Swedish Appeals Court Increases File Sharing Fine By A Factor Of Six

from the this-isn't-helping dept

Earlier this year, we wrote about a guy who was found guilty of file sharing 44 songs in Sweden, but after the court realized that the actual "harm" done by the guy was minimal, he was fined about 2,000 kronor, a total of about $300 -- or approximately $7 per song. If you think that there needs to be some punishment for file sharing, then this at least seems reasonably in line and proportional to the offense. Of course, Swedish prosecutors appealed and not only sought to increase the fines, but also asked for jailtime for the guy. Talk about disproportionate punishment! Thankfully, the court turned down the jail time request, but it did increase the fine more than six times to 13,000 kronor or about $2,000. This is, still, a lot less than similar cases in the US, but it still seems way out of line for any "harm" done.

Filed Under: copyright, file sharing, punishment, sweden

Why PROTECT IP Will Fail: Cultural Acceptance, Not Fear Of Punishment, Makes People Abide By Laws

from the you're-doing-it-wrong dept

Lawyer Ron Coleman has a post about the PROTECT IP Act, called "We're all infringers now," that's worth reading. While it covers similar ground to what we've said before, there's one line in there, towards the end, that is absolutely worth highlighting and repeating:

This new proposed law is a terrible way to try to solve [infringement]. Its passage would only drive the culture further yet from any respect for the rule of law as it applies to intellectual property. But if Big IP hasn’t figured out yet that it is cultural acceptance of legal norms, not fear of punishment, that makes a free society a law-abiding one -- if Big IP doesn’t understand what the de facto attitude of consumers regarding copyright has already become, and where it is already going -- then heck, maybe at this point the law professors and the rest of us should just let Congress already go ahead and give them enough rope.

This is the key point that many of us have been trying to drive home for years. It's the same key point that the SSRC report made in pointing out that "enforcement" and "education" are simply not strategies that work. And that wasn't based on theory. It was based on years and years of detailed research. And yet, to the industry and to the government there seems to be only one single tool in the box for dealing with the challenges of infringement: to scare people. But that only works if people are stupid. And we now have plenty of experience in recognizing that people don't culturally accept the claims of the industry on this issue, and no amount of threats and punishment are likely to change that.

Filed Under: cultural acceptance, laws, protect ip, punishment

IFPI/BPI: Picking Off The Weak In The Herd

from the attacking-grandmothers-for-fun-and-profit dept

My name is Tim and I'm an addict.  Yes, friends, I have to stand up, get my first day of sobriety chip, and admit to you that I'm addicted.  To Animal Planet.  And National Geographic.  Basically those nature shows that show me the beauty of the outside world through the sickly glowing television in my two story walkup on the north side of America's third biggest urban environment.

It's the whole predatory thing, see.  I'm fascinated by the way we portray nature's biggest predators, be they sharks, or cheetahs, or falcons.  Can't you just hear the calm voiceover now? 

"The predator approaches from downwind so as not to alert his prey.  He spots the heard, teeming masses of animals drinking from the same stream.  Ah ha, he has picked out his victim.  An old female, third generation from the looks of her, and perhaps not as spry as the others.  Now he begins the chase.  He zigs and zags, creating confusion amongst the herd.  And then he has her in his jaws, tearing her limb from limb."

Wait.  That's not Animal Planet.  It's TorrentFreak alerting us that IFPI and BPI are going after an auxiliary nurse grandmother in Scotland whose documented obsessive compulsive disorder caused her to hoard (and apparently make available) thousands of music files (mostly kaoraoke files).  In what is being called the first case of its type in the country, the music industry is going after the weak of the herd, apparently.  The woman's lawyer noted:

"Alarmingly, this was not a commercial enterprise and Muir was not alleged to have made any money from these offences. She must be considered to have minimal culpability compared to others in the file-sharing chain. Yet again, the industry have chosen to pursue someone remarkable only by virtue of their vulnerability."

Now, before the normal pack of hyenas here begin circling the corpse and nipping at everyone's heels, it should be noted that she only made her files available because doing so was required for her to get access to the Direct Connect hub so she could hoard even more files which, again, was caused (as ruled by the courts, which ordered her to get cognitive therapy) by her obsessive compulsive disorder.  And if you think this sounds familiar, it's because the RIAA has been going after grandmothers for years (perhaps they can patent the approach?).

