Canadian ISPs Want To Amend Law To Outlaw Settlement Letters

from the about-time dept

As Canada looks to update its copyright laws as part of the USMCA, the replacement for NAFTA strong-armed into existence by Donald Trump, we covered previously how ridiculous it is that copyright interests have been allowed to stick their nose in the whole thing and make all kinds of demands. Part of USMCA involves allowing Canada to keep its notice and notice system, as opposed to the notice and takedown system we have here in the States. While Canada's system is preferable to our own, it's not without it's flaws, of course. One of those flaws is how the notice and notice system has devolved into a deluge of settlement letters.

So dire is the plague of threat letters, in fact, that ISPs in Canada are using this opportunity to suggest outlawing those threat letters be included in the updates of Canadian copyright laws.

During a hearing before the House Heritage Committee last week, Pam Dinsmore of Rogers Communications mentioned that her company sends roughly 2.4 million notices per year. Like other ISPs, Rogers is not against the system itself, but it believes that updates are required.

This was the focus of an earlier hearing last month before the INDU committee, where Canadian ISPs including TekSavvy, Shaw, Rogers, and Bell shared their experiences. One issue all parties appeared to agree on is that the notice-and-notice scheme should ban settlement demands.

TekSavvy was actually more pointed in its criticism, with its representative calling out the current settlement letter schemes as designed to intimidate and mislead consumers to extract money from the uninformed. He also helpfully pointed out that these settlement letters have all the hallmarks of spam, scams, and spear phishing attempts, often designed to simply get consumers to reveal more information about themselves that can then be weaponized for more threats and demands.

“This puts ISPs in a difficult position, since we’re required to forward notices to end-users, including whatever extraneous, misleading or harmful content may be included,” he added.

TekSavvy recommended that the notice-and-notice scheme should be updated to ban these types of settlement notices as well as other unrelated info. This ban on settlement requests or other clear abuse was shared by Shaw, Rogers, and Bell.

And why not? The copyright holders and their partners did this to themselves, after all, designing a business model built on intimidation and obfuscation, and then expecting the public and government to simply be okay with all of it. The notice and notice system, after all, was designed to curtail piracy through education and transparent oversight, not through strong-arm tactics. And it's not as though outlawing settlement letters within the notice and notice system would prevent rightsholders from targeting pirates themselves. It would just mean that they couldn't rely on ISPs to do their dirty work for them.

Filed Under: canada, copyright, copyright trolling, nafta, settlement letters, usmca

Stupid Law Firm Decides To Threaten Something Awful Over Hot-Linked Hitler Picture

from the fools-for-attorneys:-non-pro-se-edition dept

A stupid law firm supposedly specializing in IP rights enforcement has decided (again!) to jam its dangling appendages into one of the internet's more ferocious hornets' nests. When you're in the business of threatening litigation over hot-linked images (yep), you probably don't pay much attention to the URLs you target.

The law firm of Higbee & Associates should know better than to go to this well twice. But it doesn't. Due diligence doesn't seem to be a priority. If it was, some of its "pre-litigation" specialists might have noticed the firm went after Something Awful in 2015 for using an image from Under the Skin in its review of the movie. Obviously, this was fair use and a little bit of web searching turns up multiple uses of the same image, suggesting it had been made available by the studio for promotional purposes.

You'd think one failure to turn Something Awful (SA) into an ATM would have been enough for Higbee & Associates. Apparently not. Richard "Lowtax" Kyanka -- having taken over SA's legal department after the departure of Leonard "J" Crabs -- received a demand letter from the law firm over the supposedly unauthorized use of a picture of (go figure) Hitler.

The law firm apparently thought the threat letter would result in Kyanka cutting a check to prevent being sued for up to and including $150,000. But the firm's stupidity goes further than simply trying to threaten a site it had failed to threaten successfully in the past. The demand letter references an image not hosted by Something Awful but one posted to a forum thread by an SA member.

Here's Kyanka's take on the legal conundrum posed by Higbee's ridiculous letter.

