Archive for June, 2011

New URL

Posted: June 30, 2011 by SJD in Housekeeping

You can access this blog without “wordpress” in the URL : http://fightcopyrighttrolls.com, though http://fightcopyrighttrolls.wordpress.com will work as well.

 

http://fightcopyrighttrolls.com

Ever since Mr. Sperlein rudely trespassed my life, I couldn’t help thinking about the reasons why this type of extortion business flourishes these days. I came to an obvious conclusion, though it took some time to articulate it.

Disproportionality of punishment is the major reason for abusing the law.

Imagine that the fine for failing to turn on your car’s headlights during rain is $1,000 or so, and the city allows police officers to pocket 50% of the collected fine. Abuse is waiting to happen.

Eighth Amendment to the US Constitution is mostly known for prohibiting cruel and unusual punishments, but it also specifically addresses “excessive fines”:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”


Deterrence is a powerful mechanism
of sustaining respect to the Law

$150,000 maximum fine for sharing one movie is hugely excessive and disproportionate. The threat to impose such a huge fine is the main weapon of mass fear in copyright troll cases. This weapon makes the entire extortion scheme lucrative. A $2,000 ransom is still disproportionate, but being flabbergasted by a six-figure number, victims of extortion are more willing to pay this relatively small ransom (which is even less than the cost of defense – another predatory property of this scam).

I don’t know what the Congress had in mind when it put this number into the law. I’m refusing to believe that a teenager obtaining a porno movie via a p2p network was the main target. Most likely, commercial-scale infringement was the reason. It would be nice to read debates preceding signing of this law, but I don’t know where to find them (if it is possible at all).

If this is the case, why blame the law itself and not the abusers who pervert its spirit? In my opinion, any law should be written in a way that addresses this concern, i.e. a law’s wording should be sharp and clear, not vague.

I also refuse to understand why an “unwillful” infringement bears the maximum fine of $30,000. A $30,000 fine is still capable of ruining a life, and for what? For a violation that one was not even willing to do?

You may argue that huge fines are necessary to deter piracy. But pulling a random person from millions and ruining his life cannot justify this goal, understandable yet questionable. Selective enforcement can be reasonable in a couple of abuse-proof cases, like busting speeders, but selective enforcement married with unreasonable fines in inherently unjust, immoral and abuse-prone. And this type of “justice” is exactly what we witness.

Justifying enormous fines for unwillful infringement by the need to relieve plaintiff’s damages is also plain wrong based on the same disproportional punishment/selective prosecution combination.

Imagine that some group of youngsters picnic on a private property without permission. They destroy beautiful grass and damage the trees. Let’s assume they know what they do (willful violation). The property owner has a natural right to demand relief so he could repair the damages caused by the trespassers. Now, I’m one of many who happen to pass by and accept an invitation for a beer with strangers having absolutely no idea that I’m trespassing. Is it still fair to pick me out of many others and demand tens of thousands dollars to replant grass I stood on for 5 minutes without realizing it was illegal?

In our particular case, actual damages to copyright holders are far from being proven, so modify my analogy by removing the damage inflicted to grass and trees, thus leaving only trespassing as an unlawful act…

Recently I had a discussion with a guy who argued that laws that are not enforced cause huge damage to the judicial system. I agreed with him to some extent: I think that there is some damage albeit rather insignificant. Requiring 100% enforcement is based on a wrong premise that every citizen is a potential criminal. I believe, maybe naively, that the majority of people don’t break laws not because of fear but because of respect to others. A mere warning in a case when a good citizen breaks a minor law is more than enough to sustain a healthy society… Anyway, we can argue about a mouse for hours, while there is an elephant in the room: the existence of laws that violate the spirit of the Eighth Amendment is far more damaging to the society than ignoring minor violations. The existence of such laws erodes the belief in fairness of the system and causes wide-spread abuses.

In his amended complaint (IO Group v. Does 1-244), Mr. Sperlein describes his client’s gay pornography flick:

22. The movie Breakers is of obvious high production values and is easily discernable as a professional work. In fact, the work was one of the first erotic movies produced in the Blu-Ray format. Plaintiff created Breakers employing professional performers, directors, cinematographers, lighting technicians, set designers and editors. Plaintiff created Breakers using state-of-the art professional-grade cameras, lighting, and editing equipment.

First of all, doesn’t Mr. Sperlein use the word “erotic” a bit liberally? The debate about the line between erotica and pornography is old as the art itself. One of the best arguments comes from the Master Tinto Brass:

…Pornography is there to give you an erection. Erotica is there to give you emotions…

So, is it yet another attempt to mislead the Court by not labeling IO Group’s products as they are: hardcore homosexual pornography?

Secondly, “Obvious… professional… state-of-the art…” Is it? Honestly, I don’t know – I never watched neither this flick nor the others, though I have read some descriptions. Since Mr. Sperlein has been caught lying, it is very reasonable to scrutinize any of his statements, this one in particular. How? If I was a defense attorney on this case, I would demand the screening of the movie for judge Alsup and the jury. It is also unreasonable to bar public from the screening of this masterpiece, the courtroom doors should be opened wide and the volume is put on max.

