You know the old saying: If you can’t beat ‘em, join ‘em – and online music site, Grooveshark, seems to be taking that sage advice to heart. Instead of getting into bed with the labels, they’re reaching out to artists – a definite sign the company is looking to the future, not miring themselves in the label-model. But will this new move anger the RIAA gods? You better believe it. Why? Because Grooveshark is going to allow users to pay artists directly.
Why Is Grooveshark Hard To Kill?
If you follow file sharing news, then you know that Grooveshark is one of the more bothersome thorns in the RIAA’s side. The platform’s user-sharing format is set up in such a way that it evades certain intellectual property laws. The simple reason Grooveshark has managed to stick around, while others failed, can be succinctly explained in the company’s unofficial motto: Grooveshark does not violate the Digital Millennium Copyright Act.
Over the years, lobbyists and associations have tried to concoct ways to bury Grooveshark. But nothing has stuck. Since Grooveshark ostensibly follows DMCA takedown notice procedures, it’s tough to nail the music streaming service. Yes, there have been accusations that employees are the ones uploading infringing material, but as far as I know, that has yet to be proved.
The New Grooveshark Updates – What It Means
So, on November 1, not only is Grooveshark going to have a snazzy new design, but it will also feature a new service called Flattr. Perhaps the next big thing in crowdsourcing and crowdsupporting, Flattr allows users to deposit money into an account; then, similar to a Facebook “like,” users can choose to “flattr” an artist. At the end of each month, a given user’s account is split between all the people they flattr’d that month. So, let’s say you have $10 in your account for October, and you “flattr” two artists during the month, they would each get $5 from you at the end of the month.
Pretty ingenious if you ask me; the labels are going to despise it and there’s a good chance the “kids” will be all over it – further widening the divide between politics, traditional business models and Internet innovation.
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A California Judge recently set a precedent that shields Internet subscribers from being sued due to their “negligence” in locking down their Wi-Fi security.
In the case of AF Holdings vs. Josh Hatfield and John Doe, AF Holdings sued Josh Hatfield for failing to secure his WiFi connection, which they said was negligence on his part and led to piracy of some of their adult movie content.
Hatfield filed a motion to dismiss the charges, arguing there was no way the adult entertainment company could say he had an obligation to secure his Wi-Fi Internet connection to protect their company from piracy. Judge Phyllis Hamilton agreed with Hatfield.
According to the court documents, “AF Holdings argues that it seeks to hold Hatfield liable for ‘negligent maintenance of his residential network,’ which it asserts allowed a third-party to commit large-scale infringement of AF Holdings’ copyrighted works.
“Specifically, AF Holdings alleges in the complaint that Hatfield owed it a duty to secure his Internet connection to prevent infringement of AF Holdings’ copyrighted works. Thus, the entirety of this claim involves the allegation that Hatfield failed to take certain steps – in other words, allegations of non-feasance (as opposed to misfeasance).”
Because Hatfield did not have a special relationship with AF Holdings, he had no obligation to try to secure his network to protect their copyrighted material. This ruling should have long lasting effects on a tactic that copyright trolls use, claiming “negligence” in the case of defendants who did not secure their personal computer networks – namely WiFi connections.
The Problem with the Negligence Strategy
The “negligence” tactic was used to circumvent previous court rulings that said “IP addresses do not equal people.” The main problem is that federal copyright laws would trump any claim of negligence by media companies. Additionally, Section 230 of the federal Communications Decency Act might also be used before a local personal injury claim.
This means that media companies will likely go back to the drawing board in order to come up with new ways to try to hunt down illegal downloaders. Most of the time, companies find a list of offending IP addresses and attempt to attach those IP numbers to specific people so they can take them to court. However, these methods have not been too successful in all areas of the country. And this recent case involving “negligence” is sure to slow down efforts.
Copyright Infringement and Fighting Piracy Online
While copyright protection is very important to the modern business world, the methods used to fight piracy need to be solution-based, not intimidation-based. For now, partly thanks to this ruling, private citizens don’t have to worry as much about “negligence” claims in illegal downloading lawsuits; but this does not mean media companies aren’t staying up late, trying to come up with ways to keep the copyright troll game alive.
