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The Courts Networking Privacy

A Court's Weak Argument For Blocking IP Subpoenas 220

Posted by Soulskill
from the justice-or-justish dept.
Frequent Slashdot contributor Bennett Haselton writes to point out some unfortunate holes in a judge's recent ruling that was largely welcomed 'round these parts: "A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities of ISP users that were alleged to be sharing its copyrighted movies. Regardless of whether one supports the conclusion, the judge's reasoning was pretty weak. But the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place." Read on for the rest of Bennett's thoughts.

A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities en masse of over 1,000 "John Doe" defendants whom the producers accused of sharing their films and violating their copyright. Quebec-based VPR Internationale had obtained the IP addresses of 1,017 users that they suspected of sharing their copyrighted films over the Internet, and wanted a federal court to sign off on subpoenaing the subscribers' identities from their ISPs.

Judge Harold Baker's ruling denying VPR's request has been lauded as a victory of judicial common sense against abuses of the legal system. Even though this will probably put me in the minority among self-described civil libertarians, I beg to disagree. First, because I don't think that subpoenaing a defendant's identity from a service provider constitutes an abuse of the legal system in and of itself. But more importantly, whether or not one agrees with the judge's decision, I think it contained plenty of logical errors, including a paragraph near the end which literally averaged about one error per sentence.

But back up for a second. Some of you are already thinking: What is a math major doing making legal criticisms of a ruling of a federal judge? So here's what I mean in each instance where I say that the judge made a "logical error": I mean that if you were to take the point made by the judge, and take the opposite point made by someone who disagreed, and you asked a group of experts (certainly if you asked a group of mathematicians, but probably even if you asked a group of lawyers) to read the two points and vote on which one was right, and you didn't tell them which position was the one taken by the judge — that most of the respondents would vote that the judge's position was incorrect.

Conversely, I'm always interested in hearing why people think I might be mistaken, if they say exactly what I've said that they think is incorrect, and why. In my most recent article, I offered a cash prize split between readers who submitted arguments that I was wrong (or, really, that my idea needed more work), and I enjoyed the responses so much that I ended up paying out more than the originally stated prize total. But if someone tries pulling rank and saying that I should defer to them on a legal question because they are a lawyer, law student, Supreme Court justice etc., here's the question I want them to answer: If we rounded up 10 lawyers to act as expert "voters," and showed each of them my argument and the heckler's counter-argument, and didn't tell the voters which argument was made by the math major and which one was made by the law school graduate, for whose argument would the majority vote? If the heckler won't explicitly make that claim, then there's no reason to take them seriously — because, obviously, if only 5 out of any given 10 lawyers would agree with their point, then why should we listen to the 5 who agree, instead of the other 5 who don't? (This does not apply if someone is making a bona fide argument — then the argument can be analyzed on its own terms. But if it's a good argument, the person shouldn't have to invoke their credentials to make it.)

Back to Judge Baker. His argument in support of his ruling begins on the second page, by rejecting the plaintiff's analogy between ISPs and car rental agencies:

VPR compares the Doe defendants' IP addresses to "records of who rented which car at a busy car rental agency, in that IP addresses are like cars "leased by subscribers. If a plaintiff was injured by a rental car, the plaintiff can discover the information on who leased the car from the agency by specifying the license plate of the offending vehicle and the date and time when the injury occurred. Without access to the agency's records, all the plaintiff has is the identity of the rental agency, but not who was driving the rental car." The comparison is not apt. The rental agency owns the car and is a potential defendant, so the adversarial process would yield the driver's information.

Huh? If you're injured by a rental car, how is the rental agency a "potential defendant"? Well, technically, anybody in the world is a "potential defendant" — you can put anyone's name on a lawsuit until a court shoots you down — but since that would make the phrase meaningless, presumably Judge Baker meant that the rental agency would be a legitimate potential defendant, one whom the accident victim would be justified in suing. So again: Huh? Why is a rental car agency liable for an accident caused by one of its renters? Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable — but not simply if their customer did something reckless over which they had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).

So, to translate that into vote-off terms as discussed above. What I mean is that if you took these two points:

  • "The analogy between an ISP and a rental car agency is inappropriate, because a plaintiff could sue the rental car agency in order to subpoena the identity of the renter that hit them, but a copyright owner could not do the same to an ISP." [Judge Baker's argument.]
  • "The statement that the analogy is inappropriate, makes no sense. In either situation, the plaintiff wants to sue a customer of a third-party company, when the third-party company itself is probably not liable. So in either case, the plaintiff can sue a 'John Doe' defendant, and subpoena the company for the customer's identity. One could argue that this should be permitted in both cases, or prohibited in both cases, but no reason has been given as to why they should be treated differently." [My argument.]

and asked lawyers or mathematicians to vote on which was more correct, and you didn't tell them which argument was made by a judge and which argument was made by a math major, that the second point would get more votes. (I certainly think that if you fibbed and told your respondents that the first argument was made by a defendant, and the second argument was made by a judge in rejecting the defendant's line of reasoning, that most people would vote, "The judge is right." That would be cheating — playing on people's tendency to believe that a judge's reasoning is usually superior — but I could point out that if respondents are really evaluating the two arguments objectively, then it shouldn't matter!)

I'm not going to convert every such disagreement highlighted here into the point-counterpoint format; I think in each case it should be non-controversial how the conversion would go.

To proceed: in claiming that subpoenaing a rental car agency for the identity of their customer is not analogous to subpoenaing an ISP for the identity of their subscriber, Judge Baker adds: "And such information is not necessarily confidential; accident reports and police records may also identify the driver." True, but what does this have to do with anything? The question is: given a certain probability that a company's customer is guilty, is it appropriate to let a plaintiff subpoena the customer's identity from that company? If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public.

Judge Baker then raises the point that the customers to whom the IP addresses were assigned might not be the actual infringers:

Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers. Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers' Wi-Fi connections.

Well, true — the assignee of the IP address might not be the actual copyright infringer. But, more generally, being named as a defendant in a lawsuit does not mean that you're at fault anyway — that's what the trial is for. For a court to take a plaintiff's case against a given defendant seriously, they just have to believe that there is a reasonable probability of the plaintiff winning. If the VPR has a list of IP addresses of users sharing out their copyrighted material, it may be true that not literally all of those infringers are living in the household that the IP address has been assigned to — but what percentage of them probably are? 90% or more? In any other scenario, wouldn't that have been considered quite a "reasonable" likelihood that the plaintiff had a legitimate case against a defendant, and that the case should go forward so that more facts can be brought to light, with the expectation that those facts would move you to a higher degree of certainty about whether the defendant was in fact at fault?

