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Piracy Crime Your Rights Online

Filmmakers Ask 'Pirate' to Take Polygraph, Backtrack When He Agrees (torrentfreak.com) 155

The makers of Dallas Buyers Club (a 2014 movie, which won three Academy awards) are going to great lengths to crackdown on BitTorrent pirates. According to a report on piracy news blog TorrentFreak, the filmmakers challenged an accused pirate to submit a polygraph test to prove that he didn't download a copyright infringing copy of their movie. The accused pirate, California resident Michael Amhari, insists that he did not download any pirated copy of the Dallas Buyers Club and agreed to take the polygraph test. Upon hearing this, the filmmakers, who had imposed a $100,000 fine on Amhari, retracted the offer. "When plaintiff's counsel then agreed to take such a test with the proviso that defense costs and attorney fees be covered, plaintiff then refused to pay costs and revoked his offer to conduct a polygraph," said Amhari's counsel Clay Renick. TorrentFreak reports: "After receiving exculpatory evidence and the sworn declaration of defendant, Mr. Davis then refused to file a dismissal and proceeded to demand that defendant appear in the action or he would file a default." The defendant's counsel added: âoeThis behavior is galling and it should not be permitted by the court.â Because of these dubious tactics the court should set aside the default that was entered earlier this month. According to Renick, Dallas Buyer's Club has nothing more than an IP-address to back up their infringement claims, which is not enough to prove guilt.
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Filmmakers Ask 'Pirate' to Take Polygraph, Backtrack When He Agrees

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  • You'll have to google it, but LOL!
  • by RogueWarrior65 ( 678876 ) on Thursday May 19, 2016 @09:06AM (#52141293)

    Busted. So busted.

  • Smart pirate (Score:5, Insightful)

    by Anonymous Coward on Thursday May 19, 2016 @09:17AM (#52141357)

    As a bit of background, polygraphs don't work. They are glorified stress detectors so in some circumstances, they can detect the subject's fear of being caught in a lie. Much more often, they detect the stress of the interrogation with spikes every time the subject is pressed to answer immediately.

    Knowing this, the prosecution thought to use the public misconception that polygraphs are actual "lie detectors" to bully the defendant into reacting in a way that they can use to support their case (probably "if he had nothing to hide, why did he refuse a lie detector?"). Not being a great fool, the defendant chose to accept the offer of a polygraph if the prosecution had something at risk as well. Knowing that the tech is worthless, that their intimidation tactic failed, and faced with the prospect of having to cover the defendant's legal fees, the prosecution retracted the "offer."

    Teal Deer: defendant calls RIAA bluff.
    Supplemental: Has anyone actually heard of this movie?

    • by TheCarp ( 96830 )

      Honestly, the only reason I would EVER agree to a polygraph is if the entire session could be recorded, and I get to walk out with a copy of the tape.... so I can truely cherish telling him to turn his worthless prop on so he can start scamming his pay.

    • I've not heard of the movie, but it won 3 awards, so at the very least, it exists. Probably.
      • by nbauman ( 624611 )

        I liked it because I can use it as an example of how investigational drugs touted as miracle cures don't work, and how the conspiracy theories of the FDA/pharmaceutical industry suppressing useful drugs are all wrong. https://en.wikipedia.org/wiki/... [wikipedia.org]

      • It seems like only two kinds of movies are made these days: "Blockbusters", which are fairly mindless, but usually fun, movies designed to make hundred of millions of dollars, but that the old farts who vote in the academy don't and never will like; and "oscar bait", movies which will get a limited release, have a low budget and may even still actually lose money, but are made specifically to cater to the academy members' pretentious tastes and sense of self-importance.

        Every so often something like the LOT

      • by dwywit ( 1109409 )

        This was the film behind the Australian "fishing" letters case. IIRC, the owners wanted the courts to allow a subpoena of ISP subscribers so they could send letters out to people they suspected/accused of pirating the film, and the court said "show us the letters first". When the judge saw what they were going to put in the letter (along the lines of "you're guilty, you owe us $bignum"), the judge said "no". I think they dropped the case - it didn't proceed, anyway.

