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Common sense appears to be triumphing in the legal system

The internet is perhaps the greatest disruptor of the twentieth century, despite only rising to relevance at its close.  Today it remains a perplexing problem to politicians, justices, and business-people alike.

I. Internet Disrupts, Leads to Punitive Reactionary Efforts

Perhaps no internet controversy represents the confusion and mire of digital rights and law enforcement better than the legal precedent of equating internet protocol (IP) addresses to a human being.

For years U.S. courts allowed copyright "attack dog" organizations like the Recording Industry Association of America (RIAA) to use this principle in threat letter schemes -- which many advocates argue were digital age extortion.  The issue is that internet proxies are not people.  Indeed, a large percentage of networks -- be they secured or unsecured -- have multiple users, making the RIAA's view of pinning infringement on the IP owner a problematic oversimplification.  

Download button
Piracy has led to an arguably abusive response from content creators. [Image Source: RIAA]

And that's not to mention the pervasive hacking of wireless networks across the U.S. (or in many cases simple squatting on unsecured networks) -- a practice that likely has led to many of the RIAA, et al.'s more flagrant efforts, such as threat letters to dead people or the elderly.  The ease with which the majority of secured private wireless networks can be penetrated further calls into question enforcing infringement on an IP basis.

The legal system is finally waking up to that reality.

II. Adult Filmmakers' Threat Letter Bid Killed

In a recent ruling in a case regarding RIAA-esque extortion efforts by a group of lawyers representing adult filmmakers, New York Eastern District federal court magistrate Judge Gary Brown blasted the idea of presenting infringing IPs as sufficient evidence to demand money from individuals or take them to court.
K-Beech - Order & Report & Recommendation (Ordered 5-1-12)

(To be fair not everyone in the adult film industry agrees with threatening possible pirates.  Some view it as free promotion.)

III. Highlights

Judge Brown warns the plaintifffs that IPs are not sufficient evidence to prosecute, stating:

John Doe #16 has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. John Doe #10 represents that downloading a copy of this film is contrary to her "religious, moral, ethical and personal views." Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.


While a decade ago, home wireless networks were nearly non-existent, 61% of US homes now have wireless access. As a result, a single IP address usually supports multiple computer devices – which unlike traditional telephones can be operated simultaneously by different individuals.

Different family members, or even visitors, could have performed the alleged downloads. Unless the wireless router has been appropriately secured (and in some cases, even if it has been secured), neighbors or passersby could access the Internet using the IP address assigned to a particular subscriber and download the plaintiff’s film.

He also cites a colleagues dismissal of a similar case, writing:

Plaintiff's counsel estimated that 30 percent of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Counsel stated that the true offender is often the "teenaged son ... or the boyfriend if it's a lady." Alternatively, the perpetrator might turn out to be a neighbor in an apartment building that uses shared IP addresses or a dormitory that uses shared wireless networks. This risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading "My Little Panties # 2."

Finally, he points out that the plaintiffs don't seem very interested in actually enforcing anti-infringement by taking the defendants to court -- rather they're seeking a quick settlement:

Upon receipt of the Complaint, I reached out to Plaintiff and spoke to a self-described “Negotiator” in an effort to see if I could prove to them (without the need for publicly tying my name to the Complaint) that I had nothing to do with the alleged copyright infringements. The Negotiator was offered unfettered access to my computer, my employment records, and any other discovery they may need to show that I was not the culpable party. Instead, the Negotiator refused and was only willing to settle the Complaint for thousands of dollars. While the Negotiator said on October 24, 2011 that he would check to see if he could come down from the thousands of dollar settlement amount, the Negotiator has not responded to two voice mails that were left on October 25, 2011. Notably, the Negotiator justified the settlement amount because, in part, I would incur legal fees in hiring an attorney.

IV. The Fallout

This remark offers a not so subtle hint that some judges are starting to view these kinds of mass-threat-letter campaigns as exactly what the majority in the public view them as -- extortion schemes.

Of course a handful of rulings -- even at the federal level -- won't be enough to stop the persistent efforts of the RIAA and other copyright extorters.  But as they pile up, the legal costs of these losses may at long last force the media industry (including the adult film industry) to reevaluate its already money-losing approach with respect to copyright enforcement.