On the same note, Judge Baker goes on to say:

"The list of IP addresses attached to VPR's complaint suggests, in at least some instances, a similar disconnect between IP subscriber and copyright infringer. The ISPs include a number of universities, such as Carnegie Mellon, Columbia, and the University of Minnesota, as well as corporations and utility companies."

But there is no reason to think that in the case of these entities, there would be any more "disconnect" between the actual infringer and the user on the network that the IP address had been assigned to. In fact, in the case of, say, a corporate network, it's more likely that an IP address would have been assigned by the IT department to a specific, trackable user, and not shared out on an unsecured Wi-Fi network where the IP could have been hi-jacked by a car parked on the street, a scenario that's probably more likely for a home network. I'm moderately confident that if you compared commercial home ISPs to corporations and looked at the percentage of times that the "user of record" for an IP address according to the logs was the same as the actual person using it, that percentage would be higher for a corporation than for an ISP serving home users. In any case, Judge Baker certainly gives no reason to expect that it would be lower.

Now here we get to the home stretch, the last paragraph on page 2, where I'm claiming almost one logical error or non sequitur per sentence:

  • "As VPR points out, ex parte motions for expedited discovery have been granted in similar cases in other districts; among the thousands of Does in those cases, relatively few motions to quash have been filed."

    I'm not even sure what Judge Baker is saying here, but given the context, it seems to be: The innocent John Does' only defense against abuse of the discovery process is to quash the subpoenas (basically, file a motion saying "I'm not guilty, so the plaintiff can't have my identity"), but that's been relatively rare, so we can't rely on that as a defense against abuses of the system. Of course, there could be a simpler explanation as to why it's rare: Perhaps a lot of the John Doe defendants thus named are, in fact, guilty! I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either. Come on — it's not that hard for a copyright holder to join a p2p network or find a Torrent tracker, and get a list of the IP address of a few users who are sharing or downloading their content illegally. Is it that hard to believe that most of the users on that list are probably doing what VPR said they were doing?
  • "In at least one case, counsel has sought leave to amend the complaint to add more Doe defendants. See Lightspeed Media Corp. v. Does 1 - 100, Case No. 1:10-cv-05604, d/e 16 (N.D. Ill.) (seeking leave to add Does 101 - 1000 as defendants)."

    Uh, OK. Plaintiff started with a list of 100 defendants, and then expanded it to 1,000. What does this have to do with the legitimacy, generally, of suing John Doe defendants and subpoenaing their identities?
  • "In Hard Drive Productions, Inc. v. Does 1 - 1000, counsel sought leave to dismiss more than 100 Doe defendants, stating that some of the Does had 'reached a mutually satisfactory resolution of their differences' with the plaintiff."

    Well, yeah, that's what you're supposed to do — try and settle out of court instead of bringing every single case before a judge. How does the fact that some plaintiffs settled make it less legitimate to sue John Doe defendants in the first place?
  • "Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case."

    Now these are actually all fair points. The logical error is that they apply to any lawsuit — Judge Baker makes no argument why these problems would be more pronounced in a lawsuit against 1,000 John Does.

    In fact, some of these problems would probably be less severe in the case of a lawsuit against 1,000 John Doe defendants than in the case of a lawsuit against a single, named defendant. If you're one of 1,000 people who is accused of illegally downloading an adult movie, then even if the plaintiff learns your identity, it's unlikely that your name is going to appear in any articles about the case — far less likely than if you're the only defendant in the lawsuit. And if, out of over 1,000 defendants, there are at least several dozen who decide to fight the case, they'd be more likely to be able to split the costs of hiring a good lawyer than if only one defendant was named who had to pay all the costs on their own. Both embarrassment and legal fees are less of a burden when you can share them with hundreds of other people.

Now, I'd be happy to live under a legal regime that reached either conclusion — it's not an egregious miscarriage of justice if plaintiffs are able to subpoena the identities of ISP subscribers who show a high probability of being guilty, but it's not an egregious miscarriage of justice if they aren't, either. I think we need more healthy skepticism about the reasoning that judges use to reach those conclusions.

The practice of "judge-bashing" is unfortunately associated in most people's minds with extremists, usually on the right wing, but my reason for being skeptical is simple and non-partisan. Suppose that you were take, say, an economic argument published by a prominent economist, and asked the public to identify what they thought were "mistakes" and submit counter-points to those specific points in the argument. Then, suppose for each such disagreement, you asked an independent panel of economists to vote on who was right without saying which was the point made by the economist and which was the counter-point made by the layperson. (I'm not talking about errors that the author would voluntarily correct once they were pointed out; rather, points where they "dig their heels in" and refuse to back down.) I think it would be quite rare to find a disagreement where the experts were split 50/50 on whether the economist or the layperson was right, and extremely rare to find cases where 80% of the experts voted with the layperson. By contrast, polling my lawyer buddies about this or that part of a judge's reasoning, the 50/50 splits are extremely common, and there were quite a few cases where the vast majority agreed that a judge's reasoning was wrong — but always with the same shrug that there's not much you can do about it.

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A Court's Weak Argument For Blocking IP Subpoenas

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  • I stopped reading... (Score:5, Informative)

    by YodasEvilTwin (2014446) on Friday May 06, 2011 @11:01AM (#36047752) Homepage
    ...after the first argument made, about the car rental agency. Anyone who has studied law knows that, at least in the US, the rental agency WOULD be a legitimate defendant. What if they leased the car to someone without a licence? They've essentially armed someone with a dangerous weapon. There are plenty of reasons like this that would make the agency potentially liable, and the law pretty much has it worked out. While nothing's perfect, this math major either needs to expand his expertise or to kindly be quiet.
    • by tater86 (628389) on Friday May 06, 2011 @11:31AM (#36048118)

      I think you nailed it. The problem with his analysis of the analogy is that he doesn't seem to take into consideration the most important aspect of a legal decision, laws. ISP's aren't liable for the content of traffic from subscribers. I have no idea what laws would apply for car rental agencies, but I'm guessing it's not the DMCA.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      I stopped at the exact same spot. This is one of the many reasons why you can't say "Well I know logic, so that must supersede someone who knows the law". He also made no attempt to actually break his argument down into actual logic statements, he just basically said "Here's the way I assume things to be, and here's the way I think they should be, and I think I'm really smart so I must be right". Upon a little further reflection, I'm pretty sure that statement is an accurate summary of every Bennet Hasel

      • I stopped at the exact same spot. This is one of the many reasons why you can't say "Well I know logic, so that must supersede someone who knows the law". He also made no attempt to actually break his argument down into actual logic statements, he just basically said "Here's the way I assume things to be, and here's the way I think they should be, and I think I'm really smart so I must be right". Upon a little further reflection, I'm pretty sure that statement is an accurate summary of every Bennet Haselton

    • by Sonny Yatsen (603655) * on Friday May 06, 2011 @11:31AM (#36048132) Journal

      Mr. Haselton can compress the least ideas into the most words of anyone I've ever seen.

