This seems to be the place in the replies for calm and cogent responses, so I will pick up the thread from where debrain's thoughtful analysis leaves off.

>"And such information is not necessarily confidential; accident reports and police records may also identify the driver." True, but what does this have to do with anything?

There are a couple of angles here, but judicial economy is one. The idea is that there are certain rules that are in place to make the judicial process more efficient. Here, the judge could be arguing that the name of the actual driver will inevitably come out anyway, either from police reports or the rental car agency giving the driver up so that liability shifts to him. Given that the disclosure of this nonconfidential information is inevitable, let's get on with it and save everyone a lot of time and money.

By contrast, disclosure of confidential customer information is not inevitable so it is appropriate to observe the details of process.

>The question is: given a certain probability that a company's customer is guilty

That is not a given. The factors that would let one estimate the probability that there was even wrongdoing in the first place, let alone that a specific person committed the specific wrong, come out during discovery and trial. The subpoena in question is coming before any of that.

>If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public

Their identities became public through the same judicial process being invoked here. Because we live in a system of precedent in which persons similarly situated are supposed to be similarly treated, the judge's statement is directly relevant.

>For a court to take a plaintiff's case against a given defendant seriously, they [sic] just have to believe that there is a reasonable probability of the plaintiff winning.

That is often necessary but never sufficient. A predicate inquiry in every legal question is jurisdiction. Doe the court have jurisdiction over the people involved? Here, the judge is saying that he has no reason to believe that his court has jurisdiction over the Doe defendants.

>But there is no reason to think that in the case of these entities, there would be any more "disconnect" between the actual infringer and the user on the network that the IP address had been assigned to.

A recurring theme in law is burden of proof. Your statement boils down to "defendant cannot prove that there is a greater disconnect in one instance than in the other." Even if the defendant cannot prove it, that is immaterial. At this stage of the proceeding, the burden of proof is on the plaintiff to state an argument and support it. We're not at the beyond-a-reasonable-doubt stage yet, but plaintiffs cannot just haul anyone into court with mere conclusory statements. Plaintiff did not produce evidence about the level of disconnect, and it is not the court's job either to find that proof or to put the resources of the ISP at plaintiff's disposal just because such proof is not available. The plaintiff must carry the burden of proof beyond mere conclusory statements.

>I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either

Ummm.... well... actually, there is something called presumption of innocence. How it works is, we presume that people are innocent until... well, anyway.

>Plaintiff started with a list of 100 defendants, and then expanded it to 1,000. What does this have to do with the legitimacy, generally, of suing John Doe defendants and subpoenaing their identities?

The Federal Rules of Civil Procedure require that defendants in a lawsuit to be joined by the same kernel of operative facts. In other words, they all have to be in on the deal together. If I run over someone's dog with my car and you run over that guy's other dog with your car, he can't sue both of us in one proceeding (unless, of course, we sat together in my kitchen and jointly hatched a plan to get rid of the dogs). The judge here is saying that it doesn't look to him like these 1,000 defendants probably all got together and decided to steal music from RIAA so they shouldn't all be crammed into one lawsuit.

>"In Hard Drive Productions, Inc. v. Does 1 - 1000, counsel sought leave to dismiss more than 100 Doe defendants, stating that some of the Does had 'reached a mutually satisfactory resolution of their differences' with the plaintiff." Well, yeah, that's what you're supposed to do — try and settle out of court instead of bringing every single case before a judge. How does the fact that some plaintiffs settled make it less legitimate to sue John Doe defendants in the first place?

The court has a greater responsibility than merely clearing the docket. Here, the judge is saying that it looks to him like this is just a scheme to force people to give money that they may not owe just to avoid the expense of trial. Hizzoner takes offense at what he sees as an abuse of the legal process, and he is declining to give judicial imprimatur to that business model. In short, he finds it unjust and he is exercising his authority and responsibility to see justice done.

>"Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case." Now these are actually all fair points. The logical error is that they apply to any lawsuit — Judge Baker makes no argument why these problems would be more pronounced in a lawsuit against 1,000 John Does.

Actually, he does. He notes that the subject matter in this case -- adult videos, some having content and topics that one could classify as being not thoroughly accepted by the mainstream -- may bring unjust settlement pressure on defendants. Contrary to your assertion, these factors do not apply to any lawsuit, or even most lawsuits. He specifically identifies "public embarrassment" as a factor.

You may not care for his reasoning, and it seems clear that there are instances in which you have misunderstood it. However, it is not the weak opinion that you believe it to be.

>Fortunately, Sandia National Laboratories is heading an effort to develop a new set of benchmarks...

Bummer for you, Sandia. NASA already did that with the NAS Parallel Benchmarks. Here's a hint: you're funded by the US Government (just like NASA), and NPB died when the Japanese started kick US butt on NPB.

"Fingerprinting has a history of 100 years showing that it works."

Fingerprinting has a history of well over 100 years, but what we see is that it works as long as it is not seriously challenged. In its only major rigorous challenge, the 50Kx50k text, substantial problems emerged.

