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Piracy The Courts

Comcast Allegedly Confirms That Prenda Planted Porn Torrents 175

Posted by Unknown Lamer
from the copyright-lawyer-doesn't-know-copyright dept.
lightbox32 writes "Porn-trolling operation Prenda Law sued thousands for illegally downloading porn files over BitTorrent. Now, a new document from Comcast appears to confirm suspicions that it was actually Prenda mastermind John Steele who uploaded those files. The allegations about uploading porn to The Pirate Bay to create a 'honeypot' to lure downloaders first became public in June, when an expert report filed by Delvan Neville was filed in a Florida case. The allegations gained steam when The Pirate Bay dug through its own backup tapes to find more evidence linking John Steele to an account called sharkmp4." The problem for Prenda being that initiating the torrent would give anyone who grabbed it an implied license.
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Comcast Allegedly Confirms That Prenda Planted Porn Torrents

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  • Next step (Score:5, Interesting)

    by mwvdlee (775178) on Tuesday August 20, 2013 @03:14AM (#44615455) Homepage

    The only thing that would make this any juicier now is if Prenda itself didn't have the rights to distribute that porn.

    • So the copyright infringement may still exist, but it is Steele who did that, willfully, with malice. I wonder what that would earn him.

    • Re: (Score:3, Informative)

      by Anonymous Coward

      The only thing that would make this any juicier now is if Prenda itself didn't have the rights to distribute that porn.

      Well, they forged copyright assignments with an "Alan Cooper" signature, they negotiated some licenses just for going after copyright violations but not distributing content, and they approached several copyright holders only after the violations started.

      So there's all the juice you want in there.

      • The only thing that would make this any juicier now is if Prenda itself didn't have the rights to distribute that porn.

        Well, they forged copyright assignments with an "Alan Cooper" signature, they negotiated some licenses just for going after copyright violations but not distributing content, and they approached several copyright holders only after the violations started.

        So there's all the juice you want in there.

        Some people just aren't cut out to be supercrooks. Stick to shoplifting candy, Steele.

    • Re: (Score:3, Funny)

      by ragefan (267937)
      What is this world coming to when a porn company is not completely on the up-and-up?
      • by egamma (572162)

        What is this world coming to when a porn company is not completely on the up-and-up?

        Actually, they are a law firm that purchased the rights to the films from a porn company, and then "gifted" the copyright to a random guy that the owner of the law firm knew; their business model was to sue those who were sharing the film illegally. But giving the film away for free get the downloaders off the hook, IANAL.

    • Re:Next step (Score:5, Insightful)

      by ArsonSmith (13997) on Tuesday August 20, 2013 @10:23AM (#44618065) Journal

      Why do I find this the scariest part of the summery:

      "The allegations gained steam when The Pirate Bay dug through its own backup tapes to find more evidence linking John Steele to an account called sharkmp4.""

  • no (Score:4, Insightful)

    by phantomfive (622387) on Tuesday August 20, 2013 @03:20AM (#44615483) Journal

    ." The problem for Prenda being that initiating the torrent would give anyone who grabbed it an implied license.

    Good luck using that idea in court.......

    • by Camael (1048726) on Tuesday August 20, 2013 @04:59AM (#44615841)

      You can find a copy of the actual Comcast letter here [torrentfreak.com].

      For background :-

      In June, Prenda and its boss John Steele were accused of running a “honeypot” based on an expert report authored by Delvan Neville, whose company specializes in monitoring BitTorrent users.

      The report hinted that the law firm was seeding the very files they claimed to protect, and found that many of the torrents detailed in Prenda lawsuits originate from a user on The Pirate Bay called ‘Sharkmp4.

      In an effort to expose the alleged honeypot, The Pirate Bay then jumped in and revealed the IP-addresses that ‘Sharkmp4used to upload the torrent files.

      One of the subpoenas covered the Comcast IP-address 75.72.88.156 used by “Sharkmp4,” as can be seen at the bottom of the list of Pirate Bay IPs shown above.

      After a few weeks Comcast returned the subscriber details that matched the IP-address at the time the files were uploaded. As can be seen from their response detailed below, this IP is indeed the Comcast account of Steele Hansmeier PLLC, which is directly connected to Prenda Law.

      It's ironic that the method copyright trolls like to abuse, namely linking IP addresses to alleged infringers is now being used against them in this case.

      As for your "good luck" comment, the same point was raised in the Viacom International Inc. v. YouTube, Inc. [wikipedia.org] lawsuit. Specifically, Google claimed [blogspot.com] that:-

      For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

      Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

      Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site.

