Internet Provider ordered to give up names and addresses

[Enterprise]

TORONTO -
michele mandel

Your pirating days may be over.

In a landmark decision released late Thursday, the Federal Court has ruled that Canadians who illegally download movies can no longer hide behind the anonymity of their IP address.

Internet service provider TekSavvy Solutions was ordered to provide the names and addresses of 2,000 subscribers alleged to have used BitTorrent to download movies copyrighted by Voltage Pictures LLC, maker of such Hollywood films as The Hurt Locker.

Voltage says it plans to use the contact information to pursue litigation for “the unauthorized copying and distribution” of its movies. The decision could set a precedent used by other companies to go after Canadians who pirate music and TV shows as well.

The Canadian Internet Policy and Public Interest Clinic (CIPPIC) had opposed the Voltage motion, arguing that privacy considerations should take precedence over copyright rights. It accused Voltage of being a “copyright troll” that will intimidate subscribers into easy settlements through demand letters and threats of litigation, even if they weren’t the ones involved in illegal downloading.

The court said it will monitor Voltage’s dealings with alleged pirates and wants to see a draft of their demand letter to ensure subscribers are advised they should get legal advice and that no court has determined that they are guilty or that they have to pay up.

“In my view, the Order herein balances the rights of Internet users who are alleged to have downloaded the copyright works against the rights of Voltage to enforce its rights,” the court ruled.

[fonger]

...damn...

[BanHammer]

get a good VPN and DD-WRT

[torpainter]

moved to proper forum Thanks DU

[sodusme]

These companies are all bark and no bite. There is absolutely NO way to determine that an i.p. that was captured on screen sharing a pirated work actually had the subscriber who that i.p. was assigned to doing the pirating. The only way to do it is to have the ISP involved during the pirating and have them do DPI (Deep Packet Inspection) or MIM (Man In the Middle) attack which is illegal for them to perform. ISP's are not going to do either one in all likelihood.

I love how these companies say "you can't hide behind the anonymity of your i.p.". Oh really I can't? LOL What if my neighbor is leeching my WI-FI? What if I have a trojan virus on my PC? What if I set up a proxy on my machine and I did it wrong and now anyone else can use my i.p.? There are far too many variables for these companies to make this "you're assigned an i.p. and you were the one pirating the copyrighted works" argument stick.

Nice try Voltage. LOL

[BanHammer]

I've read that Voltage has unsuccessfully tried this in the past.

[Gunsmoke2 - GS2]

These companies are all bark and no bite. There is absolutely NO way to determine that an i.p. that was captured on screen sharing a pirated work actually had the subscriber who that i.p. was assigned to doing the pirating. The only way to do it is to have the ISP involved during the pirating and have them do DPI (Deep Packet Inspection) or MIM (Man In the Middle) attack which is illegal for them to perform. ISP's are not going to do either one in all likelihood.

I love how these companies say "you can't hide behind the anonymity of your i.p.". Oh really I can't? LOL What if my neighbor is leeching my WI-FI? What if I have a trojan virus on my PC? What if I set up a proxy on my machine and I did it wrong and now anyone else can use my i.p.? There are far too many variables for these companies to make this "you're assigned an i.p. and you were the one pirating the copyrighted works" argument stick.

Nice try Voltage. LOL


The internet provider can match the name and addresses corresponding to the IP used at the time. Taken from another decision in 2011 with Voltage, not the recent decision with TekSavvy





I. Preliminary



[1] A copyright infringement gives rise to extraordinary measures in order to find the parties guilty of that infringement.



II. Introduction



[2] In BMG Canada Inc. v. John Doe, 2005 FCA 193 (CanLII), 2005 FCA 193, [2005] 4 F.C.R. 81, the Federal Court of Appeal confirmed the following:

[42] ... in cases where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action. ...



[3] The Court accepts the plaintiff’s position in support of its motion as follows:

(i) an order allowing for a written examination for discovery of Bell Canada, Cogeco Cable Inc. and Videotron GP to be held so that they identify the names and addresses connected to their customer accounts associated with the IP addresses at the times specified in Annex A of the Statement of Claim filed in this record; and

(ii) an order requiring Bell Canada, Cogeco Cable Inc. and Videotron GP to disclose to Voltage Pictures LLC the names and addresses related to their customer accounts associated with the IP addresses at the times specified in Annex A of the Statement of Claim filed in this record.



