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.'"

Prediction

[TheSpoom]

My guess: They'll drop the suit against this guy, but continue to threaten those that don't have the means to fight back.

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

[Anonymous Coward]

That's what one lawyer said, but there is no chance they go through with the case. If they lose then it sets a very bad precedent (from their perspective). $2500 from one man isn't worth opening the door for other challenges, which could happen if they lose the case.

Re:Prediction

[Danse]

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.

That's what they're saying now. Give it a couple months. They'll probably drop it quietly after everyone has forgotten about it.

Re:Prediction

[TechForensics]

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.

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.

Re:Prediction

[TheSpoom]

I must admit, if they do go through with it, it'll be a hell of a lot more interesting than SCO. ;^)

And just like them, they'll have no evidence that proves anything. Whether an IP address from a log from a P2P search bot is enough to convince a judge of the merit of the case... well, that's the interesting part.

Re:Prediction

[TopShelf]

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

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:Prediction

[killtherat]

That makes the assumption that the users at the other end of the transfer were downloading the file illegally. What if they also owned a copy of the movie? They are not the ones on trial. IANAL, but I would think we would have to presume innocence on those other people who have not even had the opportunity to defend themselves in a court of law. The other downloaders are not on trial, just this one guy. And thus, because we must presume their innocence. If they were legally downloading the file, we cannot condemn his actions of uploading the file.

Of course that all assumes that downloading a file to make a backup of something you own is actually legal. I have no idea about the status of that one.

MPAA will abandon this case soon

[SethJohnson]

The head of their antipiracy division is openly saying they're looking forward to a trial and verdict next summer.

The head of the anti-piracy division is given incentives to bring cases to trial, etc. It's the other executives in the organization that will look at the potential costs involved for the MPAA and decide to throw in the towel.

When Metallica sued Napster, it wasn't Lars Ulrich's idea. He's an utter moron. Instead, it was the record label's lawyers who convinced Lars to pony up the seed money to launch the suit against Napster. Because Lars is stupid, he convinced the band to go forward with suing Napster. Other entities hadn't sued because the legal outlook for a victory was doubtful. Metallica's lawyers had a client with more money than brains, so they were able to forge ahead. In a civil case like that, if Metallica were to lose, they would have had to pay their own lawyers AND Napster's legal fees. Same with this case. Either way, Metallica's lawyers would get paid for a lot of hours on the case. Same with the MPAA's lawyers.

In the Napster case, dumb luck prevailed and Metallica won. In this case, I agree with the GP. The business managers at the MPAA are going to see the conclusion pretty soon and throw in the towell on this lawsuit.

The other reason they'll abandon this lawsuit is to avoid the risk of setting a legal precedent. If this guy pushes the case to a victory, then it'll mean the MPAA won't be able to threaten the same legal action against other suspected movie downloaders. Even a newbie lawyer would be able to get these cases dismissed right off the bat by citing the decision in this case.

Seth

Mixed metaphor much?

[Kadin2048]

...tuck our tails between our legs and run away, screaming like little schoolgirls.

Man, I do not want to see what the girls at your school looked like...

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.

Re:Prediction

[pilgrim23]

Lawyers care not one whit the veracity or validity of a claim. The only issue here is one of how long it can drag out to increase legal fees.

Resolving these extortive issues should take place in a system of justice, not require a millionaire being harassed and wishing to fight the good fight. Being dependent on this is more feudal then modern.

Re:Prediction

[tinkerghost]

Actually, I don't think that any of their suits have actually been through the court system. Right now, it seems that they get up to the point of walking through the door & then drop the suit.
The courts can't rule on if their suits are viable/legal until one actually makes it through the door. If it goes to discovery & the courts uphold that they can't use the name/IP due to improper search/seasure then they're screwed.
Failing that, they have the preponderance of evidence - I think I would pass out the latest figures on botnets, along with reports of Govt/military/police 'puters being botted. "Latest reports indicate 20% of computers connected to the internet are vulnerable to remote control via malware, can **AA show mine wasn't controlled at the time of the alleged violation?"
Have the **AA bothered to track MAC addresses to show if there was an instance of IP spoofing, or simple IP overriding?

Re:Prediction

[Dan Ost]

If there is an established pattern of dropping the case at the door, then
perhaps some state attorney general could bring up charges against the RIAA
for extortion/racketeering.

