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California Judge Denies Discovery In Bittorrent Case

Unknown Lamer posted more than 2 years ago | from the open-wifi-defense-in-action dept.

The Courts 100

New submitter PhxBeau writes with news of a particularly sane judge in a copyright case. Quoting TorrentFreak: "In yet another mass lawsuit against alleged file-sharers, a California court has said that while it's sympathetic towards the plight of the copyright holder, it will not assist in the identification of BitTorrent users. It's a shame technology that enables infringement has outpaced technology that prevents it, the judge wrote, but added that his court won't work with copyright holders who pursue settlement programs with no intention to litigate." The core issue is that an IP does not identify more than the bill-payer — the good cause standard therefore is not met because the actual infringer is not identified.

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IP does not identify more than the bill player (-1, Flamebait)

SupportLine (2612189) | more than 2 years ago | (#39599583)

The core issue is that an IP does not identify more than the bill payer — the good cause standard therefore is not met because the actual infringer is not identified.

I think this is sane. And with a decision like this, we can extend it to cover terrorists, child porn collectors and other criminals. Because IP does not identify more than the bill player and the good cause standard therefore is not met because the actual infringer is not identified.

Re:IP does not identify more than the bill player (4, Insightful)

Microlith (54737) | more than 2 years ago | (#39599731)

It sounds almost as if you're shilling for the plaintiff, defending their misfortune by using the worst of all arguments to criticize the judge's decision.

Re:IP does not identify more than the bill player (3, Interesting)

SupportLine (2612189) | more than 2 years ago | (#39599771)

Or maybe it's more about the double standards in legal systems? Do you honestly think the judge would make the same decision in such "more provocative" cases, even if the issue in hand is technically same in all?

Re:IP does not identify more than the bill player (5, Interesting)

Anonymous Coward | more than 2 years ago | (#39599909)

Identifying the bill payer doesn't do anything other than give the RIAA/MPAA someone, who may or may not be a copyright infringer, to sue.

Look at it this way: If I download pirated material while using Starbucks's free wi-fi, Starbucks is the one who gets accused for copyright infringement..

Re:IP does not identify more than the bill player (4, Insightful)

PPH (736903) | more than 2 years ago | (#39600023)

Look at it this way: If I download pirated material while using Starbucks's free wi-fi, Starbucks is the one who gets accused for copyright infringement.

Which is why the other part of the judgment is equally important: The court should not be locating the deep pockets just so that the plaintiff can take the settlement private. Once the court has been asked to participate, they should have the right to look at their own work product (the validity of an identity in this case) and block a subsequent private action based on it.

Re:IP does not identify more than the bill player (1)

CycleMan (638982) | more than 2 years ago | (#39604649)

Which is why the other part of the judgment is equally important: The court should not be locating the deep pockets just so that the plaintiff can take the settlement private.

It's great to hear that a judge has said no to these folks, but given the number of other cases they have filed, I suspect they'll just try a different courtroom next. Per the Judge's decision,

"According to this court’s research, at the time of the hearing 69 mass copyright infringement cases had been filed in this district. Of those, plaintiff obtained early discovery in 57 cases and issued subpoenas to obtain subscriber information for more than 18,000 IP addresses."

This one case is probably just a hiccup to these trolls, unless a lot of people get a lot of positive legal publicity for this ruling.

Re:IP does not identify more than the bill player (4, Informative)

Anonymous Coward | more than 2 years ago | (#39599915)

One case is civil, the other is criminal. Hence the double standard.

Re:IP does not identify more than the bill player (1)

jamstar7 (694492) | more than 2 years ago | (#39602777)

... and the double jeopardy when they can't get a conviction in criminal court.

Re:IP does not identify more than the bill player (4, Interesting)

Anonymous Coward | more than 2 years ago | (#39599967)

"more provocative" cases would have more evidence, the IP Address only opens a door for them to look at the person. Then they devote resources into gather real evidence.

I like this ruling very much, and it is a very important aspect that needs to be brought up, if this IP address could be someone else then they haven't identified the person at all.

The analogy I use for this is: "If you see someone whole stole something run into my back yard, am I then arrested and jailed with no other information?"

They have eye witnesses of an unknown individual who they know stole something go into my backyard. They are claiming to know who the individual is because they went into my back yard. Yet they didn't even look for match, they go after who ever the owner is. Never mind that the owner could also be a victim of that same individual (virus).

Re:IP does not identify more than the bill player (1)

Jane Q. Public (1010737) | more than 2 years ago | (#39602983)

I would say that the many cases of police busting down the wrong doors (most commonly in New York and Los Angeles, it often seems) would qualify as them doing exactly that... busting or trying to bust the wrong person based on evidence that hasn't been held up to a proper standard.

Re:IP does not identify more than the bill player (5, Insightful)

Anonymous Coward | more than 2 years ago | (#39600031)

Notice how he said that he wouldn't support it in pursuit of settlements with no intent to litigate.

