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IamGimli

join:2004-02-28
Canada
kudos:2
reply to axus

Re: New Canadian Bittorrent lawsuit: Who shared "Recoil&quo

said by axus:

The problem with this argument, is that it's basing legal responsibility on the language of the Terms of Service. If the terms of service didn't assign responsibility to the user, would there be any difference in their legal responsibility?

Yes there would, which is why all ISPs include similar language in their terms of service.

In such a civil case, all the complainant can prove is what IP address the traffic came from. That IP address can be assigned to an ISP with very little doubt that the ISP owns the IP range, which is why the complainant's first stop is the ISP. At that point the complainant holds the ISP responsible for the tort that it suffered because that's who legally "owns" the IP.

This is where the terms of service come in. Because you have that contract with the ISP that says that YOU are legally responsible for everything that happens using your account, instead of your ISP. Since your ISP has good logs of which account uses which IP at any given time, they can then turn to the complainant and say "look buddy, my records show that it's Customer Joe-Bob who is responsible for the tort you claim, and here's the contract that Joe-Bob signed that says so".

Again, in a civil case such as this, the judge will look at the evidence presented by all parties (which include both the complainant and the ISP as a named interest in the case) and is very likely to determine that Joe-Bob is responsible for the tort in the balance of probabilities, unless Joe-Bob can prove it wasn't his account that was using that IP when the tort occurred, or can provide evidence of someone else being responsible for the tort, like a contract, logs, etc.

axus

join:2001-06-18
Washington, DC
Reviews:
·Comcast

said by IamGimli:

said by axus:

The problem with this argument, is that it's basing legal responsibility on the language of the Terms of Service. If the terms of service didn't assign responsibility to the user, would there be any difference in their legal responsibility?

Yes there would, which is why all ISPs include similar language in their terms of service.

In such a civil case, all the complainant can prove is what IP address the traffic came from. That IP address can be assigned to an ISP with very little doubt that the ISP owns the IP range, which is why the complainant's first stop is the ISP. At that point the complainant holds the ISP responsible for the tort that it suffered because that's who legally "owns" the IP.

This is where the terms of service come in. Because you have that contract with the ISP that says that YOU are legally responsible for everything that happens using your account, instead of your ISP. Since your ISP has good logs of which account uses which IP at any given time, they can then turn to the complainant and say "look buddy, my records show that it's Customer Joe-Bob who is responsible for the tort you claim, and here's the contract that Joe-Bob signed that says so".

Again, in a civil case such as this, the judge will look at the evidence presented by all parties (which include both the complainant and the ISP as a named interest in the case) and is very likely to determine that Joe-Bob is responsible for the tort in the balance of probabilities, unless Joe-Bob can prove it wasn't his account that was using that IP when the tort occurred, or can provide evidence of someone else being responsible for the tort, like a contract, logs, etc.

But it was the user (or someone on their system) who downloaded the file. The ISP never even had a copy of the file. It seems very hard to prove their guilt of copyright violation, just because a download was routed to one of their IPs.


rednekcowboy

join:2012-03-21
kudos:1
Reviews:
·Acanac

2 edits

1 recommendation

reply to IamGimli

said by IamGimli:

said by axus:

The problem with this argument, is that it's basing legal responsibility on the language of the Terms of Service. If the terms of service didn't assign responsibility to the user, would there be any difference in their legal responsibility?

Yes there would, which is why all ISPs include similar language in their terms of service.

In such a civil case, all the complainant can prove is what IP address the traffic came from. That IP address can be assigned to an ISP with very little doubt that the ISP owns the IP range, which is why the complainant's first stop is the ISP. At that point the complainant holds the ISP responsible for the tort that it suffered because that's who legally "owns" the IP.

This is where the terms of service come in. Because you have that contract with the ISP that says that YOU are legally responsible for everything that happens using your account, instead of your ISP. Since your ISP has good logs of which account uses which IP at any given time, they can then turn to the complainant and say "look buddy, my records show that it's Customer Joe-Bob who is responsible for the tort you claim, and here's the contract that Joe-Bob signed that says so".

Again, in a civil case such as this, the judge will look at the evidence presented by all parties (which include both the complainant and the ISP as a named interest in the case) and is very likely to determine that Joe-Bob is responsible for the tort in the balance of probabilities, unless Joe-Bob can prove it wasn't his account that was using that IP when the tort occurred, or can provide evidence of someone else being responsible for the tort, like a contract, logs, etc.

You really are quite daft.

