

US P2P lawsuits show signs of 'pirate honeypots' - pyre
http://torrentfreak.com/u-s-p2p-lawsuit-shows-signs-of-a-pirate-honeypot-110601/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+Torrentfreak+(Torrentfreak)&utm_content=Google+Reader

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larrik
Seems at best this is entrapment (assuming there is indeed a civil
equivalent), and at worst this is outright fraud and extortion. I honestly
can't see why they would actually file a suit on these. Sending the initial
letters makes sense, but actually sending it to court is insane.

~~~
tptacek
This wouldn't be entrapment even if law enforcement personnel conducted the
string.

~~~
mikecane
NYPD leaves a wallet on the ground. Someone picks it up with the intent to
find the owner and return it, but the NYPD swoops in as soon as it's in hand
and charges the person with theft. This has actually taken place in NYC. Law
enforcement _does_ do entrapment.

~~~
tptacek
This is incoherent on two different levels.

First, I didn't argue that law enforcement didn't entrap people. They clearly
do. I argued that passively advertising infringing content on eDonkey isn't
entrapment.

Second, no matter what these apocryphal NYC cops did, picking up a wallet on
the street isn't a crime. The argument over "entrapment" never enters into the
picture. You would need a very poor criminal defense lawyer indeed to deploy
the affirmative defense of entrapment over such a trivially refuted charge.
You will not be convicted of theft simply for picking up a wallet.

~~~
mikecane
Apocryphal? You couldn't be bothered to Google? Just one item:
<http://gothamist.com/2006/07/21/lucky_bag_opera.php>

>>>I argued that passively advertising infringing content on eDonkey isn't
entrapment.

Oh sure it is! If the file had been properly labeled, the person would not
have engaged in the illegal act. Just _looking_ for illegal files is not yet a
crime. Most everyone who's used Google or any other search engine would be in
jail. People browsing YouTube for clips would be in jail.

~~~
anigbrowl
_Apocryphal? You couldn't be bothered to Google?_

It's good manners for the person who makes a claim to support it.
Incidentally, the charges were dropped in that NY case, suggesting a lack of
legal understanding among the subway cops:
[http://www.thevillager.com/villager_178/luckybagstingcharges...](http://www.thevillager.com/villager_178/luckybagstingcharges.html)

As for your argument, that makes no sense. 'Just looking' implies doing a
search but not downloading any of the files. Taking the woman's story at face
value, how could she have opened the file and discovered it to be porn if she
had not downloaded it first?

 _If the file had been properly labeled, the person would not have engaged in
the illegal act._

On the other hand, if the label had been accurate then the downloader would
have just been infringing the copyright of a Ryuichi Sakamoto album rather
than a porn movie. The bait-and-switch tactic alleged here looks extremely
questionable (it appears to violate something called the 'clean hands' rule,
though that may not matter if the plaintiff is only seeking statutory
damages). But you've got to admit that 'I was trying to infringe a different
work' is a pretty pathetic excuse, not much better than saying you took a
wallet which you believed to be full of cash but threw it away in
disappointment when it turned out not to contain any.

You seem to be arguing from the belief that anything downloadable should be
presumed to be in the public domain by default. Let's say the mislabeled file
had in fact been a Ryuichi Sakamoto album, which is what the woman says she
was looking for, and which is in fact copyrighted. At what point do you think
her exploration would have crossed the line into infringement, if ever?

~~~
mikecane
>>>You seem to be arguing from the belief that anything downloadable should be
presumed to be in the public domain by default.

I don't know where the hell you got that idea from.

But let's go on. What do you think it's called entrapment to begin with?
Because you put _cheese_ in the trap. The mislabeled file was cheese. Period.

There are many legitimate reasons to search for illegal files. How do you
think RIAA, MPAA and the rest find out what's been stolen? I search for things
to see what's been stolen too. Are you arguing if the RIAA, MPAA or anyone in
the course of researching piracy downloads a file to _verify_ that it is
indeed pirated they should be prosecuted?

