The RIAA? Amateurs. Here's how you sue 14,000+ P2P users

http://arstechnica.com/tech-policy/news/2010/06/the-riaa-amateurs-heres-how-you-sue-p2p-users.ars

by alexandros • 16 years ago

140 52 16 years ago

barmstrong• 16 years ago

Interesting - I wonder how they are getting people's identities. They gloss over it in the article saying they can subpoena for it, but I assume that is rather difficult with bitorrents and tiny pieces coming from hundreds of ISPs. How are they getting a list of people who downloaded a particular movie?

Groxx• 16 years ago

I'd assume: start downloading the movie, and track peer IP addresses. Bully ISPs, nail users.

pyre2• 16 years ago

The BitTorrent tracker contains a list of IPs of people connected to each individual torrent. Everyone that connects to the tracker obtains the list for that torrent so that you can find other peers with pieces of the file. All they have to do is connect to the tracker and record the IPs. Then they file Joe Doe lawsuits to find out who those IPs belong to.

{update} I assume that they have to wait for a connection from someone to exchange a piece of the movie though. It is possible to connect to a tracker, falsely advertise the percentage of the file that you have, and just sit there disallowing connections. Unless you transfer something other than communication w/ the tracker I don't know how they could find that you've infringed copyright. [Maybe someone should purposely do this to try and get sued by them.]

Is it illegal to set up a shop that purports to sell illegal devices, even though you don't actually have any illegal devices and never buy or sell an illegal device?

furyg3• 16 years ago

Logic experiment:

AFAIK, you can't download a torrent without participating in seeding it (at least while you're downloading it). Assuming that whomever is gathering the IP addresses is an authorized representative of the copyright holder, they are actively involved in distributing the video (at least while they're collecting IP addresses).

So, a defendant could claim "At the time you caught me downloading it, an authorized representative of the copyright holder was publishing the content on BitTorrent".

Of course, the problem is that the law isn't logical ;)

pmccool• 16 years ago

Dunno about this situation, but there's a discussion in

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/...

starting at about paragraph 110. They are coy about the details, I suppose to make circumvention harder or something.

Erwin2• 16 years ago

Sounds like a reasonable amount compared to what RIAA is trying to get in a full suit.

Here the penalty for taking public transportation without a valid ticket is roughly 50 times the cost of the ticket (and the excuse that you wouldn't have bought the ticket anyway is not a valid defense here either), and this ($1500 vs $20 cost of a new movie) is of similar scale.

Perhaps this will encourage movie viewers to use alternative modern distribution channels a la Netflix. Personally I do not bother with full-priced DVDs; Lovefilm (netflix.eu) is enough for me, together with older discounted DVDs. There's enough backlog of good movies that I don't need to buy Transfomers 2 on DVD for a long, long while.

natmaster• 16 years ago

Where do you live? In Seattle it's around 8x the cost.

Erwin2• 16 years ago

In Copenhagen, Denmark the penalty is between 500 and 750 DKK ($82 - $123) -- while you can use the same ticket on all types of public transportation, the light rail and real rail are run by different companies and charge slightly different penalties.

A basic ticket is 13.50 (if you buy 10 in advance which can then be activated at any time, as is most common) to 23.00 DKK (if you buy a single one in a machine or via a text message); it lets you travel for an hour and change as much as you wish. If you travel every day between home and work you'll usually buy a flat-rate subscription.

(The prices get higher if you travel through multiple fare zones -- there are almost 100 different zones that cover Zealand and its 2 million inhabitants; it can be a somewhat confusing system sometimes resulting in travel from A to B not costing the same as travel from B to A; if you didn't buy enough fare zones you're also liable for that 750 DKK penalty above)

Bus travel require you to show a ticket at the entrance, so there's rarely secondary control, but the light rail system you have to buy or stamp a ticket yourself I guess has perhaps a 15% chance of being checked. I'd estimate at least 98% people have valid tickets on the lines I use.

dagw• 16 years ago

Do people bother buying tickets? It seems like with those sort of fines it would be cheaper to simply pay the fine the few times you get caught. Unless of course Seattle have some very active ticket checks.

nihilocrat2• 16 years ago

This is an interesting article on the subject:

http://www.npr.org/blogs/money/2010/05/dont_pay_your_fare_on...

CWuestefeld3• 16 years ago

this ($1500 vs $20 cost of a new movie) is of similar scale.

