Movie industry repeats music industry's mistakes and loses

[bazooka]

Did they not pay attention when the first judge said it was improper to lump the defendents together in 1 case earlier this year?

They tried the same thing and got told no.
http://www.boycott-riaa.com/article/15015

Court: Just say No--MPAA
Posted by Tom Barger on November 23, 2004 at 10:16 PM (printer friendly)

November 23, 2004
Court Blocks Movie Studios' Bulldozer Legal Strategy
http://www.eff.org/news/archives/2004_11.php#002147

Northern California - A federal judge in California has put a roadblock in front of the movie studios' lawsuits targeting filesharers.

Last week, members of the Motion Picture Association of America (MPAA) filed 11 lawsuits against hundreds of people they accused of using file-sharing networks to share infringing copies of movies. They sued groups of "Does" identified by numerical IP address and requested discovery of names from the users' Internet Service Providers (ISPs). A Northern District of California judge found this bulldozer approach improper, ordering that the case for Does 1-12 should be put on hold for all but one of the defendants.

Judge William Alsup ruled that because claims against the 12 defendants were unrelated, yoking the defendants together into one big case was improper. "Such joinder may be an attempt to circumvent the filing fees by grouping defendants into arbitrarily-joined actions but it could nonetheless appear improper under Rule 20," the order states. The Electronic Frontier Foundation has filed friend-of-the-court briefs objecting to similar misjoinder in many of the cases filed by the Recording Industry Association of America (RIAA) against alleged infringers.

"This decision helps to give due process rights to the Internet users accused of infringement," said EFF Staff Attorney Wendy Seltzer. "Lumping them together makes it more difficult for everyone to defend against these claims." EFF is also concerned about the movie studios' failure to produce evidence of infringement against even Doe #1 in this case.

Here's the pdf of the judge's finding:

http://www.eff.org/IP/P2P/MPAA_v_ThePeople/20041123_20thv12_order_severing_cases.pdf

[Gurm]

HAHAHAHA when will they learn. *shakes head*

[Skoorb]

Sounds about right to me. What the MPAA was doing was basically a reversed class action lawsuit. Instead of lots of people going at one defendent, you have one plaintiff going after lots of defendents. I can understand the MPAA's distaste for all of the filing fees/lawyers' hours, etc., but having two people who've done different things essentially answer for the same crime and be punished in the same manner is not very nice.

[BJ_M]

they should just launch a lawsuit against IP(s)

12.0.0.1 - 255.255.255.255

sure to catch a few that way ...

[yoda313]

they should just launch a lawsuit against IP(s)

12.0.0.1 - 255.255.255.255

sure to catch a few that way ...

Hello,



Or just sue everyone with a modem as a preemptive strike!

Kevin

[adam]

I'm sure they did pay attention to the earlier RIAA suit, which is why they are doing this. I haven't followed the fallout from the RIAA suit but my guess is that there just wasn't any error to appeal. So now the MPAA is going to challenge the denial of this motion in an attempt to put the law back to where it was.

With the amount of infringement suits both camps (RIAA and MPAA) are filing this is big money. Its expensive to file suit against a defendant JUST to find out their name. But there is no doubt this is a circumvension of joiner rules.

[glockjs]

and yet again they think they're special and can bend the laws to their favor. nuuuupe. sorry

[bazooka]

@Adam -

You are right about the big money, but you would think that would be a reason to do it right the first time and not try to lump everyone in one case.

They would only need to take one person to court and win to change the landscape of peer 2 peer.

The only thing is that p2p accounts for about 80% of internet traffic.

[adam]

I think you misunderstood my post. They aren't trying to change the landscape of P2P, they just want to file infringement suits against those who infringe. The problem is that the only way to track these individuals is by ip, and to proceed with the infringement suit they are going to have to find out that individual's name and address.

They are not actually trying all these people in one suit. They are merely filing a suit against multiple John Does (presumably all the people who downloaded X file) so that they can subpoena the isp all at once to get the names of all these individuals. Once they've got those names they can decide who they want to sue. Then they sever the claims to separate suits and amend to include the party's actual names. Each individual is still going to be sued separately, and the truth is that %99.999 of all of these claims settle anyway.

Right now if they witness 1000 ip address downloading a file with potentially copyrighted material, they must file 1000 separate lawsuits and subpoena their isps 1000 times, just to get the names of these individuals so they can proceed with the infringement suit. It takes alot of time and money to do all this paper work and pay all these court costs and legal fees. They also probably have to request hearings for alot of these motions connected with the suit which means you've got to fit them into the court's docket....which means that your suits are going to be backlogged probably for years. Its really extremely inefficient and in my opinion a waste of judicial resources.

The problem with what they are doing, of course, is that they are trying to get around Due Process by joining unrelated claims. It makes sense, and it probably saves everyone time and money, even the ones being sued, but its simply a circumvention of the joinder rules no matter how you spin it. I would not be at all suprised if Congress passes a law providing a joinder exception for this scenario.