Re:Prediction

[Squalish]

They're filing civil lawsuits, which are a different legal category than crimes here in the US. One key: Civil law goes on preponderence (51% convinced = hold the defendant liable), so a mere 'reasonable doubt' that you were using your computer is not a defense. They just have to convince a judge that you probably were, rather than proving it.

Re:Prediction

[tinkerghost]

The only evidence they seem to have is that they have screenshots of P2P software showing a time and an IP address, and the word of the ISP that at that time/date the IP address was assigned to my account.
I suppose that's nice, but it would take me 10 minutes to make a screenshot showing the whitehouse.gov web server sharing kiddy porn.
The other issue is that they don't just have to convince a Judge that it's a preponderance of evidence, they have to convince a jury. Given some of the behaviours of RIAA & MPAA, they might have a hard time convincing a jury that pissing into the wind is a bad idea. Add in the hysteria over bots/virii/trojans etc, showing that even pros like the military can't keep their systems clean may be enough there to point a jury to the conclusion that if I say I didn't do it, and **AA can't show anything else but that 'perhaps' my PC was involved, then they really don't have a preponderance.

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.

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: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

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

Re:Prediction

[jZnat]

They're worried about how you'd have to pay your lawyer by the hour, and the MPAA could afford to drag the case on and on while you go into debt paying your lawyer with little or no hope of getting that money back from the MPAA.

Re:Prediction

[mrxak]

The discovery process is itself going to be highly damaging to the MPAA as they will inevitably reveal methods they would rather keep secret.

That's the real hope here in Shawn Hogan defending himself. The problem though is that if the MPAA simply drops the charges, the general public doesn't win, and the MPAA will just go find someone else to extort $2500 from. But hey, maybe there'll be some media attention from this, at least.

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 i

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

[TheSpoom]

IANAL.

It's very difficult for lower classes to participate now. They can get a public defender if they're brought to criminal court, but not in a civil suit. They'll have to hire a lawyer. In addition, the MPAA knows that drawing out the suit as long as possible is in their interest, and will attempt to do so, until the defendant is simply out of money and can't affort to pay their lawyers any further, forcing them into a settlement.

Re:Prediction

[voice_of_all_reason]

No, I meant you defend yourself.

With a reasonable amount of study on basic law, it shouldn't be that hard at all. Weren't courts around before lawyers?

Re:Prediction

[Kadin2048]

I think there's a real risk that if you tried to represent yourself, a team of RIAA suits would be more than capable of just burying you in procedural minutiae, or wait until you slip up and make some sort of unfortunate mistake yourself and then get a summary judgement. You'd have to have a judge who was really on your side, and a lot of judges don't take too kindly to people who represent themselves, because they think it makes the trial take longer and thus wastes their time.

The entire system is based around how many cases they can grind through in a week, not how fair or right the outcomes are. If you're perceived to be slowing things down, you'll have no friends to help you.

The only self-represented, successful civil suits I've ever heard of is where the issue was really clear-cut: the other people were really evil and totally unsympathetic. While you and I might think the RIAA fits that bill, they might be able to pull off "artists rights" in the courtroom and make you look like the bad guy ... and then it's just a matter of the judge yawning as they procedure you to death.

Re:Prediction

[Vengie]

Courts afford ridiculous leeway to pro se litigants. For an example case, look at Dioguardi v Durning, 139 F 2d 774 (2d Cir. 1944)

"In his complaint, obviously home drawn, plaintiff attempts to assert a series of grievances against.....the complaint was dismissed by the District Court, with leave, however ,to plaintiff to amend..."
"Thereupon plaintiff filed an amended com-plaint, wherein, with an obviously heightened conviction that he was being unjustly treated, he vigorously reiterates his claims...."

Re:Prediction

[Skynyrd]

Courts afford ridiculous leeway to pro se litigants. For an example case, look at Dioguardi v Durning, 139 F 2d 774 (2d Cir. 1944)

If I'm reading that correctly, it was over 60 years ago. I'm guessing that things have changed.

Do you have a different example?

Re:Prediction

[Omestes]

"A person who represents himself has a fool for an attorney"

A truism. Law is such an intricate and complicated (conviluted) system that the average lay-person has no chance at understanding all of the precedents and oddness that is in law. Law is not for the people, it has long ago transcended "common law", and has become complicated for its own sake (if it was simple, lawyers would not be able to get rich, and thus it is in the law makers interest to keep it inaccesable).

