Court Tosses Lawsuit That Said MMS Was An Illegal File Sharing Network

from the let-it-go dept

Mon, Mar 25th 2013 1:53pm — Mike Masnick

A few years ago, we wrote about a really ridiculous lawsuit filed by (then) regular Techdirt commenter Max Davis against all of the mobile operators: AT&T, Verizon Wireless, Sprint and T-Mobile. Davis runs a company, called Luvdarts, that creates silly "content" for multimedia messaging (MMS) on phones, and also had big dreams of setting up some sort of collective licensing system by which the telcos would all pay him a fee for every MMS sent. When the telcos showed no interest in such a pointless plan, he sued, arguing that they were just like file sharing networks, because users were able to "forward" the MMS content his company created without any problem. Two years ago, that case was dismissed, with the court being pretty clear that it had no chance. Davis actually sent over a press release about his own loss, talking about how happy he was with this result and that he was going to appeal.

That appeal has happened and... second verse, same as the first. The appeals court made short work of this lawsuit, dismissing it in a quick and clean 10 page opinion. To say the court was not impressed would be an understatement. The court repeatedly points out that Luvdarts appears to be pushing completely novel legal interpretations of vicarious and contributory infringement with no basis whatsoever. Basically, the company insists, first, that individuals passing along MMS messages makes the operators liable. That was quickly tossed out because of protections against secondary liability.

Luvdarts's principal argument is that the Carriers are liable for the infringement committed by third parties over their networks under either vicarious or contributory copyright liability. As the Supreme Court has observed, the Copyright Act does not explicitly render a third person liable for another person's infringement.

Luvdarts argued that the operators failure to implement a system to block such forwards proves liability, and the court points out that this is ridiculous.

In this case, Luvdarts concedes that the Carriers presently have no way of supervising the use of their networks for copyright infringement. Instead, Luvdarts's complaint alleges only that the Carriers could “establish[]. . .a system” that would give them the right and ability to supervise the infringing activity. Luvdarts argues that this allegation is sufficient to survive a motion to dismiss. Luvdarts fails to cite any authority to support this proposition, which runs contrary to our precedent. In Napster, this court held that “right and ability to supervise” should be evaluated in the context of a system’s “current architecture.” Napster Inc., 239 F.3d at 1024. Moreover, as we noted in Perfect 10, Inc. v. Amazon.com, Inc., resting vicarious liability on the Carriers’ failure to change their behavior would tend to blur the distinction between contributory liability and vicarious liability. 508 F.3d 1146, 1175 (9th Cir. 2007) (“[I]n general, contributory liability is based on the defendant’s failure to stop its own actions which facilitate third-party infringement, while vicarious liability is based on the defendant’s failure to cause a third party to stop its directly infringing activities.”). For example, under contributory liability the Carriers’ failure to implement a digital rights management system may be used as circumstantial evidence of “the object of promoting” infringement. See Grokster, 545 U.S. at 936–37. But under vicarious liability, it cannot substitute for an allegation of a capacity to supervise. Luvdarts's failure to allege that the Carriers have at least something like a capacity to supervise is fatal to a claim of vicarious liability.

On top of that, Luvdarts tried to claim contributory (not vicarious) infringement, arguing that these MMS systems were similar to Napster, Grokster or Limewire. In part, this is because Luvdarts sent the telcos a list of every bit of "content" they offer, and demanded they be blocked from being forwarded. Again, the courts don't see it (because there's nothing to see):

Luvdarts fails to allege that the Carriers had the requisite specific knowledge of infringement. Luvdarts's conclusory allegations that the Carriers had the required knowledge of infringement are plainly insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

In the alternative, Luvdarts argues that the “notices” it sent to the Carriers, referenced in the complaint, sufficed to establish actual knowledge of infringement. However, these notices failed to notify the Carriers of any meaningful fact. The notices were 150-page-long lists of titles, apparently just a transcription of every title copyrighted by Luvdarts, which indicated that they wanted “accountability” for the unauthorized distribution of those titles for the period from May 2008 to November 2009. These notices do not identify which of these titles were infringed, who infringed them, or when the infringement occurred. The Digital Millennium Copyright Act of 1998 (“DMCA”), by which the notices purport to be governed, clearly precludes notices as vague as the notices here. 17 U.S.C. § 512 (DCMA takedown notice requires the producer to provide “[i]dentification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient

This is yet another useful ruling in that it highlights that service providers need to have specific knowledge of infringement, and that "general knowledge" is clearly not enough.