In the meantime, my personal opinion, is that the MPAA is just trying to bring this issue before the court again. The only way to do that is to improperly join multiple John Does again and then challenge the court's ruling when their discovery motion is denied.

[Skoorb]

It makes sense, and it probably saves everyone time and money, even the ones being sued

I think you're right. If the process is relatively inexpensive for the MPAA, they will tolerate lower settlements. If, however, they need to go out of their way in each case, and each filing is more expensive, low settlements are unlikely. The flip side of that is that they will not be able to file against as many individuals, so the net result is probably a lesser number of filings, with a greater retribution demanded in each case.

Personally I'm becoming increasingly convinced that, if anything significant happens at all because of P2P, it will be merely a shift in how the industry is run, and it won' be because of filing suits against users. It does deter some, but for every user you deter two more end up popping up, as broadband increases, and the ease of swapping files inreases. Suits are not the likely answer.

I think that the MPAA probably has too much money in it anyway. I don't mean the knee jerk "Damn those actors shouldn't be making $20 million for 30 days work.", as I sit here making a fraction of that. The actors are getting paid what the market can bear. But, that aside, 30 days acting simply is not, compared to other industries, worth $20 million. Actor A may make $20 million in 30 days and actor B may be just as good, but since he doesn't have the notoriety attached to his name he may only make $200k. It's, I think, a pretty clear cut example of exactly how the industry does have too much money. If pirated movies really hurts the industry a good bit, salaries may have to go down. You may need to work 60 days now for $5 million. Off the top of my head I can't think of any other way for a person to make money easier than being a top-tier actor. Granted, it's hard - and requires tons of luck - to get there, but compare to musicians or athletes. None of them can make such tons of money for such comporably easy work.

I highly doubt the quality of movies will go down, or the number of them. Music is an older industry, now rife with pirating, and long before there was lots of money to be made in that industry there were countless skilled musicians. I don't think the consumer is going to suffer, and I don't think that the artists are really going to suffer. It's mainly going to be the middle man, and some of the top tier artists - who, by the way, will continue to do what they do; they'll make less doing it, however.

[gll99]

I'm surprised that anyone would settle. It's got to be that hardest thing to prove.

[painkiller]

HHhhhmmm, let's see here.


Sony - makes dvd burners and blank media.....

Another branch/arm of Sony (Viacom?) makes movies.....

So, why don't they sue themselves???????????????

Mkay?

[BUGANNA]

IF person X downloads, say, 100 films per year, does that mean he wouldve PURCHASED 100 films from a shop that year ?

No.

Im sure people will always want to have nice quality DVDs of their favourite films, WHO WANTS KILL BILL as a DIVX ? not me.

Besides, 90% of all movies are utter garbage these days, who on earth would want to watch them, let alone copy them ?

The tight fisted assw1pes that download 100s of movies, yet nothing about QUALITY movies, are not the kind of people who wouldve bought them in the 1st place.

I dont download any films, as it takes too long, quality is crap, DIVX is still a rubbish format, even DVD is far from perfect,

BUT i am a member of an online DVD rental club.

U dont need to downloads 100s of crap, just to see a good quality dvd of a good film, every week or so.

And you can join a rental club, and get about 12 dvds a month, for LESS than the cost of broadband per month.

Because of the way people choose quantity over quality, in the future, there will just be DIVX type compressed movies, and MP3 type audio.

in a word, RUBBISH.

u reap what u sow.

Boogs

[adam]

gll99 its incredibly trivial to prove copyright infringemnt from an illegal download. Here's what they do. They have a crew that monitors P2P programs. They see "HarryPotter.dvdrip.blah.blah.xvid" and then hit download. Then they look at all the ip's uploading it and log them. Then they (under these latest rulings) file a suit against John Doe for each of these ips. Then they subpoena the isp of each ip address and request the user's name and address and the record of their online activity. Then they sue and IF the person goes to trial they present the records showing that their account was used to download X file. Then they simply show a copy of that file to prove that it is indeed one that infringes on their copyright. There's really no defense and even if there was the legal costs in defending such a suit would be more then any settlement. Pretty much all these suits settle because the people are completely guilty and know it.

painkiller I don't follow your argument. What you are talkinga about is contributory infringement and its clear that dvd burners and media can be used for non-infringing activity. So I see nothing hypocritical at all about Sony suing individuals who illegally download a movie rather then purchase it, yet continue to manufacture dvd burners.

[SB50]

they should just launch a lawsuit against IP(s)

12.0.0.1 - 255.255.255.255

sure to catch a few that way ...

Hehe I'm not in that range , so I dont care if they do

[BJ_M]

ok - add 4.0.0.0 - 5.255.255.255 , though a lot of that range is military

[gll99]

gll99 its incredibly trivial to prove copyright infringemnt from an illegal download. Here's what they do. They have a crew that monitors P2P programs. They see "HarryPotter.dvdrip.blah.blah.xvid" and then hit download. Then they look at all the ip's uploading it and log them. Then they (under these latest rulings) file a suit against John Doe for each of these ips. Then they subpoena the isp of each ip address and request the user's name and address and the record of their online activity. Then they sue and IF the person goes to trial they present the records showing that their account was used to download X file. Then they simply show a copy of that file to prove that it is indeed one that infringes on their copyright. There's really no defense and even if there was the legal costs in defending such a suit would be more then any settlement. Pretty much all these suits settle because the people are completely guilty and know it.

