US Court Shields Internet Subscribers From Futile Piracy Complaints 48
A New Jersey district court has issued a devastating order against Strike 3 Holdings, the most active filer of piracy lawsuits in the US. In four separate cases, the court denied a request to obtain identities of alleged BitTorrent pirates. The court argues that the underlying complaints are futile. Even if they held up, other issues such as the privacy of the accused and Strike 3's failure to use other enforcement tools, would warrant a denial. TorrentFreak reports: Last week, New Jersey District Court Magistrate Judge Joel Schneider denied Strike 3 expedited discovery in four cases. This means that it's not allowed to subpoena ISPs for the personal details of account holders whose IP-addresses were used to share pirated videos via BitTorrent. In a very detailed 47-page opinion, the Judge takes apart various aspects of Strike 3's enforcement efforts. He makes it clear that these cases should not be allowed to go forward, as the complaints are futile. "The most fundamental basis of the Court's decision is its conclusion that, as pleaded, Strike 3's complaints are futile. The Court denies Strike 3 the right to bootstrap discovery based on a complaint that does not pass muster," Judge Schneider writes.
The futility lies in the fact that the complaints themselves include very few facts. The only thing that the company really knows is that an IP address is associated with downloading copyrighted works. Strike 3 doesn't know whether the subscriber is involved in the actual infringements. Courts have previously ruled both in favor and against allowing discovery to expose the account holders in these situations, but the New Jersey Court clearly sides with the latter. "The Court sided with the cases that hold it is not sufficient to merely allege in a pleading that the defendant is a subscriber of an IP address traced to infringing activity. Consequently, the Court will not authorize Strike 3 to take discovery premised on a futile John Doe complaint." The decision is partly based on the aforementioned "Cobbler" ruling of the Ninth Circuit Court of Appeals. However, the Court makes it clear that even if there was a properly pleaded infringement claim, the requests for expedited discovery would still be denied. In the opinion, Judge Schneider sums up the other issues as follows:
(1) Strike 3 bases its complaints on unequivocal affirmative representations of alleged facts that it does not know to be true.
(2) Strike 3's subpoenas are misleading and create too great of an opportunity for misidentification.
(3) The linchpin of Strike 3's good cause argument, that expedited discovery is the only way to stop infringement of its works, is wrong.
(4) Strike 3 has other available means to stop infringement besides suing
individual subscribers in thousands of John Doe complaints.
(5) The deterrent effect of Strike 3's lawsuits is questionable.
(6) Substantial prejudice may inure to subscribers who are misidentified.
(7) Strike 3 underestimates the substantial interest subscribers have in the constitutionally protected privacy of their subscription information.
The futility lies in the fact that the complaints themselves include very few facts. The only thing that the company really knows is that an IP address is associated with downloading copyrighted works. Strike 3 doesn't know whether the subscriber is involved in the actual infringements. Courts have previously ruled both in favor and against allowing discovery to expose the account holders in these situations, but the New Jersey Court clearly sides with the latter. "The Court sided with the cases that hold it is not sufficient to merely allege in a pleading that the defendant is a subscriber of an IP address traced to infringing activity. Consequently, the Court will not authorize Strike 3 to take discovery premised on a futile John Doe complaint." The decision is partly based on the aforementioned "Cobbler" ruling of the Ninth Circuit Court of Appeals. However, the Court makes it clear that even if there was a properly pleaded infringement claim, the requests for expedited discovery would still be denied. In the opinion, Judge Schneider sums up the other issues as follows:
(1) Strike 3 bases its complaints on unequivocal affirmative representations of alleged facts that it does not know to be true.
(2) Strike 3's subpoenas are misleading and create too great of an opportunity for misidentification.
(3) The linchpin of Strike 3's good cause argument, that expedited discovery is the only way to stop infringement of its works, is wrong.
(4) Strike 3 has other available means to stop infringement besides suing
individual subscribers in thousands of John Doe complaints.
(5) The deterrent effect of Strike 3's lawsuits is questionable.
(6) Substantial prejudice may inure to subscribers who are misidentified.
(7) Strike 3 underestimates the substantial interest subscribers have in the constitutionally protected privacy of their subscription information.
Whac-a-Mole still going on? (Score:2)
There are so many dead P2P piracy solutions that have come and go, so this law firm's clients are fishing in a no-longer-stocked pool.
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But now it becomes harder for me and my associates to spoof our enemies' IP in order to get them "in trouble" with their ISP, and eventually kicked.
