Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works
from the seems-like-a-stretch dept
TorrentFreak has a fascinating article about how porn producers Io Group/Titan Media, who it should be mentioned have a history of being involved in questionable lawsuits, aren’t just doing the standard IP-address shakedown of thousands of people for cash — they appear to be going after people who clearly downloaded one of their files by accident. At least some of the files Io/Titan is suing about were clearly mislabeled, and had the names of mainstream popular works instead. In fact, Titan’s lawyers even make this clear in their “demand” letters for people to just pay up without going to court. The threat letters name exactly what the file was called, even if that content wasn’t actually in the file.
One woman even told the court that she had absolutely downloaded the file in question — but did so believing it was someone else’s content (Japanese composer Ryuichi Sakamoto) — and as soon as she realized it was gay porn, she deleted it. Now, some may reasonably argue that she may deserve some punishment for downloading such works in the first place, but it raises a fascinating legal question. If you download a file that you think is music from Ryuichi Sakamoto, but it actually turns out to be gay porn from Io that you don’t want… have you actually infringed on Io’s copyrights? At the very least, I can’t see how Io can claim any legitimate “harm” in that situation. This was someone who did not want the work in question at all, so it’s not like it impacts the market…
TorrentFreak posits that this could be a honeypot, with someone purposely mislabeling files to get more downloads (and to issue more demand letters). The company (not surprisingly) denies all of this, saying they haven’t set up a honeypot. But, I imagine there’s going to be a lot more scrutiny on them either way.
Filed Under: copyright, honeypot, porn
Companies: io group, titan media
Comments on “Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works”
If this works the next logical step is to rename the copyrighted files with legitimate free downloads like ubuntu-9.10-dvd-i386.iso.torrent. That way they can also sue people who had absolutely no intention of doing anything illegal.
Re: Re:
Or visa versa, if it doesn’t work, the next logical step is still to rename the copyrighted files with legitimate free downloads like ubuntu-9.10-dvd-i386.iso.torrent so that everyone can claim they just got it by accident. Then you just need the secret decoder ring to tell you what ubuntu-9.10-dvd-i386.iso.torrent really means! 🙂
Re: Re:
Didn’t SCO already this with that file?
Re: Re:
Just a note:
Ubuntu 11.04 is out 😛
Hey its like getting Rick Rolled…twice!
Yeah, Honeypot.
I don’t know if Ryuichi Sakamoto can be downloaded legally, but let’s take that issue out of the question. Say I try to download Pornophonique or say Pioneer One and find IO’s gay porn? It doesn’t even have to be put there by IO themselves, just some asshole trying to troll people.
Bigger fundamental errant assumption at issue here...
I have been surprised for years that, in no case that I am aware of, has the fundamental truth of “There is no authoritative link between a file’s name and it’s actual contents” ever been established.
There has always been an explicable assumption that the filename indicates content.
I have long thought is would be a delicious exercise to set up a honeypot share of personally authored and registered graphic art files titled as music files. Then when the Maf-RIAA trips the download alarms, file suit just to get them to try to make the argument that Filename <> Content.
Re: Bigger fundamental errant assumption at issue here...
“explicable assumption” should read “inexplicable assumption”
Sorry.
Re: Bigger fundamental errant assumption at issue here...
Yeah, she has probably already been sued by whoever has the copyright on Ryuichi Sakamoto’s material for downloading that file and settled.
Re: Bigger fundamental errant assumption at issue here...
The irony is they would probably send you a shakedown letter without ever inspecting the contents of the files they took from your honeypot.
I’d love to see them argue that infringement results from not actual distribution, not even “making available”, but the mere appearance of making available.
Re: Bigger fundamental errant assumption at issue here...
Are you sure that file size and hash signature are not used as factors in identifying infringing files as well as filename? If you set up your honeypot as you describe, why wouldn’t they sue you for trademark infringement?
Re: Re: Bigger fundamental errant assumption at issue here...
Can you trademark the name of a song? If I type in “Hotel California” did I just commit trademark infringement?
Re: Re: Re: Bigger fundamental errant assumption at issue here...
Can you trademark the name of a song?
Absolutely not – there are many examples of multiple (unrelated) songs with the same name
eg “The power of Love”
Re: Re: Bigger fundamental errant assumption at issue here...
yes. The file size and hash signature are always different because the source files are unknown (dude who camcorded “Thor” has unknown hash and size to begin with, then the next dude who edited out the credits has another one, the 10 different zip formats are all different again.
How would the copyright holder have any idea of the hash / file size?
Intent required?
It seems like it would come down to whether 1) intent is a necessary element in an infringement claim and if so, whether 2) the doctrine of transferred intent applies. If intent is not necessary, then inadvertent copying is infringement. If intent is necessary, but an intent to infringe one work may be “transferred” to the infringement of a different work, then it would appear to be a valid claim.