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Believe it or not, not so long ago, illegal downloading was legal. But that all changed when MIT student, David LaMacchia, successfully argued the dismissal of his case by reasoning that pirating activities weren’t personally profitable, and therefore not sanctionable under the Copyright Act. Shortly after the decision, officials got to work closing the “LaMacchia Loophole” and ultimately passed the No Electronic Theft Act (NET Act).
LaMacchia’s File Sharing Set-Up (What Got Him In Trouble)
David LaMacchia, a then 21-year-old student at the Massachusetts Institute of Technology, was a fan of file sharing. To satiate his pirating penchant, LaMacchia set up a network where people could upload their files to an anonymous encrypted server called Cynosure. Once there, LaMacchia would upload the Cynosure files to another encrypted server, Cynosure II, from which people could download files. LaMacchia asked that users keep his network on the down-low, but it wasn’t too long before the traffic volume was too much for the university to ignore.
A Massachusetts federal grand jury indicted LaMacchia in April 1994 for “conspiring with persons unknown” in violation of the wire fraud statute (18 U.S.C. Sec. 1343). Prosecutors alleged that since LaMacchia didn’t pay proper licensing or royalty fees, he caused more than $1 million in losses.
On September 30, 1994, LaMacchia filed a motion to dismiss the case. LaMacchia argued that “copyright prosecutions for alleged copyright infringement must be brought, if at all, under the Copyright Act, and could not be brought under statutes enacted by Congress to prohibit interstate theft and fraud” – a legal precedence established in Downling v. United States (1985). Moreover, prosecuting using federal felony wire-fraud statutes would have made criminal “the myriad of home computer users who succumb to the temptation to copy even a single software program for private use.” The ruling judge, Justice Richard Stearns, had no other choice but to dismiss the case.
Along Comes the NET Act
Nobody likes to lose – especially government officials. So after the “LaMacchia Loophole” was exposed, politicians got to work drafting and passing the No Electronic Theft Act (NET Act). Essentially, the bill criminalized illegal downloading by changing Titles 17 and 18 of the United States Code to include the “receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.” Prior to the amendment, the law only called for sanctions against those who enjoyed “commercial advantage or private financial gain” as a result of violating copyright statutes.
In addition, the NET Act made clear that criminal prosecutions could not go forward unless “1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $ 1,000” over a given “180-day period.”
Online copyright infringement is a complicated area of law. The key to successful Internet intellectual property litigation is a lawyer who understands the nuances of copyright, trademark and trade dress violations in the context of the Web. With a dedicated Internet law practice, Kelly / Warner are those attorneys. Who knows, we may be able to find the next “LaMacchia Loophole” on your behalf. Contact us today to begin the conversation.
First the “Penguin” and “Panda” updates changed search results dramatically, and now there is the “Emanuel” update – a term coined by Search Engine Land, in honor of media agency executive (read: RIAA & MPAA mouth piece), Ari Emanuel. What will the new Google update accomplish? Technically, it will incorporate “copyright takedown requests” as a search factor, which will push file-sharing and BitTorrent sites down in the SERPs. Politically, it will appease the entertainment industry who has been whining about Google’s inaction when it comes to piracy.
How Will Google Be Incorporating The New Anti-Piracy Update?
In a three-paragraph statement, Amit Singhal, SVP, Engineering, posted on the company blog that Google “will begin taking into account a new signal in [their] rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results.” Singhal also explained that since Google “re-booted” their copyright removal procedures, they now have “much more data” and can as such incorporate the information into their algorithm.
What, Exactly, Does Google Mean By The Term “Valid”?
The word that jumps out when reading Google’s new anti-piracy update is “valid” — what do they mean by that? Are they talking about a valid complaint or a valid takedown request? After all, a valid takedown request simply means that all the proper paperwork was completed; but it doesn’t mean that the request is actually sound. Google acquiesces this fact in their announcement:
“Only copyright holders know if something is authorized, and only courts can decide if a copyright has been infringed; Google cannot determine whether a particular webpage does or does not violate copyright law.”
In other words, this update is a potential disaster in the making if the signal threshold is low. For example, what happens if Google receives 2 takedown requests for Flowershop A in week 1; now let’s assume that the two requests were sent in by rivals, Flowershops B and C. Will Flowershop A drop in the rankings until they can afford to hire an attorney to remedy the situation? Take it one step further and assume that the requests were sent in a week before Mother’s Day – the busiest flower day of the year – thus causing Flowershop A to drop in rankings during their most profitable window. Like I said, this update is a potential disaster in the making.