      Although summary judgment was granted to Google on other grounds, I'd say this argument has at least a fair chance of success.

       

      • by quantaman (517394) on Tuesday August 20, 2013 @05:28AM (#44615915)

        For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

        Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

        Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site.

        Although summary judgment was granted to Google on other grounds, I'd say this argument has at least a fair chance of success.

        I'm not sure the Viacom situation applies. Legally Viacom would have been well within its rights to upload a clip, then demand YouTube take down an identical clip uploaded by a user, it's their content. The argument Google made is that Viacom made it unclear when it was uploading clips, even a take down request could turn out to be targeting legit content, making it impossible for YouTube to ensure only authorized content remained.

        I think the difference is the people sharing the files never had any expectation that the uploaded Prenda content was legit, so they weren't in the same dilemma as Google. Of course that doesn't mean a judge will be ok with the honeypot idea.

        • by jopsen (885607) <jopsen@gmail.com> on Tuesday August 20, 2013 @05:59AM (#44616019) Homepage

          I'm not sure the Viacom situation applies. Legally Viacom would have been well within its rights to upload a clip, then demand YouTube take down an identical clip uploaded by a user, it's their content.

          When you hit the upload button, you also agree to some terms... Google give you the ability to login with the user that uploaded the video and remove it.
          But if you file a DMCA take-down notice, and/or sue over it, that's probably abuse of the legal system. Considering that the upload terms explicitly grants Google a license to the work (probably an irrevocable licence).

        • by Camael (1048726) on Tuesday August 20, 2013 @06:30AM (#44616101)

          I'm not sure the Viacom situation applies. ...I think the difference is the people sharing the files never had any expectation that the uploaded Prenda content was legit, so they weren't in the same dilemma as Google.

          Technically I have to agree with you that the Viacom case doesn't set any precedent insofar as issues of licence/entrapment are concerned. Google argued for (and successfully obtained) a ruling that it qualified under the safe harbour provisions, so the issue of whether or not Viacom had licensed their content impliedly by uploading it themselves or through their representatives never came into question.

          As for the reasonable expectation point, I'm not sure that is even a requirement in law at all, and can lead to absurdities if it is. For example, when a copyright owner puts up a file on torrent knowing it will be downloaded, if the downloading is deemed a civil cause of action or a criminal offence, aren't they then abetting the same? When a copyright owner puts up a file on torrent knowing it will be downloaded, isn't that an offer to the world at large to download the file? Or maybe to draw a simpler analogy, if you offer me something and I take it, can you then turn around and accuse me of theft? Things may not be as clear cut as it seems at first glance.

          • by Artifakt (700173)

            Or maybe to draw a simpler analogy, if you offer me something and I take it, can you then turn around and accuse me of theft?

            Sssshhh - the people who post here claiming copyright violation is really theft won't want this type of copyright violation considered in that same light. CV must stay so uberthefty that it's still theft even with permission, or somebody might have to wrap their minds around the concept that whatever violation is, it's different from theft.

          • There is absolutely no way this is entrapment. You can give up on any defense based on that, no one forced you to download the stuff.
        • by b4dc0d3r (1268512)

          IIRC, prenda got companies to assign copyright si they could prosecute.
          There was another newspaper scheme that failed because they did not act on behalf of any copyright owner. Prenda took that failure, plugged the hole, and thought it could print money.
          If the fucktard who editorialized meant this, he could have posted some reference. I think it was intentional trolling for page loads, myself.

        • But your own quotes show that in both situations the content was made to look illegitimate. In both situations, all the users had no expectation of legitimacy.
          The Pirate Bay was in a similar situation to Google. And there users of one were in the same situation as the users of the other, except in the google case they seem to have done a far better job of hiding the legitimate nature.

      • One of the pieces of information in the Comcast letter is a MAC address. If you could link that address to hardware owned or leased by Prenda Law, you would really have a "smoking gun". I don't know if it is from a cable modem, but you should be very easily be able to identify the manufacturer based on the first three octets (It's been several years since I had my networking class, so my memory could be faulty)

      • In an effort to expose the alleged honeypot, The Pirate Bay then jumped in and revealed the IP-addresses that ‘Sharkmp4' used to upload the torrent files.

        Am I the only person that is concerned and surprised a bit about this? TPB disclosing upload IP addresses?!

        I am also surprised that Prenda didn't make some effort to hide the IP.