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In the past 4 or 5 years I've seen more dead piracy sites than dead piracy solutions.
Most people I know are paying $10/mo for Netflix, another $10/mo for Spotify, maybe another $10 on SoundCloud or Apple Music. (Wait until you hear what their data bill is...)
I used to always hear from people how they got such-and-such new album from a torrent, or Kazaa, or Napster (now I feel old) - not so much the past few years.
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To summarize... They haven't given up, they've won.
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I don't think they've won in the way they had wanted to win, it's just that the technology landscape has changed to where streaming makes more sense in terms of convenience than "pirating" and storing all those movies and MP3s yourself. Anyone that wanted at least a halfway decent fault tolerant storage system to store the fruits of their pillaging had to incur some cost to acquire, operate, and maintain it and then take the time to fill it up with everything they wanted to keep. It cost me about $300 for s
Won't this just get appealed to the SCOTUS (Score:5, Interesting)
I'm not looking forward to reading Sotomayor's minority opinion either
Re:Won't this just get appealed to the SCOTUS (Score:5, Insightful)
Of course, as any fool knows the only real solution to piracy is to offer your product to consumers at a price they are willing to pay, and in a format they see as value, so the Supreme Court can rule however they like. It will make no difference to the real world.
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I wouldn't be surprised if that was the case. Of course, as any fool knows the only real solution to piracy is to offer your product to consumers at a price they are willing to pay, and in a format they see as value, so the Supreme Court can rule however they like. It will make no difference to the real world.
Also to be given the option to have said product without DRM and own it. steam, epic john deere etc and companies like c apcom who wont release physical discs for pc are one of the reasons why people turn to piracy.
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When companies come the raw prawn with access or DRM or price, ordinary folk get what they want from The Piratebay (or from each other).
Re:Won't this just get appealed to the SCOTUS (Score:5, Informative)
Appeals cost money.
Most of these cases, at least based on previous incidents, are based around the premise of obtaining the IP owner details then threatening a suit they will never take to court to get a multi-thousand settlement from the IP owner who will pay rather than face the possibility of a lawsuit that could bankrupt them.
They make money by pushing through thousands of these settlements and dropping the case against anyone that fights. The vast majority of these cases have been nothing more than extortion using the courts and abusing the normal court process and the courts assumption of good intent.
In some of the cases clients that fought were able to prove the lawyers involved were abusing the court process and saw several of them disbarred and/or criminally prosecuted for lying to the court. One of these was Prenda Law, you can google that and if you read the story at Popehat you will see what happens to these guys when the courts catch on to their "game".
Won't that money be put up by the RIAA/MPAA (Score:3)
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Comment removed (Score:5, Interesting)
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Indeed. Make it hard to get your product and "alternative venues" will offer it at better conditions.
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"push button get bacon" simple.
I've never heard that one before. Is okay if I use it?
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Help thyself, I heard it ages and ages ago about the level of KISS you should be striving for, because if the user only has to "push button get bacon"? They really aren't gonna go anywhere else because they get what they want with the least effort.
Excellent - thank you very much!
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That is not the case here. The lower courts who have considered this issue all think the Plaintiff loses.
The Plaintiff, a porn company, filed a bunch of identical complaints in federal court in New Jersey, then asked for expedited discovery, which is 'discovery before you are supposed to get it.'
Courts don't like expedited discovery. In the Court's words in this op
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Letting this stand, it actually puts ISPs in a good spot to say "You're costing us m
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IP != User (Score:2)
Seems like IPs can represent anything from one user to a whole building of users. Therefore "John Doe" gets away with it...
Re: IP != User (Score:1)
No doubt I have other ways to deter people from running me over, though, so I guess I shouldn't worry about having already been run over.
Re: IP != User (Score:4, Informative)
Yes, but it's the equivalent of telling my attorney he or she can't look up the license plate of the car that ran me over.
That's not equivalent because that would both make sense to do and be perfectly legal.
This is the equivalent of *ME* asking the court for permission to lookup the license plate of the car that ran you over, plus a few thousand other license plates of cars that ran a few thousand other people over.
As much as you probably wouldn't mind me doing that, I still probably shouldn't have a legal right to that information.
To be more equivalent, this would need to follow previous requests I've made to do that, been given the license plate info in the police database, then never followed up by using it in a lawsuit.
Once you add that in, not only should I probably not have a legal right to that information, but many people should probably assume I am up to no good with it.
Re: IP != User (Score:1)
"Because COPYRIGHT TROLLS" isn't really a reason.