    • Alternate possibility: Defendant doesn't know anything about polygraphs, really didn't pirate the movie, so jumped on the offer as a way to "prove" his innocence. And since he "knew" the test was going to prove him innocent, he stipulated that the prosecution would have to pay his expenses so they couldn't do anything slimy like drop the case and leave him stuck with the bill.
    • Re: (Score:3, Informative)

      by tlhIngan ( 30335 )

      As a bit of background, polygraphs don't work. They are glorified stress detectors so in some circumstances, they can detect the subject's fear of being caught in a lie. Much more often, they detect the stress of the interrogation with spikes every time the subject is pressed to answer immediately.

      Polygraphs work. They're just graphing multiple biological signals (heart rate, skin conductivity, breathing, etc), hence the name, "poly" and "graph".

      The real leap in logic is that a polygraph can be used to dete

      • Re:Smart pirate (Score:4, Informative)

        by ooloorie ( 4394035 ) on Thursday May 19, 2016 @12:44PM (#52142709)

        There are lie detectors that DO work quite effectively (fMRIs, for example, are very effective since different areas of the brain are activated and easily detectable).

        fMRI has not been proven to work as a lie detector. [scientificamerican.com]

      • im sure the group can come up with a bunch of ways to defeat a Polygraph "test"

        1 being enough of a Nutbar that you can lie and not twitch
        2 having a chronic pain condition
        3 being Just That Zen
        4 having a serious injury
        5 having somebody in your "Family" talk to the tech beforehand

        what else??

    • by anegg ( 1390659 )

      I think your succinct dismissal of polygraphs is too hasty. Polygraphs work quite well in many circumstances. However, the misconception that they are a "lie detector" confuses a lot of people. They are an interrogation tool, not a lie detection tool. The tool "works" if the objectives of the interrogator are met.

    • by nbauman ( 624611 )

      As a bit of background, polygraphs don't work.

      Polygraph tests have one ability. If suspects can be interrogated without a lawyer present, they could be subject to questions that a lawyer would never permit. They can ask, "Have you ever stolen anything from an employer?" They can ask, "Have you ever watched pirated movies?" They can use the Reid Technique https://en.wikipedia.org/wiki/... [wikipedia.org] to get a false confession.

    • Knowing that the tech is worthless, that their intimidation tactic failed, and faced with the prospect of having to cover the defendant's legal fees, the prosecution retracted the "offer."

      Technically, they didn't retract the offer, having never offered to pay the defendant's costs in the first place. The plaintiff asked the defendant to take a polygraph test. The defendant counter-offered that they would if the plaintiff would cover costs in the event of a negative result. The plaintiff refused the counter-offer. No polygraph test was taken. Nobody "retracted" any offer or backed off on their position.

      • by sjames ( 1099 )

        If the plaintiffs REALLY believed that the polygraph had the ability to discern truth and lie and they REALLY believed the defendant was guilty, why wouldn't they jump on the offer?

    • Watch the "Bullshit" episode where they discuss polygraph use. Basically, the methodology is that, irrespective of what the machines "says", the subject will be told that the machine said he was lying (being "deceptive") and will be invited to confess what the person administering the test already "knows".

      Lots of people confess. That's how the machine works.

  • Translation (Score:5, Insightful)

    by Opportunist ( 166417 ) on Thursday May 19, 2016 @09:36AM (#52141443)

    Filmmaker wanted to scare accused person with Voodoo, accused knows it's bullshit and calls bluff, Filmmaker realizes that someone who calls his Voodoo bluff will not be affected by the curse and rather folds than have the Voodoo fizzle because too many people believe in the Voodoo and would consider the person innocent.

