How effective is HTML or a URL when presented by them? I feel that much like a screen shot, those things could be falsified.
Sure. Things can be falsified. People can lie. People can be mistaken and so on.
But a judge would take testimony, listen to both sides. If an
actual human at BWP said that they grabbed that html, that would be 'evidence' because testimony is 'evidence'. The judge would decide how credible he found the source, and weigh it against other evidence (and testimony) you might supply, but it would still be evidence. And you have to recognize that all evidence has some level of imperfection, so a judge isn't going to necessarily decide that all evidence has to be perfect before it 'counts'. Lots of evidence is imperfect, but one listens to a bunch of evidence before judging what one thinks probably happened.
Collecting together as much evidence in your own favor and from as trustworthy sources as possible is useful. This might be useful
http://www.webcitation.org/ It's at least 3rd party, and you could testify you created the archive and it matches what was online. Could it be spoofed? Maybe. But the current state of the page is useful information for you to present it's better to archive it than to not archive it.
When you say that evidence can be ambiguous, is that in favor of the accuser?
I don't know. It probably depends on how flimsey it is and precisely what features are ambiguous. With respect to the wayback: it never stored images. It stored html so it's a record of the html. In fact, you did host the image and swapped out a different image at the uri in the wayback html, the wayback version of the page would <I>now</i> show a different image. So, to some extent, the wayback is not especially good for the accuser-- unless they have humans filling out affidavits indicating that they views the display and html and verified that the screenshot of the way back is an accurate representation of what the wayback displayed on the day that specific human viewed the page. Also, the accusor probably needs to store the html when taking the screenshot.
Besides that: if you weren't permitting hotlinking, images stored on your server aren't going to show on the wayback version of the pages. So screenshots of the wayback aren't going to help BWP. They are goign to need html, and collect a file of stuff to persuade the judge.
As for the more general question of who ambiguous evidence favors: would be a civil suit, so the judgement is based on balance of evidence-- that is which person the judge believes more-- so pretty much 51/49 calls favor the person on the '51' side of the balance. In contrast, a criminal trial is beyond a reasonable doubt.
That was my thought. Every day longer it goes, the more likely it is that evidence will be destroyed. That is also why I'm trying to figure out what they might have.
If there is something in your favor you need preserved, preserve it. Some free online archiving systems exist (
www.webcitation.org). You can get them to archive pages that show current conditions at least. If archives of current pages favor you, archive them. And make sure you archive each necessary bit separately. (Example: it will archive whatever page you ask it to. If you need to archive the uri's for images to prove they were hot links-- do that. And so on. I know you are saying you just don't know where the image ever was-- but archiving the page with no image on it would be useful.)
Again, what I was thinking. What types of things do you think someone might be forced to admit?
I don't know. I assume during discovery, they would ask you to say whether the image was hosted on your machine. If you hosted it on your machine, you would likely need to divulge that. If you don't know, you don't know and you get to say that. Or, if you know it was hotlinked, you get to say that.
Though-- actually-- I'm not sure precisely what limits exist on discovery. I know they can only ask you relevant stuff-- but the judge would likely deam questions about hosting the image relevant.
Likewise,
you could ask
them to provide you any html they had, what logs they have, documents pertaining to copyright registrations, contracts with authors and so on. They can't just keep that all a big super dark secret.
It might be possible they can call you to the stand and ask whatever relevant questions they want. I don't know how the 5th amendment comes in here-- but this wouldn't be a criminal trial and nothing you did was criminal. So really, the 5th probably doesn't protect you at all. I'd guess you'd probably have to answer questions asked in any trial. But really, you need to ask an attorney how broad discovery might be.
Bear in mind: discovery can only happen after the file a suit, pay some filing fees and so on.
It's odd that so many are filed and some are going to court because that doesn't seem to fit the usual troll model.
It's not the getty model. But that doesn't necessarily mean it's not the model. Porn trolls have gone to court, though with some rather 'interesting' methods.
It is multi-author. Each does have a separate account. There are also about 2,000 registered subscribers.
Basically, that's what you would tell a judge if your defense was that
you didn't upload. But your lawyer would have to advise you whether that defense would help. (Ordinarily, this is precisely the situation that DMAC protects you in. That said, my impression of what happens if you don't have a DMAC agent is 'we don't really know'. That is: DMAC protects you if you have an agent. But.... are you liable for someone else's uploading otherwise? Dunno. Congress thought we needed DMAC to ensure protection under some circumstances, but that doesn't necessarily mean that people
were unprotected pre-DMAC but they certainly might have been unprotected. But once again: that's the sort of thing good IP attorney would advise you on. )
Topic: Received a Complaint from BWP Media USA (Read 86318 times)