Two issues made this case stand out. One, this is the first time sharers of music have been sued since the RIAA ended its infamous campaign. Two, the suing of All Shall Perish’s fans is being done without the band’s permission. Indeed, the band’s label, Nuclear Blast, didn’t even tell ASP that they’d signed over the band’s copyrights to Panama-based World Digital Rights so that they could sue.

TorrentFreak has kept in touch with ASP manager Ryan Downey who has been hoping that the lawsuit would be withdrawn. However, we discovered that World Digital Rights have persisted with their lawsuit and earlier this month were granted permission from Judge Sheri Polster Chappell to obtain the identities of 80 alleged file-sharers from US ISPs.

We informed Downey of the development and he and the band’s lawyer went away to see what could be done.

“The band’s attorney made it clear to the licensing people [at Nuclear Blast Records] that the band wanted no part in lawsuits against fans. The industry is changing, illegal downloading is troublesome for bands and of course, for record labels, but whatever the solution will be – streaming, subscription, Kickstarter, new ways of looking at it entirely, whatever comes about – the band and I are in agreement (as is their lawyer) that SUING MUSIC FANS SURE ISN’T IT,” Downey told TorrentFreak.

But of course, when this story broke last month Nuclear Blast were already aware that the band didn’t support suing fans yet either couldn’t or wouldn’t stop World Digital Rights persisting with the lawsuit. Clearly the band’s protests needed underlining.

“The licensing folks at Nuclear Blast in Germany took all of this to mean we wanted them to prevent World Digital Rights from pursuing any new actions / claims. I don’t know how we could have been more clear, but, we emphasized again, after receiving your email and being made aware of these new developments, that what we were saying all along was DISMISS ANY AND ALL LAWSUITS AGAINST ALL SHALL PERISH FANS,” Downey told us.

Then this week there appeared to be a breakthrough.

“We were informed [Wednesday] by Nuclear Blast that they would tell World Digital to dismiss all of this. Furthermore, we have pressed (yet again) to ensure the copyright registration returns to the band as owners of all recordings, as nobody else had the right to register the band’s copyrights as World Digital seems to have either done or attempted at some point.”

But while Downey has answered questions and been very responsive, the same cannot be said about Nuclear Blast. Request for comment sent to several members of staff, from those in the licensing department to the label owner, were not responded to.

That said, the silence is not unexpected. While Downey has gone out of his way to be unfailingly polite when speaking to us about Nuclear Blast, using terms such as “hard working”, “passionate”, “communicative” and “supportive”, it’s impossible to overlook the fact that someone there transferred the band’s copyrights to a troll without even having the courtesy to mention it. And that troll continued with the lawsuit despite knowing the band were against it.

The best outcome now is that the whole thing goes away, but it’s still possible that World Digital Rights will persist and people will get settlement demands through the mail. If that happens, recipients will have someone to turn to.

“The band, their attorney and myself have and will continue to take any steps to protect their fans, yes, even those who file trade,” Downey told us. “The band would prefer that their fans legally purchase, stream or otherwise enjoy their music. But they definitely have not, will not and do not wish to sue their fans.”

If any reader receives a letter from World Digital Rights, write to us at the usual address.

Source: Music Pirates Will Be Unmasked, Despite Band’s Protests

The copyright holders who start these cases generally provide nothing more than an IP-address as evidence. They then ask the courts to grant a subpoena, allowing them to ask Internet providers for the personal details of the alleged offenders.

The problem, however, is that the person listed as the account holder is often not the person who downloaded the infringing material. Or put differently; an IP-address is not a person.

Previous judges who handled BitTorrent cases have made observations along these lines, but none have been as detailed as New York Magistrate Judge Gary Brown was in a recent order.

In his recommendation order the Judge labels mass-BitTorrent lawsuits a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the future.

One of the arguments discussed in detail is the copyright holders’ claim that IP-addresses can identify the alleged infringers. According to Judge Brown this claim is very weak.

“The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time,” he writes.

“An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones.”

“Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call.”

The Judge continues by arguing that having an IP-address as evidence is even weaker than a telephone number, as the majority of US homes have a wireless network nowadays. This means that many people, including complete strangers if one has an open network, can use the same IP-address simultaneously.

“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,” Judge Brown writes.

“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.”

Judge Brown explains that the widespread use of wireless networks makes a significant difference in cases against file-sharers. He refers to an old RIAA case of nearly a decade ago where the alleged infringer was located at a University, on a wired connection offering hundreds to tracks in a shared folder. The Judge points out that nowadays it is much harder to pinpoint specific infringers.

Brown also cites various other judges who’ve made comments on the IP-address issue. In SBO Pictures, Inc. v. Does 1-3036 for example, the court noted:

“By defining Doe Defendants as ISP subscribers who were assigned certain IP addresses, instead of the actual Internet users who allegedly engaged in infringing activity, Plaintiff’s sought-after discovery has the potential to draw numerous innocent internet users into the litigation, placing a burden upon them that weighs against allowing the discovery as designed.”

Judge Brown concludes that in these and other mass-BitTorrent lawsuits it is simply unknown whether the person linked to the IP-address has anything to do with the alleged copyright infringements.

“Although the complaints state that IP addresses are assigned to ‘devices’ and thus by discovering the individual associated with that IP address will reveal ‘defendants’ true identity,’ this is unlikely to be the case,” he concludes.

In other words, the copyright holders in these cases have wrongfully accused dozens, hundreds, and sometimes thousands of people.

Aside from effectively shutting down all mass-BitTorrent lawsuits in the Eastern District of New York, the order is a great reference for other judges dealing with similar cases. Suing BitTorrent users is fine, especially one at a time, but with proper evidence and not by abusing and misleading the courts.

Source: Judge: An IP-Address Doesn’t Identify a Person (or BitTorrent Pirate)

Up to a point it’s a familiar story. A total of 80 IP addresses are listed having been harvested from a BitTorrent swarm sharing the album “This Is Where It Ends”. The plaintiff, a company called World Digital Rights, wants to discover the real-life identities of the alleged file-sharers so they can be hauled into court or, as is almost guaranteed, settled with for a few thousand dollars instead.

After the news broke, predictably the band started to receive negative feedback. But according to All Shall Perish’s manager, Ryan Downey, neither he nor the band know anything about the legal action.

“The band wasn’t consulted whatsoever and none of us have ever heard of this company,” Downey told TorrentFreak. “I spoke to the US label manager and German label president who both are as confused as we are. We are digging deeper and looking into the legality of it all. We are thinking it’s perhaps a sublicensor or some digital aggregator or something?!”

In reality the answer seems more straightforward. All Shall Perish’s German label are Nuclear Blast who according to their site are “the largest independent heavy metal label in the world.” Even if Nuclear Blast’s president is confused by the lawsuit, people working for him are definitely fully in the picture.

According to the lawsuit, on March 12, 2012, Nuclear Blast signed over the rights to “This Is Where It Ends” to World Digital Rights, Inc., an act that made the Panama-based company the “exclusive licensee” of the album. Along with that came the right to sue and it seems the company are now making the most of that right. After conducting another search of court documents today, it appears that World Digital Rights actually filed two lawsuits against alleged sharers of the album, one against 80 Does and another against a further 100.

In both cases World Digital Rights demands that each defendant is held “jointly and severally liable for the direct infringement of each other defendant” and held liable for statutory damages of $150,000.

Downey, who told us that the band were totally blindsided by the revelations, describes this action against fans as “awful” and has promised to stay in touch with developments. Ideally these lawsuits will get withdrawn, not only for the sake of the Does but for the sake of the band. But if Nuclear Blast and World Digital Rights persist with this ridiculous project, All Shall Perish might have no choice but to personally intervene – their reputation could rely on it.

Source: Copyright Troll Causes Chaos By Suing Fans Without Band’s Permission

The venture, which lasted 5 long years, saw the group target some 18,000 individuals and generate some of the most controversial anti-piracy headlines of the last decade.

Recent years have seen the same strategy revived, largely by adult studios. With less of a reputation to preserve and possessing additional leverage as their victims fret over their taste in media becoming public, news of the lucrative schemes spread deeper into the porn industry and beyond.

Eventually mainstream movie companies such as The Hurt Locker’s Voltage Pictures chanced their hand, and even more recently book publisher Wiley jumped on board.

Now, after several years’ break, music lawsuits are back on the agenda.

As revealed by a lawsuit filed April 20th in the US District Court For The Middle District of Florida, American metal band All Shall Perish are seeking to identify dozens of their fans who allegedly shared their music on BitTorrent without permission.

