Need to rehash some bittorrent concepts because they are just as relevant today as they were five years ago.

Every few years it is important to rehash some older bittorrent concepts which are still relevant to today’s copyright infringement lawsuits.

In July, 2010, this blog was started to address the at-the-time unknown problem of copyright trolling.  For years, myself and my staff wrote articles explaining the business model of copyright trolling, which at the time was an adaptation of patent trolling (where “patent trolls” would file [often frivolous] lawsuits against alleged infringers who refused to pay what appeared to be a “shakedown” of the patent holders [e.g., “pay us or else you will end up having to pay even more to defend the claims against you in a federal court”], even when the patent being asserted against the would-be infringer had absolutely nothing to do with the product the targeted company was producing).

There were common threads between patent trolls and copyright trolls, and as the cases developed, there were common themes of how a copyright troll must act to make his model of extorting the public (the bittorrent internet users) profitable.  At the time, that included questions of 1) where and how can a copyright enforcement company or lawyer sue a group of defendants (personal jurisdiction), 2) how to link non-related downloaders into a cohesive set of defendants into a cohesive set of “John Doe Defendants,” (joinder, and my controversial strategy to force a copyright troll to sue the entire bittorrent swarm when a defendant is named and served) and 3) how to avoid risking the potential settlements from hundreds or thousands of accused bittorrent users by moving forward and “naming and serving” one or more defendants.  There were also time limits they faced based on a) how long the ISPs retained the records of which IP address was leased to which account holder / subscriber, b) statute of limitations on how long a copyright holder has to file a lawsuit, and c) how long a copyright troll attorney may keep a case alive before a judge imposes the time limits described in the Federal Rules of Civil Procedure (FRCP Rule 4m, a.k.a. the “120 Day Rule”).

Then, over the years, there arose a confusion under the discussions of “net neutrality” asking questions such as whether an internet service provider (ISP) was governed under the cable act, and if so, under what title.  The reason for this was that there were allegations that various ISPs were outright sharing the contact information of its subscribers without valid court orders to do so, thus violating the privacy rights of its subscribers.

In sum, there were a lot of issues, and we tackled each one over the course of almost five years.  The goal was to educate the bittorrent user and the accused downloader about the issues so that they understand how to act, react, and in many cases, fight against a group of attorneys with questionable ethics.

The problem is that these articles — the ones that have been so helpful to tens of thousands of accused defendants — these articles have been buried by the search engines because they are simply now aging and many articles are now many years old.  An accused defendant can no longer search for a “copyright troll” on Google and find any of my older articles.  [And, enterprising attorneys (and good for them) have put up websites containing SEO-based content full of keywords in hackneyed sentences, but devoid of useful content (e.g., the “contact our law firm, we can help you with your copyright troll lawsuit issue” type of website), while what I consider to be the “useful” content (not only mine, but content written by other attorneys in their blogs, and proactive users [really, trailblazers such as “Sophisticated Jane Doe” of FightCopyrightTrolls and “DieTrollDie”] in their respective blogs) is no longer accessible by typing the name of the particular copyright troll, issue, or case that has been recently filed.

What I will be doing to remedy this as far as this blog is concerned — and I apologize up front to the thousands of you who get updated on each and every article that I or a staff member of mine writes — is that I need to rehash some of the “older” content on the educational topics that I have already covered in the blog ad nauseam.  The reason for this is that the older content explaining the legal concepts in terms of the bittorrent lawsuits (and now in terms of the DMCA letters being sent to subscribers through the ISPs) is just as relevant today as it was five years ago.  There has been little-to-no judicial or legal oversight of the copyright trolls from the attorney generals of each state and from the lawmakers (both federal and in each state), and the problem and issues surrounding “copyright trolling” is just as relevant today as it was almost five years ago.

For these reasons, I need to violate my own preference not to repeat information or content that has already been described or hashed-out in previous articles (my opinion is that one article describing a topic is enough, and writing multiple articles containing the same topic “waters down” or “cheapens” the content of a website).  The reason I now feel the need to rehash some of the older topics is to re-teach those who have not yet been victimized by the copyright trolls, as my older articles are no longer found, even by those looking for that particular topic.

ALSO.  Copyright trolls are now enjoying a seed of legitimacy by the courts, where once upon a time us defense attorneys were “winning” the cases by arguing concepts such as “an IP address does not equal a person,” or “my client had an open wireless router, it could have been anyone who downloaded this video,” the arguments themselves have also aged and are now increasingly being ignored by the courts, even though the arguments remain “an elephant in the room,” meaning, just as valid today as they were yesterday.  On the flip-side, faulty and failed arguments (e.g., “are you negligent if you let someone else use your internet connection to commit copyright infringement” [Answer: NO!]) are being reasserted by the copyright trolls, and to my utter disbelief, they are not immediately being dismissed by the judges as being a faulty argument.

Copyright trolling has not changed in the past five years, and the successful arguments defending a case do not deserve to be ignored just because they have been used successfully by defendants in older lawsuits which too are aging.  Ignoring good case law is contrary to law, as successful arguments in one jurisdiction are binding on all other judges in that federal district, and are persuasive on cases in the federal districts in other cases.  Yet, I see more and more lawlessness in judges who ignore the case law from not only other jurisdictions, but from their own jurisdiction as well (creating a “split” in the court), and they are denying a John Doe defendant’s ability to assert what was a successful argument in another court (even one binding upon them in their own jurisdiction).