That's not a double standard, if they intended to actually pursue these individuals with a real discovery phase where a warrant is obtained to search those individuals' computers to identify the real infringer, then it sounds like he would have found differently.

If criminal (not civil) activity is taking place, the bill payer can be a good first step toward identifying the perpetrator. Those individuals would also be afforded a court provided attorney so they don't end up hundreds of thousands of dollars in the hole just to make a copyright troll go away.

Re:IP does not identify more than the bill player (1)

robot256 (1635039) | more than 2 years ago | (#39599733)

I'm pretty sure they would overlook that in an overtly criminal case CP or terrorism, probably by casting the bill payer as an "accomplice" of some sort who could have information about the crime. That would be enough to get the address from the ISP. Whether it would lead to a friendly chat or a SWAT team raid is the biggest unknown, but there's no way they would let a pesky little bit of precedent get in their way for something like that.

Re:IP does not identify more than the bill player (5, Interesting)

Baloroth (2370816) | more than 2 years ago | (#39599961)

I'm pretty sure they would overlook that in an overtly criminal case CP or terrorism, probably by casting the bill payer as an "accomplice" of some sort who could have information about the crime. That would be enough to get the address from the ISP. Whether it would lead to a friendly chat or a SWAT team raid is the biggest unknown, but there's no way they would let a pesky little bit of precedent get in their way for something like that.

Except those would be criminal cases, not civil as is the case here, so the same legal standards would not apply.

To give an extreme example, if someone sent an image of your kidnapped daughter from a given IP address, you would sure as hell want the police to find out who owns that IP. So yes, they would deal with it differently, because an overtly criminal case is different.

Re:IP does not identify more than the bill player (1)

robot256 (1635039) | more than 2 years ago | (#39600377)

I thought that would be the case. It's just there have been so many ramblings about trying to criminalize copyright infringement I wasn't sure what category it fell under...

Re:IP does not identify more than the bill player (1)

jamstar7 (694492) | more than 2 years ago | (#39603029)

Civil cases don't involve jail time. In every FBA 'antipiracy' statement on every DVD I own, I'm threatened with 5 years in prison and an outrageous fine if I 'violate' their copyright. Said violations include ripping the content to my hard drive (aka 'format shifting'). It's already criminalized. Hell, ownership of a DVD is damned near a criminal act as it 'facilitates piracy' by mere possession. You have access, you too may be one of those eeeeeeeeeeeeeeevil pirates.

Re:IP does not identify more than the bill player (1)

jamstar7 (694492) | more than 2 years ago | (#39603041)

Ack!! make that FBI antipiracy statement. I need more caffeine

Re:IP does not identify more than the bill player (1)

Sancho (17056) | more than 2 years ago | (#39604355)

Those are weaselly. They say that criminal infringement has those penalties. Not all infringement is criminal.

Re:IP does not identify more than the bill player (1)

jamstar7 (694492) | more than 2 years ago | (#39604555)

Except that *AA defines any infringement is criminal infringement.

Re:IP does not identify more than the bill player (1)

Sancho (17056) | more than 2 years ago | (#39604683)

I thought you were talking about the FBI warning, not the RIAA or MPAA.

Re:IP does not identify more than the bill player (2)

Moses48 (1849872) | more than 2 years ago | (#39599745)

If you wanted to mass lawsuit and try for a settlement against terrorists, that would be banned as you can't declare the IP address identifies the user that did it. If, on the other hand, you want to get a search warrant to look for terrorist activities, the IP address is more than sufficient in giving probable cause for a search.

Or would you rather be sent to Guantanamo because your network was compromised and your IP address sent terrorist data?

Re:IP does not identify more than the bill player (1)

Jane Q. Public (1010737) | more than 2 years ago | (#39603007)

"If, on the other hand, you want to get a search warrant to look for terrorist activities, the IP address is more than sufficient in giving probable cause for a search."

On the contrary: judge after judge in the past couple of years have ruled that an IP address alone is NOT probable cause. And properly so. It doesn't identify an individual, or even a household. My IP address is available to people all over my neighborhood, and vice versa: I have a network adapter that can access routers more than 2 blocks away.

Re:IP does not identify more than the bill player (1)

jamstar7 (694492) | more than 2 years ago | (#39603339)

Or would you rather be sent to Guantanamo because your network was compromised and your IP address sent terrorist data?

Great. Give them more ideas...

Re:IP does not identify more than the bill player (0)

Anonymous Coward | more than 2 years ago | (#39599759)

IP address doesn't even identify the bill payer in many cases, only an address from which the supposed infringement has taken place which, given the number of actual devices that might be connected via a public facing IPv4 address, is at best a speculative guess...

Re:IP does not identify more than the bill player (1)

WhatAreYouDoingHere (2458602) | more than 2 years ago | (#39599823)

IP address doesn't even identify the bill payer in many cases, only an address from which the supposed infringement has taken place which, given the number of actual devices that might be connected via a public facing IPv4 address, is at best a speculative guess...

I think they mean the one who pays the ISP bill for the public-facing IPv4 address.

