IP Address Snapshots Not Sufficient Evidence To File Infringement Suit; Prenda Lawyer Faces Sanctions
from the copyright-trolling-smackdown dept
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...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:
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.
RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.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.
RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT
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.)..."Factual analysis?" Really? Wright calls it for what it is.
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.)
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.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."
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 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.
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Filed Under: brett gibbs, copyright, evidence, hunches, ip address, prenda, snapshot, subscribers
Companies: af holdings, prenda law
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Re: Atty tried to get Judge off case
1) Motion to Disqualify: http://goo.gl/43TxA
2) Order on Motion to Disqualify: http://goo.gl/nVq3o
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It's about time.
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Re: It's about time.
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Re: Re: It's about time.
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Re: Re: Re: It's about time.
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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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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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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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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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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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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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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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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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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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Re: Anonymous Coward
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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Re: Re: Anonymous Coward
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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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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Re: The coward is full of it
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Re: Re: The coward is full of it
But it looks like you're just interested in name-calling.
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Thank You Prenda!
The irony is frankly off the charts here.
Nigel
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Re: Thank You Prenda!
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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there ya go..
N.
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How would I know if it was infringement
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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Re: How would I know if it was infringement
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The Honorable...
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And that is why ...
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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Re: And that is why ...
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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Re: Re: And that is why ...
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Re: And that is why ...
Seriously. If this kind of standard were applied across the board, it would drastically change practice in the federal courts.
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Call me paranoid but...
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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Re: Call me paranoid but...
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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this is awesome
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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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Re: Nice, But...
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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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Re: Nice, But...
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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Re: Nice, But...
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wow
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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IT IS SO ORDERED.
Time-traveling judge ftw!
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Re: Rule 1
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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So let it be written, so let it be done.
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About time
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Those rats don't have loyalties, greed was never a good social glue.
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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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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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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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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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All I can say is ...
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Sneakernet Meets Advanced WiFi
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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Re:
Would you like monetary fines with your incarceration? Super sized?
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Wow.
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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Late but important point - Six Strikes
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Re: Late but important point - Six Strikes
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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Re: Re: Late but important point - Six Strikes
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JOHN STEELE ---- CONVICT.
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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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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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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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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