      • by poetmatt (793785) on Friday May 06, 2011 @12:00PM (#36048464) Journal

        He's also full of shit, not a lawyer, and attempting to imply legal analysis.

        This is just as bad as listening to legal analysis from Florian Mueller.

        This is a giant step in shooting down subpoena lottery, and they want it to be labeled as an error, a once in a lifetime thing, surely it won't happen again. Sounds nice, but reality is, that subpoenas are fairly regularly shot down, and this is hard evidence on the why part. That is a very strong argument.

        • by GooberToo (74388)

          Ugh. Posts like yours make my head hurt because they are so illogical. Basically the judge has ruled its legal to hinder legal investigations with probable cause and has gone as far providing unique legal protections to a special category of criminals. Its illogical and completely unsupported by law and even logic. The judge and all of his supporters are idiots.

          Like so many issues which relate to piracy, people get all emotional and completely lose sight of the fact that the emotion is almost always complet

          • by farnz (625056) <slashdot@NoSPAm.farnz.org.uk> on Friday May 06, 2011 @01:01PM (#36049220) Homepage Journal

            I read the judgement - did you? In it, the judge makes it clear that the IP address and a naked assertion of infringement is not enough to get the subpoena; you need sufficient evidence to show the judge that you can tie the infringement to the IP address, and could continue to tie the infringement to an individual if you were given the chance to identify possible individuals.

            So, if I can show that I know that a user of the IP address infringed, and that if I could get the Limewire user GooberToo who was also sharing Ubuntu 10.04 x86_64 and Fedora 15 i686 I would have the user who infringed, I could still get the subpoena. If all I have is an IP and an allegation of infringement, tough.

          • by twidarkling (1537077) on Friday May 06, 2011 @01:18PM (#36049412)

            Ugh, posts like yours make my head hurt. You're arguing that the judge is wrong and right in the same paragraph, and then claiming you have logical consistency.

            You say the judge is 100% wrong, and then that IP addresses aren't a positive ID but then say that IP addresses are cause for investigation. And that part's true. But you forget that the next step after identifying parties isn't more investigation, it's the copyright holder filing the lawsuit with that person's name attached. The judge is saying now that you need to do more investigation to prove the specific name attached to the IP is actually the culprit. And since it's not police doing the investigation, an invasion of privacy by a corporation SHOULD be held to a higher standard than the Internet equivalent of "Your car was seen parked outside the store on the day of the robbery." Police would actually come and question you, ask where you were that day, if anyone used your car, and maybe even check if it actually was your car instead of a same make/model with a similar licence plate. The cops wouldn't just show up and go "You're under arrest for having a vehicle present at the scene of a crime." (Also note, at no time am I saying YOU were seen at the scene of a crime. That would be a positive and solid ID). By the same token, simply saying an IP address was noted downloading something doesn't mean that the person listed as the current user of the IP is the culprit. But companies doing the suing always proceed directly to sending the intimidating "We know what you did, so pay up or be dragged to court" the millisecond they have a name. No further investigation is done until after legal proceedings have started. What and how investigations are to proceed are irrelevant to the court, just that the judge is now saying "an IP is like a car, you need to link it to someone more firmly first before you sue them."

            So, which is it? Should the judge enforce more investigation, or should he rubber stamp the subpoenas for name and address, knowing that it's not leading to greater investigation?

            In a nut shell, you're a zealot, and have no logical consistency, and are completely wrong. The judge may or may not have made an incorrect judgement, but you sure as fuck haven't made anything resembling a coherent argument to support your view.

            In fact, in furtherance of your making of a valid argument, I'll even tell you what the subpoenas should be, instead of name/address requests, and that's requesting forensic investigation of computers linked to the IP. They ask the court for the ability to have the computers taken and submitted to neutral 3rd parties for further investigation. In fact, ideally, the company doing the requesting would not get any names or addresses, but instead the 3rd party doing the assessment would receive the information from the ISP, go with the subpoena, get the computer, and if nothing's found, the computer returned, the IP registered as a dead end, and the copyright holder or their lawyers never gets the name or address. If something's found, then the actual evidence is passed along to the court, who would okay the naming of the computer owner to the lawsuit. Thus, actual evidence linking someone to a crime is found, privacy's not further invaded than necessary, and people avoid settling out of fear of a legal battle despite innocence.

            And I swear to all that anyone has ever held holy, if you say "That would be too expensive for the rights holder," you are the dumbest sack of shit I'll have ever communicated with via electronic means, since if they're not prepared to pay for actual investigation they have no goddamn cause to be suing hundreds or thousands of people.

          • by poetmatt (793785)

            Nice, you failed in every sentence.

            Having an IP address is not probable cause for a subpoena. Where do you make that up? this isn't about emotions, like you think, this is about fact. an IP address will not ever identify a specific person (frequently you are full of shit). An IP address could, possibly, depending on the scenario, identify a single MODEM. It will never identify a person, dumbass. It doesn't even identify a computer since with IPv4 the IP address is not a mac address.

            This is 100% about facts,

          • Assuming a 90% accuracy rate for this method of seeking subpoenas, approving all ~1000 of the subpoenas would damage at least 100 perfectly innocent people, forcing them to spend time and money on an unjustified legal defense. This would be a gross miscarriage of justice, and the judge ruled that it's necessary to have more than just an IP address and an accusation to issue a subpoena.

      • This is awesome! I didn't know I could write a REALLY long comment, and submit it as a story!

      • Try reading poststructuralist philosophy one of these days. One guy I was forced to know spent dozens of pages explaining that when something is happening, it is not happening before nor after it has happened.
    • by piripiri (1476949) on Friday May 06, 2011 @11:32AM (#36048148) Journal
      tl;dr
    • by _0xd0ad (1974778) on Friday May 06, 2011 @11:36AM (#36048196) Journal

      One huge difference is that a rental car can only be driven by one person at a time, and the rental company usually has you sign paperwork agreeing that you won't let anyone else drive it, or specifically stating who besides yourself will be driving the vehicle.

