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(BBC)   Are you responsible for piracy traced to your net connection? Let's ask 12 people too dumb to get out of jury duty   (bbc.co.uk) divider line 75
    More: Interesting, Internet Protocol, landmark case, settled out of court, TorrentFreak  
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4733 clicks; posted to Geek » on 10 Oct 2012 at 6:30 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-10-11 07:35:39 AM

Endive Wombat: 1 - Nothing wrong with protecting ones product. My opinion - potentially bad situation, due to the highly potential embarrassment factor of the specific content, especially if you falsely accuse them.


Unless you're dealing with a system of dynamic IP addresses, hard to be falsely accused. That's not to say a mother and father wouldn't be embarrassed because their teenaged son is seeding a dozen hard core porn videos, but that's a different matter.

2 - Yes, I understand how Bit torrent works - what you are talking about here is "making available". But I still stand by the fact that pirated download does not necessarily = a lost sale(s)

I concur, it doesn't necessarily mean lost sales. That's why the simple 'taking' of a copy is a difficult crime to prosecute. Distribution is the key word. If I am willingly and willfully making something available, that's tantamount to distribution. Lost sales or not, distribution is the right of the copyright holder, period. End of story. 'Making available' is the illegal act that need not have any lost sales figure included in the complaint.

3 - In the purest sense, I should be able to have a giant neon sign with giant arrows leading to the location of my secured and unsecured guns...coming onto my property and into my home with out my consent is called trespassing and it is already a crime. Define secured. Why does it matter if they are loaded? Am I less at fault if a gun is tucked is a concealed place next to my bed vs openly sitting on my kitchen counter?

It's a matter of negligence. Someone uses my property, service, etc to commit a crime because I didn't make a good faith effort to maintain, control, or otherwise secure them gives me some measure of fault. Perhaps not full Murder One level, but thinking I am somehow absolved of all wrong-doing is naive. One can, and should, be expected to take care of their shiat.
 
2012-10-11 07:58:39 AM

Cinaed: One can, and should, be expected to take care of their shiat.


Correct. I was just trying to make a point that at some point, there is a slippery slope on what is considered secured vs unsecured.

I can foresee there being an infringement case in the future where someone did have their router secured, but only by WEP and the passcode was "passcode" or their phone number or something simple like that. Technically, they "did" secure it, but the plaintif will argue that they did not do enough and should have been using WPA2-PSK, or 256 bit keys or some other over the top WiFi protection scheme. Oh, and they should have had SSID broadcast turned off too!
 
2012-10-11 08:04:15 AM

yukichigai: This, of course, assumes that the RIAA/MPAA has any people who actually understand technology.


+1 Funny
 
2012-10-11 08:35:02 AM

The wonderful travels of a turd: Theaetetus: Endive Wombat: So there are a few things going on here:


It's their property, so you don't get to say "I don't think your property is worth shiat, so I should feel free to use it without paying you." If you really didn't think it was worth at least some use, then you wouldn't have used it. For example, I haven't downloaded the latest Justin Beiber album because not only am I not willing to pay for it, I'm not even willing to listen to it for free.
By pirating something, you're saying it has value... You're just disagreeing on what you should have to pay for that value.


No, it is not property, you dolt. It is an exclusive, but time-limited right. Property rights are roughly eternal, copyrights aren't and shouldn't.


No, it is, you dolt. If I lease a house for a year, it's a time-limited right, but that house is still property. Specifically, I possess a leasehold estate. The fact that it's time-limited is irrelevant.

Plus, way to miss the point of that entire post. Good jorb. You sure do know how to pedantically attack one tiny word in a paragraph and disregard the rest of it. Though, it would have been better if you were actually correct.
 
2012-10-11 08:36:25 AM

StoPPeRmobile: Theaetetus: It's their property, so you don't get to say "I don't think your property is worth shiat, so I should feel free to use it without paying you." If you really didn't think it was worth at least some use, then you wouldn't have used it. For example, I haven't downloaded the latest Justin Beiber album because not only am I not willing to pay for it, I'm not even willing to listen to it for free.
By pirating something, you're saying it has value... You're just disagreeing on what you should have to pay for that value.

You know what? Home Depot could care less if I return a prehung door and said I'm not happy with it.

