Is MMS Just Like Limewire? New Lawsuit Against AT&T, Verizon, Sprint & T-Mobile Says So...

from the say-what-now dept

Fri, Jul 23rd 2010 8:58am — Mike Masnick

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:

Honestly, the whole lawsuit seems ridiculous. Here's the crux of it:

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.--
(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).

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.

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Filed Under: copyright, file sharing, mms
Companies: at&t, luvdarts, sprint, t-mobile, verizon wireless

49 Comments

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Anonymous Coward, 23 Jul 2010 @ 9:13am

The cool part of ridiculous claims like this is that they makes the issue with service providers being charged with copyright infringement pretty obvious. If I were a skeptic (ok, I am), I'd say this was brought by an anti-copyright individual maskerading as a hard-core pro-copyright group.
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:Lobo Santo (profile), 23 Jul 2010 @ 9:17am

Yay!
Ha! Hopefully we'll get some good frickin legal precedence concerning DMCA safe harbor protections--and the telcos are gonna pay for it. How's that for ironic justice?
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Dan (profile), 23 Jul 2010 @ 9:24am

A win could be interesting
The case is ridiculous, obviously. But consider if something similar actually won, pitting the carriers against the media companies. Imagine the battles in court and Congress. "A titan against a titan." Glorious. It would take something like that for the government to fix the innovation mess we're in.
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Anonymous Coward, 23 Jul 2010 @ 9:42am

I think this type of litigation should be called "bitch slap".
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TPBer, 23 Jul 2010 @ 9:47am

AND..
all of the hosting goes out of CONUS, beautiful.

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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crade (profile), 23 Jul 2010 @ 9:55am

The case may be ridiculous logically, but the law is a long ways removed from logic and common sense these days.
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rl78 (profile), 23 Jul 2010 @ 9:56am

Biting the hands that are barely feeding them....
It seems to me that they are complaining about the very thing that they are selling to their customers.

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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Anonymous Coward, 23 Jul 2010 @ 10:03am

Um, then everything is a "peer to peer file sharing network". Email, IM, uh... the web... everything.

Like... SRSLY??
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crade (profile), 23 Jul 2010 @ 10:09am

Re:
Everything *is* a file sharing network.
Email and IM are peer to peer, the web is client server.
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Bubba Gump (profile), 23 Jul 2010 @ 10:14am

Speech is a peer to peer file sharing network.
Without speech how many ideas would have propagated?
We'd all still be trying to figure out how to make fire.
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ComputerAddict (profile), 23 Jul 2010 @ 10:18am

Re: Re:
Email is not Peer to Peer, and AOL, ICQ, or any Instant Messenger that allows you to leave a message when the user is not online, is not P2P (some other IM services are, but ). With these services messages get sent to a central servers and then the central server holds that message until the second client is ready and/or requests it. Data goes from Peer to server to Peer.

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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ComputerAddict (profile), 23 Jul 2010 @ 10:22am

Back to the Original Story
What I see this coming down to is are Wireless Provider's MMS services acting like Routers where messages are sent directly from one phone to another, or are their servers more like an email service.
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Berenerd (profile), 23 Jul 2010 @ 10:23am

Re: Re:
So what you are saying is...everyone needs to sue Al Gore.
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crade (profile), 23 Jul 2010 @ 10:25am

Re: Re:
Well, email isn't exactly peer to peer, but you get the idea. What is with the law's obsession with implementation details anyway? What difference do the underlying engineering details of the methods used make to whether an activity is acceptable or not?
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crade (profile), 23 Jul 2010 @ 10:43am

Re: Re: Re:
Sorry, I was overzealous.
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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ollie willoughby, 23 Jul 2010 @ 10:48am

