CEO Shawn Hogan Takes on MPAA

IAmTheDave writes "Shawn Hogan, CEO of Digital Point Solutions, has found himself on the receiving end of an MPAA lawsuit claiming he downloaded a copy of 'Meet the Fockers' on Bittorrent. Mr. Hogan both denies the charges as well as claims he already owns the movie on DVD. After being asked to pay a $2500 extortion fee, Mr. Hogan lawyered up and has vowed to challenge and help change the MPAA's tactics. 'They're completely abusing the system,' Hogan says. Although expecting to pay well over $100,000 to defend himself, he claims 'I would spend well into the millions on this.'"

Re:Prediction

[milamber3]

Well, if you bothered to RTFA it seems that the MPAA is doing exactly the opposite. The head of their antipiracy division is openly saying they're looking forward to a trial and verdict next summer.

Re:Prediction

[realmolo]

Yeah, he could countersue, but that doesn't help anybody. Most people don't have the financial means to enter into a civil suit with an organization the size of the MPAA. They have no fear of that.

I suppose he *could* try and get them into court for some kind of criminal offense, but what would it be? The courts so far have no problem with the MPAA and RIAA's tactics, and as far as I know, their extortion-like lawsuits break now existing laws.

Basically, while I appreciate what he's doing, it's not going to change anything.

Re:Prediction

[Mr. Underbridge]

Yeah, he could countersue, but that doesn't help anybody. Most people don't have the financial means to enter into a civil suit with an organization the size of the MPAA. They have no fear of that.

If he got damages it could. It would establish a roadmap if not a legal precedent. If he gets real damages out of the MPAA you'll find lawyers lining up to take clients being sued by the MPAA.

The defendent blogs

[supabeast!]

For anyone who wants to keep up with the story, Shawn Hogan is blogging the story at http://www.digitalpoint.com/~shawn/category/law/ [digitalpoint.com].

Re:Fight the Good Fight

[toad3k]

He's not exactly hiding.

His blog.
http://www.digitalpoint.com/~shawn/ [digitalpoint.com]

Re:Fight the Good Fight

[utopianfiat]

further informative modpoints for:
Relevant posts!!
http://www.digitalpoint.com/~shawn/2005/11/loeb-an d-loeb-mpaa-extortion.html [digitalpoint.com]
http://www.digitalpoint.com/~shawn/2006/04/mpaa-of fers-to-settle-again.html [digitalpoint.com]
http://www.digitalpoint.com/~shawn/2006/06/im-dest roying-the-movie-industry.html [digitalpoint.com]

Re:Extortion fee?

[kebes]

Having the thing doesn't give you a right to download a copy. I've yet to see a respected scholar in the field of IP law say anything like that.

Note that a number of scholars not only say that this should be a moral right, but go further and question the entire notion of "intellectual property" having value to society. For instance, Stephan Kinsella [wikipedia.org] has written against intellectual property [mises.org], and in Brian Martin's book Information Liberation [dannyreviews.com] he simialrly argues against the existence of "IP" [danny.oz.au]. These are but a few examples. In the debate about the "ethics of intellectual property" there are many scholars on both sides.

Perhaps what you meant (although not exactly what you said) was that no respected lawyer would argue that it is legal to download a copy based on already owning a copy. I'm not a lawyer, but it doesn't seem so far-fetched a defence to claim that since you already bought a copy, and could have made a copy for your own personal use under fair-use, you simply downloaded a copy for convenience. If this use doesn't limit the copyright-holder's market, then it may not be judged infringement. At the very least I can imagine a lawyer using such an argument for a client... although of course in the end it's up to the judge to decide the merit of the argument.

Give some support

[viking2000]

Her is /.ers chance to put their money where their mouth is.
You can:
1. Buy their software here: http://www.digitalpoint.com/products/ [digitalpoint.com]
2. Review and recommend their software.

They sell: data wizard, home inspection, isp billing domain management and radius server.

It should not be difficult to drive a few $millions in sales to them.

