 Feb 2013 @ 4:45pm

The Honorable...
Otis Wright for President!
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Anonymous Coward, 8 Feb 2013 @ 4:48pm

You know I've got to give the judge props for this ruling. Oh and he comes from California my state? Even better.
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Anonymous Coward, 8 Feb 2013 @ 4:57pm

Re: Re: Re:
I was told something similar, that i had to observe them pocketing it and i had to observe them until they exited because at any time they could of put the item down and it would make the company liable for counter-sue
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GMacGuffin (profile), 8 Feb 2013 @ 5:07pm

And that is why ...
...you don't try to disqualify a Federal judge for bias just because he asks a question you don't want to answer; or to accuse opposing counsel of fraud for showing evidence of yours (or something like that), and all the other things. Benchslap!

So it's not binding precedent. It's a District Court ruling. It's even maybe a bit over the top as to what needs to be alleged at the pleading stage. But ... the judge has a lot of discretion in this area, which is very difficult to flip on appeal, and the dude pulled the trigger. Awesome.

And even if it is a bit more stringent as far as basic pleadings than one might expect (must evidence entire vid downloaded?), I'm hoping it will lay the groundwork for a standard less potentially muddied by the case history here. I'm hoping other courts will pick up where this left off and craft a Baseline Pleading Standard for Copyright Trolls like the three elements here, that Courts can feel comfortable using to shut these folks down. But that's just me.
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That One Guy (profile), 8 Feb 2013 @ 5:07pm

Call me paranoid but...
Why do I get the feeling a whole bunch of those involved running this scam are suddenly going to 'remember' the vacations they'd planned in foreign countries real quick?

Hopefully, should something like that happen, the judge will see and treat it as what it is, namely attempting to run, and will bring out the 'Go directly to jail' card.
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farooge (profile), 8 Feb 2013 @ 5:28pm

this is awesome
that is all
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GeneralEmergency (profile), 8 Feb 2013 @ 5:30pm

Nice, But...
.

...The Judge forgot something just a substantial as his "RULE 1."

RULE 4. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE FILE DATA TRANSFERRED WAS ACTUALLY USED TO CREATE A FILE COPY OF THE COPYRIGHTED WORK ON THE DEFENDANT'S COMPUTER. IF THE DATA TRANSFERRED IS NOT ASSEMBLED INTO A FILE ON THE DEFENDANT'S COMPUTER, THEN NO COPYRIGHT INFRINGEMENT OCCURRED.

.
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bob, 8 Feb 2013 @ 5:47pm

Curse you, Judge Otis Wright! How will honest content producers make their living now?
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Nigel (profile), 8 Feb 2013 @ 5:59pm

wow
This fellow is sorta cool...

Born in Tuskegee, Alabama(as a black man)

check out his wikipedia entry

http://en.wikipedia.org/wiki/Otis_D._Wright_II

That guy has paid said dues.

While I am sure I can find some bush era shit I disagree with, that guy is awesome.

Nigel
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Anonymous Crawdad, 8 Feb 2013 @ 6:12pm

IT IS SO ORDERED.
February 7, 2012

Time-traveling judge ftw!
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Ophelia Millais (profile), 8 Feb 2013 @ 6:19pm

Hmm... I'm wondering how Rule 1 can possibly hold up against the higher court rulings that say that copyright infringement needn't rely on the "complete work" being copied.
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Hephaestus (profile), 8 Feb 2013 @ 6:25pm

Re:
My wonder is if the US isp's are going to reconsider their stance on 6 strikes after this. Huge class action lawsuit potential and all.
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Anonymous Coward, 8 Feb 2013 @ 6:35pm

Re: How would I know if it was infringement
A good point. It's somewhat analogous to video game publishers attempting to enforce EULAs that don't allow a game to be returned once opened, but you can't agree to said EULA pre-purchase because it's inside the box and has to be opened to be read.
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Anonymous Coward, 8 Feb 2013 @ 6:39pm