Why can't I do that with digital purchases?


Home Depot could also have said "all sales are final". If you don't like that digital purchases have return restrictions, don't buy them.
 
2012-10-11 08:38:20 AM

Endive Wombat: Cinaed: One can, and should, be expected to take care of their shiat.

Correct. I was just trying to make a point that at some point, there is a slippery slope on what is considered secured vs unsecured.

I can foresee there being an infringement case in the future where someone did have their router secured, but only by WEP and the passcode was "passcode" or their phone number or something simple like that. Technically, they "did" secure it, but the plaintif will argue that they did not do enough and should have been using WPA2-PSK, or 256 bit keys or some other over the top WiFi protection scheme. Oh, and they should have had SSID broadcast turned off too!


That's why I could see ISPs doing a blanket stipulation of liability for data through the modem as part of their TOS. You say your neighbor hacked your Wifi? Fine, bring them in as a third party defendant under rule 14... but now the burden is on you to show it was your neighbor.
This makes sense for a technical reason too - unlike the plaintiff or your ISP, you have access to your router and its logs, so why shouldn't that burden of proof be placed on you?
 
2012-10-11 09:21:19 AM

Theaetetus: Endive Wombat: Cinaed: One can, and should, be expected to take care of their shiat.

Correct. I was just trying to make a point that at some point, there is a slippery slope on what is considered secured vs unsecured.

I can foresee there being an infringement case in the future where someone did have their router secured, but only by WEP and the passcode was "passcode" or their phone number or something simple like that. Technically, they "did" secure it, but the plaintif will argue that they did not do enough and should have been using WPA2-PSK, or 256 bit keys or some other over the top WiFi protection scheme. Oh, and they should have had SSID broadcast turned off too!

That's why I could see ISPs doing a blanket stipulation of liability for data through the modem as part of their TOS. You say your neighbor hacked your Wifi? Fine, bring them in as a third party defendant under rule 14... but now the burden is on you to show it was your neighbor.
This makes sense for a technical reason too - unlike the plaintiff or your ISP, you have access to your router and its logs, so why shouldn't that burden of proof be placed on you?


What you are proposing is far beyond the capabilities of most users.
 
2012-10-11 09:43:53 AM

Endive Wombat: Cinaed: One can, and should, be expected to take care of their shiat.

Correct. I was just trying to make a point that at some point, there is a slippery slope on what is considered secured vs unsecured.


True. It is indeed. I think the key element is showing a good faith effort.

I can foresee there being an infringement case in the future where someone did have their router secured, but only by WEP and the passcode was "passcode" or their phone number or something simple like that. Technically, they "did" secure it, but the plaintif will argue that they did not do enough and should have been using WPA2-PSK, or 256 bit keys or some other over the top WiFi protection scheme. Oh, and they should have had SSID broadcast turned off too!

I would say even that basic WEP protection would be sufficient to showcase a good faith effort. Showing that someone else willfully, and willingly, broke past that protection to steal access ought to absolve the ISP subscriber of wrong-doing, and put the onus on the second party who broke the law already. Original subscriber the victim two times over.

On the other hand, leaving one's wireless network unprotected shows either gross ignorance of the technology they're using, or a willful disregard for the potential consequences. Sure, not the 'Murder One' situation, but they don't get to just point and say that they have no responsibility in the matter.
 
2012-10-11 09:46:35 AM

Endive Wombat: What you are proposing is far beyond the capabilities of most users.


Which part? Accessing the logs? If that's beyond their capabilities, then so is wiping those logs. So, when they get a nasty letter and contact a lawyer, the first thing the lawyer will do is have someone check the logs. Easy peasey.
 
2012-10-11 09:48:18 AM

Cinaed: I would say even that basic WEP protection would be sufficient to showcase a good faith effort. Showing that someone else willfully, and willingly, broke past that protection to steal access ought to absolve the ISP subscriber of wrong-doing, and put the onus on the second party who broke the law already.


Like I said, the ISP subscriber uses their logs to show that a third party accessed their Wifi, and brings that person in to the suit as a third party defendant to indemnify them.
 
2012-10-11 10:11:11 AM

Theaetetus: Endive Wombat: What you are proposing is far beyond the capabilities of most users.