Off the top of my head I don’t think intent is required. Wasn’t George Harrison liable for unconsciously copying “He’s So Fine”?
But if it is a honeypot, that is a pretty clear case of “unclean hands,” which would probably provide some equitable defenses.
Re: Intent required?
If intent isn’t required, I really cannot see how honeypots shouldn’t be perfectly legal. Really, there is no difference at all from the downloader’s side. You download an annoying misnamed file either way, whats the difference who tricked you?
Re: Re: Intent required?
It very well might be legal. I’m pretty sure its not criminal.
The difference between legal and equitable relief is particularly important in cases like this. Law is traditionally concerned with rules while equity is traditionally concerned with the character of the parties’ behavior. A honeypot would almost certainly be viewed by a court as inequitable conduct, even if legal. Inequitable conduct would could grant the defendant the use of equitable defenses, like estoppel and unclean hands.
Plus, thanks to google scholar, I now know that the absence of intent allows the court to reduce statutory damages to $200.
Re: Re: Intent required?
But, if they set up a honeypot, isn’t implied that they gave permission to download the files in question, making any claim of infringement moot?
It seems like intent is the issue, and the woman clearly had intent to violate copyright and obtain something in an illegal fashion. She wouldn’t have been there otherwise.
Re: Re:
This is awesome. She intended to infringe (assumption), so even though she didn’t intend to infringe owner A’s copyright, but meant to download owner B’s works, owner A can still sue her.
The amount of tortured logic here is breathtaking….
Re: Re: Re:
The intent to infringe is not an assumption, she admitted to it already. She was trying to illegal download something, and got something else.
It really doesn’t go much further than that.
Re: Re: Re: Re:
Yes, it does not go further, therefore the case should be dismissed or at least that lady should be severed from the complaint.
Re: Re: Re: Re:
I’m really not following you. So intent = she deserves to be punished in your mind. I follow you there.. But how does that translate into her owing the porn guy money when she intended to infringe on someone else’s stuff?? Shouldn’t she owe money to whoever she intended to infringe from? Otherwise the porn guy is just going to keep getting rich by tricking people into downloading his crap.
Re: Re: Re: Re:
That reasoning is fine in a criminal context (the government gets to charge you for either illegal action), however in a civil suit between two parties, this does not work. The company does not deserve cash because someone was trying to infringe on the copyright of an unrelated third party.
Re: Re: Re: Re:
The intent to infringe is not an assumption, she admitted to it already.
Actually no – she admitted to something which she believed was an infringement. That is not enough – her belief may not be correct i9n law if she (like almost everyone) has an incorrect and incomplete view of copyright law. Suppose a (free) newspaper gives away a free CD that they have copied illegally. The newspaper has infringed – but the people who take the copies have not. Simply receiving – or even requesting an infringing copy does not put you on the wrong side of the law in most circumstances. The commonplace belief (promoted by the RIAA etc) that it
does is incorrect and holding that belief does not equal a confession.
Re: Re: Re:
Civil claims aren’t moral judgments in the same way as a criminal accusation, so civil liability and criminal liability are derived from different sources. Criminal law punishes wrongdoing, while civil law compensates people for harms they have suffered (punitive damages are an exception to this, but far less prevalent than TV would have us believe).
Basically the rationale for civil liability is one of cost-shifting; the loss, in the form of damages, should be born by the party which caused the harm, regardless of moral culpability. This is especially true in strict-liability torts. So in civil law your liability is always to the damaged party, not to the party you intended to damage.
Re: Re: Re: Re:
So, in this case, does it make any sense to build a defense on debunking the myth of allegedly huge damages?
On one side of the damage claims we have a troll lawyer and his client (paragons of truth, no doubt), on the other – London School of Economics.
Re: Re: Re:2 Re:
Unfortunately, they may not have to prove actual damages – statutory damages for a properly registered copyright are pretty horrendous. Ostensibly statutory damages are meant for the types of claims where proving actual damages can be difficult. The problem is that with copyright they almost always exceed any plausible damage calculation by an enormous amount.
As a sidenote, I bet that without statutory damages, copyright litigation would wither on the vine. There just isn’t enough money in actual damages to justify a lawsuit against an individual person downloading music or films.
Re: Re: Re: Re:
So in civil law your liability is always to the damaged party, not to the party you intended to damage.
But in this case, by your argument, since the damage to 10 is obviously zero so that is what their damages should be.
Re: Re: Re:2 Re:
No, it shouldn’t be zero, it should be less: no more than 10% of zero.
