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Comcast Allegedly Confirms That Prenda Planted Porn Torrents

Unknown Lamer posted 1 year,9 days | from the copyright-lawyer-doesn't-know-copyright dept.

Piracy 175

lightbox32 writes "Porn-trolling operation Prenda Law sued thousands for illegally downloading porn files over BitTorrent. Now, a new document from Comcast appears to confirm suspicions that it was actually Prenda mastermind John Steele who uploaded those files. The allegations about uploading porn to The Pirate Bay to create a 'honeypot' to lure downloaders first became public in June, when an expert report filed by Delvan Neville was filed in a Florida case. The allegations gained steam when The Pirate Bay dug through its own backup tapes to find more evidence linking John Steele to an account called sharkmp4." The problem for Prenda being that initiating the torrent would give anyone who grabbed it an implied license.

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Implied license... (0)

Anonymous Coward | 1 year,9 days | (#44615453)

So my porn collection is legal after all?

Re:Implied license... (1)

gagol (583737) | 1 year,9 days | (#44615511)

If you want to be sure, stick to amateur porn. It is more natural anyway.

Re:Implied license... (4, Funny)

guytoronto (956941) | 1 year,9 days | (#44616895)

Walking is more natural than driving, but I'll take a Porsche over a pair of running shoes anyday.

Re:Implied license... (3, Funny)

Anonymous Coward | 1 year,9 days | (#44617413)

That's why you're so fat.

Get some exercise, fatty.

Next step (5, Interesting)

mwvdlee (775178) | 1 year,9 days | (#44615455)

The only thing that would make this any juicier now is if Prenda itself didn't have the rights to distribute that porn.

Re:Next step (2)

someone1234 (830754) | 1 year,9 days | (#44615477)

So the copyright infringement may still exist, but it is Steele who did that, willfully, with malice. I wonder what that would earn him.

Re:Next step (3, Funny)

gagol (583737) | 1 year,9 days | (#44615525)

Hopefully, it would not involve lubricant, or at least some sand in it...

Re: Next step (0)

Anonymous Coward | 1 year,9 days | (#44615555)

sand! aha

Re:Next step (1)

BSAtHome (455370) | 1 year,9 days | (#44615959)

You mean "saltmarsh"...

Re:Next step (0)

meerling (1487879) | 1 year,9 days | (#44615669)

It might earn him a Golden Woody, but then again, he's a big enough dick without getting his ego inflated.

Re:Next step (3, Informative)

Anonymous Coward | 1 year,9 days | (#44615599)

The only thing that would make this any juicier now is if Prenda itself didn't have the rights to distribute that porn.

Well, they forged copyright assignments with an "Alan Cooper" signature, they negotiated some licenses just for going after copyright violations but not distributing content, and they approached several copyright holders only after the violations started.

So there's all the juice you want in there.

Re:Next step (2)

Black Parrot (19622) | 1 year,9 days | (#44615621)

The only thing that would make this any juicier now is if Prenda itself didn't have the rights to distribute that porn.

Well, they forged copyright assignments with an "Alan Cooper" signature, they negotiated some licenses just for going after copyright violations but not distributing content, and they approached several copyright holders only after the violations started.

So there's all the juice you want in there.

Some people just aren't cut out to be supercrooks. Stick to shoplifting candy, Steele.

Re:Next step (2, Funny)

ragefan (267937) | 1 year,9 days | (#44616175)

What is this world coming to when a porn company is not completely on the up-and-up?

Re:Next step (2)

egamma (572162) | 1 year,9 days | (#44616607)

What is this world coming to when a porn company is not completely on the up-and-up?

Actually, they are a law firm that purchased the rights to the films from a porn company, and then "gifted" the copyright to a random guy that the owner of the law firm knew; their business model was to sue those who were sharing the film illegally. But giving the film away for free get the downloaders off the hook, IANAL.

Re:Next step (0)

Anonymous Coward | 1 year,9 days | (#44616379)

Given the uncertainty surrounding who exactly is the signing authority for Prenda Law and it's affiliates (e.g., it's alleged that "Alan Cooper" was impersonated), I don't even know how someone could prove that they did have permission.

no (3, Insightful)

phantomfive (622387) | 1 year,9 days | (#44615483)

." The problem for Prenda being that initiating the torrent would give anyone who grabbed it an implied license.

Good luck using that idea in court.......

Re:no (0, Troll)

Anonymous Coward | 1 year,9 days | (#44615653)

I don't believe in this thing you call "court". It comes from the same corrupt place as this other thing called "government", right?

Evidence seems compelling (5, Informative)

Camael (1048726) | 1 year,9 days | (#44615841)

You can find a copy of the actual Comcast letter here [torrentfreak.com] .

For background :-

In June, Prenda and its boss John Steele were accused of running a “honeypot” based on an expert report authored by Delvan Neville, whose company specializes in monitoring BitTorrent users.

The report hinted that the law firm was seeding the very files they claimed to protect, and found that many of the torrents detailed in Prenda lawsuits originate from a user on The Pirate Bay called ‘Sharkmp4.

In an effort to expose the alleged honeypot, The Pirate Bay then jumped in and revealed the IP-addresses that ‘Sharkmp4used to upload the torrent files.

One of the subpoenas covered the Comcast IP-address 75.72.88.156 used by “Sharkmp4,” as can be seen at the bottom of the list of Pirate Bay IPs shown above.

After a few weeks Comcast returned the subscriber details that matched the IP-address at the time the files were uploaded. As can be seen from their response detailed below, this IP is indeed the Comcast account of Steele Hansmeier PLLC, which is directly connected to Prenda Law.

It's ironic that the method copyright trolls like to abuse, namely linking IP addresses to alleged infringers is now being used against them in this case.

As for your "good luck" comment, the same point was raised in the Viacom International Inc. v. YouTube, Inc. [wikipedia.org] lawsuit. Specifically, Google claimed [blogspot.com] that:-

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site.