Founded in 2002, All Shall Perish are on the Nuclear Blast label. Through their lawsuit, filed by World Digital Rights, they are seeking to convert 80 IP addresses, harvested from a BitTorrent swarm sharing their album “This Is Where It Ends”, into real-life identities.

“Upon information and belief, each defendant went to a torrent site to download a torrent file and then downloaded and uploaded the copyrighted Work within the BitTorrent network,” court papers read.

Among other things, the plaintiff demands that each defendant is held “jointly and severally liable for the direct infringement of each other defendant” and held liable for statutory damages of $150,000.

A jury trial is demanded but as everyone knows by now, no robustly defended case will ever get to court. Settlements of a few thousand dollars will be offered and paid by terrified individuals, whether or not they are guilty.

This is the second BitTorrent infringement case filed in recent days by the Dorta & Ortega law firm. Worryingly, both cases have their roots in Germany where lawsuits of this nature are running riot. If these succeed, more will surely come.

Source: US Music Pirates Face New $150,000 Damages Claims

However, starting last year more and more BitTorrent-related cases were filed at Florida state courts. The copyright holders in these cases are exploiting a loophole based on the pure bill of discovery, which allows them to demand subpoenas to send to Internet providers without having to provide any evidence.

For months this cheap trick proved to be very effective, but not anymore. In the case of movie studio Boy Racer against 615 unnamed BitTorrent users, Judge Marc Schumacher has issued a landmark ruling.

The judge starts off by describing mass-BitTorrent lawsuits as “fishing expeditions” and brands the copyright holders as trolls.

“[These suits are].. used to extort settlements from defendants who are neither subject to the courts’ personal jurisdiction nor guilty of copyright infringement, but who are fearful of the consequences of being publicly named as a defendant in a suit that seeks disclosure of the contents of their personal computers.”

The judge notes that many federal courts have dismissed BitTorrent lawsuits, and he himself now does the same, but for different reasons.

The basis of the dismissal is the fact that “copyright trolls” are violating BitTorrent users’ right to anonymous speech, a right that’s protected by the First Amendment.

“The Supreme Court often has recognized that the First Amendment protects anonymous speech. Other federal courts have held that Internet users sharing copyrighted works via the BitTorrent application are themselves engaged in anonymous speech that warrants First Amendment protection,” the judge writes in his order.

Judge Schumacher goes on to explain that because he has no jurisdiction over copyright matters, he cannot establish whether the claim of the copyright holder trumps the anonymity of the defendants. Thus, it is impossible for a state court to conclude whether the copyright holder’s request to identify the file-sharers is legitimate or not.

In short, it means that BitTorrent users’ right to anonymous speech shields them from being exposed through state court lawsuits.

In addition Judge Schumacher also ruled that the “pure bill of discovery” cannot be used for mass-BitTorrent lawsuits at all. The reason for this is that these subpoenas are supposed to target the defendant, not a third-party such as an Internet provider in this case.

Commenting on Sophisticated Jane Doe’s blog, where the news about the order broke, lawyer Richard Viscasillas suggests that the decision could mean the end of nearly all mass-lawsuits in Florida state courts.

“This latest Order by Judge Schumacher is now the only precedent in the 11th Judicial Circuit that I and other attorneys will be invoking to get all pending cases by all Plaintiffs dismissed with prejudice,” Viscasillas writes.

“This is the proverbial ‘shot heard around the world’ that may just spell the end of all the ‘pure bill of discovery’ troll lawsuits in Miami-Dade County, Florida. The Trolls have to be in an absolute state of panic right now.”

The order is indeed quite remarkable, and good news for tens of thousands of BitTorrent users who have been sued in Florida. Although BitTorrent itself is far from anonymous, it’s good to see that there are judges who prevent this fact from being abused though troll tactics.

Update: Shortly after this article was published we learned that the order in question has been vacated.

It turns out that the order was drafted by a defense attorney and Judge Schumacher apparently signed it by mistake, assuming all parties agreed on it. This is bad news for the defendants and means that the mass-BitTorrent lawsuits in Florida state courts are very much alive for now.

Source: Judge: BitTorrent Downloads Are Protected Anonymous Speech (Updated)

As highlighted dozens of times before, companies making these accusations rely on weak IP address-only evidence and use their legal teams to intimidate their targets into paying up – guilty or not.

CD Projekt wisely moved to protect their hard-earned image and relationships with both the gaming press and their customer base, but quite rightly noted a few weeks ago that they were not the only companies sending out these letters demanding cash.

So, addressing concerns that CD Projekt might have been unfairly singled out, TorrentFreak decided to dig deep into the archives of various resources including legal firms, campaign groups and the account holders themselves, to find out which other games companies – either directly or through local distributors – have been generating revenue from cash settlement schemes in recent years.

We discovered that not only are new games being targeted but older ones too, possibly to bring in extra cash from games well past their sell-by date when it comes to generating profit from more conventional sources.

Atari, the distributor of the original The Witcher, pulled out of chasing alleged file-sharers in the UK several years ago, but like many of their competitors simply transferred their settlement businesses to Germany. Atari has been sending settlement demands of several hundred euros for several of its titles including Alone in the Dark, Test Drive Unlimited and 2011′s Test Drive Unlimited 2.

Survival horror fans might be interested to know that distributor Koch Media has been sucking the blood from alleged sharers of the Techland game Dead Island. Tales of Monkey Island distributor DAEDALIC Entertainment are doing the same for publisher Lucas Arts.

Those who prefer a good stealthy RPG might be surprised to know that alleged sharers of Eidos/Square Enix’s Deus Ex: Human Revolution are being crept up on and told to pay-up-or-else to the tune of 800 euros by local distributor Koch Media, as are those accused of obtaining Dungeon Siege III (800 euros on this baby) and Final Fantasy games for free.

Codemasters, another company that first tried the UK and then took their settlement work elsewhere, originally pursued alleged file-sharers over their Colin McRae Dirt game.

But having gotten bored with sending out letters for F1 2010, they are currently sending cash demands of 800 euros over their latest off-road installment, DiRT 3.

Ending the racing theme, RaceOn (BitComposer) and Nail’d (Techland) complete the grid.

Holy settlement letter Batman! The Eidos/Square Enix/Warner title Batman: Arkham Asylum has been the subject of an unknown number of cash settlement letters sent out in Germany.

If you like your adventures a little more open, Eidos/Square are back again, asking for several hundred euros from ISP account holders connected to Just Cause 2 downloads. The duo come in again on the 3rd person settlement front with Kane & Lynch 2: Dog Days, closely followed by the Prison Break: The Conspiracy action/adventure from Koch Media (yet again).

Tactical shooter fans might be concerned by the scattergun approach taken by (and here they are again) Codemasters when they ask for 800 euros in connection with their game Operation Flashpoint Red River. The same goes for Ubisoft when they send out letters to claimed Tom Clancy’s Rainbow Six:Vegas downloaders.

First person shooters are always enjoyable, but being put in the crosshairs for allegedly sharing Painkiller addons Painkiller:Resurrection and Painkiller:Redemption can’t be much fun, especially when there’s a 300 euro headshot at the end of it destined for local distributor Koch Media.

Finally, if simulators are more your thing, stand by for a realism overload. Airline Tycoon 2 and Tropico 3 and 4 (Kalypso Media), Cities XL 2012 (dtp entertainment), City Bus Simulator/Simulator Gold (Aerosoft), Airbus X (Aerosoft), and Agrar Simulator 2011 (Koch Media), are all keeping it super-real with multi-hundred euro settlement demands.

The bad news is that the above sample is just the tip of the iceberg – dozens of devs and distributors of lesser known games are sending out these letters demanding anything from 300 to more than 1000 euros to make cases go away. But despite there being many games companies at the end of these settlement chains, three local names – Koch Media, dtp entertainment AG and Kalypso Media GmbH – appear more than any other.

It would be great if the companies listed above followed CD Projekt’s example and reconsidered their support for these horrible settlement letters. If any gaming publications would like to see the full list of games companies engaged in these schemes, feel free to contact us and we’ll happily send them over.

Source: Square Enix, Eidos & Other Game Giants All Demand Cash From Pirates

The aim of these cases is to get suspected copyright infringers to settle for a few thousand dollars, in what we’ve dubbed a “pay-up-or-else” scheme. These settlement proposals are the core of every single case, and none of the copyright holders intends to proceed against the accused file-sharers in court.

Although we’ve mostly covered US and UK cases here at TorrentFreak, Germany is really the home turf of these practices. This year alone millions of people have been targeted for allegedly downloading and sharing copyrighted material in Germany, and all were asked to settle their debt with cash.