Of course, though, it’s important to point out that it’s never a good idea to compete via fake litigation. First of all, you run the risk of being counter-sued and losing a lot more than your attempt at gaming earned. Judges and juries don’t take kindly to those who use the justice system for personal gain. Moreover, if word of your deception leaks, you lose the trust of customers and therefore perhaps your business.
That being said, even if nobody tried to file a false DMCA takedown request, that doesn’t mean this new update will go off without a hitch. After all, just a few weeks ago, the Curiosity Mars landing was removed based on a faulty DMCA request.
Why An Anti-Piracy Search Update Now?
Google insists the impetus for adding an anti-piracy component to their algorithm is new data. But the street gospel is that Google’s sudden change of heart has more to do with the fact that they’re no longer just a search engine, but instead a content distribution company looking for partners — partners like the Recording industry Association or America and the Motion Picture Association of America.
Super-agent (and the inspiration for Ari Gold), Ari Emanuel, co-CEO of William Morris Endeavor, recently heckled the search-turned-content giant at an industry conference: “I don’t want them to censor results, but they have a bunch of smart guys there that can figure this stuff out….Look, Google can filter and does filter for child pornography. They do that already. So stealing is a bad thing, and child pornography is a bad thing.” Translation: if you want to get into the distribution game, you better start at least feigning disgust with piracy.
Like all Google updates, we won’t learn the true ramifications of this one for another few weeks when the data starts rolling in. At that time, analysts will be able to determine if sites that receive thousands of takedown requests (like filetube.com, isohunt.com and torrenthoud.com) will be the only ones affected, or if savvy competitors will be able to launch weak, but technically valid, search-foiling “DMCA attacks” against foes.
For better or worse, piracy is a part of the digital age. Politicians and special interest groups consider it a money-sucking plague, while statistics continue to show that online copyright violations have had, at worse, a neutral effect, and at best, a positive effect on certain entertainment sectors. Truth be told, the stats are so alarming it makes you wonder if anti-piracy advocates are self-perpetuating a litigation industry that ultimately only benefits label executives and association big-wigs.
Furthering that notion are two recent developments highlighted on TorrentFreak.com. The first being the revelation that the €550,000, which Pirate Bay defendants have to pony-up, will go back into a copyright litigation kiddy and not artists’ wallets; the second, a leaked slide-show wherein the RIAA admits that SOPA was an “important principle, but legislation not likely to have been effective tool for music.” While the leaked presentation may have been written after the failed SOPA attempt, and thus reflective of post-SOPA sensibilities, it still highlights that the RIAA’s agenda may really be about public relations as opposed to problem solving.
The Pirate Bay Copyright Incident Comes To an End; Jail-Time & Large Fines Handed Down
While they put up a long and noble fight, the Swedish Supreme Court found the infamous Pirate Bay four — Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström — guilty of criminal intellectual property infringement. As punishment, they received jail sentences and were ordered to pay about $1,000,000 to various “harmed” labels, including EMI Music, Universal Music and Sony Music. Pecuniary damages were calculated by figuring out what the defendants would have had to pay if they licensed the music legally.
Money Not Going To Artists
If you thought, however, that even a small part of that money would be given back to the actual artists, think again. According to TorrentFreak, who got a look at IFPI legal documents, monies collected from the Pirate Bay case will be funneled directly back into anti-piracy measures, not content creators’ pockets. According to the RIAA, “any funds recouped are re-invested into our ongoing education and anti-piracy programs.”
“As far as I know,” began Sunde in a statement, “no money ever won in a lawsuit by IFPI or the RIAA has even gone to any actual artist.” He continued, “It’s more likely the money will be spent on cocaine than the artists that they’re ‘defending’.” (Thems fightin’ words!)
The Real Numbers?
The RIAA, MPAA and federal government often cite extraordinarily high loss numbers when speaking about the impact of piracy on the United States. A figure commonly used by anti-piracy advocates, which was calculated by a known lobbying group, is $58 billion in loss. But according to other reports, while the music industry has seen about an $8 million dollar loss over the past several years, the movie, TV and Satellite industry enjoyed a nearly 50% increase in revenues over the past few years – resulting in a net gain, despite increased piracy, which has led some to pontificate that piracy may actually be good for the entertainment industry.