Even simple matters can quickly become lost in rhetorical complications (you are in violation of statuate 12, sub-clause 14, paragraph 2, line 3, word 142).

Re:Prediction

[mattyrobinson69]

>Even simple matters can quickly become lost in rhetorical complications (you are in violation of statuate 12, sub-clause 14, paragraph 2, line 3, word 142).

I did not snog a llama

Re:Prediction

[voice_of_all_reason]

Simply put, the Army and their suppliers are still reasonably loyal to the chain of command. (While Halliburton the company is making alot of money, Joe in accounting, not so much)

When and if the "war on terra" depletes their morale enough is the only time armed insurrection stands a real chance of success. To go on a geek tangent, one of the major reasons the Star Wars Rebellion defeated the Galactic Empire was due to the X-wing and Mon Calamari Cruiser engineers' defection.

Re:Prediction

[eric76]

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

One problem is that you have to deal with all kinds of procedural issues, most of which are well known by the lawyers, but not by the rest of us. Failing to file the proper papers or filing after a deadline can seriously damage your case. If you fail to bring up the proper arguments at the right time, you may not be permitted to bring them up later.

In other words, when you hit the ground, you have to hit the ground at full speed instead of feeling your way along.

The legal system is designed for the perpetuation of lawyers, not to arrive at a just outcome.

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

[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.

Don't vote for lawyers!

[SonicSpike]

This problem is the result of electing attorneys to public office, specifically legislative positions. Lawyers want to make themselves as much work as possible, and by complicating procedures, increasing legalese, and promoting litigious liability, an attorney is now needed to do pretty much anything other than to paint your house. It is insane.

Read the US Constitution sometime. It is written that any layman can understand it. Now go and read any piece of modern legislation. It is NOT as clear!

Re:Prediction

[schnell]

No, I meant you defend yourself. With a reasonable amount of study on basic law, it shouldn't be that hard at all.

Describing an intellectual property civil lawsuit against people with law degrees and years of experience like this may just be a little cavalier. Let's try a little substitution here and see how it sounds:

No, I meant fix your transmission yourself. With a reasonable amount of study on basic automotive engineering, it shouldn't be that hard at all.

or:

No, I meant perform a root canal on yourself. With a reasonable amount of study on basic orthodontics, some local anesthesia and a mirror, it shouldn't be that hard at all.

Re:Prediction

[KingSkippus]

Can someone explain this overwhelming opinion in every RIAA/MPAA lawsuit thread? I'm sure the fee for filing a lawsuit itself isn't too high, otherwise the lower-classes simply couldn't participate. Assuming you don't have/need a job, what's preventing you from defending yourself?

The plaintiff has to prove his point with a preponderance of evidence. I don't think they'll do that with just an IP address and a log from azureus.

Because it's not as simple as going down to your local courthouse and saying, "Hey, I'm not guilty!

They're not suing you in your home state. They're suing you on the other side of the country, where one of the packets may have passed through. Live in California? Hope you can afford a trip to Vermont. Live in Alabama? Hope you don't mind driving to Washington State.

Oh, by the way, if you don't travel across the country and bother showing up at the appointed date and time, the judge issues a summary judgement against you. You lose, and instead of owing them $2,500, you now owe them everything they asked for, including attorney's fees, filing fees, your-nose-is-too-big fees, everything. It will end up being dozens of thousands of dollars, maybe even six figures. Your paycheck will be garnished. Your credit will be ruined. Forget ever being able to buy a car again, you'll be lucky to be able to buy food. (But that's okay, because no insurance company would ever carry you, anyway...)

But let's say you do make the trip and show up. Now their lawyers file all sorts of motions to keep the case in the courts at least several months. Didn't you know that you'd pretty much have to live wherever it is they're suing you now? Of course, you can just hire a lawyer to represent you, but guess what, they ain't cheap.

So you travel across country, get an apartment, hire a lawyer, and win your case. Guess what. Now they'll appeal the decision, and you get to repeat the process all over again. Then, they'll sue you somewhere else for another song, and you get to do it yet again.

You get the idea. It's not called extortion because it's easy.