[4] Voltage Pictures LLC is the owner of the copyright on the film Hurt Locker. The defendants copied and distributed this film over the internet without the authorization of Voltage Pictures LLC.



[5] Voltage Pictures LLC has identified the IP addresses used by the defendants, but only their internet service providers can identify them more precisely.



[6] Voltage Pictures LLC is seeking leave to conduct a written examination for discovery of the internet service providers so that they disclose the names and addresses of the customers corresponding to the IP addresses already obtained. Once these customers have been identified, Voltage Pictures LLC can send formal notices and, where applicable, add these persons as defendants to this action.



III. Facts



[7] The defendants downloaded, copied and distributed the film Hurt Locker through peer-to-peer networks on the internet, without the authorization of Voltage Pictures LLC. They did so anonymously; they can be identified only by their IP addresses (Affidavit of Daniel Arheidt, sworn on August 24, 2011, at paras. 23-25).



[8] An IP address is merely a series of numbers, as appears from the table attached as Annex A to the Statement of Claim dated June 20, 2011.



[9] The IP addresses in question belong to Bell Canada, Cogeco Cable Inc. and Videotron GP (internet service providers) and are used by customers when they access the internet. The internet service providers record the use of their IP addresses and can identify who has used an IP address at a specific time and date (Affidavit of Daniel Arheidt at para 23).



[10] Voltage Pictures LLC must therefore call upon the internet service providers to obtain the names and addresses corresponding to the IP addresses that it has already obtained by consulting public sources.



[11] Without this information, Voltage Pictures LLC cannot identify those persons who have infringed its copyright and will be deprived of its right to bring an action against them.




GS2

[sodusme]

The internet provider can match the name and addresses corresponding to the IP used at the time. Taken from another decision in 2011 with Voltage, not the recent decision with TekSavvy


GS2

No they can match an i.p. with the subscriber but not necessarily the individual who was actually sitting at the computer downloading the copyrighted work.

Now I realize that Canada doesn't have the same laws as the U.S. but here are a couple rulings to this very affect made in the states:


http://torrentfreak.com/ip-address-not-a-person-bittorrent-case-judge-says-110503/


http://news.cnet.com/8301-1023_3-57427671-93/ip-address-doesnt-id-individuals-in-piracy-lawsuit-judge-rules/

It is impossible to identify with any certainty an individual from just an i.p. it cannot be done. You would need to be performing data inspection in the form of DPI at the very moment the copyrighted work is being downloaded to be able to follow the packets to an individuals gateway and thus identify the entry point for the packets origination. That technique is costly for an ISP to perform that is why they will not do it. Plus even with the addition of DPI thrown in the mix you could identify the packets to a "gateway" but again that wouldn't tell you the individual sitting at the computer typing on the keyboard. There would be no way to ever do that.

Think of your i.p. and the resulting ISP account like your telephone number and account. You have a telephone hanging on the wall (or sitting on the desk) and a call is made and that call is traced. Where is the call traced to? Its traced back to your phone carrier of course whether its AT+T, Sprint, Vonage, etc., but it doesn't tell the individual(s) tracing it who actually made the call. It could have been yourself, it could have been your wife, it could have been your child, it could have been a neighbor that walked into your home. The same reasoning applies here you can trace an i.p. right back to the ISP and certainly tell whether its TW, Comcast, Rogers, Cox, etc. but what you cannot do is tell who was actually downloading the copyrighted works on that connection. Just like the phone scenario it could have been yourself, it could have been your wife, it could have been your child, it could have been a neighbor OR in this case we add a complete stranger to the mix if like I said your computer is compromised in some manner.

Sorry to say but "Voltage" doesn't have a leg to stand on in these cases just like the MPAA and RIAA here stateside do not.

[Gunsmoke2 - GS2]

No they can match an i.p. with the subscriber but not necessarily the individual who was actually sitting at the computer downloading the copyrighted work.

Now I realize that Canada doesn't have the same laws as the U.S. but here are a couple rulings to this very affect made in the states:


http://torrentfreak.com/ip-address-not-a-person-bittorrent-case-judge-says-110503/


http://news.cnet.com/8301-1023_3-57427671-93/ip-address-doesnt-id-individuals-in-piracy-lawsuit-judge-rules/



Those rulings don't mean other judges will adopt them. See below. Have to wait and see.