Unfortunately for the copyright holders, not all of the people targeted are willing to pay up immediately, not least because they haven’t shared the file in question.

To address this problem of unpaid settlements, German law firm Urmann has decided to find a creative way to get paid. Representing an adult entertainment company, they are selling the outstanding settlement demands of 70,000 accused file-sharers to the highest bidder. The ‘lucky’ buyer can then do whatever they think is needed to extract as much money as possible from those on their newly-purchased list.

The amount the 70,000 people are in ‘debt’ for is 1286.80 euros each, so the total in outstanding settlements up for auction amounts to €90 million ($120 million).

The target audience for this unusual purchase are debt collection agencies, who will undoubtedly introduce all sorts of harassing tactics and subtle threats to get as many people as possible to pay up. Needless to say, this turns these “pay-up-or-else” practices into an even darker scheme than they already are.

One of the companies currently going after BitTorrent users in Germany is CD Projekt, the makers of The Witcher 2: Assassins of Kings. Although there is no indication that they will go as far as selling their debt to collecting agencies, being involved in the settlement business doesn’t help their image.

It will be interesting to see whether the same debt collecting practices will also be tried in other countries such as the US.

Source: Copyright Trolls Auction Off €90 Million in File-Sharing Settlements

The DC attorney was proudly listed on the Electronic Frontier Foundation’s list of lawyers who can help out people targeted in infringement cases, and in the press he scoffed at copyright holders and their “extortion” practices.

Not anymore though.

Those who take a look at Meier’s website today will see that he’s shifted the focus of his business 180 degrees. As first spotted by Sophisticated Jane Doe, the attorney is now teaming up with several copyright trolls to shake down BitTorrent users.

The redesign of his website is quite revealing.

Thus far Meier has sued more than 1,000 BitTorrent users, which he proudly boasts on his site. But at the speed he’s filing suits it wouldn’t be a surprise if his list of targets doubles before the end of the year.

In all honesty, as an attorney Meier is just doing his job. There are no regulations that prohibit him from making the move. But, from someone who previously said that copyright trolls are “basically extorting money”, it is unexpected to say the least.

“In my opinion, they are bill collectors for the movie industry,” he said in an interview with PilotOnline.com. “They’re basically extorting money.”

In another interview, before the career switch, Meier also had his doubts about the evidence collecting practices in these mass-BitTorrent lawsuits.

“There are multiple reasons why the law firms may have tracked down the wrong person. For example, someone may have downloaded a movie through a Wi-Fi network used by many people, or a minor child may have used the parents’ computer. Finally, there is the human or computer error factor, maybe the user was actually out-of-town when the alleged download occurred,” he said.

We assume that his take on the situation has changed somewhat, now that he’s getting a piece of every settlement that’s “extorted” from falsely accused people. But everything has its price, doesn’t it?

Source: BitTorrent Defense Lawyer Joins Copyright Trolls

Perhaps the most significant rulings came from Virginia, where District Court Judge John Gibney threw out all but one defendant in various cases filed by lawyer Wayne O’Bryan. The Judge suggested these cases are only setup to extract as much cash from defendants as possible, and that several procedures are broken in the process.

Gibney even went as far as calling the scheme a “shakedown.”

“This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does,” Judge Gibney wrote.

Aside from throwing nearly all defendants out of the cases, the Judge also asked O’Bryan and the copyright holders why the court should allow such litigation in the first place.

“The plaintiffs’ conduct in these cases indicates an improper purpose for the suits. In addition, the joinder of unrelated defendants does not seem to be warranted by existing law or a non-frivolous extension of existing law,” he wrote.

If the answer to this order isn’t sufficient, and the mass-lawsuits are indeed found to be ‘frivolous’, it could signal the beginning of the end for many more BitTorrent lawsuits. These developments haven’t gone unnoticed by other lawyers who make a living off suing alleged BitTorrent users.

This week law firm Steele Hansmeier filed an amicus brief in support of mass-lawsuits. Interestingly enough, the Steele Hansmeier brief was submitted by the law firm Anderson & Associates, who are also involved in BitTorrent lawsuits themselves.

“Steele Hansmeier has extensive experience litigating suits similar to this action and believes that these actions are the only feasible method for copyright holders to protect their rights against the onslaught of BitTorrent-based copyright infringement,” they write.

The brief then goes into detail on why the court should allow thousands of defendants to be sued at once.

The above suggests that the firms are worried about the potential downfall of their lucrative business model to the extent that they feel the need to get involved in other cases to save what they can. For Steele Hansmeier this may be of even greater value than for other firms, as they are part of a tangled web of so-called copyright trolls.

A few days ago Judge Gibney scheduled a hearing for next week, where lawyer O’Bryan has to explain why their pay-up-or-else scheme is lawful. If the Judge concludes that the lawyer and copyright holder indeed violated federal rules, then they can expect to be fined thousands of dollars.

It goes without saying that it’ll be interesting to see the outcome.

Source: ‘Copyright Trolls’ Unite to Prevent Downfall of BitTorrent Lawsuits

In recent months many of these defendants walked free because various judges ruled – for a wide range of reasons – that copyright holders should file individual lawsuits instead of joining many in one suit to save costs.

This week the attorney for adult company K-Beech, bankruptcy expert James C. White, submitted a rather incoherent declaration to the court where he argues the opposite.

In response to motions from defendants, White explains that these mass-lawsuits are warranted because not all the IP-addresses they filed suit against are actually targets worth pursuing. To keep the costs low, joining these IP-addresses in one suit is therefore a practical (and financial) consideration.

Although the above holds no ground as far as the law is concerned, the lawyer does review a few interesting details about the IP-addresses they target. As it turns out, even undercover cops have been caught red-handed, downloading and sharing porn.

“In similar copyright infringement suits filed by Plaintiff’s lawyers across the country, a police department running a covert investigation was identified as a John Doe defendant, and Plaintiff voluntarily dismissed that John Doe,” White explains.

Besides undercover cops, the adult entertainment company also has a policy of dismissing their cases against military personnel stationed oversees, according to the lawyer. The dead and famous are not settlement material either.

“Several of the John Doe Defendants have died prior to being identified. Several John Does have been public or political figures who Plaintiff did not choose to sue,” White writes.

Although it’s no surprise that dead people are not the easiest group to settle with, it’s unclear why politicians and public figures have to be excluded. This group generally speaking can afford to pay a settlement fee, and as the settlements are undisclosed the press would never find out. It’s also possible, however, they may just put up an embarrassing and potentially expensive fight.

The lawyer then goes on to name several instances where it’s impossible for them to find out who the real infringer is. This causes even more IPs to be dropped from the initial list of defendants.

“Myriad IP addresses trace back to multiple dwelling units such as apartment complexes, universities, coffee shop Wifi hotspots, casinos and domestic violence shelters,” White continues. “IT personnel at these entities have often tried to trace hits to actual individuals, but it most often proves impossible.”

And then there’s the issue of “data loss.” Apparently Internet providers can’t cough up details on more than 10% of their subscribers. K-Beech’s lawyer discovered this serious issue, which means the administration at all ISPs must be a complete mess.

“Plaintiff loses 10% -15% of the Doe identities it subpoenas nationally due to ISP data failure or deletion issues,” he writes.

The potential pool of defendants is then even further reduced because Internet subscribers get new IP-addresses every so often. As a result, K-Beech sued the same person so many times that it couldn’t even keep count.

“Due to the dynamic ISP [sic] issue, Plaintiff has sued the same Doe Defendant innumerable times in several joined suits across the country,” White explains.

Of course none of the above is a very good legal argument for joining this many defendants in one lawsuit. Not in legal terms at least. But in yet another twist White argues that it’s not only pragmatic to file a mass-lawsuit, but that it is also in the best interests of their business model.

“Increasing the costs associated with this litigation by forcing Plaintiffs to file individual suits would only increase the settlement demands and make settlements less probable.”

That would be a shame of course, as it would result in a far less profitable scheme. But would a judge see that as a valid legal argument? We doubt it.

All in all the above shows that copyright holders are quite selective in picking their targets. It also showed BitTorrent users who don’t have money to settle their case or fight it, that there’s another option to make it go away.

Join the army…

Source: Undercover Cops and Politicians Escape BitTorrent Lawsuits

Why do so many of these lawsuits aggregate thousands of John Does into a single suit? The first answer is often, “More potential victims means more settlements, which means bigger profits.” That is true, but there is an equally important reason for bringing a mass lawsuit. Filing fees. The filing fee in most US District Courts, and indeed the courts where 90% of these cases have been filed, is $350. Every separate case filed costs $350. 