Re: It's about time.
I think he was just waiting to see how deep of a hole they would dig for themselves.
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Anonymous Coward, 8 Feb 2013 @ 6:40pm

Judge Pharaoh sez:
So let it be written, so let it be done.
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Anonymous Coward, 8 Feb 2013 @ 6:52pm

Re:
Had to give you a funny vote for that one, bob.
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gnudist, 8 Feb 2013 @ 7:13pm

Re:
*munch*
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Anonymous Coward, 8 Feb 2013 @ 7:14pm

Re: Re:
I wish he had said you can't identify someone by IP.
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JarHead, 8 Feb 2013 @ 8:44pm

Re: Nice, But...
Agreed. In fact I strongly believe that this should replace Rule 1. The download completion requirement can easily be refuted, and there's also concerns like the one posted by Ophelia Millais below.
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G Thompson (profile), 8 Feb 2013 @ 9:26pm

I think the US legal system is about to have a nice long and extremely vigorous discussion about what the definition of reasonable in relation to rule 11 actually is.

About time
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G Thompson (profile), 8 Feb 2013 @ 9:40pm

Re: And that is why ...
Couldn't agree more, though Gibbs did more than pull the trigger, he as an apt analogy basically got up on the bench and peed all over the gavel yelling out "ne na nena neeenar"

As a baseline standard isn't that what is already required under your Rule 11? ie: it must use an objective standard, not just subjective good faith. So either the Standard being used is now obsolete or wasn't there to begin with, which is not unusual especially with how some so called 'Forensic' testimony is now being seriously looked at in the USA.

Until this matter and standard does get sorted out you will always have people like Gibbs, Prenda, et al. trying to game the system with no real ramifications to the plaintiff. Maybe it might also allow some tort reform too. Though that's crazzzzyyyy talk! ;)
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Anonymous Coward, 8 Feb 2013 @ 9:47pm

Where is Alan Cooper?
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GeneralEmergency (profile), 8 Feb 2013 @ 10:14pm

Re: Re: Nice, But...
.

Good point, but that point is based entirely on the -assumption- that the data being transferred is actually being written to a file. It is a trivial matter to write a program that transfers Torrent or other P-2-P sourced data and simply dumps the incoming memory buffers as the data is received.

Computer technology is Hyperpolymorphic. Anything -IS- possible and -MUST- be taken into consideration. You must -NOT- assume anything is happening until you can prove it authoritatively.

.
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That Anonymous Coward (profile), 8 Feb 2013 @ 10:32pm

Re:
Ah Discovery... where they would have to pay thousands of dollars to have a reputable firm to investigate 1 computer.
Now look around you, how many objects near you can access the internet? Phone, Tablet, Computer, Laptop, etc...

They can't be sure what device was connected, and a court should look at them sideways demanding access to every net capable device in the home and that has visited the home.
http://arstechnica.com/tech-policy/news/2011/09/p2p-lawyer-ip-address-not-enough-let-me-searc h-all-pcs-in-the-house.ars
They lied to the courts time and time again in these cases.

The entire business model of these cases is get the names, look for the shaky people, scare cash out of them guilty or not. They made claims that the people who paid the bill were legally responsible for the acts of others, copyright law does not allow for negligence claims. The only investigation they did was to make sure the target was in the right age demographic to look guilty or old enough to fold in the face of their name being connected to "scandalous porn title". People who try to explain it wasn't them being lead to say things that could be twisted to make them think they were responsible.
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That Anonymous Coward (profile), 8 Feb 2013 @ 10:38pm

Re: Re:
The ISPs will just say they were mislead by CCI and CCI will collapse on itself after shifting the blame out to Dtechnet.
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That Anonymous Coward (profile), 8 Feb 2013 @ 10:44pm

Re: Re: And that is why ...
Pretenda is already using a new name to avoid the bad past.
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That Anonymous Coward (profile), 8 Feb 2013 @ 10:46pm

