Monday, July 18, 2011

Someone Has Been Watching Righthaven...

But not learning.  The July 15, 2011 San Francisco Chronicle reports on a law firm out of Chicago that is filing lawsuits alleging that defendants are violating copyright law by downloading porn over BitTorrent. It does not appear that there is any allegation that the defendants are republishing it, selling it--not downloading it.  Since it is impossible to play a video without downloading it to your website, it is pretty difficult to figure out how this would survive in court.  By comparison to this, Righthaven at least had half plausible claims, depending on the definition of fair use.

Nor is it clear that the defendants are actually the right parties to sue:

Jane is in her 70s, a retired widow who spends her days doing volunteer work in the East Bay and fussing over her grandchildren. She also downloads porn illegally over BitTorrent....

This particular Jane (who didn't want her real name used for that very reason) said she's never downloaded porn and doesn't know what a BitTorrent is. She can't afford an attorney to make her case, but she's not about to settle either.

The article goes on to explain that Jane has no idea whether her wireless router is password protected or not.  There are a number of young men living next door, however.

So, why file these suits demanding $150,000 if there is effectively no chance of winning?  Ah, because the demand letters these attorneys send out (to 10,000 defendants so far) are

strongly suggesting that these "digital pirates" settle out of court for several thousand dollars. Letters to defendants helpfully remind them the amount is below what they'd probably pay in attorney's fees and that settling would avoid publicly linking their names to pornography.
But the letters ask you to give the lawyers your credit card information, and they will settle out of court for $3400. Maybe Jane did not know that someone was using her wireless connection to download porn.  As a commenter on the article points out, is Starbucks (with its wireless connections) next on the defendants' list?  My guess is no, because Starbucks has the resources to fight this.

I am inclined to think it is time for a serious revision of copyright law.  At the top of my list would be limits on demands (perhaps $5 on newspapers, $100 on books) unless there was evidence that a defendant was commercially reselling the copyrighted material.  Any video where more than 20% of the frames had exposed genitals or female breasts would not be protected at all.


  1. The difference is that with BitTorrent, instead of everyone downloading from a singer server (resulting in skyrocketing bandwidth costs) each person who is downloading is simultaneously uploading to other users, and all the server needs to do is periodically send out a list of ussers, the program coordinates with the other users as to who has which pieces, and they send them around until everyone has the whole thing.

  2. What Mauser said. You can't (effectively) download via BitTorrent without also sharing to others.

    The real problem here is that they're suing someone they can't show actually did the deed in question...

    (Also, they can't sue Starbucks for it, because Starbucks explicitly provides open access and thus counts as a Common Carrier and is immune to prosecution for the actions of users of its services, as I understand it.

    If she'd been running her wireless network deliberately open and written back to them that she was operating as a common carrier, I'm 99% sure they would have shut up and gone away, knowing that they had no case.

    The problem here is not "copyright law" itself, I think, but lack of laws clarifying standards of proof for these sorts of violations.

    (And why shouldn't nudity or even sex be protected just like writing and non-nude films?

    How about written works that are themselves pornographic?

    I prefer the State to not care about content in terms of IP protection.

    Next it'll be "this book is badly written or uninteresting so it shouldn't be protected either", won't it?)