Which part? Accessing the logs? If that's beyond their capabilities, then so is wiping those logs. So, when they get a nasty letter and contact a lawyer, the first thing the lawyer will do is have someone check the logs. Easy peasey.


Most routers you need to turn the logging on. From what I can remember, the "Easy 1, 2, 3 Setup Wizard" does not offer turning on logging as an option. Ergo, outside the scope of most users technical abilities/knowledge.
 
2012-10-11 10:32:03 AM

Endive Wombat: Theaetetus: Endive Wombat: What you are proposing is far beyond the capabilities of most users.

Which part? Accessing the logs? If that's beyond their capabilities, then so is wiping those logs. So, when they get a nasty letter and contact a lawyer, the first thing the lawyer will do is have someone check the logs. Easy peasey.

Most routers you need to turn the logging on. From what I can remember, the "Easy 1, 2, 3 Setup Wizard" does not offer turning on logging as an option. Ergo, outside the scope of most users technical abilities/knowledge.


Fair enough, but it probably should.
 
2012-10-11 10:33:28 AM

Theaetetus: Endive Wombat: Theaetetus: Endive Wombat: What you are proposing is far beyond the capabilities of most users.

Which part? Accessing the logs? If that's beyond their capabilities, then so is wiping those logs. So, when they get a nasty letter and contact a lawyer, the first thing the lawyer will do is have someone check the logs. Easy peasey.

Most routers you need to turn the logging on. From what I can remember, the "Easy 1, 2, 3 Setup Wizard" does not offer turning on logging as an option. Ergo, outside the scope of most users technical abilities/knowledge.

Fair enough, but it probably should.


Agreed.
 
2012-10-11 11:31:42 AM

Theaetetus: StoPPeRmobile: Theaetetus: It's their property, so you don't get to say "I don't think your property is worth shiat, so I should feel free to use it without paying you." If you really didn't think it was worth at least some use, then you wouldn't have used it. For example, I haven't downloaded the latest Justin Beiber album because not only am I not willing to pay for it, I'm not even willing to listen to it for free.
By pirating something, you're saying it has value... You're just disagreeing on what you should have to pay for that value.

You know what? Home Depot could care less if I return a prehung door and said I'm not happy with it.

Why can't I do that with digital purchases?

Home Depot could also have said "all sales are final". If you don't like that digital purchases have return restrictions, don't buy them.


That does'nt answer the question.
 
2012-10-11 12:21:16 PM

enik: Cewley: fark you subby. i spent six months on a grand jury, and i can assure you most of them had a higher iQ then yours.

Yup -- had jury duty twice and I agree. The average Farker wishes they were as smart and considerate as the members of the jury were.


Personally, I don't think it's dumb to do one's civic duty. Smart people should be on juries. Then, maybe we wouldn't have so many verdicts to complain about in the media.
 
2012-10-11 01:17:32 PM
Theaetetus: More importantly, you trace it back to a cable modem and wifi access point. Okay.

More importantly, can you reliably prove that they infringed on anything. There are gray areas. For example.

Q1) Bob pays for cable TV, but a flash flood warning for an adjacent county farks up his recording of Breaking Bad, Bob downloads the episode from bittorrent. Is Bob infringing?

A1) If bob is also uploading said video, IMO yes, he is infringing (he's making the show available to people who might not have a license to view said show).

B1) If bob has uploading turned off for said video, then IMO no, he's not infringing. He has a license to view said show, via his cable co payment, and he's not making the video available to anyone else.

BUT, here's the problem with these automatic bots. When you're connected to a torrent, whether you're downloading or uploading and/or have uploading turned off for a file, your connection will still show in the swarm.

The vast majority of these bots take the lazy way out (they connect to the swarm and get a list of everyone that they can) some popular bots take the super lazy way out (they don't even connect to the swarm, they just scrape a web site).

So, you have a list of people in the swarm, you see Bob on the list, you send him a C&D, and bob is like "WTF, I paid money to watch your show and the network farked it up with a flash flood warning that doesn't even apply to my city and I didn't upload shiat".