Although summary judgment was granted to Google on other grounds, I'd say this argument has at least a fair chance of success.

 

Re:Evidence seems compelling (3, Interesting)

quantaman (517394) | 1 year,9 days | (#44615915)

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site.

Although summary judgment was granted to Google on other grounds, I'd say this argument has at least a fair chance of success.

I'm not sure the Viacom situation applies. Legally Viacom would have been well within its rights to upload a clip, then demand YouTube take down an identical clip uploaded by a user, it's their content. The argument Google made is that Viacom made it unclear when it was uploading clips, even a take down request could turn out to be targeting legit content, making it impossible for YouTube to ensure only authorized content remained.

I think the difference is the people sharing the files never had any expectation that the uploaded Prenda content was legit, so they weren't in the same dilemma as Google. Of course that doesn't mean a judge will be ok with the honeypot idea.

On /. none us are lawyers, but... (3, Insightful)

jopsen (885607) | 1 year,9 days | (#44616019)

I'm not sure the Viacom situation applies. Legally Viacom would have been well within its rights to upload a clip, then demand YouTube take down an identical clip uploaded by a user, it's their content.

When you hit the upload button, you also agree to some terms... Google give you the ability to login with the user that uploaded the video and remove it.
But if you file a DMCA take-down notice, and/or sue over it, that's probably abuse of the legal system. Considering that the upload terms explicitly grants Google a license to the work (probably an irrevocable licence).

Re:Evidence seems compelling (3, Informative)

Camael (1048726) | 1 year,9 days | (#44616101)

I'm not sure the Viacom situation applies. ...I think the difference is the people sharing the files never had any expectation that the uploaded Prenda content was legit, so they weren't in the same dilemma as Google.

Technically I have to agree with you that the Viacom case doesn't set any precedent insofar as issues of licence/entrapment are concerned. Google argued for (and successfully obtained) a ruling that it qualified under the safe harbour provisions, so the issue of whether or not Viacom had licensed their content impliedly by uploading it themselves or through their representatives never came into question.

As for the reasonable expectation point, I'm not sure that is even a requirement in law at all, and can lead to absurdities if it is. For example, when a copyright owner puts up a file on torrent knowing it will be downloaded, if the downloading is deemed a civil cause of action or a criminal offence, aren't they then abetting the same? When a copyright owner puts up a file on torrent knowing it will be downloaded, isn't that an offer to the world at large to download the file? Or maybe to draw a simpler analogy, if you offer me something and I take it, can you then turn around and accuse me of theft? Things may not be as clear cut as it seems at first glance.

Re:Evidence seems compelling (0)

Anonymous Coward | 1 year,9 days | (#44616587)

Anyone have a list of the files that Prenda Law released for free download and redistribution on torrent?

Re:Evidence seems compelling - MAC address? (1)

rjune (123157) | 1 year,9 days | (#44616633)

One of the pieces of information in the Comcast letter is a MAC address. If you could link that address to hardware owned or leased by Prenda Law, you would really have a "smoking gun". I don't know if it is from a cable modem, but you should be very easily be able to identify the manufacturer based on the first three octets (It's been several years since I had my networking class, so my memory could be faulty)

Re:Evidence seems compelling - MAC address? (1)

Kiralan (765796) | 1 year,9 days | (#44617145)

Your memory is still good. The first 3 are the manufacturer, and the remaining 3 are their 'serial' number. Link to first 3 lookup: http://standards.ieee.org/develop/regauth/oui/public.html [ieee.org]

Re:Evidence seems compelling - MAC address? (1)

rjune (123157) | 1 year,9 days | (#44617545)

MAC address given was B8-9B-C9-D9-5E-00

Using the IEEE data: B8-9B-C9 (hex) SMC Networks Inc
                                                                  B89BC9 (base 16) SMC Networks Inc
                                    20 Mason
                                Irvine CA 92618
                                UNITED STATES

SMC makes cable modems, see http://na.smc.com/ [smc.com]

The question is, where is that cable modem and who owned or leased it at that time?

Re:Evidence seems compelling (1)

wile_e_wonka (934864) | 1 year,9 days | (#44617241)

In an effort to expose the alleged honeypot, The Pirate Bay then jumped in and revealed the IP-addresses that ‘Sharkmp4' used to upload the torrent files.

Am I the only person that is concerned and surprised a bit about this? TPB disclosing upload IP addresses?!

I am also surprised that Prenda didn't make some effort to hide the IP.

Re:no (3, Interesting)

Solandri (704621) | 1 year,9 days | (#44615911)

." The problem for Prenda being that initiating the torrent would give anyone who grabbed it an implied license.

Good luck using that idea in court.......

The reasoning seems pretty sound to me:

If Prenda did not have the right to distribute the media, then you could make a fairly convincing argument that those who took part in the torrent cannot be fined more than the copyright owners choose to fine Prenda for committing the exact same crime.

If Prenda had the right to distribute the media and chose to distribute it via bittorrent where they knew people would grab a copy for free, then they were implicitly giving away the media for free and anyone who participated in the torrent did not infringe the copyright. If I stand on a street corner and hand out copies of my book, I cannot then turn around and sue anyone who takes a copy for theft. It's only when someone I did not authorize stands on a street corner handing out copies of my book that I can sue him (and the recipients if they knew the book giveaway wasn't legal) for theft.

The only way I can see this going in Prenda's favor is if the court decides that if you willingly give away your stuff to people who believe it's stolen, then they can be sued for theft. But that makes no sense because you'd be suing people for theft when no stealing occurred, even if the people believed they were stealing. If the speed limit is 55 mph, and I think the speed limit is 45 mph and go 55 mph, a cop can't write me a ticket for breaking the speed limit.

Re: no (3, Informative)

ted leaf (2960563) | 1 year,9 days | (#44616187)

here in the uk you can be prosecuted for buying legit gear if you believe it to be stolen. also for buying what you believe are drugs even if its sugar or flour.

