Wednesday, March 31, 2010

Achte/Neunte v Does 1-2094 : suit filed for infringement of movie

According to a a report in THR, Esq. a new wave of tens of thousands of lawsuits has been commenced by the alleged owners of copyrights in films made by non-major studios. The complaint in Achte/Neunte v. Does 1-2094 was filed on March 18, 2010, in the District of Columbia. It appears that the new cases are employing the very same tactics used by the RIAA in illegally joining large numbers of John Does in the same case, and moving ex parte (without notice) for discovery. It appears that the new cases are based on BitTorrent, rather than Gnutella, or FastTrack, protocols of file sharing.

The ex parte discovery motion was granted on March 22nd.

The Court's order provides that a motion to quash must be made within 30 days of service of the subpoena on the ISP, but makes no provision for how, when, or even whether the ISP is to give notice to its customers. I.e., under the order, the requested information can be divulged to plaintiff before the customer even learns that there is a subpoena.

According to the declaration submitted in support of the ex parte motion, the plaintiff's evidence is "proprietary".

Complaint
Order granting ex parte motion for discovery
Declaration in support of motion

[ Ed. note. My first reaction when I heard of this was that it was an April Fool's joke, since the RIAA's strategy of suing its customers has been a colossal failure, and since a small film maker would be even less likely to be that stupid. But -- unless someone is willing to file false documents in a federal court as part of a prank -- this is real. Real madness. But not an April Fool's joke, apparently. I've never heard of the plaintiff, or of plaintiff's lawyers, or of the allegedly infringed movie, but then again I don't get out much. I'm not much of a businessman, but I was wondering if this is some perverted way of getting publicity for movies no one has heard of. R.B.]

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

20 comments:

Eric said...

These will be interesting since at least with the previous cases they had a "username" that they could link to a specific person ( a tenuous link at best, but it was there ). Without that link these cases will be far more abusive than the RIAA cases.

Anonymous said...

Do I dream, or is this complaint very nearly a twin to the who knows how many thousands of cases brought by RIAA, only worse. At least RIAA plaintiffs had some vague grounds to assert standing.
This plaintiff does not. Far Cry is a 20th Centry Fox production. http://www.imdb.com/title/tt0400426/companycredits
The plaintiff in this case had no relation to the movie they're talking about. http://www.imdb.com/company/co0021154/
Patrick Achache - declarant who made the 'dclaration in support..." - did not state explicitly that HE compared the downloaded copy with the copy provided by the plaintiff.
And, there is no way whatsoever they could prove where that movie came from or how much of each seeder's copy was in turn copied.
I wonder how the judge could countenance an order given the (non-)facts at hand, and how long the case will last if any defendant puts up a vigorous defense to a judge who will actually listen to the defendant's arguments.

--Quiet Lurker

mathinker said...

Interesting. Assuming that the identities of all of the defendants are revealed to the plaintiff, does that mean that they are also revealed to each other, so that they could pool resources to fund their defense?

I suppose the plaintiffs would just drop the case against all but a much smaller number of defendants, perhaps. But if the money had already been accumulated in escrow for the defense of the remaining defendants, it might not matter. 2K x $500 = $1M. That would probably buy a pretty good defense (and would end up several times cheaper for everyone compared to the $2-3K settlements we've heard about in the past)!

Anonymous said...

I find it hard to believe that 2,000 people have watched Ewe Boll's Far Cry, let alone downloaded it.

That said, there are a couple more wrinkles here. The RIAA suits claimed to use a standard version of Kazza or similar program to identify the infringers. This suit relies on a "proprietary software" used by the investigating company and server logs. I have to wonder if the plaintiffs will willing to say they obtained those server logs in a legal manner, and if they will be willing to share the source code of their software for the defense to examine.

Anonymous said...

In line with this, you might find this of interest.

