All of these cases are initiated with an IP address as the main piece of evidence. This address is usually collected by a file-sharing monitoring company using software to connect to the BitTorrent swarm where the infringing files are shared.

A common problem with this evidence is that it generally can’t identify a movie pirate. In fact, some evidence gathering techniques are so sloppy that it’s not even possible to confirm whether the ISP account connected to the IP-address was actively sharing the pirated file in question.

This issue has also been brought to the attention of the court in the ongoing case between the “Elf-Man” movie studio and Ryan Lamberson. The counsel of Lamberson has been trying to get more information on how the “investigators” gathered their evidence, but thus far without result.

This week the attorney submitted a motion to compel, hoping that the court would order the movie studio to have the German-based Michael Patzer and Daniel Macek testify in Spokane, Washington, so they can answer crucial questions about evidence collection.

Among other things, the defendant would like to know how the tracking outfit can be so sure that the IP-address wasn’t spoofed, and how they know that the defendant was the one who used the IP-address to share the film. The defendant’s attorneys doubt that the tracking software is capable of doing this.

“Apparently, Mr. Patzer’s software does not account for the numerous ‘false positive’ possibilities, including the accuracy of the harvested IP addresses, even though the person in the swarm may be ‘spoofing’ his or her IP address, since certain bit torrent software allows for IP address spoofing,” defendant’s attorneys write.

“Apparently, the software has no way to verify the actual person who might be in the swarm, even if the IP address is accurate. The software does not engage the person in the swarm to inquire as to the reason for the activity, including fair use reasons for being in the swarm. Indeed, there are no corroborating witnesses at all…”

In addition, the defendant’s legal team doubts that the “investigators,” who are closely involved with numerous lawsuits in the United States, have a proper license.

“The investigators are engaged in activity which is covered by the Washington State Private Investigator statutory provisions, but there is no evidence that Messrs. Patzer or Macek are licensed or bonded [under theState’s regulatory scheme governing private investigators],” they write.

The Washington State legislature defines a “private investigator agency” as an entity “engaged in the business of detecting, discovering, or revealing” “evidence to be used before a court,” which appears to be exactly what they are doing.

It wouldn’t be the first time that the PI angle has caused trouble for a file-sharing monitoring firm. Several years ago the RIAA’s technology partner MediaSentry was found to have acted illegally in several states because it operated without the appropriate and required paperwork.

It will be interesting to see how this angle is played out in the current case. Generally speaking these tracking outfits, which are often the main drivers of these types of lawsuits, are not too eager to talk.

Whether they have something to hide remains to be seen. A recent presentation from the “Anti-Piracy Management Company,” which is believed to be spinoff of the same tracking outfit Michael Patzer and Daniel Macek are connected to, is telling.

“Paragraph 2 in regards to software consultant (i.e., he can talk about software issues), & we’re hoping the judge won’t question his qualifications too much,” the leaked presentation reads, seemingly referring to Macek.

To be continued.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

It’s a system that first started in Europe with

The aim for copyright holders is to avoid litigation while generating revenue. Their evidence is often questionable and as a result those that fight back often have their cases dropped – trolls tend to prefer the escape option over the consequences of an adverse verdict.

After moving to the U.S., settlement programs gained prominence through the actions of entities including Prenda and X-Art. These schemes have come under increasing fire in U.S. courts, so it’s perhaps unsurprising that a new country is now on the agenda.

Citizens of Finland are now being subjecting to pay-up-or-else letters, but the decision to target this Nordic country isn’t the most obvious one, thanks to less favorable laws than those in the US.

Letters that have recently gone out to some Finnish Internet subscribers (translated example below, from a DNA customer)  accuse them of downloading porn using BitTorrent and include an offer to settle for ‘only 600 euros’ (about US$825). A vague reference to the police is also included,  ratcheting up the pressure to comply.

According to Ville Oksanen, vice chair of the EFFi and Post-doc researcher at Aalto University, under Finnish law the account holder is presumed to be the infringer by the courts, unless the or she can show that someone may have used the account.

In addition, the loser of a case pays the costs, unlike in the U.S. where each side pays its own costs with a few exceptions (such as a baseless case). More and more courts around the world are starting to look closely into these kinds of cases, and in some instances throwing them out. That’s not so good if you’re liable for the substantial cost of defense.