This guy has the right idea. The only way to stop this crap is to suck up the expense, get a one-time final ruling on the issue, and then everyone can just hire a lawyer on the cheap to say, "There's the precedent, please uphold it." And for his willingness to go through a lot of time and expense so that the rest of us don't have to, I salute him. I hope he starts a legal defense fund, because I'd be willing to pitch in to help.

Re:Prediction

[MBGMorden]

"Defending yourself" in court isn't as easy as it seems. That's kind of like telling some random guy on the street that if he works out for a few weeks he can go into the ring with a professional boxer. If you were in shape to start with (or in your example, relatively smart and educated), you MIGHT be able to pull off a win, but 99% of the time you're going to have your ass handed to you.

I wonder...

[Linkiroth]

Does he call his team of lawyers "Hogan's Heroes"?

Fight the Good Fight

[eldavojohn]

I personally would like to extend a helping hand to Shawn. If he wants to take this to court, I would like to pay him a simple $10 through Paypal for fighting the good fight. I've given the same donations to Slashdot and many many opensource projects (especially those on SourceForge) that have made my life easier.

I would like to live in a world where I'm not worried about some organization of rich bastards strong arming citizens out of hard earned cash. There have been several cases so far where people have been charged with little or no evidence. The methods by which they obtain their evidence is even shadier.

If you're reading this, Shawn Hogan, please leave some contact info so we can donate small sums of money to aid in your defense.

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:Fight the Good Fight

[PMuse]

http://www.digitalpoint.com/~shawn/

Man, you can't BUY publicity this good.

Although expecting to pay well over $100,000 to defend himself, he claims 'I would spend well into the millions on this.'

Er, well, I guess you can.

Donations here:

[Ahnteis]

http://www.eff.org/ [eff.org]

That's the request on his blog anyway -- he doesn't need the money, so if you want to donate, send it to eff. They'll be happy for it. :)

That's Not What I Want

[eldavojohn]

I admire your generosity, feel it is a little misplaced. I think he can afford to defend himself. It seems to me that you would be doing much more good by finding some regular joe that lives from paycheck to paycheck that is being harrassed by the MPAA or RIAA and donating to their defense.

I don't think it's misplaced. Every case I've seen so far has been from someone folding under the MPAA or RIAA. I don't want to support that. I don't want to support money that came from an out of court settlement. I want the justice system to take a look at itself and really reconsider what the MPAA is doing to people. I want judges to stop handing out fines because the MPAA lawyers tell them the right things. I want to support the people that stand up to it. I don't care if he's a CEO or peon grunt with no cash, I'm going to support the person pushing for reform. I'm not going to support the person who just pays the obscene fine because they want to avoid the trial and lawyers. I want to support this guy if he's willing to bring the lawyers and cast doubt on the MPAA.

class action

[192939495969798999]

The point is that if he can force something like a class action, then maybe we can all jump in and get some cash back from the MPAA, even if you don't have enough money to defend yourself.

Re:class action

[dr_dank]

Yes, so the lawyers walk away with ungodly sums of money and the settlement class gets a shiny nickel. I'm all for the MPAA having to cough up, but I cringe when I think about who that directly benefits and who gets next to nothing.

Re:class action

[Doctor Memory]

I cringe when I think about who that directly benefits and who gets next to nothing.

Hey, if somebody beat up the bully who was stealing your lunch money and took his bike, iPod and cell phone and left you whatever you could scavenge from his backpack, would you really mind? He got his, and you got something, and he won't be bothering anyone anymore.

MPAA's reaction

[Anonymous Coward]

One of the MPAA's executives was quoted as saying, "HooooooGAN!," while holding onto his monacle.

Not gonna happen

[BigNumber]

He won't get a chance to 'defend himself' unless he decides to counter-sue. The MPAA will simply drop the case and move on to a less aggressive victim.

Re:Not gonna happen

[Elsimer]

http://www.zeropaid.com/news/6466/MPAA+v+Shawn+Hog an:+The+Zeropaid+Interview [zeropaid.com]

According to the interview, he's decided to force the issue into court no matter what the MPAA does:

CH: So your position is that you aren't going to settle and that you didn't do anything wrong?

SH: Yep. At this point they have pushed me enough to where I'm going to do whatever I can to keep them from dropping the case. I can't prevent them from dropping it, but I am going to try and force them to go to a full trial. Basically, my lawyers aren't even going to file a motion to dismiss.