Re:IP does not identify more than the bill player (2)

eln (21727) | more than 2 years ago | (#39599787)

We should extend it to cases like that, yes. Innocent people have had their lives ruined more than once due to accusations of child pornography because someone else was piggybacking on their connection. With the ubiquity of WiFi, more sophisiticated methods of determining who the culprit is are needed. The cops should not be allowed to conduct raids or make arrests based solely on an IP address.

Re:IP does not identify more than the bill player (1)

Tyr07 (2300912) | more than 2 years ago | (#39599937)

You should be aware of the contents of your hard drive though. If your computer gets seized and they find the content on there, I can see you being held responsible.

Travelling the internet is like travelling the world. No one should do it without advice. They should also seek it from a reputable source if they have questions about anything.

If you know nothing about computer security, virus prevention and how to secure your networks, pay a professional to do it.
The arguement of 'people shouldn't do that to me' isn't sufficent. People shouldn't do a lot of things, content involving children shouldn't even be available in the first
place, and so fourth for anything else. But it's there, people do bad things, you need to know how to protect yourself.
Just like when you visit another country, don't go down the dark ally in the shady part of town you know nothing about, you could land in some serious trouble.

Re:IP does not identify more than the bill player (3, Interesting)

Muad'Dave (255648) | more than 2 years ago | (#39600719)

You should be aware of the contents of your hard drive though. If ... they find the content ... there, I can see you being held responsible.

So if I drop a baggie of heroin in your car's gas tank (or tuck it into in the grill, or stick a magnetic key hider in the wheel well, etc) when you're not looking and the drug dog 'indicates', you're ok with going to jail?

I didn't think so.

Re:IP does not identify more than the bill player (1)

C0R1D4N (970153) | more than 2 years ago | (#39603861)

In the US you would go to jail if someone else left drugs in your car. Not saying that is right, just the sad reality.

Re:IP does not identify more than the bill player (1)

Tyr07 (2300912) | more than 2 years ago | (#39618333)

Your comparison isn't quite accurate in my opinion.

Dropping a baggie in your gastank would be like someone using your wifi to do something illegal. Same with the other places.

Finding it on your hard drive is something I'd compare more to having it inside your car in the passenger compartment, or a glove box etc.
If there was no sign of force entry, then it sounds like you left your car unlocked when you shouldn't have.

And yes, if they found it inside your car like that, you'd be going to jail.

Re:IP does not identify more than the bill player (1)

mcgrew (92797) | more than 2 years ago | (#39601433)

You should be aware of the contents of your hard drive though.

With cheap terabyte drives? How?

Re:IP does not identify more than the bill player (2)

retchdog (1319261) | more than 2 years ago | (#39599799)

good cause is a relative standard.

Re:IP does not identify more than the bill player (2)

mounthood (993037) | more than 2 years ago | (#39600315)

good cause is a relative standard.

Thank you. The idea that we would compare copyright infringement with terrorism and CP (like the OP did) is just crazy. What's Slashdot coming to that the OP is scored Insightful?

Re:IP does not identify more than the bill player (1)

retchdog (1319261) | more than 2 years ago | (#39603381)

eh, it's a fair cop. the modding, that is.

on certain days i fucking hate the world and abuse my mods just to watch this place burn. and yet i still get, on average, at least 10 a week.

Re:IP does not identify more than the bill player (0)

Anonymous Coward | more than 2 years ago | (#39599821)

Wow, first comment is the good 'ol "terrorists!" and "think of the children" argument. I have a roommate, and friends over all the time. If someone pirates something while at my house without me knowing about it, should I go to jail and pay thousands of dollars because of it?

Re:IP does not identify more than the bill player (2, Funny)

SupportLine (2612189) | more than 2 years ago | (#39599929)

should I go to jail and pay thousands of dollars because of it?

You don't need to go to jail AND pay thousands of dollars. It's enough if you just pay.

Re:IP does not identify more than the bill player (0)

Anonymous Coward | more than 2 years ago | (#39604621)

How does it feel to be a poorly-paid shill for those seeking to stifle the Internet cultural renaissance?

Re:IP does not identify more than the bill player (3, Interesting)

Myopic (18616) | more than 2 years ago | (#39599953)

First of all, you wouldn't go to jail because this wasn't criminal copyright prosecution. This was a tort.

Second of all, if the judge HAD allowed discovery, then you would have been very inconvenienced, and then the discovery process would uncover that your friend downloaded the file. So you still wouldn't have paid a fine. But you would have been inconvenienced, and you probably would have paid a lawyer, and lost your computer for a while, and maybe a bunch of other stress.

This is a good decision based on the law, and also because it will save innocent people all that stress.

Re:IP does not identify more than the bill player (3, Interesting)

Alex Belits (437) | more than 2 years ago | (#39601271)

Except the company had no intent to file a lawsuit, so there wouldn't be a discovery phase, they would just send you a bill with "settlement offer" with no recourse other than suing them.