In sum, judges are allowing plaintiff copyright holders to sue larger number of defendants each week, even though nothing has changed making this new trend permissible (in my opinion, whether 200 defendants were sued by a plaintiff attorney in one lawsuit or in ten cases [having 20 defendants in each case] filed in the same week still means that 200 defendants were sued; it does not matter that the plaintiff made the cases “appear” to be smaller, especially if they are implicating the same bittorrent swarm in each of the ten cases).

Remember, the underlying copyright troll business model of “shakedown, extort thousands of dollars from each defendant, but avoid moving forward against anyone [but pretend that you are prepared to move to trial]” is still the same as it was five years ago.  It should not matter whether the content of the lawsuit is a Hollywood movie or an adult film.

[2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since the two entities operate almost the same way, e.g., sending DMCA copyright infringement notices to the subscriber directly via the ISP, this article is also relevant to RIGHTS ENFORCEMENT.]


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    Are you guilty if pirates use your internet?

    I was very impressed to see TorrentFreak.com write two articles entitled, “Are You Guilty If Pirates Use Your Internet? Lawyer Says NO,” and “Are You Guilty If Pirates Use Your Internet? Lawyer Says YES,” respectively.

    Up front, I commend both attorneys Randazza and Ranallo for their contributions to these articles. Too many people are falling prey to these bittorrent lawsuits, and it is about time some on each side voice their opinions.

    In short, my take on the two articles. Starting with the “NO” article found here, I thought Ranallo’s brief was well written, but it felt, well, brief. As far as I was concerned, while I certainly commend attorney Ranallo for his well written opinion (and for putting himself out there), the article was significantly lacking as far as what is actually going on in these cases. In addition, he COMPLETELY glossed over discussing DIRECT INFRINGEMENT which is what 99.999% of you are accused of. Unlike the 1932 tugboat case referenced in Randazza’s opposing article (“YES”), there has grown some relevant case law in the various severances and dismissals that have already happened BOTH LAST YEAR AND THIS YEAR.

    For example, joinder. Many courts have held that it is improper to sue multiple defendants in the same lawsuit (e.g., Plaintiff v. Does 1-500) who did not take part in the same torrent swarm or who did not download the same torrent file. On top of that, EFF.org has been screaming “personal jurisdiction!” since these cases started showing up, and they are correct. For the most part, many (if not most) defendants who are sued DO NOT LIVE IN THE STATE IN WHICH THE LAWSUIT IS BROUGHT, (and bringing a bit of current law from the 2nd District [not binding on other courts] into the mix,) NOR ARE MANY OF THE LAWSUITS BROUGHT IN THE STATE WHICH IS THE PLAINTIFF’S PRINCIPAL PLACE OF BUSINESS. In short, these cases suffer because plaintiffs sue defendants in the wrong court and thus in a number of cases, there is no personal jurisdiction over the putative defendants.

    There was so much more that was missing from Ranallo’s brief, but I suppose he was most concerned about just stating basic copyright law rather than fighting our side of these bittorrent cases. For example, he completely missed the high likelihood of a defendant succeeding if a digital forensics expert (paid for by the plaintiffs and/or their attorneys) examines a defendants computer and finds 1) no infringing file, and 2) no spoliation [formatting/wiping] of evidence after having notice of the lawsuit. People seem to gloss over that one too. In short, if a defendant didn’t do the crime, they shouldn’t do the time (here, paying the plaintiff their settlement amounts). These topics often don’t get discussed in the context of these lawsuits because so far, they have not been going to trial.

    Now for the “YES” article found here. In short, Marc Randazza brought forth a well-written viewpoint that internet users who do not lock down their internet connections (e.g., with WEP or WPA2 encryption) are negligent and they deserve what comes to them through their ignorance. In short, the negligence theory as applicable to these cases states that an internet user 1) has a DUTY to lock down their internet connection [so far not true], 2) the internet BREACHED that duty by leaving his wi-fi router “open” (e.g.,without a password), 3) because the internet user did not lock down his connection, he CAUSED the plaintiff’s damage [again, not true], and 4) whether and how much the copyright holder suffered DAMAGES from the internet user’s lack of a secured wi-fi connection.

    In short (and in response), the negligence argument assumes there is a DUTY to lock down your wireless access point (as noted). As a side note, as far as a duty is imputed to internet users, I’ve seen a few plaintiff attorneys argue that some ISP TOS agreements now require users to put a password on their wi-fi routers, but I have yet to see any proof of these myself. Plus, as far as I know, there have been NO court cases indicating that there is a DUTY to lock down one’s wi-fi access point.  As far as imposing a duty where none existed in the statutes, citing back to a 1932 tugboat case is a stretch at best, but point taken. We will see whether the courts impose a duty to lock down an internet user’s connection. Then again, if that ever becomes the case, then routers will come with WPA2 encryption active as the default setting with custom passwords, especially since the older forms of encryption can be cracked by anyone knowing how to look up “WEP cracking” on Google. If this ever becomes the case (and it would be a dark world if we were not permitted to share our connections with others, note EFF’s Open Wireless Movement,) we’ll have a fun time joining the ISPs as defendants because last I checked, it is their technicians and not the computer illiterate subscribers who set up routers in the first place.

    In sum, two good and well written articles.  Do either cover the topics which relate directly to the copyright infringement lawsuits currently pending?  Not really.  Copyright infringement has more of a dry way of looking at whether an internet user is guilty of copyright infringement, and neither side addressed those issues.  That being said, it was still fun reading the articles and no doubt they will attract a lot of attention over the coming weeks.

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