Category Archives: Illegal & BitTorrent Network

BitTorrent Case Judge Is a Former RIAA Lobbyist and Pirate Chaser

Posted on by

Less than a week after her investiture ceremony, U.S. District Court Judge Beryl Howell laid down a landmark verdict that will make it easy for copyright holders to send cash demands to people they suspect of copyright infringement. Many people called the decision into doubt, and the revelation that Judge Howell previously worked as an RIAA lobbyist and as the Managing Director of a pirate-chasing outfit hints at a conflict of interest.

Image is Loading....

Last week, the freshly appointed U.S. District Court Judge Beryl Howell gave copyright holders carte blanche to continue their profitable settlement schemes. This verdict weakens the position of thousands of alleged BitTorrent users, some of whom may be completely innocent.

Despite opposition from ISPs and consumer rights groups who described the tactics as “extortion,” Howell decided in favor of the copyright holders. An extremely unfortunate precedent to say the least, and this is confirmed by lawyer Robert Cashman who represents several defendants in similar cases.

“I believe the judge is giving the plaintiff attorneys the benefit of the doubt on all accounts, which is unfortunate because she is turning a blind eye to the abuses defendants are suffering with threats and harassment while plaintiff attorneys attempt to scare them into a settlement,” Cashman told us.

The big question is why Judge Howell came to this conclusion. Although we can’t see inside her mind, looking at her career before she was appointed as a judge a few months ago may give us some insight.

Howell’s resume immediately reveals that she is no stranger to copyright law. As General Counsel of the Senate Committee on the Judiciary she helped with the drafting of several prominent intellectual property protection laws, including the Digital Millennium Copyright Act (DMCA), Digital Theft Deterrence and Copyright Damages Deterrence Act and the No Electronic Theft Act.

The above clearly indicates that Howell is familiar with protecting the interests of copyright holders, but there is more. Until 2009 she also held the position of Executive Managing Director and General Counsel at Stroz Friedberg, a consulting firm that specializes in the management of digital crimes.

Among other areas of expertise, Stroz Friedberg is very familiar with the technology required to hunt down file sharers. Next month the firm is hosting a lecture titled “The Power of Digital Forensics in Intellectual Property Cases” in which they explain how “specialized forensic processes” can help to find “infringing copies of protected music.”

It doesn’t take a genius to realize that Judge Howell’s former employee may directly benefit from her decision to allow the mass-infringement lawsuits to continue. And that’s not all.

In recent years Stroz Friedberg has lobbied extensively in Washington on behalf of the RIAA. This consulting job earned the company more than half a million dollars. And yes, one of the leading lobbyists on record was Beryl Howell, who was paid $415,000 between 2004 and 2008.

Although judges are deemed to be objective, the above is troubling information which at the least hints at a slight bias in judgement. This is fueled by the fact that less than a week after her investiture ceremony as a judge, Howell opened the door for copyright holders to send out settlements to tens of thousands of alleged file-sharers without first having evidence against them tested in court.

As a lobbyist there was only so much Howell could do, but as a U.S. District Court Judge she can really make a difference it seems.

In layman’s terms her ruling means that copyright holders can easily request the personal details of people who have allegedly downloaded copyrighted works on BitTorrent. With this decision in hand the copyright holders have all they need. After all, the intention of these lawsuits was never to take the defendants to court, but to send them settlement letters to resolve the issue for a few thousand dollars.

Whether this represents fair practice is not for us but a judge to decide – U.S. District Court Judge Beryl Howell in this case.

We’re no lawyers here, but if we see the information as presented above we can’t help but feel that there might be a conflict of interest here. At the least, some might consider that spending years defending the rights of major copyright holders has the potential to slightly blur one’s objectivity.

Read

iiNet Fights Off Hollywood, ISP Not Responsible For Online Piracy

Posted on by

The Federal Court of Australia has dismissed the movie industry’s appeal against a 2010 ruling which found that Internet service provider iiNet is not responsible for copyright infringements carried out by its file-sharing customers. iiNet boss Michael Malone described the decision as a relief while AFACT boss Neil Gane said “it cannot be right” that the ISP takes no responsibility.

The Full Bench of the Federal Court in Australia has just dismissed the movie industry’s appeal against last year’s judgment which found that ISP iiNet did not authorize the copyright infringements of its file-sharing customers.

Represented by anti-piracy group AFACT, nearly three dozen Hollywood and local studios took iiNet to court in 2008. In a 2009 trial the ISP was accused of doing nothing to stop its customers downloading films and TV shows but in February 2010 the Federal Court decided that iiNet was not responsible for their activities. An appeal was heard later that year and today the decision was handed down.

Justice Emmett said that the Court continued to agree that the rights of the movie companies had been infringed but could not find in their favor.

“While I disagree with the primary judge’s reasoning in significant respects, I am nevertheless of the opinion that his Honour’s decision to dismiss the proceeding was correct,” the ruling reads. “In my opinion the appeal should be dismissed.”

The ruling itself is an absolutely huge affair and will take a considerable time to digest, but at this early stage it seems quite clear that even after two years of legal battles, this fight is probably still not over.

“Even though the Copyright Owners are not entitled to the relief claimed in this proceeding, it does not follow that that is an end of the matter. It is clear that the questions raised in the proceeding are ongoing,” the ruling reads.