    • by Maritz ( 1829006 )
      Now go do... that voodoo... that YOU do... SO WEEEELLLLLLLL
    • Filmmaker wanted to scare accused person with Voodoo, accused knows it's bullshit and calls bluff, Filmmaker realizes that someone who calls his Voodoo bluff will not be affected by the curse and rather folds than have the Voodoo fizzle because too many people believe in the Voodoo and would consider the person innocent.

      Exactly. I'd bet the plaintiff's attorney, when the defendant took them up on it, said to their client "Don't do it" while pointing out the plaintiff would be on the hook for costs, including conceivably the defendant's own expert witness who would ensure the results were interpreted in the defendant's best interests. Now, the defendant can use their retraction against them; showing why the adage "never bluff unless you are willing to risk having your bluff called" is good advice.

    • The defendant may have cause for a claim of Abuse of Process.
      • The defendant may have cause for a claim of Abuse of Process.

        But has any defendant in this type of case successfully won a case by claiming Abuse of Process, since abusive process is a standard technique in civil trials?

    • Of course I couldn't contact the spirits of the dead, there was an unbeliever nearby.

  • by subanark ( 937286 ) on Thursday May 19, 2016 @09:38AM (#52141461)

    And their results cannot be used as evidence in court. The defendant didn't have much to lose by taking one. The plaintiff should have thought through his fear tactic before using it.

    • by geek ( 5680 ) on Thursday May 19, 2016 @10:15AM (#52141677)

      And their results cannot be used as evidence in court.

      Criminal court. This is a civil case not a criminal one. It's very admissible.

      • Exactly. Seriously, if you want me to take a poly test, plug me in! I have a hunch that I'll be the one demanding it to be permitted as evidence...

        Voodoo only works if the person you want to curse believes in it. It can backfire badly if you have a lot of people standing around who believe in it but the one you want to convict doesn't. Because if the curse doesn't work on your victim, he must be innocent, at least in the eyes of the bystanders who believe in it.

    • by Maritz ( 1829006 )
      I daresay people who drink the polygraph kool-aid are sometimes also the same people that don't think things through.
  • by Anonymous Coward

    "For now, although the idea of a lie detector may be comforting, the most practical advice is to remain skeptical about any conclusion wrung from a polygraph."

    Source: The Truth About Lie Detectors (aka Polygraph Tests) [apa.org]

    • And what they really mean is 'the most practical advice is to dismiss outright any conclusion wrung from a polygraph.'
    • That's a rather mild rejection. I've seen other psychologists out and out call it pseudoscience, with absolutely no basis in fact.

    • by Maritz ( 1829006 )

      the most practical advice is to remain skeptical about any conclusion wrung from a polygraph."

      Gives polygraphs way too much credit. They're about as credible as e-meters. "Oh look, the needle moved. That means you need to give us money."

    • by Salgak1 ( 20136 )

      And then there are the numerous .us Law Enforcement and Intelligence Agencies that utterly believe polygraph exams.

      Makes you wonder about their analysis of other things. . .

  • by FudRucker ( 866063 ) on Thursday May 19, 2016 @09:48AM (#52141531)
    he should counter sue for harassment and any other thing attorneys can dig up
  • Comment removed based on user account deletion
  • by flopsquad ( 3518045 ) on Thursday May 19, 2016 @09:54AM (#52141581)
    TFS paints an intriguing picture, and hooray fighting against copyright trolls and all that.

    But.

    Because of these dubious tactics the court should set aside the default that was entered earlier this month.

    If the court has entered a default judgement [cornell.edu] you have already fucked up big time. Usually by failing to do something the court requires of you (like respond to plaintiff's complaint) in a timely manner.

    And there is no legal mechanism I'm aware of by which a copyright holder can unilaterally "impose a $100,000 fine." They can offer to settle for $100K or threaten litigation. That'd be surprising, as the copyright shakedown MO is to offer settlement for 1-3 orders of magnitude less, in order to induce quick and quiet resolution. Or you can get a default judgment of $100K if you file suit and defendant does something inadvisable like completely ignore it.