This week, however, an interesting ruling was handed down by District Court Judge Harold Baker that, if adopted by other judges, may become a major roadblock for similar mass-lawsuits





It is impossible to identify with any certainty an individual from just an i.p. it cannot be done. You would need to be performing data inspection in the form of DPI at the very moment the copyrighted work is being downloaded to be able to follow the packets to an individuals gateway and thus identify the entry point for the packets origination. That technique is costly for an ISP to perform that is why they will not do it. Plus even with the addition of DPI thrown in the mix you could identify the packets to a "gateway" but again that wouldn't tell you the individual sitting at the computer typing on the keyboard. There would be no way to ever do that.

Think of your i.p. and the resulting ISP account like your telephone number and account. You have a telephone hanging on the wall (or sitting on the desk) and a call is made and that call is traced. Where is the call traced to? Its traced back to your phone carrier of course whether its AT+T, Sprint, Vonage, etc., but it doesn't tell the individual(s) tracing it who actually made the call. It could have been yourself, it could have been your wife, it could have been your child, it could have been a neighbor that walked into your home. The same reasoning applies here you can trace an i.p. right back to the ISP and certainly tell whether its TW, Comcast, Rogers, Cox, etc. but what you cannot do is tell who was actually downloading the copyrighted works on that connection. Just like the phone scenario it could have been yourself, it could have been your wife, it could have been your child, it could have been a neighbor OR in this case we add a complete stranger to the mix if like I said your computer is compromised in some manner.

Sorry to say but "Voltage" doesn't have a leg to stand on in these cases just like the MPAA and RIAA here stateside do not.


Think you are being premature in saying Voltage doesn't have a leg to stand on. They just won in court with no ruling by the court that IPs can not be used if we are talking about the case in Canada.


Think your also premature for concluding that in the US. Most of the music cases have gone in favor of the plaintiffs. Only when there is some higher court ruling other than the ones cited that it will count and carry much weight or that every court starts to rule the same. It might happen that courts start to conclude the same or they don't with than needing a high court ruling on it.



GS2

[sodusme]

Those rulings don't mean other judges will adopt them. See below. Have to wait and see.










Think you are being premature in saying Voltage doesn't have a leg to stand on. They just won in court with no ruling by the court that IPs can not be used if we are talking about the case in Canada.


Think your also premature for concluding that in the US. Most of the music cases have gone in favor of the plaintiffs. Only when there is some higher court ruling other than the ones cited that it will count and carry much weight or that every court starts to rule the same. It might happen that courts start to conclude the same or they don't with than needing a high court ruling on it.



GS2

They have to adopt it its called "precedent":
http://en.wikipedia.org/wiki/Precedent


In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.


Stare decisis (Anglo-Latin pronunciation: /ˈstɛəriː dɨˈsaɪsɨs/) is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed."[2] In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters.[2]


The principle of stare decisis can be divided into two components.

The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one that courts can and do ignore occasionally.


Case law is the set of existing rulings which have made new interpretations of law and, therefore, can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential case law can arise from either a judicial ruling or a ruling of an adjudication within an executive branch agency. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions.


Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand.

This is no different than the FTA cases we have debated and I had expressed outrage with how DN/Nagra was given landmark rulings and you pointed to "precedent" setting decisions that they were allowed to use to get verdicts in their favor. This is exactly the same.

If a higher court or a parallel court has made a ruling it sets precedent and is generally followed. The "i.p.'s do not equate to a person" were heard and rendered in U.S. District Courts which are right below the U.S. Appellate Courts which are directly below the U.S. Supreme Court. So the way I see it ALL U.S. District Courts have an obligation to render the same verdict as the are "parallel" court systems. Unless of course the plaintiffs wish to appeal and have the original "precedent" setting verdict AND the case reheard at an appellate or supreme court level.

If people are "losing" these cases then yet again it boils down to inferior representation from their lawyers or outright ignorance of the verdicts made my parallel court systems. There is no reason a person should ever lose a copyright case. Trust me I have went head to head with Comcast on a couple occasions with them sending me their little letters about copyright infringement. I have simply phoned them back and pointed to the fact that rulings have been made by U.S. District Courts regarding that its impossible to identify a user from simply an i.p. I had one guy wanna argue with me on the subject and I told him to have the company in question haul me into court and we'll go from there. Now this was not a "demand" letter or any legal obligation it was simply a "notice" that my i.p. had been captured pirating copyrighted works. But believe me if I ever do get a "demand" letter from one of these companies they better seize the HDD to prove their case. Because that is the only way they can do it.