Re: Call me paranoid but...
Not until the last moment, as long as they can still send out letters and calls to scare up cash they will keep running.
Until a Judge freeze's their financials they will keep going. Most of the cash is most likely stuffed into offshore accounts, so the big dogs will have time to walk as their underlings get locked up.
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alanbleiweiss (profile), 8 Feb 2013 @ 11:54pm

Re: Re: It's about time.
no he was waiting to see how long Techdirt readers could hold on before screaming for him to act decisively. #TechdirtWin
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alanbleiweiss (profile), 9 Feb 2013 @ 12:00am

Re: Re: Re:
exactly. In fact, historically, while it is likely the person grabbing the candy bar / whatever, who then stuffs it into their pocket, or walks around with it without going directly to a register will then walk out of the store, there are cases where the alleged shoplifter eventually does go to the register and pay for the item.

After my tour in the Military Police, I worked in retail security management for a while. It was a strict policy that we both had to keep eyes on the suspect from the moment of the potential theft until they left the store, and we could only confront them after they exited the store.
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Anonymous Coward, 9 Feb 2013 @ 1:23am

John Steele is up to his balls in this but there is no mention of him by the judge. i sure hope he is going to be included in the charges, other wise, you can be pretty sure he will be at it again!
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Anonymous Coward, 9 Feb 2013 @ 3:26am

Re:
Brett Gibbs probably will give up Steele if things get stinky for him.

Those rats don't have loyalties, greed was never a good social glue.
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PaulT (profile), 9 Feb 2013 @ 5:56am

There's a suspicious lack of trolls here trying to refute the article and claim that piracy did indeed take place. Could it be that we've finally found a story that proves what everybody here say all the time, or is it just their weekend break?
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Anonymous Monkey (profile), 9 Feb 2013 @ 6:30am

All I can say is ...
And the other shoe drops...
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That Anonymous Coward (profile), 9 Feb 2013 @ 10:22am

Re:
The sick ones end up culled from the herd. To try and defend these trolls now would make them look even more ridiculous than normal.
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Andrew D. Todd, 9 Feb 2013 @ 11:42am

Sneakernet Meets Advanced WiFi
The WiFi people are imminently in the process of bringing out the "ad" protocol, which runs at 60 GHz, and has a date transfer rate of 7 Gbits. It compares favorably with all commonly used six-foot cables, and is about a thousand times faster than nearly all internet access. Now, imagine the use of the "ad" protocol in peer-to-peer mode, with appropriate software. You walk past someone, carrying your I-thingie with the right switches set. Assume that the other person has his I-thingie and software, again with the right switches set. You might spend twenty seconds within twenty feet of each other, especially if you aren't moving real fast. That's time to swap a few movies, in compressed form. Now, think about it, how many people do you walk past every day?

http://en.wikipedia.org/wiki/IEEE_802.11ad

A 60 Ghz signal has a relatively limited range. It is absorbed and reflected by water vapor and air, which makes that frequency a good choice for weather-radar. The signal is going to be very hard to detect at long range. Any kind of program of anti-piracy espionage will have to be conducted so close that physical confrontation will be likely, and, cumulatively, inevitable. It will not be possible to do something as antiseptic as sniffing addresses from the safety of the internet. An overly ambitious copyright-troll lawyer won't get sanctioned-- he will either get "stomped," or arrested, as the case may be. As I have previously noted, the logical marketplace for bootleg music and video is probably a schoolyard.

Two years ago, I put up a comment about "SneakerNet." One thing that further commentators at the time had a hard time dealing with was the notion of "trading goods," ie. that people seek to accumulate stuff they do not themselves want, in order to be able to trade it for something they do want. Si a given file tends to propagate over the whole trading network.

http://www.techdirt.com/articles/20110124/17422712805/obama-nominates-former-top-riaa-la wyer-to-be-solicitor-general.shtml#c1069
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BentFranklin (profile), 9 Feb 2013 @ 11:54pm

Incarceration please!
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WDS (profile), 10 Feb 2013 @ 12:30pm

Re: Rule 1
The judge actually said: "A reasonable investigation should include evidence showing the defendants downloaded the entire copyrighted work - or at least a usable portion of a copyrighted work."