The examples cited are all (with 1 exception, The Hurt Locker) all of the straight-to-video $5 bargain bin variety. 50 x $5 = $250. Compared to $1500 (let alone $2500) that's quite a bit different.

sgift• 16 years ago

I'm a bit surprised that this seems to be a new development in the United States. In Germany this is the prevailing mechanism to make money from filesharing. They use cease and desist letters instead of subpoenas, but the principle is the same: Pay us and we don't take you to court.

mootothemax2• 16 years ago

The article states:

Data from the recording industry lawsuits, revealed in a court case, showed that 11,000 of the 18,000 Does settled immediately or had their cases dropped by the labels

And:

Dunlap, Grubb, & Weaver generally asks for $1,500 to $2,500, threatening to sue for $150,000 if no settlement payment is forthcoming. Assuming that 90 percent of the current targets settle for $1,500, this means that the lawyers, studios, and P2P detection company would split $19.7 million.

I accept that I could be missing something here and would welcome enlightenment from someone better informed than me, but I find it difficult to believe that the lawyers have downloaded 18,000 copies (i.e. one for each John Doe) of the infringing material.

Without doing this, how can they have a case that actually stands up in court, and one that successfully proves that the John Doe actually made the material available? Surely it would only take a few hundred people to successfully challenge them for the profits to be lost?

roel_v6• 16 years ago

You don't need to download a complete copy to convince a judge/jury of copyright infringement. Don't forget that these are civil cases. It's not that hard to write a custom bittorrent client that automatically searches torrent sites for the media you're after, gathers lists of ip addresses, feeds it into your case management system and have that spit out the paperwork. You come into your office in the morning, run the software, and you can file 500 cases before lunch.

Actually I was describing this setup just a few weeks ago to my girlfriend. It's an awesome money machine, and it's what's going to eradicate 80% of todays user base of p2p programs over the next few years. Once a few high-profile publications publish stories of people paying thousands and Oprah runs an item 'how to prevent your kids from bankrupting you with p2p software', most casual infringers will become too scared to use illicit sources of media.

mootothemax2• 16 years ago

Ok, I get that civil court cases have a much lower standard of proof required, but this still gets me:

You don't need to download a complete copy to convince a judge/jury of copyright infringement

Why on earth not? If the burden of proof is that low, why not defend along the lines of "I put a file on my computer with that name as a joke."

I would love to see what evidence they use to prosecute, if it's only hashes or checksums alone, surely it'd be easy enough to write a fake client that lies?

ErrantX6• 16 years ago

Hmm as I understand it they are suing for the fact that the person is downloading the unauthorized copy (i.e. suing the peers). As to suing seeds; I guess the argument is that they have made the copy available - are facilitating the transmission of a copyrighted works.

Bearing in mind how P2P works Im not sure I understand why they would have to download 18,000 copies? The whole point of P2P is that you can download 1 copy from 18,000 [sic] people :)

(I don't agree with their argument in the slightest but what you've said doesn't appear to sync up with what is being argued)

dan00• 16 years ago

If enough people are paying, then they won't take you at a court, because it's just work for them without giving them a lot more.

If nobody pays, they don't have a business, because it wouldn't pay out for them, if they've to take everyone at the court.

RevRal• 16 years ago

I went to torrentfreak to double check the Hurt Locker numbers, because I could have sworn they were going after 'tens of thousands.'

http://torrentfreak.com/piracy-will-earn-hurt-locker-more-th....

Looks like this 5,000 for Hurt Locker was just the first batch, with more to come. I was surprised to see that 'thousands' of people are still downloading the movie. Somebody should tell those people :/.

I guess I'm glad I stopped running a TOR exit node. Ran one for a while, and always expected to eventually get a DMCA letter. Never did. Looks like these guys really don't care if the Does are innocent or not, they just need the money.

tptacek• 16 years ago

Aside: what the hell happend to Val Kilmer? _The Steam Experiment_?

sosuke• 16 years ago

Maybe he is on a global warming kick, he also played a part in The Thaw http://www.imdb.com/title/tt1235448/

hernan7• 16 years ago

Old age is the most unexpected of all the things that happen to a man. - - - - Leon Trotsky

funkdobiest• 16 years ago

I'm surprised that the extortion angle hasn't been used against them, yet. Wasn't a RICO suit filed against the RIAA for this behavior?

grellas2• 16 years ago

These lawsuits rely on what the lawyers call the "in terrorem" effect.