TorrentFreak has been able to confirm that the letters relate to content from the Hustler stable, who committed to “turning piracy into profit”, presumably through these troll tactics, as far back as 2009.

Why this scheme is starting in Finland now is unknown, although the crowdsourced copyright law may make it less profitable in the future. According to Oksanen, the law as written would remove some sections of copyright law, making account-holder identification much harder.

The lawfirm behind this letter, Hedman Partners, did not respond to requests at the time of publication.

With thanks to rehanna, vhautaka and mikachu

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

While many cases have been dismissed in the past, the one we’re reporting on today is quite special.

It started back in March when a lawsuit filed by the Swiss company Contra Piracy targeted individuals said to have downloaded and shared the 50 Cent movie All Things Fall Apart.

Contra Piracy, a claimed non-profit group, said they had monitored 2,919 individuals infringing the movie on more than 280,000 occasions. In order to stop these infringements they said they would need the identities of file-sharers from ISPs.

The Swiss firm didn’t hide the fact that they were nothing to do with the making of the film and they also admitted not being involved with traditional movie distribution channels. Instead, they licensed “BitTorrent distribution” and “enforcement” rights from Los Angeles-based Hannibal Pictures.

Confronted with the case, Chief Magistrate Judge Elizabeth Laporte wondered whether Contra Piracy actually had the rights to pursue this case in court. In one of her orders she noted that a “bare right to sue” for copyright infringement isn’t enough to allow the case to proceed.

Responding to this comment Contract Piracy handed over the rights agreements it had with Hannibal Pictures. The company argued that since they licensed the “BitTorrent distribution” rights, they should be allowed to sue.

However, Judge Laporte disagreed and in an order last week she dismissed the case with prejudice, concluding that Contra Piracy lacks jurisdiction. According to the Judge, Contra Piracy’s only intention is to obtain quick settlements, which means they lack the legal rights to pursue a copyright-related action.

In her order Laporte mentions that when Contra Piracy was asked what options they had to commercially exploit the BitTorrent distribution rights, the company admitted that they had very few, and that they were not actively involved in any.

“Plaintiff’s employee acknowledged that there are little [to no options] and did not claim that Plaintiff engaged in any such commercial use,” she notes.

In addition, the Judge said that the agreement between Contra Piracy and Hannibal Pictures only talks about divvying up the revenue from out-of-court settlements. No legal venues were discussed, and Contra Piracy further admitted that copyright enforcement was central to its business model.

“Plaintiff acknowledges that it is in the business of providing counter-piracy services to copyright owners by accepting assignments of copyrights and suing to enforce these copyrights,” Judge Laporte writes in her order.

Finally, the agreement also makes it clear that Contra Piracy does not intend to take any cases to trial, but that they just want to obtain the personal details of the alleged BitTorrent pirates so they can demand quick cash settlements.

“The agreements are noticeably devoid of any provision for the disposition of any revenues that could be obtained from verdicts or court orders of fees or costs upon success in court, suggesting a business model of using the information obtained from early discovery into the identities of individual defendants to negotiate quick settlements under the threat of embarrassing and expensive litigation without actually litigating claims on their merits,” the Judge explains.

The above leads to the conclusion that Contra Piracy only has a “bare right to sue,” which is not enough to pursue people for alleged copyright infringement. “The case is dismissed with prejudice,” Laporte concludes.

And so All Things Fall Apart for Contra Piracy.

To our knowledge this is the first file-sharing related case that has come to a Righthaven-type conclusion, showing that it’s worthwhile delving deeper into the licence agreements that are at the basis of these mass-BitTorrent lawsuits.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Over the past weeks Elf-Man LLC, the company that produced the movie with the same name, has sued over 200 alleged BitTorrent users in Colorado and Oregon.

The lawsuits are typical troll affairs in which the copyright holder asks the court to reveal the identities behind IP-addresses previously monitored sharing. These account holders then receive a letter asking them to settle the case for a few thousand dollars each, or else.

Not everyone is charmed by this practice and “Elf-Man” himself is one of them. Jason ‘Wee Man’ Acuna, the star of the film, has spoken out against the troll action on Twitter.

“My representation has spoken to them.. I’m not backing it at all.. Has NOTHING to do w/ me!! It’s all them..,” Acuna writes.

