4 ms·

These lawsuits rely on what the lawyers call the "in terrorem" effect. On the one side: people who are all set up for the fight, who have done the detailed res

by grellas 16y ago

These lawsuits rely on what the lawyers call the "in terrorem" effect. On the one side: people who are all set up for the fight, who have done the detailed research, who have drafted the key documents, and who are familiar and comfortable with a legal setting in which they hold all the advantages. On the other side: an individual who gets a complete packet up front (detailed letter, draft complaint) in the form of a certified letter, who learns from his lawyer that he has no good defenses, and who discovers that it will take many thousands (if not tens of thousands of dollars) to defend this, and who ultimately has no stake in putting good money after bad to launch a major fight over a stupid download of what was likely a crappy movie anyway. Basically, one who becomes a target here is like a chess player left only with his king to try to resist an opponent who has a range of big pieces. He could make a few futile moves before checkmate or he can resign immediately and accept the inevitable. That is why it is a no-brainer to just pay the $1,500 and be done with it. Even with an arguably good defense, it just is not worth it for an average person to step into the fight.

josefresco 16y ago
All it takes is a few people to stand up for themselves with some help from a great organization like the EFF and suddenly those expensive lawyers are racking up huge costly hours.= and these lawsuits look less attractive. http://www.eff.org/about/contact http://www.eff.org/about/contact "If you're in trouble, you can contact us at information@eff.org."
williamjames 16y ago
You may be suggesting an answer to this in your posting, but I'm still curious: Do you think that any of these cases will actually be brought forth? It seems to me that none will be, and to bring one to trial would be a very bad idea. The only way that it would be an easy case is if the defendant did not have wireless, was the leasee of the internet service, and was the only one on the network. Change any one of these variables, or add countless other things (VPN, etc.), and the case becomes progressively harder. Let's say that a case is brought forward: It will have widespread national media attention and everybody will be watching. Attorneys will be lining up to represent the defendant. Most importantly: The whole business model of the firm representing the complainant will hinge on the decision of the case.
- wmf 16y ago
  http://en.wikipedia.org/wiki/Capitol_v._Thomas http://en.wikipedia.org/wiki/Capitol_v._Thomas http://en.wikipedia.org/wiki/RIAA_v._Tenenbaum http://en.wikipedia.org/wiki/RIAA_v._Tenenbaum
- grellas 16y ago
  RIAA messed up its litigation strategy by pushing its cases to the extreme and drawing headlines such as "$4.2 million verdict for downloading 28 songs" and the like. That strategy was clearly a bullying strategy but it was a stupid bullying strategy. It was stupid because it caused the public to recoil at the thought that a poor student (or some such person) would be ruthlessly crushed at the hands of a bunch of greedy record labels for having done something that didn't seem to deserve anywhere near such punishment. Eventually, the courts themselves came to the same position and dramatically reduced the damages awarded in such cases. RIAA had to abandon this strategy once it became clear that it would not really deter such downloading that much and, if it did, it would not be worth the price of the public relations disaster it was causing. One thing to note about the RIAA strategy, however, is that, whatever the caliber of the legal talent on the defense side, RIAA still managed to win most of the cases on their merits. In other words, however much a defendant resisted, liability tended to be imposed at some level. Thus, it was primarily the excessive damage claims that got RIAA into trouble, not the legal merits of its claims as such. Given that background, in this current spate of cases, you still have nothing more than institutional bullying, just as with RIAA but it is a low-level type of bullying of the "pay us $1,500 and we will forget this ever happened" variety and not of the "we will crush you and take your last penny" variety. This means that anyone who wants to fight this - even with good defense help from quality lawyers - will be at risk of incurring costs and liabilities that will easily exceed the walk-away payout that would simply allow them to put a bad episode behind them. And, if even a quality defense will not likely spare you from liability of some sort in the average case, it just isn't worth fighting for the average person. Thus, by not overreaching, the plaintiffs in these suits have actually strengthened their position. In effect, they are playing the numbers - by intimidating thousands of individuals into paying small amounts, they are ultimately gaining a significant payout in the aggregate. Of course, this would not necessarily hold in more doubtful cases where a real defense might exist. But for the average user who simply did an improper download, there is no percentage in fighting it. It might be that EFF has a good answer and their hearts are in the right place - but, unless there is radical change made to existing copyright laws, basically there is no good institutional response to this pattern of low-level bullying. Yes, an individual case might be successfully fought but, even if that case is won, it will only be for some failure of proof to show liability in that case alone. This does nothing to change the template for the mass of cases. And, if the plaintiffs in such cases can't be shamed into dropping them (as RIAA was), I don't see that they will. Sorry to sound a down note but I think this is a realistic assessment. I would love to be wrong on this.