From Torrentfreak.com:
"The very lucrative turn-piracy-into-profit “speculative invoicing” model has leapt over the Atlantic to the United States and, as with most things stateside, it’s likely to be bigger than ever before."

http://torrentfreak.com/rights-holders-get-30-from-mass-bittorrent-litigation-100331/

TomasG

Anonymous said...

It seems like the technical hurdles are even higher than before, considering BitTorrent is used, and surely defense will be even better organized this time around, since much of the structure is similar to RIAA cases.

Perhaps it's my speculation, but it seemed that the RIAA stop bringing suits because they realized it was both a public and a financial liability. How is the MPAA different? Dunno.

Well, Ray, if you wanna continue on a similar line of work, here's one option.

XYZZY

T2 said...

The declaration of their tech contains several factual mistakes that should make one question his overall credibility:

BitTorrent clients can be configued to act in download-only mode. Moreover, certain clients contain IP blacklists that automatically prevent downloads and/or uploads from/to certain IP addresses. The assertion in paragraph 4 that "every downloader is also an uploader" is bogus. I guess every Arab is a terrorist too.

Paragraph 4 has another gem: "Each new file downloader is receiving a different piece of the data from each user who has already downloaded the file". In BitTorrent, a downloader can receive data from users who have NOT already downloaded the file. Uploading is no proof of having a complete (or even a partially playable) copy of a file.

Paragraph 8 purports to cover "All of the torrent infringers named as Doe Defendants were identified in one of two ways." But the method described does not do that. What they get from the torrent trackers (or "server" in their parlance) is a list of IPs of peers that MAY be offering PORTIONS of a file. There is no guarantee that this list is accurate (there are sometimes random or inaccessible IPs interspersed in these lists), or that the data shared by those IPs is genuine.

Paragraph 9 says "We then download the motion picture that the user is offering using BitTorrent Protocol." But they said in paragraph 4 that BitTorrent worked like this: "Each new file downloader is receiving a different piece of the data from each user who has already downloaded the file that together comprise the whole". Which means that, if you use "BitTorrent Protocol" to do the download, you will not the copy of the data that one specific user is sharing. Note in particular that NOWHERE in paragraph (9) does the author claim that they downloaded the file FROM THAT USER.

There are also grammatical oddities and other misuse of technical terms (like "Other users [...] connect to the
seed file to download"... one can't connect to files) or confusing claims ("examine the user's publicly available directory on his or her
computer" --- that cannot be done via BitTorrent).

Poor tech skills, poor language skills, these guys are worse clowns than the RIAA. I think they should sell their marvelous proprietary software to US colleges to help them fight piracy.

David L said...

According to TechDirt (http://techdirt.com/articles/20100331/1443278816.shtml), the copyright on Far Cry (the Uwe Boll movie) was registered too late. A lot of the infringement is alleged BEFORE the copyright was registered, which would limit any damages to actual (i.e. $10 or less).

Anonymous said...

Ray:

nevermind. I am wrong. cannot get statutory damages for infringe prior to registration.

Please trash my previous comment and this one.

freddie

Anonymous said...

Might there be a reason why this was filed in DC instead of the Southern District of New York?

Ray Beckerman said...

No doubt it was filed in DC to make it as inconvenient as possible for the largest number of defendants.

StephenH said...

I am suprised the court allowed them to join 2,094 defendants together. It seems as if the judge should have followed BMG Music v Does 1-203, Interscope Records v Does 1-25, and in re: Cases Filed by Recording Companies.

Anonymous said...

