copyright intellectual-property internet youtube online-piracy
Would Joel Tenenbaum or Jammie Thomas-Rasset be sued today?
<p>What I understand is</p>
<ol>
<li><p>Technically, Joel and Jammie were sued for <em>uploading</em>.</p>
</li>
<li><p>Practically, Joel and Jammie were sued for <em>downloading</em> and were unfortunate victims of not turning off seeding after downloading music via torrent: Their 'uploading' was not that they were really the original uploaders of the music like there was this torrent file and then it was uploaded from an account belonging to them. Rather, they were just seeding which is automatic in torrent clients (unless you set upload speed to zero or something...so I've heard).</p>
</li>
<li><p>Nowadays, it's much easier to both illegally download music and not have problems re the turn off seeding: <strong>Just <a href="https://law.stackexchange.com/questions/1648/is-downloading-youtube-videos-legal">download from youtube</a>.</strong></p>
</li>
<li><p>Their trials were mid-2000s which is when YouTube just began. Over a decade later, not only is YouTube huge but also are there so many ways to download from YouTube.</p>
</li>
<li><p>Copyright law has not changed (in their favour) at all since then yet I think because of the advent of technology, <strong>they are almost definitely not likely to be caught for illegally downloading</strong> - at least music...movies are another matter - because they'd be just downloading!</p>
<ul>
<li>5.1. Btw, the relevant difference I see between music and other stuff like <a href="https://economics.stackexchange.com/questions/6329/piracy-file-sharing-why-arent-songs-movies-or-ebooks-given-for-free-ads-l">movies/books/games</a> is that full songs are legally uploaded on YouTube for us to listen to for free. It's the same idea as <a href="https://en.wikipedia.org/wiki/Home_Taping_Is_Killing_Music" rel="nofollow noreferrer">radio</a>. It's not like movies which may be fully legally uploaded but we still have to pay or books which afaik aren't uploaded fully at all.</li>
</ul>
</li>
</ol>
<p><strong>Question</strong>: Did I misunderstand anything?</p>
<p><strong>Edit 1:</strong></p>
<p>I'm asking not if they'd be <strong>sued if they were caught or whatever</strong> but rather if maybe in the 1st place they <strong>wouldn't even be caught</strong>.</p>
<p>The conjecture I'm driving at here is that effectively (when I say 'effectively' here I mean in a de facto as opposed to a de jure sense) their crime <strong>isn't exactly copyright infringement</strong> but not having <strong>good enough technology to commit copyright infringement</strong>. The key difference here is YouTube downloading. YouTube wasn't as big then as it is now. And apparently it's a huge grey/gray area or whatever re downloading. YouTube is effectively radio without schedules. So you can think of downloading from YouTube as similar to home taping or whatever.</p>
<p>But yeah ok it's wrong if the RIAA have continued to catch people regardless of the advancement of technology (how would they know if their catch rates are as effective btw?) but simply stopped SLAPP or whatever.</p>
<p><strong>Edit 2:</strong></p>
<p>Another thing I thought of based on comment of Brandin: <a href="https://en.wikipedia.org/wiki/De_minimis" rel="nofollow noreferrer">De minimis</a>.</p>
<blockquote>
<p>One user downloading something from YouTube, even if it's an infringement, is extremely small in terms of damage. (...) On the other hand, if you place something on a website or on a torrent, and let hundreds of people download that copy, the damages are much more significant</p>
</blockquote>
<p>So yeah the RIAA has less incentive to go after youtube downloaders, so I figure Jammie and Joel would not be sued because they would not caught with today's technology.</p>

<p>The RIAA changed their litigation strategy in the late 2000s and it (and its members) generally no longer sue individuals. See <a href="https://hbr.org/2008/12/why-the-riaa-stopped-suing" rel="nofollow noreferrer">https://hbr.org/2008/12/why-the-riaa-stopped-suing</a></p>
<p>If you're just asking for a prediction about whether Tenenbaum or Thomas-Rasset would be sued today if they were to impermissibly make copyrighted music available to the public again, my preduction would be no. But I have to say this is an odd prediction to ask us to make. And I wouldn't have much to argue against somebody who predicts the other direction.</p>

<h2>If it was porn via torrent... Up until ca. 2020 the answer would be: it was likely to be sued if downloading much of it</h2>
<p>There's a huge market in adult films, and it has bought up some of the most aggressive litigants ever.</p>
<p><a href="https://en.wikipedia.org/wiki/Prenda_Law" rel="nofollow noreferrer"><strong>Prenda Law</strong></a> was such an enterprise, which worked with less than clean hands as they had uploaded the videos to the torrent swarm themselves and there were other shenanigans. All members of this group are disbarred or dead.</p>