As you can clearly see, I had been given a bill for nearly $7,000 because somebody on the Something Awful forums linked to an image of Hitler, a file being hosted on the third-party site Imgur. "Now wait a minute Rich 'Lowtax' Kyanka," you may be saying to nobody in particular. "How can you possibly get sued for somebody linking to an image hosted on a third party site?" The answer is simple: because Higbee and Associates exist.

This garbage dicked law firm generates nearly $5 million a year by encouraging photographers to sign up with their company, then performing a reverse image search for anything matching their client's submitted photos. An automated system then flags the suspected offending site, spits out a super scary legal threat based off a template, and delivers it to the site owner. Upon receiving the notice of possible legal action, many victims freak out and pay these idiots the stated arbitrary amount of cash, under the looming threat of being taken to court for $150,000. Higbee and Associates operate one of the biggest dirtbag law firms to ever pollute the internet, preying on fear and dealing in bulk.

Unfortunately, in my 20 years of running this site, I've been forced to brush up on general copyright law, and I damn well know that linking to an image hosted on a third party image site breaks absolutely no law, even if it is digital, lossy compressed Hitler.

Kyanka's immediate response to Higbee's threat letter is both hilarious and profane, mostly simultaneously.

I have an even better idea: I'm not going to pay you a fucking dime and you can go fuck off to hell for eternity because I am absolutely in no way responsible for images hosted by a third party service, in this case Imgur. Go fuck yourselves and prey on some other website that hasn't been around for two decades and knows damn well what their legal responsibilities entail, and what they're responsible for. Your entire law firm is a straight up piece of flaming shit that tries to intimidate folks with EXPENSIVE LEGAL THREATS in the hope that your extortion scheme will work on some of them. I am not one of those people. So I cordially invite you to take your pdf, print it out, and ride it like a sybian until the cows come home. Then I invite you to fuck the cows as well.

The staff at Higbee's was presumably not amused, nor willing to ride threat letter PDFs like marital aids for the rest of eternity. It handed over Kyanka and his angry communications to one of its "pre-litigation" people so they, too, could harvest the vitriol from the seeds the firm had planted. A few more rounds of law firm employees hoping to sound serious and threatening being greeted with disdain, mockery, and creative insults followed.

Finally, Kyanka decided to do the firm's due diligence for it.

Oh, and since I'm such a swell guy, I'll send you a little graphic explaining Imgur's copyright and linking policies, which clearly dictates the copyright responsibility for each and every image is the sole responsibility of the individual who uploaded it. I'm sure it was just a freak accident that you guys somehow missed the literal first search result for "copyright law and internet image links Imgur," but it's not like you guys are lawyers whose sole job is to do such things as required by the law. Here's the link as well; let me know if you require explicit, step by step instructions detailing how to click internet links.

https://help.imgur.com/hc/en-us/art...ws-article-etc-

Maybe this finally got through to the Higbee & Associates. There have been no further legal threats issued since this last salvo by Kyanka. This is the way it should be, minus all the unpleasant interactions preceding this. A hotlinked image isn't a violation of anyone's copyright. The violation, if any, was committed by the person who uploaded the image to Imgur, not the forum poster who linked to it. A DMCA notice sent to Imgur should have been the full extent of Higbee's actions, but instead it decided to subject itself to public mockery by handling this like an overeager hobbyist, rather than the capable law firm it imagines itself to be.

Filed Under: copyright, copyright trolling, dmca, hitler, hotlinked
Companies: higbee & associates, something awful

Court Shoots Down Record Label's Attempt To Expand The Definition Of 'Vicarious' Infringement

from the that's-not-how-it-works dept

While there has been plenty of attention paid to the BMG v. Cox case, in which Cox was found not to be protected by the DMCA's safe harbors in dealing with repeat infringers, it's increasingly looking like the ruling in that case (which eventually led to a "substantial" settlement) was fairly unique to Cox's situation. Specifically, while much was made of Cox's "13 strikes" repeat infringer policy, in the end the nature of the policy wasn't what sunk Cox: it was the fact that Cox didn't follow its own policy. In other cases, courts seem willing to grant much more latitude to the ISPs to make their own calls. We wrote about the 9th Circuit and its ruling in the Motherless case, which made it clear that a platform gets to set its own policy, and that policy need not be perfect.