Furthermore, did you guys actually try to connect to bob to see if you could download from him? Then how do you know he was actually sharing anything? For all you know, Bob is another bot that's gathering lists of users and isn't actually uploading or downloading anything.

--------------

Now Joe owns a huge collection of DVDs, he's a DVD addict and has all sorts of stuff, lots buried in storage at the bottom of stacks of hundreds of DVDs.

Joe is also anal retentive, and has a DB that shows every DVD that he owns.

Digitizing his vast collection would take Joe an eternity.
Finding a specific DVD in his collection is also a big waste of time, it could take hours to days.

So, Joe heads off to bittorrent to download the specific movie that he wants to see, Joe is also tech savvy, so he has uploading disabled for his movie torrents.

Is Joe infringing? (how can he infringe on something that he already owns?)

// can you record songs off of the radio?
// can you capture audio from internet streams?
// can you download any show that's sent OTA (since literally anyone with an antenna can grab it)
// can you download any show that your cable subscription provides?
// can you download MP3s for broken CDs that you own? Can you buy broken CDs dirt cheap? (is the license transferred with the CD?)
// can you get them to send you a new CD for a broken CD? You're paying for the license, right, so a replacement CD should be fairly cheap
 
2012-10-11 01:19:59 PM
Honest Bender: Can you trace it back to a MAC address? Too bad, then.

Good luck with that.

lordargent.com
 
2012-10-11 01:57:22 PM

lordargent: Theaetetus: More importantly, you trace it back to a cable modem and wifi access point. Okay.

More importantly, can you reliably prove that they infringed on anything. There are gray areas. For example.

Q1) Bob pays for cable TV, but a flash flood warning for an adjacent county farks up his recording of Breaking Bad, Bob downloads the episode from bittorrent. Is Bob infringing?

A1) If bob is also uploading said video, IMO yes, he is infringing (he's making the show available to people who might not have a license to view said show).

B1) If bob has uploading turned off for said video, then IMO no, he's not infringing. He has a license to view said show, via his cable co payment, and he's not making the video available to anyone else.


While I would tend to agree - specifically in that he has a fair use argument for format-shifting-by-proxy - this has not yet been tested in court.
And if I were the other side, I'd also add on induced infringement. :)

BUT, here's the problem with these automatic bots. When you're connected to a torrent, whether you're downloading or uploading and/or have uploading turned off for a file, your connection will still show in the swarm.

The vast majority of these bots take the lazy way out (they connect to the swarm and get a list of everyone that they can) some popular bots take the super lazy way out (they don't even connect to the swarm, they just scrape a web site).

So, you have a list of people in the swarm, you see Bob on the list, you send him a C&D, and bob is like "WTF, I paid money to watch your show and the network farked it up with a flash flood warning that doesn't even apply to my city and I didn't upload shiat".


Nah, you download a copy from Bob. You see the list of people in the swarm, you pick one randomly, and you block all incoming data from everyone except him. Then you get a full copy exclusively from him. When Bob says "WTF, I didn't upload shiat," you show your server log and say the settlement offer just doubled.

Furthermore, did you guys actually try to connect to bob to see if you could download from him?

See above - they actually do. Otherwise, they wouldn't actually have enough evidence to bring a claim in the first place.

Now Joe owns a huge collection of DVDs, he's a DVD addict and has all sorts of stuff, lots buried in storage at the bottom of stacks of hundreds of DVDs.

Joe is also anal retentive, and has a DB that shows every DVD that he owns.

Digitizing his vast collection would take Joe an eternity.
Finding a specific DVD in his collection is also a big waste of time, it could take hours to days.

So, Joe heads off to bittorrent to download the specific movie that he wants to see, Joe is also tech savvy, so he has uploading disabled for his movie torrents.

Is Joe infringing? (how can he infringe on something that he already owns?)


This is similar to the above - you have a fair use argument that you're entitled to format shift, so therefore you should be entitled to use someone else's format shifting apparatus. There'd still be the induced infringement argument.

... that said, Joe is never going to get sued. As noted above, the RIAA/MPAA download a full copy before they send someone a nastygram. If Joe isn't uploading, they can't do that. They can shake their fists impotently because they know that he's downloading from someone else, but they can't prove it unless they are that someone else - but then Joe would actually be getting a legal copy.