On the one side: people who are all set up for the fight, who have done the detailed research, who have drafted the key documents, and who are familiar and comfortable with a legal setting in which they hold all the advantages.

On the other side: an individual who gets a complete packet up front (detailed letter, draft complaint) in the form of a certified letter, who learns from his lawyer that he has no good defenses, and who discovers that it will take many thousands (if not tens of thousands of dollars) to defend this, and who ultimately has no stake in putting good money after bad to launch a major fight over a stupid download of what was likely a crappy movie anyway.

Basically, one who becomes a target here is like a chess player left only with his king to try to resist an opponent who has a range of big pieces. He could make a few futile moves before checkmate or he can resign immediately and accept the inevitable.

That is why it is a no-brainer to just pay the $1,500 and be done with it. Even with an arguably good defense, it just is not worth it for an average person to step into the fight.

josefresco• 16 years ago

All it takes is a few people to stand up for themselves with some help from a great organization like the EFF and suddenly those expensive lawyers are racking up huge costly hours.= and these lawsuits look less attractive.

http://www.eff.org/about/contact

"If you're in trouble, you can contact us at information@eff.org."

williamjames2• 16 years ago

You may be suggesting an answer to this in your posting, but I'm still curious: Do you think that any of these cases will actually be brought forth?

It seems to me that none will be, and to bring one to trial would be a very bad idea. The only way that it would be an easy case is if the defendant did not have wireless, was the leasee of the internet service, and was the only one on the network. Change any one of these variables, or add countless other things (VPN, etc.), and the case becomes progressively harder. Let's say that a case is brought forward: It will have widespread national media attention and everybody will be watching. Attorneys will be lining up to represent the defendant. Most importantly: The whole business model of the firm representing the complainant will hinge on the decision of the case.

wmf• 16 years ago

http://en.wikipedia.org/wiki/Capitol_v._Thomas

http://en.wikipedia.org/wiki/RIAA_v._Tenenbaum

grellas2• 16 years ago

RIAA messed up its litigation strategy by pushing its cases to the extreme and drawing headlines such as "$4.2 million verdict for downloading 28 songs" and the like. That strategy was clearly a bullying strategy but it was a stupid bullying strategy. It was stupid because it caused the public to recoil at the thought that a poor student (or some such person) would be ruthlessly crushed at the hands of a bunch of greedy record labels for having done something that didn't seem to deserve anywhere near such punishment. Eventually, the courts themselves came to the same position and dramatically reduced the damages awarded in such cases. RIAA had to abandon this strategy once it became clear that it would not really deter such downloading that much and, if it did, it would not be worth the price of the public relations disaster it was causing.

One thing to note about the RIAA strategy, however, is that, whatever the caliber of the legal talent on the defense side, RIAA still managed to win most of the cases on their merits. In other words, however much a defendant resisted, liability tended to be imposed at some level. Thus, it was primarily the excessive damage claims that got RIAA into trouble, not the legal merits of its claims as such.

Given that background, in this current spate of cases, you still have nothing more than institutional bullying, just as with RIAA but it is a low-level type of bullying of the "pay us $1,500 and we will forget this ever happened" variety and not of the "we will crush you and take your last penny" variety. This means that anyone who wants to fight this - even with good defense help from quality lawyers - will be at risk of incurring costs and liabilities that will easily exceed the walk-away payout that would simply allow them to put a bad episode behind them. And, if even a quality defense will not likely spare you from liability of some sort in the average case, it just isn't worth fighting for the average person. Thus, by not overreaching, the plaintiffs in these suits have actually strengthened their position. In effect, they are playing the numbers - by intimidating thousands of individuals into paying small amounts, they are ultimately gaining a significant payout in the aggregate.

Of course, this would not necessarily hold in more doubtful cases where a real defense might exist. But for the average user who simply did an improper download, there is no percentage in fighting it.

It might be that EFF has a good answer and their hearts are in the right place - but, unless there is radical change made to existing copyright laws, basically there is no good institutional response to this pattern of low-level bullying. Yes, an individual case might be successfully fought but, even if that case is won, it will only be for some failure of proof to show liability in that case alone. This does nothing to change the template for the mass of cases. And, if the plaintiffs in such cases can't be shamed into dropping them (as RIAA was), I don't see that they will.

