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The Courts

California Judge Denies Discovery In Bittorrent Case 100

Posted by Unknown Lamer from the open-wifi-defense-in-action dept.
New submitter PhxBeau writes with news of a particularly sane judge in a copyright case. Quoting TorrentFreak: "In yet another mass lawsuit against alleged file-sharers, a California court has said that while it's sympathetic towards the plight of the copyright holder, it will not assist in the identification of BitTorrent users. It's a shame technology that enables infringement has outpaced technology that prevents it, the judge wrote, but added that his court won't work with copyright holders who pursue settlement programs with no intention to litigate." The core issue is that an IP does not identify more than the bill-payer — the good cause standard therefore is not met because the actual infringer is not identified.
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California Judge Denies Discovery In Bittorrent Case More

California Judge Denies Discovery In Bittorrent Case

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  • A Judge with a brain!? A heretic I say!

  • Thank you. (Score:5, Insightful)

    by JustAnotherIdiot ( 1980292 ) on Friday April 06, 2012 @12:59PM (#39599719)

    his court won't work with copyright holders who pursue settlement programs

    And this is how it should be.

    • Re:Thank you. (Score:5, Insightful)

      by Anonymous Coward on Friday April 06, 2012 @01:38PM (#39600245)

      ...with no intention to litigate.

      Do keep in mind that if there is actual intent and effort to prosecute, the judge would cooperate. He is merely stating that these evidence-free shakedowns are not part of his job and he will not waste his time assisting them.

      Better than many possible judgements, maybe it will deter some of the intimidation ploys.

      • Re:Thank you. (Score:4, Interesting)

        by Jane Q. Public ( 1010737 ) on Friday April 06, 2012 @05:47PM (#39602829)

        "Do keep in mind that if there is actual intent and effort to prosecute, the judge would cooperate."

        Very doubtful. If he meant that, he could simply have refused based on the perceived intent of the claimants to settle rather than litigate. Instead, he took the trouble of mentioning that it did not meet the "good cause" standard.

        But the good cause standard applies whether they are litigating or not, so no, he probably would NOT "cooperate".

    • Re: (Score:3)

      by Shagg ( 99693 )

      Which probably means it's going to get overturned. :(

  • Huh? What? (Score:5, Informative)

    by PPH ( 736903 ) on Friday April 06, 2012 @01:10PM (#39599843)

    The core issue is that an IP does not identify more than the bill payer -- the good cause standard therefore is not met because the actual infringer is not identified.

    That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection, then a part of that responsibility would seem to be knowing who is using your connection and when. If the TOS allow you to give connections away to third parties anonymously (like the coffee shop I'm sitting in now does), then I'd agree with the above statement.

    I wish they (the court) would have emphasized the denial based upon the use of the courts as an empty threat and/or means of discovery for the subsequent pursuit of a private settlement. In other words, once you approach the court to do your dirty work, you've got to use them to mediate the settlement*. If you want to settle privately, hire your own detective agency. P>*Which gets you reasonable and uniform penalties and makes settlements a matter of public record.

    • Anyone can write any IP number anywhere (Score:5, Interesting)

      by ODBOL ( 197239 ) on Friday April 06, 2012 @01:18PM (#39599959) Homepage

      An IP number isn't even vaguely comparable to a license number. These IP numbers are taken from IP packets that could be written by anyone, anywhere. They are comparable to addresses on envelopes in the US Mail, except that there's no handwriting to analyze and no authoritative cancellation mark to identify the general location.

      Anyone can write any IP number in the sender field on any IP packet and send it to any other IP number.

      Even if you establish that a particular ISP has assigned a particular IP number for routing packets to a particular customer, you have no evidence that a packet marked with that IP number has anything to do with that customer, unless you can get much more stringent information from router logs and/or content that only that customer could have produced. I've never heard of any such evidence being presented.

      • In case I wasn't explicit enough: an IP number may be intended to indicate a particular "bill payer," but the presence of a particular "bill payer's" IP number on a packet is not evidence that the "bill payer" was in any way, directly or indirectly, associated with the creation of that packet.

