The internet is perhaps the greatest disruptor of the twentieth century, despite only rising to relevance at its close. Today it remains a perplexing problem to politicians, justices, and business-people alike.
I. Internet Disrupts, Leads to Punitive Reactionary Efforts
Perhaps no internet controversy represents the confusion and mire of digital rights and law enforcement better than the legal precedent of equating internet protocol (IP) addresses to a human being.
For years U.S. courts allowed copyright “attack dog” organizations like the Recording Industry Association of America (RIAA) to use this principle in threat letter schemes — which many advocates argue were digital age extortion. The issue is that internet proxies are not people. Indeed, a large percentage of networks — be they secured or unsecured — have multiple users, making the RIAA’s view of pinning infringement on the IP owner a problematic oversimplification.
Piracy has led to an arguably abusive response from content creators. [Image Source: RIAA]
And that’s not to mention the pervasive hacking of wireless networks across the U.S. (or in many cases simple squatting on unsecured networks) — a practice that likely has led to many of the RIAA, et al.‘s more flagrant efforts, such as threat letters to dead people or the elderly. The ease with which the majority of secured private wireless networks can be penetrated further calls into question enforcing infringement on an IP basis.
The legal system is finally waking up to that reality.
II. Adult Filmmakers’ Threat Letter Bid Killed
In a recent ruling in a case regarding RIAA-esque extortion efforts by a group of lawyers representing adult filmmakers, New York Eastern District federal court magistrate Judge Gary Brown blasted the idea of presenting infringing IPs as sufficient evidence to demand money from individuals or take them to court.
K-Beech – Order & Report & Recommendation (Ordered 5-1-12)
(To be fair not everyone in the adult film industry agrees with threatening possible pirates. Some view it as free promotion.)
Judge Brown warns the plaintifffs that IPs are not sufficient evidence to prosecute, stating:
John Doe #16 has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. John Doe #10 represents that downloading a copy of this film is contrary to her “religious, moral, ethical and personal views.” Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.
While a decade ago, home wireless networks were nearly non-existent, 61% of US homes now have wireless access. As a result, a single IP address usually supports multiple computer devices – which unlike traditional telephones can be operated simultaneously by different individuals.
Different family members, or even visitors, could have performed the alleged downloads. Unless the wireless router has been appropriately secured (and in some cases, even if it has been secured), neighbors or passersby could access the Internet using the IP address assigned to a particular subscriber and download the plaintiff’s film.
He also cites a colleagues dismissal of a similar case, writing:
Plaintiff’s counsel estimated that 30 percent of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Counsel stated that the true offender is often the “teenaged son … or the boyfriend if it’s a lady.” Alternatively, the perpetrator might turn out to be a neighbor in an apartment building that uses shared IP addresses or a dormitory that uses shared wireless networks. This risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading “My Little Panties # 2.”
Finally, he points out that the plaintiffs don’t seem very interested in actually enforcing anti-infringement by taking the defendants to court — rather they’re seeking a quick settlement:
Upon receipt of the Complaint, I reached out to Plaintiff and spoke to a self-described “Negotiator” in an effort to see if I could prove to them (without the need for publicly tying my name to the Complaint) that I had nothing to do with the alleged copyright infringements. The Negotiator was offered unfettered access to my computer, my employment records, and any other discovery they may need to show that I was not the culpable party. Instead, the Negotiator refused and was only willing to settle the Complaint for thousands of dollars. While the Negotiator said on October 24, 2011 that he would check to see if he could come down from the thousands of dollar settlement amount, the Negotiator has not responded to two voice mails that were left on October 25, 2011. Notably, the Negotiator justified the settlement amount because, in part, I would incur legal fees in hiring an attorney.
IV. The Fallout
This remark offers a not so subtle hint that some judges are starting to view these kinds of mass-threat-letter campaigns as exactly what the majority in the public view them as — extortion schemes.
Of course a handful of rulings — even at the federal level — won’t be enough to stop the persistent efforts of the RIAA and other copyright extorters. But as they pile up, the legal costs of these losses may at long last force the media industry (including the adult film industry) to reevaluate its already money-losing approach with respect to copyright enforcement.
The happy days of an open season on threat letters may be over for the RIAA, et al.
[Image Source: Grist]
It may seem a bit sad that the digital era has enabled the public to steal media makers work, while providing them such little recourse (although many studies have indicated piracy has not effect media revenue). But it’s hardly better to prop up a system of threats under which the innocent are often punitiviely punished while the the guilty often escape scott-free.
The legal system is slowly warming up to the idea that despite the painful financial implications of the internet, it is unacceptable to support such a flagrant mass violation of civil liberties.
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