      An IP address can be used by scores of people simultaneously and to my knowledge ISPs don't require you to keep any particularly careful track of who uses your IP address (even if you secure the network, it'll certainly be used by any family members, and quite probably infrequently by friends/guests).

      • by guruevi (827432)

        Even so, if you rent a car and the police goes to chase that car and it ends up in a big killing spree, you are not necessarily guilty of that chase or it's outcome. You may be liable to the rental car place in a civil suit (negligence for leaving the key in the car or leaving it unlocked or allowing somebody else to drive it) but in a criminal suit you won't be found guilty unless the prosecution can place you in that car at that time with evidence. Likewise if the car brand company decides to sue you for

    • They've essentially armed someone with a dangerous weapon. There are plenty of reasons like this that would make the agency potentially liable

      Seriously, from "you let THAT guy drive one of your cars?" to "you ignored WHAT warning light for HOW LONG?", there's a ton of reasons why a car rental company could be liable if their car injures someone.

      So I stopped reading there, because I can't imagine the rest of that tl;dr would have been less ignorant.

    • by Anthony Mouse (1927662) on Friday May 06, 2011 @12:02PM (#36048484)

      I didn't. The flaws continue:

      If the VPR has a list of IP addresses of users sharing out their copyrighted material, it may be true that not literally all of those infringers are living in the household that the IP address has been assigned to — but what percentage of them probably are? 90% or more?

      It seems to me the first problem is that you're just making up numbers. Where does 90% come from? Keep in mind that the question you're asking isn't the probability that some undifferentiated traffic comes from the account holder for an internet account, it's the probability that someone engaged in criminal or infringing activity would choose to piggy back on someone else's internet connection instead of using their own.

      It also seems like you're asking the question the wrong way. Suppose the chances are actually as high as you speculate: 90%. They're trying to subpoena some 1000 names. With that 10% error rate you can expect some 100 false results. In this single lawsuit. That seems like a high probability -- even a near certainty -- that the court would be wrongly turning over a substantial number of names.

      "Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case."
      Now these are actually all fair points. The logical error is that they apply to any lawsuit — Judge Baker makes no argument why these problems would be more pronounced in a lawsuit against 1,000 John Does.

      The Judge might not explicitly spell out why they're more pronounced, but those reasons exist: Both the prospective penalty and the cost of litigation here is vastly disproportionate to the actual harm to plaintiffs, and in consequence to the settlement terms. If everyone is offered e.g. a $5000 settlement and the alternative for the innocent person is to prove their innocence at the cost of several times that amount in legal fees compounded with the risk that they will not succeed and have to pay several hundred times that much in statutory damages. Most normal lawsuits don't have that characteristic because the settlement terms are not likely to be so incredibly divergent from the expected outcome if the case was tried in court. Moreover, most normal lawsuits are over business matters or the like, whereas pornography is something that people have a special aversion to having their name associated with in the public record -- especially if they're innocent.

      And if, out of over 1,000 defendants, there are at least several dozen who decide to fight the case, they'd be more likely to be able to split the costs of hiring a good lawyer than if only one defendant was named who had to pay all the costs on their own. Both embarrassment and legal fees are less of a burden when you can share them with hundreds of other people.

      That only works if some nontrivial number of defendants refuse to settle. It seems to me past cases have shown that this does not happen. Do you have any evidence to show that it would?

      • by snowgirl (978879)

        And if, out of over 1,000 defendants, there are at least several dozen who decide to fight the case, they'd be more likely to be able to split the costs of hiring a good lawyer than if only one defendant was named who had to pay all the costs on their own. Both embarrassment and legal fees are less of a burden when you can share them with hundreds of other people.

        That only works if some nontrivial number of defendants refuse to settle. It seems to me past cases have shown that this does not happen. Do you have any evidence to show that it would?

        Actually, even worse... at this point, after identifying the individuals the company would begin suits in various districts, or split the suits into individual actions. Viola, the clients are now no longer aware that they have co-defendents, but any shared legal costs suddenly evaporate.

        This is exactly what happened in most fishing-campaign copyright suits, already...

    • by BBrown (70466)

      You made the right move. I am a lawyer and I can tell you his inaccuracies -- both legally and, frankly, logically -- continue well beyond the first argument.

    • A car is not a weapon. Its a vehicle. Can someone be killed by it sure, but thats not the primary objective, and you can kill with almost all items (if you are clever enough)

      • by _0xd0ad (1974778)

        Well obviously they can be used as a weapon, either in self-defense or in malice; but they can also be used to kill squirrels, rabbits, deer, and other wildlife. Thus, for safety reasons, there are laws on how old you must be to operate one and licenses you must obtain to legally do so. Operating one while under the influence of alcohol, of course, is highly illegal and carries harsh punishments. Furthermore, operating them outside of specifically designated areas is forbidden, except on private property wh

    • While nothing's perfect, this math major either needs to expand his expertise or to kindly be quiet.

      Bah, he really has a master's degree in math, according to his Wikipedia page. That makes me sad.

    • I agree with you. Any time spent reading the original poster's comments is time wasted. I think that the OP really ought to get an MRI of his brain or at the least a CT Scan. He really might have some sort of brain damage (possibly a tumor) that is exhibiting itself in strange, eccentric ways.
    • by sjames (1099)

      I also stopped reading for a slightly different reason. Simply, from a statistical standpoint, there's a very low likelihood that anyone drove the rental car without the renter knowing about it and being able to say who it was. This is not true of an IP address.

      Next up, there haven't been any mass fishing expeditions based on subpoenaing car rental records with the extortion racket like payments to make the problem go away.

  • Ah, Bennett ... (Score:5, Insightful)

    by SpeedyDX (1014595) <speedyphoenix@gmaiELIOTl.com minus poet> on Friday May 06, 2011 @11:01AM (#36047754)

    I keep reading your articles and I get more frustrated every time I do. Someone is wrong on the internet! It just grinds on me for no good reason. I really shouldn't give you the time of day because you have shown time and again that you have no clue what you're talking about when it comes to law.

    First of all, please don't redefine "logic" just because you feel like it. A logical error in an argument is one where the conclusion does not necessarily follow from the premises. That's it. Because that's what logic is. It has nothing to do with voting or whatever the hell bullshit system you can come up with. Something is either a logical error or not as a matter of logic.

    Second, YOU ADMITTED THE JUDGE WAS RIGHT about the car rental liability case. You explicitly said that there are circumstances where the rental agency may be a legitimate potential defendant, yet you just cast that aside and ignored it for the rest of your argument. THIS is a logical error: You have certain premises, and you ignore them to the effect that your conclusion does not necessarily follow from your premises.