Meanwhile, down in Texas, there's the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). As we noted back in April, while still in the district court, the Grande case wasn't going nearly as smoothly as the Cox case for those wishing to copyright troll. The magistrate judge was quite skeptical, and had tossed out entirely the claims of vicarious infringement (while somewhat skeptically allowing the claims of contributory infringement to move forward).

Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that's not enough to show that it was profiting from the infringement.

Universal Music tried to amend the complaint to show that it had "more evidence" that Grande and its management company, Patriot, were still vicariously liable -- but the magistrate judge says it's just trying to re-litigate what it lost last time. The recommendation makes fairly quick work of UMG's arguments:

The new evidence Plaintiffs rely on is: (1) Grande tracks its infringing customers; (2) these customers are “a la carte” internet customers; (3) Grande’s profit margins on a la carte customers are its highest of any business lines; and (4) Grande never terminated any user regardless of how many notices of infringement it received... Plaintiffs contend that these facts make a difference, and are enough to suggest that Grande’s failure to terminate infringers is a draw.... The Court disagrees. First, the original Complaint alleged essentially the same or similar facts. Second, the new allegations still fail to say anything about the motivations of Grande’s subscribers when they sign up with Grande. That is, Plaintiffs still fail to plead facts showing Grande gained or lost customers because of its failure to terminate infringers. Instead, the proposed amended complaint states that, “the evidence demonstrates that Plaintiffs’ Copyrighted Sound Recordings were a draw to Grande’s infringing customers, including customers Grande had identified as repeat infringers.” ... But as has been noted in prior orders, the means by which Plaintiffs contend the infringing subscribers infringed the Copyrighted Sound Recordings by use of the internet and the BitTorrent protocol, which one can access through any ISP. Again, the draw must be something more than this to state a vicarious infringement claim. The allegedly “new” facts are insufficient to overcome the deficiencies of the original Complaint.

This is important. For years, the legacy copyright players have continually tried to expand what third parties could be liable for when it came to infringement. It's always been a stretch to use both vicarious and contributory infringement claims in these ways, and it's good to see courts pushing back (though, in this case, the contributory infringement claims still have a chance...). The court directly pointing out that just because a company makes money from a client, that doesn't mean the money is from infringement is an important point that many among the copyright legacy world would like to ignore.

Filed Under: contributory liability, copyright, copyright trolling, dmca, dmca 512, vicarious liability
Companies: grande communications, patriot, rightscorp, universal music

Thanks To ISP Bahnhof, We Know Just How Crazy Copyright Trolling In Sweden Is Getting

from the out-of-control dept

For some time, Swedish ISP Bahnhof has been sounding the alarm over copyright trolling practices in its home country. While cynics will note that Bahnhof has absolutely made its refusal to hand over customer data a central part of its marketing messaging, the ISP has also made a point to publicly track copyright trolling court cases, threat letters, and pretty much everything else related to copyright trolling in Sweden. And, frankly, it's due pretty much solely to Bahnhof's tracking efforts that we now know just how insanely worse copyright trolling in Sweden has gotten in just the last year or so.

According to Swedish Internet provider Bahnhof, which keeps track of these cases on a dedicated website, records are being broken this year.

“Thousands of Swedes have received threatening letters from law firms which accuse them of illegal downloading. They are asked to pay a sum of money, ranging from a couple of thousand Swedish Kronors up to several thousand, to avoid being brought to justice,” Bahnhof Communicator Carolina Lindahl notes. “During 2018 the extortion business has increased dramatically. The numbers have already exceeded last year’s figures even though four months still remain.”