Re:IP does not identify more than the bill player (1)

Myopic (18616) | more than 2 years ago | (#39618223)

I don't think that's how the settlement offers work. If you get a settlement offer, and ignore it, then they have to sue you to get the money. Sending a letter isn't free money. People still have to agree to pay. A defendant doesn't sue the plaintiff; that's not how it works; that's the opposite of how it works.

Re:IP does not identify more than the bill player (1)

Alex Belits (437) | more than 2 years ago | (#39621525)

They wouldn't sue you for the amount of "settlement", they would threaten you with a lawsuit for tens or hundreds millions of "damages", what would be a completely different matter.

Re:IP does not identify more than the bill player (1)

zlives (2009072) | more than 2 years ago | (#39599889)

"his court won't work with copyright holders who pursue settlement programs with no intention to litigate"

Re:IP does not identify more than the bill player (1)

Myopic (18616) | more than 2 years ago | (#39599911)

You just compared the judgement of a tort to the prosecution of crimes. Since you did that, I have to assume that you don't understand the difference between torts and crimes, or else you don't understand why that difference makes all the difference. I encourage you to educate yourself about the laws under which you live, because it's really important and might save you a lot of trouble someday. If you just simply are not willing to educate yourself, then at least try to realize that your current understanding of the law is very lacking, so you shouldn't make any conclusions based on it; before you make any big decisions, learn what you need to know. Good luck.

Re:IP does not identify more than the bill player (0)

Anonymous Coward | more than 2 years ago | (#39599913)

Nice, straight to the scare tactics. But it's true though, it doesn't identify the actual infringer so you can't prosecute someone on that alone. You'd be surprised at how many people either have as their password as "Password", "1234" or just don't have one at all in my experience, makes it far too easy for some stranger to access your network and download all sorts of copyrighted materials. You can't prove anything

Re:IP does not identify more than the bill player (1)

fiziko (97143) | more than 2 years ago | (#39599955)

I'm sure they would handle the two situations differently. The judge is denying the copyright holder from identifying the bill payer, not the police. If law enforcement officials traced a source of child porn to an IP, they'd mostly likely be given the warrant required to determine who the infringing party is. The parents of the child that was photographed wouldn't get that information: the law enforcement officials would. That's a significant and fair distinction in my mind. Granted, I'm not a lawyer, but this is how I would expect a reasonable and level headed court to handle the two situations. If law enforcement officials wanted the IPs rather than the copyright holders, then it may again be different.

Re:IP does not identify more than the bill player (1)

Translation Error (1176675) | more than 2 years ago | (#39600199)

I think this is sane. And with a decision like this, we can extend it to cover terrorists, child porn collectors and other criminals. Because IP does not identify more than the bill player and the good cause standard therefore is not met because the actual infringer is not identified.

So... you're saying people a company suspects of copying their works should be subjected to the same sort of investigation that terrorists and child pornography collectors are?

Re:IP does not identify more than the bill player (1)

somarilnos (2532726) | more than 2 years ago | (#39600203)

This is a far cry from a fair shelter for terrorists and kiddie pornographers. An IP address, in and of itself, isn't going to get you convicted of terrorism or possession of child pornography. It's something that points police in the right direction, then further investigation is what identifies the actual criminal. Now, let's say that, for example, Bob Al Qaeda uses a public wifi connection at McDonald's to plot a terrorist attack. Do you think it's appropriate that the FBI arrest the franchiser of the McDonald's for terrorism, and call it a day? Or that they send said franchiser a letter demanding that they pay money or they will be sued? Or do you think, that, instead, they should use that as a starting point, find out who was using the connection to plot the terrorist attack, and arrest that person? I'm going to say the latter is far more effective at not only preventing terrorism, but imprisoning the people responsible. And that's the point of this - the IP address does not identify the perpetrator, and copyright holders need to understand this in making efforts to protect their copyrights.

Re:IP does not identify more than the bill player (0)

Anonymous Coward | more than 2 years ago | (#39600859)

Let me know when your examples become civil issues and I'll let you know when your analogy works.

Re:IP does not identify more than the bill player (0)

Anonymous Coward | more than 2 years ago | (#39602059)

When you get busted for terrorist conspiracy and child porn because someone broke into your wireless network and used to for those reasons, I'd like to see you say the same thing.

Re:IP does not identify more than the bill player (0)

Anonymous Coward | more than 2 years ago | (#39603189)

Comparing things like terrorists with people who where files
and violate copyright is pure idiocy. Don't expect support for your mindset
from anyone but an idiot.

Maybe theres hope for the human race yet!? (1)

intok (2605693) | more than 2 years ago | (#39599605)

A Judge with a brain!? A heretic I say!

Re:Maybe theres hope for the human race yet!? (1)

SJHillman (1966756) | more than 2 years ago | (#39599663)

Don't worry, he'll be removed shortly.