Rule 1 was TorrentLawyers paraphrasing of that. I think the point is since torrents are a mess of fragments that are not in order, that you need to show they got at least something watchable.
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Anonymous Coward, 10 Feb 2013 @ 3:17pm

Re:
They never show up in articles like this. It's hard to refute facts. (Not for lack of effort. Because AJ and bob ALWAYS seem up to the challenge.)
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Isaac Kotlicky (profile), 11 Feb 2013 @ 7:37am

Wow.
I feel like the entire American public just won the Game Named After an Exceptionally Large Item of Dinnerware.

Or at least California, for setting this precedent.

All in all, at least San Fran can claim SOME victory this year...
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Killer_Tofu (profile), 11 Feb 2013 @ 9:10am

Late but important point - Six Strikes
I know I am getting to this thread pretty late, but I wanted to point out all that the judge said about their 'evidence'. Does it bother anyone else that the evidence the judge pretty much tossed out is most likely the same level of evidence that ISPs in the US want to start using to punish their users at the behest of corrupt copyright organizations?
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Anonymous Coward, 11 Feb 2013 @ 10:35am

Re: Re:
I think there is a reasonable basis to say an IP address isn't enough to reasonably believe (not prove) that a particular *person* performed a download. But I'm putting that independent basis aside for the moment (and there was additional evidence in this case, which may or may not make for a reasonable basis).

The judge seemed to say that a snapshot showing a download in progress is not even enough for a reasonable belief that a download occurred, aside from the issue of *who* performed the download). I think that's a mistaken application of Rule 11.
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DannyB (profile), 11 Feb 2013 @ 10:38am

Re: Nice, But...
Okay, but let's take a look at RULE 1 again:

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

So suppose someone had an incomplete download that was missing important parts such as:
1. the unskippable commercials
2. skippable commercials
3. previews of craptacular upcoming attractions
4. the FIB warnings
5. the "Macrovision Quality Protection" notice at the very end
Etc.

Does that download count as an incomplete copy?

I am not a lawyer, so I wouldn't know.
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Anonymous Coward, 11 Feb 2013 @ 10:39am

Re: Re:
Pointing to all the other bad things about these cases doesn't justify a baseless ruling on this issue, in my opinion. That's why we have the saying "bad facts make bad law."

I, for one, think that most of these cases violate Rule 11 by asserting personal jurisdiction over John Does with no basis for believing they are subject to personal jurisdiction in the court where the action is filed.

But that's irrelevant to the level of evidence/investigation needed simply to believe that a download occurred.
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DannyB (profile), 11 Feb 2013 @ 10:41am

Re:
Judge Otis D. Wright II:

Would you like monetary fines with your incarceration? Super sized?
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Anonymous Coward, 11 Feb 2013 @ 12:48pm

Re: Re: Re:
It isn't in part because anyone who can get that snapshot legitimately should also be in a position to get a string of snapshots showing the download from *some point* to the end. I'd recommend using a program like FRAPS to get a nice tight series or just using snapshots displaying an all but complete download (the equivalent of having video of the baby out to the door of the store with the not paid for candy bar in hand).
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Anonymous Coward, 11 Feb 2013 @ 1:35pm

Re: And that is why ...
" It's even maybe a bit over the top as to what needs to be alleged at the pleading stage"

Seriously. If this kind of standard were applied across the board, it would drastically change practice in the federal courts.
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Anonymous Coward, 11 Feb 2013 @ 1:36pm

Re: Nice, But...
You don't have to "prove" anything before filing a lawsuit.
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Anonymous Coward, 11 Feb 2013 @ 1:39pm

Re:
I don't think anybody knows whether piracy took place, but a snapshot of an unauthorized download in progress certainly seems like good evidence to me that it took place.