Keep in mind that fingerprints are never admitted into evidence, never used for identification, never even examined. Never. A finger touches a surface and it leaves a partial copy. An investigator finds it and puts powder (matrix) on it, which creates a visible picture of the copy. It is often not possible to get a good photo of the copy, so someone uses tape or other gear to get an image of the picture of the copy. Then someone photographs the tape containing the image of the picture of the copy. Then a print of the photograph of the tape of the image of the picture of the copy is created. If there are no more steps, which would be unusual, that print is what is actually used for evidence or analysis. Scientifically-minded readers will have already tallied up at least a partial list of the errors introduced at each step of the process.

And what sort of analysis is done? The best lab in the country, the FBI, uses an analysis process taught by a high school grad who washed out of college after two years. Obviously, other labs do not enjoy such high standards. What standards do they use, you may ask? None. There are no required national standards for fingerprint analysts. There are guidelines that suggest that a high school diploma should be required, but the advisory guidelines bind no one.

But at least they use a rigorous process with well-defined standards?

"The International Association for Identification assembled in its 58th annual conference... based on a three-year study by its Standardization Committee, hereby states that no valid basis exists at this time for requiring that a predetermined minimum of friction ridge [fingerprint] characteristcs must be present in two impressions in order to establish positive identification."

So no, there are no standards, which is a good thing because the relevant international body has determined that there is "no valid basis" for establishing one.

So now they say that they can get better results by looking at someone's ears? Hm... Well, the good news is that they're probably right. The bad news is that they've got a long way to go before they can say that it's any great accomplishment.

Although one does not patent code, one can patent an invention and use that patent to preclude someone from writing software that practices the invention. There are people who have released code that practices patented inventions, but that does not mean that it is not possible for a patent to cover something implemented in software. It just means that a patent grants the holder a license to sue an infringer. There are various reasons for which a patent holder may not sue an infringer, but the infringer is still infringing that patent and it makes no difference that the infringer does so with software or hardware.

Having said that, it is possible to copyright code. In fact, copyright attaches automatically. So there is a means of protecting a specific piece of code. However, one can work around copyright by writing code that does the same thing differently.

Patents aren't really concerned with censorship or speech. One way to use a patent to censor speech in a particular medium is to exercise a patent that you hold to prevents use of that medium. You won't beat that with a free speech argument.

Contributing to infringing a US patent elsewhere in the world is a peculiar idea because a US patent is exactly that - US. Once you are outside of US territory (with the interesting but inapplicable exception of space), the US patent effectively does not exist.

Internal arithmetic always includes the exact solution, but only the rarest circumstances does it actually give the exact solution. For example, an acceptable interval answer for 1/3 would be [0.33,0.34]. That interval includes the exact answer, but does not express it.

This post is long because the brief is long.

First, keep in mind that RIAA doesn't write the law. Don't hate RIAA for using laws that Disney and others bought Congresscritters to enact into law. Hate the Congresscritters.

The first basic argument is that the companies lost nothing because even if Tenenbaum had not shared the music then someone else would have. However, the companies lose sales to illegal downloading. There's a question of how many sales, but no question that there are lost sales. So they suffer loss from one person making downloads available. If only one person made the files available, they could recover their losses by suing that person. Defendant's argument is that because many people do it, the companies cannot recover. That's like saying that if you get beaten up then you can sue your attacker, but if you get lynched by a mob then you have no recourse. The fact that many people are doing it... you know, if you have to read that here to learn it, you can't learn it. Let's move on to the next point.

From the brief: “[N]umerous courts have held that assessed statutory damages should bear some relation to the actual damages suffered.” When the Supreme Court has spoken, it makes no difference what other courts have said or how numerous they are. The Supremes get the last word. And here's the word: The "excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, the interest is in deterring people from granting themselves licenses to engage in unlimited and uncompensated distribution of very valuable copyrighted works. Such distribution not only costs the original copyright owner money but the availability of such goods depresses or destroys secondary markets and harms, for example, used CD stores. For these and countless other reasons, the state obviously has a very large interest in deterring the conduct.

They go on to say that "we do not doubt that Congress has ample authority to enact such a policy for the entire Nation." They note that "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Is there argument that Tenenbaum thought that his conduct was lawful? There is not. There is, in fact, his sworn testimony that he knew that the time that it was illegal.

Finally, the case that *defendant* cites states, ""While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respondents, in terms of reduced or eliminated royalties payments." What is the potential loss from granting a license for unlimited uncompensated distribution of all of those works? Tennenbaum got tagged for $675K and the courts routinely award 4:1 damages, so the relevant question here is whether the potential loss was more or less than $675K / 30 songs / 4:1 damage ratio = $5625/song and the answer is that such a license would clearly cost more. A helluva lot more. A whole helluva lot more. And it wouldn't matter that others also had licenses, it would still cost a helluva lot more. Tennenbaum is getting off dirt cheap.

Despite defendant's repeated claims that compensatory and punitive damages have similar jurisprudence, defendant's own brief cites State Farm v. Campbell which states, "We recognized ... that in our judicial system compensatory and punitive damages ... serve different purposes." In case you're not a lawyer, let me help you out: it never, ever gets clearer than that for any reason. Defendant's claims that the court should conflate compensatory and punitive damages are totally and unconditionally wrong at best.