Your agreement with your ISP is not a legally binding agreement with a third party nor does it absolve the ISP of any responsibility with that third party.

The reason I said you need to learn about contract law and civil suits is that no court in the country operates in the fashion now, nor have they ever nor will they ever.

If the copyright holder deems that the ISP is responsible, then they sue them and if they can prove it in a court of law (yes, a civil court is still a court of law, bound by the law and has to follow the rules of the law) that they are responsible and win, then the ISP can sue you to recoup those damages and use the TOS against you. However the ISP cannot use the TOS they have signed with you to claim they are not responsible. The ISP can (and only the ISP can seeing as that is who the contract is between--YOU AND THE ISP) try and hold you responsible to them for any damage you may cause them or their network due to activities on your account. However, even the legal validity of that TOS can be challenged as no one can force you to claim responsibility for something you did not do.

If the copyright holder decides to sue you based on your account information they subpoenaed from your ISP, then they still have to prove, by a preponderance of the evidence that it was actually you that committed the infringing act (preponderance of evidence means more likely than not which is the standard of proof in CIVIL COURT).

This is the way contracts work, it is also the way the courts work. I would ask you for examples of it not working this way, but we both know that you are just simply full of hot air and trying to cause a panic among the general populace of torrent users.


hm

@videotron.ca

IamGimli, Redneck is correct.

If what you stated was true, then the family owning that Rogers IP that Pierre Poutine used would have been sued.

The best IT investigators in all of Canada could not prove they were the ones responsible based on the Rogers IP that they owned.

Pierre Poutine showed more than how to perform Election Fraud, you know.

Now think if you are a parent paying for your kids internet access. Your kid might be going to Uni of Chaboogamoo, Alberta, while you (the accounts receivable in the ISP accounting system) live in Val D'dor, Quebec.

The accounts receivable is the info they get (refer to the Hurt locker case). That is, who pays the account, thus who owns the IP.

IP does not equal the person.

In addition, let's say this went to court, which I doubt, and the court demands to know who the kid is. Well that one kid living with 4 other students who also use the net and same IP can't be fingered as the one either. How can they?

You seem to be saying that the parent should be and will be held liable as the guilty one, even though they were in a diff prov and can't even get said ISP or IP in question.

These is just one scenario. There are quite a few others. Pierre Poutine is our Guy Fawkes He should be celebrated.


IamGimli

join:2004-02-28
Canada
kudos:2

said by hm :

IamGimli, Redneck is correct.

If what you stated was true, then the family owning that Rogers IP that Pierre Poutine used would have been sued.

Who has a civil case against "Pierre Poutine"? What would that case be?

said by hm :

The best IT investigators in all of Canada could not prove they were the ones responsible based on the Rogers IP that they owned.

They couldn't prove it beyond reasonable doubt, which is not the standard for CIVIL court.

said by hm :

Now think if you are a parent paying for your kids internet access. Your kid might be going to Uni of Chaboogamoo, Alberta, while you (the accounts receivable in the ISP accounting system) live in Val D'dor, Quebec.

The accounts receivable is the info they get (refer to the Hurt locker case). That is, who pays the account, thus who owns the IP.

IP does not equal the person.

In addition, let's say this went to court, which I doubt, and the court demands to know who the kid is. Well that one kid living with 4 other students who also use the net and same IP can't be fingered as the one either. How can they?

You seem to be saying that the parent should be and will be held liable as the guilty one, even though they were in a diff prov and can't even get said ISP or IP in question.

Not guilty, that's a CRIMINAL COURT term and doesn't apply to this. RESPONSIBLE, that's CIVIL COURT. Think OJ Simpson. Not criminally guilty, but still had to pay the families of his victims damages following a CIVIL court case.

said by hm :

These is just one scenario. There are quite a few others. Pierre Poutine is our Guy Fawkes He should be celebrated.

Only by those who have no clue what civil court is.


rednekcowboy

join:2012-03-21
kudos:1
Reviews:
·Acanac

I have yet to see where he uses the term "not guilty." You need to learn to read, he says "liable" as the guilty party. Liable is most definitely commonly used civil legal terminology. His point is still the same either way. Quit grasping at straws.

You are wrong. Just because you say something does not make it so. That and the correlations you are drawing are absolutely laughable and ludicrous. Please provide some examples of what you so adamantly are trying to pass of as fact! You won't because you can't seeing as it's all fiction dreamt up when your head hits the pillow.


IamGimli

join:2004-02-28
Canada
kudos:2

said by rednekcowboy:

I have yet to see where he uses the term "not guilty."