Notably, this ruling means that the defendants never have to testify as to whether they completed a particular download. We don't even know if they dispute that piracy took place.
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Jose Castillo, 11 Feb 2013 @ 4:55pm

Re: Atty tried to get Judge off case
Here is some more reading material while you still have the popcorn out. The atty tried to have the Judge removed by filing a motion to disqualify - in hindsight - a very dumb move!

1) Motion to Disqualify: http://goo.gl/43TxA

2) Order on Motion to Disqualify: http://goo.gl/nVq3o
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That Anonymous Coward (profile), 11 Feb 2013 @ 4:56pm

Re: Re: Re:
baseless ruling... what ruling are you reading?

Let us start with the "plaintiffs" might not actually hold the copyrights they sued over.

Let us then look at the idea that an IP address can identify a specific person, and that person is ALWAYS the name on the bill.

Let us then imagine that the "expert" in these cases has no degree in computers, research, investigation, or relevant knowledge of BT beyond saying yep they are totally guilty.

Let us remember when challenged to prove his case, Gibbs response was to declare the Judge biased and demand his removal casting dispersions on the bench and opposing counsel in a childish rant.

Personal jurisdiction is almost assured nowdays, after a handful of Judges outside of DC demanded proof of such. Each time these cases are tossed, or dismissed after names are revealed they refine the techniques to try and pass the smell test.

There are serious questions as to the validity of the LLCs represented in these matters. There is an obvious pattern of fraud and the court can take judicial notice of Pretenda having colluded with an unmasked Doe in a few cases now to accept being sued and not resist Pretendas motions to unmask other Does trying to avoid the appearance of a mass doe lawsuit. Or taking judicial notice of Pretenda employee's being placed under oath and it discovering they attempted to mislead the court in various ways.

My response was targeted at the idea of Discovery happening, and the methods trolls use to secure "settlements" using debt collecting techniques and outright lies to scare payments out of people who might be completely innocent.
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That Anonymous Coward (profile), 11 Feb 2013 @ 5:09pm

Re: Re:
Ummmm I'll just leave this here.

http://piratbyran.org/bevismaskinen/

Its just a screen shot maker that allows you to implicate any IP of having downloaded anything.

The IP gathering done by copyright trolls has never been vetted, and at least 1 of the major companies doing this had cases thrown out of German courts and were sued by partner lawfirm for having not disclosed flaws in their tech.
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That Anonymous Coward (profile), 11 Feb 2013 @ 5:13pm

Re: Late but important point - Six Strikes
Oh but that is being done outside of the legal system.
So what if the company gathering IP addresses has been sending out bogus crappy DMCA notices for clients.
The terms of service and acceptable use policies of ISPs trump federal law and your guilty because they said so.
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Anonymous Correction, 11 Feb 2013 @ 7:08pm

Re: Anonymous Coward
I have to say I think you completely missed the reasoning introduced by the judge here.

The plaintiff did not participate in a reasonable pre filing investigation and had nothing close to reasonable belief.

If you think reasonable belief is that someone with access to that WiFi may have, sort of, downloaded a part or maybe all of an item than sure the courts are wrong.

However anyone with a touch of logic can conceive that the plaintiff in this case has nothing of the sort and is using the filing of a suit as a threat in order to get the defendant to settle and not to actually prove a case.
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ldne, 11 Feb 2013 @ 8:23pm

Re:
Every web page, every popup, evrything you see on the internet is a "download", from an ip address standpoint it doesn't matter what's goin on, data packets are being sent to and from the ip address. That's why the Judge set the bar higher. If they keep letting these clowns slide, eventually someone will use the precedents set and you could end up in trouble because a popup "downloaded" copyrighted material to your computer for 5 seconds while you were closing the thing, an ip snapshot would show the data going to your address at that time.
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TrollsRCowards, 11 Feb 2013 @ 11:10pm

Re: The coward is full of it
Wow....what a load of crap the Coward is throwing around. That snapshot idiocy, along with the entire IP-address-equals-THE-infringer fecal matter, is why these extortion cases are so horrible. AND IT IS EXTORTION...we all know that. Reasonableness is the issue. An attorney that wants to load his wallet full of ill-gotten gains from others will have a whole different definition of 'reasonable' than the normal person, the courts (finally), and most anyone with an IQ over 80 (which is essentially mentally impaired to the point of being non-functional). None of their extortionate pleadings and 'evidence' is reasonable by any means.
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Troll Killer, 11 Feb 2013 @ 11:24pm

JOHN STEELE ---- CONVICT.
JOHNNY STEELE....come out and play.