        • You're right. The fact that TPB has records of IP addresses it can go back to is disturbing all by itself. Let alone actually using that capability to 'out' someone - regardless of if they are the enemy or not.

    • Re:no (Score:4, Interesting)

      by Solandri (704621) on Tuesday August 20, 2013 @05:27AM (#44615911)

      ." The problem for Prenda being that initiating the torrent would give anyone who grabbed it an implied license.

      Good luck using that idea in court.......

      The reasoning seems pretty sound to me:

      If Prenda did not have the right to distribute the media, then you could make a fairly convincing argument that those who took part in the torrent cannot be fined more than the copyright owners choose to fine Prenda for committing the exact same crime.

      If Prenda had the right to distribute the media and chose to distribute it via bittorrent where they knew people would grab a copy for free, then they were implicitly giving away the media for free and anyone who participated in the torrent did not infringe the copyright. If I stand on a street corner and hand out copies of my book, I cannot then turn around and sue anyone who takes a copy for theft. It's only when someone I did not authorize stands on a street corner handing out copies of my book that I can sue him (and the recipients if they knew the book giveaway wasn't legal) for theft.

      The only way I can see this going in Prenda's favor is if the court decides that if you willingly give away your stuff to people who believe it's stolen, then they can be sued for theft. But that makes no sense because you'd be suing people for theft when no stealing occurred, even if the people believed they were stealing. If the speed limit is 55 mph, and I think the speed limit is 45 mph and go 55 mph, a cop can't write me a ticket for breaking the speed limit.

      • Re: no (Score:3, Informative)

        by ted leaf (2960563)
        here in the uk you can be prosecuted for buying legit gear if you believe it to be stolen. also for buying what you believe are drugs even if its sugar or flour.
        • Just another example of how fucked up English law is.
          • by N0Man74 (1620447)

            here in the uk you can be prosecuted for buying legit gear if you believe it to be stolen. also for buying what you believe are drugs even if its sugar or flour.

            Just another example of how fucked up English law is.

            Hate to break it to you, but I'm pretty sure that is true in the U.S. I have heard people being prosecuted for thinking they are buying drugs when they aren't, just like you can be prosecuted for selling illegal drugs when you knowingly misrepresent that sugar or flour as drugs.

            Or... you can be prosecuted for soliciting, when it's an undercover cop who obviously isn't really going to do anything with you.

        • by rijrunner (263757)

          The only thing you about torrent you need to consider is that there is no inherent billing mechanism. Anything made available is available without restriction.

          There is no connection between items in torrent and their legality. They can be any file. Used a lot for stolen materials, but also legal distributions. Here in the US, you can not be prosecuted for theft unless a theft occurs. This is a civil matter, not a criminal one. If the rights holder distributed solely in this channel, then they made it availa

      • by Nyder (754090)

        ... If I stand on a street corner and hand out copies of my book, I cannot then turn around and sue anyone who takes a copy for theft. It's only when someone I did not authorize stands on a street corner handing out copies of my book that I can sue him (and the recipients if they knew the book giveaway wasn't legal) for theft...

        You talking books (physical objects) or you talking ebooks? Because, unless the person walked into your home/office/warehouse and stole a case of books, he's can give away your book all he wants.

        Now if you are talking ebooks, that he is giving away digital copies of your book away on street corner (as CD's, or Flashdrives?) then ya, he probably is doing something bad.

        Here's the thing about your example. I have seen people give away books, and pamphlets on street corners, but I have NEVER, and I mean

      • ... If I stand on a street corner and hand out copies of my book, I cannot then turn around and sue anyone who takes a copy for theft. It's only when someone I did not authorize stands on a street corner handing out copies of my book that I can sue him (and the recipients if they knew the book giveaway wasn't legal) for theft...

        Actually - anyone can buy copies of your book and hand them out for free whether or not you authorize the distribution. Copyright gives a creator a fair bit of power over the work, but publishing (and printing) gives implied rights with the initial sale of the object and you only retain some of the remaining rights (i.e. limited quotation without license, performance, etc... but you give up control over the printed object including who reads it and how often). Heck, someone can even leave them in a publi

      • If Prenda did not have the right to distribute the media, then you could make a fairly convincing argument that those who took part in the torrent cannot be fined more than the copyright owners choose to fine Prenda for committing the exact same crime.

        This sort of argument doesn't work very well in court......