Although filing fees can be recovered if the plaintiff wins, that only applies if the cases are taken to trial. With the recent surge of BitTorrent lawsuits, none have gone to trial, and it is unlikely one ever will. So the costs of filing eat directly into the profit margins of these lawsuits. Additionally, each case will require other form-related fees, such as subpoena fees.

When judges refuse to allow many BitTorrent users to be joined in a single lawsuit, these cases become much more cost intensive. That is exactly what is happening.

The Roadblocks

Below we discuss three rulings and a procedural rule that vitally impacts the costs inherent in these lawsuits. They could spell doom for the profitability of the mass BitTorrent lawsuit scheme, bringing an end to a travesty of justice that has seen a grandmother, a blind man, and a dead person sued for alleged copyright infringement.

First, Judge Ryu of the Northern District of California ruled that defendants cannot be joined when they are from different swarms. Where two defendants downloaded the same copyrighted work, but did it via different torrents or on different trackers, they cannot be joined.

Second, Judge Zimmerman, also of the Northern District of California, ruled that BitTorrent users in the same swarm can only be joined if they are present in the swarm at the same time. If a defendant comes along a week later when another defendant is no longer part of the swarm, those defendants cannot be joined.

Third, multiple judges have raised the issue of jurisdiction. While jurisdiction is not a ruling, it requires adherence to certain laws of legal procedure. A US District Court can only hear cases concerning defendants that fall within its jurisdiction. Many judges have questioned how an IP-address from another part of the country could fall within the power of their district. This issue has prompted multiple judges to dismiss vast chunks of these BitTorrent lawsuits.

Fourth, Judge Baker of the Central District of Illinois ruled that an IP-address does not constitute a person.  He decided this in ruling on the issue of “good cause”, which is required for the court to issue a subpoena that allows the plaintiffs to discover the subscriber’s personal information associated with the IP address.  This is vitally important because without the information the plaintiffs have nowhere to send the settlement letters. 

In his ruling, Judge Baker stated that many of the IP addresses before his court could be associated with institutions like universities, or even public wi-fi hotspots. Additionally, he expressed doubt that a subscriber was the likeliest person to be the infringer – “[it] might be…someone in the subscriber’s household, a visitor with her laptop, a neighbor…”

The Economics

Let’s do a little economic analysis to illustrate the impact of these rulings. 

Before the rulings a plaintiff filed suit against 6,000 John Does, all joined together, in the Northern District of California.  Filing cost – $350.  Subpoena cost – $150.  Since it is just one lawsuit, a single lawyer working part-time can handle it.  The lawyer works 20 hours per week for 16 weeks at $300 per hour.  This lawsuit costs $100,000.  If a third of the John Does settle at $750 each, the revenue is $1.5 million. 

– The potential profit? $1.4 million.

After the rulings, a plaintiff files the same suit against 6,000 John Does. However, because of the rulings on swarms, only 12 Does can be joined in a single suit. Therefore, 500 suits must be filed. Filing cost – $175,000.  Subpoena costs – $75,000. Because of the rulings on jurisdiction, we must bring the suits in 20 jurisdictions. This amount of work will require 4 lawyers working full-time, 40 hours per week, for 16 weeks at $300 per hour. 

This lawsuit costs $1.01 million (lawyer fees plus filing/subpoena costs). Because of Judge Baker’s ruling, one third of the Does are dismissed for lack of “good cause.” One third of the remaining 4,000 Does settle for $750 each for revenue of $1 million. The potential profit?  None.

– The plaintiff actually loses $10,000.

The specific numbers above are just an illustration. Maybe less or more lawyers are needed, less or more Does are dismissed, and the number of Does joined in a single suit might be greater or less than 12. In the face of declining profits and increasing court costs the plaintiffs may also choose to increase the minimum amount per settlement. But, a higher settlement price doesn’t guarantee higher profitability.

However the numbers might vary, the underlying points remain the same.

Currently filed BitTorrent lawsuits aren’t suddenly going to disappear, at least not for solely financial reasons. But the rate at which thousands of John Does are being hailed into court? That will certainly decline. Before those rulings, the return on investment (ROI) for the lawsuit would be well over 10,000%. After these rulings, the ROI drops to, at best, single digits. At worst, the plaintiff will lose money attempting a mass BitTorrent lawsuit.”

Perhaps this is why the mass settlement lawsuits are now being filed in Canada?

—

The above is a guest post from Allan Gregory. Allan is a bar-certified lawyer in the state of Florida, with a special interest in Internet Law.

Source: The Economics of (Killing) Mass-BitTorrent Lawsuits

Thus far the results in court have varied greatly. In some cases the judges were quick to throw the cases out, and in other instances the copyright holders were allowed to identify the alleged copyright infringers. They could then continue their scheme and send settlement offers to the defendants to make the threat of legal action disappear.

Last week we reported that USCG had dropped one of their most prominent cases representing the makers of The Expendables, Nu Image. In a brief court filing they voluntarily dismissed their case against 23,322 alleged BitTorrent users who were accused of illegally sharing the film.

One of the reasons for this dismissal is that in July, District Court Judge Robert Wilkins ruled that the lawyers could only go after those individuals who are reasonably likely to be living in the District of Columbia.

This meant that they were not allowed to send any subpoenas to ISPs when the IP-addresses are located in other districts, and it effectively reduced the group of defendants to about 1 percent of what it initially was. Apparently, this group of leftover defendants was not worth the effort and the case was dropped.

But this case doesn’t stand alone.

This week USCG voluntarily dismissed another lawsuit (pdf), one that was filed just a few weeks ago. The case in question was filed on behalf of Cinetel Films, the makers of the horror flick “I Spit on Your Grave” and listed 1,951 BitTorrent users as defendants.

As with the Expendables case, USCG doesn’t give a reason why they chose to voluntarily dismiss the case. However, since this case was also appointed to Judge Robert Wilkins it doesn’t seem far-fetched that they anticipated running into similar jurisdiction issues as they did in the Expendables case.

The above suggests that USCG is ‘retreating’ and they are unlikely to file similar mass-lawsuits at the District Court for the District of Columbia in the near future. However, that doesn’t mean that the trouble for the defendants is completely over.

As both cases were dismissed “without prejudice,” it means that they ran be refiled at a later stage. This allows the lawyers to cut up the huge list of defendants into smaller batches and file new lawsuits in the districts where these alleged BitTorrent users live.

As we’ve pointed out in the past, anti-piracy lawyers are constantly changing their tactics to maximize the profitability of their settlement schemes. The future will show whether USCG and its clients are planning to do the same. In other words, they may have lost a battle but the war is certainly not over yet.

Source: Anti-Piracy Lawyers Retreat, Drop Another Mass BitTorrent Lawsuit

A significant number of the defendants are likely to be guilty, but there’s also a lot of collateral damage. Firstly it’s unclear how accurate the evidence gathering techniques of the copyright holders are, and even when they have the correct IP-address it doesn’t necessarily follow that the account holder on file is actually the infringer.

In previous weeks we showed how copyright holders accused the dead, blind and also a 70-year-old grandma who claimed to have never heard about BitTorrent. Unlike many others, the latter had no intention of paying up. Instead the retired widow from San Francisco went to the press with her conclusion that the letter she received “smacks of extortion.”

Paying the copyright holder a settlement fee for sharing porn (Amateur Allure: Kim) was out of the question, and she was determined to fight the case in court.

Lawyer John Steele, whose law firm is representing the copyright holder in this case, read the press reports on this case with great interest and took a step we’ve never seen before. Apparently Steele and his team decided to review their evidence, only to come to the shocking realization that they sued the wrong person.

In a letter to the woman signed by Steele, the lawyer explains that they’ve made a mistake and that the case against her is being dropped immediately. The letter further notes that the actual person who did download and share the porn movie was found.

Although this is great news for grandma, something is really wrong with this story.

If Steele claims that something went wrong, and that the real person has now been caught, this means that they actually included the wrong IP-address in the original complaint. Since an IP-address is the only evidence the copyright holders have, they must have made an error that they were able to correct later.

If that is indeed the case, then we have to wonder how many times such mistakes have been made in the past. Mistakes that cost innocent people several thousand dollars.

The other possibility is that the ISP made an error when matching the supplied IP address to a name, but there is no mention that this is the case and the lady in question has received no apology from her service provider.

The remaining explanation for this turn of events is that Steele and his friends are diverting attention away from the truth in what has turned out to be a significantly embarrassing case brought against a rightfully defiant lady. That wouldn’t be unthinkable either as copyright holders and the lawyers that represent them generally know that suing the old, dead, blind and crippled is bad for PR.