Come out and reap what you sowed John. I can't wait to see where this all goes and how long your prison sentence is.

Hello Johnny!!!! I hope prison, with all that comes from being someone's little beeoothch, agrees with your delicate nature.

Maybe you and Brett can share a cell. And the fleabag room with one bed in a condemned rat-infested crack house when you get out.
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Ceri Cat, 12 Feb 2013 @ 12:48am

Re: Re: Re: Re:
We got the same brief during my security licence training, you lose sight of them for even a second you're going to have to drop it unless you see something else. Burden is on you to maintain contact, and here at least they've no reason to empty their pockets for you, you can't force them to remain either (false imprisonment) so if they go to leave you just have to circulate their particulars to other security as a barred person due to failure to comply. Besides sometimes when you pull them up it really was just a moment of forgetfulness and they'll go straight over to pay. I've done it myself once this year at a self service checkout and missed a loaf of bread.

The burden to prove a crime has been committed is definitely necessary in these cases and I applaud his honour's decision.
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yaga (profile), 12 Feb 2013 @ 5:00am

Re: Re: Re: It's about time.
Yeah I'm sure that was the holdup.
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Anonymous Coward, 12 Feb 2013 @ 10:58am

Re: Re: Re: Re:
You seem to be misunderstanding me. Maybe I could have been clearer.

I am talking about one specific issue in this case: whether a snapshot of a download in progress is a reasonable basis on which to believe a download occurred.

None of the other issues (whether an IP address is a reasonable basis to believe the account owner associated with the address performed the download; whether there is personal jurisdiction; whether the plaintiffs own the asserted copyrights) are relevant to that issue.
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Anonymous Coward, 12 Feb 2013 @ 11:02am

Re: Re: Anonymous Coward
I believe performing an investigation that shows a download in progress is a reasonable basis to believe that a download occurred. That's why I think the court is wrong on that particular issue.

I am legitimately confused as to why people keep bringing up *other* problems or abuses with this case or other cases. Other problems don't make that particular ruling on that particular issue correct.

Bad actors aren't always wrong on every single issue.
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Anonymous Coward, 12 Feb 2013 @ 11:04am

Re: Re:
And, in fact, numerous courts have held that simply displaying a web page temporarily on your computer creates a "copy" under copyright law. This ruling doesn't affect or change that.

It is possible that an interrupted download via a torrent doesn't result in any copyright-protectable expression being downloaded. But at the filing stage a plaintiff is generally not held to a standard requiring that they prove a violation ocurred. This judge is applying a much higher standard, in my opinion, than most judges apply at the filing stage.
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Anonymous Coward, 12 Feb 2013 @ 11:05am

Re: Re: The coward is full of it
If you're interesting in a rational discussion about this issue, I am as well.

But it looks like you're just interested in name-calling.
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Anonymous Coward, 12 Feb 2013 @ 11:09am

Re: Re: Re:
The fact that a screen shot can be fabricated doesn't change anything.

There is no rule that you have to prove your case before you file your case. You don't need some sort of irrefutable proof.

