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?
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.
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?
I've helped defend victims in a few of these cases (in the UK) so this is my best guess.
Ultimately the evidence they have is pretty good. They grab a torrent and begin to download the file, they watch which IPs connect - both seeds and peers - and record them. They then apply for a subpheona from the courts.
The argument (for peers) is that the user has connected to the P2P network and is trying to download copyrighted material. Under civil law this is a reasonable burden of proof (and, honestly, I can't really argue with it). With seeds it is an even stronger argument; because the seed has at least a partial copy of the copyrighted work and is facilitating the sharing of it.
This will stand up in court; and, to be honest, I don't think it is disputable under current law.
What we should be disputing (and I have helped with successes here in the past) is that the damages are completely disproportionate. The way I've managed this is by explaining how P2P really works to judges/courts - and usually they start to come round to the idea.
We also should, outside of the cases, be working to promote the idea of copyright reform so that this becomes less of a cash cow.
I've got a theory about this, maybe you can enlighten me.
Suppose that the movie/song/whatever being downloaded is actually wrapped in a ZIP or RAR -- even better, suppose that it's encrypted (granting that the downloader would have the decrypt key). And suppose that somebody downloads a chunk of it (say 10%) from me.
That 10% chunk alone is absolutely useless. As it stands, it's effectively random data that cannot be used to recover any of the intellectual property that's inside the archive.
One might claim, then, that I did not actually give the downloader any copyrighted materials. It's only his action, in combining it with the other chunks, that allows the IP to be extracted. Thus, neither I nor the 9 other people who hypothetically provided chunks of the file could be blamed individually for providing copyrighted materials to the downloader. At most, each of us aided and abetted the downloader by providing a necessary but insufficient piece.
Obviously IANAL, but those are my thoughts. How do they strike you?
This is actually a pretty common "idea" (not a bad one, just it comes up a lot :)) that an accused comes up with when I meet them. The same argument, really, applies to anything transmitted over P2P - you usually only download a small chunk from one person, encrypted or not.
My response is usually: "were you uploading copyrighted stuff?". Answer: "yes". Me: "well then..."
Saying "but I only gave him a small piece of data - what he does with it is his own business" doesn't stand up because clearly your intent was to give him part of the file so he could construct the file (this argument has been used for centuries to try and get out of things and almost always fails :P)
Seriously? I think people should just suck it up, admit they did something wrong (currently wrong anyway...) and then fight the idiotic fine.
Ultimately the law is not really about the exact bits you exchange (one of the few things I agree with, actually) but about your intent and facilitation of the shared file.
EDIT: to clarify/extend something. I think it is a dangerous road to bring the idea of what the individual bits you send mean - because that starts to open up the idea the a certain ordering of bits could be illegal (take a CP case - if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within a music file you own. Or perhaps the bits in an MP3 appear by random occurrence in a video file you own. This is a dangerous weapon to hand people :P)
> Saying "but I only gave him a small piece of data - what he does with it is his own business" doesn't stand up because clearly your intent was to give him part of the file so he could construct the file (this argument has been used for centuries to try and get out of things and almost always fails :P)
You're right. More specifically, programmers have argued that complex schemes involving encryption and similar technologies will protect them in court[1] from lawsuits. The essay "What Colour are your bits?" at http://ansuz.sooke.bc.ca/entry/23 explains in detail why this won't work.
1: as opposed to keeping people out of court in the first place, which crypto technologies can plausibly do.
Upvoted because you partially answered my question -- but I'm not quite satisfied.
My point isn't that "it's just a little piece". Like being "a little bit pregnant", I don't think that "infringing a little bit" could amount to much of an argument.
It's that with certain methods of encoding, a piece is entirely worthless without the rest of the file. That is, I could give a chunk to the IP owner to inspect, and there's no way that he could tell me if it represented a part of his work.
if a certain ordering of bits makes up the left breast of a child if interpreted as part of a Jpeg is that illegal if randomly occurs within...
This makes me think of the Judas Priest "back masking" trial way back when [1]. The wikipedia article notes "The case was dismissed by the judge for insufficient evidence of Judas Priest's placement of subliminal messages on the record", and that's a little ambiguous: do we read that to refer to the existence of the message, or to the intent to put the message on the record?
Anyway, for the danger that you outline, I would think that if it's possible to transform a data stream into a different context in which it could be construed as illegal, then the evidence would also need to include possession of, or access to, a means of accomplishing that transform.
Without some kind of consideration of this, steganography would throw a wrench into everything.