by grellas 16y ago

josefresco 16y ago

All it takes is a few people to stand up for themselves with some help from a great organization like the EFF and suddenly those expensive lawyers are racking up huge costly hours.= and these lawsuits look less attractive. http://www.eff.org/about/contact http://www.eff.org/about/contact "If you're in trouble, you can contact us at information@eff.org."

williamjames 16y ago

You may be suggesting an answer to this in your posting, but I'm still curious: Do you think that any of these cases will actually be brought forth? It seems to me that none will be, and to bring one to trial would be a very bad idea. The only way that it would be an easy case is if the defendant did not have wireless, was the leasee of the internet service, and was the only one on the network. Change any one of these variables, or add countless other things (VPN, etc.), and the case becomes progressively harder. Let's say that a case is brought forward: It will have widespread national media attention and everybody will be watching. Attorneys will be lining up to represent the defendant. Most importantly: The whole business model of the firm representing the complainant will hinge on the decision of the case.

wmf 16y ago
http://en.wikipedia.org/wiki/Capitol_v._Thomas http://en.wikipedia.org/wiki/Capitol_v._Thomas http://en.wikipedia.org/wiki/RIAA_v._Tenenbaum http://en.wikipedia.org/wiki/RIAA_v._Tenenbaum
grellas 16y ago
RIAA messed up its litigation strategy by pushing its cases to the extreme and drawing headlines such as "$4.2 million verdict for downloading 28 songs" and the like. That strategy was clearly a bullying strategy but it was a stupid bullying strategy. It was stupid because it caused the public to recoil at the thought that a poor student (or some such person) would be ruthlessly crushed at the hands of a bunch of greedy record labels for having done something that didn't seem to deserve anywhere near such punishment. Eventually, the courts themselves came to the same position and dramatically reduced the damages awarded in such cases. RIAA had to abandon this strategy once it became clear that it would not really deter such downloading that much and, if it did, it would not be worth the price of the public relations disaster it was causing. One thing to note about the RIAA strategy, however, is that, whatever the caliber of the legal talent on the defense side, RIAA still managed to win most of the cases on their merits. In other words, however much a defendant resisted, liability tended to be imposed at some level. Thus, it was primarily the excessive damage claims that got RIAA into trouble, not the legal merits of its claims as such. Given that background, in this current spate of cases, you still have nothing more than institutional bullying, just as with RIAA but it is a low-level type of bullying of the "pay us $1,500 and we will forget this ever happened" variety and not of the "we will crush you and take your last penny" variety. This means that anyone who wants to fight this - even with good defense help from quality lawyers - will be at risk of incurring costs and liabilities that will easily exceed the walk-away payout that would simply allow them to put a bad episode behind them. And, if even a quality defense will not likely spare you from liability of some sort in the average case, it just isn't worth fighting for the average person. Thus, by not overreaching, the plaintiffs in these suits have actually strengthened their position. In effect, they are playing the numbers - by intimidating thousands of individuals into paying small amounts, they are ultimately gaining a significant payout in the aggregate. Of course, this would not necessarily hold in more doubtful cases where a real defense might exist. But for the average user who simply did an improper download, there is no percentage in fighting it. It might be that EFF has a good answer and their hearts are in the right place - but, unless there is radical change made to existing copyright laws, basically there is no good institutional response to this pattern of low-level bullying. Yes, an individual case might be successfully fought but, even if that case is won, it will only be for some failure of proof to show liability in that case alone. This does nothing to change the template for the mass of cases. And, if the plaintiffs in such cases can't be shamed into dropping them (as RIAA was), I don't see that they will. Sorry to sound a down note but I think this is a realistic assessment. I would love to be wrong on this.