Too bad they don't know how the web works
If they have made the item available on the web, and knowing that for someone to see what you put on the web means that your source (copyrighted material) has to be copied to their computer for them to see it, it could be argued you have given them permission to copy it. Basically by putting something on the web, you have given away your rights for copy as that is how the Web has always worked. A point might even be made in that the original purpose for the web was the free exchange of ideas and that anything on there was free to read and pass on. You should not claim it as yours, but it was expected to be copied and passed around. If you have not put it on yourself, I see that you can argue you have nto given up your rights, but once you publish on a medium that is setup to be viewed only if it is copied from your source to thiers, it seems ignorant on the part of the originator to give away their rights but that is the way it was designed. Funny we don not have this argument with copy machines. Almost every use is a copyright infringement. I guess that stems from the fact that books are printed on a medium that is to be read by one at a time, where the web is a medium that for anyone to even see it all content must be copied from your source.
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Hephaestus (profile), 23 Jul 2010 @ 10:51am

This is very cool ....
This is going to be very interesting to watch.
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tuna, 23 Jul 2010 @ 11:07am

If they are just trying for a quick monyt grab they are in for a suprise I think. They are moving in a direction where the phone companies cannot just pay them off. If they do so a 100 others will line up to sue.

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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interval (profile), 23 Jul 2010 @ 11:08am

Re: Yay!
@Lobo: "...Hopefully we'll get some good frickin legal precedence..."

How 'bout a frickin' Laser Beam up their collective poop chutes?
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Anonymous Coward, 23 Jul 2010 @ 11:13am

I remember in the 80's the first people(a couple of lawyers) to put an ad on the internet got trashed, people at the time didn't want commercial interests on the internet because they knew those F's would screw it up and ruin it for everyone.

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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Hulser (profile), 23 Jul 2010 @ 11:31am

Re: A win could be interesting
Agreed.

"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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Hulser (profile), 23 Jul 2010 @ 12:02pm

But MMS *is* just like LimeWire
Honestly, the whole lawsuit seems ridiculous.

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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crade (profile), 23 Jul 2010 @ 12:07pm

Re: But MMS *is* just like LimeWire
Not just precedent, but legislation itself I would say.
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Bengie, 23 Jul 2010 @ 12:10pm

I love this
I hope this applies to the internet somehow.. just another communication platform.
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Rick, 23 Jul 2010 @ 12:36pm

Hmmm
"without modification to the content"

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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Garrett, 23 Jul 2010 @ 12:41pm

I really hope this carries
I really hope that luvdarts wins this and wins it BIG. For too long have the wireless guys sat upon ivory towers thinking they are special all the while trouncing on consumers and being profit glutons. Getting a bit of a slap in the face will do them good. Possible interesting topics...

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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Bert, 23 Jul 2010 @ 1:12pm

Let's sue the USPS
So if I copy a copyrighted CD and post it to some one the USPS is also as guilty as Limewire, AT&T, etc right?
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Anonymous Coward, 23 Jul 2010 @ 1:50pm

Re:
Is this something like a deep cover liberal?
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Anonymous Coward, 23 Jul 2010 @ 3:18pm

This is the Perfect 10 business model
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RLee (profile), 23 Jul 2010 @ 3:35pm

Re:
Not quite. The "green card" lawyers in question, Canter & Siegel, took a lot of well-deserved abuse for being one of the first spammers, not for simply "put[ting] an ad on the internet".
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Daniel, 23 Jul 2010 @ 5:45pm

Really?
If you go to their website and look at the sample of their current "product," such as it is, you'll note at the end of the video that it says specifically "you may forward this to another mobile device." Either their business model has changed SIGNIFICANTLY or they're just out for a fast buck in an out of court settlement because the carriers have the money to buy them off. I'm banking on 10% of the former, 90% of the latter...
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Definitely Anonymous, 23 Jul 2010 @ 5:47pm

I was on a panel with Max once and he would go on and on about a lawsuit he was filing exactly on these terms. This is almost certainly him.