    I'm not saying that's what happened here, TFA doesn't give any details on how we got to where we are. We do know that he has an attorney now. And because of how much trouble you can get in for letting your client's case default (your inattention and subsequent harm to your client is actionable malpractice), I would be pretty surprised if he'd had an attorney this entire time and had been otherwise fighting this legal battle by the book, only now to be unfairly blindsided by a default judgment.

    (This is all speculation, I'm not your attorney, this is not legal advice, refer to sig, if you experience an erection lasting more than four hours call your doctor, etc etc you get the point.)

    • by penix1 ( 722987 )

      Or you can get a default judgment of $100K if you file suit and defendant does something inadvisable like completely ignore it.

      There are many ways to get a default judgement one of them being the venue shopping these people do looking for a court that will not only be very favorable to them but that is likely out of the jurisdiction where the defendant lives. If the defendant wasn't served a subpoena, there is no possible way they could have answered it in a timely fashion. And like you say, the story doesn

    • by cdrudge ( 68377 ) on Thursday May 19, 2016 @12:05PM (#52142417) Homepage

      If you read the defense's legal filing [torrentfreak.com], it sounds as if the plaintiff was negotiating with the defense's lawyer for the polygraphy, the defense asked for 14 days and only got 7. When the defense agreed to the polygraph on the condition the plantiff pays for it, plaintiff immediately files for entry of default judgement.

      Plaintiff also is accused of making bad faith verbal promises that they reneged on that they would dismiss the case if he tool the polygraph. That is why further filings weren't made initially as timely as they could have been.

      If you read the whole thing, previous case law would seem like the defendant likely will get the default judgement set aside. Courts rather get things right and hear a case rather than just give the case to one side without good cause.

  • Apart from everything else, it seems the realization is slowly taking hold among the general public that IP =| ID. This is heartening.

  • When did downloading a file become a copyright violation? As I recall, copyright protects against redistribution without permission, which would apply to the uploaders but not the downloaders, no?

    • As I recall, copyright protects against redistribution without permission, which would apply to the uploaders but not the downloaders, no?

      No, copyright restricts your rights to copy, as well as some other things, which include distribution, performance, etc. A lot of people get this wrong.

      When did downloading a file become a copyright violation?

      The relevant law in the US was enacted in 1947, so downloading a copyrighted file without the copyright holder granting the right would have been a copyright violat

      • Re: (Score:2, Informative)

        When did downloading a file become a copyright violation?

        The relevant law in the US was enacted in 1947, so downloading a copyrighted file without the copyright holder granting the right would have been a copyright violation as soon as downloading was invented.

        Well, that's somewhat misleading. In practice, before the internet, it was very rare for corporations (or individual artists/authors/creators) to attempt a copyright lawsuit unless there was proof that the infringer had monetary gain, usually through commercial distribution or something like that.

        Keep in mind that this was only subject to a civil action before 1997, so you'd have to hire a lawyer. And then you'd also have to convince a court that downloading a file (which, by your own argument, was "jus

        • No, it's not misleading at all. You're answering a different question. You're answering "What kind of trouble are you likely to get in for downloading a file?" Sure, that's complicated, and definitively outside my area of expertise, so I'm not going there. I'm answering "is downloading a file (without permission) a copyright violation?" Yes. And unless I misread, you agree.