Re:Maybe theres hope for the human race yet!? (1)

Anonymous Coward | more than 2 years ago | (#39599721)

:(

Thank you. (4, Insightful)

JustAnotherIdiot (1980292) | more than 2 years ago | (#39599719)

his court won't work with copyright holders who pursue settlement programs

And this is how it should be.

Re:Thank you. (5, Insightful)

Anonymous Coward | more than 2 years ago | (#39600245)

...with no intention to litigate.

Do keep in mind that if there is actual intent and effort to prosecute, the judge would cooperate. He is merely stating that these evidence-free shakedowns are not part of his job and he will not waste his time assisting them.

Better than many possible judgements, maybe it will deter some of the intimidation ploys.

Re:Thank you. (3, Interesting)

Jane Q. Public (1010737) | more than 2 years ago | (#39602829)

"Do keep in mind that if there is actual intent and effort to prosecute, the judge would cooperate."

Very doubtful. If he meant that, he could simply have refused based on the perceived intent of the claimants to settle rather than litigate. Instead, he took the trouble of mentioning that it did not meet the "good cause" standard.

But the good cause standard applies whether they are litigating or not, so no, he probably would NOT "cooperate".

Re:Thank you. (0)

Anonymous Coward | more than 2 years ago | (#39600439)

... didn't mean to mark this as Redundant. Sorry. +1 Insightful.

Re:Thank you. (2)

Shagg (99693) | more than 2 years ago | (#39601485)

Which probably means it's going to get overturned. :(

Genius! (-1)

Anonymous Coward | more than 2 years ago | (#39599813)

And a license plate does not identify more than the vehicle owner. Bang into somebody's car and you're off scot free as long as the only information they have is your license plate number. This judge is clearly a genius!

Re:Genius! (1)

Tyr07 (2300912) | more than 2 years ago | (#39599963)

No! You're the genius! Now people can just steal cars of people they don't like, smash into people with it at a parking lightly, and all they have is the license plate! Now your enemies can be sued by random people you pissed off!

Re:Genius! (0)

Anonymous Coward | more than 2 years ago | (#39599999)

I'm sorry to have to disagree here, but there is one more level of abstraction. The license plate simply identifies the person who pays for the license that results in that plate. The plate can be placed on any car (not legally, but physically it can be). There was even an interesting article not too long ago about people printing (with paper) license plates that duplicated the ones of some people they don't like and speeding through red lights at intersections with traffic cameras. And yes, it did result in tickets going to the license plate holder.

Re:Genius! (1)

Riddler Sensei (979333) | more than 2 years ago | (#39600151)

In addition to the above comments it is also somewhat common to use a stolen car as a get-away vehicle in robberies and other crimes.

In fact this happened to my family during my childhood. We woke up one morning to find that not only had our Jeep been stolen but that it was used that night to break a number of traffic and safety laws.

Re:Genius! (1)

Anonymous Coward | more than 2 years ago | (#39600155)

The difference with this analogy though is that the police directly deal with traffic infringements.

The copyright holders should not be able to send fines/etc. without police involvement... although I assume this will change eventually.

Huh? What? (4, Informative)

PPH (736903) | more than 2 years ago | (#39599843)

The core issue is that an IP does not identify more than the bill payer -- the good cause standard therefore is not met because the actual infringer is not identified.

That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection, then a part of that responsibility would seem to be knowing who is using your connection and when. If the TOS allow you to give connections away to third parties anonymously (like the coffee shop I'm sitting in now does), then I'd agree with the above statement.

I wish they (the court) would have emphasized the denial based upon the use of the courts as an empty threat and/or means of discovery for the subsequent pursuit of a private settlement. In other words, once you approach the court to do your dirty work, you've got to use them to mediate the settlement*. If you want to settle privately, hire your own detective agency. P>*Which gets you reasonable and uniform penalties and makes settlements a matter of public record.

Anyone can write any IP number anywhere (4, Interesting)

ODBOL (197239) | more than 2 years ago | (#39599959)

An IP number isn't even vaguely comparable to a license number. These IP numbers are taken from IP packets that could be written by anyone, anywhere. They are comparable to addresses on envelopes in the US Mail, except that there's no handwriting to analyze and no authoritative cancellation mark to identify the general location.

Anyone can write any IP number in the sender field on any IP packet and send it to any other IP number.

Even if you establish that a particular ISP has assigned a particular IP number for routing packets to a particular customer, you have no evidence that a packet marked with that IP number has anything to do with that customer, unless you can get much more stringent information from router logs and/or content that only that customer could have produced. I've never heard of any such evidence being presented.

Explicitly---IP number is not evidence of anything (2)

ODBOL (197239) | more than 2 years ago | (#39600027)

In case I wasn't explicit enough: an IP number may be intended to indicate a particular "bill payer," but the presence of a particular "bill payer's" IP number on a packet is not evidence that the "bill payer" was in any way, directly or indirectly, associated with the creation of that packet.

And it's not clear at all from the reports whether the IP numbers in question were taken from packets supposed to have originated from that address, or from packets sent to that address. In the latter case, this is just like junk mail addressed to me---I do not take responsibility for it.