CH: That would be great, it would have to be pretty embarrassing for them to go to a full trial that ends up clearing you completely.

SH: It will set a precedent for everyone else, that's the whole point. Between the RIAA and the MPAA it's almost 20,000 people that have settled. All John Doe lawsuits, not a single one has gone to a final judgment. All these people settling for basically what adds up to extortion, I want to put a stop to it. At this point, I don't care what it costs. If they drop it, I will find something to counter with to keep it in court.

Re:Not gonna happen

[mrsev]

One correctly spelt word: barratry.

Re:Not gonna happen

[SatanicPuppy]

"An unlawful act or fraudulent breach of duty on the part of a ship's master or crew, going against, and in conflict with the interests of the ship's or cargo's owner. For example; selling cargo and susequently claiming it was lost at sea."

Nah, it wasn't lost, it was those damn pirates

Seriously, however, you hardly ever see action against cases of barratry actually succeed. How often have you seen those damn class action legal commercials, soliciting victims of this industrial byproduct, or that drug that causes liver failure? Those are just sophisitcated barratry, yet you see them year after year.

Like most laws of it's kind, it's generally used by big business against individuals. It'd be interesting to see it done the other way, but I'm not holding my breath. Say what you will about the RIAA...It is copyright infringment that they're suing people over, and that is against the law. Their data collection methods are hugely unreliable, but they'd have to be proven negligent in court for that to even weigh for barratry.

Meet the Fockers?

[Poromenos1]

No wonder he doesn't want to admit to downloading it, that movie sucked! I bet he doesn't even have the DVD.

Re:Meet the Fockers?

[Junior J. Junior III]

I don't see how ownership of the original media serves as "proof" that he didn't download it.

Besides, with BitTorrent, you upload chunks of the torrent even as you download the file. What if he didn't download the .torrent of MtF, but rather seeded a .torrent of the ISO of the DVD he ripped?

What if he purchased the DVD after viewing the downloaded torrent? It's still an unauthorized distribution of a copyrighted work, even if it did end up resulting in a sale that benefits the Plaintiff... if they want to sue because to them the principle of control is more important than the short-term profit of a unit sale, who are we to question such prioritization?

Re:Meet the Fockers?

[zakezuke]

Besides, with BitTorrent, you upload chunks of the torrent even as you download the file. What if he didn't download the .torrent of MtF, but rather seeded a .torrent of the ISO of the DVD he ripped?

I could be wrong but I think it's possible to throttle your upstream to 0. Whether this will actually "work" on bittorrent is beyond me.

I don't see how ownership of the original media serves as "proof" that he didn't download it.

The claim is he didn't download it, he bought it. Why would you bother to download

Re:Meet the Fockers?

[evilviper]

I don't see how ownership of the original media serves as "proof" that he didn't download it.

It's not "proof", but it's certainly a nice bit of evidence to support his claim.

Besides, you don't seem to realize that DOWNLOADING FROM A P2P NETWORK ISN'T ILLEGAL ON IT'S OWN... If he OWNED the movie already, and decided to download a BACKUP copy of it, HE HASN'T DONE ANYTHING ILLEGAL AT ALL.

you upload chunks of the torrent even as you download the file.

Good... Then let the MPAA just TRY to PROVE that someone w

It casts doubt on the MPAA's claim

[Sycraft-fu]

If I own the full DVD, why would I download a rip that is of reduced quality/content? I already have the whole thing. He doesn't have to prove anything, he just has to convince a jury that he's more right than the MPAA is. In this case, it means he has to cast enough doubt on their arguments that a jury finds they are without sufficient merit. Well, one of the ways is to show he owns a copy of the movie in question. A normal person is going to wonder why he'd download something he already owns.

Remember this isn't a case of the MPAA having iron-clad proof and him having to find a technicality out of it. this is a case of the MPAA having exceedingly weak evidence, and him just having to provide a perponderance of counter evidence. He (or rather his lawyers) are going to do that by throwing out every thing that makes the MPAA's case look bad. They'll question the veracity of the logs, the credibility of the company that found this (the MPAA contracts it out) the reliability of the information from a BT tracker, the ISP's records, and so on. They'll do everything they can to make the jury doubt that he downloaded the movie and that includes pointing out the fact that he already owns a copy.