Re: no (2)

interval1066 (668936) | 1 year,9 days | (#44617255)

Just another example of how fucked up English law is.

"Contrariwise - if it were so..." (1)

Doghouse13 (2909489) | 1 year,9 days | (#44615999)

I would very much like to see it tried in court. Over here in the UK, I believe that Prenda's position is unsustainable. If they claim that putting the files up conveyed no implicit permission to download them, then their behaviour could well be judged to amount to "entrapment", which is a serious criminal offence in its own right (deliberately setting out to entice people who might otherwise not do so to commit an offence, with the intent of then prosecuting them for it). And if by contrast permission was indeed implicit (and it's not easy to see why a court would find otherwise if Prenda deny entrapment), no offence took place. And, yes, I know courts sometimes hand down contrary decisions based on, or even conflicting with, precedent (and non-legal "logic"). IANAL, but I do take an interest in the law and read quite a bit.

Re:"Contrariwise - if it were so..." (1)

oobayly (1056050) | 1 year,9 days | (#44616755)

If they claim that putting the files up conveyed no implicit permission to download them, then their behaviour could well be judged to amount to "entrapment"

I'm not convinced about the entrapment bit - entrapment requires that somebody is encouraged to commit a crime. In this case they uploaded their content, but didn't contact the downloaders and say "look at this porn, it's free, go on download it, it'll be fine". Personally, I think it's more of a sting operation.

The difficulty is that - for example a bait car - string operation, just because the car has been left with the keys in the ignition it doesn't mean that there's implied consent that the thief is allowed to take it, so one *could* use the same logic and say there's no implied permission here. You could of course argue that by seeding the torrent is encouraging people to download it, but I feel it's more like shouting "look, anyone could drive off with that car" - you're still just giving people the opportunity to incriminate themselves.

And for the record, while I don't condone copyright infringement I don't view it as theft.

Re:"Contrariwise - if it were so..." (2)

cdrudge (68377) | 1 year,9 days | (#44617001)

In this case they uploaded their content, but didn't contact the downloaders and say "look at this porn, it's free, go on download it, it'll be fine".

They didn't contact the downloaders personally and specifically. However if they indeed did posting the torrent on TPB and then continuing to share the content, there was an implicit permission to download it. They are, in essence, saying "look at this porn, it's free, go download it" by they themselves putting it on TPB.

Re:no (0)

Anonymous Coward | 1 year,9 days | (#44616077)

How about: Prenda "broadcast" the videos as a "public performance"?

"The final point at issue was whether playing the stored file constituted an unauthorized public performance of it. The Appeals Court focused on the transmit clause of the Copyright Act, writing, "Although the transmit clause is not a model of clarity, we believe that when Congress speaks of transmitting a performance to the public, it refers to the performance created by the act of transmission."

"Since that transmission is destined for the viewer who recorded it in the first place, it doesn't run afoul of the rules governing public performances."

http://arstechnica.com/business/2008/08/cablevision-wins-on-appeal-remote-dvr-lawful-after-all/

The Cablevision ruling might have opened some interesting doors.

It's not that hard (2)

dutchwhizzman (817898) | 1 year,9 days | (#44616145)

Prenda voluntarily chose to use bittorrent as a method of distribution. This means that they themselves approved of the method and the inherited consequences of distributing content via bittorrent. Not only that, but they made the content easy to find, by posting on well known file sharing websites like TPB. By all means, they wanted people to download this, without even giving them a proper payment method, let alone telling them that the content was copyrighted before they downloaded or simply forbidding downloading before payments were made. This inherently means, that they were knowingly giving away the content for free and promoting this free give-away.

If a fake (police) prostitute is being approached and asked to sell sex for money, the john is committing a crime (in most states/countries). If the same fake prostitute was giving away free blowjobs and advertising this loudly, and later on was claiming that people didn't pay for it and they were committing a crime for a going to a prostitute, I doubt any judge would have to think long about who's guilty here.

Re:no (2)

jonbryce (703250) | 1 year,9 days | (#44616183)

The fact that you obtained the file from the copyright holder is a good defence in court. The copyright holder is the one who decides on what terms you can have it. If they give it away for free, who are you to question it?

Re:no (0)

Anonymous Coward | 1 year,9 days | (#44617505)

From my understanding Prenda didn't own the rights to distribute the material. so they should be fined just like any one else distributing it. and to make things even more interesting apparently Prenda has records of how many people illegally downloaded it from (you know, the people they were suing...) so it isn't like a normal file sharer where they just assume people downloaded it from you because you made it available, they have actual records to prove that they (Prenda) illegally distributed it to others!

Yes (1)

SmallFurryCreature (593017) | 1 year,9 days | (#44616339)

The whole idea about "illegal" filesharing is that if I set up a torrent and you download, I am guilty of infringement because I made it available.

Therefor, if you setup a torrent will material, you CANNOT then claim that those who download it of you, are downloading it illegally from YOU. It is a simple thing called common sense, you can't claim mutually exclusive things to be true.

Either a torrent creator is responsible for making a download available or he isn't.

And smart people then phantomfive HAVE already ruled on this, it is NOT legal to setup up a honeypot for filesharing. If a content owner makes content available for download, by definition the download is legal. Any other explanation fo the law would allow me to claim you stole this post by downloading it and even READING it!!! You pirate! Now pay me the full worth of my post!

Lets see, if all you readers payed me in full and I had a dollar, I would still be 4 dollars short for a cup of coffee.

So: allegedly confirms allegations? (1)

c0lo (1497653) | 1 year,9 days | (#44615485)

Gosh, I can get my mind to "allegedly confirms" or "confirms allegations", but this is a new low: "we allege that the Comcast document confirms the allegations John Steele uploaded honeypots".

Slow news day [slashdot.org] ?