Stamped letters
The happy days of an open season on threat letters may be over for the RIAA, et al. 
[Image Source: Grist]

It may seem a bit sad that the digital era has enabled the public to steal media makers work, while providing them such little recourse (although many studies have indicated piracy has not effect media revenue).  But it's hardly better to prop up a system of threats under which the innocent are often punitiviely punished while the the guilty often escape scott-free.  

The legal system is slowly warming up to the idea that despite the painful financial implications of the internet, it is unacceptable to support such a flagrant mass violation of civil liberties.

Source: Fight Copyright Trolls

Comments     Threshold

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Lawyers are scum...
By DragonTattooz on 5/6/2012 11:21:23 AM , Rating: 1
Here is one way to deal with an aggressive lawyer- Have a big, bad, mean SOB go have a chat with him. I did it. The lawyer never contacted me again.

This "Negotiator"? I would have a blast with that guy. These people operate outside of the law, turnabout is fair play.

People who try to use the law to settle these situations are just playing into the hands of lawyers. Let's stop enriching lawyers, and just handle these things the old fashioned way.

RE: Lawyers are scum...
By geddarkstorm on 5/6/2012 12:57:43 PM , Rating: 5
I think Star Trek: The Next Generation nicely explored the folly of that idea.

Get rid of lawyers and you get rid of the justice system itself. Things devolve into the mob mentality. Guilty until proven innocent, since no one has the energy and time to even learn what the laws actually are.

Lawyers are not at fault here; it's the industries trying to sue people who are responsible. Lawyers are just part of the mechanism, but the film industries are the instigators. They alone are to blame for this ridiculousness, as John Doe #24 vividly demonstrates.

RE: Lawyers are scum...
By superstition on 5/7/2012 12:45:46 AM , Rating: 2
With the way new law schools continue to be built, legal outsourcing to India has been increasing for years (and got its blessing from the ABA), law school graduates have the most massive student loan debt average, and there are far fewer positions for practicing law in the US than there are legal grads...

there are a lot of hungry lawyers.

RE: Lawyers are scum...
By Reclaimer77 on 5/7/2012 1:26:25 PM , Rating: 2
I think Star Trek: The Next Generation nicely explored the folly of that idea.

You mean how everything is handled by a "military tribunal" decided by one person, usually a ranking flag officer of some sort, without a jury of your peers or chance at parole? Oh that's right, I forgot that Starfleet wasn't a military organization. Riiight *rolls eyes* lol

Yup lol. Not good. I love Next Gen as a show, but if you read between the lines you can see how everything was not all peachy in Roddenberry's utopian commie fantasy world.

RE: Lawyers are scum...
By DiscoWade on 5/7/2012 11:50:34 AM , Rating: 4
It is unfair to stereotype all lawyers together. Yes, some are sleazy and unethical. But how is that than any other profession?

Now if Only...
By mmatis on 5/7/2012 9:12:25 AM , Rating: 4
this judge would have the courage to take a similar stand against the sewage in the Blue Wall. It is not only parasites such as the RIAA who recognize that their victims will "incur legal fees in hiring an attorney."

The stench is overwhelming. And it smells like pig.

Its a small victory.....
By 1ceTr0n on 5/6/2012 2:04:41 PM , Rating: 2
But at this rate, with the goverment and nearly every single corporation ready to sue/throw our geek asses in jail for every little stupid thing we do, we need every victory we can get

By sprockkets on 5/6/2012 4:21:17 PM , Rating: 2
John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins.

Ha, had to look that word octogenarian up :-)

IP addresses will STILL be used for I.D.
By Beenthere on 5/6/12, Rating: -1
RE: IP addresses will STILL be used for I.D.
By Skywalker123 on 5/6/2012 4:40:15 PM , Rating: 2
You are an idiot, so who cares about your opinion?

RE: IP addresses will STILL be used for I.D.
By Beenthere on 5/6/12, Rating: 0
By Black1969ta on 5/8/2012 12:17:13 AM , Rating: 2
Calling out Skywalker for making an inappropriate post, does not change reality either, but you are lucky, idiocy is curable.
While I do not condone Skywalker's tact, he has a point, the "Fed's" have nothing to do with this article, this article is about the extortion and civil lawsuits, brought on by private companies, not the Government.
Even so, this ruling will affect criminal proceedings, most of the criminal cases convict a person based on placing "the defendant" in front of the computer at the time of the incident, they are one and the same. This ruling introduces the idea that the two are not one and the same, and thus giving juries the reasonable doubt needed for an acquittal.
Educate yourself, before the idiocy turns into stupidity which is incurable!

