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FYI Text Only Cache here:

http://postsimple.com/7zjca

(Missing some stats diagrams...)

How much do the legal fees for those phases cost? More than $3000?

Not only that, but the MPAA usually makes a lower offer for you to take before those phases. They tell you if you want to wait you will have to pay more to settle. It's pure extortion.

I say good for him, but hasn't every case that's been presented against the RIAA been shot down time and again? What would make this dude any different?

What we need is a case that would prove that false positives make it through the system, then, if they won, everyone thereafter could win on the legal principle of precedence.

It depends what you mean by "shot down". If you mean settled, then yes, the vast majority have settled because they were threatened with legal bills that were greater than their settlement if they didn't. Very few, if any, have gone to trial. This is great news.

No, he means the DOZENS of stories you see on Digg about people taking it to court with the RIAA/MPAA, and, well, no follow ups, BECAUSE EVERY SINGLE ONE HAS LOST. Just search for them, or if you're lazy, my comment history, because I know I commented on how stupid their counter arguments were on at least 7 of them. This is not the first person to not settle with them, and he won't be the last person to lose even more.

Funny
--
http://3couleurs.blogspot.com

IANAL (I am not a lawyer), yet. I am in law school. In my unprofessional opinion he could win this case and it would help defeat the extortion rackets these firms are running.

But if he loses, and they'll fight as hard as they can, it will be a HUGE blow to consumers. Now the MPAA/RIAA has no judicial precedent for these cases, they can just threaten for now. But if this goes to court, there WILL BE a precedent, good or bad.

If he loses it will be much easier to defeat others (even those with better cases in the future). He fights for many of us, sued and not-sued-yet. And with that in mind, I hope he is more careful as to what he publishes on his blog. Calling the MPAA "loony" and "utter liars" (even if it is true) is very dangerous. It just lets them make you look like a pirating lunatic to a judge even if you aren't.

He should talk to the EFF, they can give good counsel even if they can't represent everyone directly - and they may be able to (especially if you are a member).

I do too, but keep in mind it is uncommon for cases in civil court to be published. If it goes to appeals or superior court it would have a much better chance. You are not allowed to site unpublished cases if you are trying to establish stare decisis/precedent.

Also he mentioned in his blog that RIAA/MPAA is a failed business model, but from what I hear they are making boatloads of money by suing people. I hope it stops soon.

"IANAL (I am not a lawyer), yet. I am in law school. In my unprofessional opinion he could win this case and it would help defeat the extortion rackets these firms are running."

GLITWUA (Gotta love it that when using abbreviations) IATMSTEI (it actually takes more space to explain it).
If I am going to type the entire phrase, what's the point of writting the abbreviation too?

Sorry I'm offtopic, mod me down, I have enough karma :P

PS. I'm just teasing.

Um, people have not settled, and lost already, he isn't the first not to settle. This won't be precedent setting in any way other than proving people with blogs are retarded.

@jambarama

I hope you aren't paying too much in tuition because your analysis pretty completely uninformed.

First, without the complete facts of the case, much less any sort of discovery, venturing an opinion on the outcome of a case is nothing more than unfounded speculation.

Second, surely you would've learned precedents in your civil procedure class, right?? Assuming this guy loses, and assuming this opinion is even published (which is a crapshoot at the District Court level), then its precedential value is only limited to the disctrict in which the court sits, and can, with skilled lawyering, be limited to the narrow facts presented. Should it then be appealed to the Ninth Circuit (the appellate court overseeing the California District Court in which the case was filed), and an adverse ruling upheld, then its precedential value would extend to the Western states and then perhaps pose a problem.

@Locojones -
I meant he COULD win - a lawsuit with the MPAA is winnable - not that he WOULD win. Obviously I don't know the surrounding facts, but it is possible.

Of course I know about precedents. That is what I was talking about - he will create a preference. Depending on who wins, it is very likely the opinion will be published. Maybe in some districts it is a crapshoot, but I know in mine (and a few others) it is standard that, unless there is a good reason to not publish it, they will.