<p>However, after Prenda Law was shut down, the market of suing people - or threatening to sue them - didn't die down immediately. Its strategy and makeup changed.</p>
<p>Up until about 2020, <strong>Strike 3 Holdings</strong> had quickly become one of two most active litigants in 2019/20. Their method was <a href="https://youtu.be/i-oWZF-jtdg" rel="nofollow noreferrer">to sue IP addresses for infringement to subpoena subscriber addresses from the ISPs</a> and then try to force the newly claimed defendant to settle while simultaneously keeping up the updated lawsuit. As an example of the method, I have a case from 2019, where <a href="https://youtu.be/mHSRMsy-Fvk" rel="nofollow noreferrer">Strike 3 Holdings secured a judgment against a non-appearing defendant.</a> However, around 2019, their system also started to fray and collapse on some key points:</p>
<ul>
<li><a href="https://youtu.be/4ZNJ_O-ifZU" rel="nofollow noreferrer">Geolocation wasn't a good identification even in 2019</a>, before VPN became as widespread as it is in 2022, leading to occasional lost cases.</li>
<li>By 2019, courts became increasingly hostile to Strike 3 Holding: what in 2015 would have been a slam-dunk case for Strike 3, <a href="https://www.youtube.com/watch?v=ZIx1DcOCMPo" rel="nofollow noreferrer">was thrown out</a>. <a href="https://www.youtube.com/watch?v=eXAkXyysfFU" rel="nofollow noreferrer">repeatedly.</a> Something that <a href="https://www.youtube.com/watch?v=7KZMZDF7tPw" rel="nofollow noreferrer">didn't stop in 2020.</a></li>
<li>Atop that, in or before February 2020, <a href="https://youtu.be/LDGyEiSXMtQ" rel="nofollow noreferrer">Strike3 Holding lost against a defendant,</a> and the defendant was awarded costs and fees - in a rather huge amount.</li>
<li>As courts stopped giving Strike 3 Holdings the subpoenas easily anymore, <a href="https://youtu.be/6gxz_lvwKC8" rel="nofollow noreferrer">they went to a Florida State Court</a> to get subpoenas for subscribers.  However, suing in the wrong jurisdiction first so they can file with a name in the right one, even if they knew where the correct venue was, <a href="https://youtu.be/Rt2Xorn9ijA" rel="nofollow noreferrer">might be an abuse of process</a> - though if that works <a href="https://youtu.be/fx_kahzGHzg" rel="nofollow noreferrer">depends on the judge</a>.</li>
<li>In late 2021, an application to search the harddrive of the subscriber to prove the holdings allegation <a href="https://youtu.be/mNg2778jw8w" rel="nofollow noreferrer">was denied</a> - The court found they need to have the evidence <strong>before</strong> they allege the wrongdoing, and fishing expeditions were not ok.</li>
<li>More recently, <a href="https://youtu.be/Db_vkSmliFY" rel="nofollow noreferrer">Geolocation from an IP address was deemed not enough to establish who a user is.</a></li>
</ul>
<p>A similar company was <strong>Malibu Media</strong>, a little older than Strike3 Holdings. They had filed about <strong>9000 cases in the 10 years from 2012 to 2022</strong>. But <a href="https://youtu.be/sT95nSe6IeY?list=PLkdgWccrJAy5F-Ps4bprddODSMOd15n4F" rel="nofollow noreferrer">in late 2019, they were struck with a verdict to pay the fees for a defendant in one of their cases</a> during a streak of losses. Why? They didn't even bother to present evidence. <a href="https://youtu.be/JJYzcWVqfXY" rel="nofollow noreferrer">They also lost their lawyer in late 2019 and were sued for outstanding bills.</a> That verdict to pay the lawyer fees of the defendant - just abotu 50000 USD, wasn't paid even in <a href="https://youtu.be/m58aUclsuNM" rel="nofollow noreferrer">late 2021</a>. As a subsequent hearing showed, <a href="https://www.youtube.com/watch?v=2q5zzh5TYDo" rel="nofollow noreferrer">the company was pretty much bancrupt</a>. And then they <a href="https://youtu.be/glpGcr-loqQ" rel="nofollow noreferrer">tried to hide away assets from the lost case, leading to inflated costs of over 100000 in 2022.</a> Which might actually be criminal.</p>
<h2>Catchup</h2>
<p><strong>If it was about mid-2019</strong>, and the two did download Malibu Media or Strike 3 Holdings adult films en masse, <strong>they'd most certainly have been successfully sued.</strong> But the playing field did change since then:</p>
<p>The impending death of Malibu Media shows that the original method employed by the RIAA and the adult film rightsholders might no longer be sustainable in the same way it had been before. The needed evidence since about 2020 needs to suffice much-heightened standards. Evidence to those standards can't be obtained easily. The problems shown by Strike 3 to get their defendant's IDs to properly file suit make it easy to believe that the chances to be successfully sued for downloading such content are dwindling. <strong>That doesn't make it legal!</strong></p>