EDIT: Here is my legitimate reason for pirating a book:
[http://ebooktest.wordpress.com/2009/09/16/how-the-axis-
of-e-...](http://ebooktest.wordpress.com/2009/09/16/how-the-axis-of-e-is-
killing-publishing/) Piracy is a huge debate in book publishing with too many
claims and too little evidence backing them up.

------
ChuckFrank
It's obvious that there is much more going on here than simply trying to build
an innocuous honey pot. The key part of this scam is to get people to settle
out of court for the fine because of the social embarrassment that might come
from publicly disclosing that someone has downloaded !!Gasp!! GAY PORN
!!Shudder!!, even if they meant to download this instead
<http://www.youtube.com/watch?v=btyhpyJTyXg> . Additionally, while the title
of the file was not listed, I doubt it was "Happy Days in the Barracks"
instead it was probably something like "Dastardly Dongs", all with the
intentions of raising the level of neighborly cringe factor. So, while this
story may be masquerading as a poorly set honeypot, it is also the story of
exploiting the latent homophobia that still exists throughout America. Here's
my suggestion, instead honeypot Martha Stewart's "Home for the Holiday" under
"Porn Bloopers" and see how people respond to the extortionist threat of court
time. I doubt it will work out nearly as well.

------
wccrawford
If these honeypotters really did relabel the files, wouldn't that make them
guilty of trademark infringement?

~~~
pyre
You would have to prove that there were 'honeypotters' out there and not just
some random person that decided to relabel the files (which the lawyers then
found and sued over).

------
chc
If this did go to court, what could they get out of it? It seems like it would
be incredibly difficult to show even a vague possibility of intent or damage,
so the lawsuits would be an unsustainable money drain.

------
ChuckMcM
"A new scheme we uncover today allows anyone to setup a honeypot and make
hundreds of thousands of dollars from naive file-sharers."

If this was the result then it would be a Good Thing. Whether you agree with
the laws or not, file sharing stuff you don't have a right to have a copy of
is, in fact, illegal. And if these troll type lawyers create enough noise in
the space and scare off (or educate) all of the naive file sharers then it
will make the interwebs a better place.

You drive faster on than the speed limit on the freeway you know what's at
risk and if you get a ticket you know why you got it. I'm very much in favor
of making sure that people know when they are on the wrong side of the current
law and where the line is. Then I can talk to them about whether or not they
will join me in bringing sanity to where the line is :-)

~~~
pyre
A few points:

\- What if the file had been labeled "Britney Spears Nudes.rar?" What about
"Ubuntu 12.04 Saucy Serpent.iso?" Does the fact that it was labeled as a work
that was not authorized for p2p distribution (by a completely different
copyright holder, mind you) change things that significantly?

\- If it can be proven that the copyright holders are distributing their works
on p2p networks under different names in order to ensnare people into the "do
I pay $3k to make this go away or $$$$ to defend myself in court" question,
then that _should_ constitute some sort of fraud.

\- Applying this logic to other areas also fails the "does this make sense"
test. Should you go to jail for downloading child pornography if someone sends
you a link to download "Cute Kitten Photos.rar?"

\- A person has no idea that they are violating the copyright of copyright
holder X when they download the file. They can only verify the file contents
once the file is downloaded. Sure they may have intended to commit copyright
infringement against copyright holder Y, but so longer as this is not the same
person as copyright holder X, I don't see how copyright holder X should have
any standing to 'punish' this user on behalf of copyright holder Y.

~~~
ChuckMcM
"A person has no idea that they are violating the copyright of copyright
holder X when they download the file."

And this is my whole point.

Everyone knows the _correct_ way to get copyrighted content from the internet.
You use iTunes, or Amazon's MP3 service, or NetFlix, or Hulu, or any number of
services. Everyone also knows that when you get a legal copy of a copyrighted
work there will be a 'payment' or a 'subscription' involved.

 _Naive_ people (I choose not to use the pejorative 'stupid' in this case)
should know that any downloading of a copyrighted work which doesn't involve a
subscription, or a fee, is nearly always illegal. This sort of action might
train them with this fact.

Can you share information which is CC licensed or out of copyright or public
domain? Absolutely. And I don't believe Titan Media or anyone else would be
successful in pursuing someone by 'tricking' them with a filename that would
otherwise be legitimate.

They could certainly _try_ to sue you but any lawyer could move for a
dismissal based on the clients beleif that the material was what it said it
was, and deleted it immediately when they discovered it was not. There is no
way to prove any sort of _intent_ to violate copyright that way. Look of the
case of Tracy Lords and her underage pornos where the buyer wasn't liable for
child porn because she had represented to the production company and the
production company had represented to the customer that everyone in the
production was of legal age.

So if this educates a few thousand people that trying to get free copies of
copyrighted stuff over the Internet is illegal and to stop trying (that would
the educating the naive part) then its a good thing.

