Is MMS Just Like Limewire? New Lawsuit Against AT&T, Verizon, Sprint & T-Mobile Says So...
from the say-what-now dept
Regular Techdirt commenter Max Davis (who I believe may be involved in this lawsuit) passed along the news that all the big US mobile operators have been sued -- including AT&T, Verizon Wireless, Sprint and T-Mobile -- under the claim that their MMS platforms are really illegal file sharing networks, and that these operators are no different than Limewire or Gnuttella. Yes, seriously -- the email Max sent repeatedly refers to MMS and Limewire as if they were the same. Here's the complaint:Defendants, and each of them, enabled the transfer/transmission and publication of this copyright protected content via mobile devices by building and implementing a peer to peer file sharing network with the dedicated purpose of enabling end users to share multimedia files via this MMS network. Defendants, and each of them, profited from these activities by charging the transmitter and receivers of this content a fee or flat rate for the transfer/transmission that resulted in the publication of said content. Despite charging the transmitter and receiver a fee for the delivery of this copyrighted content, Defendants, and each of them, failed to compensate the holder of the copyrights for this content that was necessary in generating the MMS data revenue. Furthermore, Defendants, and each of them failed or refused to provide a system where an adequate accounting of the transfer/transmission and publication of this copyrighted content could be made.Basically, this company, Luvdarts, made MMS content, and it got distributed via MMS. Since recipients of MMS can forward the MMS data they receive, such content got forwarded around. Since the mobile operators receive revenue for MMS data, Luvdarts is effectively claiming that they are profiting off the infringement of Luvdarts content. This makes no sense. It's like saying that any email provider is infringing on the copyrights of email writers by letting recipients forward emails. You know those chain emails that get passed around? Imagine if one of the authors of those then sued all the big email providers. It would get laughed out of court. Hopefully, this lawsuit gets laughed out of court too.
The one oddity is that the lawsuit claims that the mobile operators do not qualify for DMCA safe harbor protections, because they're "not service providers" as defined in the DMCA. Specifically:
The transmission of this MMS data is not covered by the exemption for Internet Service Providers as set forth in 17 U.S.C. §512 because the wireless carriers are not Internet Service Providers as defined by §512 while providing a dedicated MMS network for multimedia file sharing.Really? If you haven't read your §512 lately, why not go take a look and explain how a mobile operator offering MMS is not covered. It certainly seems covered by the definition:
Definitions.--Help me out. Where are mobile operators offering MMS features excluded? Looks like yet another frivolous lawsuit. But, of course, Luvdarts is demanding the statutory maximum of $150,000 per infringement, and claims "9,999 to 100,000 counts of infringement" (broad enough range there?). Good luck, Max.
(1) Service provider--
(A) As used in subsection (a), the term "service provider" means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
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Filed Under: copyright, file sharing, mms
Companies: at&t, luvdarts, sprint, t-mobile, verizon wireless
Reader Comments
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Is this something like a deep cover liberal?
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Yay!
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Re: Yay!
How 'bout a frickin' Laser Beam up their collective poop chutes?
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A win could be interesting
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Re: A win could be interesting
"I think that IP reform will only truly go mainstream when the total lockdown mode of our current IP system starts to (visibly) hurt the profits of big companies."
http://www.techdirt.com/articles/20100215/0014498158.shtml#c171
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AND..
I have already sent inquires PP hosting options :)
This is going to be fun, file sharing is going the way of the drug war. Maybe I'll actually make some real money off this nonsense.
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Biting the hands that are barely feeding them....
I'm assuming this is the company filing the suit: http://www.luvdarts.com/lvd1/default.htm
From what I gather, they are offering customized MMS advertising for businesses. So if I have a company that I choose to advertise with a luvdart, wouldn't I want everyone who received it to forward it to everyone they know ad infinitum over the very networks they are suing that make their business model possible? If forwarding these MMS is good for luvdarts customers, it should be good for luvdart.
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Like... SRSLY??
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Email and IM are peer to peer, the web is client server.
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In Peer to Peer networks the centralized service is merely locating the second client, but once the clients (peers) are in communication with each other the data is sent directly from Peer.. to.. Peer
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Back to the Original Story
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I think email can still be peer to peer if the users run local smtp services (usually isn't). so can IM (also usually isn't anymore).
I just don't see how the implementation details of data transfer should be relevent at all to any case, they are completely independant from the legitimacy of the activity being performed.