    • Prenda voluntarily chose to use bittorrent as a method of distribution. This means that they themselves approved of the method and the inherited consequences of distributing content via bittorrent. Not only that, but they made the content easy to find, by posting on well known file sharing websites like TPB. By all means, they wanted people to download this, without even giving them a proper payment method, let alone telling them that the content was copyrighted before they downloaded or simply forbidding d

      • by omnichad (1198475)

        Right - if they posted a comment on TPB that said "For Authorized users only - copyrighted material" then they could go after anyone who downloads it. But that would be an outright reveal of the honeypot for all but the dumbest users.

      • and later on was claiming that people didn't pay for it and they were committing a crime for a going to a prostitute, I doubt any judge would have to think long about who's guilty here.

        Generally both of them are guilty

    • by jonbryce (703250)

      The fact that you obtained the file from the copyright holder is a good defence in court. The copyright holder is the one who decides on what terms you can have it. If they give it away for free, who are you to question it?

    • The whole idea about "illegal" filesharing is that if I set up a torrent and you download, I am guilty of infringement because I made it available.

      Therefor, if you setup a torrent will material, you CANNOT then claim that those who download it of you, are downloading it illegally from YOU. It is a simple thing called common sense, you can't claim mutually exclusive things to be true.

      Either a torrent creator is responsible for making a download available or he isn't.

      And smart people then phantomfive HAVE

    • That is how it works. When the owner of a copyright says, here take this. That gives me the right to take it.
      When the owner of copyright uploads a video to YouTube, I cannot be considered breaking the law to watch it.

  • Gosh, I can get my mind to "allegedly confirms" or "confirms allegations", but this is a new low: "we allege that the Comcast document confirms the allegations John Steele uploaded honeypots".

    Slow news day [slashdot.org]?

    • by Chrisq (894406)

      Gosh, I can get my mind to "allegedly confirms" or "confirms allegations", but this is a new low: "we allege that the Comcast document confirms the allegations John Steele uploaded honeypots".

      Slow news day [slashdot.org]?

      You mean allegedly its the new low.

  • by Todd Knarr (15451)

    It doesn't quite work that way. Whether the copyright holder uploaded it or not is in and of itself a minor point. The question would be whether the downloader knew or reasonably would have known that the copyright holder had uploaded it and intended to distribute it. It's perfectly legal for the copyright holder to lay a trap for infringers, and the fact that it's the copyright holder laying it won't get the infringer a pass on the infringement. The only defense you might have is a claim that the copyright

    • by Tyr07 (2300912) on Tuesday August 20, 2013 @03:49AM (#44615557)

      You may not understand how a torrent works.

      In order to "upload the files" there is no passively seeing who downloads them.
      Downloading a .torrent file itself isn't illegal.

      The torrent file links you to someone who has the files in question, and that person actively uploads them to you.

      So what has happened is the copyright holder posted a link to their files on one of their computers, and actively uploaded the files to several users, who in turn uploaded them to more users.

      Prenda directly uploaded their copyrighted material to users who requested it. This is not a passive function.
      This would be the same if you walked into a store, and the owner pulled a book off the shelf, walked out side and handed it to a stranger.
      Said nothing, and walked back inside. Then phoned the police and said you didn't have permission to have that book from their store.

      Prenda, should they have done this, circumvented all password and user functions to protect their content, and uploaded it freely to those who requested it.
      It would be like if you fell on a webpage looking for content, and it started playing in the video box, then they sued you for not signing in / paying for their content.

      • by Kjella (173770)

        While all of that is true downloading a file doesn't grant you any distribution rights to that file, unlike YouTube where you claim to grant them rights to put it on their site. So Prenda Law could seed the torrent, then start a client to downloads bits and pieces from others and sue them for illegal distribution. It would be against the law, but Prenda Law would fall to the "unclean hands" doctrine because they were actively working to cause the infringement. Consider it a bit like your neighbor having a c

        • by Tyr07 (2300912)
          I don't think your analogy is quite right for the gas fire one.

          By uploading the actual bit torrent file, that is your permission file. People are unable to download the torrent without that torrent file.
          So when you uploaded that file linking it your files, you permitted the connection to download files.

          Given the nature of the torrent protocol, you cannot say that I used bittorrent for the purpose of a direct download to users who
          directly connected to me only without understanding that during the pr
    • by Raenex (947668)

      Unless you can cite some case law you're just whistling Dixie.

      • by Andy_R (114137)

        Cciting case law about this is pretty easy, provided you know the US legal term for it is "equitable estoppel".

        • by Raenex (947668)

          Which applied to this case would go against the uploaders, contrary to the claims of the person I responded to.