The over 35,000 individuals targeted totals more than the number of targets in the last two years combined. It also totals more than all of the filesharing cases in the United States and Canada combined. And, in case the point isn't sinking in just yet, that's insane. And, again, while Bahnhof today is using all of this data in its messaging to the public as to why they should be Bahnhof customers, the company's long-term goal is actually to get the government involved to clarify the law and disallow this business practice.

“It’s time to reverse the trend before another 100, 1000 or 10,000 individuals have to join the growing group of victims. The practice of sending extortion letters to internet users solely based on IP-addresses does not meet any requirements of legal certainty and must be stopped,” Bahnhof’s Communicator stresses.

“We want to see a reform of copyright law aimed at promoting artistic creation instead of the commercial interests of the copyright industry.”

It remains to be seen just how high the victim count must go before the Swedish government indeed does its job.

Filed Under: copyright, copyright trolling, shakedowns, sweden
Companies: bahnhof

Danish ISPs Get Win That Could End Copyright Trolling In Denmark

from the this-is-the-end dept

We have talked in recent years how the scourge of copyright trolling has hit the nation of Denmark particularly hard. While trolling operations started off about the same as they do elsewhere in the world, their requests to unmask ISP customers soon ramped up to enormous levels. It was enough to turn two ISP rivals into allies, with Telenor and Telia fighting in court for their respective customers' privacy rights. After an initial loss, the companies appealed up the legal chain and managed to get a win with the court siding with the ISPs' privacy concerns over the copyright trolls' nefarious business model. After that, one of the copyright trolls appealed to Denmark's Supreme Court, hoping to reverse the decision once again.

It didn't work. The Supreme Court is refusing to hear the case, potentially putting an end to copyright trolling in Denmark.

Unfortunately for the trolls, their hopes were shattered this week when the committee responsible for references to the Supreme Court said it would not be putting the case forward.

As a result, the May 7th decision of the Østre Landsret will stand, with Telenor and Telia no longer required to cooperate with parties involved in trolling cases.

As the article notes, the ISPs will no longer have to cooperate with copyright trolls moving forward. And that really should be the end of copyright trolling entirely, as the whole business model hinges on ISPs being forced to give up their customer information so that those customers can be targeted with the threat letters that have milked so much money from the public. This of course doesn't mean that these ISPs will never be required to hand over customer information. Rather, such unmasking can only occur at the request of police investigating criminal conduct.

Telenor Denmark’s Legal Director, Mette Eistrøm Krüger, welcomed the decision.

“Both personally and on behalf of our customers, I am really glad that we are being strictly ruled by the National Court’s decision, and we once again find that logging data should only be handed over to the police to combat serious crime,” he told Version2.

And so now we're left to hope that the rest of the world's courts will catch up to the pro-consumer stance taken by the legal system in Denmark.

Filed Under: copyright, copyright trolling, denmark, isps, privacy
Companies: telenor, telia

Important Appeals Court Ruling States Clearly That Merely Having An IP Address Is Insufficient For Infringement Claims

from the a-good-ruling dept

Tons of copyright lawsuits (and even more copyright trolling shakedowns that never even reach court) are based on one single bit of data: the IP address. We've seen numerous district courts reject using a bare IP address as evidence of infringement, but now we have a very important (even if short and to the point) ruling in the 9th Circuit that could put a serious damper on copyright trolling.

In this copyright action, we consider whether a bare allegation that a defendant is the registered subscriber of an Internet Protocol (“IP”) address associated with infringing activity is sufficient to state a claim for direct or contributory infringement. We conclude that it is not.

The case involved well known copyright trolling lawyer Carl Crowell representing Cobbler Nevada LLC. As we discussed in our article on the district court decision, the actions in this case were particularly nefarious. Crowell quickly learned that the IP address in question belonged to an adult foster care home, but decided to go after the operator, Thomas Gonzales, even though he was aware that any of the many residents or staff may have actually been responsible for the infringement. Gonzales (reasonably) refused to just cough up the names and details of residents and staff without a court order, and Crowell's response was just to go after Gonzales directly. But the facts of this case made it especially easy for the lower court to highlight how a mere IP address is not nearly enough to allege infringement.