In the past we documented how the UK anti-piracy law firm ACS:Law deliberately chose to drop such cases to avoid bad press.

“If you find someone who is blind, one legged and dying, and you think they are not worth pursuing due to the possibility of bad PR, please also put them in [the folder of people who not to pursue] there,” lawyer Andrew Crossley wrote in an email to his colleagues.

It wouldn’t surprise us if the case against the 70-year-old grandma was dropped for exactly the same reason. But either way, instead of covering the case by dropping it, Steele and partners only raised more suspicion with their failed attempt to rationalize their ‘mistake’.

Adding insult to injury, their failure to even give grandma the courtesy of an apology only serves to discredit them further.

Source: BitTorrent Grandma Was Wrongfully Accused, Lawyer Admits

Their example was soon followed by other law firms, representing dozens of copyright holders, who saw an opportunity to convert instances of piracy into a healthy revenue stream.

One of the movie studios that teamed up with USCG is Nu Image, the makers of The Expendables, an independent production that grossed more than $100 million in the United States alone.

A massive list of 23,322 U.S. Internet users were targeted by the film studio, and for a short while Nu Image had the questionable honor of having started the biggest file-sharing lawsuit the world has ever witnessed.

But, instead of raking in millions of dollars from the accused file-sharers as was the plan, Nu Image has now thrown in the towel by voluntarily dismissing the case.

Late last month the film studio received bad news as District Court Judge Robert Wilkins ruled that Nu Image can only go after those individuals who are reasonably likely to be living in the District of Columbia. This means that the movie studio could not send any subpoenas to ISPs when the IP-addresses are located in other districts.

This effectively meant that 99% of the initial defendants walked free. A devastating blow to the plans of USCG and Nu Image, and as a result they’ve now decided to drop the case in its entirety, including the defendants who were sued in the right district.

“Plaintiff hereby gives notice that it voluntarily dismisses the case in its entirety, without prejudice,” the attorneys write in a brief notice to the court.

Although it is not the first time that a judge has ruled that defendants have to be sued in the right court, the current case adds extra weight because of the sheer number of defendants and the fact that it received widespread coverage in the media previously.

If other judges side with Wilkins, future mass-lawsuits against BitTorrent users will become more costly. Although it is unlikely that these cases will disappear entirely, it seems plausible to assume that lawyers will now think twice before they sue thousands of defendants in the wrong district.

USCG in particular has to change their tactics if they want to continue suing alleged copyright infringers, not least because their actions are being watched more closely after doubt was cast over the reliability of their evidence.

Source: The Expendables Makers Dismiss Massive BitTorrent Lawsuit

The class-action lawsuit targets the movie studio Achte/Neunte, their lawyers and the tracking company who went after thousands of people who allegedly downloaded and shared the movie ‘Far Cry’ on BitTorrent.

Through the lawsuit BitTorrent users, spearheaded by Dmitriy Shirokov, are seeking relief based on 25 counts including extortion, fraudulent omissions, mail fraud, wire fraud, computer fraud and abuse, racketeering, fraud upon the court, abuse of process, fraud on the Copyright Office, copyright misuse, unjust enrichment and consumer protection violations.

The case is ongoing in the U.S. District Court of Massachusetts and thus far not much progress has been booked by either of the parties involved. However, previously unreported filings reveal that the evidence the copyright holders claim to have against the alleged file-sharers may be even weaker than expected.

The court filing in question shows how USCG is basically a front for the partnership between the German based pirate tracking outfit GuardaLey and the law firm Dunlap, Grubb and Weaver.

Unlike the image often portrayed in the media, the plaintiffs claim that GuardaLey is the main motivating power behind the lawsuits. One email brought in as evidence clearly shows the company actively approaching law firms to work with them and plugging their scheme to various copyright holders.

It is clear that the evidence gatherers are by no means an objective party. On the contrary, it can be argued that this German based company is the prime reason why more than 200,000 people have been sued in the United States. And if it couldn’t get any worse, the evidence GuardaLey actually collects against the BitTorrent users may be totally useless.

The documents filed by the attorneys of the plaintiffs, law firm Booth Sweet, reveal that GuardaLey’s evidence gathering techniques are far from optimal.

The attorneys refer to a German court case where GuardaLey was sued by one of the law firms (Baumgarten Brandt) they partnered with. The law firm filed suit after it discovered that GuardaLey was aware of several technological flaws concerning their evidence, but chose not to disclose them. The law firm won the case.

Based on an independent review the German judge concluded that GuardaLey’s evidence gathering technology does not check whether the accused actually downloaded (or uploaded) content. A major flaw that was previously exposed by the University of Washington, where copyright holders accused a printer of pirating.

The findings are especially troubling because some major BitTorrent trackers insert random IP-addresses into BitTorrent swarms. These IP-addresses are not actually trying to download any files, but they may be accused of doing so based on GuardaLey’s evidence.

TorrentFreak contacted attorney Jason Sweet of Booth Sweet who believes that GuardaLey has continued to use the same technology in all of its U.S. based cases.

“That’s what the lawsuit in Germany was about. That Guardaley knew of the flaw, but continued using it to identify infringers. We haven’t seen anything that would indicate they’ve corrected the problem or are using different methods. I believe they’ve even made statements to the contrary – that they use the same tech for all of their cases,” attorney Jason Sweet told TorrentFreak.

This means that among the more than 100,000 BitTorrent users who were sued by USCG in the U.S., many are likely to be wrongfully accused.

“The real issue is that innocent people are getting swept up along with the infringers, and no effort is being made to sort them out. That’s because despite Achte’s protestations, this case was designed to do one thing only – generate revenue. And for them an innocent person’s money is just as good as a guilty person’s,” Sweet told us.

And there is more. Documents filed at the German court further suggest that GuardaLey might also operate pirate honeypots.

“GuardaLey operates a ‘honeypot’—that is they represent “by means of a falsified bit field, that it was always in possession of 50% of the file being sought.” If the actual file is being offered than an implied license is operative. If it is a garbage file, than no infringement occurs. In either instance, IP addresses are being identified that did not infringe,” the plaintiffs assert.

The above is a very worrying discovery that may become a pivotal issue in the ongoing lawsuits in the U.S. Could it be that the evidence used by GuardaLey in the cases against the thousands of BitTorrent users in America is just as weak?

Unfortunately, in these pay-up-or-else schemes the evidence never gets as far as a proper review because the copyright holders are only after settlements. However, the class-action lawsuit against USCG and partners could get to the bottom of this.

If the evidence turns out to be as weak as described above, it would probably mean the end of the “extortion-like” practices.

Source: Evidence Against BitTorrent Users Slammed In Court

In total, cases have been filed against more than 200,000 alleged infringers, many of which are accused of downloading and sharing adult films.

A significant number of the defendants are likely to be guilty, but there’s also a lot of collateral damage. Firstly it’s unclear how accurate the evidence gathering techniques of the copyright holders are, and even when they have the correct IP-address it doesn’t necessarily follow that the account holder on file is actually the infringer.

Doe 2,057 in the case of Imperial Enterprises v. Does claims to be one of these wrongfully accused persons.

This May he received a letter from Comcast informing him that Imperial Enterprises had filed a lawsuit against him for illegally downloading and sharing one of their adult titles — Tokyo Cougar Creampies. To some people this title may seem inviting, but it’s not the type of content Doe 2,057 is interested in.

Not least because he’s legally blind.

“To be honest, it’s a little ridiculous. My movie-watching ability is nonexistent. My kids watch movies, but they are 4 and 6, so they don’t watch porn either. Well, hopefully they don’t,” the Doe told the Village Voice Media.

Although it’s not impossible for blind people to be interested in porn – after all there are plenty of auditory stimuli and interesting dialogues – it’s not really the target group for this type of content. So if this blind man is innocent, who downloaded and shared the movie?

According to Doe 2,057 one of his neighbors must have used his open WiFi connection to grab the file.

“I didn’t have time to set up the wireless network in my old apartment,” he explained. “I was working 18-hour days, so I just told my wife to go to Best Buy and pick up a router. She installed it, hit next, next, finish, and — boom — that was it. We lived in a very upscale building; there was no riffraff. We just assumed we didn’t have anything to worry about.”

But now he does have something to worry about, and that’s the few thousand dollars Imperial Enterprises is demanding from him in settlement.

Although it’s absolutely not certain that a judge will hold him liable the alleged offense, like many other defendants he believes that settling is the best option available. Hiring an attorney will cost just as much as the settlement fee, but without any guarantee that he’ll be off the hook.

“The sad part about this entire porn thing is it will cost more to go to a judge,” Doe says. “At the end of the day, I’ll probably settle and pay the fee to make this go away.”