Despite Acuna’s lack of involvement he is prominently featured in the legal paperwork.

“Plaintiff Elf-Man produced a novel family oriented comedy motion picture staring Jason Acuña as an Elf left by Santa to help a family come together and learn about Christmas,” the complaints start.

The copyright holder then goes on to claim that many people justify piracy because they believe movie producers and the big stars are already wealthy, forgetting the lower wage employees.

The Elf-Man lawsuits are not an isolated incident. In recent weeks several independent movie studios have joined the parade of adult movie outfits and jumped on the BitTorrent lawsuit bandwagon.

The “new” film titles for which BitTorrent users are targeted include Zambezia, The Ledge, Division III: Football’s Finest, Maximum Conviction, Night of the Templar After the Wizard, 6 Degrees of Hell, The Divide, and Evidence.

The lawyers and the production companies of these film are looking forward to hundreds of thousands of dollars in settlements. Whether the actors or any of the other low-wage employees will see any of it remains to be seen.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The problems are many. The cash claims from copyright holders against those they claim have unlawfully shared their content online are not only aggressive, excessive and cynical, but worse still they often target the innocent.

Copyright trolls, many of them from the adult industry, know they are targeting the subscribers of Internet connections when they seek to discover who is behind an IP address. They also know that there is a significant chance that the bill payer isn’t the actual infringer.

Sadly, they really don’t care, so with this in mind it’s always nice when a court does.

In the case of Third Degree Films v Does 1-110, the adult studio went to the District Court in New Jersey seeking discovery of the identities of 110 alleged BitTorrent pirates. As usual the company wanted the judge to order the Does’ ISPs to hand over their personal details including names, addresses, telephone numbers, e-mail and MAC addresses. What would follow is the usual pay-up-or-else threats.

The first problem highlighted by the judge was on the issue of joinder. Citing an “almost identical” earlier case presided over by Judge Faith S. Hochberg, Judge Mark Falk said he agreed entirely with the decision to disallow joining all alleged infringers in one lawsuit. On this basis he kicked out 109 of the 110 Does in the Third Degree complaint.

So, with just one potential defendant left, could the adult studio pull back a late win against this lone individual? In one word, no. Judge Falk, like a growing number of judges in other jurisdictions, recognized that an IP address does not identify an individual.

“Indeed, the infringer might be someone other than the subscriber; for instance, someone in the subscriber’s household, a visitor to the subscriber’s home or even someone in the vicinity that gains access to the network,” he wrote in his ruling.

Worse still, Judge Falk wrote, the weak nature of this kind of evidence has the potential to lead to the identification of a person who is entirely innocent.

“Plaintiff’s sought after discovery has the potential to ensnare numerous innocent internet users into the litigation placing a burden on them that outweighs Plaintiff’s need for discovery as framed,” the Judge wrote.

“Granting Plaintiff’s motion has the potential to permit Plaintiff to obtain detailed personal information of innocent individuals. This could subject an innocent individual to an unjustified burden.”

Recognizing that copyright trolls do face challenges when trying to identify actual infringers, Judge Falk threw Third Degree a lifeline in their attempts to properly identify the single remaining Doe.

“The Court will permit Plaintiff to submit a new motion for expedited discovery as to John Doe 1 setting forth a detailed plan that addresses the Court’s concern regarding potentially innocent individuals, as expressed in this Order,” he wrote.

In other words, if the movie studio could convince the court they were asking for the identity of the actual infringer and not just the person who pays the Internet bill, they might be successful in getting permission to extract their details from their ISP.

But it seems that was beyond Third Degree films’ abilities. The very next day they withdrew the entire case. Trolls 0, Common Sense 1.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Nearly all of these cases end up dismissed or settled, but one involving Kywan Fisher from Hampton, Virginia, has turned into a financial disaster.

In 2011 Fisher and several other defendants were sued by adult entertainment company Flava Works. The case in question differs from the so-called “John Doe” lawsuits as the copyright holder had detailed information on the defendants who had paid accounts on the company’s movie portal.

For Fisher the trouble started when instead of just viewing the films for personal entertainment, he allegedly went on to share copies on BitTorrent. These illicit copies were traced directly back to his account through a code embedded in the videos.