// can you record songs off of the radio?

Yes, provided you don't edit the broadcast.

// can you capture audio from internet streams?

Nope, because you're creating a derivative audio-only work (unless you're talking about recording Pandora or the like, in which case you're violating the ToS, therefore don't have a license to listen, and therefore are committing copyright infringement).

// can you download any show that's sent OTA (since literally anyone with an antenna can grab it)
// can you download any show that your cable subscription provides?


Nope, so far the courts have only considered direct recording of the original broadcast for time-shifting purposes to be fair use. Downloading the show would have a substantial effect on the rerun market, so the courts are unlikely to consider that fair use.

// can you download MP3s for broken CDs that you own? Can you buy broken CDs dirt cheap? (is the license transferred with the CD?)
// can you get them to send you a new CD for a broken CD? You're paying for the license, right, so a replacement CD should be fairly cheap


Now, that's a good question. No, to the latter, as you paid a one-time fee and they're not responsible for providing you a backup. You could have legally made a copy of the CD for archival purposes. But buying a broken CD and downloading the corresponding MP3? It's an untested area and I think you could make a good argument for fair use, but I also think you'd have a better chance of winning every state lottery on the same day than getting sued at all.
 
2012-10-11 02:05:08 PM

Theaetetus:
No, it is, you dolt. If I lease a house for a year, it's a time-limited right, but that house is still property. Specifically, I possess a leasehold estate. The fact that it's time-limited is irrelevant.

Plus, way to miss the point of that entire post. Good jorb. You sure do know how to pedantically attack one tiny word in a paragraph and disregard the rest of it. Though, it would have been better if you were actually correct.


Ah, you conveniently overlook that the lease is a contractual limitation on the owner's property rights to the house that is self-imposed by the owner. Plus that you've showed that you have no farking clue whatsoever about the major property law concepts in both common law and civil law jurisdictions. Another tiny clue to you missing the point would be the US Constitution that treats copyright entirely different from normal property. But hey, that would mean that you'd have to acknowledge that you're the one that is factually incorrect.
 
2012-10-11 02:31:02 PM
Theaetetus: this has not yet been tested in court.

Yep, no precedent yet, hence gray area.

"WTF, I didn't upload shiat," you show your server log and say the settlement offer just doubled.

That's what they're supposed to do, but there are very few (if any) that actually do that vs doing it the lazy way.

Most of them just send a bunch of infringement notices to an ISP.

that said, Joe is never going to get sued. As noted above, the RIAA/MPAA download a full copy before they send someone a nastygram.

I doubt that they actually do this. It requires too many unbelievable things for me.

1) That the RIAA is technically savvy enough to do this the right way (vs the lazy way).

2) That bother downloading the entire thing (because then, someone could just set their ratio to .75 (or something below 1). The RIAA would never be able to get a full copy from an individual.

// I've gotten one of those (you've been caught infringing) notices from my cable company/ISP for downloading a TV show. I pointed out that the cable was out in my area the day that show aired and that outage prevented my DVR from recording the content that I was paying them a huge monthly fee to access. I never heard anything again.

The upload bandwidth for that torrent was set to 0 (actually, all of my uploads are set to 0 by default, and I only change it for safe torrents). Granted this wasn't a RIAA notice (it originated with the owners of the TV show), but it shows that there are folks using the lazy method.

// another gray area question, Bob gets a DVD from netflix, but it's scratched to hell, is he infringing if he just torrents it?
 
2012-10-11 02:31:27 PM
lordargent:

As for Bob - He pays for cable TV, which means that he pays a license for a specific type of acquisition and use. So, under current law (not common sense), yes, technically he is in violation/he is infringing.

As for Joe - He has paid for a DVD, which allows him to watch a show on a specific medium. So, under current law (not common sense), yes, technically he is in violation/he is infringing.
 
2012-10-11 03:21:40 PM

lordargent: I doubt that they actually do this. It requires too many unbelievable things for me.

1) That the RIAA is technically savvy enough to do this the right way (vs the lazy way).


They hire experts - specifically MediaSentry - who absolutely are savvy enough.

2) That bother downloading the entire thing (because then, someone could just set their ratio to .75 (or something below 1). The RIAA would never be able to get a full copy from an individual.