Of course, I believe this is only one of two such lawsuits filed by Luvdarts against the same basic companies. In the other one, they seem to be claiming that there's some sort of antitrust violation in that these MMS providers haven't implemented the filters that this lawsuit says they're not required to implement. I can't imagine that one going very far either.

Luvdarts v ATT Mobility MMS No Secondary Liability (PDF)Luvdarts v ATT Mobility MMS No Secondary Liability (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: contributory infringement, copyright, file sharing, max davis, mms, vicarious infringement
Companies: at&t, sprint, t-mobile, verizon wireless

22 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 25 Mar 2013 @ 2:03pm

I was recently in a car accident. I think I will sue the gas station that sold the guy the gas his car used to hit me, Then I will sue the city for building the road, I was hit on. Then the state for letting the city build the road. By the time I'm done I will sue the earth for existing. I can't wait to count my money.
[ link to this | view in chronology ]
- Anonymous Coward, 25 Mar 2013 @ 11:13pm
  
  Re:
  You did read that he lost the case, didn't you?
  [ link to this | view in chronology ]
  - Ole Juul (profile), 26 Mar 2013 @ 1:40am
    
    Re: Re:
    Yes, but he works for the MPAA.
    [ link to this | view in chronology ]
Mason Wheeler (profile), 25 Mar 2013 @ 2:06pm

Very interesting
By a lot of this same reasoning, shouldn't this set a precedent that would throw the Viacom vs. YouTube case out on its ear and allow Google to get rid of ContentID entirely?
[ link to this | view in chronology ]
- Anonymous Coward, 25 Mar 2013 @ 5:51pm
  
  Re: Very interesting
  Very astute observation Wheeler - if the carriers can employ a system for financial gain (billions have been charged) trafficking in others copyrighted materials, they should at least have a system of accountability for those transactions. There is none.
  [ link to this | view in chronology ]
That One Guy (profile), 25 Mar 2013 @ 2:07pm

Good for him
As ridiculous as this lawsuit was, I can't help but be glad he brought it(twice), as it provides another nice, easy and clear precedent against the idea that service providers need to be held liable for the actions of their users.

Nice to see that sometimes crazy lawsuits do benefit the public, other than just providing entertainment.
[ link to this | view in chronology ]
- Anonymous Coward, 25 Mar 2013 @ 5:55pm
  
  Re: Good for him
  A service provider that employs a business model exclusively to distribute and make money from copyright protected multimedia is not the kind of service provider that is provided safe harbor.
  [ link to this | view in chronology ]
  - That One Guy (profile), 25 Mar 2013 @ 10:17pm
    
    Re: Re: Good for him
    ... Right, I see, you're trying to get me to facepalm hard enough to give myself a concussion. That's honestly the only thing I can think of after reading your comment.
    
    They are telecommunications companies, their entire 'business model' is in the transferring of data from one point to another, nothing more, nothing less.
    
    Some of it is indeed under copyright, some of it not, and as it has proven all but impossible for the copyright owners themselves to be able to tell what is and is not infringing(see: Viacom vs. Youtube), the idea that third parties should be able to tell is beyond ridiculous.
    
    Not only could they never have a hope in hell of being able to tell what bits are violating and what bits aren't(an .mp3 could be both infringing and non-infringing depending on who is sending it for example, but it would look identical either way), to even come close would require them to go over all the data sent over their networks, which would be both impossible due to sheer volume, and completely destroy any privacy their customers might have had.
    