Or rather, I should say they would if this ever goes to trial, which it won't. The worst thing in the world that could happen to the MPAA/RIAA with these shotgun lawsuit tactics is for someone to fight and win, espically in a high profile case. That establishes case law which establishes precident. Makes subsequent defenses much easier since people can just point back and say "Well the court found that the logs presented in case X were insufficient so the same thign should apply here." Courts have a lot of respect for case law.

What will happen is the MPAA will talk tough while it's in the spotlight, and then once the public has forgotten, they'll drop the case.

Re:Meet the Fockers?

[aqfire]

Your 'what-ifs' are interesting ideas... but according to him, he didn't download the movie. So, unless you can prove otherwise, I think he has a pretty valid case. Stating that he owns the DVD doesn't serve as proof that he didn't download it, but it seems to eliminate the incentive, don't you agree? Anyone with enough money to fight the MPAA's lawyers has enough money, and probably enough sense, to buy the DVD instead of downloading it.

Re:Meet the Fockers?

[Junior J. Junior III]

The claim that he already owns the DVD is a claim. It doesn't refute any evidence (if any) that the MPAA may have, though. If they have server logs from Hogan's ISP, or from some server he allegedly downloaded from, and those logs can be established as reliable, which is itself fairly doubtful, owning the DVD isn't going to do him a bit of good.

One can certainly download a DVD that one also happens to own. If the police arrest me for auto theft, pointing out that I already own a car won't by itself get the prosecution off my back, especially if they have evidence that indicates that I may have allegedly stolen a car.

The argument that taking any car that I happen to like and using it as my own ought to be the law of the land also is not going to work as a defense.

Neither will the argument that cars are too damn expensive and car companies are greedy.

I'm not a fan of copyright or of the MPAA, but beating them takes better arguments than this. Mr. Hogan may well get the case thrown out of court, and if he does more power to him, but even if he wins this case there's still a host of larger issues that will remain unaddressed.

Preferences

[Spytap]

I'd much rather him take on the RIAA as they seem to be the more aggressive of the two when it comes to extortion schemes. The MPAA, for all it's faults, doesn't seem to be as gleefully entertained by the prospect of suing the pants off of everyone.

Re:Preferences

[John Hasler]

> ...ruling swill...

That's a mighty fine typo.

Give 'em hell

[10100111001]

On behalf of the little guy everywhere... Give 'em hell, Shawn.

the unfortunate reality...

[Churla]

Once he really shows some fight in him they will drop it and it will vanish.

The more I see of their operations the more I think the MPAA and RIAA operate very much like local traffic cops. They want to give lots of tickets, and specifically to the people who will just pay the fines and move along. Then hoping that the "watch out, you could get a ticket" mentality will help them get the desired end result.

On the other hand, if he effectively counter sues for defamation of character and/or some other damages done to him by their abusive litigation practices and sets a precedent for others it could open some doors. But then it's still up to others to get lawyers to do it. Make it where the counter suit is profitable enough and lawyers could start making money on the shark-like "we only get paid if you get paid" approach. But you have to put enough blood into the water to draw them out.

Re:the unfortunate reality...

[defile]

On the other hand, if he effectively counter sues for defamation of character and/or some other damages done to him by their abusive litigation practices and sets a precedent for others it could open some doors.

How do you even begin to quantify the damage done to his reputation? He's got Meet the Fockers on DVD! And now the whole world knows about it!

Re:the unfortunate reality...

[91degrees]

They want to give lots of tickets, and specifically to the people who will just pay the fines and move along. Then hoping that the "watch out, you could get a ticket" mentality will help them get the desired end result.

I'd like it if this was the way it worked. If there was an affordable but annoying cost to piracy (say $50-100), and easy means for the industry to obtain it, and an easy way to appeal against it, then piracy would be discouraged, the media cartels would be able to fund their anti-piracy

Oops!

[BarryLoper]

Looks like they accidentaly picked on someone who's got some money. Don't you hate it when that happens?

For those...

[sogoodsofarsowhat]

that say that the MPAA will just drop it and move on. I dont think you understand...this guy has the means and it only takes one like him to make the fight stick. I know that when a guy like this decides its worth MILLIONS of his own money hes pretty determined to see it through. I hope he c0ckpunches these a$$hats but good!

Re:For those...

[scovetta]

Thanks for the new sig, dude!

This will not go to court.