EFF is asking for your help. I contacted EFF couple of times, and it was obvious from their replies that they would love to help extortion victims, but their resources are limited amid unprecedented flood of copyright law abusers. Not feeding a troll is a right decision, but helping to starve it to extinction by donating to EFF is simply noble.

The following is from EFF’s DeepLinks blog.

Help EFF Topple a Troll

Call To Action by Aaron Jue

Copyright Troll

Over the past two weeks, EFF has won the dismissal of two bogus infringement lawsuits filed by notorious “copyright troll” Righthaven LLC. In the first case, a federal judge ruled that Righthaven had no standing to sue an online political forum for a five-sentence excerpt of a news story posted by a user, because EFF sleuthing revealed that Righthaven did not own the copyright. Last week, the court relied on the evidence presented in the first case and dismissed Righthaven’s lawsuit against a non-commercial blog that provides prosecutor resources for difficult to prosecute “no body” homicide cases.

These victories are sweet, but Righthaven and copyright trolls like them have filed thousands of additional lawsuits across the country, using the threat of massive damages available under copyright law to pressure defendants into quick settlements. One copyright troll is attempting to subpoena the identities of thousands of BitTorrent users and sue them collectively to minimize their own court costs, while another is targeting alleged adult film downloaders with hopes of exploiting the additional threat of embarrassment associated with porn. We need your financial support to bring an end to this awful business model.

EFF’s hard work has provided the facts and precedents needed to dismiss even more lawsuits. Please support EFF today, and help us topple a troll!

Donate Today!

Unclean hands doctrine

Posted: June 24, 2011 by SJD in General
Tags: , , ,

businessdictionary.com:

Dirty hands doctrine. Legal principle that a participant in a wrongful act may not recover damages resulting from it (may not sue the other participants in the wrongful act). Also called unclean hands doctrine.

Example. If A uploads mislabeled files to a peer-to-peer network, and B, C, D participate in sharing that file, although sharing per se may be illegal, A cannot sue B, C, and D to recover damages.

Today judge Alsup issued an order:

 

Previously, the following events were scheduled:

  1. All defendants must be served with the summons and complaint and proof of service on all defendants must be filed by JULY 14, 2011
  2. A case management conference is set for JULY 28, 2011, AT 3:00 P.M. Please file a joint case management statement by July 21, 2001 [sic].

Motions still can be filed, but only with the judge’s approval. I don’t think it is wise for any party to piss off the judge even by asking for a permission.

The named defendants should definitely file their replies to the Amended Complaint in order to avoid Sperlein’s Request to Enter Default. Those who have hired attorneys should talk to them about the joint case management statement. I am not sure, what pro se defendants should do about this statement. (Note that on the case IO Group, Inc., v. Does 1-50 Inclusive, Sperlein filed a Separate Case Management Conference Statement, explaining this choice by the fact that all the remaining served Does were pro per. After that, one of the defendants filed a Separate Case Management Conference Statement.)

I have mixed feelings about these developments

    Good:

  • The judge is definitely annoyed by wasting his time on this ill-conceived lawsuit, and any attempts by Mr. Sperlein to prove that the case is important and has merits may anger the judge.
  • It is inconceivable that, given the reason for the order to suspend filing of motions, that the judge will be able to set a trial date at the time of the scheduled conference, if this conference takes place as scheduled (which is doubtful).
  • While the case is effectively on hold, the named defendants, as well as those on the case who were not named, have extra time for observing the development of similar cases (e.g., IO Group, Inc., v. Does 1-50 Inclusive)

     

    Bad:

  • This is a passive disapproval of plaintiff’s actions, i.e. won’t create a good precedent for other judges on similar shake-down p2p lawsuits.

Anyway, these are rather good news than bad. At least those who are considering paying ransoms should probably wait.

In his amended complaint (IO Group v. Does 1-244) Mr. Sperlein lists 5 causes of action:

  • Copyright Infringement 17 U.S.C. §501
  • Contributory Copyright Infringement
  • Vicarious Copyright Infringement
  • Civil Conspiracy
  • Negligence

Though arguments listed in favor of these causes are seriously flawed (“Civil Conspiracy” is simply bizarre), let’s still look at the last one: Negligence (page 22). According to the arguments, running an unsecured wireless network is a negligent act. Mr. Sperlein argues that “reasonable internet users” should secure their networks. If it is his opinion, that’s fine, but this is not the only “reasonable” opinion: many people, organizations, and entire cities think that opening wireless access is not only far from negligent, but, instead, a desirable and noble action. We touched upon this topic recently, and also there were many forum discussions. The best short comment I found in one of such discussions was:

It’s such a shame that we live in a world where free access to the internet for all is quickly becoming a crime…

Feeling that his arguments aren’t convincing, Mr. Sperlein resorts to lies:

84. Reasonable Internet users take steps to secure their Internet access to prevent the use of such accounts for nefarious and illegal purposes. As such, Defendants’ failure to secure their Internet access accounts, and thereby prevent such illegal uses thereof, constitutes a breach of the ordinary care that reasonable persons exercise in using an Internet access account. In fact, AT&T, the Internet service provider who provided service for Defendants requires in its Terms of Use that subscribers secure wireless routers with a password.