The district court properly dismissed Cobbler Nevada’s claims. The direct infringement claim fails because Gonzales’s status as the registered subscriber of an infringing IP address, standing alone, does not create a reasonable inference that he is also the infringer. Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer. Nor can Cobbler Nevada succeed on a contributory infringement theory because, without allegations of intentional encouragement or inducement of infringement, an individual’s failure to take affirmative steps to police his internet connection is insufficient to state a claim.

The direct infringement part is easy. Obviously, there's no evidence presented with a single IP address that Gonzales was downloading, so it's on its face ridiculous to claim to have evidence of direct infringement.

The only connection between Gonzales and the infringement was that he was the registered internet subscriber and that he was sent infringement notices. To establish a claim of copyright infringement, Cobbler Nevada “must show that [it] owns the copyright and that the defendant himself violated one or more of the plaintiff’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). Cobbler Nevada has not done so.

The more important part here is the contributory infringement argument. Crowell/Cobbler claimed that Gonzales could be liable for contributory infringement for failing to lock down and police his internet connection. That's a pretty big leap and the court is not impressed. It first highlights the ever important Betamax ruling that you can't make a third party liable for infringement for distributing a product or service that is "widely used for legitimate, non-infringing purposes." Internet access counts. It also points to the Grokster ruling, in which the Supreme Court said that "inducement" to infringe could be seen as contributory liability. But merely failing to police your internet connection is, in no way, inducement.

Cobbler Nevada’s complaint lacks any allegations that Gonzales “actively encourage[ed] (or induc[ed]) infringement through specific acts.”... Nothing in Cobbler Nevada’s complaint alleges, or even suggests, that Gonzales actively induced or materially contributed to the infringement through “purposeful, culpable expression and conduct.” ... No allegations suggest that Gonzales made any “clear expression” or took “affirmative steps” to foster the infringement—Gonzales’s only action was his failure to “secure, police and protect” the connection.

And, based on the Betamax test, Gonzales is in the clear as well:

Providing internet access can hardly be said to be distributing a product or service that is not “capable of substantial” or “commercially significant noninfringing uses.”

The court has some additional words on Crowell trying to push his theory of contributory liability:

We note that Cobbler Nevada’s theory both strays from precedent and effectively creates an affirmative duty for private internet subscribers to actively monitor their internet service for infringement. Imposing such a duty would put at risk any purchaser of internet service who shares access with a family member or roommate, or who is not technologically savvy enough to secure the connection to block access by a frugal neighbor. This situation hardly seems to be one of “the circumstances in which it is just to hold one individual accountable for the actions of another.”

The court then upholds the lower court's awarding of attorney's fees to Gonzales, noting the "objective unreasonableness" of Cobbler's arguments.

Specifically, the court flagged as unreasonable Cobbler Nevada’s decision to name Gonzales as the defendant, even after concluding that Gonzales was not “a regular occupant of the residence or a likely infringer.” The court also considered deterrence: it reasoned that awarding fees would deter Cobbler Nevada from an “overaggressive pursuit of alleged infringers without a reasonable factual basis” while encouraging defendants with valid defenses to defend their rights. See Fogerty, 510 U.S. at 534 n.19. The court’s rationale is in keeping with the purposes of the Copyright Act. See Kirtsaeng, 136 S. Ct. at 1988–89 (a district court “may order fee-shifting . . . to deter . . . overaggressive assertions of copyright claims”).

Now, where this case may have a bigger impact is in lawsuits against ISPs for failing to police their networks. You may have heard of a few of these cases recently. Just last week Cox settled one of those cases, but it's facing an even bigger one from all the major record labels.

