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Re: [tor-talk] Legal problems: TOR relay & Torrents in .de

On 2/11/2013 1:31 PM, Hendrik Neumann wrote:
Hey Joe,

thanks for sharing!

They're demanding â450 compensation for the alleged sharing of the
movie via BitTorrent. Plus â506 lawyer's fees. So in total we're
talking about â956,-

FOX is working with a German company, ipoque GmbH, that monitors
filesharing platforms. So they've logged my IP (the exit node), the
time stamp, the hash of the file in question and got a court order
that forced my ISP to handover my personal data to them.


On Mon, Feb 11, 2013 at 7:41 PM, Joe Btfsplk <joebtfsplk@xxxxxxx> wrote:
I've forgotten the specifics of your OP.  Exactly how much are they
demanding (Eu / $US)?

There are people associated with Tor / very knowledgeable about problems of exit relays & to some extent, laws in certain countries. If you haven't gotten in touch w/ them, I suggest doing so. But Simon is correct - send any correspondence to the via certified, return receipt mail (U.S. postal terms, for mail w/ a record of sending & record of recipient's signature for receipt). They also tend to know "you're serious" when the letter is sent certified, return receipt.

In many US cities, there are free legal services / advice on civil matters, available once or twice / mo, depending on the city. I have OFTEN talked my way into getting a few min of free time for short consultation w/ lawyers, by just calling their office. Sometimes, I've paid a small amount for 30 min consultation (that often ran over 30 min, but wasn't charged any more).

(please seek others experiences on this same matter in your country; or legal advice - if you feel the need. I know NOTHING about German law, but I know a great deal about U.S. / my state's laws) Do what you wish w/ my writing here - or nothing at all. You may be able to take some of it, adapt it to LOCAL laws, plus info from Tor Project's "form letters" & then compose a very convincing letter. Or write a draft letter, then have a lawyer revise it. That would probably cost much less than walking into a lawyer's office w/ absolutely nothing for him to start with.

When my spouse sued an employer, she had a "free" lawyer, board certified in Employment Law, through a type of "Union." I drafted and / or edited / amended many of the letters that went back / forth during the long grievance process, which the lawyer sometimes revised (sometimes sent as I'd written them). Many times, I pointed out things he failed to include in the letters and final settlement agreement, that he conceded were good ideas.

My take is they are acting more like a bill collection agency (in the US), hoping to scare people into paying up. They likely know from experience, some will pay out of fear. Some won't - but it costs very little to send threatening letters. If it's that kind of a fishing expedition, my experience is once they find out a person is aware of the legalities of a situation, they back off. It's not uncommon for them to offer a "reduced settlement" amount, as a last ditch effort to get something. A lot of people then jump at that, to get them off their backs.

One thing I can say w/ certainty - 506 Euros is probably NO where near enough for an attorney to agree to actually go to court. Which is exactly what they'd have to do, to get money, if you refuse to voluntarily pay.

In the US, NO, NO, NO lawyer would agree to actually take a case to court for ~ $679 US. For that amount, ALL they will do is write some letters. To take a case to court, they'd require $2000 US - probably more - from their client, unless they were taking it on contingency & TRULY believed they could win a judgement of many thousands. Then, in U.S., they would get (by contract) 33 - 40% of the judgement. What's 40% of 450 Euro?

Believe me, I've tried to get lawyers to take cases on contingency, but none were interested because they said either there wasn't enough $ that would be awarded (even if we won) and / or they weren't confident that the case could be won, based on laws & circumstances. Unless I was willing to pay a hefty, non refundable retainer ($2000 - $5000 US), they said "no way" on cases that didn't involve 10's of 1000's of $. BUT... it depends on laws in YOUR jurisdiction. _Is it *ILLEGAL* to RUN a Tor exit relay in (Germany?)??_ That's 1st & foremost. Legally, what would be the difference (or liability, if any existed) in running an exit vs. entry or middle relay?

If anyone, anywhere (democratic society) were to d/l copy righted material through a mainstream, commercial ISP, would the copy right owner sue the ISP (or be able to), because the file was downloaded through their server? I doubt it. I personally never heard of such a case. The ISP may warn or even terminate the user's service if they are notified about d/l copy righted material, but they're never sued (AFAIK). Yet, copy righted material is downloaded 24 / 7 / 365 through mainstream ISPs. They MIGHT even be able to stop some of those transfers, if they wanted to; but still, no one ever sues an ISP for this.

It's true, a large ISP may have more $ to fend off any lawsuits, but I've only heard of music / video industries suing the PERSON(S) that downloaded the file, presumably for their use - NOT sue the downloader's ISP. By that analogy, any ISP could be legally liable for any & all copy righted / protected material downloaded through them. They would go bankrupt in a few weeks.

Did you touch, see or even KNOW about the file(s) in question, until they notified you? Did you use it; benefit from it in ANY way; entice the person to d/l it; show them where / how to d/l it?
You certainly didn't host the files or even have links to them.
*Tor experts:* Could exit relay operators realistically monitor & STOP transfer of such files, even if they wanted to? How would they know, at a moments notice, if a file was copy righted, & stop the transfer - any more than an ISP does ? ISPs don't, do they? :)

These are all (likely... depending on local laws) factors that establish any sort of liability. They can ask for $10,000. That doesn't mean you legally owe anything. That depends on local laws.

Other than exit relay operators are often "little fish" w/ few resources to defend themselves, (others more experienced w/ exit relay legalities can chime in), how is a Tor exit relay any more liable for what is transferred through their server than a regular ISP? Other than exit relay operators are probably easier to scare than ISPs. In the US, anyone can sue anyone else or threaten to sue / ask for out of court settlement, for ANYTHING. That doesn't mean they'd win anything or the case wouldn't be thrown out by a judge.

The law or some legal precedent (in most countries) has to state that a party is legally liable for a particular action. Even then, (I assume in most democratic countries), it has to be shown that a person's action meets one or more of CERTAIN criteria, that varies by jurisdiction: The alleged action IS illegal. (If that's not clear, no lawyer will take a case & try to establish new precedent for 506 Euros). The person actually knew about, should have known about and/ or was LEGALLY responsible for the alleged activity; and that they had some reasonable way to stop the activity. Or that in a GIVEN situation, you are legally responsible TO BE aware of what is transpiring and LEGALLY responsible for stopping a given action.

Do Tor exit operators (in Germany) monitor the contents of ALL data & have the ability to check if it's copy righted / illegal, & have ability to stop the transfer of such data? Are they legally required to do so?

Perhaps it's time for Tor Project, as a non - profit organization, to look into developing some legal strategy, language, agreement - similar to what ISPs have (or other non profits), in order to use their service / software. ISPs have TOS warning users against many things, including the user will not use their service for any illegal activities. And they put all of the legal liability on the user. And apparently, laws of most countries allow them to do so.

Unless relays are only run by persons or corp's. w/ deep pockets, the Tor project can't keep letting relay operators take all the legal responsibility by themselves & expect the organization to prosper. This isn't some underground organization. In actuality, ISPs are no better / worse than a Tor relay operator. Except ISPs get paid.

Knowledge is power.
Best wishes,
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