The court made its ruling, but will the labels even recover the monies owed? “We have filed applications with Sweden’s Enforcement Agency to secure assets to satisfy these funds,” read a document about the case, “[s]o far very little has been recovered as the individuals have no traceable assets in Sweden and the Enforcement Agency has no powers to investigate outside Sweden. There seems little realistic prospect of recovering funds.”
Perhaps, however, the Pirate Bay Four best explained the hypocrisy of the whole pecuniary situation, “They [the labels] say that people who download give money to thieves – but if someone actually ends up paying (in this case: three individuals) then it’s been paid for. So who’s the thief when they don’t give the money to the artists?”
In light of the labels’ plans for recovered damages, I’ll ask again: do you think entertainment executives and lobbyists are slyly creating their own closed-loop litigation revenue stream? One that cheats artists’ out of money by exploiting common anti-theft sensibilities? But then again, I guess a troll, is a troll, is a troll — no matter who they know or the size of their coffers. #fightcopyrighttrolls
In the U.S., the Digital Millennium Copyright Act has been the law of the land since 2000. Like many Internet laws, the DMCA has its supports and detractors. Those in favor of the act see it as an effective way to protect intellectual property that finds its way onto the Web; anti-DMCA advocates feel the statute is an out-dated process that does little more than cause confusion and provide a way for market adversaries to unfairly “knock-off” a competitor.
Since the DMCA is currently the most viable way for copyright holders to legally combat Internet infringement, entertainment associations and media conglomerates, like the Recording Industry of America, British Recording Industry, Motion Picture Association of America and NBC Universal, use the statute to aggressively combat piracy. But many think these organizations are nothing more than well-financed copyright trolls who abuse the DMCA takedown process and unfairly expect special treatment.
While both sides’ arguments are based in legal precedence, it may be time for governing officials to re-examine the current state of online piracy. Because at the end of the day, the question politicians should be asking is whether or not the effort and money spent on drafting, promoting and enforcing digital copyright statutes – which is often based on biased propaganda – is right for the United States – a country drowning in debt that could use a healthy dose of innovation injection.
Before We Begin, Here’s A Little Background on the DMCA Takedown Process
While nuanced, the purpose of DMCA legislation is simple: the bill provides a way for copyright and trademark holders to report online intellectual property infringement with the goal of having the material exorcised from the Internet.
How it usually works is that a lawyer first files a DMCA takedown request on behalf of an individual or business. The notice usually includes specific legalese requesting that a piece of protected material be removed from the Internet. Once an entity is in possession of a DMCA takedown notice, by law, they are required to notify the alleged copyright infringer and give them the opportunity to file a counter-notice.
If the DMCA takedown notice is sent to a search engine like Google, and the original DMCA takedown request goes uncontested, the search engine usually removes the link to the offending material from their index. Historically, it used to take several weeks to see results. According to recent reports, however, some DMCA takedown requests are handled within 11 hours — a questionable stat considering the act does contain provisions for challenge responses.
While the DMCA process is often effective, if you believe a report published by Google, nearly 57% of DMCA takedown notices are initiated by business competitors, and 37% are bogus.
Google Releases DMCA Takedown Statistics for May
As part of their transparency initiative, Google publishes their monthly DMCA takedown stats for all to see – and the numbers are staggering. Catch this:
Google processes nearly 1.5 million a month! To put things in perspective, the entirety of 2009 saw a total of 1.2 million DMCA takedowns.
According to Google’s stats, Filestube.com – a Polish file sharing company – received the most number of DMCA takedown requests. Extratorrent.com came in second. Which companies are requesting the most takedowns? Those honors go to Marketlly, NBC Universal and the British Recording Industry (the UK equivalent to the RIAA).
Fun Fact: in May 2012, the total number of DMCA takedown requests filed by NBC Universal and the British Recording Industry came close to half a million for the month.
RIAA Responds To Google’s DMCA Takedown Data With Whiny Missive
The Recording Industry Association of America is a major voice in the “stop piracy at all costs” camp. As the lobbying arm for major recording labels, it seems the RIAA’s primary goal is to punish pirates and act as an online infringement-busting battalion.