[Gunsmoke2 - GS2]

They have to adopt it its called "precedent":
http://en.wikipedia.org/wiki/Precedent


Courts don't have to adopt it. Its a ruling that other courts can agree with or not. They only have to accept it if there is a higher court ruling. You are quoting things that are not relevant to this situation. Why do you think there often are conflicting decisions from courts. ? This is what you should look at:-




Binding precedent

Precedent that must be applied or followed is known as binding precedent (alternately mandatory precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears.



For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies, resolving conflicting interpretations of law or dealing with issues of first impression. Whatever these courts decide becomes judicial precedent.




This is no different than the FTA cases we have debated and I had expressed outrage with how DN/Nagra was given landmark rulings and you pointed to "precedent" setting decisions that they were allowed to use to get verdicts in their favor. This is exactly the same.


I don't recall that. I don't think I ever referred to a precedent that a court had to follow unless there was a higher court ruling



If a higher court or a parallel court has made a ruling it sets precedent and is generally followed.


A parallel ruling does not set precedent that has to be followed by a court on the same level. They can or can not. Only when a higher court rules would result in lower courts being bound by it.




The "i.p.'s do not equate to a person" were heard and rendered in U.S. District Courts which are right below the U.S. Appellate Courts which are directly below the U.S. Supreme Court. So the way I see it ALL U.S. District Courts have an obligation to render the same verdict as the are "parallel" court systems. Unless of course the plaintiffs wish to appeal and have the original "precedent" setting verdict AND the case reheard at an appellate or supreme court level.

If people are "losing" these cases then yet again it boils down to inferior representation from their lawyers or outright ignorance of the verdicts made my parallel court systems. There is no reason a person should ever lose a copyright case. Trust me I have went head to head with Comcast on a couple occasions with them sending me their little letters about copyright infringement. I have simply phoned them back and pointed to the fact that rulings have been made by U.S. District Courts regarding that its impossible to identify a user from simply an i.p. I had one guy wanna argue with me on the subject and I told him to have the company in question haul me into court and we'll go from there. Now this was not a "demand" letter or any legal obligation it was simply a "notice" that my i.p. had been captured pirating copyrighted works. But believe me if I ever do get a "demand" letter from one of these companies they better seize the HDD to prove their case. Because that is the only way they can do it.


You might see it that way but I only see it the way the legal system works not the way I would like to see it. It might be that other courts will follow but they don't have to. If we were to follow the way you see it and if it were true than other lawsuits would be barred from being filled not the case.



GS2

[Gunsmoke2 - GS2]

I might add that I agree that an IP is not a person. However I am saying its premature to say that's it, its all over for these lawsuits. It might be the way of the future but lawsuits can proceed as there are and courts are not bound by the ruling. Hopefully other courts will follow.



GS2

[sodusme]

I'm pretty sure you are interpreting this wrong:


For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies, resolving conflicting interpretations of law or dealing with issues of first impression. Whatever these courts decide becomes judicial precedent.

The first part of that in red says once a "higher" court rules on something a lower court should not go against that ruling. It also says once a "ruling" is made its basically "law" and should not be "challenged" BUT if it is challenged it would be done so in a higher court that being an Appellate Court OR the U.S. Supreme Court.

The second part of that in blue says that the U.S. Supreme Court in that state is the highest court (who decides first impression of what the law is) barring an appeal to an Appellate Court OR the U.S. Supreme Court (who decides conflicting interpretation of the law).

Furthermore you have this statement:


The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts.

That is stating that a U.S. Supreme Court in one state is essentially to be guided by rulings by other U.S. Supreme Courts in other states (or should be). Lateral means "parallel".

You had pointed to cases where decisions had been made earlier to the legality of "devices" that we discussed in another thread. Those decisions would have been considered "precedents".

[sodusme]

Here is another definition of stare decisis.


http://legal-dictionary.thefreedictionary.com/stare+decisis


STARE DECISIS. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. Mr. Greenleaf has made a collection of such cases, to which the reader is referred. Vide 1 Kent, Com. 477; Livingst. Syst. of Pen. Law, 104, 5.