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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Paulmichael, 24 Jul 2010 @ 1:03am

$1.5 BILLION?
So they're asking between just under $1.5 billion USD to $15 billion? HAHAHAHAHAHAHA...What content is worth $150,000 per offense? That part of their lawsuit should be enough to get it thrown out of court...
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pete, 24 Jul 2010 @ 1:57am

Obviously, this is going to be settled out of court, and luvdarts get 90% off their SMS rates in the confidential settlement for spamming cell users.

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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Anonymous Coward, 24 Jul 2010 @ 1:58am

Re:
*as NOT applying to MMS
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Anonymous Coward, 24 Jul 2010 @ 2:10am

I bet luvdarts got banned for spamming by all these phone companies.

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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Robert, 24 Jul 2010 @ 7:46am

Seriously?
For a minute I thought I was reading The Onion.

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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vivaelamor (profile), 24 Jul 2010 @ 11:51am

Re: $1.5 BILLION?
"What content is worth $150,000 per offense?"

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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Stuart Friedman, 24 Jul 2010 @ 12:04pm

What is Attorney's Name Missing from the Pleading
I've never seen a civil complaint where the name of the law firm representing the plaintiff had been deleted (it only says on file). That seems very odd.
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corberlaw (profile), 24 Jul 2010 @ 12:15pm

motion to dismiss
Rule 12b6 motion to dismiss.

May as well have Tesla's family suing over electricity.

Little shits wanna become big shits.
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Sean, 24 Jul 2010 @ 3:48pm

That's insane
I hope these guys get laughed out of court, the best thing the mobile carriers could do is just disable MMS in the state of CA. People would have a fit.

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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herbert, 24 Jul 2010 @ 6:47pm

Re: Re: Re:
well then text and mms are not peer to peer either, as if your phone is off, not in service range the text or mms is stored at the providers location until that handset returns to the network. Case in point, here in ny i leave service every tuesday for 4 to 6 hours when i return to service i recieve up to sometimes more then 10 texts and mms.
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Anonymous Coward, 25 Jul 2010 @ 1:20am

this is some silly shibit
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Anonymous Coward, 25 Jul 2010 @ 1:38am

its funny that this company that is in the business of being middleman for an illegal activity is trying to stop others from using the same technology they rely on to do there shady business. I personally don't care for the picture and video sharing that i see folks doing all the time as its usually some stupid utube video or a porno pic. so if it all went bye bye it wouldn't bother me, but the fact that a text message spamming company is the one trying to make a case about it seems kinda silly to me, lets let the drug dealers sue the marijuana clubs for lost revenues, there both wrong just one is more wrong the the other.
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Anonymous Coward, 25 Jul 2010 @ 1:49am

i hope the phone companies crush these scum. it pisses me off to no end when i get a streeming video commercial on my phone, i dont have message service and it costs me every time i get one, i know this isntthe issue here but the company involves is the lowest of the low, just like those flakes running servewrs on the net dedicated to spreding junk mail. and pop up ads saying your computer is infected.
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Nick K, 25 Jul 2010 @ 12:55pm

Re: But MMS *is* just like LimeWire
Actually, MMS is NOT like LimeWire. MMS is a store-and-forward system, where your cellular device talks to servers at the mobile carrier. It is then forwarded from server to server until it gets to the destination carrier. If the user subscribes to destination MMS service, then the message will be forwarded to the end user, otherwise it will remain on the carrier's servers.

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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martyburns (profile), 26 Jul 2010 @ 4:31am

Re: Re: But MMS *is* just like LimeWire
So.. MMS is more like a file locker?
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Anonymous Coward, 10 Nov 2010 @ 8:45am

The only way a cell phone can do P2P is via bluetooth. Otherwise, all content goes through the providers first. They do not make a direct link from one phone to the other. This lawsuit is the biggest crock ever and the plantif should be countered sued for filing a frivolous lawsuit and forced to pay all attorney fees, court cost, etc for both all parties.
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Landon (profile), 15 Jul 2013 @ 2:38pm

Any Updates
Any updates on what eventually happened in this case? Did they settle out of court?
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