Re:So: allegedly confirms allegations? (1)

Chrisq (894406) | 1 year,9 days | (#44615729)

Gosh, I can get my mind to "allegedly confirms" or "confirms allegations", but this is a new low: "we allege that the Comcast document confirms the allegations John Steele uploaded honeypots".

Slow news day [slashdot.org] ?

You mean allegedly its the new low.

Re:So: allegedly confirms allegations? (0)

Anonymous Coward | 1 year,9 days | (#44615797)

You allegedly mean

fyt

Re:So: allegedly confirms allegations? (0)

Anonymous Coward | 1 year,9 days | (#44616995)

I guess they allegedly allege that the alleged confirmations allegedly confirm the allegations. :-)

But are these traps really illegal? (0)

Anonymous Coward | 1 year,9 days | (#44615517)

I'm pretty sure the feds setup websites with CP to lure pedos to their free candy van (ironic?) as a part of a sting operation. You could technically even have a store that sells candy but they are not pre-wrapped. So technically anyone could steal this candy since it's "just there" much like shop items outside a store's doors. Would it not be illegal to just take those items?

I think John Steele (is that his real name or porn name?) may have not done anything illegal but he surely did something immoral. But again, I know nothing about this kind of law so this is mere speculations.

Re:But are these traps really illegal? (1)

Captain Hook (923766) | 1 year,9 days | (#44615575)

Well the really obvious difference being that CP is straight up illegal and disgusting so sting operations by law enforcement seems reasonable while copyright infringement is a civil matter for most users.

And then of course there is the other matter of FBI being a law enforcement agency and Prenda being a private company.

Finally, for copyright infringement to be considered criminal you generally need commercial gain, if Prenda didn't have the rights to distribute the files then they have gained by their copyright infringement, in fact they are the only people to have gained. If Prenda did have the right to distribute the files then none of the people they have extorted have actually done anything wrong because they weren't using an illegal distributor.

Re:But are these traps really illegal? (1)

Black Parrot (19622) | 1 year,9 days | (#44615631)

Well the really obvious difference being that CP is straight up illegal and disgusting so sting operations by law enforcement seems reasonable while copyright infringement is a civil matter for most users.

I just wonder what it does to the minds of the law enforcement officials who work in that area.

Re:But are these traps really illegal? (1)

Captain Hook (923766) | 1 year,9 days | (#44615741)

I suspect it depends on the individual officer and how he deals with life.

You could view it as dealing with the worst in human nature and let that sour your view of all people, or you could see if as removing the worse of aspects of society and let that give you great job satsifaction.

Re:But are these traps really illegal? (1)

JosKarith (757063) | 1 year,9 days | (#44615773)

I believe the burnout rate is absolutely horrific and any officer who doesn't burn out in 2 years is then cycled into another department to avoid excessive desensitisation.

Re:But are these traps really illegal? (1)

Shinobi (19308) | 1 year,9 days | (#44615967)

Excessive burnout at as someone else points out. Many get depressed, and suicide is more common than among law enforcement that does not have to deal with it.

Re:But are these traps really illegal? (0)

Anonymous Coward | 1 year,9 days | (#44615715)

Well the really obvious difference being that CP is straight up illegal and disgusting so sting operations by law enforcement seems reasonable

It's not reasonable. It is never reasonable. At no point has it ever been reasonable.

Re:But are these traps really illegal? (1)

dadelbunts (1727498) | 1 year,9 days | (#44615579)

Honeypots work in that looking at CP is illegal in itself. I think this makes it legal to download them now. If the copyright holder puts the files up for download he cant really then complain and sue people for illegally download them, as he put them there for download himself. Its like if you go to a swap meet, open up a stand with a FREE STUFF sign, then try to sue people for taking stuff.

Re:But are these traps really illegal? (2)

AK Marc (707885) | 1 year,9 days | (#44615897)

The issue with copyright infringement is that it's copying without permission. If I buy it in a store, I have explicit permission. If I buy it off a sale rack in a store, I have explicit permission. If I buy a stolen copy off the back of a truck in the parking lot, I don't have permission. Now, if I were to buy it off a truck in the parking lot, but that truck is run by the store, I have explicit permission no different than if I bought it off the sale rack. The only difference is that it's being claimed that if I didn't know the truck was affiliated with the store, they can revoke the explicit permission they gave to me. I would claim that estoppel applies. Permission to seed the torrent was given no differently than when I'm absolved of copyright infringement against Activision when my battle.net client is in P2P mode. They started the share and directed me to it. I'm merely participating in what they already started.

Re:But are these traps really illegal? (0)

Anonymous Coward | 1 year,9 days | (#44616093)

These sorts of traps are only legal if they are performed by an accredited law enforcement agency.

Private citizens and corporations cannot perform acts of entrapment and then expect government to step in and apply criminal remedy.

There was no lawful purpose in Prenda uploading the files. They were not using bittorrent as a legitimate distribution channel, and the only goal they had in uploading the files was to cause criminal activity. That is not a lawful purpose. Activities that have no lawful purpose are de facto illegal.

Re:But are these traps really illegal? (1)

jonbryce (703250) | 1 year,9 days | (#44616195)

Downloading child porn is illegal no matter what. Downloading other movies is legal if you have the permission of the copyright holder, either because they choose to give it away for free, eg on hulu.com or YouTube, or they sell you a copy in exchange for some money, eg on iTunes or Google Play.

Doesn't work that way (1, Insightful)

Todd Knarr (15451) | 1 year,9 days | (#44615519)

It doesn't quite work that way. Whether the copyright holder uploaded it or not is in and of itself a minor point. The question would be whether the downloader knew or reasonably would have known that the copyright holder had uploaded it and intended to distribute it. It's perfectly legal for the copyright holder to lay a trap for infringers, and the fact that it's the copyright holder laying it won't get the infringer a pass on the infringement. The only defense you might have is a claim that the copyright holder went beyond just laying a trap and actively induced people to download the files. That's going to take more than just uploading them and passively seeing who downloads them, the copyright holder would've had to go out inviting people to download the files and actively represent the files as legitimate or otherwise OK to download (if they didn't give any indication they were the copyright holder and didn't represent the files as legit, you'd still be seen as being willing to download something you knew wasn't legit without any inducement by the copyright holder).