Re: Re: Re:2 Re:
Just to clarify, I’m not arguing about what the law should be, just what I think the law is.
As for damages, whether someone is liable is a different issue than how much the damages are and both have to be proven separately. If they prove liability but can’t prove damages, then they usually get nominal damages (usually $1.00). The twist is that in copyright infringement a plaintiff can usually opt for statutory damages, which provide a mandatory minimum amount of damages for each unauthorized copy, without having to prove anything other than liability.
Re: Re:
But why should IO get rewarded if it was Ryuichi Sakamoto’s copyright that was the intended target?
Re: Re:
wouldn’t have been where otherwise? I thought she just wanted to replace her CD that she accidentaly broke? Even if she did intend on illegally copying Ryuichi Sakamoto’s music, why should the porn guy be paid instead of whoever has the copyright for Ryuichi Sakamoto’s stuff?
How did Titan Media know that the file downloaded was mis-labeled? That to me seems like a honeypot just by that fact alone.
Finally..
Finally this scum attracted Mike’s attention. I’m fighting (anonymously) on Io vs. Does 1-244 case for more than 3 months already, since I received a message from AT&T.
I have nothing to add, I said it all in my court filings, specifically in my motion to dismiss
http://www.scribd.com/doc/55048420/310-Cv-03647-WHA-Docket-38-Motion-to-Dismiss
and another similar motion earlier in the process:
http://www.scribd.com/doc/54298028/310-Cv-03647-WHA-Docket-25-Opposition-to-Motion-to-Strike
AT&T used my filings as excuse to delay revealing the names, but finally succumbed to Sperlein’s threats. In a week we started receiving threatening letters (http://www.scribd.com/doc/56009753/Ransom-Letter-Edited).
I gathered a lot of information during my fight, so if anyone has any questions, feel free to shoot me an email or post to my blog fightcopyrighttrolls.wordpress.com (I have intention to cover other IO cases in my blog, but I don’t have a lot of spare time).
Re: Finally..
…And reported to the ABA for extortion.
Re: Re: Finally..
So they can give him the Man of the Year Award?
It is touch competition out there, even with Evan Stone creating subpoenas out of thin air in violation of a court order, and making demands of the ISPs to cut off accounts on his say so. And then he tries to quietly file a response to the judge and not inform opposing council. Oh and funny the “records” he got, can’t be found. But this has not stopped him from trying to unmask several thousand Does for a movie Funamation had only acquired the rights to, 2 weeks before.
And let us not forget Marc Randazza who now is getting evidence from the German firm who started the whole honey pot craze in Germany, where they get to sue and collect without needed to actually represent the people infringed.
It will be a tough race, but maybe Steele will bust into a Senior Center and demand payment or he will start pulling the plug on peoples respirators.
3….2…..1….. cue troll telling me they deserve it for being pirates, insert logic pointing out just because a lawyer says it does not make it true, cue troll saying I just want it all for free, insert me pointing out no I just want a more reasonable business model adopted rather than war on the internet, insert random troll calling Mike a naughty name, lather rinse repeat.
downloaded porn
What if your child downloads it by accident…can you counter sue for them not putting their content in an 18 or up only section? They are illegally distributing pornography to minors.
As expected the majority of sharers did download gay porn, but some (like that lady) did not do it intentionally.
For example, non-gay-porno filenames from Io vs Does 1-244 suit:
avatar.avi
Paranormal Activity.avi
Lady Gaga (The Fame Ball – Live From Ny) – Poker Face Piano.avi
超細腰Tsubaki House – SnapShot #05 – 岩下美季(Av 無碼 學生 女優 辣妹 ?? 人 幼齒 巨乳 美女).avi
Piano.avi
Texas.Discografia.completa.rar
The clash of the Titans [2010.Screener.avi
Visual Studio 2010.iso
Adobe Video and Audio DVD (Premiere Pro 1.5, After Effects Pro 6.5, Audition 1.5, Encore DVD 1.5 and Photoshop CS 8.0).ISO.RAR
The Beatles Discography Ful Official cds 320kbps Covers.rar
Note that at least one of the filenames (Visual studio 2010)refers to the file that is freely available on Microsoft’s website. And 6 people from this case who tried to download VS did receive threatening letters.
One small victim’s story that few if any had noticed…
http://www.justanswer.com/intellectual-property-law/51246-received-letter-d-gill-sperlein-i-attorney.html.