<h2>Getting Caught: how does a torrent identify its downloaders and seeds?</h2>
<blockquote>
<p>if maybe in the 1st place they wouldn't even be caught.</p>
</blockquote>
<p>What is caught? If you download a torrent, you start with no file and are a pure leech. <strong>Every <em>leech</em> tells their IP to all <em>seeds</em> as they ask them to send a portion of the file.</strong> Once you have downloaded any part of the file, you are both a leech and a seed at the same time: You download parts you don't yet have and distribute all parts you do already have. Only when you have the <strong>complete</strong> file you can disable seeding at all. It's also common for torrent programs that any <em>seed</em> prefers to answer requests from <em>leeches</em> that have share files.</p>
<p>Now, by joining the torrent, you can get the IP address of leeches just by having nothing in your database and then going through all the seeds that are partial. Now, by leeching (or just pretending to!), you can log the IP addresses of all people who seed portions or the whole torrent (or its content files) with timestamps. That's how the IP addresses were acquired in the first place. <strong>This very method was and is used by ANY company that tried and still tries to hunt infringers that used torrents.</strong></p>
<p>The IP addresses were processed through geolocation (which as mentioned is faulty). In the identified state, a Lawsuit is brought against &quot;John Doe with IP X.X.X.X at YYYY-MM-DD-HH-MM-SS&quot;, and an ex-parte motion for a subpoena made to the ISP. Up until about 2019, such a motion was usually rubberstamped, but scrutiny for such is <em>much</em> higher since then.</p>
<p><strong>Neither Law nor torrent technology hasn't changed since 2000. Only the enforcement of copyright holders' rights became much harder!</strong></p>
<h2>faulty premises?</h2>
<blockquote>
<h4>their crime isn't exactly copyright infringement</h4>
</blockquote>
<p>This is plain wrong. Downloading material without a license is by definition making an unlicensed copy. This is statutory copyright infringement, because it is clear as day behavior described as <a href="https://www.law.cornell.edu/uscode/text/17/501" rel="nofollow noreferrer">17 USC 501 (a)</a>:</p>
<blockquote>
<p><strong>Anyone</strong> who violates any of the exclusive rights of the copyright owner as provided by <a href="https://www.law.cornell.edu/uscode/text/17/chapter-1" rel="nofollow noreferrer">sections 106 through 122</a>...</p>
</blockquote>
<p>And we are most certainly looking at <a href="https://www.law.cornell.edu/uscode/text/17/106" rel="nofollow noreferrer">17 USC 106</a>:</p>
<blockquote>
<p>the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1)to reproduce the copyrighted work in copies ...</p>
</blockquote>
<p><strong>Downloading or uploading without having a license for it, you violate law.</strong></p>
<blockquote>
<h4>... but not having good enough technology to commit copyright infringement.</h4>
</blockquote>
<p>That is <strong>TOTALLY IRRELEVANT</strong> to the law at hand, it still is illegal. However, it expresses the sentiment of <em>they broke the law and got away with it</em>. This actually <strong>is</strong> starting to happen since about 2020 in torrent cases, as elaborated above.</p>
<blockquote>
<h4>fine maybe but all [content] are free for stream?</h4>
</blockquote>
<p><strong>No</strong>. There's music and content that most certainly is not allowed to even be on YouTube by the rightsholders. A few examples:</p>
<ul>
<li>Films! Type in any film in YouTube, and unless it is a super old film with expired copyright, the only option to view it is &quot;Buy the film!&quot; in the right sidebar, or watch an illegal copy.</li>
<li>You won't find legal copies of most podcasts on youtube. As a random example... <a href="https://courtgamespod.com/" rel="nofollow noreferrer">the Courtgames Podcast</a> distributes only via a set list of ways, and lo and behold, YouTube is not one of them. As a result, any YouTube version would be copyright infringement by the uploader. They have expressed no interest in pursuing any copyright action of such though.</li>
<li>Similar to podcasts, some independent composers and bands don't want to work with YouTube and distribute only via radio-esque services like Spotify, where they get indemnified by the number of hearings, or websites where you only get a sample and then can buy the song or album. There <em>have</em> been DMCA takedowns for such illegal copies, <strong>resulting in some content just being unavailable through YouTube streaming.</strong>
<ul>
<li>Or via the internet at all: the only way to get a licensed copy of a local Punk-band's latest album is to buy a copy from them directly, which is then burned onto a hand-signed LaserDisk.</li>
</ul>
</li>
</ul>