It would appear this new company is not alone, and another new company plans on taking the same approach, the Copyright Enforcement Group.

http://techdirt.com/articles/20100401/0846028831.shtml


They make it clear their goal is to profit by pre-settlement letters, from their main website

http://www.copyrightenforcementgroup.com/p2p.html

"The flagship service of the Copyright Enforcement Groups allows content owners to monetize peer-to-peer (P2P) activity and realize revenues from an unexpected source, internet piracy. Infringers are tracked 24/7/365, automatically receive a “pre-settlement” offer by email and process payments or purchase goods via Copyright Enforcement Group’s branded collections website"

They also make a number of interesting legal claims under their FAQ (and do not include the possibility that they could ever be wrong)

http://www.copyrightsettlements.com/faq.html

"Q: I haven't infringed on a copyright, why did I receive a notice?
A: If you are unfamiliar with the copyright protected file or content, we normally find that the infringement was the result of a spouse, child, roommate, employee, or business associate uploading, downloading or otherwise sharing or displaying the copyright protected material over your internet connection. Infringements can also result from an unsecured wireless network. In any of these scenarios the Internet Service Provider (ISP) account holder is still legally responsible for the infringement(s) and settlements fees.

Q: I can't find the file on my computer, do I still have to settle?
A: If you cannot locate the file on your computer we normally find that the infringement was the result of a spouse, child, roommate, employee, or business associate uploading, downloading or otherwise sharing the copyright protected material over your internet connection. As a result the file may not reside on your personal computer. Infringements can also result from an unsecured wireless network. In any of these scenarios the Internet Service Provider (ISP) account holder is still legally responsible for, damages, attorneys' fees and court costs due to the infringement(s).

Q: What if I have an unsecured wireless network/router?
A: The Internet Service Provider (ISP) account holder is responsible for securing the connection and legally responsible for any infringement(s) that result from an unsecured wireless network/router.


Q: What if I own a business and an employee infringed on a copyright?
A: The Internet Service Provider (ISP) account holder is responsible for securing the connection and legally responsible for any infringement(s) that occur. We normally find that business owners pass on out of pocket costs, discipline, or terminate the employee that was responsible for the infringement(s).

"



Some_Anonymous

Anonymous said...

Well at least they now admit that they are planning on ( imo immorally, if not illegaly) using the courts as a revenue stream.

Anonymous said...

Can't imagine the judges will sympathize too much this time around. -KB-

Anonymous said...

http://hal.inria.fr/docs/00/47/03/24/PDF/bt_privacy_LEET10.pdf

Spying the World from your Laptop

Identifying and Profiling Content Providers and Big Downloaders in BitTorrent
Stevens Le Blond , Arnaud Legout, Fabrice Lefessant, Walid Dabbous, Mohamed Ali Kaafar
I.N.R.I.A, France

[This might be of some interest..it discusses issues in tracking BitTorent users, admits that there are errors and discusses a few interesting facts about Torrent traffic.]

Qouted from their discussion of large down loaders on BitTorrent:

Monitors The fourth category is composed of monitors
that are peers spying on a large number of contents
without participating in the content distribution. We
identified two ASes, corresponding to hosting centers located
in the US and UK, containing a large number of IP
addresses within the top 10, 000 with the same behavior.
Indeed, these IP addresses always used a single port
and we were never able to download content from them.
Therefore, they look like a dedicated monitoring infrastructure
instead of regular peers. We found 1, 052 such
IP addresses within only two ASes in the top 10, 000 IP
addresses

BasicTek said...

So The RIAA cases were dependant on the fact that they a 3rd party was able to download a dozen or so songs from the defendant which in their warped minds meant that others were certainly doing the same. So instead of suing for 1 lost sale they sued for thousands of $$$ because judges were for the most part very partial to the industry and not average folks that didn't have deep pockets to mount a proper defense.

Now in the name of the MPAA they are going to use the same methodology except...

1) they will not download the file from any one user (because this is impossible)

2) They are still seeking thousands of $$$ even though a basic bittorrent user would normally only be at a ratio of 1 or so (meaning that spread against a hundred users or so the amount of bytes uploaded would = the size of the downloaded file). Normally only private site users would have a ratio much higher. When using bit torrent many in the swarm would never even get a complete copy because the seeders die out.