Consider using this for your own networks:

Name Stalker 1.2
Tool for managing your domains and monitor domains that you want. For Macintosh and Windows

or

Men & Mice Products
3 out of 4 DNS servers are incorrectly setup... find and fix problems with any DNS server. They carry Men & Mice's full line of DNS server and diagnostic tools. For Macintosh and Windows.

Re:You can own meet the fockers in 10 minutes

[Brix Braxton]

Actually I agree with almost everything you are saying. I guess someone should do some kind of write-up to really see if when you buy a DVD you are either A) buying the DVD itself as a product which happens to have a movie on it or B) Buying the product itself as well as a license to play the movie on said product or C) Really just buying a license to watch the movie on the DVD.

What if you owned Meet The Fockers and got a scratch on it - and went to download it from the internet. What if the version of the movie you owned was the extended version and the version you downloaded was the non extended version? What if that non extended version was never on the DVD you owned? I think morally/ethically you are fine - but legally I doubt it.

It's more complicated than it seems.

Re:Prediction

[TopShelf]

But this case doesn't involve him uploading anything. They're going after him for allegedly downloading the flick.

Re:Prediction

[Danse]

They can't drop the case if the defendant files a counterclaim. Or if they do, they're still in court on the counterclaim. If Hogan wants to teach them a lesson, he'll make sure his counterclaim litigates all of the issues they don't want litigated, including some they'd be forced to litigate if they actually took someone all the way to court.

That all depends on what the judge decides to let him pursue. The judge could decide that he doesn't have standing to pursue some issues.

He's Not Trying To Save The World

[tonyr1988]

From his blog [digitalpoint.com]:

One thing that I think people are not understanding here is that I'm not trying to change the world with this. I'm not trying to "take down the MPAA", change any copyright or file sharing laws or anything else as grandiose as that...I've received countless emails/phone calls from people who treat me like the second coming of you-know-who, and just think people are blowing everything out of proportion (obviously).

Re:Prediction

[C-Shalom]

Yeah, he could countersue, but that doesn't help anybody. Most people don't have the financial means to enter into a civil suit with an organization the size of the MPAA

Actually as a plaintiff in a civil suit it doesn't cost you anything to bring forth a case (provided you use an attorney and you don't fire them). This is because if the attorney is willing to represent you, they assume all costs and expenses expecting a return when a verdict is reached in the plaintiffs favor. They then take their agreed upon fee/percentage from the recovery and then deduct the expenses from your portion (exception is class action suites).
The attorney agrees to take your case on the basis that your claim has merits (or they think they can make money (if they're a sleaze ball)). If they don't win or there is no recovery made, they take the loss. If you fire them then they can bill you for their time and expenses.

Re:Prediction

[shotfeel]

Yep. Statutory damages -they don't have to prove they actually suffered any damages.

See Statutory damages for copyright infringement [wikipedia.org]

In the United States, statutory damages are set out in Title 17, Section 504 of the U.S. Code. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court.
Plaintiffs who can show willfull infringement may be entitled to damages up to $150,000 per work. Defendants who can show that they were "not aware and had no reason to believe" they were infringing copyright may have the damages reduced to $200 per work.

Re:You can own meet the fockers in 10 minutes

[Dun Malg]

No, the reason "guilt and innocence" are incorrect is because those are the terms used for criminal trials, and civil trials result in a verdict of "liable" or "not liable". The burden of proof being "preponderance of the evidence" rather than "beyond reasonable doubt" has nothing to do with it.

Re:Prediction

[Lumpy]

Best thing to do is hire a lawyer team that knows how to herd the media well. Fight in court is one thing. fight in the news and in front of the world = really bad things for the target.

Re:Prediction

[Firehed]

Isn't it so convenient that the pirated copies don't include the FBI warning? For the record, it's $250,000 and/or 5 years in prison (unless you're referring to something else). But you're not creating an unauthorized copy either. Getting one, yes, but not creating one. This is more akin to buying a copy from the sketchy guy on the street corner, not stealing one from the store as they'd like to say (nobody else could then go buy that copy you stole). The most you could have realistically done in damages is about $50, and that's if you're a good boy and seed to 100%.

Re:Prediction

[shotfeel]

For anyone interested, Recording Industry vs The People [blogspot.com] keeps an eye on many of the RIAA cases in progress.