    Third, I hope that you phrased the public/not public question wrong. If you phrased it right, then the judge is arguing that there is a disanalogy precisely because information was made publicly available. That's why it is relevant when the information is not made public - it's not made public vs it was made public. That is the very thing being argued, I don't know how you can't see the relevance. That's like saying a label like "WARNING: This chair can only support up to 200 lbs of weight." is not relevant for those who weigh over 200 lbs because they weren't explicitly mentioned. Disingenuous at best.

    I could go on, but I don't have as much time as you do. If you want to be taken seriously by people, you should get some legal training before you comment. Even if you want to argue that legal training is not required to make comments on legal cases, you STILL need to get legal training to understand WHY it's not required in order to make a coherent argument for your case. That's just a long way of saying that you're full of shit.

    • by tedgyz (515156) *

      Thanks for setting things straight. I started reading this long-winded diatribe and gave up when I couldn't make any sense of it. Not to mention it is too long. I have a day job.

      • by clintp (5169)

        You're not the only one. He probably has a point buried in there somewhere with with all of the sanctimonious bullshit and posturing. When it takes him 400 words (thank you wc) to explain why he's qualified to make the criticism in the first place, something is terribly wrong.

        TL;DR. Skimmed only.

    • by MoonBuggy (611105)

      Second, YOU ADMITTED THE JUDGE WAS RIGHT about the car rental liability case. You explicitly said that there are circumstances where the rental agency may be a legitimate potential defendant, yet you just cast that aside and ignored it for the rest of your argument. THIS is a logical error: You have certain premises, and you ignore them to the effect that your conclusion does not necessarily follow from your premises.

      I haven't even finished reading the article yet, but that was the first thing that struck me. Saying "Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable" implies quite clearly that they are a "legitimate potential defendant". The word "potential" is key: nobody's saying that they are guaranteed to be a defendant in the case, only that the may be in certain circumstances - the very same circumstances outline

      • by cnettel (836611)

        I haven't even finished reading the article yet, but that was the first thing that struck me. Saying "Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable" implies quite clearly that they are a "legitimate potential defendant". The word "potential" is key: nobody's saying that they are guaranteed to be a defendant in the case, only that the may be in certain circumstances - the very same circumstances outlined in the post attempting to refute that line of argument.

        Likewise, it could be construed or implied that the IP addresses were not in fact addresses of customers, but of the ISP itself, used for internal operations. Then the ISP is a legitimate potential defendant. Naturally, in most cases it would be easy to state the remote likelihood of a download or hosting actually being done by the ISP, but it is not obvious in all cases. Likewise, in most accident cases where a subpoena is considered, the actual likelihood of the rental agency being at fault is minimal.

        • by poetmatt (793785)

          none of it is valid. It is an extrapolation on misleading done by a fucking math major making legal analysis with generally no idea what he's even talking about. It doesn't even have the "I AM NOT A LAWYER" disclaimer, or explaining who the hell this guy is. There are big issues there.

          There is actual established caselaw and plenty of actual things that don't even remotely support his position. The disclaimer should be on the first line saying : "THIS IS AN EDITORIAL AND HAS NO FACTUAL BASIS" because that wo

        • by cdrguru (88047)

          Well, I suspect the "right" course of action is probably to start with suing the ISP.

          What? Don't they have "common carrier" status or some other kind of immunity against prosecution for just carrying data? No, they don't. They have a limited amount of liability for hosted materials if, and only if, they are responsive in removing infringing and offending materials from their hosting service. That doesn't say anything about their providing data transfer services to customers.

          So far nobody has bothered th

        • by ray-auch (454705)

          Likewise, it could be construed or implied that the IP addresses were not in fact addresses of customers, but of the ISP itself, used for internal operations. Then the ISP is a legitimate potential defendant. Naturally, in most cases it would be easy to state the remote likelihood of a download or hosting actually being done by the ISP, but it is not obvious in all cases. Likewise, in most accident cases where a subpoena is considered, the actual likelihood of the rental agency being at fault is minimal. If they would actually be liable, it will probably be due to reasons of renting the car to someone obviously unsuitable rather than maintenance negligence

          Subscriber and internal IP addresses can in most cases be differentiated by address block or routing trace, and if they thought they were ISP internal addresses they would name the ISP as defendant not issue John Doe subpoenas to find a defendant.

          The big difference is that the ISP is protected in law from liability for the customer actions in question here, therefore there is no way they are a potential defendant, whereas there are a whole bunch of reasons the car rental agency might be.

      • Second, YOU ADMITTED THE JUDGE WAS RIGHT about the car rental liability case. You explicitly said that there are circumstances where the rental agency may be a legitimate potential defendant, yet you just cast that aside and ignored it for the rest of your argument. THIS is a logical error: You have certain premises, and you ignore them to the effect that your conclusion does not necessarily follow from your premises.

        I haven't even finished reading the article yet, but that was the first thing that struck me.

        Same here, but I won't be going on to read the rest of the textwall. The page or so I did read was littered with errors or sloppy, illogical argumentation. I don't think I've ever seen so few valid points per word in a Slashdot post.

  • Tripe (Score:5, Insightful)

    by hedwards (940851) on Friday May 06, 2011 @11:13AM (#36047892)

    I gave up reading midway because the OP has no idea what precisely he's talking about and the claimed "logic" there is extremely weak. The reason the rental agency would likely be on the hook in that accident is that them and their employees are the only ones known to have access to those vehicles without more information, hence why they'd be the most likely party in any legal action.

    As far as police and witness accounts, those are definitely very important in establishing the question of whether or not the lease applied to the suspect in question. With an IP you don't get any corroborating evidence at all until you raid the place and seize the computers and if you can't readily find the materials you've nothing else to lean on. So should somebody be at the residence as a guest or just using an open WAP you've no way of establishing which it is. And that there is the problem, because you don't have any assurance at all that the person assigned the IP was the person the ISP thinks it was you cannot equate the two situations. Plus, because of the way that DHCP works there have been cases where the completely wrong person was investigated due to timezone problems.

    In other words, complete tripe, and you definitely don't need to be an attorney to see how weak the assertions here are.

  • "the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place."

    I think that's absolutely silly. Although having a JD may uniquely qualify you in matters of law, why should an average citizen not be allowed to question a judge's ruling? The laws are printed in books to which we can all refer and question the interpretation of.

    I suspect the answer is, "because we like the judge's ruling" and if matters were reversed this statement would not h

    • by Improv (2467)

      Non-lawyers are "entitled" to question the ruling, but just like someone arguing with their cardiologist over plans for surgery, the person without the specialised training is likely to be pretty seriously off.