The precedential value is limited to the district, but you can use decisions in other districts in your district - not as precedent, but as evidence.

Depending on who wins this the ruling can extend as you say. But appelate courts can't make decisions, they can only overturn decisions if the wrong jurisprudence was applied. So appellate court decisions do have wider precedent, but it is a far weaker precedent (it just rules out a single type of jurisprudence).

"...or else we'll be sorry"

Too bad you can't get to the actual article from that link - anyone know of a current copy?

Or have the submitter pull it up on coral cache before submission so that coral picks it up.

Cache (again):
http://postsimple.com/7zjca

Thanks T0P. I'll have to bookmark the site because this blog post doesn't give many details. If this is all true, I wish him luck.

thanks.

Full text

"MPAA Offers To Settle (Again)
by Shawn @ 4:17 pm · filed under Movies, Law

There is an "Early Neutral Evaluation Conference" on May 23, 2006 to determine if this matter can be settled. Personally, it seems like an utter waste of time because at this point about the only thing I would settle for is if they dropped the case, paid my attorney fees and then dissolve their whole organization.

They offered me an initial settlement of $2,500 (before they decided to take it to court), which was rejected on the basis of principal. Then today I talked to my attorney and they are offering a settlement of $3,500.

Bahahahahahaaha! So if I refused your $2,500 out of principal, what exactly makes you think I'm going to give you $3,500 now? That's comedy. :)

From everything I've read online, the MPAA (and RIAA) has been pretty much extorting everyone simply because they can't afford to fight it. This certainly will give me something interesting to blog about. I just pray it goes to a full trial, where they will loose and then give everyone else that is being sued a nice lawsuit they lost as a reference for their lawsuit... "MPAA vs. Shawn Hogan" That has a nice ring to it. Maybe this loss will be the start of their demise. (Hmmm... I seem to have quite the aspirations, eh? haha)

From a purely business standpoint, I think all the lawsuits that the MPAA and RIAA are throwing out are only hurting them in the long-run. From everything I've read, it does not curb piracy at ALL. I would even argue it increases it because all of a sudden people that weren't aware you could download music/movies now realize you can (and some will start). Then you are going to compound this by everyone talking about it and reading other's blogs. I'm a perfect example... from talking my attorney and then researching stuff online as a result of that, I now know that if you have the proper software installed, you can download pretty much any movie (or anything else) you want.

Not only that, but you would think they would be wiser about who they choose to extort.

For as big of an organization they are, my website gets roughly 10,000 times more traffic than theirs (then again, I get more traffic than buy.com or adobe.com.. hehe)

So what just happened? Well now a few hundred thousands people per day were just educated about 1. about their general extortion and 2. they also now know that you can download whatever you want. I'm starting to think maybe the MPAA might actually kill the movie industry (which this dude shares my viewpoint). If they were smart, they certainly would choose their racketeering targets a little wiser (like maybe someone without the resources to fight and a captive audience of 80 million people per month that will read my viewpoint). This could turn out to be some good/interesting reading though. Reminds me a bit of the Winn and Sims fiasco.

Wanna see something else funny? Check Google's top 10 results for "MPAA"... It seems I'm not the only one that thinks the MPAA is looney. :)

http://www.google.com/search?q=mpaa

Oh, and just as a side note, they are utter liars... They told me they identified the specific computer that did whatever they claimed and they traced it back to me (of course I knew that was a lie since it never happened). But now they are saying they don't have any such information (MAC address basically). {rolls eyes}"

I've known some very intelligent people who were poor spellers, and everyone makes the occasional typo.

Maybe loss of respect is a bit harsh? I would say he diminishes his credibility slightly by such grammatical errors (there are more than one on the post), but doesn't necessarily deserve less respect.

What I want to know is what's this guy's website. 10,000 times more traffic than adobe.com and buy.com. Yikes. If this is true, they really did fuck with the wrong dude this time.