Now, please look at AT&T’s Terms of Service (there is no such document as “Terms of Use” by the way) and find this requirement.

(By the way, forum commenters checked TOS’es of two other major ISPs – Verizon and Comcast – and failed to find a requirement to protect wireless networks with a password.)

Embedded below are the orders for two Boy Racer Inc. cases:

Thumbs up, judge Grewal! We clearly see: you do stand for justice.


Note that a new version of the motion was uploaded on August 5. Please read this post first and then follow the link at the bottom of this page.

To the best of my knowledge, this is not applicable to currently open IO cases. However, I hope it can help the blog visitors looking for help with other troll cases (there are quite a few according to the blog’s search statistics.)

I have received a letter with a draft of a motion similar in spirit to the motion that I filed for my case. Unlike my motion, which was a motion to dismiss multiple Does because of improper joinder, this one is called “MOTION TO QUASH OR MODIFY SUBPOENA”. The author suggests to file this motion on behalf of John Doe, i.e. without signing your real name. This is exactly what I did (I also listed my e-mail instead of an address, and the court is still sending new filings to me). Consequently, I believe that this kind of a motion will likely be filed. I don’t know, however, whether the judges will read these motions: I don’t think that the judge on my case read my motion before striking it as improperly filed (i.e. without a real name and address). On the other hand, similar motions worked in IL, and because each judge makes his own decisions, who knows, maybe this motion will work in some courts. I think it is worth trying: I did and I don’t regret that I spent time on this. The more motions are filed, the more likely it is that the judges will pay attention.

One piece of advice: don’t mail the motion from a location close to your home. I asked my friend in a remote state to re-mail my filings. If your case is filed exclusively for a Californian IP addresses, you could drive a couple of counties away from your home and mail it from there. Remember that your envelope will likely be filed as well, so consider writing down your Doe e-mail address instead of any postal address there: this way you will not look like trying to mislead the court.

And don’t forget to correct the number of Does on the case, which is mentioned not only in the header, but also, e.g., on p.p. 2 and 5.

Also fax a copy of your motion to your ISP: in my experience, they love these faxes since they don’t have to work on compiling Doe lists until the judge rules on the motion.

Hi Jane Doe,

For the 20,000+ cases in California, Steele Hansmeier and others are going after California residents only, so the personal jurisdiction argument won’t do.

Many of these cases are being severed for misjoinder. I’ve attached a sample Motion to Quash or Modify Subpoena which includes this argument. I think that it would help John Does to go after this procedural issue at this early stage, as it will make the Plaintiff reconsider whether it’s worth it to shake down every John Doe if it costs them $350 apiece. Also, every other type of argument gets answered with “OK, you can bring that up later.”

The attachment is in OpenOffice format. I hope that your readers would find it useful. It’s important that every defendant take this, change it to reflect their current case, maybe adding or removing what they see fit, and filing this when they receive their subpoena notice.

Remember to send a copy to the plaintiff’s counsel, and of course, your name is John Doe.

Sy Ableman,
Pro Se Attorney and Serious Man

Click to open or download: MOTION TO QUASH OR MODIFY SUBPOENA

Updated version: MOTION TO QUASH OR MODIFY SUBPOENA (see the new post).

(If your word processor does not understand Open Office format, let me know: I’ll convert and upload this document in other formats.)

See the update.

Yet another excellent TorrentFreak’s article : Open Wi-Fi Is Not a Crime, BitTorrent Case Judge Hears.

The article covers the story of a Doe who wrote a couple of letters to a judge arguing that running an open Wi-Fi is not illegal and explaining copyright trolling “business model”.

These lawsuits have been rife with shoddy ‘evidence’ accumulation and wrongful harassment of Internet subscribers with no effort or evidence to identify the actual infringer behind an I.P. address rather than just demanding money from the person registered as the subscriber of the Internet connection…

[...]

Not all unsecured networks are due to a lack of technical knowledge. Some of us leave them open to friends and others out of a sense of community. An Internet connection is an important thing for people today, for better or for worse. I fear that we are on our way to having Internet connections become like so many things in our country that must be locked up and hidden out of fear an intimidation…

 

R. Cashman (Cashman Law Firm) commented on this letter:

This is probably the best written letter I’ve seen since these cases have gotten started. I wish the defendant the best of luck, and if the letter turns out to be written by someone other than the defendant, I believe the letter accurately represented the issues facing these cases.

 

Well, in his amended complaint (Does1-244) Sperlein argues that AT&T contract explicitly prohibits unsecured wireless routers. I failed to find this clause in my 2011 AT&T agreement, but I did not find 2010 version yet: when I do, and the wording is the same as in 2011, I’ll post “Deception in court: Part II” article.

EFF about open wireless networks

EFF has some strong arguments why it is good to run an open wireless network.