One of their favorite tools of combat is eye-popping statistics. Recent RIAA propaganda asserts that $58 billion dollars and 373,000 jobs have been lost to piracy. Now, when the average person or politician hears those numbers, it’s almost impossible not to fall down on the side of piracy-busters. But as Rob Reid points out, those numbers are, at best, bombastic, and at worse, flat out impossible.
Despite the above logic, the RIAA contends that Google isn’t doing enough to terminate all link-removal requests. As such, the association wants to be able to run as many search-and-destroy bots as they want on Google’s servers, which theoretically mark and disable all links to “copyrighted” material, automatically. The problem is that bots aren’t perfect — so what happens if the bots mistakenly take down perfectly legal content?
Why The RIAA’s Special Treatment Requests Would Be A Gigantic Legal Blunder
You may still be thinking: “Stealing is stealing; why shouldn’t the RIAA be given the opportunity to develop permanent methods to protect their members’ online intellectual property?” It’s a fair thought, but the nature of the law is gray, rendering such black and white thinking dangerous when legally analyzing the DMCA.
Take Edwyn Collins, for example. If you can name all the Keaton children in ten seconds, then there’s a good chance you’ll remember Edwyn – the “A Girl Like You” one-hit-wonder singer. Being that the song is now 15 years-old, and all the licensing agreements have run their course, Collins thought he’d put the song up on his MySpace page.
Warner Music (his old label), however, was having none of that; the recording company sent in a DMCA request to MySpace, which was executed almost immediately. When Collins protested and tried to explain to MySpace that Warner Music no longer held the rights, his pleas were ignored.
To make a long story short, it took many months – and many emails containing an “Orwellian MySpace copyright re-education page” — for the musician to prove he was the rightful copyright holder of the song. While the issue did finally get cleared up, Collins can’t help pointing out that his song still appears on many a compilation CD, and labels are profiting off it, even though they don’t have the rights. As Grace Maxwell – Collins’ wife and manager – said, “[We are] aware of who the biggest bootleggers are, it’s not the filesharers.” She then went on to claim that “A Girl Like You” is illegally sold “all over the Internet…by all sorts of respectable major labels whose license to sell it ran out years ago and who do not account to him.”
David and Goliath copyright battles aren’t the only legal pitfall that may arise if organizations like the RIAA are granted unfettered access to troll the Net for alleged copyright infringements. Most forget about the DMCA’s perjury penalty provisions.
From the Digital Millennium Copyright Act:
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In laymen’s speak that translates to: if you file an erroneous DMCA takedown request, expect to be charged with perjury. In the United States, perjury comes with a hefty price tag. Convicted prevaricators can be fined up to $10,000 per incident or imprisoned for up to 5 years.
So let’s review. Automated copyright-sniffing bots are highly fallible and the Digital Millennium Copyright Act contains perjury penalties for falsely reported claims. Therefore, logic demands that the RIAA should think twice about launching proprietary DMCA-inspired content deactivators. If they don’t, the lobbying giant may end up paying more in damages than they actually lose to piracy.
Protecting one’s intellectual property rights is essential; but new communication and sharing models are an opportunity for artists and intellects to explore new distribution and promotional methods. Because when you examine the numbers, it’s obvious that “piracy” – in many cases – actually leads to better sales. Moreover, with even Broadway attendance up, it’s time for lobbying groups like the RIAA to stop publishing inaccurate, eye-popping loss numbers that give the impression that the music and movie industry are suffering more than they are.
Bottom line: responsible online intellectual property laws are needed; using Internet copyright legislation to clog up the courts and threaten innovative sharing and communication platforms, however, should have no place in 21st century litigation.
Four porn studios who sued unknown or anonymous John Doe defendants for copyright infringement recently saw their case suffer a serious setback.New York Magistrate Judge Gary R. Brown found the studios to be engaged in abusive litigation tactics.
Brown severely limited their discovery requests for detailed personal subscriber identifying information from Internet Service Providers (ISPs). Brown also found the studios had improperly joined defendants in an effort to avoid the costs of filing individual lawsuits. He ordered that all but one John Doe be dismissed from each case. One studio’s entire case was dismissed when it admitted that it did not own a copyright on the downloaded films.