    • It doesn't quite work that way. Whether the copyright holder uploaded it or not is in and of itself a minor point. The question would be whether the downloader knew or reasonably would have known that the copyright holder had uploaded it and intended to distribute it. It's perfectly legal for the copyright holder to lay a trap for infringers, and the fact that it's the copyright holder laying it won't get the infringer a pass on the infringement.

      Let's use an analogy with physical DVDs/Blurays.

      Imagine you sell video discs, and someone comes up to you offering you a bunch of pirated Disney cartoons at a dollar a disc, and they look convincingly genuine. You take the risk. A year later you find yourself in court, and you discover the man that sold you them was from Disney, operating specifically to catch you. At this point, the case would fall apart. Those copies were supplied by disney for redistribution -- there is no crime.

      This case would be no di

      • by Todd Knarr (15451)

        Their case might or might not fall apart, but it wouldn't turn on whether the guy who sold you the discs worked for Disney. It'd turn on how he represented the discs and how reasonable your belief (or lack thereof) that he was a legitimate wholesale distributor was. If he claimed to you that the discs were legitimate and you could prove it (say by having a signed statement from him that he was distributing discs under an agreement with Disney to distribute them), the fact that he did work for Disney and cou

        • by black3d (1648913)

          I believe your assessment of the determining factor to be wrong. Presumably, he was doing so under the purview of his employment - that being, he was sent out to sell them. Thus, he's authorized to distribute them. No matter what you thought about their legitimacy, if you can prove that his distribution to you was an authorized distribution, then you haven't fallen foul of copyright law. Furthermore, first sale doctrine applies here, and you could sell those same discs to other people (you just couldn't mak

        • by omnichad (1198475)

          You can't be prosecuted for doing something that isn't actually illegal - even if it looked so. But even still, in court you could just say that you knew he worked for Disney all along and what can they really say against you?

    • It's perfectly legal for the copyright holder to lay a trap for infringers, and the fact that it's the copyright holder laying it won't get the infringer a pass on the infringement.

      I too, would like a citation for this.

      I've already done the obligatory Google searches, etc and can find nothing to support your view. The only remotely relevant case is the old MediaDefender [wikipedia.org] and that was never litigated (or even got off the ground, for that matter).

      The concept of Entrapment [wikipedia.org], although strictly speaking is limited to criminal liability appears to be somewhat relevant as well.

  • by arthurh3535 (447288) on Tuesday August 20, 2013 @04:37AM (#44615763)

    They settled so fast out of court is was not even slightly funny.

    Marvel essentially tried to sue City of Heroes out of existence because of its character creator. Then their lawyers decided to get cute and made their own characters with Marvel's IP. (I think it was Hulk, Captain America and a couple others).

    The City of Heroes creators proved this and Marvel suddenly settled out of court in a sealed contract.

  • ...sounds like a 'Charlie's Angels' episode.

  • And criminal lawyers are definitely not that rare. Not the first case either, in Germany, a Lawyer called "Sozius" (partner of the self-terminated Lawyer "von Gravenreuth", that made a ton of money pretending to be a helpless girl looking for pirated software), was convicted a while ago because he was one of a gang running a subscription platform for the download of pirated movies.

    Well, I hope this person has all the bad stuff happening to him that he deserves.

  • by tekrat (242117) on Tuesday August 20, 2013 @09:37AM (#44617487) Homepage Journal

    Honeypots should be illegal.

    If I am a band and I decide to distribute my music free to anyone that wants it, it's still copyright "my band", but apparently free to distribute. I've given users on the internet an implied license to download and use.

    I cannot turn around later and start suing people who downloaded my music.

    So, if you are the copyright holder of a porn movie and you set up a honeypot to sue people, your act of uploading the movie creates an implied license for others to download and use.

    Therefore you should NOT be able to sue. It seems to me that copyright holders want it both ways; to be able to freely distribute and freely sue anyone they want, whenever they want.

    But the real irony is that; once it's on the internet, the NSA has a copy, and good luck trying to sue those guys...

    • what makes you think that the NSA does not have it just off of your local area network?

    • by Artifakt (700173)

      What's spookier is, by your argument, the NSA presumably already has all the good porn.

    • by Todd Knarr (15451)

      By that, then, I could just start duplicating books or photographs or artwork and selling those copies and I couldn't be touched for copyright infringement. After all, the copyright holders put them out there where they could be duplicated.

      But it doesn't work that way. It's not the putting it out there that allows copying. It's the granting of a license that allows copying. If I publish a book, I may put physical copies out there where they can be copied but I have not granted every reader a license to copy

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