OTOH, while the above holds true in general, Prenda isn't the general case. With all the shenanigans Prenda and Steele et. al. have pulled, if the only source for the pirated files was uploads by Prenda itself the judge may well hold that no infringement would've occurred but for Prenda's own actions and Prenda can't claim damages that they were the primary cause of. That, though, is more in the way of a sanction against Prenda for the other unethical-bordering-on-illegal actions they've taken in these cases than a defense against their claims. I wouldn't advise depending on it against a less-outrageous plaintiff.

Re:Doesn't work that way (5, Insightful)

Tyr07 (2300912) | 1 year,9 days | (#44615557)

You may not understand how a torrent works.

In order to "upload the files" there is no passively seeing who downloads them.
Downloading a .torrent file itself isn't illegal.

The torrent file links you to someone who has the files in question, and that person actively uploads them to you.

So what has happened is the copyright holder posted a link to their files on one of their computers, and actively uploaded the files to several users, who in turn uploaded them to more users.

Prenda directly uploaded their copyrighted material to users who requested it. This is not a passive function.
This would be the same if you walked into a store, and the owner pulled a book off the shelf, walked out side and handed it to a stranger.
Said nothing, and walked back inside. Then phoned the police and said you didn't have permission to have that book from their store.

Prenda, should they have done this, circumvented all password and user functions to protect their content, and uploaded it freely to those who requested it.
It would be like if you fell on a webpage looking for content, and it started playing in the video box, then they sued you for not signing in / paying for their content.

Re:Doesn't work that way (1)

Anonymous Coward | 1 year,9 days | (#44615751)

There's still the distinction that the people downloading actively chose to download the torrent and they didn't know that it was Prenda uploading the material. So not quite like your scenarios. It's more like offering to sell watches in a dark alley for prices and under circumstances that should make anyone believe that the books are stolen, but actually they are not stolen. Which still shouldn't be illegal, I would think, but it's less innocent than your scenarios.

Re:Doesn't work that way (2)

AK Marc (707885) | 1 year,9 days | (#44615909)

It's more like offering to sell watches in a dark alley for prices and under circumstances that should make anyone believe that the books are stolen, but actually they are not stolen. Which still shouldn't be illegal, I would think, but it's less innocent than your scenarios.

Receiving stolen goods requires that the goods be actually stolen, in addition to obviously being so. If they are obviously stolen, but not in fact stolen, then it isn't receiving stolen property. The same should apply here. They may single out the downloaders and complain about it, but as they gave it away for free, they can't turn around and sue someone for accepting something they were legally given.

Re:Doesn't work that way (1)

black3d (1648913) | 1 year,9 days | (#44616027)

Except, with torrenting, you're distributing without authorization. While they shouldn't be able to nab you on downloading it yourself, as you have contravened any rights of reproduction in taking your copy, you are violating the rights of distribution. Unless, you happen to only download from that single seed and never peer, although if their bots can download it off you, they can already prove you're violating copyright.

Re:Doesn't work that way (2)

black3d (1648913) | 1 year,9 days | (#44616031)

*as you haven't contravened

Re:Doesn't work that way (4, Insightful)

garutnivore (970623) | 1 year,9 days | (#44616151)

Except, with torrenting, you're distributing without authorization.

Torrenting does not amount to "distributing without authorization." Here's a motion picture that was distributed through torrenting by its author from the get go:

http://www.sitasingstheblues.com/ [sitasingstheblues.com]

When I torrented it, I did not distribute it without authorization! And I'd expect posters on this site to know that Linux distros are distributed by torrenting, again, with authorization.

I know that the RIAA, MPAA and their ilk want everybody and their brother to believe that torrent == illegal but we should not swallow their bullshit.

Re:Doesn't work that way (1)

Anonymous Coward | 1 year,9 days | (#44617263)

The problem with that argument is that it is the uploader's responsibility to be aware of how torrent files get distributed. Say you're an musician. If you make a torrent and let people download your music, you cannot complain that the users downloading are also sharing the files amongst each other(P2P). The whole point of torrenting is to get the data to as many hosts as possible, thus increasing the download rate for future downloaders. The torrenting system is *not* a place where the original uploader is the only one distributing the data. That is not a bug or obscure artifact of the torrenting process. That is they key feature!

Irrelevant (2)

Doghouse13 (2909489) | 1 year,9 days | (#44616237)

Whilst the ability of American circuit courts to come up with decisions contrary to obvious and established law never ceases to amaze me, you have things back to front. Except where the intent to do something is itself explicitly an offence (intent to kill, for example), it's NOT normally an offence to simply be aware that you MAY be doing something illegal. The overriding issue is whether an offence actually took place - and that's purely a question of law. Prenda had authority to make the file available, and they made it available with the (undeniable) intent that it be shared. Further, they actively assisted in that sharing. A court might find otherwise - but, in my book at least, that's permission.

Re:Doesn't work that way (2)

gl4ss (559668) | 1 year,9 days | (#44616307)

how were they supposed to know under what license the material was? porn sites routinely upload advert clips to torrent&other sites.

moreover it doesn't really matter.. what you're claiming is that ANYTHING ON PIRATEBAY is illegal because it's on piratebay. WHAT FUCKING KIND OF LOGIC IS THAT?! go fuck yourself, make a video of it and sue yourself.

(the _really_ funny thing is that prenda didn't have the rights to distribute the material themselves to begin with, the copyright holders should have sued them for all they had)

Re:Doesn't work that way (3, Insightful)

Tyr07 (2300912) | 1 year,9 days | (#44616377)

The issue is that there are legit files torrented. PB has been host to them, as the promo bay and so fourth. So since the only distinction between illegally downloading and distributed copyrighted content without authorization is when people without authorization upload the content, then other people download the content and continue to distribute it.