Wait....if he gets more traffic than buy.com and adobe.com and digg shut him down, doesn't that make him.....a liar?

No, he's got integrity, no liar. Just a server problem. All his webmaster tools are getting too popular and the pretty beefy server (Cost 20 grand 2 years ago) can't handle it anymore. So he started a fundraiser 2 months ago to raise 100K worth of blades to support this growth. This far he raised 32K+ from his webmaster community.

No liar, just capacity problems which actually proves his point, rather than the opposite you are assuming.

It's no time to shrug off poor spelling, it doesn't matter so much if you use "loose" for "lose" on your blog blabbering about your boring life, but considering how precise legal documents are it may change the meaning of a sentence!

"I've known some very intelligent people who were poor spellers, and everyone makes the occasional typo."

I never make tpyos!!

I think a good cliche would be "don't throw the baby out with the bath water."

"Not seeing the forest through the trees?"

Meaning, stop shitting all over a guy for a typo or two. Plus always keep in mind that it might not be the person's native language. You try to communicate in someone else's language and get everything perfect. Damn elitist!

It's not quite that simple. These are civil cases, and and such, the burden of proof is not "beyond a shadow of a doubt". It is "preponderance of the evidence" http://en.wikipedia.org/wiki/Preponderance_of_the_evidence . What this means is that a plaintiff's claim must be merely more likely than not of being true. If it's more than 50% likely (in the mind of the jury) then they can find you guilty. That's a low bar. If I were sitting on a jury, and was presented with ISP logs showing this guy's machine was sharing file, well - that's not absolute proof he did it, but it sure is pretty likely he was responsible for installing the software and actively sharing files.

Another phase which you overlook is "discovery" - in which the plaintiff can compell the defendant to divulge relevant information. http://en.wikipedia.org/wiki/Discovery_%28law%29 For example, a dump of the registry - which would show if the defendant's user account had the software installed. So you can refuse to talk to the MPAA all you want before the trial, but if it goes to trial, you will be forced to answer questions, under penalty of imprisonment if you refuse.

You might thinks that a smart cookie would merely wipe his computer before discovery. Nope, if you know of a possible lawsuit, you can find yourself in hot water if you knowingly destroyed evidence that was relevant to the case. One might be able to arrange a coincidental donation of your hardware to charity, but I still think a judge might not look kindly on such an action.

"Actually, they don't have any proof to begin with that YOU did anything, only that it was done with your computer."

Actually, they only know someone with your IP address did it. And it is possible that someone was spoofing. :)

Good point. Maybe I should switch back to WEP, just so that last one might hold water ;)

EDIT: Good comment by joshv. Nevermind what I just said, I guess. Oh well, I'm Canadian anyway.

Or maybe a power surge toasted your computer. Like the power surge that is created through static electricity by walking around a room in socks for a few hours and touching any metal part of your computer...

joshv: "beyond a shadow of a doubt" isn't right anyway, it's "beyond reasonable doubt"

I'm not trying to be an ass, just figured it was worth clarifying.

That kind of legal system is seriously f*cked up.
what happened to innocent until prooven guilty ?

Better switch *off* WEP on the wireless router. That way, one of your evil neighbors could be to blame, or a wardriver.

You can argue that either way - your evil neighbor could easily get around WEP.

Thanks flood6, is it indeed "beyond a reasonable doubt". I should not post in a hurry, but that's no excuse.

A number of people have pointed out that the IP could be spoofed, or perhaps used by a Wi-Fi leecher next door. Sure, these are all possibilities. It is also possible that the guy who pays for the account attached to the IP had file sharing software installed and was sharing movies. The way we weigh these possibilities is with the evidence. The MPAA presents it's evidence, and the defendant presents his evidence. Whoever's story is just a hair over 50% likely, wins.