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Are you arguing that Strike 3 doesn't own the copyright?
They don't own the copyright. It looks like they do WORK FOR the copyright holder, more like a private eye than a lawyer possibly, but no they don't own the copyright.
Also, I think the judge is complaining more about the "expedited" part than the discovery part. (But actually suing thousands of people in court cases you are going to likely lose gets expensive pretty quick)
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The Copyright Office begs to differ with you. There are a mere 672 separate registrations listing Strike 3 Holdings, LLC as claimant. With a assignment recordation backlog of at least 2 years, it's likely there are many, many, more.
Or did you go through the trouble of obtaining the original complaints to figure out which properties in particular they were seeing over, then check the Copyright Office records to determine who owns the registration, ask someone knowledgeabl
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Yes, but it's the equivalent of telling my attorney he or she can't look up the license plate of the car that ran me over.
That's not equivalent because that would both make sense to do and be perfectly legal.
This is the equivalent of *ME* asking the court for permission to lookup the license plate of the car that ran you over, plus a few thousand other license plates of cars that ran a few thousand other people over.
As much as you probably wouldn't mind me doing that, I still probably shouldn't have a legal right to that information.
To be more equivalent, this would need to follow previous requests I've made to do that, been given the license plate info in the police database, then never followed up by using it in a lawsuit.
Once you add that in, not only should I probably not have a legal right to that information, but many people should probably assume I am up to no good with it.
Even if you were able to get the license info though could you prove who was driving the car?
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Re: IP != User (Score:2, Informative)
Yes, but it's the equivalent of telling my attorney he or she can't look up the license plate of the car that ran me over.
It certainly fucking isn't. I've seen dumbass shills come up with better bullshit than that; what's your your excise??
Fucking dumbass shill.
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Somebody ran me over. I don't know who, but they were driving a car with license plate XXXXXX. I'd like to sue the driver, so would the court please allow me to discover the owner of the car, who might at least know who had access to the car at that time?
Somebody infringed my copyright. I don't know who, but they were at IP address X.X.X.X. I'd like to sue the infringer, so would the court please allow me to discover the subscriber of the IP address, who might at least know who had access t
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Running someone over is almost definitely a crime. Downloading files *might* be a crime. Who downloaded it? Did they have the right to do so? What did they do with the file? Was it a researcher, measuring bandwidth? Was it someone who owned the CD and didn't feel like ripping it themselves? Were they making a commentary on the music? Or remixing a small sample? Some of these fall under fair use, at least in the US. The problem is they don't know.
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As an aside, your fair use analysis also fails.
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Seems like IPs can represent anything from one user to a whole building of users.
That's been the argument for a while - NAT could put many devices behind a single public IP in the user's home. Some of those devices may or may not be authorised to even use the network.
With "carrier-grade" NAT one public IP address could represent an entire street or suburb of buildings full of users unless it's paired with source/target port numbers and protocol type information, which Strike 3 undoubtedly didn't log.
It would also depend on ISP traffic logs to reveal who made that actual connection
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I received one of those threat letters once. It claimed that some IP address in a subnet that I happened to have allocated in my name downloaded some 10 GB file in 2 seconds over a 8 mbit connection, not to mention that the claims threatened have no force or effect in my jurisdiction. I simply ignored the fuckers.
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I simply ignored the fuckers.
I used to get those letters all the time. Now I just use a VPN.
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Especially with Comcast’s millions of piggybacked WiFi routers which don’t just use your electricity for free, they also make mistaken-identity more plausible. Not to mention the many thousands of open wi-fi routers that can found.
Another notch (Score:2)
Well, good. Another notch in a body of law that may eventually curtail some of these fun and games. Or they'll go file in Texas :)
I Haven’t Bought Music or Movies (Score:1)
On physical medium since the Sony rootkit debacle and the rise of unskippable ads in DVDs. Never abuse people who have the ability to opt-out, because that is exactly what they will do. Unless you’re Apple or Microsoft, in which case, go nuts.
Last Year (Score:2)
Some asshole broke into my home and downloaded ‘Apollo 13’ from TPB. I tried my best to stop him, but when he pulled out a bazooka and ordered my to cease my resistance, I had no choice but to sit back and observe.
Within 2-3 seconds of the download completing, I got an email notification. It was one of these letters via Comcast with a complaint for ... you guessed it ... Apollo 13.
It seems the ISPs are the ones doing the searching.
What was really strange, though, is that the burglar just left