[Gunsmoke2 - GS2]

I'm pretty sure you are interpreting this wrong:



The first part of that in red says once a "higher" court rules on something a lower court should not go against that ruling. It also says once a "ruling" is made its basically "law" and should not be "challenged" BUT if it is challenged it would be done so in a higher court that being an Appellate Court OR the U.S. Supreme Court.

The second part of that in blue says that the U.S. Supreme Court in that state is the highest court (who decides first impression of what the law is) barring an appeal to an Appellate Court OR the U.S. Supreme Court (who decides conflicting interpretation of the law).


Other courts on the same level of court do not have to rule the same unless there is a higher court ruling that they would have to follow. There is no binding precedent set in these cases. Is it your opinion that other courts must follow these rulings ? or do you think they will or should ? Really not sure what your saying.


These rulings or not US state Supreme Court rulings. If one was than all other lower courts would have to rule the same way.



Furthermore you have this statement:



That is stating that a U.S. Supreme Court in one state is essentially to be guided by rulings by other U.S. Supreme Courts in other states (or should be). Lateral means "parallel".

You had pointed to cases where decisions had been made earlier to the legality of "devices" that we discussed in another thread. Those decisions would have been considered "precedents".


Being guided is not being bound.



GS2

[sodusme]

Other courts on the same level of court do not have to rule the same unless there is a higher court ruling that they would have to follow. There is no binding precedent set in these cases. Is it your opinion that other courts must follow these rulings ? or do you think they will or should ? Really not sure what your saying.


These rulings or not US state Supreme Court rulings. If one was than all other lower courts would have to rule the same way.





Being guided is not being bound.



GS2

But that is where "precedent" comes in. If another court has ruled on a similar court case then ALL other courts ruling on that "similar" matter are expected to follow suit and find the same ruling. If they do not then it is up to the defendant to appeal the case to a higher court.

Yes it is definitely my opinion that it should be followed. Just as when DN/Nagra sues somebody they quote other verdicts in their lawsuit--why do you think they are doing that? Do you think they do it because they enjoy reading it? No they are doing it because a "ruling" has already been decided on that litigation and they are making the court aware of it so that the particular court they are litigating in will find in favor of them with a similar ruling. They are not quoting higher courts in their rulings that they plaster into these lawsuits. They are quoting "parallel" or "lateral" court branches that have made rulings in similar suits. You have pointed this out in other debates we have had I'm not sure why you are not remembering it?

Oops they are "District" courts who are only succeeded by Appellate Courts and Supreme Courts in their respective states--at least the one in New York is. So Gary Brown the judge for the Eastern District court of New York has made a ruling on the fact that an i.p. does not equate to an individual. So if some judge from the Western District court of New York finds himself with a court case of similar litigation he would be expected to make a finding with a similar decision. If he does not the defendant can than request that an appeal be made.

[Advocate]

[QUOTE=sodusme;1049186]




It is impossible to identify with any certainty an individual from just an i.p. it cannot be done.

The quote above is possible .....

[sodusme]

[QUOTE=sodusme;1049186]




It is impossible to identify with any certainty an individual from just an i.p. it cannot be done.

The quote above is possible .....

LOL no its not short of fingerprinting a keyboard or having a camera on someone there is absolutely, positively no way to determine who was "using" that i.p. You can tell "who" the i.p. is subscribed to but not who actually used it.

If you think there is a way please do tell us and I will agree with you 100% if you can show me. Otherwise I will disagree and tell you why its not possible. If you're going to post the software that they use to find WI-FI leechers by being able to trace them right down to the street and knock on the door that again does not identify who was actually sitting at that computer.

[sodusme]

Here is one last reason why a District Court in New York can, will and does make "law" for ALL other district courts (and lower courts) in the U.S.


http://simple.wikipedia.org/wiki/Legal_precedent


The United States Court of Appeals for the Third Circuit has stated:

A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.[2]

Now if you all will excuse me I will be going to watch some TV. I will be glad to continue this debate tomorrow.

[jazzman]

Great discussion gents, the only thing is, who has the "spare change" to take any of this to even a district court much less any higher than that? Just plain simpler to pay the extortion money. As the Bard said..."There in lies the rub" lol. I've learned a lot from this thread so feel free to continue....

[Gunsmoke2 - GS2]

But that is where "precedent" comes in. If another court has ruled on a similar court case then ALL other courts ruling on that "similar" matter are expected to follow suit and find the same ruling. If they do not then it is up to the defendant to appeal the case to a higher court.