So if an authorized person uploaded content to other users, those users didn't do anything wrong. You can't actively upload files to people and then turn around, sue them saying you're not allowed. If they permitted that then it's not a crime, it's a new business model, and I'll get right on suing you for reading this content without approval or authorization even though I posted it online to slash dot you're not authorized to view it.

Make sense when I put it that way?

Re:Doesn't work that way (0)

Anonymous Coward | 1 year,9 days | (#44615861)

If you go into copyright law trying to use simple analogies to describe the breadth and depth of copyright law you're going to get fucked. I mean it makes perfect sense to me as a person that a possible legal defense could be, "Well if they didn't want us to have it they wouldn't have sat there and uploaded it to us." But in copyright law they're within their legal rights to do what they did. Enter the world of licensing. Do you think you bought that DVD? Sure, you bought the DVD. A piece of plastic with some bits on it. The content isn't yours though, it's licensed to you at the time of purchase.

This grants a couple of favors to the copyright holders. For example, they can take the 'Steam' approach and make access to their product very fucking easy but make the 'bottleneck' the licensing of it. You can download a lot of games for free but have to buy a code to use it, and the code is the 'material' of the license, so to speak. Licenses are really flexible in what they can do.

For example, I can sell Product A that is exactly the same as Product B but costs twice as much in another country and only license it for use there and no whre else. So when you import Product B into your territory to avoid paying Product A prices, you've just violated the licensing agreement. Even though Product B was just laying around over there waiting to be purchased, and no one tried to stop you.

Re:Doesn't work that way (2)

Half-pint HAL (718102) | 1 year,9 days | (#44615881)

I mean it makes perfect sense to me as a person that a possible legal defense could be, "Well if they didn't want us to have it they wouldn't have sat there and uploaded it to us." But in copyright law they're within their legal rights to do what they did. Enter the world of licensing.

Yes, they're within their rights to upload a self-replicating copy to the cloud -- but that's the important bit: self-replicating. They actively made it available in a form they knew would spread.

Re:Doesn't work that way (0)

Anonymous Coward | 1 year,9 days | (#44617059)

So if you write a worm, then you can sue everyone infected for copyright infringement? :-)

Re:Doesn't work that way (2, Informative)

Anonymous Coward | 1 year,9 days | (#44615907)

Actually, the supreme court just ruled otherwise for someone who was doing this with textbooks. Google can give you more details, but basically Person A bought textbooks in mass quantities from out of country, imported them in, and then proceeded to sell at a "discount" to the ones available here for a nice profit.

Re:Doesn't work that way (1)

Tyr07 (2300912) | 1 year,9 days | (#44616473)

Actually no I go to another country to purchase the same item licensed in Canada for more money which is cheaper in the US. The laws we are required to follow, even if the object is only licensed in the US is that we have to pay taxes on purchases depending on our stay.

The laws you're speaking off are for resale purposes, importing for the sake of selling.
You may not be licensed to distribute that product in another country However you may purchase personal possessions in other countries and bring them home.
This is why there is such a huge issue over hardware and license rights, people telling you how you can use the product you purchased.

Licenses for software correspond to the laws of the country of origin and the laws the respected citizens must follow. E.G If you're a US citizen, and your product is licensed in the US, you may purchase it and use it in other countries. The purchase is considered to be done in the US following US laws and taxes given that you're a US citizen.

While visiting the US you're also allowed to purchase software not as a US citizen and make use of the software outside of the country. The sale still happened in the US and governed by US laws.

If you live in the UK or other countries, in order to purchase software you often need a US address with credit card or it has to be set for international sales.to follow the rules correctly.

Re:Doesn't work that way (0)

Anonymous Coward | 1 year,9 days | (#44615891)

More to the point, the videos in question weren't available in any torrent site until after Prenda did this.

Re:Doesn't work that way (1)

Kjella (173770) | 1 year,9 days | (#44616563)

While all of that is true downloading a file doesn't grant you any distribution rights to that file, unlike YouTube where you claim to grant them rights to put it on their site. So Prenda Law could seed the torrent, then start a client to downloads bits and pieces from others and sue them for illegal distribution. It would be against the law, but Prenda Law would fall to the "unclean hands" doctrine because they were actively working to cause the infringement. Consider it a bit like your neighbor having a campfire and you pouring a line of gasoline to your house then suing him for burning your house down. It might be your fire, but they can't help make it happen. That doesn't make it legal though, you don't have a license and you are in violation of the law they just can't claim any damages from it.

Re:Doesn't work that way (1)

Tyr07 (2300912) | 1 year,9 days | (#44616957)

I don't think your analogy is quite right for the gas fire one.

By uploading the actual bit torrent file, that is your permission file. People are unable to download the torrent without that torrent file.
So when you uploaded that file linking it your files, you permitted the connection to download files.

Given the nature of the torrent protocol, you cannot say that I used bittorrent for the purpose of a direct download to users who
directly connected to me only without understanding that during the process due to the nature of bittorrent that
other users would also receive parts of that file from other users.

Re:Doesn't work that way (0)

Anonymous Coward | 1 year,9 days | (#44616683)

> This would be the same if you walked into a store, and the owner pulled a book off the shelf, walked out side and handed it to a stranger.
> Said nothing, and walked back inside. Then phoned the police and said you didn't have permission to have that book from their store.

How about if the person outside is non-white, the book is about bombs and the store owner is working for the FBI?

Re:Doesn't work that way (1)

Raenex (947668) | 1 year,9 days | (#44615563)

Unless you can cite some case law you're just whistling Dixie.

Re:Doesn't work that way (2)

Andy_R (114137) | 1 year,9 days | (#44616927)

Cciting case law about this is pretty easy, provided you know the US legal term for it is "equitable estoppel".

Re:Doesn't work that way (1)

Raenex (947668) | 1 year,9 days | (#44617219)

Which applied to this case would go against the uploaders, contrary to the claims of the person I responded to.