    Look, it's quite simple really. The guy in the story thought he'd pull a fast one and con a few companies into paying him(multiple times at that), for something he had already sold to someone else. The companies rightly told him to shove off, and he threw a tantrum and tried to sue them over it, and got squashed, twice.
    [ link to this | view in chronology ]
    - Anonymous Coward, 25 Mar 2013 @ 10:45pm
      
      Re: Re: Re: Good for him
      You don't understand One Guy, MMS is NOT on the Internet, it is a closed system designed and employed by the carriers to monetize the sharing of multimedia for their benefit exclusively. Here lies the problem.
      [ link to this | view in chronology ]
      - R.H. (profile), 26 Mar 2013 @ 11:04am
        
        Re: Re: Re: Re: Good for him
        I don't know about the other providers but on Sprint my MMS servers have globally accessible IP addresses. If I turn mobile data off on my device, I can't send or receive MMS data. Back when I had Cingular and AT&T they were the same. Also, aren't the basic telecommunication companies considered common carriers? Doesn't that protect them from liability caused by illegal acts committed on their networks? I know that they've avoided that nomenclature for their data networks but I thought that their SMS/MMS services were still covered.
        [ link to this | view in chronology ]
- Daniel (profile), 25 Mar 2013 @ 10:02pm
  
  Re: Good for him
  I'm kinda wondering if that was his intent from the beginning. Surely he didn't think he could win trying to claim MMS is like file sharing, although P2P over MMS would be an interesting idea and could be possible but it'd be pretty slow.
  [ link to this | view in chronology ]
Anonymous Coward, 25 Mar 2013 @ 2:16pm

Copyright and patent holders motto, " If you don't buy my product, I will find a way to sue you."
[ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 25 Mar 2013 @ 2:30pm

OH, I get ya now: "Ignorance is PROFITS".
>>> "This is yet another useful ruling in that it highlights that service providers need to have specific knowledge of infringement, and that "general knowledge" is clearly not enough."

Wondered what your point here was, as seems this Davis intentionally lost. BUT when tied to your Megaupload position (see my tag line below), it's clear why you like this.

Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where Mike sez: uploader + (ignorant or pretends to be) file host + links site + downloader = perfectly "legal" symbiotic piracy.
10:29:39[l-842-3]
[ link to this | view in chronology ]
- G Thompson (profile), 25 Mar 2013 @ 11:49pm
  
  Re: OH, I get ya now: "Ignorance is PROFITS".
  If ignorance was profitable as you state then you would be one of the richest ignoramuses on the planet!
  [ link to this | view in chronology ]
  - Anonymous Coward, 26 Mar 2013 @ 10:09am
    
    Re: Re: OH, I get ya now: "Ignorance is PROFITS".
    And he's still go around suing people. Sadly enough.
    [ link to this | view in chronology ]
Anonymous Coward, 25 Mar 2013 @ 2:32pm

It looks like he built his business with the idea of forcing third parties to pay him. If the copyright maximalists get their way, he might succeed yet.
[ link to this | view in chronology ]
Anonymous Coward, 25 Mar 2013 @ 3:06pm

For fun I looked at this guys website. Comical at best,

http://www.luvdarts.com/lvd1/default.htm

I really like how he offers a trial of a mms spam generator software.
[ link to this | view in chronology ]
Anonymous Coward, 25 Mar 2013 @ 3:51pm

Why didn't the court point out that the wireless carriers had safe harbor as most including Mr. Masnick, assumed and published?
[ link to this | view in chronology ]
Anonymous Coward, 25 Mar 2013 @ 4:16pm

"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:......" http://www.techdirt.com/blog/wireless/articles/20110401/02542513722/att-verizon-sprint-t-mobile-hit- with-dumbest-antitrust-lawsuit-ever.shtml
[ link to this | view in chronology ]
- Ed C., 25 Mar 2013 @ 4:31pm
  
  Re:
  Yep, kind of like how old broadcast radio is exempt from playing by the same rules as internet radio. Their lobbyist can afford to buy favorable regulations.
  [ link to this | view in chronology ]
  - Larry, 25 Mar 2013 @ 6:29pm
    
    Re: Re:
    And astroturfing trolls. You forgot that part.
    
    Get your shit together Ed. :)
    [ link to this | view in chronology ]
Ninja (profile), 26 Mar 2013 @ 4:04am

It is interesting, there have been somewhat successful moves against forums and other user generated content sites where they were arguing precisely that. Someone finds a link to something, passes along. But it's infringing so magically the sites themselves become liable. Weird eh?
[ link to this | view in chronology ]