Just because some district court ruling does not get appealed does not mean the precedent was made that now rules the day for everyone and that goes both ways. The case where the court said software was considered a device does not bound another court to agree with that. Sure they can easily follow but they don't have to. And whether they follow suit or not is not what I am debating. What I am saying is another district court could come out with a different ruling.




Yes it is definitely my opinion that it should be followed. Just as when DN/Nagra sues somebody they quote other verdicts in their lawsuit--why do you think they are doing that? Do you think they do it because they enjoy reading it? No they are doing it because a "ruling" has already been decided on that litigation and they are making the court aware of it so that the particular court they are litigating in will find in favor of them with a similar ruling. They are not quoting higher courts in their rulings that they plaster into these lawsuits. They are quoting "parallel" or "lateral" court branches that have made rulings in similar suits. You have pointed this out in other debates we have had I'm not sure why you are not remembering it?


But have no problem with any parties bringing up court decisions that favor them. Why would you even suggest that. ? What I wanted to know was if you were stating a fact that it had to be followed by other courts or was it your opinion it that it should be. If its your opinion that it should than fine I respect it, I would agree in general follow, however sometimes I can respect a court disagreeing with another court ruling and glad that is an option. If you were saying its a fact that they had to than I would be disagreeing as I have been.


Oops they are "District" courts who are only succeeded by Appellate Courts and Supreme Courts in their respective states--at least the one in New York is. So Gary Brown the judge for the Eastern District court of New York has made a ruling on the fact that an i.p. does not equate to an individual. So if some judge from the Western District court of New York finds himself with a court case of similar litigation he would be expected to make a finding with a similar decision. If he does not the defendant can than request that an appeal be made.


Yes defendants can appeal.



GS2

[Gunsmoke2 - GS2]

Here is one last reason why a District Court in New York can, will and does make "law" for ALL other district courts (and lower courts) in the U.S.


http://simple.wikipedia.org/wiki/Legal_precedent



Now if you all will excuse me I will be going to watch some TV. I will be glad to continue this debate tomorrow.



Why do you think that was a judicial precedent ? Its a court ruling. Its not automatically binding on others nor must it be followed.




A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed.




GS2

[sodusme]

Just because some district court ruling does not get appealed does not mean the precedent was made that now rules the day for everyone and that goes both ways. The case where the court said software was considered a device does not bound another court to agree with that. Sure they can easily follow but they don't have to. And whether they follow suit or not is not what I am debating. What I am saying is another district court could come out with a different ruling.






But have no problem with any parties bringing up court decisions that favor them. Why would you even suggest that. ? What I wanted to know was if you were stating a fact that it had to be followed by other courts or was it your opinion it that it should be. If its your opinion that it should than fine I respect it, I would agree in general follow, however sometimes I can respect a court disagreeing with another court ruling and glad that is an option. If you were saying its a fact that they had to than I would be disagreeing as I have been.




Yes defendants can appeal.



GS2


Why do you think that was a judicial precedent ? Its a court ruling. Its not automatically binding on others nor must it be followed.








GS2

Yes I should have specified that it needs to be followed. Not only is it my opinion but the way I read things concerning "precedent" any future judge has a right to follow that ruling once it is made.

This is my take on precedent: A precedent is a ruling or finding on some "wrong doing" with a clear outcome and set of consequences for all future similar cases as the definition spells out.

How can we as a society have a a court system where a district judge in say California says: "I'm going to give you a $1,000,000 fine for downloading that song and 5 years probation" and a district judge in say New York says: "I find that an i.p. does not equate to an individual case dismissed"? That type of "mismatched" recompense or consequence totally undermines our court system.

I'm going to be in class today I'm going to stop by and see Dr. Roberts (my govt. instructor from the Summer who holds a .PHD) and see if he is in the office. I would love to pick his brain on this subject as we discussed this very thing in class over the Summer. In fact I did a paper on copyright infringement and got a B. Not that it matters to the debate but I did a discussion on this very subject matter.

[lacoster7]

I boils down to one thing:
last thing you can find in courts is justice
Unless you have deep pockets and unlimited time to fights for your rights.

Remember, what judge told me in court with his ruling:
I do not have to know the law, your lawyer doesn't have to know the law, but you have to know the law and obey it

Doesn't matter what kind of law system you are dealing with: codecs law or precedent law.
It is so complicated nowdays that is impossible for anyone on mother earth to reasonable deal,with it or obey it.