Re:Doesn't work that way (1)

leuk_he (194174) | 1 year,9 days | (#44615675)

Your line of reasoning is flawed.

" The question would be whether the downloader knew or reasonably would have known that the copyright holder had uploaded it and intended to distribute it."

Could also be reverted.

"The question would be if the uploader knew when it published the files on bittorrent, the files would be downloaded."

But without some law i would add: {citation needed}

Re:Doesn't work that way (0)

Todd Knarr (15451) | 1 year,9 days | (#44615969)

Let me ask this: say I've got a contract with you to handle my finances with terms in it saying you won't reveal them to anyone. I hire a private detective to come around and test you, offering you money to give him the details. He doesn't say he's working for me and doesn't give you any reason to believe he's anyone other than some random bloke asking for this. If you give him my financial details and I then haul you into court for breaking the contract, do you think the courts are going to toss my case out? Or are they going to go "You didn't know he was working for the plaintiff, you couldn't've known you weren't really giving the information out in breach of contract, as far as you knew you were breaking the contract."? I think the second's far more likely than the first (barring the detective having done something egregious like threatening your family if you didn't cough up the information).

analogy police. (1)

leuk_he (194174) | 1 year,9 days | (#44616063)

I think you will get a visit from the analog police after this. :)

It is like sueing the detective for getting Data he should not have had, because he knew that data should have been private.

If you put a bone in front of a dog, he will get and eat it. You cannot ask the dog owner to pay up for it. you gave the bone. (analogy : dog: users. dog owner: ipadress registrants, bone... ;) ) If you want to get rid of the analog, please quote law.

Re:Doesn't work that way (0)

Anonymous Coward | 1 year,9 days | (#44615691)

It's perfectly legal for the copyright holder to lay a trap for infringers, and the fact that it's the copyright holder laying it won't get the infringer a pass on the infringement.

Well, it depends on where you live. Some countries make it illegal to incite to an illegal behaviour (like policewomen posing as hookers). So it is perfectly fine for some people to think that if a copyright holder uploaded those, the license to use it was implicit. Now, they'll have to prove they knew the original uploader was a copyright holder, which might be difficult.

Re:Doesn't work that way (0)

Anonymous Coward | 1 year,9 days | (#44615847)

No, you aren't making sense. If it is illegal to incite illegal behavior, you wouldn't have to prove that. If that were true, then in your scenario, the person paying for sex would have to prove that he knew the prostitute was actually a police officer.

Re:Doesn't work that way (1)

Half-pint HAL (718102) | 1 year,9 days | (#44615875)

It doesn't quite work that way. Whether the copyright holder uploaded it or not is in and of itself a minor point. The question would be whether the downloader knew or reasonably would have known that the copyright holder had uploaded it and intended to distribute it. It's perfectly legal for the copyright holder to lay a trap for infringers, and the fact that it's the copyright holder laying it won't get the infringer a pass on the infringement.

Let's use an analogy with physical DVDs/Blurays.

Imagine you sell video discs, and someone comes up to you offering you a bunch of pirated Disney cartoons at a dollar a disc, and they look convincingly genuine. You take the risk. A year later you find yourself in court, and you discover the man that sold you them was from Disney, operating specifically to catch you. At this point, the case would fall apart. Those copies were supplied by disney for redistribution -- there is no crime.

This case would be no different.

Re:Doesn't work that way (1)

Todd Knarr (15451) | 1 year,9 days | (#44615947)

Their case might or might not fall apart, but it wouldn't turn on whether the guy who sold you the discs worked for Disney. It'd turn on how he represented the discs and how reasonable your belief (or lack thereof) that he was a legitimate wholesale distributor was. If he claimed to you that the discs were legitimate and you could prove it (say by having a signed statement from him that he was distributing discs under an agreement with Disney to distribute them), the fact that he did work for Disney and could reasonably be presumed to be able to make that kind of statement would pretty much kill their case. But if he never represented the discs as legitimate, the court would probably look at the price and conclude you couldn't reasonably have believed a legitimate distributor would be selling legit copies for that little. If there were other indications the discs weren't on the up-and-up, like low-quality inserts and non-standard packaging, you'd almost certainly lose.

Re:Doesn't work that way (1)

black3d (1648913) | 1 year,9 days | (#44616021)

I believe your assessment of the determining factor to be wrong. Presumably, he was doing so under the purview of his employment - that being, he was sent out to sell them. Thus, he's authorized to distribute them. No matter what you thought about their legitimacy, if you can prove that his distribution to you was an authorized distribution, then you haven't fallen foul of copyright law. Furthermore, first sale doctrine applies here, and you could sell those same discs to other people (you just couldn't make copies of them). The onus on the prosecution would be to "prove intent to receive stolen goods" (which I'm not certain is even a federal crime on its own, but I'm sure they could get you on some 'conspiracy to commit criminal enterprise' law). However proving that intent would be difficult. You'd have to have very specific audio statements alluding to that. OPs scenario was that the discs appear genuine.

Citation, please. (1)

Camael (1048726) | 1 year,9 days | (#44616033)

It's perfectly legal for the copyright holder to lay a trap for infringers, and the fact that it's the copyright holder laying it won't get the infringer a pass on the infringement.

I too, would like a citation for this.

I've already done the obligatory Google searches, etc and can find nothing to support your view. The only remotely relevant case is the old MediaDefender [wikipedia.org] and that was never litigated (or even got off the ground, for that matter).

The concept of Entrapment [wikipedia.org] , although strictly speaking is limited to criminal liability appears to be somewhat relevant as well.

i disagree (0)

Anonymous Coward | 1 year,9 days | (#44615619)

did Prenda upload them or did John Steele upload them?

And what about everyone else? (1)

Anonymous Coward | 1 year,9 days | (#44615629)

You KNOW some companies are doing this other than prenda.

