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

[Joe Btfsplk]

On 2/11/2013 1:31 PM, Hendrik Neumann wrote:
> Hey Joe,
>
> thanks for sharing!
>
> They're demanding €450 compensation for the alleged sharing of the
> movie via BitTorrent. Plus €506 lawyer's fees. So in total we're
> talking about €956,-
>
> 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.
>
> Cheers,
> Hendrik
>
>
> On Mon, Feb 11, 2013 at 7:41 PM, Joe Btfsplk <joebtfsplk at gmx.com> wrote:
>> I've forgotten the specifics of your OP.  Exactly how much are they
>> demanding (Eu / $US)?
>>
Hendrik,
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,