So, if you want to claim that someone was using your access point, you'd better have some evidence of this fact. The mere possibility of such use isn't going to weigh very heavily against the MPAA's evidence. You will have to show that you have an access point, and that it was open at the time of the alleged file sharing traffic. You'd have to present your own logs as well. If you could show that someone, with a MAC address you do not own, was using your Wi-Fi access point on or around the times the MPAA recorded infringement, well then you might have something there. Someone who is actually guilty is unlikely to have such evidence, unless they run an access point shared by dozens and actively log DHCP requests.

As for the spoofing claim, it would be very difficult to mount a positive defense, short of showing that spoofing is the only likely explanation, as your PC could not *possibly* have been the source of the file sharing traffic. This is certainly doable - you could present backup logs showing what software was installed when, for all of the computers you operate, or perhaps prove you did not have a computer at the time by showing a donation receipt before the alleged infringement, and a purchase receipt for your current computer after. How likely is even an innocent person to have any of this sort of documentation? Not very.

Turning off WEP/WPA and relying on the "evil and anonymous stranger did it" is dumb. If someone actually does use your WAP to download child porn, the cops aren't going to just go away because you babble something unintelligeble (to them) about "WEP" "WAP" and "MAC"... you're still going to court and paying legal fees out the ass, and you'll suffer loss of reputation just for being accused (sex crime = guilty until proven innocent in most people's minds).

And isn;t it also called 'social bookmarking'? So if the description seems promising but the link is dead, you 'bookmark' it so you can easily access it from your own profile page to read later... A convenient feature but probably not the way Digg was meant to be used. Works for me though. And indeed, if it was a false sense of interest you can always undigg...

anonynous2_
Are you really that angry that he decided to qualify his position? Giving an example of why he might be uniquely influenced by RIAA policies is _not_ abusing the English language. Learn to understand things in context and try not to be such an asshat yourself.

The RIAA's policies are especially frustrating to podcasters. Imagine you are trying to spread the word about your new favorite band through your podcast, and you suppose that the exposure you give the band will only serve to help them out. But the RIAA doesn't see it that way, and they block your efforts. You even bought licenses from ASCAP and BMI so the artists would get their cut. You report what songs you played and the artists get their royalties, and the only people who don't get paid are the holders of "mechanical rights" -- the big record companies. That's right, folks, a podcaster can pay the composer and the performer for the right to play the music, but the RIAA won't allow it!

Enter the Podsafe music movement. This is more than just a bunch of music by unsigned bands -- it's a movement to unseat the mega corporation labels from their death-grip on the business. It's an attempt to eliminate the controlling middle-man and let the artists and listeners decide what they want to listen to, and how. It will also ultimately mean more of the profits will go to the artists themselves, and less to the "owners" of mechanical rights that they may have bought second-hand (think Michael Jackson v. Paul McCartney).

Sounds like he was running a popular server.

Yah, jeez, your friend was just a criminal dude, no denying it, sorry. Also, advise him to consult a lawyer next time before he just sends the MPAA a check, to make sure ALL proceedings against him are dropped, since the MPAA or RIAA rarely file criminal charges unless you're a hardcore pirate.

Er, jasqwerty, the RIAA don't file criminal charges, the feds do. The whole thing about "choosing not to press charges," well, it doesn't work that way. The victim doesn't choose; the prosecutor does. The RIAA can't give anyone a guarantee that they won't be charged in criminal court, since the RIAA aren't a part of the justice department (or the state/local authorities).

Um, yah, they do guy. A victim files criminal charges against someone, it's up to governement to PURSUE AND CONVICT someone on these charges. If the 'victim', the RIAA here, decides to not file criminal charges with the proper authorities, then NO ONE moves a case forward against you. Maybe that's where I failed to make a distinction. The RIAA doesn't file criminal charges against you with a court, but with the proper law enforcement agency. The few rare cases where this happens is where the victim is dead, or supposedly under duress to not pursue charges further.

It's not easy to download without sharing though. The main thing seems to be when you are the original distirbutor.

"Nobody has ever been busted for downloading. It's the
sharing that gets you in trouble."