    • Re:Non-lawyer? (Score:4, Insightful)

      by Loadmaster (720754) on Friday May 06, 2011 @11:46AM (#36048294) Homepage

      Although having a JD may uniquely qualify you in matters of law, why should an average citizen not be allowed to question a judge's ruling?

      The average citizen can question a judge's ruling all they want, but this article is a great reason for not doing so in public.

    • "the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place."

      No, the real hurdle is convincing people that someone who has repeatedly demonstrated a lack of an ability to reason logically is entitled to call anyone out on their logic.

  • by name_already_taken (540581) on Friday May 06, 2011 @11:21AM (#36047964)

    This is a prime example of why people without legal training should not attempt to critique court decisions.

    Words that mean one thing to lay people mean something else to the courts.

    On top of that, couldn't this have been summarized in some compact format so that readers know if they want to read the entire wall of text or not?

    • This is a prime example of why people without legal training should not attempt to critique court decisions.

      Not really. Anyone can call them out, and anyone can be right, depending on the validity of their arguments. This, I think, is an example of someone being wrong. But, it doesn't mean that everyone without legal training is wrong.

    • by bwcbwc (601780)

      "Words that mean one thing to lay people mean something else to the courts."

      Hmm, that explains Bill Clinton's response of (my best recollection of the quote) "That depends on what the meaning of the word 'is' is." in an interview.

      Back on topic, from yet another IANAL: OP's arguments are astoundlingly weak, but a couple of points where I think the judge did fail:
      1) The rental car analogy works in the sense that knowing which license plate is involved in an accident doesn't necessarily tell you who the driver is (say for a hit and run), even if you have the rental agency records. The

  • by Drakkenmensch (1255800) on Friday May 06, 2011 @11:27AM (#36048058)

    First, because I don't think that subpoenaing a defendant's identity from a service provider constitutes an abuse of the legal system in and of itself.

    The abuse does not come from the request itself, but usually what follows said request. The plaintiff usually knows that he has thin legal ground over his lawsuit and will pull back his suit before a judgement likely to favor the defendants (and set a landmark) can happen. He will then turn around and DIRECTLY contact each of those defendants that got outed in the discovery process and personally extort thousands of dollars from them under threat of ruining them through endless litigation that will cost them far more to defend themselves from a million dollar lawsuit.

    Now THAT is textbook abuse.

  • by debrain (29228) on Friday May 06, 2011 @11:29AM (#36048092) Journal

    Sir –

    I read the article up to the point where it inferred that logic was lacking with respect to a car rental company being liable for the injuries caused by a driver who rented that car.

    I propose a two-fold answer. As a matter of law, many states have statutes that require owners to be responsible for the accidents involving those who are using their car with permission. That's the end of the legal analysis in most cases. Why do we have that law, you ask? To protect victims.

    The policy rationale for requiring owners to be responsible for the use of their vehicle by others is to protect victims by ensuring that when accidents occur there are insurers to compensate innocent victims (at least, this is the rationale in the fault-based systems such as most of the USA). In the case of rental cars the cost of that insurance is incurred by the rental car company, which cost they pass that cost onto the drivers.

    How does society dictate that car rental agencies get insurance? By enacting statutes that make owners liable for the negligence of the drivers.

    The alternative has been shown to result in patchy coverage of injuries occurring in motor vehicle accidents. This lack of coverage hurts innocent victims who, in fault-based insurance schemes, may have no recourse to compensation from uninsured or underinsured drivers.

    Thus, to provide innocent victims with a recourse to compensation, many societies have decided that the owners of vehicles, who shall generally have insurance, shall be responsible for the accidents caused by drivers of their vehicles, who may not have insurance.

    Of course this policy and such laws are not uniform. In some cases the owner must be shown to be negligent or otherwise responsible or aware of the driver's behaviour.

    I'm not sure if this was the basis for the logic of the Judge in this case, but it's a well known rationale that I thought may be worth sharing.

    The rest of the article was tl;dr.

    • by cdrguru (88047)

      Exactly. The rental car company is a potential defendent because their equipment was being used. In the case of a hit-and-run accident all the police and/or plantiff might have is the license plate. So who ran down the little old lady? Well, you start with the rental car company and if they can provide convincing, legally sound information about someone else that might be responsible for the actual accident you refile your lawsuit or the police move on looking for a suspect.

      Same thing with an ISP. Thei

  • Meh (Score:4, Insightful)

    by JoeCommodore (567479) <larry@portcommodore.com> on Friday May 06, 2011 @11:32AM (#36048136) Homepage

    If I were the movie music industry I'd be supporting the transition to IP v6, as it reduces the ambiguity. But then again, the shadow of doubt related to IP addresses in identifying criminals is still quite large.

    Another part of his argument is that the truth will be revealed in court, the purpose of many of the summons is not to get to court but to get revenue, We have seen when people take action on a false claim the companies, try to drop the matter wirhout incurring expense or wrongdoing on their part, that has highlighted there is more than a shadow of a doubt with the current method of discovery.

    • by OverlordQ (264228)

      If I were the movie music industry I'd be supporting the transition to IP v6, as it reduces the ambiguity.

      Not really, depending on how ISPs implement it, they'll probably just route a /64 to you, I'd think that'd make it harder to identify as that's a few fucktons of IPs that still could be going anywhere.

    • If I were the movie music industry I'd be supporting the transition to IP v6, as it reduces the ambiguity.

      It doesn't have to [ietf.org], and nothing prevents you from manually assigning your own made-up IPv6 address to hosts on your network. I have a lot of FreeBSD machines, each running a lot of jails. The main interface gets its address from autoconfig but each of the aliases for the virtual machines comes from piping /dev/random into md5sum and inserting a colon after every 4 nibbles.

      For that matter, there's nothing stopping you from putting an address-randomizing NAT on your gateway so that outgoing connections seem t

  • Obviously if you are "damaged" by a rental car you sue the rental car company they will then hand over the guy who rented the car on a silver platter to you. If you don't directly sue the ISP when you are "damaged" by an IP address then the anoalogy is completey invalid as the Judge stated.

    Now I don't know the lagalities and whether you do or do not sue the ISP in that case, but you weren't arguing based on legalities you were arguing based on logic (well at least claiming to).

    And no I didn't read any furth

  • Anyone else seeing what looks like chants to Cthulu written in Orcish at the bottom of the page for today's QOTD?

    • by game kid (805301)

      Oh, that? That's just the ramblings of frequent Slashdot contributor Oraargg Unfrygba.