A lady (one, whose filename was something about tsubaki house) asked question on JustAnswer.com:
=====================================
I received a letter from “d.gill sperlein” :
I am an attorney representing Io Group,Inc.,Recently,your Internet access account was used to illegally distribute an unauthorized copy of an Io Group movie using the eDonkey2000(ED2K) network………Io group offers to settle its claims against you for $1875.00 nonnegotiable…………(discovered at 68.126.62.231 on 5/14/2010 09:59 pm).
the photos of letter:
https://picasaweb.google.com/lh/photo/3zEzjJ0c_XHnlFvs_lniaB_LXGa0aFoLVcjvXmO-QtU?feat=directlink
https://picasaweb.google.com/lh/photo/lKnrCgs7FDTrxvMhzvKySR_LXGa0aFoLVcjvXmO-QtU?feat=directlink
I’m afraid that it will cost more to defend myself than to pay pre settlement fees, What is your advice?
==================================
If you follow the links, you will see (at the bottom of the second page) that the file name she (or someone else using her connection) tried to obtain was not one she accused of downloading.
She commented on the lawyer’s reply later:
===============================================
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 🙂
=========================================================
Isn?t it outrageous?
It’s a variation of the green goods scam.
http://en.wikipedia.org/wiki/Green_goods_scam
Okay then, I’m just gonna pop over to Piratebay and upload a torrent, to share filename “Hot_incest_illegal_child_porn_1080p.mp4”. Guess what the file actually is? A picture of a giant winking smiley with the caption Sucker!
Now tell me, using Io’s logic, can the downloaders of this .mp4 be arrested for intent of trafficking in child porn?
Re: Re:
First of all, let’s keep civil and criminal actions separated. Otherwise we will end up with comparing file sharers with murderers and rapists.
Re: Re: Re:
Yes, please.
Otherwise, next thing you know, the copyright maximalists will start to think murderers and rapists are as bad as file sharers.
Real-teme developments
As we speak, the court filed another Sperlein’s voluntary dismissal of 2 defendants. Translation: they just paid ransoms.
http://www.scribd.com/doc/56961245/310-Cv-03647-WHA-Docket-44-Voluntary-Dismissal-of-2-Defendants
Re: Real-teme developments
Sorry for a cute typo: teme = time + meme
Only way to deal with this, is to trick these people into downloading some seriously illegal material, by disguising it as an update to a program they are using or something. And then tip off the authorities. See if they claim ignorance and innocence.
Question: If you download a song and it’s incorrectly labelled, who’s copyright have you infringed. The incorrect name? The actual file? If download a song that is copyrighted and rename it to a public domain work, have I infringed?
Re: Re:
It does not matter in this case, because you end up in an amazing catch 22, how do you defend yourself by saying but I thought I was pirating Avatar not porn. This is just another way to scare and force people into the corner and to settle for thousands on the mere accusation of someone who is more than likely creating the situation merely to profit from it.
Isn’t the law fun.
If it were a honey pot, wouldn’t that leave the porn producer liable for fraud? If I try to download a perfectly legitimate torrent (say, Linux distro), only to find out when the download completes that I received gay porn, wouldn’t that be fraud on the part of the linker?
While filenames aren’t required to be accurate to the contents of the file, there is an assumption that the filename is descriptive and accurate.
Also, only the individual copyright holder has standing to sue over infringement. Just ask Righthaven….
“Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works”
Some people have been accused of infringement and they do not even own or possess a computer, some of them are not even alive – so I would venture a guess that circumstances do not really matter.
If they uploaded the file with the incorrect file name themselves, isn’t that a torrent authorized by the copyright holder? While a copyright holder may join a swarm to get IP addresses, if that torrent wouldn’t have existed without them making it, it’s hard to argue that they could be damaged by this torrent and claim that this torrent was unauthorized file sharing.
file still exists in eDonkey network!
the file in question is this:
ed2k://|file|Album%20-%20Ryuichi%20Sakamoto%20-%20The%20Best%20Of%20Ryuichi%20Sakamoto.rar|1467614442|AF4BF53D577E6C0409FB7A9FE3902027|/
Someone get REAL EVIDENCE of those IP addresses seeding that file!
Sue or DDoS them!
Need help
I’m upset. My blog fightcopyrighttrolls.wordpress.com that was created to somehow connect Sperlein’s victims and provide discussion room for those who oppose extortion tactics WAS SUSPENDED “for terms violations”. I re-read the terms and failed to find any wrongdoings.
I send a request to Wordpess for explanation, but have no idea when and if they will reply me.
Seems like a cowardly attack on my right to speak freely.
Re: Need help
My blog is Its back. I suspected the worse, but it happened to be a stupid automatic spam flag (since I posted links in many discussions). WordPress reasonably promptly resolved the problem.
Info on how to respond to threats.
http://torrentfreak.com/everything-you-need-to-refute-a-file-sharing-legal-threat-100114/
http://torrentfreak.com/everything-you-need-to-refute-a-file-sharing-legal-threat-100114/