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Speech is a peer to peer file sharing network.
We'd all still be trying to figure out how to make fire.
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Too bad they don't know how the web works
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This is very cool ....
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The phone companies will be forced to take this through court and I can see Luvdarts being crushed in the process.
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Well 20 years later here we are having to say F.Y. go away.
It is time to create a new layer where those muppets can't have a say again.
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But MMS *is* just like LimeWire
I think we're looking at this the wrong way. Given legal precedent, the lawsuit actually makes sense. If LimeWire and Gnutella were deemed illegal due in part to the fact that they provided access to a P2P network, then MMS is illegal too because it's a P2P network. They're both P2P networks that don't prevent the transfer of infringing material. What's ridiculous is the fact that no network of any kind, P2P or otherwise, can reliably prevent the transfer of infringing material. What's rediculous is that some people think it's right to sue the owner of the medium instead of the party who actually infringed.
But this particular lawsuit? It makes sense from the standpoint of Ludvarts who saw an opportunity to take advantage of a legal precedent.
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Re: But MMS *is* just like LimeWire
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Re: But MMS *is* just like LimeWire
This is not a P2P model (it is only if you look at it without knowing the technology). MMS/SMS is more akin to UUCP/Email rather than direct communications. In no ways does your MMS device directly communicate via IP or RF to the destination device.
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Re: Re: But MMS *is* just like LimeWire
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I love this
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Hmmm
My cell provider regularly modifes the content of my communications. They are particularly adept at stripping MP3s out, limiting the size of videos I send to under 30seconds and even splitting messages up into multiple pieces, adding comments when they do...
I have always hated that they refuse to stop doing so, even when I agree to pay extra to get things the way I send or am intended to receive them.
The wireless companies are also very adamant of not being recognized by the FCC, FTC or anyone as an 'ISP' so they don't have to follow the same rules governing equal access.
I wonder if these stands by the wirelss provider may be an issue?
Don't get me wrong - I think the lawsuit is ludicrous as it could be expanded to cover forwarded emails too, but did they put themselves in this boat by way of their own policies?
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I really hope this carries
If they lobby that they ARE ISP's... are they cornering themselves in with the FCC? :)
If they lose will they stand up against copyright rediculousness?
I really don't see any big LOSE for the consumer here... not matter how it turns out something is going to go right for us... :).
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Let's sue the USPS
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Really?
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Honestly though, I think it is a good thing, if only because its absurdity points out the flaws in the recent decisions against technology providers.
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$1.5 BILLION?
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Re: $1.5 BILLION?
A song, according to the RIAA. It is what they actually claimed against Limewire. They went on to win the case, though the actual damages have not yet been set.
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If this case goes to trial, with the DMCA safe harbor being found as applying to MMS, it will be funny to see all the "information service" cell carriers run back to the evil "common carrier" laws for protection.
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Once approved and paid for we will insert your image(s) and any other add ons and you may begin "seeding" your targeted community. Click here for more information about the difference between "spamming" and "seeding".
http://luvdarts.com/lvd1/restaurants.htm
We require that users of our services do not "spam" our creations to other person's mobile devices. Distribution of our creations should be initiated by "seeding" amongst people known by the user of our services.
http://luvdarts.com/lvd1/legalstuff.htm
Its obvious that they lost their SMS gateway/short code access for spamming. Why else would they be so vigilante about describing themselves as not spamming? Now that they have been banned, either they close shop, or they sue the phone companies, and have a confidential settlement and get back SMS gateway service.
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Seriously?
This is almost as bad as the woman who sued Google because their maps led her down a walking path that clearly said 'these directions may be wrong and may take you an unsafe path - use your judgement' who then walks out into a ROAD and gets hit by a SPEEDING CAR.
I don't think it takes a genious to not cross a HIGHWAY because a map says this is the way to go. I don't think it takes a genoius to figure out this company apparetly doens't have the ground to stand on.
Can anyone say SCO?
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What is Attorney's Name Missing from the Pleading
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motion to dismiss
May as well have Tesla's family suing over electricity.
Little shits wanna become big shits.
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That's insane
How can the carriers actively control the content without locking down the phones.
If I were a mobile carrier, I'd think about leaving CA, just turn off their network there and get out. Imagine all the CA consumers that would go nuts.
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Any Updates
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