Sorry to sound a down note but I think this is a realistic assessment. I would love to be wrong on this.

nihilocrat2• 16 years ago

Good thing I live in Canada, where they will slavishly adopt this practice maybe two or three years from now.

yason• 16 years ago

Please bear with me for a while.

A proposition: let's just start splitting our P2P downloads, initially and for simplicitly, in two counterparts of equal size that are XORed together to form the actual work whose copyright we want to infringe.

Downloading random data can't possibly be illegal—oh wait, despite of this naive scheme (that is almost out of Applied Cryptography and one that almost smells of a one-time pad), wouldn't my download still be non-random because it somehow must contain a kind of a half of a copyrighted work or something? Wouldn't it still infringing? Mere lawsuit-fodder?

It happens that if we have any blob of data of, say 700MB in size, then no matter what you do, someone can always construct another 700MB that—when XORed together—yields a copy of a recent movie.

If I legally download a Ubuntu live CD image, I can't possibly be infringing any copyright, right? Even if someone has constructed another image of the same size, that when XORed with the Ubuntu live CD yields a copy of Die Hard? Duh, easy: it's obviously the other 700M blob of data that's infringing copyright! Off to prosecute me if I do that, then.

Now, if I do happen to be downloading the other blob, what exactly would I be infringing? Again, the blob I'm downloading contains random bits and can contain—depending on the other half—any movie you can think of, under copyright or not. Or no movie. If someone gives me a suitable set of ten other halves, then I can get exactly ten movies out of the single 700M blob. But you can't possibly fit ten high-quality movies into a single 700M blob, so obviously the other blobs, again, must contain the actual payload and be illegal copies, and not this particular one...

If neither of the blobs is a public, recognized piece of data, how can you tell which is which? They're just both random data. If I individually XOR these blobs with other blobs and happen to get Ubuntu live CDs, Fedora installation CDs, WinXP corporate installer CDs, Die Hard and other movies, and memtest diagnostics CDs popping out of them, it's obvious that someone has been XORing these blobs with copyrighted works.

But you can't tell who exactly infringed the copyright; you can't tell who exactly downloaded the copyrighted works; and you can't tell who exactly uploaded them, either.

The infringing will eventually happen, should one choose to do so, in the privacy of one person's home. But how could anyone know? Especially MPAA/RIAA/<insert_goons>? Besides, fair use says that personal copies can be made, doesn't it. Or something like that.

Lawyers would of course, at this point, laugh at this feeble technicality and start aiming their prosecution guns at me, drooling off all the way. But as long as they could only observe IP numbers logged off a BitTorrent tracker or magnet swarm, what would they produce as evidence? They could try to convince the court that because I was downloading a 700MB blob named b8501756a0db1fc96a79920c30edd29e40a050b4 I was downloading and sharing a particular movie? Possibly, but how could they prove that?

They could carefully examine the logs and try to find out whether I've also downloaded and shared the particular XOR counterpart of this first part. But what if I got it off a website? They can't track direct downloads. Or what if there were three counterparts? Two of them available on torrents and a third counterpart of public data that I could legally and separately download somewhere or have it delivered over with an USB stick. Or I got some of them from FreeNet?

I guess they would have to show that I first had all the required parts and then actually assembled the files together in order to prove that I did, in fact, infringe the copyright of one work. If they don't, then why would downloading anything from internet not infringe the copyrights of all copyrighted works there are.

Please, someone tell me why this wouldn't work. Convenience? The maneuvers here do sound complicated but they could be mostly automated away.

I'm not stupid enough to think that this would somehow hold water, otherwise we'd be doing this already; I'm just stupid enough to not figure out why exactly would it fail, and I mean fail totally. Not just "yaa, they'd probably try to sue you anyway".

Because paying 2x or 3x bandwidth for the freedom to download and seed as much as you can would be a bargain. (And, yes, I would legally buy the best of all the warez I would download.)

viraptor• 16 years ago

It doesn't matter if you really downloaded a movie in this case or not. In the US the lawsuit handling costs are likely >= the requested fine. Even if you're right, you've lost. They would have to prove something only if you wanted to challenge their claim.

joe24pack• 16 years ago

"monetizing infringement" ... a wonderfully cromulent idea!

The RIAA? Amateurs. Here's how you sue 14,000+ P2P users

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