It Started Like Nearly Every Other Copyright Troll Lawsuit
The plaintiffs claimed their copyrights were infringed when the John Does downloaded the studios’ copyrighted films using BitTorrent technology. The studios sought to discover, from the ISPs, the “name, address, telephone number, e-mail address, and Media Access Control (“MAC”) address of the defendant to whom the [provider] issued an IP address.” In the eyes of the studios, the subscriber was the infringer. The theory being: if the subscriber’s information is revealed, his or her name would then be substituted in the lawsuit in place of a John Doe.
Magistrate Brown Compares An IP Address To A Telephone Number & Therefore Is Not Suitable Evidence To Warrant The Disclosure Of PII
In denying the discovery request, Magistrate Brown noted that an IP address only identifies the location where any number of computers may exist. Claiming the subscriber to that address was the one who downloaded the film, according to Brown, was no more likely “[T]han to say an individual who pays the telephone bill made a specific telephone call.”
Brown also noted that one subscriber can have numerous computers used simultaneously by a number of different people. With wire-less connections, unknown people could be using a subscriber’s ISP. A company or business may be an ISP subscriber that allows access to employees, customers, or clients.
Since there is no way to determine the true downloaders identity via ISP records, granting the studios’ discovery request would have created too great a risk for the potential of innocent Internet users being drawn into litigation. Thus, Brown denied the discovery request finding that “the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.”
Judge In Illegal Downloading Case Realized Plaintiff’s Primary Goal Was To Push For A Settlement
It also appeared, to the judge, that the studios primary reason for wanting the information was to pursue settlement with identified defendants – defendants who would likely not want to go to a public trial for downloading pornography. This type of abuse was verified when one identified John Doe presented uncontroverted evidence that he had offered the studios unfettered access to his computer; he also offered all discovery they might need to prove he was not the infringer. Instead of taking him up on his offer, the studios badgered him repeatedly to settle.
Judge Said Joinder Was Inappropriate In Illegal Downloading Lawsuit
Magistrate Brown found the studios had engaged in other abusive litigation tactics by improperly joining a large number of defendants in one lawsuit. The studios claimed that the joinder was proper because all the defendants were “acting in concert” to violate the copyright and that each case was based on common facts. Brown debunked both of these theories.
First, the dates of the alleged infringements were often weeks or months apart so the “acting in concert” standard was not met. Neither was the standard of “common facts” when it was noted that at least six of the already known defendants had individual defenses and the only way that they could defend themselves was on an individual case by case basis.
Brown noted it was more likely the studios were filing a single case with a large number of defendants in order to avoid a filing fee that would be involved with each individual case. In Brown’s district court that amounted to about $100,000 in filing fees the studios had “evaded.” Thus, Brown found the joinder to be improper and dismissed all but one John Doe from each case. If the studios intend to pursue their litigation, they must file each case individually.
Granted Limited Information For One John Doe In Illegal Downloading Lawsuit
For the one remaining Doe defendant in each case, Brown allowed the studios to obtain only the name and address of that one particular subscriber. No other information, such as email or telephone number, would be provided.
Attorneys for the Electronic Frontier Foundation, was heartened by this ruling. Mitch Stolz, an experienced copyright attorney with the foundation, was quoted as saying, “There absolutely is a trend toward shutting down this sort of abuse of discovery.”
In fact, that trend is supported by Brown’s order where he cited several other district courts that have recently made the same rulings in similar cases. It can certainly be inferred from his order that he hopes other courts continue this trend.
Officials in the United Kingdom have made a bold move in the Internet copyright infringement and online piracy battle; they’ve ordered broadband providers to block infamous torrent search engine, The Pirate Bay.
But many feel the High Court’s decision will do little, if anything, to thwart pirates’ online piracy plans.
What Is The Pirate Bay? Why Do Officials Consider It Such An Online Piracy Threat
Nearly every article about online copyright infringement law mentions ubiquitous torrent site, The Pirate Bay. One of the most well-trafficked websites in the world, The Pirate Bay consistently ranks in Alexa’s top 100 worldwide.