    • by Tim C (15259)

      It's rot-13ed, and starts thus:

      A CODE OF ETHICAL BEHAVIOR FOR PATIENTS: 1. DO NOT EXPECT YOUR DOCTOR TO SHARE YOUR DISCOMFORT

  • by Jeek Elemental (976426) on Friday May 06, 2011 @11:36AM (#36048178)

    todays fortune seems spot on for the FA

  • But the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place.

    That's because most Americans don't read the tortured logic they often employ to justify their decisions. Kelo v. New London would give a normal person a brain aneurysm trying to wrap their mind around the thought process used to justify an upward redistribution of real estate wealth to rich land developers on the basis that their ability to generate better public revenues is

    • More than that, you need to filter out the nutjobs who would otherwise sue everyone and everything using insane troll logic to justify themselves and would constantly bog down the legal process by questioning even well established facts by claiming that "nobody ever proved it to them." Having lawyers as necessary middlemen does remove a whole lot of clutter for this specific problem, and if the lawyer himself becomes the problem, Jack Thompson demonstrated how well that ends up for them.
  • What are you smoking?

    In fact, in the case of, say, a corporate network, it's more likely that an IP address would have been assigned by the IT department to a specific, trackable user, and not shared out on an unsecured Wi-Fi network where the IP could have been hi-jacked by a car parked on the street

    Have you ever worked in a corporation? If so, have you ever worked in the IT department of a corporation? These questions are rhetorical since your conclusion is obviously based on not having done so. The IP addresses in most cases are not static assigned, especially to workstations, desktop PCs, and laptops. Why? Because it is a royal pain once you start dealing with people moving between multiple buildings or subnets. No IT department would ever want to handle dealing with changing IP

    • Your argument is idiotic: you can look at the DHCP vs MAC address logs, look up the hostname (Windows machines) etc, the service tag vs MAC address in your database, etc.

      TRWTF is that the OP hasn't ever heard of "NAT." At a corporation, if you connect to a Web site, you see a single IP address assigned to that corporation connecting to that Web server. NAT servers don't log this. Still, it's doable: time vs source port. NAT lets 64511 people connect to some address on port 80 by assigning them a diff

    • by cdrguru (88047)

      I believe the point was that an IP address assigned by DHCP within a corporate environment would most certainly point to the user (i.e., infringer) rather than some random third party "sharing the connection."

      Whether or not there are DHCP logs which are legally sufficient to track down the individual user is irrelevent to the point being made in the article. The point being made was that in a corporate environment IP == Computer == User nearly 100% of
      the time whereas in a home environment you can't even ge

  • by Stumbles (602007)
    Well the guy might have a point about the Judges analogy and as analogies go they are much like a generality; it does not cover all the bases. However Mr. Haselton is barking up the WRONG tree. While the analogy may have logic holes one thing is for sure about the Judges position; the Judge is absolutely right; an IP address is associated to a MAC address not an Individual.
    • by cdrguru (88047)

      Yes. Absolutely. But there are many links along the way. What we have is:

      Action -> IP address -> MAC address -> Potential NAT translation -> Computer -> User

      What is needed is to move along this chain one step at a time. At each point there can be information obtained which identifies the next link. What you would seem to like is:

      Action -> User

      Well that might be nice, but we don't have that. Saying that without that there is no possiblity of holding a user accountable means nothing do

  • If an infringement comes from an IP owned by an ISP, why don't they just sue the ISP? I'm saying to simply forget about this whole protection for service providers thing... and go after the party that one has the resources to determine is most responsible for the infringement.

    The ISP, meanwhile, would be lawfully entitled to collect all damages (including legal expenses) from the subscriber who is accountable for the MAC address allocated to that IP at the time of infringement.

    The subscriber, in turn

    • by DCFusor (1763438)
      Yeah about the lawyers get rich -- you're just figured out a way to change one possibly un-bringable suit into 3 that have to be tried. Either you're a lawyer, or someone who has never had to defend themselves. Even if you win, you lose -- time, probably a goodly amount of money or at least the time-value of that (unless we add more suits for that too).

      You can get money back, but you can't get time back on your life just because someone wasted it. And by your best example, most of the people so afflict
    • by cdrguru (88047)

      There is no "protection for service providers". What there is today is a safe harbor provision that applies only to hosted materials if and only if they are responsive to removal requests for infringing and offending materials. This means that if you put up some child porn on your ISP-hosted web site they are not held responsible as long as it is taken down upon discovery of it. If they don't take it down, they will be held liable under today's laws.

      Absolutely, I agree with you that the right way to hand

    • That's a terrible idea. All you've done is add several middle-men to the equation, but in the end, the subscriber still has to prove that (s)he is innocent. We're supposed to be innocent until proven guilty. While that's obviously not what's happening now, your proposal doesn't do anything to solve the problem, and quite possibly makes it even worse. I see it playing out like this:

      **AA sues ${Random_ISP}. ${Random_ISP} either has the money to fight the suit (thus potentially creating an even higher
  • Don't bother reading the wall of text. Well, the last paragraph is actually decent, but the rest is crap.

    This article shows one of the big things that's wrong with mass media in general: overconfident people with a big mouth (or a high WPM) get to reach a hugely disproportionate number of people, when compared with their ability to relate truth. In a world filled with too much information to process, it's more than just unfortunate to have so much inexpert shit to sort through: it's tragic. Can you imagine

  • So again: Huh? Why is a rental car agency liable for an accident caused by one of its renters? Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable — but not simply if their customer did something reckless over which they had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).
    ...
    "The analogy between an ISP and a rental car agency is inappropriate, because a plaintiff could sue the rental car agency in order to subpoena the identity of the renter that hit them, but a copyright owner could not do the same to an ISP." [Judge Baker's argument.]

    I think this is actually a great analogy because, you see, the rental car company could install cameras and GPS in all of their vehicles to make sure that the people driving their cars were not breaking the law (speeding, texting while driving, driving under the influence,etc) and law enforcement could then subpoena these records anytime they think some rental car driver might have been breaking the law, but since the rental car companies don't do this, they are clearly being negligent (/sarcasm). This is

    • It's a great analogy because ISPs can be people too...

      So again: Huh? Why is a rental car agency liable for an accident caused by one of its renters? Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable — but not simply if their customer did something reckless over which they had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).

      Wheels screeching to a FULL STOP!

      I have 8 computers, house parties, my GF and I work opposite (day/night) shifts, and we have friends over constantly... Additionally, since I need a BIG FAT Pipe, but only occasionally, Each of my two neighbors pitch in with me to buy Internet access -- I give them the WIFI key & screaming fast Wireless N access for cheaper than they can get it from AT&T or Comcast. I have no idea who else they let use our Internet connection!