I didn't say he used "not guilty", I said he used "guilty" incorrectly.

said by hm :

You seem to be saying that the parent should be and will be held liable as the guilty one, even though they were in a diff prov and can't even get said ISP or IP in question.

said by rednekcowboy:

You need to learn to read

Right back at you.

Maybe you were too busy thinking of your next insult instead of an actual argument.


rednekcowboy

join:2012-03-21
kudos:1
Reviews:
·Acanac

2 edits

2 recommendations

said by IamGimli:

I didn't say he used "not guilty", I said he used "guilty" incorrectly.

said by IamGimli See ProfileNot guilty, that's a CRIMINAL COURT

You said right there that he use not guilty when you know full well that he was talking liability and just drawing a correlation but because you didn't have a relevant response you decided to be a troll instead.

I've made numerous posts as of late over the last couple of pages that you have not countered one point in. I've asked you for examples and am still waiting on those. You asked for examples, I provided some. You insist I do not know about contract law or the inner-workings of civil court, and I have refuted that time and again.

What we are left with is you sir, that have no clue the way contracts or liability works. You have no clue the way the law works, you have no examples to back up your statements on how a third party can use a contract in a court of law that they were not a party to, you started with the insults and repeated berrating of anyone who dares disagrees with you in this thread. You have been rude and condescending and have yet to make any valid points that haven't been dreamed up in that tiny little world that you hole yourself up in.

World-wide they are taking this stance that an IP is by no means proof of anything. Off the top of my head I can name quite a few countries that have taken this stance. Actually some, such as Switzerland and Portugal have gone even a step further and declared piracy for personal use is not only acceptable but perfectly legal for their citizens.

Don't even get me into the whole argument about how piracy supposedly hurts the pocketbooks of the copyright holders because most likely than not, someone who pirated the material would never, ever buy it in the first place, therefore equating a no difference to the rights holders. You could also take that one step further and once the pirate tries something out, he recommends it to his legit friends, thereby helping the rights holders by generating sales that never would have been there in the first place (there have been studies, one from Harvard, proving this).

Now either say something relevant in regards to copyright infringement instead of traffic court or bugger off cause you sir are just a rude, obnoxious, little troll.

IamGimli

join:2004-02-28
Canada
kudos:2

said by rednekcowboy:

You said right there that he use not guilty when you know full well that he was talking liability and just drawing a correlation but because you didn't have a relevant response you decided to be a troll instead.

Again, you're misinterpreting what I said, even after I explained it. Keep believing your fantasy if you wish but that's YOUR fantasy, not mine.

said by rednekcowboy:

I've made numerous posts as of late over the last couple of pages that you have not countered one point in. I've asked you for examples and am still waiting on those. You asked for examples, I provided some. You insist I do not know about contract law or the inner-workings of civil court, and I have refuted that time and again.

I haven't countered them again because I already countered them. Your examples have no influence on Canadian law and jurisprudence. Just because you keep repeating something wrong doesn't make it right. Besides, I won't stoop down to your level and try to counter insults.

said by rednekcowboy:

What we are left with is you sir, that have no clue the way contracts or liability works. You have no clue the way the law works, you have no examples to back up your statements on how a third party can use a contract in a court of law that they were not a party to

Again, that's your misinterpretation of what I said, I never said that a third party would introduce it, only that it would be introduced. You're again taking your fantasy for reality and then arguing with yourself.

said by rednekcowboy:

you started with the insults and repeated berrating of anyone who dares disagrees with you in this thread. You have been rude and condescending and have yet to make any valid points that haven't been dreamed up in that tiny little world that you hole yourself up in.

Whatever.

said by rednekcowboy:

World-wide they are taking this stance that an IP is by no means proof of anything. Off the top of my head I can name quite a few countries that have taken this stance. Actually some, such as Switzerland and Portugal have gone even a step further and declared piracy for personal use is not only acceptable but perfectly legal for their citizens.

One has no relation to the other, how could it be going "even a step further"?

Since I never said IPs were persons I wonder why you would make such an argument. Of course IPs aren't persons, just like license plates aren't persons, but tickets are still issued to car owners whose car go through red lights based on the data available on their license plate.

BTW "personal use" doesn't include broadcasting and sharing, which is what the Canadian court cases are about.

said by rednekcowboy:

Don't even get me into the whole argument about how piracy supposedly hurts the pocketbooks of the copyright holders because most likely than not, someone who pirated the material would never, ever buy it in the first place, therefore equating a no difference to the rights holders. You could also take that one step further and once the pirate tries something out, he recommends it to his legit friends, thereby helping the rights holders by generating sales that never would have been there in the first place (there have been studies, one from Harvard, proving this).

