Society | Babachanian | Legal Counsel

The High Risk of Using Peer-to-Peer Networks

Sark — Wed, 30 Jan 2013 20:53:23 +0000

Peer-to-Peer file sharing (“P2P”) networks allow users to download files like music, movies and games using a P2P software client that searches for other connected computers. In theory, sharing is good. In practice, however, it’s full of risks.

Companies like Napster, BitTorrent, Kazaa, LimeWire, FrostWire, the now-but-maybe-not-for-long-defunct Megaupload, etc., tie users together so they can share files. Users who install the software have a “public folder” or “shared folder” which is searchable for all other users if a certain setting is turned on – and that setting is often turned on by default.

There are two big problems we see in the legal community: (1) copyright violations; and (2) child pornography violations. Both are big problems, but society takes child porn especially seriously. The penalties for engaging in child porn are severe; accidentally viewing child pornography can carry serious consequences, as can “researching” it as The Who’s guitarist Pete Townsend discovered the hard way.

On the copyright front, the issue is stealing the work of others. Though there are serious criminal penalties for copyright infringement (this article about Kim Dotcom comes to mind), the civil justice system deals with most copyright infringement by means of federal lawsuits. If the infringed copyright is registered, statutory damages can lead to awards of $200,000 or more per infringement – plus attorney fees which themselves can be costly. So, that Talking Heads song you wanted to download for “free” instead of paying $0.99 on iTunes? Think again.

Another problem is that some adult porn production companies have hired investigators to find P2P users who’ve ripped off their copyrighted films. They search for IP addresses (kind of like Internet phone numbers) corresponding to illegally downloaded files, then have their lawyers file federal copyright infringement lawsuits naming “DOE” (unknown) defendants. The pornsters’ lawyers then subpoena names from internet service providers (“ISPs”) to ID people corresponding to target IPs, and then fire off “cease and desist” settlement letter threatening severe consequences (and implying the veiled consequence of public disclosure). Of course, people tend not to want to be named as porn infringement defendants, so they settle – even if it wasn’t them who did the nasty deed but their pimple-faced kid, live-in uncle or, um, wife. Voila! New porn profit center!

The real problem with P2P is this. Say you don’t take my advice and decide instead to search for that awesome Cream tune on some P2P network. I mean, who can resist Clapton with a guitar, right? So you search for “Cream song” on your fav P2P and go off to work, figuring you’ll be surprised by some choice tidbits when you get home. Your P2P software gets busy searching other people’s’ computers for “Cream song” and downloads whatever it finds to your public folder (which is defaulted to share with everyone else, remember?). Well, it just so happens that ol’ Freddy out of Montreal really likes child porn, and named one of his favorite files “Cream song” which has now found its way into your computer. Meanwhile, FBI Special Agent I.V. Gotcha has a database listing known child porn files identified by unique hash values, and notices that file is on on a P2P node computer with a unique IP address. (Sounds like some 4th Amendment issues are raised, eh?) Special Agent Gotcha then issues an administrative subpoena to your ISP who gives up the name of the subscriber (i.e. you) who might not be the offender but is in trouble anyway. Not quite the choice tidbit you were hoping for, huh? So, the next time you feel like ripping off an artist instead of forking over a buck, think twice – it might cost you much more than you expected.

A parting suggestion: password protect your home and business wi-fi networks against unauthorized access to lock out those who would piggy-back on your system to do harm.

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Is Celebrity Online Impersonation Illegal?

Sark — Mon, 14 Jan 2013 17:58:49 +0000

California Penal Code section 528.5 makes some forms of impersonation a misdemeanor punishable by ip to a year in the county jail. Take a look at the actual code section below (current when I wrote this) to see what’s illegal to do, but remember that even acts not technically violating this law might violate others so be careful!

PC 528.5. (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated. (c) For purposes of this section, “electronic means” shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name.

(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.

(f) This section shall not preclude prosecution under any other law.

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“Good Morning, Teacher!” Like School Never Ended…

Sark — Wed, 09 Jan 2013 19:34:23 +0000

I muse at how lawyers waiting for morning calendar call sound like schoolchildren with a unified response to the judge’s greeting: “Good morning, your honor.” All that’s missing is the apple on the bench.