      Reductio ad absurdum... GO!

      If MY friends or neighbors did something reckless over which I had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).

      DONE
      IP addresses do not represent people, they represent a fucking Internet Connection, YOU DOLT!
      $your_argument =~ s/ISP/ISP Subscriber/; goto TOP: //LOGIC FAILURE.
      Oh, that's right, you're not a coder, you're a Mathematician that has no concept of interpolation (let me introduce you to Grey. It's both black & white).
      Routers exist.

      Foolish fool, now you see the folly of your folly!

  • You can subpoena the owner of a car to find out who the driver was. This happens when you privately own a car, if the car is involved in an accident you will be asked who the driver was. And it happens if you are a rental car company; if the rental car is involved in an accident, they will be asked who the driver was.

    Same with a router. If your router was involved in illegal copying or worse things, you can be asked who was using that router. But... your ISP doesn't own the router. Your ISP doesn't have
  • If you were injured by someone in a rental car and you tried to get their license plate: YOU WOULDN'T GET IT. You would report the incident to the police, who would then subpoena the information and charge the person with something and fine/imprison them. If you wanted damages you would sue the rental agency... win and take their money. THEY would sue the person that they rented the car from. They could chose to give you the name of the person they rented the car to, but they'd be under no requirement to do
  • Next week on Slashdot...

    Lawyers discuss the legal reasons why P=NP.

    It would probably make more sense than this article.

  • by UnknowingFool (672806) on Friday May 06, 2011 @12:33PM (#36048882)

    Judge: The rental analogy is not apt because the rental agency may be a potential defendant.

    Bennett: That’s a logical error because the rental agency isn’t a potential defendant. Though it might be and here’s why.

    Me: An owner of property whether it is a car, home, etc. is potentially a defendant. The owner can however prove to the court why they should not be included. Bennett even describes the reasons why. Isn’t that a logical error by Bennett?

    Judge: An IP address may not identify the individual who infringed as noted in recent events.

    Bennett: Yes, that’s true but that is why we have trials: To determine who is guilty.

    Me: There is a difference between a subpoena and a trial. The judge is not saying the IP address cannot lead to the infringer. Courts have ruled that a subpoena or search warrants must be specific as identify the individual and judge noted in recent cases why an IP address may not be specific enough. Judges do not like to grant blanket subpoenas for fishing expeditions. It is up to the plaintiff to demonstrate to the court why an IP address is specific enough in individual cases, not in general.

    Judge: The subpoena request lists corporations and public institutions as the ISP. This shows a disconnect.

    Bennett: What disconnect? The ability to find the individual is actually better in corporations.

    Me: There is a difference identifying the individual and the actions that are required to pursue based on the owner’s identity. While a corporation or public institution may provide networking to individuals, they are different legally and logically than a true ISP like your cable company. ISPs have Safe Harbor provisions while a corporation does not.

    What the judge is saying is that you may not need a subpoena for a corporation; sue the corporation to get it in discovery. For a public institution, there are probably procedures in place to access the information or the identity may not be known ever. The court is saying there are other avenues to get this information; don’t waste the court’s time with subpoenas since the plaintiff did not clearly think about these issues.

    Judge: The previous history of the plaintiff seems to suggest that they have expedited motions only to settle them quickly en masse.

    Bennett: Isn’t settling cases quickly supposed to be the point of a court?

    Me: The judge is saying that a court is not supposed to be a clearinghouse for processing lawsuits. A court is to be the arbiter when two parties cannot reach a legal settlement. Do not waste the court’s time by suing first then settling quickly.

  • by Todd Knarr (15451) on Friday May 06, 2011 @12:44PM (#36049024) Homepage

    Note that one aspect the judge noted was the lack of jurisdiction. The plaintiff hasn't been able to identify to the court even one defendant who the court has jurisdiction over, and the judge has noted numerous defendants the court definitely does not have direct jurisdiction over (the IP address involved is in a different state from the court, for instance). That changes the landscape pretty seriously, courts have a lot less authority to issue orders when it hasn't been established that they have jurisdiction to issue any orders in the first place.

    Even if you can establish that you've been injured, if you don't know who did it you can't just go into court and have them order everybody in the city to start coughing up information until you find the person who injured you. You have to do the legwork to identify a possible defendant that you can make a plausible claim against, and you have to file in a court that has jurisdiction (if the injury occurred in California, I live in California and the defendant lives in Arizona, I can't file in a Kentucky court because they won't have jurisdiction over any aspect of the case, I'd have to file in either California or Arizona).

  • by hldn (1085833)

    I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty â" but we shouldn't assume that they're innocent, either.

    be more of an idiot please.

  • The arguments presented in this "article" are specious. It is clear that they author does not even understand what the case is about. He freely mixes the ISP's with the john does, suggesting he doesn't understand who is even being sued - which in fact is "nobody".

    Quick review... the case in question is against ISPs as part of a discovery process. The ISP is not charged with anything. They are being asked to provide information about a 3rd party as part of a suit that does not otherwise include them. Under n

  • Did anyone stop to think that perhaps someone from the rental car agency could have actually been the person driving the car at the time of the accident?
    They do pick-up and deliver cars too.
    And just as well, an operator at the ISP could have been the person using the IP address at the time of the incident and it would be the burden of the ISP to prove otherwise!

  • The rental car company owns the car and is, by law, responsible for the car and the insurance on it. If the car is in an accident, the victim sues the rental company, who sues (or their insurance company sues) the client who caused the accident. Possibly the victim sues the client as well. This is completely separate from ISPs, who operate under common-carrier laws. The ISP I use doesn't even own the copper running to my residence. When sued, the rental company will reply with "we were not operating the car
  • Mr. Haselton's points miss the mark because of his misconceptions about the legal system. For example, Mr. Haselton repeatedly states that anybody is a potential defendant. He further states that "For a court to take a plaintiff's case against a given defendant seriously, they just have to believe that there is a reasonable probability of the plaintiff winning." Both of these statements are legally incorrect.

    Both of the above statements highlight Mr. Haselton's ignorance of legal procedure. There isn't

  • First, as others have mentioned, this is supposed to be a summary -- a brief, concise overview. I wasn't aware that /. summaries were intended to be used as blog posts that reference other articles, but perhaps I missed that. Consequently, I read part of the, ahem, "summary", got annoyed and dropped down to the comments.

    Second, Haselton is quite mistaken to say, in essence, "I am not an expert in this field, but if the logic doesn't make sense to me, it doesn't make sense." C'mon,

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