But that case is not unlike this one, just on a different scale. In this case, Gonzales is the ISP, and got sued for failing to police his network, despite receiving many infringement notices. As the court makes clear, that does not make him liable for infringement. In the Cox case, it too is the ISP who was sued for failing to police its network, despite receiving many infringement notices (indeed, Cox did much more than Gonzales). So it would appear that we may have a bit of a circuit clash here, in which the 4th Circuit says that ISPs can be liable for infringement based solely on notices of evidence that is nothing more than IP addresses, while the 9th Circuit (correctly) understands the implications of such a ruling, even to the point of finding it "objectively unreasonable."

Filed Under: 9th circuit, carl crowell, contributory infringement, copyright, copyright trolling, evidence, inducement, ip address

Recognizing It Had No Chance, Cox Settles BMG Copyright Trolling Case

from the and-onward dept

The long saga of the BMG v. Cox case is now over. If you don't recall, BMG had hired the copyright trolling outfit Rightscorp to bombard ISPs with shakedown letters, based on accusations of copyright infringement. Rightscorp really wanted ISPs to pass those letters on to ISP subscribers, including the part where they demand money to leave you alone. As was revealed during the case, Rightscorp would blatantly lie to those subscribers, telling them that if they were innocent they needed to first hand their computers over the police for a forensic search. Cox, after being bombarded with these shakedown letters, started ignoring the Rightscorp letters, leading BMG to sue.

Cox pointed to the DMCA safe harbors to protect itself, but the judge, Liam O'Grady, made it pretty clear that he didn't care much for the internet at all, and didn't seem to mind Righscorp and BMG shaking down people for money with the threat of losing their entire internet access. Of course, it did not help at all that Cox itself had some damning emails about how they treated subscribers accused of infringement. While plenty of attention has been placed on Cox's apparent "thirteen strikes" policy for those accused (not convicted) of copyright infringement, the real problem came down to the fact that Cox didn't follow its own repeat infringer policy. So, in the end, Cox lost to BMG in the lower court and it was mostly upheld on appeal.

However, the case was sent back down to the lower court because O'Grady messed up with his jury instructions, providing them with the wrong standard for contributory infringement (O'Grady's jury instructions about contributory infringement presented it as a much broader standard than it actually was). And thus, the case was supposed to go back for another trial... but that's now over as the two sides have settled and Judge O'Grady immediately signed off on the settlement.

This isn't all that surprising. Cox was basically in a no-win situation, since its own failure to abide by its own repeat infringer policy had already sunk it, and spending a few hundred thousand dollars more on lawyers to argue over contributory infringement in hopes of lowering the damages award probably wasn't worth it if they could just settle the case and move on.

Oh, and of course, Cox now also has a brand new fight with all the major labels that was launched a few weeks ago in response to the results of the BMG case. And Cox is right back in Judge O'Grady's unwelcome court room for that case. I wouldn't be surprised if Cox tries to settle its way out of that case as well.

Filed Under: copyright, copyright trolling, dmca, liam o'grady, repeat infringer, settlement
Companies: bmg, cox, rightscorp

Accused Pirate Tries For Attorney's Fees After Copyright Troll Attempts To Run Away From Discovery

from the more-of-this-please dept

When we talk about the scourge that is copyright troll operations, and the wide path of legal destruction they've caused throughout the world, it can be easy to lose sight of just how precarious a business model it can be for the trolls. Loathe as any writer should be to engage in cliche, it is simply true that the best response to shut down this kind of non-litigious bullying is to simply punch back. After all, it is quite clear at this point that the last thing these trolling operations want as a response to their lawsuit-threat letters is for any actual lawsuit to be conducted. More specific to this story is how Guardaley, the shady German company that appears to setup shell operations throughout the world and cultivate law firms to enforce its operations, all too often forgets to bring any actual evidence to the courtroom when it does show up there and which otherwise does everything it can to stay out of the courtroom altogether.

Again, bullies will tend to back down when you fight back against them. But backing down doesn't have to be the end of the story, as demonstrated by one Utah man that received a copyright trolling threat letter from an outfit called Criminal Productions (super on the nose, there, guys...), immediately lawyered up, and demanded that discovery begin.