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Bailiff Clueless About Courtroom Security…

Sark — Wed, 09 Jan 2013 18:47:45 +0000

I’m waiting for my case to be called at Glendale Superior Court Dept. 2 yesterday and notice this big black plastic case on roller wheels stenciled “Emergency Floor Warden” in big red letters right next to the bailiff’s desk. I’ve been coming to this court for over 18 years and never saw it before so, my curiosity piqued, I asked the sheriff’s deputy – you know, the dude assigned to secure the courtroom – what was in the box. Hard to believe, but he said he had no idea and frankly didn’t seem at all interested. In fact, this particular deputy seems to have a very limited interest – being as generally mean, rude and unpleasant as possible. Your tax dollars at work.

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NTSB Recommends Ignition Interlock Devices for 1st Time DUI…

Sark — Fri, 14 Dec 2012 00:41:10 +0000

For years LA area defendants convicted of first-time DUI were free from imposition of Ignition Interlock Devices – alcohol sensing car gadgets that need a clean blow to start the car. Looks like that’s changing. At least one client is reporting to me this month that the DMV has gone ahead and required an IID as part of a pilot project. Listen to this 12-12-12 podcast from Larry Mantle’s AirTalk on 89.3 KPCC to hear different perspectives about this important topic.

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Even Judge Troubled About Imposing “Mandatory Minimum” Life Sentences, But Hands Tied…

Sark — Thu, 13 Dec 2012 23:51:32 +0000

Even the judge agreed the “mandatory minimum” life sentence without possibility of parol was too much, but his hands were tied by the law. What a heartbreaking story by New York Times reporter John Tierney. There are sooo many reasons MMs are wrong including the cost of incarceration but mostly because, in many, many cases, they are simply unjust. Fellow Americans, KNOW what’s going on around you and SPREAD THE WORD!

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Feds Crack Down on Cannabis Superstore, Starting Forfeiture Proceedings…

Sark — Thu, 12 Jul 2012 23:56:05 +0000

Forfeiture proceedings – as predicted by yours truly. The store owner vows to fight, but until the law is changed at the federal level, the risk of loss of property and even liberty is very great for those who run and rent to dispensaries. At least the Feds aren’t coming in with arrest warrants – yet. I’m close to certain THAT will change if Romney wins. Here’s the LA Times article by Joe Mozingo.

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EXCEPT in LA and Some Other Cities, OK to Park at Broken Meters in California After 1-1-13

Sark — Thu, 12 Jul 2012 23:48:12 +0000

Except in Los Angeles and some other cities that exempt themselves from a state law effective January 1, 2013, it’s okay for drivers to park at broken meters. More at KTLA here. It’s different, however, in the City of Los Angeles (and perhaps other California cities). On December 5, 2012, all Los Angeles City Council members except Jan Perry voted to go around state law and continue to cite those parking at broken meters. That story by Wesley Lowery of the Los Angeles Times is here. Beware!

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9th Circuit: Medical Marijuana Not Protected by Americans With Disabilities Act

Sark — Tue, 22 May 2012 18:36:41 +0000

“We recognize that the federal government’s views on the wisdom of restricting medical marijuana use may be evolving,” wrote Judge Raymond C. Fisher. “But for now Congress has determined that, for purposes of federal law, marijuana is unacceptable for medical use.” See the LA Times article by Maura Dolan.

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Jury: former LA Sheriff’s deputy sane when he tortured and sexually assaulted his wife and her lover

Sark — Tue, 22 May 2012 18:11:23 +0000

This LA Times article shows some cops are capable of terrible cruelty. This’s why it’s so important not to prejudge cops as good. Many no doubt are great, but if the police are left unchecked, unscrupulous officers will work injustices. All they have to do is lie in a report or on the stand, and chances are they will be believed by the judge or jury. Fortunately, the bad apples seem rare; after all, LAPD and LASD together have probably over 20,000 cops in their ranks and the more people in any organization, the more likely there will be people problems. The point is, we members of the public must keep vigilant about the quality of our police.

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