        And it's not clear at all from the reports whether the IP numbers in question were taken from packets supposed to have originated from that address, or from packets sent to that address. In the latter case, this is jus

      • Anyone can write any IP number in the sender field on any IP packet and send it to any other IP number.

        Yeah, but you can't do any file sharing unless packets get sent back to you. Simply writing a fake IP address on a packet and sending it out won't accomplish anything. In fact, to even establish a TCP connection there has to be return packets. (The so-called three-way handshake: SYN, ACK/SYN, ACK). UDP doesn't require a return path, but again, using it to participate in file sharing would.

        All that said, I do agree that an IP address is not enough to identify a user. Depending on the security settings o

        • Re: (Score:2)

          by ODBOL ( 197239 )

          The writer of a false IP number doesn't need to be performing any file sharing. In fact, whatever anyone thinks or doesn't think, it is very easy to put any IP number on any packet and send it anywhere. I am expressing definite knowledge here, not idle opinion.

          The plaintiffs may have evidence of actual participation in actual sharing of actual material for which they hold copyright and have not authorized sharing. But nothing in the article indicates what that evidence is.

          The court appears to have accepted

        • "Customers are usually assigned an IP address based on the MAC address of their cable/DSL modem, and packets destined for a different IP address generally won't be routed there. So I don't think it's as easy as you've described above."

          Not even close. First, there aren't anywhere near enough IPv4 numbers to go around, especially today, and second, ISPs generally obtain their IP numbers in blocks, which would preclude handing them out them based on MAC address. Unless by "based on" you simply mean associating the two numbers in their IP tables. But the numbers themselves aren't even remotely similar in most cases.

      • You have taken the analogy way to far. On the internet you need packets to come back to your machine. If the sender field is wrong that does not happen and you can't get a connection. Basically is not that easy to spoof ip numbers outside a syn flood or the like.

        • Re: (Score:2)

          by ODBOL ( 197239 )

          You have taken the analogy way to far.

          What analogy? I don't think I used one. I argued against the license plate analogy.

          On the internet you need packets to come back to your machine.

          Depends on what you're doing. And, your needs may not be met. You seem to be arguing that it is unlikely that someone would want to put in my IP number on a packet sent to a file sharing service. That's probably right. But that doesn't make the presence of my IP number evidence that I put it there. Positive evidence that I am violating copyright shouldn't depend on assumptions about the intentions and competence of all other

    • Re:Huh? What? (Score:5, Informative)

      by Anonymous Coward on Friday April 06, 2012 @01:25PM (#39600063)

      I wish they (the court) would have emphasized the denial based upon the use of the courts as an empty threat and/or means of discovery for the subsequent pursuit of a private settlement. In other words, once you approach the court to do your dirty work, you've got to use them to mediate the settlement*. If you want to settle privately, hire your own detective agency. P>*Which gets you reasonable and uniform penalties and makes settlements a matter of public record.

      Well, the judge did exactly that in a surprisingly explicit way. From the article:

      “The court recognizes that plaintiff is aggrieved by the apparent infringement and is sympathetic toward its argument that lawsuits like this one are the only way for it to find and stop infringers. However, the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net).

      “Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting ‘settlement’ payments from persons who may or may not be infringers. This the court is not willing to do,” Judge Lloyd concludes.

    • Which part of

      "...court won't work with copyright holders who pursue settlement programs."

      doesn't make that expressly clear?

      • Re: (Score:3)

        by bws111 ( 1216812 )

        The part that you left out: "with no intention to litigate". In other words, if you just want the court to order the ISP to hand over a list of names so you can shake them down, forget it. If however, you actually intend to SUE the people who don't settle, then the court will get involved.

        • Good catch.

        • Not such a "good catch". The judge also made clear that the "good cause" standard is not met, which applies regardless of whether they intend to litigate. So even if he had been sympathetic about the "no intent to litigate" bit, he still would probably not have allowed discovery.

    • The core issue is that an IP does not identify more than the bill payer -- the good cause standard therefore is not met because the actual infringer is not identified.

      That would depend on the terms of service.