[91degrees]

Unless the MPAA are 100% certain that they're going to win. They don't really believe that a pirated movie costs them $2500. They do know that these threats have a huge effect as a deterrent. If they lose the case, they'll lose the deterrent. If they drop the case (after costing Mr. Hogan a modest amount in legal costs), they'll retain the deterrent.

In what way is it in the MPAA's interest to see this all the way to the court?

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].

Standard of proof?

[quokkapox]

What is the standard of proof required in cases like these? Have any actually gone to trial? My understanding is that a British ISP basically told the European equivalent of the MPAA/RIAA to GTFO unless they could provide convincing evidence of the accused users downloading specific files at specific times. I've also heard that all the basically have is a screenshot of the "infringing content" along with a hash of some sort. That's not enough to convince me if I were a judge. The hash could be the result of a collision. On some of these networks you can try to download something called "ubuntu-5.10-intel.iso" and end up with an infringing copy of "Meet the Fokkers" because the filenames can be changed. If he had wifi, maybe his network got cracked. Maybe he was running a tor exit link. All of these establish plenty of doubt as to whether he actually deliberately downloaded anything.

Go Shawn Hogan. Get these crooks to tell us "Where's the proof?"

There's another very ugly side to this coin

[bberens]

What if he loses?

Then the judge tells him how much he owes the MPAA

[Secrity]

I am not a lawyer and this is a civil case, not a criminal case. The MPAA does not have to "prove" their case, both sides present the facts as they know them to the judge or jury and the outcome is based upon "preponderance of evidence". The whole winner/loser can be a sliding scale. If the judge or jury rules in favor of the MPAA, he would have to pay whatever the judge or jury deems proper.

                Of course the MPAA is going to try to show that they should be awarded beaucoup dollars -- an amount that is guaranteed to make normal people shit all over themselves. It is entirely possible that the jury could rule in the MPAA's favor and then award the MPAA one dollar. Even if the MPAA prevails, unless the MPAA were actually awarded a HUGE sum of money, it is hard to tell if the MPAA would gain any sort of pysychological or legal advantage in subsequent cases.

Attorney's fees

[LuminaireX]

Although expecting to pay well over $100,000 to defend himself, he claims 'I would spend well into the millions on this.

Is he kidding? If he wins he's obligated to seek reimbursement for his attorney's fees.

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:Give some support

[crabpeople]

got a torrent?

I hope English is not your first language.

[windowpain]

If your native tongue is other than English, then ignore this. But if you're a native English speaker you should have proofread your piece before posting it. "Mr. Hogan both denies the charges as well as claims he already owns the movie on DVD." What you wrote says that Hogan denies that he owns the movie on DVD. The article says Hogan says he does own the movie on DVD. So you should have written something like "Mr. Hogan denies the charges and claims he already owns the movie on DVD."

And please, save the "grammar Nazi" posts. If you can appreciate that writing clear code is worthwhile you should agree that expresssing yourself well in English is also worthwhile.

The obvious quote

[Opportunist]

Fessing up to the RIAA claims: $2,500
Fighting the suit: $100,000
Good PR and being the hero of the DRM-free world:

No, I'm not finishing this, I don't have the money to fight out the ensuing Mastercard law suit.

Men & Mice

[Kenja]

I allways liked the DNS servers that his company sells. May have to see about getting a current copy for my office.

Or wait, I used to have a license. So I can just bittorrent a new copy, right? Kidding of course.

Is the situation as clear cut as it seems?

[cwsulliv]

My understanding of BitTorrent is that different chunks of a download are routed to and temporarily stored for retransmission on the PCs of a number of individuals who have BitTorrent software running, but with each chunk being encrypted so that an individual has no idea of what's passing through his/her PC.

It would certainly seem that the MPAA would view BitTorrent as a major threat that needs to be cut off at the knees in its infancy.

Could it then be that Hogan's PC was just one of the first in line to the source of the movie, a PC operated by one of the MPAA's stooges, and that the MPAA is trying to establish a legal principle that any participant in a BitTorrent network is guilty of contributory infringement if any chunk of a copyrighted work happens to pass through their PC on its way to the ultimate destination? I.e., that BitTorrent is not the same as a Common Carrier - that participants are responsible for infringement even if they're unaware of it and have no way of becoming aware of it?

If so, then to establish that legal principle they'd have to pick on an individual who was willing and able to defend himself through an expensive court case to its conclusion.