Is that really true? I've never heard it. Anyone else? (I'm not saying I don't believe it, I just never heard it before)

It's the making available for sharing. Which most P2P programs do automatically share any downloaded programs.

And who download's movies without bittorrent anyway? Which ALMOST always means you're sharing as you download.

"It's not easy to download without sharing though."

It is if you don't use the crappy p2p tools that most use nowdays.

"And who download's movies without bittorrent anyway?"

Pretty much everybody I know. We stay away from it like the plague.. other than legal downloads like linux distros where they would like to save their bandwidth.

Just generalizing the situation as an example on how it backfires, that's how I read it.

Sorry to burst your all-knowing bubble, but I've been on the Internet since '95 or so, and know very little of torrents and P2P outside of Napster.

It's alexa traffic rank. It's a league table based on traffic. It's showing the position in the table, not the traffic. So it's relative, not absolute.

"Sharing content has never conclusively been shown to result in the loss of the extreme profits that the industry claims. "

You can't take something from a store and then claim you never would have bought it anyway...
If its near closing time and the store has some fruit they are going to destroy and dump (no loss to the company) do you have a right to steal it and then claim you never would have bought that fruit anyway?

Actually, demanding more than the retail cost of the songs/movies is, at least in one respect, justifiable. If their policy was to merely demand that the infringers actually pay for the titles they illegally possess, then there wouldn't be any reason to go out and buy it legally until you were caught. (This isn't to say that it should be thousands of dollars without strong proof.)

That said, I do despise the RIAA/MPAA and their tactics. Shotgun extortion suits, paying Congress to pass legislation for their benefit, using DRM to punish paying customers without curtailing piracy... I don't think I can come up with a more despicable "legitimate" organization.

Otherland
What point are you trying to make?
I never even mentioned anything about the "never would have bought it anyway" argument.

To answer your question; No, you wouldn't have the right to steal it.
Then again, I never said anyone WOULD have that right. When I said "Sharing content" i meant sharing on-line content.
Additionally, "Sharing content" is not the same as "Downloading content". Me making it available for you to copy, is not the same as you copying it from me. Don't get them confused.

I don't know if you were just inquiring on my opinion about another subject altogether, or if you missed one of the side-points I made.
All of the lawsuits the RIAA & MPAA throw around are not filed because the person downloaded copyrighted material, but RATHER because (the person (according to the RIAA) used peer 2 peer software that by default re-shares downloaded content, and so) the downloaded content was made available to hundreds if not thousands of other users. It's this REDISTRIBUTION of the copyrighted material that (according to the RIAA & MPAA) constitutes breaking of the copyright law, not actual act of downloading the file (which FYI would just be considered petty theft and wouldn't be worth the RIAA's or MPAA's time).

@Tamdrik
Good point.
I should have said they should make them pay for the content, and then get a nominal fine (like the file incurred from a parking ticket).

..."I believe an artist SHOULD have the right to protect their intellectual property." Just to clarify -- the artists are not involved at all here. The artists are represented by ASCAP and BMI, not the RIAA.

Because of the Internet, artists can make money without any help from big studios, and that scares the hell out of the RIAA. The RIAA represents the "Recording Industry", not performers and composers!

"It would be pretty funny if the MPAA tried to sue me too since I don't have a TV or DVD player..."

What, exactly, does having a TV or DVD player have to do with whether or not you download a movie? You obviously have a computer (else you would have said that too, along with the obligatory "I'm using the school/library/friends computer."), and you can watch movies/listen to music quite handily on that.

Yes, I would say that his lawyer is better then has ISP...since he doesn't own an ISP...

Yaa, just do what's right.. that, or take down the MPAA.

Why have a visa if you pay for everything in cash?

Convenience and sky miles.

I want to give them as little info as possible, because I don't want them to drop it. I want them to follow through with the case fully in court.

Copyright infringement is a Civil offense, with a different standard of proof than that required to convict a hack(crack)er of a criminal offense. Thus your confusion.