They don't actually need to download the entire thing, just a significant portion. If you only have a 10 second clip (or even a 30 second clip), you have a great fair use argument that you were getting a sample for commentary/criticism. If you've got 75% of a song or television show, your argument disappears.
Additionally, the only way setting your ratio to that would result in them not getting a full copy would be if you were using per-client ratios (which none of the current apps do, I think), or if you were only uploading a single work and you had only downloaded that single work. If you grabbed three episodes, then .75 would be enough to upload two full ones and the beginning of the third, for example.

// I've gotten one of those (you've been caught infringing) notices from my cable company/ISP for downloading a TV show. I pointed out that the cable was out in my area the day that show aired and that outage prevented my DVR from recording the content that I was paying them a huge monthly fee to access. I never heard anything again.

The upload bandwidth for that torrent was set to 0 (actually, all of my uploads are set to 0 by default, and I only change it for safe torrents). Granted this wasn't a RIAA notice (it originated with the owners of the TV show), but it shows that there are folks using the lazy method.


They're also not filing suits, though. ;)

// another gray area question, Bob gets a DVD from netflix, but it's scratched to hell, is he infringing if he just torrents it?

I think that would be a tougher argument, similar to the "my CD is broken, so I'm entitled to download it" argument above. I think Bob would be safer to not upload while he torrents.
 
2012-10-11 03:50:10 PM
Thought so.
 
2012-10-11 04:42:01 PM
Theaetetus: the only way setting your ratio to that would result in them not getting a full copy would be if you were using per-client ratios (which none of the current apps do, I think), or if you were only uploading a single work and you had only downloaded that single work. If you grabbed three episodes, then .75 would be enough to upload two full ones and the beginning of the third, for example.

Ratios can be set at a per torrent ratio.

So if you set it to .75, that means that you could only upload a maximum of 75% of that show (you download 100% but only return 75%). That's to ALL peers. IE if someone grabs 5% from you, then the remaining peers can only grab 70%. So you can basically guarantee that nobody would ever be able to get a full copy from you.

But you moved the goalpoast has moved, before it was "the RIAA/MPAA download a full copy before they send someone a nastygram" and now it's "They don't actually need to download the entire thing, just a significant portion". (Which reinforces my point that they wouldn't bother to download the entire thing.)

Theaetetus: They hire experts - specifically MediaSentry - who absolutely are savvy enough.

I doubt that as well, media sentry is the same company the RIAA used to use, but they got dropped back in 2009 for DTEC.

One of the lawyers from one of those RIAA piracy cases stated "MediaSentry couldn't prove defendants had shared their files with anyone other than MediaSentry investigators.".
 
2012-10-11 05:11:40 PM

lordargent: Theaetetus: the only way setting your ratio to that would result in them not getting a full copy would be if you were using per-client ratios (which none of the current apps do, I think), or if you were only uploading a single work and you had only downloaded that single work. If you grabbed three episodes, then .75 would be enough to upload two full ones and the beginning of the third, for example.

Ratios can be set at a per torrent ratio.

So if you set it to .75, that means that you could only upload a maximum of 75% of that show (you download 100% but only return 75%). That's to ALL peers. IE if someone grabs 5% from you, then the remaining peers can only grab 70%. So you can basically guarantee that nobody would ever be able to get a full copy from you.

But you moved the goalpoast has moved, before it was "the RIAA/MPAA download a full copy before they send someone a nastygram" and now it's "They don't actually need to download the entire thing, just a significant portion". (Which reinforces my point that they wouldn't bother to download the entire thing.)


Sorry about that. The latter is the correct one - they need to grab some, more than a small sample for the aforementioned reason, but there's no need for them to get the full 100%.

Theaetetus: They hire experts - specifically MediaSentry - who absolutely are savvy enough.

I doubt that as well, media sentry is the same company the RIAA used to use, but they got dropped back in 2009 for DTEC.

One of the lawyers from one of those RIAA piracy cases stated "MediaSentry couldn't prove defendants had shared their files with anyone other than MediaSentry investigators.".


So? That's all that's necessary to prove infringement, which is why both Thomas-Rasset and Tenenbaum lost on liability.
 
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