This was the case when Darren Brinkley was sued in a Utah federal court last year. In a complaint filed by Criminal Productions, he and 31 others were accused of illegally sharing a copy of the movie Criminal. Brinkley denied these claims and rejected the settlement offer but the film company still didn’t back off.

While Criminal Productions initially refused to let the case go, recently it voluntarily dismissed the case. According to Brinkley’s lawyers, the film company dropped the case like a hot potato when it discovered that the defendant was attempting to look into its business.

“As expected, when Plaintiff realized a Motion to Compel discovery was in draft, Criminal sought voluntary dismissal of both its affirmative claims and Brinkley’s counterclaims, which this Court granted, with prejudice, on July 6, 2018.”

Such a move should make it very obvious just what type of ethics Criminal Productions engages in to so plainly scramble to avoid any type of discovery process into its practices or techniques. There must be quite a treasure trove of information to be discovered to cause the bully to run away so completely. As the post notes, Criminal Productions is a special purpose entity (SPE), which is basically used to shield the fact that this is all being done by a known copyright troll. Guardaley appears to be the main suspect in this case.

But, if these trolls are allowed to simply run away from any individual who chooses to fight back, that doesn't serve as much of a deterrent for their behavior. Brinkley's demand that Criminal Productions pay his attorney's fees, on the other hand, serves that function nicely.

Brinkley’s attorneys see this as a typical example of “cut and run” litigation, and argue that Criminal Productions must pay their client’s legal bill.

“These tactics should at minimum require that Defendant Brinkley be made whole for Plaintiff’s filing of litigation it clearly had no intention of pursuing and that may have had no basis in the first instance. This is the very definition of ‘cut and run’ litigation,” the motion reads.

The defendant requests compensation for the attorneys’ fees and costs to the tune of $62,818.35, providing a detailed accounting of the costs it made.

We need more of this. Much more, in fact. If, suddenly, the risk calculus for anyone engaging in copyright trolling practices had to include the potential of handing five figures over to the wrongly accused it attempted to bilk money from, perhaps we'd finally see this monstrous practice go away.

Filed Under: attorney's fees, copyright, copyright trolling, darren brinkley, false accusation
Companies: criminal productions

Copyright Troll In Finland Gets Dinged For Violating Copyright Law In Trolling Effort

from the troll-thyself dept

The last time we discussed Hedman Partners, the law firm in Finland that has for some time been on a copyright trolling tear throughout the country, it was to mention how the firm appeared to have overplayed its hand. After sending out some sixty-thousand settlement letters, the firm found itself in the cross hairs of the government, with the Ministry of Education and Culture noting that the nation's copyright law was not intended to be a vehicle for milking the general public of money.

While it seems that the actual government response in the intervening year and a half must have been muted, evidenced by the fact that Hedman Partners is still happily trolling away, the firm has now for a second time been dinged for its practices. This time, ironically, the Finnish Bar Association is reprimanding Hedman Partners for violating copyright law in order to send out the settlement letters to supposed copyright infringers in the first place.

Now, this is something of a technicality, though it still speaks to the copyright troll's willingness to route around the very law it cites to bilk money from an unwitting public. This specific complaint revolves around how Hedman Partners is getting the account holder information it is using for its letters, and, importantly, what letters it sends to which account for each alleged infringement. The way it's supposed to work in Finland is that these trolls get an unmasking order from the courts for a specific infringement violation and then only use that account information to contact the account holder for that specific case of infringement. Instead, Hedman Partners appears to have used these unmasking requests more as a clearing house to build an IP address database.

However, it appears that after applying to obtain personal information on behalf of one client, Hatanmaa and Hedman Partners then used that same information to identify subscribers who had allegedly infringed the rights of other clients also managed by the law firm.