Which is why the Plaintiff still has to prove damages in civil court, unless he decides to ask for the statutory damages the Legislator included in section 38.1 of the Copyright Act.

said by rednekcowboy:

Now either say something relevant in regards to copyright infringement instead of traffic court or bugger off cause you sir are just a rude, obnoxious, little troll.

Again, right back at ya.


rednekcowboy

join:2012-03-21
kudos:1
Reviews:
·Acanac

2 edits

said by IamGimli:

said by rednekcowboy:

You said right there that he use not guilty when you know full well that he was talking liability and just drawing a correlation but because you didn't have a relevant response you decided to be a troll instead.

Again, you're misinterpreting what I said, even after I explained it. Keep believing your fantasy if you wish but that's YOUR fantasy, not mine.

said by rednekcowboy:

I've made numerous posts as of late over the last couple of pages that you have not countered one point in. I've asked you for examples and am still waiting on those. You asked for examples, I provided some. You insist I do not know about contract law or the inner-workings of civil court, and I have refuted that time and again.

I haven't countered them again because I already countered them. Your examples have no influence on Canadian law and jurisprudence. Just because you keep repeating something wrong doesn't make it right. Besides, I won't stoop down to your level and try to counter insults.

said by rednekcowboy:

What we are left with is you sir, that have no clue the way contracts or liability works. You have no clue the way the law works, you have no examples to back up your statements on how a third party can use a contract in a court of law that they were not a party to

Again, that's your misinterpretation of what I said, I never said that a third party would introduce it, only that it would be introduced. You're again taking your fantasy for reality and then arguing with yourself.

said by rednekcowboy:

you started with the insults and repeated berrating of anyone who dares disagrees with you in this thread. You have been rude and condescending and have yet to make any valid points that haven't been dreamed up in that tiny little world that you hole yourself up in.

Whatever.

said by rednekcowboy:

World-wide they are taking this stance that an IP is by no means proof of anything. Off the top of my head I can name quite a few countries that have taken this stance. Actually some, such as Switzerland and Portugal have gone even a step further and declared piracy for personal use is not only acceptable but perfectly legal for their citizens.

One has no relation to the other, how could it be going "even a step further"?

Since I never said IPs were persons I wonder why you would make such an argument. Of course IPs aren't persons, just like license plates aren't persons, but tickets are still issued to car owners whose car go through red lights based on the data available on their license plate.

BTW "personal use" doesn't include broadcasting and sharing, which is what the Canadian court cases are about.

said by rednekcowboy:

Don't even get me into the whole argument about how piracy supposedly hurts the pocketbooks of the copyright holders because most likely than not, someone who pirated the material would never, ever buy it in the first place, therefore equating a no difference to the rights holders. You could also take that one step further and once the pirate tries something out, he recommends it to his legit friends, thereby helping the rights holders by generating sales that never would have been there in the first place (there have been studies, one from Harvard, proving this).

Which is why the Plaintiff still has to prove damages in civil court, unless he decides to ask for the statutory damages the Legislator included in section 38.1 of the Copyright Act.

said by rednekcowboy:

Now either say something relevant in regards to copyright infringement instead of traffic court or bugger off cause you sir are just a rude, obnoxious, little troll.

Again, right back at ya.

So, after all that, just more hot air? How about some examples to prove what you are saying then, Mr. Smarty pants? Oh wait, that's right, there isn't any.....

AND yes Portugal has declared TORRENTING legal. They specifically mention it as it's a necessary means to an end. In order to get the file, you have to share the file.

Also, you are the one spouting off about IP is all they need and have been doing so the entire thread. Now that you're backed into a corner, you're changing your tune. I never said IP's were persons either, I said they don't prove anything. Again, you need to learn to read instead of just trolling.

Again, if you have nothing to offer, no proof to show, nothing other than your own statements and hot air, then what you are offering is completely worthless. My examples may not be from this country, but they are from countries that Canada closely follows (the US) in it's operations and they go to show the global climate on this particular issue.


Eleonora

@distributel.net
reply to IamGimli

Hi IamGimli
I'm kinda neutral to the argue you have guys!!!

My question is can I be sued for downloading illegal movie in August 2012 if a new law became effective November 7 , 2012

Are some of the Canadian Laws retroactive??

Thanks in advance!