So even with the absurb assumption that the download = a lost sale (which is wrong for so many reasons) how can 1 download or 1 lost sale = thousands of $$$? I thought there were laws protecting people from this?

If I use another absurb RIAA/MPAA assumption that a download = a theft (which of course doesn't because nothing is actually taken). And someone stole 1 DVD from a store, could that person be sued for thousands of $$$?

This ought to be interesting. I would guess that like the RIAA cases many judges will line up to make horrible unfair decisions. One last question. I thought the RIAA lost money from their fear campaign and it was only kept up to make others fear downloading not as a profitable venture. How would this new group find any profit in this?

mhoyes62 said...

Just out of curiosity I looked up Far Cry (I also had never heard of it) for what torrents were available. In all of the movie version, there were only around 20 peers available with about 24 partial (leeches) available so I don't know how they got the 2000+. One thing I did notice however, there apparently is a Windows game called Far Cry out as well, and it had over 2000 peers offering it. Now, I didn't try to actually download anything, just went based on a torrent search to see what was available so this is not a rigorous test, but does give a little bit of insight into how popular this movie is/was.

On another note, if they are presenting evidence from a third party into court, doesn't it have to be rigorously proved before it can be accepted? Didn't they have to prove fingerprints were unique, and the same with DNA, before they were accepted? Given the number of times that it has been shown that the IP protocol allows spoofing and misdirection, how can this proprietary methodology even be allowed in the door?

Anonymous said...

If you have a modicum of technical savvy and look at the spreadsheet that DGW submitted, it's painfully obvious that they were attempting to take advantage of the judge's technical naivete by not providing city and state of the IPs listed (which are easily looked up on IP geolocator sites). The earliest "infringement" was in Rochester, NY on Mar 21, 2009. Unless something has changed, Rochester, NY isn't located in the Washington, D.C. District. Also, last I checked, the U.S. copyright hadn't been published on Mar 21st (it was published Nov 24, 2009 and registered Jan 19, 2010). As I've read copyright law, threats to sue "infringers" for statutory damages of $150K per work for downloading files prior to Nov 24 are meaningless; the best they can hope to get is actual damages. It would appear that they're trying to game the courts so as to bypass their due diligence before issues of personal jurisdiction can be brought to light. Fortunately, it appears Judge Collyer caught up with them on Sep 10th, when she ordered the DGW and the plaintiff to show personal jurisdiction for the remaining 4,500+ John Does. It gets even more interestinger, but I'll stop now, because I'm one of the "defendants". (And NO, I did NOT download Boll's stoopid movie. After legally purchasing and cringing my way through "Alone in the Dark" and "In the Name of the King", I finally learned my lesson about Uwe Boll movies. I'm just glad I didn't buy them new...)

Anonymous said...

Apparently this has been going on in Europe for a couple of years and it's starting to draw a backlash.

Here's something interesting:

The House of Representatives report on the Berne Convention Implementation Act of 1988: Page 7, section B, second paragraph states: "The United States, as a leader in the creation and global exploitation of copyrighted works, has a great interest in a strong and viable international copyright system.n18 Under the U.S. Constitution, the primary objective of copyright law is not to reward the author, but rather to secure for the public the benefits derived from the authors' labors. [emphasis added] By giving authors an incentive to create, the public benefits in two ways: when the original expression is created and second when the limited term of protection expires and the creation is added to the public domain."

www.peteryu.com/intip/bciahr.pdf

A spokesman for the law firm Dunlap, Grubb, and Weaver, Mr. Weaver, has publicly stated that the reason he and his law firm are pursuing these cases on contingency is: "We're creating a revenue stream and monetizing the equivalent of an alternative distribution channel". In other words, Dunlap, Grubb, and Weaver's primary objective is to seek monetary rewards for their client (and themselves) that would not otherwise be forthcoming in the market for Mr. Boll's movie, even in normal distribution. And they are attempting to abuse U.S. law, the U.S. court system, and U.S. citizens to do it.