This means that when an IP address appeared on lists of those sharing multiple clients’ copyright works, the law firm made only one application to obtain the alleged infringer’s personal details instead of starting a new disclosure process for each client. When ISP subscriber data is handed over to a third-party, it is delivered on the basis that it will be used in a very narrow set of circumstances and certainly not for the benefit of many entertainment industry groups scouring the web for infringement.

The purpose for this is obvious. Customer data is jealously guarded for privacy purposes and account information is only to be handed over when a court finds there to be specific cause for it in a specific case. For a third party to then re-purpose that account information for a scope outside that which the court considered is essentially an end-around the legal process entirely. Each infringement accusation is considered on its own merits, in other words, with the court being involved in the important decision to circumvent the privacy of a customer based on the evidence presented.

For Hedman lawyer Joni Hatanmaa, however, this is all a matter of a vague interpretation of the law, and the Bar Association's reprimand means nothing at all.

“In this case, the Board of Supervisors considered that the application process should have been handled in a different way under copyright law,” he told Helsingin Sanomat. “The decision has made it clear that the law has the potential for a wide range of interpretations.”

In any event, the lawyer says, the cases against infringers will continue. Plenty are still underway and the project continues to expand.

And thus the overplaying of the hand continues. For now, it seems that Hedman Partners will continue to operate unchecked, but it's quite easy to imagine how this disregard for how the law is supposed to apply and be used, not to mention the ramping up of the targeting of Finland's public, could result in eventual backlash.

Filed Under: copyright, copyright trolling, finland

Danish ISPs That Teamed Up To Beat Back Copyright Trolls Get Huge Legal Win

from the clap-back dept

While the world over is dealing with the scourge that is copyright trolling, it is true to say that this virus has not spread everywhere equally. One of the hardest hit countries has been Denmark, where a few copyright trolling practices have caused an insane amount of headaches for the public, and chum within the court systems. It all got bad enough to turn rivals into bedfellows, with two major ISPs, Telenor and Telia, teaming up to push the legal fight to unmask their respective customers back on the copyright trolls. The duo's initial efforts at convincing the legal system that the privacy rights of its customers trumped the rights of copyright trolls to extract settlement cash from them went poorly, with the District Court finding for the copyright trolls.

But the fight for customer privacy didn't stop there and the companies appealed the case up to Denmark's higher courts, which decided for the ISPs and consumer privacy.

“In its order based on telecommunications legislation, the Court has weighed subscribers’ rights to confidentiality of information regarding their use of the Internet against the interests of rightsholders to obtain information for the purpose of prosecuting claims against the subscribers,” the Court said in a statement.

Noting that the case raised important questions of European Union law and the European Convention on Human Rights, the High Court said that after due consideration it would overrule the decision of the District Court. The rights of the copyright holders do not trump the individuals right to privacy, it said.

“The telecommunications companies are therefore not required to disclose the names and addresses of their subscribers,” the Court ruled.

It's a game-changing ruling for Denmark's public. Assuming this is the end of it, copyright trolling as any kind of massive business model in Denmark ought to suffer a quick death. If the trolls can't force ISPs to unmask customers with the faulty evidence of an IP address, the settlement letters will never go out, people will not be fooled into thinking they have to pay them, and the mass income off of these shady practices that make copyright trolling a viable enterprise goes away. We cannot stress enough how greatly this alleviates the public from a burden to defend itself against a flawed and pretend attempt at justice.

Telenor is not going to let anyone make light of it. Nor will they let the public gloss over its fight to protect them.

“This is an important victory for our right to protect our customers’ data,” said Telenor Denmark’s Legal Director, Mette Eistrøm Krüger.

“At Telenor we protect our customers’ data and trust – therefore it has been our conviction that we cannot be forced into almost automatically submitting personal data on our customers simply to support some private actors who are driven by commercial interests.”

A ruling like this should be equally welcome everywhere copyright trolling is a thing. Sadly, in far too many countries, ISPs and rightsholders are often the same people, which is what prevents this type of consumer-first activity from ever occurring.

Filed Under: copyright, copyright trolling, copyright trolls, denmark, isps, privacy
Companies: telenor, telia