“It does not necessarily follow that there would never be authorisation within the meaning of s 101 of the Copyright Act by a carriage service provider, where a user of the services provided by the carriage service provider engages in acts of infringement such as those about which complaint is made in this proceeding.

“It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements.”

Nevertheless, on the thorny demand by AFACT that iiNet should have blindly sent out warnings and suspend customer accounts based on the information it provided, the ruling is clear.

“I do not think [iiNet] could reasonably be expected to issue warnings, or to terminate or suspend particular accounts, in reliance upon any such notice in circumstances where it has been told nothing at all about the methods used to obtain the information which lead to the issue of the notice,” it reads. “Nor should it be up to the respondent to seek out this information from a copyright owner who chooses not to provide it in the first place.”

iiNet chief executive Michael Malone said he was “relieved” at the outcome.

“Our original contention was upheld that we don’t believe we ever authorised or did anything to encourage customers to breach copyright,” he said. “We’ve won at the lower court, we’ve won at the Federal Court now in the appeal, but all this legal action hasn’t stopped one customer from downloading anywhere in Australia.”

“Same as we said last time, invite the rights holders back, let’s make the content available legally and legitimately so customers can get access to it, and let’s find a better way to be able to police those who don’t do the right thing.”

Malone went on to state that the overall problem of deciding to what extent ISPs can be held liable will have to be solved by the government.

AFACT boss Neil Gane was clearly disappointed at the decision.

“It cannot be right that, in effect, the ISP, who has the power to prevent copyright infringement online and admitted they were taking place, does not share the responsibility to stop them,” he said. “Copyright infringement now goes on unabated on the Internet.”

While Justice Emmett and Justice Nicholas dismissed the appeal, Gane said he was encouraged that Justice Jagot had sided with the movie industry.

“We take heart however, that Justice Jagot found for us and that Justice Emmett said that we were successful on many grounds.

“We will be taking our time now to examine the judgment in detail and consider all of our options.”

It is widely believed that the case will now proceed to Australia’s High Court.

Read

BREIN Seizes Warez Servers, Owners Seize Them Back, May Sue

Posted on by

Last month, Dutch anti-piracy outfit BREIN targeted one of the Internet’s largest warez piracy topsites. The site, known as Swan, was taken down by hosting provider WorldStream and without judicial process BREIN seized its servers. Now the owners of the servers have retaliated by seizing them back and, in a delicious twist, may sue BREIN for breach of privacy and property rights.

In their on-going quest to rid the Internet of evil pirates, in January anti-piracy group BREIN made a particularly impressive announcement.

Hitting at the top of the so-called piracy pyramid, BREIN had taken down the Swan warez Scene topsite. Formerly known as ATS, Swan operated from several servers and reportedly carried more than 200 terabytes of data.

Although the site naturally had connections to a variety of Scene groups, the action taken by BREIN wasn’t aided by the police or a court so none of the individuals involved are facing legal action.

However, this lack of an official legal process rang a couple of loud alarm bells given developments in the case. BREIN boss Tim Kuik admitted that his organization had somehow acquired the Swan servers from hosting provider WorldStream, who in turn weren’t in a position to simply give other people’s equipment to a third party.

Nevertheless, both BREIN and WorldStream defended their positions, positions which have now come back to bite them.

It later transpired that the servers were owned by Alejandra Transporte SA, a small South American hosting provider that had nothing to do with the topsite and as an ISP had no knowledge of what its equipment was being used for.

Acting on behalf of Alejandra Transporte, lawyers Solv Advocaten in The Netherlands have been taking legal action to force BREIN to hand back their client’s equipment, and yesterday those measures bore fruit. Following authorization from the Court of Haarlem, bayliffs seized the servers back from BREIN.

“BREIN took the property of my client (8 high end servers) without any court order or warrant. Also, BREIN states to have gained access to the servers. On these servers [business and private material] is stored,” Milica Antic of Solv Advocaten told us.

“Since my client is a hosting provider, also content of third parties (the customers of my client) is on these servers. This is a breach of privacy, to say the least.”

WorldStream, the server host and a private company, handed BREIN the servers voluntarily. As noted by Milica Antic to us in conversation this morning, BREIN is also a private organization and has no special legal or investigative authority. Nevertheless, the pair reached an agreement and BREIN took the servers away whilst refusing to reveal their location.

At the time of the seizure, BREIN boss Tim Kuik told us that his organization “exerts the rights and civil enforcement remedies of copyright holders” which “includes seizure of servers used for infringements.”

Solv Advocaten see things very differently and are stating that by seizing the property of another without having permission from a judge, BREIN is guilty of vigilantism.

Earlier, Tim Kuik said that if the owner of the servers wanted them back they could step forward but pointed out that this may have its drawbacks – BREIN could seek to hold them liable for the activities that took place on the servers.

However, Solv Advocaten insist that as a hosting provider Alejandra Transporte does not know what content it hosts for its clients and is therefore not liable. Indeed, in this case BREIN themselves could become the hunted.

“If we commence further proceedings against BREIN it will be on basis of breach of property rights and breach of privacy,” Milica Antic concluded.

Update: “Two members of Dutch Parliament have asked the Minister of Justice questions about this matter,” Milica Antic has just informed us. “They are particularly concerned about the fact that BREIN has gained access to the servers on which the business and private administration of my client is stored.”

Read