“Plaintiff has proprietary software that assigns a unique encrypted code to each member of Plaintiff’s paid websites. In this case, every time the Defendant downloaded a copy of a copyrighted video from Plaintiff’s website, it inserts an encrypted code that is only assigned to Defendant. In this case, the encrypted code for Defendant is: ‘xvyynuxl’,” Flava informed the court.

Copying films was expressly forbidden in the user agreement Fisher signed with the video portal, allowing Flava to claim willful copyright infringement for 10 titles.

According to Flava the copies uploaded to BitTorrent by Fisher went on to be downloaded thousands of times.

“Defendant’s conduct was willful to the extent that he copied or distributed Flava Works, Inc.’ intellectual property at least 10 times and caused the videos to be infringed or downloaded at least 3,449 times.”

Because Fisher failed to defend himself Judge John Lee had little choice but to find Fisher guilty.

This week the Judge handed down the largest ever damages award in a BitTorrent case, 10 times the maximum statutory damages for willful infringement, totaling $1,500,000.

“Given the materials submitted by Plaintiff in support of its motion and in light of the absence of any objection by Defendant, Plaintiff’s motion for entry of default against defendant 11 is granted. Judgment is entered in favor of the Plaintiff Flava Works, Inc., and against the Defendant Kywan Fisher in the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00),” the judgment reads.

The verdict will be welcomed by Flava and the many other copyright holders involved in BitTorrent lawsuits in the United States. DieTrollDie, a close follower and critic of these cases, points out that it will be widely cited in settlement letters to other defendants, but that the case itself is notably different.

“This was not the normal Copyright Troll case – there was some actual evidence beyond a public IP address. Not a smoking gun by far, but certainly enough to show a preponderance of evidence,” DTD writes.

Fisher has a few options to respond according to attorney Blair Chintella.

“The most common way is the “collaterally” attack the judgment by arguing that there was some jurisdictional defect in the lawsuit. For example, that service of process was improper or that the Court lacked personal jurisdiction,” Chintella told TorrentFreak.

While the guilty verdict is no surprise considering the failure of Fisher to appear before court, the $150,000 in damages per movie, which translates to $435 per alleged download, definitely raises eyebrows.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

However, events took a turn for the strange.

Soon both EFF and Public Citizen, who had been appointed by a judge to act in the Does’ interests, learned that at least one ISP had already been handing their subscribers’ identities over to Stone. It transpired that Stone had been issuing subpoenas to ISPs without the court’s permission.

“To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said ‘not yet.’ Stone sent the subpoenas anyway,” Judge Godbey wrote.

“The Court appointed the Ad Litems [EFF and Public Citizen] to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision.”

All along Stone had been receiving information from ISPs and had even contacted some of the 670 Does with letters seeking cash settlement for their alleged infringements.

“Because Stone obtained information that he had no right to receive, the subpoenas falsity transformed the access of the Does’ information from a bona fide state-sanctioned inspection into private snooping. The Court rarely has encountered a more textbook example of conduct deserving of sanctions,” he added.

But true to form Stone would not be giving in, informing Ars Technica: “After three rewrites, I finally decided I’m just going to have to let Justin Bieber do my quoting for me: ‘Whenever you knock me down I will not stay on the ground.’”

Inevitably Stone appealed, and yesterday the Fifth Circuit Court of Appeals handed down its ruling. For everyone involved, Stone excepted, it was worth the wait.

On appeal Stone presented a number of arguments but the court noted that “none of these arguments, thus, was preserved for purposes of appeal, nor does Stone contend they were. Accordingly, all the issues Stone raises on appeal have been waived.”

And in a clear indication that the courts are becoming wise to the tactics of Stone and others like him, came the following statement.

“Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars, a tactic that he has employed all across the state and that has been replicated by others across the country,” the Judges wrote in their ruling.

“The stay of sanctions is therefore VACATED, and any sanctions imposed
by the district court are AFFIRMED.”

Stone was hit with a $10,000 fine and ordered to pay the costs of the EFF and Public Citizen. Other sanctions compel him to inform all clients and judges he currently has cases with about this ruling against him. Reputation-wise, this kind of hit will be hard to recover from.

Finally, since Stone struggled with his quotes before, feel free to help him out by adding any appropriate Justin Bieber lyrics in the comments below.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.