I've seen more than a few torrents that have a crapton of seeds and peers. Yet everyone says it's terrible and do not download with a very small number of comments.

These oddball torrents really stand out.

Either the original company or some sort of litigation company is doing this. Has to be. theres no other explanation for the unusual popularity of some really terrible uploads.

And on the flipside. How bad do these companies feel when their actual pirated content gets no downloaders... lol. There's a few games that have been in the top 50 downloads, seeds, and peers for a decade! Some companies brand new latest greatest whatever is being beat by a 10 year old game. That's gotta get some panties in a bunch. You're product is so terrible people don't even want it for FREE!

Re:And what about everyone else? (1)

Gaygirlie (1657131) | 1 year,9 days | (#44615721)

You KNOW some companies are doing this other than prenda.

I've seen more than a few torrents that have a crapton of seeds and peers. Yet everyone says it's terrible and do not download with a very small number of comments.

When other companies do it those are usually fakes -- the files contain only noise or black or something like that. They're not distributing copyrighted content, they're just trying to fill the torrent sites with so many fakes that the pirates would hopefully give up and go buy something instead.

Criminal (0)

Anonymous Coward | 1 year,9 days | (#44615689)

If this is true not being able to win the lawsuit is going to be the least of his problems.

TPB... (0)

Anonymous Coward | 1 year,9 days | (#44615693)

Of all places you'd think to have your shit investigated...

Marvel got caught doing the same thing. (2)

arthurh3535 (447288) | 1 year,9 days | (#44615763)

They settled so fast out of court is was not even slightly funny.

Marvel essentially tried to sue City of Heroes out of existence because of its character creator. Then their lawyers decided to get cute and made their own characters with Marvel's IP. (I think it was Hulk, Captain America and a couple others).

The City of Heroes creators proved this and Marvel suddenly settled out of court in a sealed contract.

Re:Marvel got caught doing the same thing. (0)

Anonymous Coward | 1 year,9 days | (#44615859)

Err, NCSoft didn't "prove" anything, making copyright-infringing characters in the character editor was the entire premise of Marvel's case. They provided some as examples but they were open and clear about it. I don't think it applies to this situation.

I've seen this sort of thing before... (1)

ThePromenader (878501) | 1 year,9 days | (#44615835)

...sounds like a 'Charlie's Angels' episode.

Criminals are stupid (well, some are) (1)

gweihir (88907) | 1 year,9 days | (#44615973)

And criminal lawyers are definitely not that rare. Not the first case either, in Germany, a Lawyer called "Sozius" (partner of the self-terminated Lawyer "von Gravenreuth", that made a ton of money pretending to be a helpless girl looking for pirated software), was convicted a while ago because he was one of a gang running a subscription platform for the download of pirated movies.

Well, I hope this person has all the bad stuff happening to him that he deserves.

Copyright? (0)

Anonymous Coward | 1 year,9 days | (#44615981)

I thought p0rn wasn't copyright-able in the U.S, of A. Am I mistaken?

Re:Copyright? (2)

dltaylor (7510) | 1 year,9 days | (#44616213)

IANAL, but, very wrong.

All "creative" works (music scores, music lyrics, movies, TV episodes, static images, on whatever mix of photograph and drawn manually or with mechanical or electronic assist, ...) are all subject ot copyright. Printed circuit digrams and the 3D printer files are also subject to copyright. Even, IIRC, works thats might be illegal in some jurisdiction or other can still have copyright protection.

Shades of Canter & Siegel (0)

Anonymous Coward | 1 year,9 days | (#44616129)

Lawyers with a published and unbought book called "How to Make Money on the Information $uperhighway". Fortunately Martha Siegel is dead, and Larry Canter has been disbarred..... 5 times now?

It's a start on the legal profession.

Honeypot (1)

Anonymous Coward | 1 year,9 days | (#44616283)

I think you mean honeyhole

Arrrrrrg (0)

Anonymous Coward | 1 year,9 days | (#44616553)

Ye Ole Bait n' Switch

Honeypots create copyright confusion (3, Insightful)

tekrat (242117) | 1 year,9 days | (#44617487)

Honeypots should be illegal.

If I am a band and I decide to distribute my music free to anyone that wants it, it's still copyright "my band", but apparently free to distribute. I've given users on the internet an implied license to download and use.

I cannot turn around later and start suing people who downloaded my music.

So, if you are the copyright holder of a porn movie and you set up a honeypot to sue people, your act of uploading the movie creates an implied license for others to download and use.

Therefore you should NOT be able to sue. It seems to me that copyright holders want it both ways; to be able to freely distribute and freely sue anyone they want, whenever they want.

But the real irony is that; once it's on the internet, the NSA has a copy, and good luck trying to sue those guys...

IANAL but I played one in a blue movie ;) (0)

Anonymous Coward | 1 year,9 days | (#44617617)

First off the fact that the copyright holders uploaded DRM video video files means that the DMCA is completely irrelevant. As the copyright holders no copyright protection was circumvented in the process of uploading the files.

There are many site you can get access to DRM free video files with a legit licenses to have that file indefinitely and watch it anytime. These again are not protected by the DMCA, as their is not copyright protection to circumvent. What they are protected by is normal copyright, and the terms of the copyright license is in the T&C of the site. Without any specific license terms it would be concluded the copyright holders are happy for the content to be distributed by the normal mechanisms of the web. So free to download and view from the original website, with the ability to share the link to the file elsewhere, but no automatic right to redistribute by putting it on another website.

In this case the copyright holder has distributed the file by the torrent mechanism for free download. They probably haven't included any license terms anywhere so the conclusion is that it is covered by the normal mechanisms of torrent distribution. Which is that it is free to download and view from the original distributed bit torrent, but not free to redistribute any other way. So downloading the original torrent is OK, a position strengthened if the copyright holder continued to seed the file. Repackaging it as a new torrent file with a new seed etc. would not be OK, nor would it be OK to put it onto and FTP server and distribute it that way.

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