@joshv
Copyright infringement can be a criminal offense. Read my explanation: http://innovationlost.org/free-the-lyrics/2006/04/23/copyright-infringement-is-a-criminal-offense/

Just to clarify, this is a civil (not criminal) case. There definitely is a different standard of proof.

Great trialofmiles, if the MPAA ever files a criminal suit against a file sharer, for those charges, there will be a higher standard of evidence. Maybe this is why they have yet to file such a case. It's hard to collect the evidence required without the involvement of law enforcement and almost iron-clad proof that you've got the right person. For example, a better example of criminal prosecution would be the arrest of a person who was making DVD copies of copyrighted movies and selling them out of their home. The police run a sting, and catch the person red handed with thousands of DVDs, and have the target on film selling illegal DVDs.

>copyright infringement is a Civil offense, with a different standard of proof than that required to convict a hack
>(crack)er of a criminal offense. Thus your confusion.

well... i have no confusion. i have experience. and just to straighten out your confusion... civil court is full of lawyers plugging away at people for things they haven't done. its the money that makes a difference. if you don't have the money to throw at a lawyer then you loose regardless of whether you did it. that is secondary to proving anything.

Your idea is pie in the sky. As the old telco's position themselves to ruthlessly control the backbone of the internet as well as the last mile to your home, all kinds of great innovative ideas like this die a quick, quiet death.

Capitalism is inherently flawed: as innovative and competitive companies become highly successful, beating down and eating up their competition, the industry becomes deadly to competition/innovation.

And if there is no healthy competition in the market, what happens?

The textbooks say that a successful company should become a monopoly, yet a monopoly is bad for the public, right?

Long story short, someone needs to break the deadly grip of monopoly-like companies/groups of colluding companies in the interest of the country as a whole.

That's supposed to be the job of an effective government, and when it does its job mankind makes mindblowing progress, but that's your cue to get depressed and change the channel to Apathy and Distraction Network.

Wow koshak - you'd think one would check their OWN spelling before pointing out the spelling flaws of others - I'm amazed you can't even spell "where", even w/ a built-in spell checker that digg provides. What a douche.

"Baed on this guy's horrible writing skills, the part about him being "the wrong man" is inaccurate..."

Wow, Koshak, you should be a lawyer, you obviously have it all figured out. Someone mispells a word and they are automatically guilty of piracy...yeaaahhhhhh.

What the hell do you have against blogging? You are on Digg.com, right? What, do you go play at a video game arcade and tell everyone else that they're so stupid to be playing arcade games?

I don't understand how statements like "You understand that defending this in court will cost you much more than $2,500 in attorney fees, right?" aren't actionable as extortion in this country.

In any case, I'm glad they had the misfortune of choosing someone who's already won a case of mistaken identity. Give 'em hell.

It's my understanding, they got "my" IP from the logs from a 3rd party site. I'm not even sure if they are claiming I uploaded anything. I don't have the paperwork in front of me (lawyer has it all), but I think they had some blanket verbiage in there that makes it sound like I'm undermining the entire movie industry, and that some sort of injunctive order needs to be put in place so I stop my "malicious actions". {dying of laughter}

I'm not sure what those actions are yet (I don't even think they know).

Except of course the fact that I didn't upload (or download) any movie.

Sounds like you'll be parted from about $10k soon enough...

Anyway, why did you mod Krispy down? Them downloading it isn't illegal. It would be like trying to convict someone of stealing their own stuff.

Then you have a 0/12 chance of being right. Where did I get those odds? Well, I can recall roughly 12 cases being Digg frontpaged concerning people not settling, all resulting in losses, which were curiously submitted but never frontpaged.

Do you have a link to any of those cases? Would be useful for me.

You and your lawyer can do your own legwork on this one.

jasqwerty, You just talk to hear yourself, don't you? Can't provide a link? I doubt anyone is going to go digging for info that they heard out of someones ass...Maybe it's just me...

I would say, ZERO? It sure is a nice act, protecting someone elses IP, though has no legal standing whatsoever.