Remember from history, that some first colonizers in first colonies in america's introduced law, that no lawyers are permitted on the land.
Now hords of lawyers, judges, prosecutors made our life miserable.
Its long time overdue for a total overhaul. On any continent.

[Gunsmoke2 - GS2]

Yes I should have specified that it needs to be followed. Not only is it my opinion but the way I read things concerning "precedent" any future judge has a right to follow that ruling once it is made.

This is my take on precedent: A precedent is a ruling or finding on some "wrong doing" with a clear outcome and set of consequences for all future similar cases as the definition spells out.

How can we as a society have a a court system where a district judge in say California says: "I'm going to give you a $1,000,000 fine for downloading that song and 5 years probation" and a district judge in say New York says: "I find that an i.p. does not equate to an individual case dismissed"? That type of "mismatched" recompense or consequence totally undermines our court system.

I'm going to be in class today I'm going to stop by and see Dr. Roberts (my govt. instructor from the Summer who holds a .PHD) and see if he is in the office. I would love to pick his brain on this subject as we discussed this very thing in class over the Summer. In fact I did a paper on copyright infringement and got a B. Not that it matters to the debate but I did a discussion on this very subject matter.


Sure a judge has the right to follow but has the same right not to follow. Do you feel the opinion made by the judge that software is a device has to be followed if brought up in another court ?


Would you as a defendant be content if you wanted to challenge that in court with being told well since this other judge ruled that way your **** out of luck. ?


Its not a binding precedent if you want to call it a precedent. It would be a persuasive precedent.



GS2

[sodusme]

Sure a judge has the right to follow but has the same right not to follow. Do you feel the opinion made by the judge that software is a device has to be followed if brought up in another court ?


Would you as a defendant be content if you wanted to challenge that in court with being told well since this other judge ruled that way your **** out of luck. ?


Its not a binding precedent if you want to call it a precedent. It would be a persuasive precedent.



GS2

I would be wiling to bet you if that comes up in court (we already know it has) concerning DN/Nagra which way do you think the judge will decide--I already know which way he will decide. We all know which way he will decide that was evident when TDG challenged it and you pointed to the fact that it had already been decided upon by another judge in an earlier case? Do you remember that? Unless I was reading your post wrong I was certain that is the take you had on it. That it had been brought up in a prior court of law and decided upon that "software was a device".

No I would not be happy but as a defendant I would have to appeal that verdict and the original "precedent" setting verdict. It would be up to your lawyer or yourself to seek out other similar cases and see how they were decided.

P.S. Dr. Roberts wasn't in his office. I would like to catch up with him and ask a couple questions. I'm going to ask him first and foremost "what constitutes a precedent" and "do all other parallel courts have to abide by a precedent" (if it turns out I am accurate in my definition of what it is).

[sodusme]

Well it appears as though I won't need Dr. Roberts opinion on this I think I just found my own answer:


http://www.lacba.org/showpage.cfm?pageid=9375


1. Geography matters in federal practice.
The basics of federal stare decisis are easily understood. Decisions of the U.S. Supreme Court bind all other federal courts, decisions of the various circuit courts of appeals bind the federal district courts located within each circuit, and the decisions of district courts generally have no binding precedential effect. Thus, a district court judge in California is not bound to follow precedent from any circuit court except published decisions from the Ninth Circuit Court of Appeals, which has appellate jurisdiction over California’s federal courts. In other words, geography—specifically whether a given district court sits within a given circuit—has substantive meaning in federal practice.

It appears as though a District Court Judge in one court is not obligated to follow precedent from any other court EXCEPT the Appellate Court in his circuit.

Hmm who'd of thunk it. Sure didn't read that way on other sites but this one pretty much breaks it down and puts it right out there in black and white.

So it appears as though I am wrong. LOL Not the first time and I'm sure it won't be the last time. To GS2: :innocent: :hide:

[lacoster7]

Well it appears as though I won't need Dr. Roberts opinion on this I think I just found my own answer:


http://www.lacba.org/showpage.cfm?pageid=9375



It appears as though a District Court Judge in one court is not obligated to follow precedent from any other court EXCEPT the Appellate Court in his circuit.

Hmm who'd of thunk it. Sure didn't read that way on other sites but this one pretty much breaks it down and puts it right out there in black and white.