          I remember seeing a sign when I grew up warning people of a $1,000 fine for littering. That road often had lots of litter. This

          • Actually, you're not answering "Is downloading a file a copyright violation?" Obviously the current answer to that question is yes. But you're trying to answer that question historically as a matter of law when downloading copyrighted materials first started. And as I noted, copyright law has had to evolve to deal with new technology, and in some cases (eg VCR taping of TV broadcasts), it was determined NOT to be a copyright violation. The matter about downloading was unsettled law until the late 1990s a
    • IANAL, but in my understanding downloading *is* a copyright violation - it's just nearly impossible to prosecute. You'd have to sue individuals for one download at a time instead of suing one person for sharing a thousand files. Even if you somehow got the evidence, it becomes much harder to threaten the person into settling if they are facing a few thousand dollar fine versus a few million dollar fine. About the only time you'd actually be sued for "downloading" would be if your Bittorrent client automa

    • by ledow ( 319597 )

      So if you wanted a copy of a book, so long as it wasn't YOU that photocopied it, but you just took a photocopy of the entire book from a pile (whether you pay or not complicates matters, let's assume not but with the permission of the person who photocopied), would you expect to not get into trouble?

      What about if someone copied an artwork without permission and you just happened to buy a copy? Under the law, it's all the same. In art we call it a forgery. Even if you're not the forger, and even though it

      • So if you wanted a copy of a book, so long as it wasn't YOU that photocopied it, but you just took a photocopy of the entire book from a pile (whether you pay or not complicates matters, let's assume not but with the permission of the person who photocopied), would you expect to not get into trouble?

        One can "get in trouble" for just about anything, much of it perfectly legal, but what could they possible charge you with? You didn't do anything to violate anyone's copyright. The one in serious trouble would be whoever who made the copies.

        (If you disagree, please point out the precise U.S. law which would be violated merely by possessing an unauthorized copy.)

        Nobody is "taking" the book from someone who owns it, but they are making unauthorised copies of the works under copyright. That's the actual offence.

        Exactly. Making the copies is the offense, not possessing them.

        As such, downloading a file - WHETHER OR NOT YOU WERE THE SOURCE OF THAT FILE - that you know is a copy of copyright material that's been made without the permission of the copyright holder, is an offence.

        This does not follow from your argument. The uploader made the copy. That is the par

      • by caseih ( 160668 )

        I disagree with you on a few points. Yes fake Nikes and fake cigarettes are destroyed by customs. But this is aimed at profiteering from the import of these counterfeit goods. However if I go on holiday and buy a fake watch, fake Nike shoes, and counterfeit CDs on the street and bring them back with me, customs generally don't seize the goods.

        If someone hands me a photocopied book, whoever made the copy violated the copyright, not me. I have no problem taking the copy and reading it, and even letting a

      • So if you wanted a copy of a book, so long as it wasn't YOU that photocopied it, but you just took a photocopy of the entire book from a pile (whether you pay or not complicates matters, let's assume not but with the permission of the person who photocopied), would you expect to not get into trouble?

        Yes. Exactly. That is precisely how the legal definition of copyright infringement works. Thanks for putting it so simply for the rest of us.

        Incidentally this is also why the courts have gone after people who UPLOAD content.

      • And fake books, movies, music, etc. (i.e. copies of existing works, even if perfect, but made without the permission of the original creator) will be confiscated, destroyed and legislated against.

        That's trademark law, not copyright. But what you have failed to show is that mere possession of the object that was made or imported in violation of trademark law opens you up to liability to the trademark owner. Yes, your "copy" may be destroyed, but only the importer, manufacturer might have to pay damages to

    • When did downloading a file become a copyright violation?

      When they say "downloading", they really mean "uploading". They find IP addresses that are part of a bittorrent swarm and then go after the uploader, but describe it as a downloader.

  • If there was a procedure to determine guilt in which the defendant was required to stand for an hour in a busy, public place with his or her genitals exposed to see whether his or her naughty bits turned bright purple—which incriminates but never exculpates—do you think prosecutors would rush to drop the tactic just because everyone knows the test will demonstrate nothing?

    It's no small feature of the polygraph test that it forces the person being tested to endure a submissive stress position. E

  • I'm legitimately suprised that the studio withdrew its offer on the polygraph test, given that polygraphs are a pseudoscience and that if they hired the right examiner they could easily get a result that the person is lying on every possible count.

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