Defeendant argues that even if $5625 is dirt cheap for a license for unlimited distribution of a song worth at least hundreds of thousands of dollars, the court has to consider the aggregate award of $675K. Defendant argues that because $675K is a big number, defefndant shouldn't have to pay it. Defendant conveniently overlooks the fact that if he'd stolen less, he'd have had to pay less. His argument that an aggregate of $675K is just too big a penalty means in essence that once you steal enough stuff so that the penalty is high, you can steal even more and the penalty can't go any higher. This one's pretty easy to analyze. Substitute the name "Bernard Madoff" for "Joel Tennenbaum" and see what you think of the argument. Suffice to say, it is not in society's interests to hold that increasing the magnitude of wrongdoing lowers the penalty for each wrongdoing. In non-legal terms, the aggregate damages argument is bullshit.

As defendant notes in his brief, the Supreme Court (that's the one that actually counts, in contrast to the ones that defendant cites) stated in Feltner v. Columbia that the jury decides "all issues pertinent to an award of statutory damages." When I said above that it didn't get any clearer than that, I had forgotten about this. This is the thing that doesn't get any clearer. According to the only court that matters, the jury decides. And in this case, the jury has decided. Game over.

The lawyers can read the brief. Let me break it down for the non-lawyers:

Tennenbaum admits that he deliberately broke the law. Tennenbaum's lawyer cites cases that state clearly that Congress has the authority to set policy in this area for the nation. The policy that Congress set is $750-$150K per song. You can hate Congress for doing that, but why hate RIAA for using the law for its clear purpose? Tennenbaum didn't just steal a song and cost the companies $21 as the brief states; he appropriated unto himself a license for unlimited free distribution of those songs. For that, he got tagged about $5600/song. Call the record companies and ask if you can get that same license for less. You can't.

They're not suing people for taking music. They're suiing people for mass distribution of music. There's a difference. And Tennenbaum's lawyers know it.

>The parties involved in a contract will always be material. duh.

The parties are almost never material. When I buy lunch from a restaurant, I enter into a contract to give the restaurant money in exchange for food. As long as I get food and they get cash, it is basically true that no other information is material to the transaction. I can tell them that I'm the Sultan of Brunei and as long as the "Sultan of Brunei" pays in full for his Supersized Fries, it's all good.

>False clearly implies intentional. Incorrect can be accidental.

No, false implies wrong. Intentional versus accidental goes to state of mind (mens rea, if you want to sound like a lawyer). In any event, intent is not in play here. In the example that I gave in the previous post of promising to cut taxes in exchange for your vote, I may be deliberately lying because I actually plan to raise your taxes. Despite my deliberate deception to get something of value, that valuable item being your vote, there is no crime. Your earlier statement to the effect that giving false information to get something of value is always a crime is incorrect.

>Contracts are entered by two parties in agreement If one party is falsifying its identity there is no agreement.

Incorrect. As noted in the Sultan of Brunei example above, identity of the parties need not be material.

If identify is material then giving a false identity may affect the contract. However, even in that case, it need not void the contract. For example, in a contract involving exchange of cash for goods, if I give counterfeit cash then I have violated a material term just as I would violate a material term by misstating my identify where identity is material. However, that need not void the contract. The contract may still be valid and enforceable, and it may be that I am forced to come up with real money.

Finally, in answer to your original question of how accessing the system without authorization is not unauthorized access, it actually comes down to the penalty, not the conduct. As the judge explained on page 21 of the opinion, what Drew did could well constitute unauthorized access. However, for reasons that he went on to explain, although she might be civilly liable in some other context, she could not be held criminally liable for the conduct alleged in this particular court case.

It is possible that you are not a skilled lawyer. Starting with the easy stuff first...

>Giving false info to obtain something of value is a crime. PERIOD.

Incorrect. First, I may mistakenly give false information by, for example, accidentally transposing digits in a phone number on a form. Not a crime.

Second, I may give false information that is not material to the transaction. For example, when dealing with someone who has the discretion to complete a transaction with me or someone else but not both (i.e., has a single item for sale and two potential buyers) and who is wearing an ugly hat, I may tell that person that the hat is attractive in an attempt to get the person to deal with me. Not a crime.

Third, the thing of value may not be something that the court feels like adjudicating. I man tell you that I will lower your taxes if you give me your vote, which is something of value. Not a crime.

Numerous other examples suggest themselves. Not crimes.

>She never violated the TOS. The TOS is a contract which she never agreed to (the nonexistent user she created did).

If you enter into a contract, say to buy a house, and sign the name of a non-existent person at the bottom, your imaginary friend did not just enter into a contract - you did. The signature element of a contract is satisfied by the parties giving objectively reasonable indications that they intend to enter a contract. Nodding ones head, stating agreement orally, or making a mark of whatever sort (a signature, a big red X, whatever) are all acceptable indications. Crossing your fingers behind your back, mentally adding certain reservations of which the other party is unaware, and using someone else's name are all things that do not negate the agreement to be bound by the contract.