All you need to do is have a reasonable basis, based on a reasonable investigation, for believing that the facts in your complaint are true.
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Anonymous Coward, 12 Feb 2013 @ 1:11pm

Re: Re: Re: Re:
This is the only response I've seen so far that makes a good point. I didn't see this rationale in the opinion, though. Maybe I missed it.
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Anonymous Coward, 12 Feb 2013 @ 8:05pm

Re: Re: Re: Re:
You're working under the impression that what plaintiffs currently have constitutes "reasonable". Considering the RIAA's track record of errors and misses, plus the fact that no one has verified the methodologies of the investigators they hire over the decade-long course of their litigation campaigns, when it comes to these plaintiffs "believing that the facts in your complaint are true" is hard when most people wouldn't throw them further than they could throw them. With both their arms chopped off, at that.
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That Anonymous Coward (profile), 13 Feb 2013 @ 2:36am

Re: Re: Re: Re:
"reasonable basis"
Someone who gets a cut from each settlement claims they saw this IP address. There is science to prove DNA. There is science to prove cameras take pictures. There is no science to the magical systems that record IP addresses, and some of them have been "built" by lawfirms without the benefit of actual programmers.

"reasonable investigation"
We got the name of the person who paid the bill, then dismissed the case to remove judicial oversight and began sending threatening letters and making phone calls to terrorize them into paying.

"believing that the facts in your complaint are true"
Or believing you can convince a judge your not a lying scum, hoping they fall for the analogy of stealing physical items from a store, and will not look at your statement to the court that you have at least a 30% error rate in identification.

They have been allowed to walk away from court before anyone has ever been able to challenge these "good faith" reasonable basises... they tend to pay off the people fighting for the facts with amounts large enough that they sign an NDA to keep anyone from knowing the weakness in the cases.

There is case law in Germany of the main German supplier of IP gathering tech being thrown out of court because they lied to the court about the tech. They use a multitude of names in the US to avoid tainting any of the cases if one were to fall. The lawyers know for a fact that IP identification is flawed and keep bringing these cases solely to get names to attempt to extort.

The lawyers know they can get paid and that the courts and prejudicial towards people who wish to keep their names out of the public eye attached to porn.
They stand to be handed up to $150,000... why settle for less than the cost of putting on a defense?
Why try to hide how many settlements your getting to avoid the law that clearly states its $150,000 per WORK not per incident.
Why are are avoiding millions in filing fees with improper joinder?

How can a Doe prove a negative?

There is little to no merit to these cases, and any lawyer who wants to pretend they are about protecting copyright holders from being robbed blind is merely protecting the up to 80% of the settlement that lines their pocket. The flaws in the tech are documented, and they keep the systems secret to avoid anyone discovering they are lying.

If you claim nearly 300,000 people did something, why are there so few actual wins. Oh because the only cases to make it to "trial" are default judgements (where they don't always serve the does) or settlement show trials.

The fact I can "create" evidence with as much merit as these lawyers have taken to the courts changes a lot.
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Ninja (profile), 13 Feb 2013 @ 7:29am

Sanity in copyright cases?! WAIT WHAT?

Could we also say this sets a precedent to tackle the six-strike plans? Or even HADOPI? (both based on this lousy evidence?)

And where are our trolls that believe IPs are enough evidence?

Epic win ;)
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Killer_Tofu (profile), 14 Feb 2013 @ 6:39am

Re: Re: Late but important point - Six Strikes
Yah, that is pretty lame.
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anonymous25, 15 Feb 2013 @ 8:57am

No one forbids people to allow access to their routers which do not have a password. There are means which allow access to the Internet through other computer. I can become exit node, does it mean that I am guilty if other people do their wrongful deals using my ip-address? I do not think so.
Anyway, I think for real infringers it is not difficult to use resources which allow to have anonymous connection using proxies and networks like i2p and TOR. It is impossible to stop. For instance, there is a opportunity to have encrypted proxy in a country which do not have copyright laws and you are not going to know about it.
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ws, 16 Feb 2013 @ 6:03am

It's very ambiguous because I can open media file (like video or audio) when it have not downloaded. Sometimes it look like full downloaded file but it's not. I have some other ideas. What if some person create some program (virus) he can set me up? So what can I do? I think "copyright defenders" should
take note about p2p trackers with piratical content or other sites. If there is no place with forbidden content no one won't downloaded it. Thank you for your attention.
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