Re:Explicitly---IP number is not evidence of anyth (0)

Anonymous Coward | more than 2 years ago | (#39601315)

These IP numbers are taken from IP packets that could be written by anyone, anywhere.

Yup, because people run around forging IP address packets in bulk for torrents all the time just for giggles. You might be able to sell line that to a jury if they were lobotomized beforehand.

Aside from that, forging an IP doesn't let you have a two way conversation because all responses get routed to the IP that you forged. A wireshark trace of some IP chatting happily with the tracker and seeds/leeches is pretty damn good evidence that you've got the right IP.

the presence of a particular "bill payer's" IP number on a packet is not evidence that the "bill payer" was in any way, directly or indirectly, associated with the creation of that packet.

Sure, it doesn't *prove* anything. But even the most technically illiterate jury is going to agree that the bill payer's is going to be the right person to start asking really pointed questions.

Best way to close the loophole is legislation to make the bill payer responsible for activity from his/her IP, torrenting, bot net, you name it. Shuts down some legitimate uses but will clean up the ole 'net quite a bit.

Re:Explicitly---IP number is not evidence of anyth (1)

techno-vampire (666512) | more than 2 years ago | (#39601513)

I'd like to see a law passed that says that if you're running a residential wireless hotspot and don't take reasonable precautions to keep strangers from borrowing it you're automatically responsible for all packets originating from your IP address. No exceptions, no excuses.

Re:Explicitly---IP number is not evidence of anyth (1)

HornWumpus (783565) | more than 2 years ago | (#39602125)

The day they pass that law is the day I shutdown my guest network. Until then, fuck yourself.

Re:Explicitly---IP number is not evidence of anyth (0)

Anonymous Coward | more than 2 years ago | (#39602277)

In Germany, courts have ruled this way, and I believe this is the same in the US

Re:Anyone can write any IP number anywhere (2)

BitterOak (537666) | more than 2 years ago | (#39602457)

Anyone can write any IP number in the sender field on any IP packet and send it to any other IP number.

Yeah, but you can't do any file sharing unless packets get sent back to you. Simply writing a fake IP address on a packet and sending it out won't accomplish anything. In fact, to even establish a TCP connection there has to be return packets. (The so-called three-way handshake: SYN, ACK/SYN, ACK). UDP doesn't require a return path, but again, using it to participate in file sharing would.

All that said, I do agree that an IP address is not enough to identify a user. Depending on the security settings of the ISP, people might be able to "steal" unused IP addresses on the same subnet, but I think in modern setups that wouldn't work. Customers are usually assigned an IP address based on the MAC address of their cable/DSL modem, and packets destined for a different IP address generally won't be routed there. So I don't think it's as easy as you've described above.

Re:Anyone can write any IP number anywhere (1)

ODBOL (197239) | more than 2 years ago | (#39602843)

The writer of a false IP number doesn't need to be performing any file sharing. In fact, whatever anyone thinks or doesn't think, it is very easy to put any IP number on any packet and send it anywhere. I am expressing definite knowledge here, not idle opinion.

The plaintiffs may have evidence of actual participation in actual sharing of actual material for which they hold copyright and have not authorized sharing. But nothing in the article indicates what that evidence is.

The court appears to have accepted the likelihood that there is evidence of infringement, but they don't explain what that evidence is.

Re:Anyone can write any IP number anywhere (1)

Jane Q. Public (1010737) | more than 2 years ago | (#39602891)

"Customers are usually assigned an IP address based on the MAC address of their cable/DSL modem, and packets destined for a different IP address generally won't be routed there. So I don't think it's as easy as you've described above."

Not even close. First, there aren't anywhere near enough IPv4 numbers to go around, especially today, and second, ISPs generally obtain their IP numbers in blocks, which would preclude handing them out them based on MAC address. Unless by "based on" you simply mean associating the two numbers in their IP tables. But the numbers themselves aren't even remotely similar in most cases.

Re:Anyone can write any IP number anywhere (1)

TheTurtlesMoves (1442727) | more than 2 years ago | (#39606753)

You have taken the analogy way to far. On the internet you need packets to come back to your machine. If the sender field is wrong that does not happen and you can't get a connection. Basically is not that easy to spoof ip numbers outside a syn flood or the like.

Re:Anyone can write any IP number anywhere (1)

ODBOL (197239) | more than 2 years ago | (#39606865)

You have taken the analogy way to far.

What analogy? I don't think I used one. I argued against the license plate analogy.

On the internet you need packets to come back to your machine.

Depends on what you're doing. And, your needs may not be met. You seem to be arguing that it is unlikely that someone would want to put in my IP number on a packet sent to a file sharing service. That's probably right. But that doesn't make the presence of my IP number evidence that I put it there. Positive evidence that I am violating copyright shouldn't depend on assumptions about the intentions and competence of all other producers of packets. Errors, by myself and by other people, are possible, as well as deliberate use of the wrong IP number.