And he’s not alone. TorrentFreak has spoken to several people who swore their innocence but paid up just to get rid of the threat.

The copyright holders and lawyers are very aware of the position these defendants are in, but they gladly take their money. With most neutral observers, however, the whole scheme should raise an eyebrow to say the least.

Can we really call that justice?

Source: Anti-Piracy Lawyers Accuse Blind Man of Downloading Porn

The United States judicial system is currently being overloaded with new cases, and a few days ago the number of targeted Internet subscribers in federal courts broke the 200,000 barrier.

Through these mass lawsuits the copyright holders are trying to obtain the personal details of (mostly) BitTorrent users who allegedly shared their material online. Once this information is handed over, they then offer the defendant the opportunity to settle the case for a few hundred up to a couple of thousand dollars, thereby avoiding a full trial and potentially even bigger financial penalties.

A fairly exhaustive spreadsheet shows that the current number of Does that have been sued since the beginning of 2010 currently stands at 201,828. Nearly all of the defendants are accused of sharing copyrighted files via BitTorrent, and 1,237 allegedly used the eD2k network.

Over the course of the year several cases have been dismissed and settled and the estimated number of defendants who are still at risk lies at 145,417.

Most defendants are being sued in the high profile case brought by the makers of The Hurt Locker. As of May this year this lawsuit targeted 24,583 alleged BitTorrent users, and the first batch of settlement letters have been sent out to the people who pay for the allegedly-infringing Internet connections.

Despite the massive number of defendants, none of the cases have made it into a full jury trial as the copyright holders ask for in their original complaint. This also means that the evidence they claim to hold has not been properly tested.

It is believed that a significant amount of the people who are accused in these cases are not the actual infringer. However, since the copyright holders prefer settlements above full trials and because defendants don’t want to risk a $150,000 fine, the accuracy of the evidence remains a mystery.

What’s very clear is that for the copyright holders, tracking companies and lawyers, the settlement scheme is extremely profitable. If half of the original defendants eventually settle for an average fee of $2,500 they would generate a quarter billion dollars in revenue – from piracy.

Source: 200,000 BitTorrent Users Sued In The United States

However, during the past months more and more BitTorrent-related cases were filed at state courts. And as a complete surprise to us, the judges in question granted the copyright holders the right to subpoena the Internet providers of subscribers they accuse of copyright infringement.

Once the copyright holders obtain the personal details they use this to send out their infamous pay-up-or-else letters, asking the alleged file-sharers to send them a few thousands dollars. On the surface this seems to be identical to what the copyright holders are doing in the federal court cases, aside from the fact that it’s easier and less expensive.

But how can this be? Are these cases being handled properly, have judges forgotten that copyright cases don’t belong in a state court?

In order to find out more about this shortcut we contacted anti-piracy lawyer Marc Randazza whose law firm has filed federal lawsuits against hundreds of BitTorrent users. Randazza told us that the cases filed at state courts are not lawsuits against the alleged sharers, but merely a request to allow the copyright holders to demand that ISPs hand over customer information.

“What is going on here is a complaint for pure discovery — in other words, all the lawyer is asking the court for is for the court to give him the right to figure out who the defendants are. This seems to me to be a proper way to do things,” Randazza told TorrentFreak, admitting that he also has also filed a few cases in state court.

“In effect, it seems like a good thing for the defendants, the plaintiffs, and the courts. Look at it this way: If you do it the federal way, you need to file a case with the proper parties joined. So, separate cases for each hash file and possibly separate cases in separate states — depending on how the local court looks at jurisdiction.”

Although we’re not sure whether simplifying and cheapening the discovery process is a good thing, as it may lead to even more alleged sharers being targeted, Randazza argues that it will lead to cheaper settlement offers.

“If you do it this way, you can at least engage the potential defendants early on. If you do that, your costs are lower and thus your settlement figures can be lower.”

“In my torrent cases, my defendants have to pay pretty high figures to get out of the case — because we put a lot of money and effort into the case. If there were an easier way to get in contact with the torrenters, then they would likely all get off much lighter. Food for thought for potential defendants,” Randazza told us.

But are people really looking for lower settlement offers?

As pointed out earlier, the major problem with the settlement scheme is that people get wrongfully accused, and lower payoffs don’t change that. On the contrary, handling these cases the state court way will only increase the number of potential settlements without a proper review of the ‘evidence’.

In addition, hiring legal representation will make even less sense with lower settlements fees, as that will be more expensive than settling the case outright. It will leave most alleged illicit BitTorrent users with no other option than to settle, even if they are wrongfully accused.

Despite Randazza’s comments, we have the feeling that lawyers who take their cases to state court are not doing this with the interests of their targets in mind. But that shouldn’t surprise anyone of course.

Source: Anti-Piracy Lawyers Find Cheaper Way To Identify BitTorrent Users

As has been reported in the past, many of the people suspected of sharing copyrighted material are wrongfully accused. The problem for them, however, is that fighting the case is more expensive than paying a ~$3000 settlement fee. Justice aside, settling seems to be the best option for many innocents.

But not for a 70 year-old grandma from San Francisco. This retired widow has been accused of sharing porn (Amateur Allure: Kim) using BitTorrent, but says she doesn’t even know what BitTorrent is.

The Jane Doe in this case is being pursued by lawyer John Steele, whose law firm is currently involved in dozens of file-sharing related lawsuits, ostensibly to protect the rights of adult media companies. It is the same law firm that sued people for downloading mislabeled files.

Like many other defendants the 70 year-old doesn’t have the money to defend herself, but unlike others she’s not planning to settle the case either.

“It smacks of extortion,” she told SFGate in a comment, a conclusion that was reached by many others in the past.

Determined to put up a fight the grandma said she may have to go to court to defend herself. And she already has a plan of attack.

“I’d say to the judge, ‘I have no idea how this happened. If Sony can get hacked, if the Pentagon can get hacked, my goodness, what chance does an individual have?” she said.

As we’ve seen in the past, the lawyers don’t see Jane Doe’s age as an excuse, nor do they buy the claim that someone else may have used her unsecured wireless network to download files. Jane Doe has to pay up or convince the court she’s not guilty, they insist.

A full trial is also an option, as is usually noted in the settlement letters, but the lawyers are quick to add that it would put Jane Doe at risk of having to cough up $150,000 instead of a few thousand dollar to settle.

A settlement is the wise choice according to the law firm.

“We believe that providing you with an opportunity to avoid litigation by working out a settlement with us, versus the costs of attorneys’ fees and the uncertainty with jury verdicts, is very reasonable and in good faith,” the settlement letter reads.

A tough choice, and that’s the beauty of these pay-up-or-else schemes.

News of their potential profitability quickly spread and as a result copyright holders of more obscure and adult content have embraced them. Often described as copyright trolls, these companies can make more money from speculative lawsuits than actually selling the films they produced.

Source: 70 Year-Old Grandma Threatened Over BitTorrent Download

However, the recent surge in BitTorrent related lawsuits has nothing to do with what copyright was ever intended for. The extortion-like cases we’re witnessing are in large part an attempt to turn piracy into a business, big business.

In total an excess of 180,000 “does” have been sued in recent months, and the majority of these people are still being pursued. What makes this mass-litigation scheme even more dubious is that many of the alleged infringers are not necessarily guilty, but often see no other option than to pay off the lawyers to get rid of the problem.

While browsing through the court dockets and many online forums, one can see several examples of defendants who claim to be innocent or misled, but have paid a settlement fee of roughly $2,000 because they see no other option. Hiring a lawyer can be just as expensive, without a guarantee that it would end the legal trouble, they argue.

A good example of the above is Ms. Stephanie Lin who recently received a settlement letter from the anti-piracy lawyer Gill Sperlein. The lawyer accused her of downloading a file titled “Tsubaki House – SnapShot #05,” which actually turned out to be an adult movie.

This is similar to other cases where defendants are accused of downloading mislabeled files, including “Piano.avi,” “Texas.Discografia.completa.rar,” “Visual Studio 2010.iso,” “Avatar.avi,” “Paranormal Activity.avi” and the previously covered “The Best Of Ryuichi Sakamoto.rar.” All the above turned out to be adult films to which Mr. Sperlein’s clients own the copyright.

In the settlement letter the lawyer says that Ms. Lin can make the case go away by paying $1,875, further noting that this is a limited offer. If the settlement isn’t paid within a week it will be increased to $3,375, a tactic that has been declared wrongful in the U.K. recently.

Unsure of how to respond to the letter, Ms. Lin posted a question at Justanswer.com asking for help. A lawyer replied quickly with some insight, but Ms. Lin nevertheless decided to settle the case.