But then this may all be unwarranted speculation and the MPAA just happened to pick on the wrong guy. I guess time will tell.

Re:Extortion fee?

[PrescriptionWarning]

Okay? Having the thing doesn't give you a right to download a copy

why not? its just the same as backing it up yourself, only someone else did the hard work for you.

Re:Extortion fee?

[Rydia]

Because distribution is a (very important) aspect of copyright. You do not have a right to distribute copies of what you have to anyone without permission of the copyright holder. There are exceptions, but getting something through bittorrent destroys the small number and familiarity requirements (remember, you're simultaneously uploading). Both the letter and spirit of the law that allows copying requires the "fixation" of the copyrighted work to be done by the person copying it, otherwise the sytem is wid

Re:Extortion fee?

[Known Nutter]

That's not the extent of the issue. Exposing the methods used by **AA to gather this "evidence" is equally important, and the legality of these methods deserves some scrutiny.

Re:Extortion fee?

[voice_of_all_reason]

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.

They wouldn't have to. In this country, the person bringing the suit/charges is supposed to prove THEIR point. If they can't do that, you can come to court and draw funny pictures all day if you like -- they (shouldn't) win.

Re:Extortion fee?

[The Rizz]

Otherwise get ready for gigantic taxes, because we'd need 100 times as many judges, clerks, sheriffs to carry the workload.

On the plus side, this massive increase in taxes would probably cause a backlash, and the public might actually demand simpler and clearer laws so this mess of a legal system would work more efficiently.

--The Rizz

"Bulls do not win bull fights; people do. People do not win people fights; lawyers do." --Norman Augustine

Re:Extortion fee?

[Rydia]

People seem to say that him saying he owns it already is rebutting the fact that he downloaded it, rather than the fact that he was justified. Not only does it serve both purposes, he would be crazy to argue solely justification if he wants to win. Just as you can give multiple forms of a claim in the complaint, you can give multiple forms of defense against that complaint. So he is saying:

With regard to the charge of copyright violation,
(1) I did not do it, as evidenced by my ownership of a legally-obtained copy of the movie in question;
(2) Or in the alternative, I did download the copy, but since I own a legally-obtained copy of the movie in question, my infringement qualifies as fair use and I was therefore justified in downloading it

And, as I said in one response, court isn't just going in and flinging things at a jury, trying to convince them. The jury is given the law and has to apply what happened to it. If the instructions say "If he downloaded a copy from the internet he violated copyright" with no other instruction for a fair use defense, the jury is generally going to say he's in violation, regardless of whatever "The Man is out to get you" idea his lawyers get in through argument.

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.

Re:Extortion fee?

[91degrees]

Er. Owning it does give you the right, seeing as you've already paid for it.

Morally, but not legally. Copyright law gives the copyright owner exclusive rights to control copying. Fair use offers some exceptions, but the exceptions are limited. It generally doesn't include downloading from the internet and most certainly doesn't include uploading.

Re:You can own meet the fockers in 10 minutes

[punkr0x]

Guilty until proven innocent, eh? I'd like to hear what proof the MPAA has that he downloaded this movie, before I worry about whether or not it was legal of him to download it. The "ownership" is far from irrelevent... it's him saying, "Look, I already bought your damn movie, what motive do I have to download it?" He has no burden to prove he bought it, they have to prove he downloaded it.

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: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

Re:You can own meet the fockers in 10 minutes

[Adrian Lopez]

Also - just because you own a particular brand of car stereo doesn't mean you can go out and steal it too.

I wish people would stop drawing such ridiculous analogies. You can't steal a copyrighted work by making a copy of it anymore than you can steal a person's soul by taking their picture.

Re:You can own meet the fockers in 10 minutes

[LocalH]

Both are illegal in the US.

tangable product?

[NotQuiteReal]

If his company offers a tangable product...

Nah, it's all software. Look around you might find a torrent of it somewhere.

Re:score one for the little guy

[tomjen]

Is being a big guy evil? If what his company sells is a product or service brought/used and therefore paid by people who want it does that make him evil? Sure if it is done trough shaddy tactics then he is evil. But not all rich people are evil.

As for this he is battleing the MPAA - and has the finances to do so, let him and give the MPAA hell. Yes it would be better if the little guy could afford it, but so is unfortunetly not the case, so be happy that somebody is.