Perhaps I'm just an old softy, but if you're really filing these suits based on principle, why do they have to go after certifiably ill grandmothers?  I mean, I appreciate music labels trying to help me with my Animal Planet fix, but maybe mimicking predatory behavior isn't the best business strategy?

Filed Under: copyright, enforcement, infringement, punishment

No Punishment For Bogus DMCA Notices If Service Provider Doesn't Take Down The Content

from the too-bad dept

One of the issues with the DMCA is that there's very little incentive to avoid sending bogus DMCA notices. There is 512(f), which says that if you misrepresent that content is infringing, you are liable for damages, but it's rarely used. And, now it's been limited further in a court ruling. Earlier this year, we wrote about a silly copyright fight concerning virtual horses and virtual bunnies in Second Life, with one company claiming another company copied its "breedable" virtual animals and that was infringement. It issued a takedown. After it was determined that the copyright claim was ridiculous (there was no direct copying), the company who was on the receiving end tried to claim that there was a 512(f) violation in the original takedown. However, the court dismissed that claim because Second Life never complied with the takedown, saying:

limiting suits for damages to those caused by an actual takedown is a less effective deterrent than allowing suits based merely on the filing of a false Takedown Notification. But the statute is unambiguous in entitling an alleged infringer to damages caused “as the result of the service provider . . . removing or disabling access to the material"

In other words, if the service provider doesn't follow through on the takedown, there's no punishment for filing a bogus DMCA notice. Too bad.

Separately, I hadn't realized just how ridiculous the DMCA notice was. It didn't just ask for a takedown of the virtual animals itself, but of the food for the animals, in order to make the virtual animals die. This snippet from the ruling struck me as amusing:

The Notification sought, among other things, the removal from Second Life of Amaretto's virtual "food" and "water." Had the takedown occurred, the virtual horses would have "died" from "starvation" and/or "thirst" within 72 hours.

Yup. Using copyright to "starve" to "death" virtual animals. I'm sure that's exactly what our Founding Fathers were thinking about when they wrote the Constitution.

Filed Under: copyright, dmca, punishment, takedown

Court Disagrees On Whether Or Not Schools Can Punish Students Over Fake Social Network Pages

from the first-amendment? dept

We were just discussing whether or not a school can punish students for their social networking activity, and now we've got two legal rulings on the subject. Unfortunately, they seem to conflict with each other, despite coming from the same appeals circuit!

Both cases involved students creating fake MySpace profiles of the schools' principals. Both students were punished, but in one case the court said the school went too far ("Public schools are vital institutions, but their reach is not unlimited...") while the other said it was fine ("We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student."). The difference appears to be that in the latter case, the school claimed that the fake profile resulted in disruption in the classroom because "students were talking about the profile rather than paying attention to class."

That seems like a pretty fine line, because now a school will have to do is suggest that students in the school were discussing an activity that took place outside of school to allow the school to punish the student for off-campus speech. From a First Amendment standpoint, that seems pretty difficult to accept -- and certainly seems to go against the principles set forth by the famous Tinker decision concerning free speech rights of students on campus.

Filed Under: jurisdiction, punishment, social networks, students

Tough To Punish Those Who File Bogus DMCA Takedowns

from the little-punishment dept

We all know that it's quite common for the DMCA takedown process to be abused to suppress content that the takedown sender did not hold the right to, or which was clearly covered by fair use. Technically, the DMCA has section (f) which makes the notice issuer liable for misrepresentations, and could force them to pay legal fees. But it's difficult to think of many cases where this has been actually used successfully. Often, those caught abusing the DMCA just say "sorry, it was a mistake" and get away with it. Funny, of course, that the same doesn't work in the other direction for those caught infringing on copyrights under the DMCA. Say "sorry, it was a mistake" and you still might owe thousands of dollars.

Eric Goldman highlights a case where an ISP tried to use section (f) to go after a bunch of folks who issued questionable DMCA takedowns that were clearly designed to harass a couple of websites (and, at one point, were used to try to take down the entire ISP). The details are a bit convoluted, but basically, a group of people critical of what was being said on a website issued a series of DMCA takedowns to keep the site down every time it came back up following a counternotice. This seems like a perfect case where the takedown issuers should be hit with sanctions of some sort, but the case was dismissed on procedural grounds instead, which seem to be based on a misunderstanding of the DMCA itself.