“Thank you for your help, I payed the settlement fee. the story is end, they win. I don’t have time to make choose. they can get what they want from me because they know what will happen next but I don’t. I will always remember this. thank you again, my friend. sorry for my English [sic],” she wrote.

Ms. Lin is not the only one who has come to this conclusion. The option to settle is favored by many people, even those who haven’t downloaded the file they’re accused of. When adult titles are involved people particularly prefer to pay rather than face being named in a public lawsuit, especially if hiring a lawyer is more expensive than the settlement itself.

However, for some the problems are even worse, far worse.

Currently the U.S. District Court for the Northern District of California is looking into the case of Ms. Mayra Gonzalez, one of the many alleged file-sharers who are accused of downloading another mislabeled file. Unlike Ms. Lin, Ms. Gonzalez didn’t have $1,875 laying around.

In a desperate attempt to resolve the issue, she wrote a plea for mercy to both the lawyer and the judge handling the case. In the letter she explained that she attempted to download an album of Ryuichi Sakamoto, and that she had never intended to download the gay porn she’s accused of.

But lawyer Sperlein was not impressed, quite the contrary in fact.

Last week Sperlein let the court know that he intended to file a motion for summary judgment, because in his opinion Ms. Gonzalez had admitted her crime. This means that instead of a $1,875 settlement, she’s now facing a $150,000 damages claim. Needless to say, this turn of events only make matters worse for her.

Like many others in her position, Ms. Gonzalez told TorrentFreak that she is clueless about the legal process and what she should do next. She is unemployed and can’t afford paid legal representation. TorrentFreak brought her in contact with a few potential lawyers, but all either couldn’t represent here or would prove too expensive.

Desperate and uncertain, settling the case is suddenly one of the “best” options she has left, even though she never intentionally downloaded the file she’s accused of. This would be the same conclusion many other defendants reached before her, and one that does not necessarily represent justice.

Again and again it appears that file-sharers are an easy target for anti-piracy lawyers and the copyright holders they represent. It’s a sad conclusion, but unless the judges see through this dubious scheme many more innocent and misled victims will be ‘forced’ to hand over their cash in the coming months.

Source: File-Sharers An Easy Prey To Anti-Piracy Lawyers

One of these cases centers around the UK-based company GLBT, which operates various adult streaming websites. The company is involved in a lawsuit against several adult entertainment studios, who are demanding that GLBT identifies the personal details of all its members.

GLBT are refusing to do so because of the privacy issues involved. They consulted with a UK lawyer who explained to the court that the Data Protection Act prohibits the company from giving up any personal information absent of a European court order.

The company further pointed out to the judge that the copyright holders may intend to use the personal info of their users to start lawsuits against them. By doing so, the defendants referred to a recent TorrentFreak article where we showed how an adult company sues people for downloading ‘mislabeled’ files.

One of the lawyers we contacted for the article was Gill Sperlein, who is also one of the attorneys on record in the above case. As is proper, we contacted Gill Sperlein before publishing the original story, and included his comments for the necessary balance.

During our email conversation Sperlein was kind and responsive, and even after publishing we heard no negative comments. However, in his comment to the court the lawyer and one of his colleagues are suddenly claiming that we fabricated the entire story, and that the court should ignore everything we write.

Below is the quote from the anti-piracy lawyers in question, emphasis added:

“Defense Counsel in a manner unbefitting a member of the bar, attacks Plaintiff’s Counsel by referencing an article appearing on torrent freak – a blog dedicated to online piracy. The article sets forth a myriad of lies and unsubstantiated accusations that Mr. Capp presumably is unwilling to make himself. Nonetheless, Mr. Capp introduces the highly prejudicial and completely non-probative statements in an attempt to discredit Plaintiff’s counsel.”

But wait a second… Who’s discrediting who here?

Those who read the original article will notice that we’ve been very careful with our wording and that we’re certainly not publishing lies. If anyone is making unsubstantiated accusations then it’s Gill Sperlein himself. He could have at least given one example of the myriad of lies. Or perhaps there aren’t any?

We may not always agree with the practices of these anti-piracy lawyers, but we’re not stupid. The last thing we want is being dragged into a defamation lawsuit so we pick our words carefully. Perhaps Mr. Sperlein should consider doing the same.

Let’s hope the judge in question sees through these unsubstantiated accusations. If GLBT is indeed ordered to hand over all user details we could be in for one of the worst privacy disasters in recent history, and yet another avalanche of lawsuits.

Source: Anti-Piracy Lawyers Defame TorrentFreak in Court

The settlement proposals are the core of every single case, and none of the copyright holders intends to proceed with the full jury trial they asked for in court. Today we take a closer look at such a settlement letter to see what tens of thousands of alleged copyright infringers are being offered.

The settlement letter in question comes from the notorious anti-piracy lawyer John Steele. The divorce attorney turned “pirate slayer” is going after thousands of pirates and ostensibly protecting the rights of adult entertainment companies. And he’s a committed man.

In an interview with the Chicago Tribune, Steele claimed that he and a partner spent as much as $250,000 to develop their own BitTorrent tracking tool, a figure that seems unrealistic to say the least. But in return he got the best of the best. Apparently, Steele’s software is error-free.

Steele claims that the thousands of IP-addressed he has gathered thus far contain no “false positives.” An interesting conclusion, especially since it’s impossible to verify. Not only for us, but also for Steele himself.

Unfortunately for Steele and his client, not everyone agrees that his practices are that solid. Last month District Court Judge Harold Baker denied them the right to subpoena the ISPs of alleged copyright infringers, arguing that an IP-address does not equal a person.

However, other judges were less thoughtful and allowed Steele to unfold his masterplan. In those cases where he was allowed to subpoena ISPs, the alleged file-sharers were soon sent a settlement offer, asking them to pay up or face a fine up to $150,000 through a jury trial.

Below we have an example of such a settlement letter, which comes from the case First Time Videos LLC against Does 1-500. The defendant in question is accused of sharing the video “Madeline 3000kbps” for which the copyrights are interestingly enough not registered at the U.S. Copyright Office.

Copyrighted or not, Steele claims the defendant infringed on the rights of his client, and demands $2,900 in compensation.

“While it is too late to undo the illegal file sharing associated with your IP address, we have prepared an offer to enable our client to recover damages for the harm caused by the illegal downloading and to allow both parties to avoid the expense of a lawsuit,” Steele writes in the settlement letter.

What follows is a carefully constructed mix of threats and psychological pressure to convince the defendant that a settlement is the best way out.

“In it [sic] least one case where the Copyright Law has been applied to digital piracy ans statutory damages were applicable, juries have awarded over $20,000 per pirated file. During the RIAA’s well-publicized campaign against music piracy, over 30,000 people nationwide settled their cases ranging from an average $3,000 to $12,000,” the lawyer writes.

“More recently, on December 22, 2010, a case in which a defendant was accused of illegally downloading 6 works via BitTorrent, a settlement was reached for $250,000,” Steele adds.

TorrentFreak covered this particular case and it was not a $250,000 settlement at all, something that Steele should be very well aware of. As we originally reported and predicted, this case is the perfect propaganda tool for scaring people into settling.

Nevertheless, to avoid becoming completely bankrupt, Steele and his client are kind enough to offer a ‘reasonable settlement.’

“In light with these factors, we believe that providing you with an opportunity to avoid litigation by working out a settlement with us, versus the costs of attorneys’ fees and the uncertainty with jury verdicts, is very reasonable and in good faith.”

Attached to the settlement proposal is a frequently asked questions section which again stresses that settling the case is the wise choice.

Q: How do I make this go away?

A: Paying the settlement fee will release you from all liability and close the case.

Aside from the straightforward answer below there is also plenty of confusion, especially when it comes to hiring an attorney. While the letter states that consulting with an attorney is advisable, it also stresses that this may be more expensive that the settlement itself.

“The decision to hire an attorney is completely up to you. We cannot give you legal advise, but speaking with an attorney is generally highly advisable. In some cases the settlement offered by us is significantly lower than the costs associated with hiring an attorney,” the letter reads.

Tough choice.

We can only wonder what the judges who handle the dozens of mass-lawsuits think of these practices. They never get to see this part of the case, and many may very well believe that the copyright holders are actually planning to pursue a full trial.

The reality is, however, that no court has ever looked thoroughly at what evidence there actually is, which is a waste of the supposed $250,000 Steele invested in his tracking software. But with the dollars rolling in, we have no doubt that Steele will be comfortable with that.