As long as it is easy for anyone to put any IP number on any packet and send it anywhere, which is a clear fact resulting from the simplicity of IP and the lack of authentication in IP, then the mere presence of an IP number in a packet is not positive evidence that any particular person caused that packet to be generated. The difficulty of imagining other reasons for the IP number to be there doesn't turn it into positive evidence.

In fact, I think that it is probably possible to present substantial evidence that particular file sharing is properly attributed to the host using a particular IP number. But nothing in this article, nor in other articles that I've read on similar cases, suggests that such evidence has been presented. On the contrary, they suggest that the plaintiff's claim that she has a copy of a packet with a certain IP number and that that packet was found in certain traffic with a file sharing service is the whole evidence. It isn't enough.

Re:Huh? What? (5, Informative)

Anonymous Coward | more than 2 years ago | (#39600063)

I wish they (the court) would have emphasized the denial based upon the use of the courts as an empty threat and/or means of discovery for the subsequent pursuit of a private settlement. In other words, once you approach the court to do your dirty work, you've got to use them to mediate the settlement*. If you want to settle privately, hire your own detective agency. P>*Which gets you reasonable and uniform penalties and makes settlements a matter of public record.

Well, the judge did exactly that in a surprisingly explicit way. From the article:

“The court recognizes that plaintiff is aggrieved by the apparent infringement and is sympathetic toward its argument that lawsuits like this one are the only way for it to find and stop infringers. However, the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net).

“Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting ‘settlement’ payments from persons who may or may not be infringers. This the court is not willing to do,” Judge Lloyd concludes.

Re:Huh? What? (1)

gstrickler (920733) | more than 2 years ago | (#39600119)

Which part of

"...court won't work with copyright holders who pursue settlement programs."

doesn't make that expressly clear?

Re:Huh? What? (2)

bws111 (1216812) | more than 2 years ago | (#39600547)

The part that you left out: "with no intention to litigate". In other words, if you just want the court to order the ISP to hand over a list of names so you can shake them down, forget it. If however, you actually intend to SUE the people who don't settle, then the court will get involved.

Re:Huh? What? (1)

gstrickler (920733) | more than 2 years ago | (#39600993)

Good catch.

Re:Huh? What? (1)

Jane Q. Public (1010737) | more than 2 years ago | (#39602929)

Not such a "good catch". The judge also made clear that the "good cause" standard is not met, which applies regardless of whether they intend to litigate. So even if he had been sympathetic about the "no intent to litigate" bit, he still would probably not have allowed discovery.

Re:Huh? What? (1)

mounthood (993037) | more than 2 years ago | (#39600243)

The core issue is that an IP does not identify more than the bill payer -- the good cause standard therefore is not met because the actual infringer is not identified.

That would depend on the terms of service.

No, it doesn't have to do with any ToS: the courts decide liability, not private companies. Why would you think otherwise? Including language that 'the subscriber is solely responsible ...' or that 'sharing connections is forbidden', are only rules made by companies. They aren't laws, and they don't guarantee anything about how a subscription is used.

Re:Huh? What? (0)

Anonymous Coward | more than 2 years ago | (#39600331)

Right, the judge doesn't care what some BS click-through ToS that no one ever reads says. That's between you and the company. Their purpose is to isolate the ISP from liability, but since no one is going after the ISP's here, it's not relevant. Which brings up a good point. If a subscriber is liable for unauthorized and infringing use of his internet connection, then wouldn't ISP's also be liable?

Re:Huh? What? (0)

Anonymous Coward | more than 2 years ago | (#39600427)

No this is what is valid evidence and what is not. The TOS should not be considered law. I agree the TOS should be considered for the company issuing it so the ISP could with cause disconnect your service, but the law should not be twistable by a TOS. The law should decide what a judge can and can not do.

Re:Huh? What? (0)

Anonymous Coward | more than 2 years ago | (#39600553)

"That would depend on the terms of service...."

Then you would be in violation of your terms of service....a seperate issue all togeather.

Re:Huh? What? (2)

dbet (1607261) | more than 2 years ago | (#39600647)

That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection, then a part of that responsibility would seem to be knowing who is using your connection and when.

The TOS with your provider have little to do with any legal liability you have when people use your connection. For example, if I signed a TOS with Hertz saying that no one else would drive the car I'm renting, but someone does, and uses it to mow down a pack of children, that contract with Hertz doesn't make me guilty of murder.

just a JUMP away from that (1)

RobertLTux (260313) | more than 2 years ago | (#39600833)

No but unless you can prove that you did not voluntarily provide your car you can be charged with "aiding and abetting" and or Conspiracy to Commit %CRIME% so you still go to Club Fed anyway.

Re:just a JUMP away from that (1)

Shagg (99693) | more than 2 years ago | (#39601595)

No but unless you can prove that you did not voluntarily provide your car

You have that backwards, at least in theory.

Re:just a JUMP away from that (1)

iphinome (810750) | more than 2 years ago | (#39605529)

The burden of proof would be on the state not the other way around.