But, more important is how this case demonstrates how the DMCA is abused not to prevent copyright infringement, but to try to silence speech that someone doesn't like. We've had plenty of discussions about the conflicts between the First Amendment and copyright law, but here is a case where Congress has made a law that is all too often used to stifle speech.

Filed Under: bogus takedowns, dmca, punishment, takedowns

WIPO Director General Against Draconian Anti-Piracy Punishment... But For The Wrong Reasons

from the not-quite-there-yet dept

We were a bit surprised, recently, to hear at a WIPO (World Intellectual Property Organization) meeting that they actually appeared to be taking more of an evidence-based approach to copyright, rather than just assuming that "more is better." And now, the Director General of WIPO, Francis Gurry, gave an interview where he explained why he thought that high fines and jailtime weren't the answer to piracy. He's exactly right, which is a bit surprising. But as you read the details, it sounds like he might be right for the wrong reasons -- which isn't all that surprising.

It's not that he thinks that the better approach is for companies and content creators to adjust their business models -- but that he's afraid the draconian punishment schemes are basically a PR nightmare for WIPO's continuing fruitless effort to convince people that infringement is evil:

"I don't believe we are going to win this, (to) find the solution by putting teenagers in jail," Gurry said in an interview on a visit to India. "I think that is not going to win public sympathy."

"Part of the battle here is to sensitise the public to the fact that there is a real issue involved. It is not simply a victimless crime...."

Amusingly, the whole reason the RIAA kicked off its lawsuit strategy was based on similar thinking: that it was an "education" campaign that would convince people that there was "harm" done from file sharing. Of course, it didn't work. At all. And no education campaign is going to work, because it's just the basic nature of economics. If the technology has made the product infinite, it's not a moral issue or a legal issue: it's a business model issue. The answer is to change business models, not hope and pray that you can somehow convince people that it's "bad" to do something that obviously can be done quite easily.

So, yes, Gurry is correct that draconian punishment has created a massive PR backlash that has helped make things even worse, but an education campaign isn't going to make a difference. Only a business model change can fix a business model situation -- and we're already seeing that happen just fine in many parts of the world. It's not an education campaign that will help the content industry. It's smarter business models.

Filed Under: anti-piracy, copyright, punishment, wipo
Companies: wipo

How Do You Ban Someone From Posessing A 'Recording Device'?

from the seems-to-rule-out-a-lot... dept

Michael Geist points out that a guy in Canada has been convicted under an anti-camcording law for recording a showing of the movie Dan in Real Life (I'm sure it was big on all the torrent sites). However, what struck me as interesting was the punishment handed out. The guy is on 24 months of probation, has to perform 120 hours of community service, is barred from entering a movie theater or associating with anyone involved in movie piracy. And... he is barred from owning any recording device.

That seems a bit broad. After all, most mobile phones these days are recording devices. Any computer is a recording device. An iPod can be a recording device. I can understand the thought process that went into such a ban, but it seems to overreach in its intended impact.

Filed Under: camcording, canada, punishment

Convicted Spammer Claims Anti-Spam Law Is Unconstitutional

from the well,-he-would-say-that,-wouldn't-he dept

A few years ago, the state of Virginia convicted a notorious spammer under its state anti-spam laws, and sentenced him to nine years in prison. The spammer, Jeremy Jaynes has been appealing the decision ever since, without much luck. Last year, an appeals court upheld the conviction and noted that a nine year sentence didn't seem excessive. However, it appears Jaynes is now trying a totally different route to fighting the conviction: claiming that Virginia's anti-spam law is unconstitutional. The idea is that it violates first amendment free speech rights by banning even spam that's non-commercial in nature. The state, however, is responding that the law doesn't ban any kind of speech at all -- but it does ban falsifying information in order to trespass on others' systems for the sake of advertising. There may actually be a fairly fine line that's worth distinguishing here between banning the specific kind of speech and whether or not the "speaker" is falsifying information in order to get across that speech. It seems unlikely that the courts will rule against the anti-spam law, but if it does it would be interesting to see if spammers in other states follow suit.

Filed Under: constitution, jeremy jaynes, punishment, spam, spam laws, virginia