I don't think it's as simple as you say. They still have to prove that you received a copyrighted file and committed an infringement. Don't p2p clients operate on the basis of multiple users contributing to the whole? It's like saying that the packet bits of 0 and 1's taken from here and there make a copyright work. If I follow that argument then all the contents of an encyclopedia, the letters of the alphabet and a dictionnary are all guilty of copyright infringement because they contain the building blocks that could duplicate a published book or article. I still believe that the onus is on the one bringing suite to show that there is really copyright infringement. Even if they reconstruct an image of the presumed file it is a copy that they manufactured not the so called download. I think the law requires more proof than manufactured evidence. As far as their so called monetary losses they would have a hard time justifying the incredible claims that the individual must bear responsibility for the sins of the multitude. The price of a movie ticket is $9.95 can in my area including tax and the price of a DVD is about $20 to $26 can when first released.

In defense, one could discredit the very tool that was supposed to have been used to commit the presumed offense. Many of these tools are poorly designed and could easily be misused. Just look at how many times they are updated to fix bugs. Even the loopholes in Microsoft's OS and internet tools which have been easily hacked by a third parties could be used in a defense. There is certainly more than anectodal and circumstantial evidence that there are many problems with criminals hacking into someone's computer and misusing other people's bandwidth.

Imagine also forcing the hand of the ISP who identified you by countersuing them for information on all other clients who were active on their servers at the time the alleged infringement took place since the breach could have been caused by security flaw on their servers. This would open a can of worms that would far transcend one simple case.

I'm not defending or condoning the practice but I think that there are many more arguments beyond the one's I've mentionned that can be brought before a court of law that would challenge the so called irrefutable tracking of any electronic data transfer.

[adam]

Well we are handling these cases more and more at my office. Like I said, after suit has been filed the copyright holder can subpoena the isp. They get a record of your online activity. Its pretty difficult to build a defense when there is a document showing that you uploaded an obvious copyrighted work (latestmoviename.divx.dvdrip.etc...) to 500 different locations. Don't forget that they can also confiscate your pc and view the contents of your hard drive. I can say with certainty that about 99.99% of these types of cases settle, but that's not saying all that much because I can say with certainty that about 98.99% of all cases settle anyway. The bottom line is that if you get caught uploading copyrighted files on P2P then you are going to have to pay. About the only defense to this type of copyright infringement is an unsecure network, but unless this actually happened to you then making this argument is far worse then uploading copyrighted files, IMO. Like I said before, most people settle these cases because they are flat out guilty.

You are absolutely right about the proving of damages. It is almost impossible to ever show that you have been financially harmed due to any form of copyright infringement. That is why statutory damages are provided for under copyright law. Since there is no way to prove your actual damages under most circumstances, the law protects the copyright holder by giving them a set amount damages per each instance of infringement. Without this there would be no financial deterrent against copyright infringement. The worst any copyright holder could do would be enjoin you, but you'd still get to keep any profits you made from your infringement. You don't have to prove your monetary damages to win an infringement suit. All you have to do is show that you registered your copyright prior to infringement or within three months of publication, and that the defendant did in fact infringe on your copyright.

[Nilfennasion]

I wonder when the pirates are going to go back to doing the smart thing and return to the casual copying of media between friends. In the Commodore 64 days, this was the only way to acquire pirated software, and companies lost far more money to it than they ever will to P2P networks. Especially since P2P networks in their current form basically send a message to the MPAA along the lines of "here I am, come and get me".

[bazooka]

I wonder when the pirates are going to go back to doing the smart thing and return to the casual copying of media between friends. In the Commodore 64 days, this was the only way to acquire pirated software, and companies lost far more money to it than they ever will to P2P networks. Especially since P2P networks in their current form basically send a message to the MPAA along the lines of "here I am, come and get me".

Nilf, where have you been hiding?

It is good to hear from you.

[Nilfennasion]

In a nutshell, I have been busy working on my novel. I was casually typing the start of a battle sequence when Word's autocorrect and Language tools decided on their own to just stop working, for a cause I have never been able to isolate. Infuriating, to say the least. So for a while, I have experimented with Wordperfect, but the latest version tries too hard to be like Word. So I managed to get the autocorrect and Language tools working again, which is incredibly important when your hero has a name like Trór, not Tror. Unfortunately, the Language settings still refuse to work, which is a real pain when your document contains quotes in Norwegian, Latin, and Italian. *sigh*

I've also been burning discs with an unholy sort of vengeance, mainly in an effort to keep myself sane. I finally managed to burn a DVD+R DL that works in the drive that originally burned it (unfortunately, not a single other drive or player in this house will read it).