Re:Huh? What? (1)

PPH (736903) | more than 2 years ago | (#39600891)

Criminally, no. Civilly, perhaps. The kids' parents could probably sue and go after your liability insurance and other assets.

Re:Huh? What? (1)

shentino (1139071) | more than 2 years ago | (#39600905)

Depends on how they got the car.

If you loaned it to them knowing what they had planned you might be charged as an accessory to the murder.

Even if you avoid criminal liability, you might be on the hook for damages if you negligently allowed them access.

Re:Huh? What? (1)

Cajun Hell (725246) | more than 2 years ago | (#39600969)

That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection..

It's not the broadband provider who is asking for taxpayer-subsidized resources and government power to identify people. It's someone else.

How could terms of service (agreement between you and your ISP) possibly have any bearing on who is liable to a third party when your ISP connection is used for something? If you had metered service and I used your wifi to run up a bill, I see how you'd be responsible to your ISP to pay that (though you would certainly also be interested in seeing me about reimbursing you) but I don't see how you'd be responsible for my copyright infringment, my presidential death threats, my posting of hate speech, or even pay for my Newegg shopping. Really, I can buy a new Core i7 online and if I do it from within your LAN, you're responsible for paying the bill? That's silly.

And how would a third party even know what your terms of service are? Your ISP knows whether or not you're allowed to resell your bandwidth, but how could Disney? They're not a party to the agreement.

Re:Huh? What? (1)

v1 (525388) | more than 2 years ago | (#39602303)

That would depend on the terms of service. If your broadband provider holds you responsible for the users you permit on to your connection, then a part of that responsibility would seem to be knowing who is using your connection and when.

Who your ISP holds responsible, and who the COURT holds legally responsible don't necessarily have anything in common. That TOS is just defraying their responsibility in the matter.

This is like a lady telling the officer that the purse snatcher ran into "that apartment building over there" and the cops somehow getting a search warrant for every apartment in the building. no, no, and NO.

Re:Huh? What? (1)

PPH (736903) | more than 2 years ago | (#39604125)

Not apartment building, rental house.

Sure, if the guy ran into the apartment building, the police can't narrow that down to one unit. But if you rent a house (subscribe to broadband service) with no provision to sublet (TOS doesn't allow you to provide public access) then its the equivalent of your having left the door of your rental house open. The cops have every right to pursue the purse snatcher through the front door. And search the house.

And the police can confiscate nuisance property under certain conditions. Like crack houses. So if you let the dealers come and go as they please, you can wind up losing the house. Or your PCs, hubs and other networking gear if the prosecutor can show you were negligent in securing them to a reasonable standard.

THiS FP FOR GNAA!? (-1)

Anonymous Coward | more than 2 years ago | (#39599867)

Inevitable result (1)

lennier1 (264730) | more than 2 years ago | (#39599945)

It was only a matter of time until a judge became too fed up with these fishing expeditions.

Re:Inevitable result (2)

Rich0 (548339) | more than 2 years ago | (#39600321)

Yup, and only a matter of time before the RIAA finds another judge who isn't fed up with them...

They only need one order from any judge in the entire country to get their subpoena. Then they can get the list from the ISPs. At that point, what happens is moot, because they have the data, which is all that they were looking for. They just dismiss the case.

Re:Inevitable result (0)

Anonymous Coward | more than 2 years ago | (#39600461)

True, but at some point the judges should hold them in contempt for such actions. Not to say they will, but it makes a mockery of their rulings.

Re:Inevitable result (1)

Shagg (99693) | more than 2 years ago | (#39601617)

Yup, and only a matter of time before the RIAA finds another judge who isn't fed up with them...

Or buys one.

Youre missing the point. (4, Insightful)

metalmaster (1005171) | more than 2 years ago | (#39600039)

I think the naysayers here are emphasizing the wrong point. According to the summary(cause no one RTFA) This judge wont assist the copyright holders who insist on settlement programs. These guys arent going after Joe Schmoe. They're stuffing mailboxes in Everytown, USA and hoping scared people just settle. Its a racket

Re:Youre missing the point. (0)

Anonymous Coward | more than 2 years ago | (#39600449)

I RTFA.

An IP is *useless* in identifying someone! (1)

xenobyte (446878) | more than 2 years ago | (#39605487)

I know of these actual cases where the Internet access of someone was used by someone else without permission.

1) Stolen Wifi, either unprotected or hacked.
2) Multiple family members, one connection. Who downloaded what?
3) Stolen wired access: An unauthorized cable was plugged into a switch, giving the thief connectivity.
4) Unauthorized access point: A rogue access point was installed and hidden so the thief could connect from nearby without the need for an actual cable.
5) Variations of 3 and 4 where the evidence was removed before discovery.

Bottom line - you cannot assume that 1 IP = 1 person without a serious investigation. An remember that 1 and 5 has no evidence left behind so the only evidence is the *lack* of traces on all devices with authorized access.

There are many ways to steal Internet access and you need to investigate BEFORE making accusations.

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