Re:Meet the Fockers?

[Astro Dr Dave]

They don't have to. It's a civil case, so the standards are lower than "beyond a reasonable doubt" for determining guilt.

Re:Prediction

[number11]

Actually as a plaintiff in a civil suit it doesn't cost you anything to bring forth a case (provided you use an attorney and you don't fire them). This is because if the attorney is willing to represent you, they assume all costs and expenses expecting a return when a verdict is reached in the plaintiffs favor.

Funny, my recollection is that when I was a plaintiff with a lawyer on contingency, I had to pay all the fees up front. You surely don't think the lawyer is going to take a chance on getting stiffed on the fees, do you?

And that's assuming you can find a lawyer who's willing to take the case on contingency. Who figures the payoff will be large enough so that his 1/3 will pay him well. And who is pretty certain that he will win the case.

Here we have an uncertain case. Can he prove (50%+1) that the MPAA was malicious or reckless? That they had no evidence? And even if he does, what monetary damages have you suffered that they will have to repay? Can he prove it was so egregious that triple damages should be awarded? No, I think you'll be paying his hourly $200, and he'll want a deposit up front (lawyers know how to make sure that they get paid).

Re:You can own meet the fockers in 10 minutes

[asuffield]

And furthermore, civil trials are much more shades of gray. If a person does something that is technically illegal but in practice causes no harm, the verdict will be 'liable' but the judge will apply the minimum sentence (a few dollars and an instruction not to do it again). No judge in the world is going to make you pay the maximum fine for downloading one movie that you've already paid for. They'll probably be pretty irritated at the MPAA for filling their docket with this nonsense; judges are very busy people and get short-tempered with cases that don't accomplish anything.

Re:Prediction

[Strolls]

Defending yourself in court can be a real challenge that would pretty much require making it a full-time job.

It literally became a full-time job for Helen Steel and David Morris in the McLibel case. [wikipedia.org]

The Wikipedia article only says:
... the two had no formal post-secondary school education, and few financial resources. Furthermore, they were denied legal aid by the courts. Although the pair were deemed no legal match for McDonald's enormous legal assets, they represented themselves, receiving much free legal advice, and doing enormous amounts of research in their spare time.
however I recall reading in a Sunday broadsheet at the time that the case dragged on for a couple of years (I think that was just the first case!) and that the two represented themselves in court for 8 hours a day, then spent several hours of an evening preparing their briefs for the next day.

Faced with legal action by a corporate behemoth like McDonalds, there was really no other affordable way to defend themselves, and I am in awe of their commitment - 3 other defendants were named in the initial proceedings, but they retracted the statements in the disputed pamphlet and apologised for its content. I believe that Steel & Morris gave up their jobs as a postman & as a gardener [mcspotlight.org] in because they refused to back down.

IIRC none of the defendants were the authors of the leaflet - the group they belonged to was very ad-hoc, meeting weekly in a pub, and the court case was brought a couple of years after the leaflet had been distributed; Steel or Morris was quoted in the article I read as saying they didn't remember who did write it, as it was only one of many activities the group undertook. This seems to me to quite a reasonable assertion after two years, considering that someone might've only attended only a few of the meetings over a period of a few months - you might well remember faces but be unable to put names to them, and be unable to provide contact details for Mick or Joe.

Stroller.

What are you talking about?

[tacokill]

The article very clearly states that he allegedly used Bittorrent. So...he WAS uploading.

I notice this because I have watched "the scene" for going on 20 years and I have yet to ever see a single case of ANYONE being prosecuted for only downloading. In 100% of the cases, the defendant is accused of distributing copyrighted materials. And distributing = upload. You aren't distributing if you are downloading only. And the (legal) distinction is very very important.

Are you guys paying attention? There is a lesson to be learned here [faqs.org].

Re:You can own meet the fockers in 10 minutes

[LocalH]

Both are illegal in the US.

Re:Prediction

[NewYorkCountryLawyer]

Yes there is a right to jury trial if either party demands it in their pleading. Which is why it's important for people representing themselves in these cases to be sure to put a jury demand in their answer.