Source: The Anatomy of a BitTorrent Piracy Settlement

Unlike other lawsuits, the aim of the copyright holders is not to take any of the defendants to court, but to get alleged infringers to pay a substantial cash settlement to make legal action go away.

Recognizing the potential profitability of such schemes – which some equal to extortion – copyright holders of more obscure content quickly embraced them. Often described as copyright trolls, these companies can make more money from speculative lawsuits than actually selling the films they produced.

But while objectionable in their current form, it appears that these enterprises have the potential to stoop to even greater lows. A new scheme we uncover today allows anyone to setup a honeypot and make hundreds of thousands of dollars from naive file-sharers.

A lawsuit that appeared on TorrentFreak’s radar recently shows that in some cases copyright holders are suing people who were not aware that they have even accessed the content they are accused of sharing. The copyright holder in question makes no secret of this practice, which has already claimed several victims across the U.S.

Before we lay out the details we have to say that there’s no indisputable proof of a honeypot in this particular case. But as will become clear, the foundations for such a scheme are definitely there.

The case in question is “IO Group, Inc., v. Does 1-50 Inclusive,” which is a suit from the Californian adult entertainment company Titan Media against 50 unnamed individuals (complaint). The defendants in this case are accused of civil conspiracy and infringing the copyrights of various adult films on the eDonkey (eD2K) P2P network.

By itself the above is nothing special, but there’s one detail that’s somewhat fishy to say the least. In the court papers there’s a letter from a Ms. Gonzales that reveals some very interesting details. In her plea for mercy, Ms. Gonzales explains to the court that she never intended to download gay porn, and that the file she downloaded was labeled as a greatest hits album from the Japanese composer Ryuichi Sakamoto.

What’s even more interesting is that Titan Media’s lawyer was fully aware of the fact that Ms. Gonzales downloaded a mislabeled file. In fact, the settlement letter she received gave her the option to settle the case for $1,875, and clearly stated that the title of the infringed work was “Album – Ryuichi Sakamoto – The Best Of Ryuichi Sakamoto.rar.” If Ms. Gonzales did not pay within a few weeks, the settlement offer would increase to $3,375, it further noted.

To our best knowledge, this is the first time that a copyright holder has gone after people who’ve downloaded mislabeled copies of their work. However, it turns out that this is not an isolated incident. TorrentFreak found another example where Titan Media sued someone for sharing a supposed Dire Straits concert that actually turned out to be an adult movie. Again, they were fully aware of the mislabeled file, and even explained the process to the court in their complaint (page 7).

The big question is of course, how did the plaintiffs know that the mislabeled files were actually disguised versions of their works? The logical explanation would be that they found the original copyrighted work, and discovered the relabeled files when they did a search for the hash. However, TorrentFreak found that in the case of the supposed Ryuichi Sakamoto file, all alternative copies of the allegedly infringed movie we could find had a different hash..

The above suggests that the copyright holders in question may have intentionally renamed the files as bait for naive pirates. A classic honeypot. However, Titan Media’s lawyer Gill Sperlein told TorrentFreak that this is absolutely not the case.

“This is not a scheme to make money. My clients are hurt immensely by copyright infringement and they are not going to make it worse by actually distributing their works on these networks,” he told us.

Sperlein further told TorrentFreak that they assume that people who downloaded a mislabeled file were actually aware of the real contents. And if this is not the case, it’s their responsibility to convince the court otherwise.

“If someone made my clients’ works available but did so unintentionally it is up to them to set forth facts that prove that claim. This would not affect liability but may affect damages,” Sperlein told TorrentFreak.

“However, I don’t think that someone searching for stolen content but simply got the wrong stolen content is going to prove they are an innocent infringer – no matter how loudly they protest that they are Christian,” Sperlein added, referring to Ms. Gonzales’ plea for mercy.

So there we have it. All the ingredients of a classic honeypot. However, without solid evidence it’s impossible for us to prove, as it will be for the court. For now, this is the sad conclusion that may lead to even greater abuse of the U.S. courts. After all, the above shows how easy it is to make tens of thousands of dollars, even with movies or indeed any material that no living soul is interested in.

All one has to do is shoot a 5 minute video with a mobile phone, copyright it, then sit back and wait for someone to magically appear and rename your video to match the title of the latest Hollywood blockbuster or a musical artist. He or she will then upload it to a file-sharing network, resulting in thousands of downloads, and for each of these you can demand several thousands of dollars in damages. It’s really that simple.

The court will never know that you’re suing for relabeled files, that will remain between you and the thousands of infringers. It’s the perfect pirate honeypot scheme that only requires a judge to sign off on the subpoenas.

Let’s hope that judges in future cases, especially those dealing with eDonkey downloads, will be aware of this suspicious and trollish process. Aside from the Titan Media cases, there are several others that show signs of a honeypot, and more will follow. It seems to us that no sane judge can agree that these low tactics are what copyright litigation was originally intended for.

Source: U.S. P2P Lawsuit Shows Signs of a ‘Pirate Honeypot’

One of the more profitable schemes are the copyright infringement notices that include the option to settle the issue for a few hundred dollars or pounds. After the RIAA scored two major victories against individual file-sharers last year, many people are now eager to settle immediately.

Dorin Lucian Dehelean, security analyst at the University of Georgia responsible for forwarding copyright infringement notices to students and staff, saw an opportunity to make a few bucks off these infringement notices himself.

Instead of forwarding an RIAA notice to the person associated with an IP-address, Dehelean decided to contact a female student accused of sharing copyrighted material with an interesting proposition.

According to UGA campus police chief Jimmy Williamson, Dehelean “offered to make the situation go away in exchange for money.” He promised not to inform Judicial Programs, so the student in question would be free from any kind of disciplinary measures the University usually takes in similar cases.

The student in question didn’t have any money and alerted a University employee who called in the police. The police decided to look into the case and sent over an undercover officer who went over to Dehelean, impersonating the student.

After Dehelean accepted the payment he was fired immediately and taken into custody for extortion practices. According to the campus police, Dehelean may have tried the same trick with other students, and they believe that at least one other student paid up.

“We are running down some leads that may lead us to other victims,” Williamson said. “We have information that makes us believe [Dehelean] might have had another transaction.”

If they’re done with their investigation, it might be a good idea to look into the practices of some copyright holders, to discover if these fall into the extortion category as well.

Source: UGA Security Analyst Fired For Extorting File-Sharer

The GetAmnesty program is a combination of both enforcement activities and efforts to turn infringers into paying “customers”. It tracks down copyright infringers by using a wide variety of methods. But, instead of sending out the regular infringement notices, they now include links for people to get amnesty. Basically they are asking to pay them an X amount of money, and they promise drop everything and go away.

Here’s what you read on the website, and allegedly in the infringement notices:

If you receive a notice that means that we have evidence of you infringing a copyright holder that we represent. Please stop and consider what such a paper trail could do to one’s future. We understand that this notice may come as a bit of a surprise to you, but we sincerely believe that signing our agreement is in your best interest.

I’m not sure how we’re supposed to call this.. extortion? Intimidation? They are clearly trying to scare people into giving their money to the copyright holders without clear evidence.

They might have an IP address, but this doesn’t mean anything. The MPAA, or any other anti-piracy organization can’t sue someone simply because he or she pays the bills for the internet connection. Several cases (example 1/2) were dropped already because of this argument. An IP address is not a person.

Andrew Norton, a spokesperson of the US Pirate Party, said in a response to TorrentFreak: “These efforts to continually alienate their consumers will not do major rights holding groups any favors. Programs such as this are thinly veiled extortion efforts, and represent further efforts by media cartels to shore up their crumbling business models by intimidation, and violation of users rights.”

Norton continues: “It is impossible for any program to determine if something is infringing copyright, or if it comes under fair use. With the recent probes into the john-doe lawsuits and their usage, it is clear that this is a pathetic new method to try and shore up the outdated perceptions of the rights holders, rather than trying to adapt and change to suit the times. It is no longer the 1940s, and unlike FM, media conglomerates cannot wish or bury the internet, and modern technology.”

The MPAA and other content owners will use these methods because it’s an easy way for them to make money, and they save quite a bit on legal costs too. In fact, the RIAA already uses a website called P2Plawsuits where people can settle their cases online. I seriously question the legality of these extortion tactics.

GetAmnesty.com was launched a few days ago. If people receive infringement letters with links to this site, please contact us. In the meanwhile you might want to take a look at what SiteAdvisor says about GetAmnesty… Phishing or other scams … and that’s exactly what it is.

Update: The MPAA oficially denies having anything to do with GetAmnesty.

Source: GetAmnesty.com: MPAA Extortion at its Finest