~~~
pyre

      >> A person has no idea that they are violating the copyright of copyright
      >> holder X when they download the file."
      >
      > And this is my whole point.
    

No, it is _not_ your whole point. They are being sued based on the _contents
of the file_ when the file with masquerading as something completely
different. The fact that they intended to violate copyright in the first place
is irrelevant. In this case, the files were masquerading as copyrighted works
that this plaintiff _does not hold the copyright for._ It would be up to the
copyright holder to attempt to sue these people, not someone completely
different just because it will 'teach people a lesson.' This kind of 'teach
people a lesson' bullshit is no different than when the DoJ was trying to say
that violating MySpace's Term of Service was tantamount to Computer
Hacking/Fraud because there were no other laws to punish that lady that caused
the student to commit suicide.

The idea that someone should be punished for something they didn't intend to
do, even though their original intent was bad in the first place is an abuse
of the legal system, IMO.

It's probably easier to boil it down to this:

The user is being sued for 'violating the copyright of copyright holder X' not
for some nebulous 'violating copyright but it doesn't matter what copyright'
infraction or else I could sue you for violating someone else's copyright.

Therefore the question should really be, "is it reasonable to have expected
the user to know that they would have violated the copyright of copyright
holder X when they downloaded/uploaded that file?" You're trying to phrase the
question as, "is it reasonable to have expected the user to know that they
were violating any copyright when they downloaded/uploaded the file?"

~~~
ChuckMcM
Ask your lawyer about intent [1] some time. It could be educational.

You are claiming that because the copyrighted work they attempted to download
contained a different copyrighted work that the owner of the actual work that
got downloaded lacks standing [2]. And it may be that the argument supports a
summary dismissal, however it can be reasonably argued that the person
intended to download a copyrighted work in the first place.

My point (#3 go at this, then I give up) is that educating people who are
naive (which is to say don't know any better) that downloading copyrighted
material from the web without the express permission of the copyright holder
is illegal, and thus if they wanted access to that work they should seek out a
legal source for it, is a positive outcome for what is otherwise a pointless
and wasteful exercise.

[1] <http://legal-dictionary.thefreedictionary.com/intent>

[2] <http://encyclopedia.thefreedictionary.com/legal+standing>

~~~
pyre
From your link:

    
    
      > In tort an individual is considered to intend the consequences of an
      > act—whether or not she or he actually intends those consequences—if the
      > individual is substantially certain that those consequences will result.
    

IANAL, but in this case I would assume that 'those consequences' would be that
copyright holder X was harmed. If that's the case, then there was no way that
the user intended to harm copyright holder X by downloading something they
thought was by copyright holder Y.

~~~
ChuckMcM
"IANAL, but in this case I would assume that 'those consequences' would be
that copyright holder X was harmed. If that's the case, then there was no way
that the user intended to harm copyright holder X by downloading something
they thought was by copyright holder Y."

You're comment is what a lawyer would use in an argument that the plaintiff
lacks standing. And it certainly might prevail in this case (I've not seen a
copy of the pleading).

But if you look at this thread (or at least my contributions to it) you'll
notice that I've never expressed any opinion one way or another about whether
or not Titan Media will prevail in its efforts. I make only three claims;

1) People sued by Titan Media will feel inconvienienced by it and they will
associate the suit with their action of downloading "something" from the
internet.

2) Those people will associate 'downloading stuff from the internet' with this
inconvience.

3) They (and their friends who had to listen to their tale) will stop doing
this because the 'risk' has risen above the 'reward.'

I used the short hand of relating this process as 'educating the naive.' I
stand by that analysis.

