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Submission + - Technical issues in new mass downloading cases? ( 3

NewYorkCountryLawyer writes: "As most of you know, the last wave of mass copyright infringement lawsuits was brought by the RIAA against individuals, supposedly for downloading, but actually for 'making available' for upload, mp3 files shared through FastTrack (Kazaa, Bearshare, etc) and Gnutella (Limewire) protocols. The new wave of mass lawsuits, which borrowed, and even expanded upon, the RIAA's technique of using fake copyright cases against "John Does" in order to find out their names and addresses, is actually about : (a) single downloads of (b) low budget film files over the (c) BitTorrent protocol. Here is the supporting affidavit seeking "discovery" (PDF) in a case typical of the new BitTorrent-single movie-download cases, New Sensations v Does 1-1474. I would appreciate the input of the tech community on whether there are technical issues that come to mind in the plaintiff's presentation. I won't be able to engage in my usual dialogue, because my firm is being retained by some of the victims of this new wave of suits, and I can't give away any information on my own trains of thought."
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Technical issues in new mass downloading cases?

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  • by Jane Q. Public ( 1010737 ) on Tuesday December 27, 2011 @03:16PM (#38505622)
    In paragraphs 18 and 19 (beginning on p. 6, line 20), they claim that the IP uniquely identifies the computer being used to download. We know that this is not so. In my own case, for example, I leave my 802.11x router intentionally open, so that my neighbors can use it as well. In a case such as that, my IP "identifies" no more than a neighborhood: everyone using my router will show up as the same IP. Not even an individual home is actually identified, much less a particular computer.

    This is a fundamental flaw in their logic. The person who has the internet subscription is not necessarily the person (or owner of the computer) that downloaded the file. Very likely, it is not even reasonable to say that it is "probably" the subscriber who downloaded the file. Further, some people use technical means to mask their IPs, such as proxies or the Tor network. In such cases, the IP is nothing but a dead end, and has no relevance at all to who was doing the downloading.

    Also, while it might be a different jurisdiction, didn't the Righthaven suits prompt a decision by the court that only the rightsholder had the right to sue, and not a "hired gun"? One has to wonder whether whoever filed this actually has standing to do so.

    Page 3 of Exhibit B: "Why Piracy Happens", contains a technical error: it identifies casual downloaders for personal use as "pirates". Technically, a "pirate" is someone who copies and sells copyrighted material for a profit... meaning that the vast majority of downloaders are not "pirates" at all. In fact, this illustrates another flaw in their logic: if someone is making copies freely available, they are not "pirating" the files in any technical sense. The plaintiffs or their representatives are conflating casual downloaders with pirates, which are two very different kinds of infringement.

    Summary, Exhibit B, p. 5: "As Jack Valenti, president of the MPAA has clearly stated, the real way to combat piracy is by catching and bringing the pirates to justice."

    What makes Jack Valenti an expert? He is a biased party. Statistics suggest that piracy can be minimized by merely making products available at a price people are willing to pay. I have no citation for this but it should be easy to find.

    Exhibit C is a collection of gross irrelevancies, consisting mainly of statements by the industry about situations that are not even remotely related to the case at hand, and again they are attempting to conflate downloading with commercial "piracy", when logic clearly indicates that they cannot be the same things.

    Exhibit D is more of the same: a statement by an interested party that in fact was partly quoted earlier.
  • ...and I can't give away any information on my own trains of thought.

    Not even if they're diesel or steam?

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