Now you may be wondering, “well, if it’s a known site for online piracy, why can’t governments shut them down easily?” The legal crux is in the nature of the website itself. You see, The Pirate Bay does not host any illegal torrents on its servers; it simply acts as a search engine for said torrents. And since many countries legally prescribe to the precedent that linking to material alleged to be in violation of intellectual property statutes is not illegal, it’s tough to find a way to shut down these sites without walking dangerously close to the censorship line.
High Court’s Online Piracy Decision
Despite the fact that The Pirate Bay only acts as a search engine, and does not host the actual infringing content, Justice Arnold of the England and Wales High Court decried that the website “actively encourages copyright infringement” on a “grand scale.” The judge also chastised the site’s operators, saying that they treat “any attempts to prevent [copyright infringement] with contempt.” He also opined that The Pirate Bay was undermining new British musical talent.
And then Judge Arnold dropped the bomb and passed an edict that broadband companies must block The Pirate Bay.
TalkTalk, O2, Virgin Media, Everything Everywhere and Sky have all announced their plans to comply. BT is still reviewing the proposal, but are expected to fall in line as well.
According to various reports, the broadband companies will be using technology similar to pornography blocking software.
Will The UK High Court’s Ruling Effectively Combat Online Piracy?
The question is, though, will the UK High Court’s decision actually succeed in combating online copyright infringement? Most tech-savvy people are saying, “probably not.”
After all, those who actively use torrent sites also know how to block their IP address and other handy illegal downloading tricks of the trade. In fact, TorrentFreak.com has already published an article explaining how users can take advantage of programs like i2p TOR, and other VPN options; they also advocate switching to an open DNS. The UK pirate party has also announced plans to operate a “proxy workaround.”
Moreover, analysts point out that by taking such an extreme action against online piracy, the court has inadvertently made the pirates Robin Hood-esque heroes. Not to mention that this ruling puts the cost onus on the ISPs, not the infringers.
And as they say, there’s no such thing as bad publicity. Since the news broke about shutting down The Pirate Bay in the UK, operators of the site say they have seen 12 million new visitors to the site.
Bottom line: blocking access to torrent sites is going to do very little to stop online piracy. And we can chase the problem with laws all we want to no avail. The truth is that some of these media distributors should probably start looking for more innovative ways to deliver content to the masses more quickly. After all, it’s the Internet-age, and I bet the movie studio or record label that first figures out a way to satiate our instant gratification needs, at a “new economy” price-point, will reap significant financial rewards and turn a large portion of the online pirates into paying customers.
There’s another live one from the porn downloading lawsuit files. Filed at the end of January, in the Northern District of California, Liuxia Wong submitted a claim against Hard Drive Productions, Inc. and Does 1-50.
It Started Like Any Other Porn Downloading Lawsuit…
Wong’s porn downloading lawsuit started like they normally do; Liuxia received a settlement letter demanding $3,400, for an act of alleged online copyright infringement occurring on March 28, 2011. The communication explained that Wong could be forced to pay $150,000 if she didn’t settle; it also cautioned that an unsecured wireless router was not a defense.
True to their word, after Wong refused to pay up, Hard Drive filed a copyright complaint on April 22, 2011. Joseph C. Spero – a judge with what could be described as anti-copyright troll leanings – was assigned to the case. Soon after, Hard Drive withdrew their suit without prejudice – meaning they could file again.
But Wong decided to sue back.
Oh, Look! Some Sound New-ish Defense Arguments for Porn Downloading Lawsuits
Wong’s case cites several common illegal downloading defenses. For example, the improper enjoinder argument was used, which highlights that the defendant is receiving the “benefits and services of the court” without paying the proper $350 filing fee.
On behalf of Wong, Yuen also claimed the defendant spat in the face of civil statute L.R. 3-16(b)(1) – which covers certain financial discoveries – by not disclosing that Paul Pilcher owned more than 20% of Hard Drive-associated shares.
Yuen also turned to U.S. copyright statues. According to section 17 U.S.C. Section 504(c), a party cannot collect if infringement happened after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. Since the known published date of the title in question (“Amateur Allure Jen”) was March 3, 2010, and the film wasn’t registered with the copyright office until April 22, 2011 – Wong may trump Hard Drive on a technicality.
In addition to a few other standard porn downloading defenses, accusations of using an unlicensed private investigator and failing to follow proper protocol by first sending a DMCA Takedown notice to the BitTorrent seeders, also appeared in the lawsuit.