So it appears as though I am wrong. LOL Not the first time and I'm sure it won't be the last time. To GS2: :innocent: :hide:
So from above it is obvious that this precedent law system is completely not coherent.
As I understand your conclusion, one precedent created in one court might be completely contradictory to another created in other district court.

[Gunsmoke2 - GS2]

Well it appears as though I won't need Dr. Roberts opinion on this I think I just found my own answer:


http://www.lacba.org/showpage.cfm?pageid=9375



It appears as though a District Court Judge in one court is not obligated to follow precedent from any other court EXCEPT the Appellate Court in his circuit.

Hmm who'd of thunk it. Sure didn't read that way on other sites but this one pretty much breaks it down and puts it right out there in black and white.

So it appears as though I am wrong. LOL Not the first time and I'm sure it won't be the last time. To GS2: :innocent: :hide:


In my case in Canada the judge said he can give a decision now or wait for an appeal to be heard in a higher court on the same issue as mine on another case in the same Province and than he said he would be bound by whatever that decision is.


Well all the other courts had ruled on the same issue in favor of the defendants, I was impatient with hoping to get my seized equipment back, did not want to wait another 6 to 8 months and figured the judge would just follow all the other rulings. My lawyer figured the same.


So we said we did not want to wait for the higher court ruling that he would be bound by. Turns out that was a bad mistake because the judge ruled against me and was the first to lose. The judge decided not to followed the other judges from the same Province. He did not have to though you would have thought he would have.



GS2

[sodusme]

So from above it is obvious that this precedent law system is completely not coherent.
As I understand your conclusion, one precedent created in one court might be completely contradictory to another created in other district court.

Yeah exactly so what is to keep one judge from saying "that is a $1,000,000 fine" in one district and another judge saying "that is a $100 fine" in another district for downloading say a copyrighted song? No wonder our court system is so screwed up in the U.S.


In my case in Canada the judge said he can give a decision now or wait for an appeal to be heard in a higher court on the same issue as mine on another case in the same Province and than he said he would be bound by whatever that decision is.


Well all the other courts had ruled on the same issue in favor of the defendants, I was impatient with hoping to get my seized equipment back, did not want to wait another 6 to 8 months and figured the judge would just follow all the other rulings. My lawyer figured the same.


So we said we did not want to wait for the higher court ruling that he would be bound by. Turns out that was a bad mistake because the judge ruled against me and was the first to lose. The judge decided not to followed the other judges from the same Province. He did not have to though you would have thought he would have.



GS2

WOW that sucks.

[Advocate]

LOL no its not short of fingerprinting a keyboard or having a camera on someone there is absolutely, positively no way to determine who was "using" that i.p. You can tell "who" the i.p. is subscribed to but not who actually used it.

@sodusme , very true .... unless the target has a web-cam it would be impossible ....... otherwise it could be anyone .....

[shadowsdevil]

You can argue all u want on what they can do or not ,regardless in Canada we are guilty until proven innocent where as US is innocent until proven guilty and is a big difference,why because we Canadians spend a lot of money to prove that we didn't do it as where as the states have to pay out a larger amount to go after the person and prove that is the person that did the crime and make sure it's that individual.Most Canadians won't pay out a lot if they come down to just charging us a mere $1000.00 to $5000.00 fines for example.

[sodusme]

I'd beg to differ. I been through the court system and I was definitely guilty until proven innocent. Hell I was even truly innocent and then proven and charged as guilty. I think all court systems...

[1boxman]

Proving on that an IP is person was stated they cannot...but I thing in civil type or lower class court.. if they have more than just an IP ..it will not matter .The other evidence is what I would be more worried about (paper trial,emails etc)

After all we are not dealing with a Oj's trial where the glove did not fit ...lol

[sodusme]

Proving on that an IP is person was stated they cannot...but I thing in civil type or lower class court.. if they have more than just an IP ..it will not matter .The other evidence is what I would be more worried about (paper trial,emails etc)

After all we are not dealing with a Oj's trial where the glove did not fit ...lol

Yeah but they don't have any of that in a simple filesharing case. The most they would have is a screenshot from some college kid who captured your i.p. in a torrent "swarm". Simple filesharing involves in paper trail or emails or purchases for that matter unless you are buying the torrent program and there are so many free ones you don't have to.

[1boxman]

True...now there are a lot of ..so called private sites now(for torrents)..which I think may hinder them . Same like iks ..that will only give them a target for molls and retrieve critical info .