It's that with certain methods of encoding, a piece is entirely worthless without the rest of the file. That is, I could give a chunk to the IP owner to inspect, and there's no way that he could tell me if it represented a part of his work.
Surely, even without encoding, the piece is pretty worthless without the remainder of the file.
But I see what you mean though (you couldn't even reconstruct a portion of the file).
Im not sure it matters; the point is definitely the intent to supply the copyrighted media in whatever form. It's similar to the persons idea not long ago of supplying obfuscated MP3's by encoding them as Tweets and then supplying the code or algorithm to recover and reconstruct the file. It's all part and parcel of the same thing. It's just obfuscating the delivery method not the actual package/intent.
More importantly I don't think the court will be sympathetic to the idea; and if that is the case it risks invalidating other arguments you may bring.
(there is a similar thing in money laundering; many launderers try and get away with it by rotating very small parcels of money from lots of different batches through legitimate transfers. The idea is twofold; it's difficult to reconstruct the original larger packets of illegal money and b) they can claim, for various reasons, they had no idea of the origin of the money. This argument, as you can imagine, doesn't last long in court :))
I think, ultimately, it is not currently possible to fight the idea that distributing copyright materials in any form could be legal (or at least not illegal).
Your zip or rar or encrypted form or whatever of the IP is directly derived from the original, and as such it is still subject to the same restrictions as the original. Derived material is protected in the same way as the original.
If you ROT13 a book, and upload one chapter, is that infringing? Answer: yes, because it is distribution of a work derived from a protected work. Does it matter if the original is recoverable? No. If the receiver of the ROT13 version doesn't know about ROT13, it's still infringing. If it's even technically impossible to recover the original (because it's part of a larger encrypted file, because you don't know the password/decryption key, ...), is it still infringing? Answer: yes.
what about the argument that someone could have used my unsecured wireless network to download copyrighted material with my IP address without my knowledge?
While most people protect their wireless, I know many mom and pops who still have no clue how to do any of that stuff and could be victims of their neighbor's crimes.
That would maybe work for a clueless old lady. The standard for someone with a technical background, of whom can be expected that he should know about these issues, would be higher than for someone who can make a reasonable case of not knowing about these things. At some point it becomes an "assumed liability" (that's probably not the proper term in common law systems) - what I mean is a liability for something not arising from doing or not doing something (like punching someone in the face - that's something you actively do), but rather from being in a certain position, like when you own a house, and a roof tile falls off on someone's head, you're still liable because it's your house (again this is technically not correct in tort-based systems but the principle holds). In the same way one could argue, in my opinion reasonably, that owning & using certain equipment (wireless routers) brings with it a certain responsibility, in this case making a reasonable effort to make sure that the equipment is not used to violate other people's rights. It will depend on the circumstances if this is acceptable.
In that case, Bruce Schneier is a genius... By publicizing his open wireless network, he has an excuse to download whatever he wants. And if the prosecution wants to argue for "assumed liability", what expert witness is going to trump Bruce Schneier? :)
Your assertion doesn't follow from the article. Like the other commenter remarked, Schneier is merely saying that because of the large amount of open wireless netwokrs, the chances that he's the one that'll be caught are so small that the risk outweighs the benefits.
Secondly, Schneier (as knowledgeable about crypto and security in general as he is) is in no position to be an expert witness on the interpretation of legal concepts like whether or not this liability exists in the present case. Even worse, by publicizing this article, he is basically making it public that he knows about the dangers yet deliberately ignores it, and thus enables eventual wrongdoers. I think he should talk his lawyer friends again that he mentions in the article to assess the potential extra damage he's doing to himself by publishing this. In effect it's what I mentioned in another comment above about people who are technically adept and therefore will be held to a higher standard. He's handing the (hypothetical) opposition their argument on a silver platter.
You can use that as a "defense", yes. But really, put yourself in the shoes of somebody who has nothing at stake in this argument. What position is more reasonable:one guy saying "I think my rights are being violated, I have proof x y and z of that" (logs, checksums, whatever); and then another mounting a defense saying "yes it seems like that from the outside but I just faked all of that as a joke! Hahaha!" Why would anyone put files with wrong names on their computers "as a joke"? As a defendant you then have to substantiate your claims, basically because they're so outrageously far-fetched. Let's be honest, it's in the same category as a defendant in a tort suit (e.g. car accident) mounting an "It's my evil twin brother who stole my car and then parked it on my driveway!" defense. You can claim things like this all you want but in the end it comes down to a "reasonable" interpretation of the facts by a judge. And contrary to popular opinion, they're not stupid.
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)
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?