…And Then There’s The Porn Isn’t Copyrightable Defense
In addition to the above, Wong highlighted that Article 1 Section 8, Clause 8 of the U.S. Constitution (a.k.a., the Copyright Clause) states that congress is empowered “To promote the Progress of Science and useful Arts by securing for a limited Times to Authors and Inventors the exclusive Right to their respective writings and discoveries.” Yuen the reasons that since pornography doesn’t “promote useful art or science,” it shouldn’t be copyrightable in the first place. The plaintiff’s claim takes it one step further by suggesting that “[t]o create the work, Hard Drive and its agents and/or employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.”
This last point is a new one — and bound to spark legal debate. After all, using the “porn should be illegal” raises some First Amendment concerns.
Are you being harassed by a copyright troll? Kelly / Warner Law can help. Contact us today to set up a consultation.
SOPA is the big online copyright legal story of the year thus far. Which got me thinking about the good ‘ole Digital Millennium Copyright Act (DMCA) — the current work-horse of Internet intellectual property law.
In this article we’ll briefly review each bill. So grab a cold one and settle in as we de-construct the various intellectual property laws currently in the news and try to make sense of it all in plain English.
Comparing DMCA and SOPA: What the Heck is DMCA, Anyway?
DMCA, for those of you who don’t obsessively follow the law, is the Digital Millennium Copyright Act. Thanks to anti-circumvention statues in the bill, the DMCA is the US copyright law that makes it illegal for you or I to manufacture devices or services meant to access or reproduce copyrighted material.
Comparing DMCA and SOPA: Enter SOPA, Y’all
On October 26, 2011, the Stop Online Piracy Act (SOPA) was introduced as a US bill by Texas (R) Rep. Lamar S. Smith. The bill’s purported original intention was to round up and remove rogue websites from the Internet’s virtual “phone book.” If a site was targeted as “rogue,” the act, as it was written, would make it legal to quickly remove the site from the domain name system — and poof, gone! Now you see ‘er, now you don’t.
Lamar’s plan also included, if necessary, the issuance of court orders to keep payment facilities and advertisers from doing business with the likes of Google, Wikipedia, Facebook. Under SOPA, they would be forced to remove any links to offending websites that allowed any copyright infringing. If they continued to link to those websites that harbored the infringing material, they’d be in danger of being closed down and prosecuted, too.
Comparing DMCA and SOPA: One Bad Apple Don’t Spoil the Whole Bunch!
If one bad apple infringes upon copyrighted material and posts it on a website, the DMCA currently allows “safe harbor” protection to Internet sites from any liability based on the actions of that one bad apple. With that in mind, opponents to SOPA claim the proposed bill threatens innovation and free speech. The enforcement of the laws would block access to entire Internet domains because of one posting on a blog or webpage.
Even libraries have expressed concern that they could be exposed to prosecution. The specters of First Amendment violations and censorship suddenly arise.
You Say You Want a Revolution: Anti-SOPA Day
On January 18, 2012, Reddit, Wikipedia and 7,000 of their closest website friends either closed their doors or otherwise illustrated their protest of the SOPA. They did so with protest banners on their websites in an effort to raise public awareness.
On January 19, self-proclaimed members of Anonymous (a “hacktivist” group) imposed their wills and skills on several pro-SOPA websites like RIAA, CBS.com and more. They shut those bad boys down or slowed them up a bit with denial of service attacks in retaliation for the D.o.J. (Dept. o’ Justice) shutting down Megaupload on that same day.
SOPA: The Post Script
To clarify, rectify and mollify, an aide to Rep. Lamar Smith insisted that an individual posting a video on YouTube of their adorable child adorably singing a copyrighted song would not be considered a felon. Suspiciously, however, the aide did not address the issue of singing parrots, a burning question on the minds of many.
In December, 2011, both bills were tabled indefinitely. It would appear that intellectual property rustlers and renegade rogue websites will have their way with us for now. The DMCA, the prevailing law of the land, will have to stand on its own as the sole guardian to our intellectual property. If history has taught us one thing, however, it is that eternal vigilance is our duty. While it certainly is our God-given right to be naive, it only makes us look bad. Keep your eyes to the skies, the rogues are out there.