      No, it doesn't have to do with any ToS: the courts decide liability, not private companies. Why would you think otherwise? Including language that 'the subscriber is solely responsible ...' or that 'sharing connections is forbidden', are only rules made by companies. They aren't laws, and they don't guarantee anything about how a subscription is used.

    • Re: (Score:3)

      by dbet ( 1607261 )

      That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection, then a part of that responsibility would seem to be knowing who is using your connection and when.

      The TOS with your provider have little to do with any legal liability you have when people use your connection. For example, if I signed a TOS with Hertz saying that no one else would drive the car I'm renting, but someone does, and uses it to mow down a pack of children, that contract with Hertz doesn't make me guilty of murder.

      • No but unless you can prove that you did not voluntarily provide your car you can be charged with "aiding and abetting" and or Conspiracy to Commit %CRIME% so you still go to Club Fed anyway.

        • Re: (Score:2)

          by Shagg ( 99693 )

          No but unless you can prove that you did not voluntarily provide your car

          You have that backwards, at least in theory.

        • The burden of proof would be on the state not the other way around.

      • Re: (Score:2)

        by PPH ( 736903 )

        Criminally, no. Civilly, perhaps. The kids' parents could probably sue and go after your liability insurance and other assets.

      • Depends on how they got the car.

        If you loaned it to them knowing what they had planned you might be charged as an accessory to the murder.

        Even if you avoid criminal liability, you might be on the hook for damages if you negligently allowed them access.

    • That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection..

      It's not the broadband provider who is asking for taxpayer-subsidized resources and government power to identify people. It's someone else.

      How could terms of service (agreement between you and your ISP) possibly have any bearing on who is liable to a third party when your ISP connection is used for something? If you had metered service and I used your wifi to run u

    • Re: (Score:2)

      by v1 ( 525388 )

      That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection, then a part of that responsibility would seem to be knowing who is using your connection and when.

      Who your ISP holds responsible, and who the COURT holds legally responsible don't necessarily have anything in common. That TOS is just defraying their responsibility in the matter.

      This is like a lady telling the officer that the purse snatcher ran into "that apartment bui

      • Re: (Score:2)

        by PPH ( 736903 )

        Not apartment building, rental house.

        Sure, if the guy ran into the apartment building, the police can't narrow that down to one unit. But if you rent a house (subscribe to broadband service) with no provision to sublet (TOS doesn't allow you to provide public access) then its the equivalent of your having left the door of your rental house open. The cops have every right to pursue the purse snatcher through the front door. And search the house.

        And the police can confiscate nuisance property under certain

  • It was only a matter of time until a judge became too fed up with these fishing expeditions.

    • Re: (Score:3)

      by Rich0 ( 548339 )

      Yup, and only a matter of time before the RIAA finds another judge who isn't fed up with them...

      They only need one order from any judge in the entire country to get their subpoena. Then they can get the list from the ISPs. At that point, what happens is moot, because they have the data, which is all that they were looking for. They just dismiss the case.

      • Re: (Score:2)

        by Shagg ( 99693 )

        Yup, and only a matter of time before the RIAA finds another judge who isn't fed up with them...

        Or buys one.

  • Youre missing the point. (Score:5, Insightful)

    by metalmaster ( 1005171 ) on Friday April 06, 2012 @01:24PM (#39600039)
    I think the naysayers here are emphasizing the wrong point. According to the summary(cause no one RTFA) This judge wont assist the copyright holders who insist on settlement programs. These guys arent going after Joe Schmoe. They're stuffing mailboxes in Everytown, USA and hoping scared people just settle. Its a racket

  • I know of these actual cases where the Internet access of someone was used by someone else without permission.

    1) Stolen Wifi, either unprotected or hacked.
    2) Multiple family members, one connection. Who downloaded what?
    3) Stolen wired access: An unauthorized cable was plugged into a switch, giving the thief connectivity.
    4) Unauthorized access point: A rogue access point was installed and hidden so the thief could connect from nearby without the need for an actual cable.
    5) Variations of 3 and 4 where the evi

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