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Old 17-05-12, 23:36   #1
 
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Pirate IP-Address Can’t Even Identify a State -Judge Rules

IP-Address Can’t Even Identify a State, BitTorrent Judge Rules

Posted: 16 May 2012 02:14 PM PDT

In recent years more than a quarter million people have been accused of sharing copyrighted works in the United States.

Copyright holders generally sue dozens, hundreds or sometimes even thousands of people at once, hoping to extract cash settlements from the alleged downloaders. The evidence they present to the court is usually an IP-address and a timestamp marking when the alleged infringement took place.

Early 2010, when these mass-lawsuits began, copyright holders targeted IP-addresses from all across the US in single lawsuits. This led some judges to dismiss cases because their courts have no jurisdiction over people who live elsewhere.

As a result, copyright holders switched to a new tactic. Before filing a suit they ran their database of infringing IP-addresses through so-called “geolocation” services so they could argue that the defendants most likely reside in the district where they were being sued.

This worked well for a while, but a new ruling by California District Court Judge Dean Pregerson puts an end to this new approach, killing 15 lawsuits in the process.

According to Pregerson, alleged BitTorrent pirates are protected by the First Amendment as they are “engaging in the exercise of speech, albeit to a limited extent.” Therefore, the copyright holder’s request to identify anonymous internet users has to meet certain criteria.

One of the requirements is that it’s absolutely clear that the accused are residents of the region where the court has jurisdiction, but according to Judge Pregerson it is not sufficient to use the results from a “geolocation” tool to prove it.

In a previous order the copyright holder – movie company Celestial Inc. – was asked to convince the court of the accuracy of these tools. In a reply Celestial referred to a website which contained some general claims as well as a quote from the company that collected the evidence, but it wasn’t enough.

“Based on Plaintiff’s own reliability claims, there may still be a 20 to 50 percent chance that this court lacks jurisdiction,” Judge Pregerson writes in his order.

The Judge adds that even if there is a slight chance that these tools are wrong, he simply can’t sign off on the subpoena request.

“Even if the most advanced geolocation tools were simply too unreliable to adequately establish jurisdiction, the court could not set aside constitutional concerns in favor of Plaintiff’s desire to subpoena the Doe Defendants’ identifying information.”

“Again, it is the First Amendment that requires courts to ensure complaints like this one would at least survive a motion to dismiss, before the court authorizes early discovery to identify anonymous internet users.”

The IP-address lookups and additional information provided by Celestial Inc. can’t guarantee that the defendants do indeed reside in California, and Judge Pregerson therefore dismissed the 15 mass-BitTorrent lawsuits the company filed at his court.

It also means the end of mass-BitTorrent lawsuits in the Californian court, as no geolocation tool is 100% accurate.

While the ruling doesn’t mean the end of all mass-BitTorrent lawsuits in the US just yet, it appears that there’s a growing opposition from judges against these practices.

For example, two weeks ago we reported on a related ruling in which a Florida judge dismissed several cases because an IP-address doesn’t identify a person. In other words, even when a court has jurisdiction, the copyright holder can not prove that the account holder connected to the IP-address is the person who shared the copyrighted file.

If other judges adopt either of the rulings above, it means the end of mass-BitTorrent lawsuits as we know them.
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Old 18-05-12, 21:49   #2
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Default Re: IP-Address Can’t Even Identify a State -Judge Rules

Slowly, judges are starting to get it. All this stuff with IP addresses being some one has been hokem from the word go. But with the courts not being familiar with the internet and how it works, the only input to court has been the ones claiming to be wronged. The whole thing has a stink about it when looked at from the reality that a mp3 file can be had for no more than $2 but has a statutory penalty of $150,000 per incident. As the judge in the Jammie Thomas-Rasset trial noted, amounts to cruel and unusual punishment for the civil offense.

When you go look at the reason that statutory damages are used as opposed to the other method of calculating the damage done prior to court, the $2 value doesn't pay for the lawyer time, even if Jammie had shared a single file 2000 times. The copywrong gang doesn't use one lawyer, it uses a battery of high priced lawyers. To calculate damages, they would have to know that Jammie actually had shared, how many times she had shared each song, and when. These are all immensely hard to do with the internet. Instead statutory damages are used where a fixed penalty for a fixed occurrence has happened. It's a slimy way to do it and jack up the punitive damages.

But the whole thing comes down to 'who did it'. For that the copywrong gang has always maintained that who ever owned the account was the guilty party. When you get into ISPs like AOL or Bulldog, they don't assign you a dedicated IP. They do what is called proxy IPs from a batch of numbers that are assigned to you for a session, making them dynamic IPs that always change. They are not assigned like the major telcos to a location. This is why IP numbers aren't people, don't identify someone behind the keyboard, nor are they even good locators to determine the court of jurisdiction.
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