IP != Internet Proxy
By cmykog on 5/5/12, Rating: -1
RE: IP != Internet Proxy
By bryntheskits on 5/6/12, Rating: 0
RE: IP != Internet Proxy
By DonkeyRhubarb on 5/6/12, Rating: 0
RE: IP != Internet Proxy
By inighthawki on 5/6/2012 1:01:06 PM , Rating: 2
Too bad posting that comment removed the +1 (not that it matters now that he has a 5 anyway)

RE: IP != Internet Proxy
By Martho on 5/6/2012 9:57:19 AM , Rating: 2
This isn't an opinion piece, I think you may have missed the point.

RE: IP != Internet Proxy
By magreen on 5/6/2012 10:34:02 AM , Rating: 2
Yes. Perhaps Mr. Mick should be "punitiviely punished." And strikingly struck, and insultingly insulted, as well.

But I read the opinion of U.S. Magistrate Judge Brown, and it appears well reasoned and, indeed, a hopeful sign that courts are more willing to put an end to abusive litigation. It also signals a judicial recognition that the end goal of these lawsuits is often simply to unmask the alleged downloaders to embarrass them into settling for large dollar amounts.

RE: IP != Internet Proxy
By bigboxes on 5/6/2012 9:08:24 AM , Rating: 2
Yup. Change your wording Mick.

Learn how to write
By tayb on 5/7/12, Rating: -1
RE: Learn how to write
By ppardee on 5/8/2012 4:18:46 PM , Rating: 2
The (sole) purpose of language is to convey ideas, not to see how accurately the author/speaker adheres to an arbitrary and ever-changing set of rules. What part of this paragraph was unclear to you?

Shutdown the Source
By LTGJAMAICA on 5/6/12, Rating: -1
RE: Shutdown the Source
By DarkUltra on 5/6/2012 6:28:52 PM , Rating: 2
Blocking should require a court order, and websites can change their domain as easy as pie (entire pirate bay can be compressed into a few hundred megabytes), and then domainless protocols might be developed and the site be randomly distributed among a million peers.

I forgot a period there, but the best media publishers can do is be polite and humble to their customers and use a good distribution system that is easier and more pleasant than BitTorrent. iTunes and Steam are excellent examples, appeal to the customers so they would prefer to support their favourite artists and game developers. You can compete with free.

Censorship is a dangeorus path to take. Once effective systems are in place the can easily be used for political agendas. The Internet has an unmatched democratic role, and we must be vigilant.

Proper IP inforcement
By DrizztVD on 5/7/12, Rating: -1
RE: Proper IP inforcement
By Invane on 5/7/2012 1:54:51 PM , Rating: 2
Ah, fantastic. We could make an entirely new market of identity theft. I believe if the last year has proven anything, it's that the internet and your personal devices are not as secure as you would like. The last thing I want is to have to worry about someone hacking and using my personal internet ID number. Not only that, but this would then give the number some kind of credibility for lawsuits when in reality it would likely be no more credibly linked to you than your current IP.

Also, I'd like to know exactly what kind of 'trouble' you think internet anonymity has been. It seems to me the only ones that think internet anonymity has been an issue are those trying to push cyber bullying/internet manners legislation or those trying to sue for IP reasons. I find neither to be a convincing argument for internet identification numbers.

RE: Proper IP inforcement
By SoCalBoomer on 5/7/2012 2:04:17 PM , Rating: 2
I don't think you understand what an IP address is - it's not a person, it's a computer, and not even that - it's a logical address given to a network device in a computer.

So, an IP can identify a computer.

Where's your problem here? Yep - more than one person can access a computer. On the computers in my lab, that number can approach 6-800.

Now, at home, you have a different problem.

The IP address that is shown to the outside world is NOT the IP address of any computer in the home - it's the IP address of the ROUTER.

How many computer devices behind that router? Who knows. At my house it's upward of 10 (for only 4 people). My router is locked down so outsiders can't easily connect - but many peoples' are not so outsiders can (and often do) use their wireless routers. . . so the IP is even further from identifying the responsible user.

Now, as to the individual identification number - I wouldn't use it, and I have nothing to hide. I'd use anonymizers instead.

"We can't expect users to use common sense. That would eliminate the need for all sorts of legislation, committees, oversight and lawyers." -- Christopher Jennings

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