Tenenbaum To Supreme Court: Let's Get This Constitutional Debate On Statutory Rates For Copyright Infringement Rolling

from the or-the-trolls-win dept

You may recall that, in the case of Joel Tenenbaum -- who is in a legal battle with some major lbels for file sharing -- a jury awarded the labels $675,000 for the sharing of just a few songs. The judge, Nancy Gertner, pointed out that this seemed unconstitutionally excessive and reduced the award to $67,500 -- knocking 90% off the jury's award. The appeals court in the case reinstated the original $675,000 on procedural grounds. It said that Judge Gertner jumped the gun in leaping to the constitutional question, rather than using remittitur, as had been done in the Jammie Thomas case. Remittitur would allow the RIAA to have the case happen all over again with a new jury. In the Jammie Thomas case there have already been three trials.

Tenenbaum, led by famed lawyer/law professor Charles Nesson, challenged the appeals court on all of this, but had that quickly rejected. As we noted at the time, Nesson seemed to (as he's done in the past) argue points unrelated to the specific legal questions at issue. This seemed like a bad way to go about things in a court of law, even if it may help in the court of public opinion.

The latest is that Tenenbaum/Nesson have filed to raise the issue with the Supreme Court. At least the argument here is a bit more focused on the requirement for remittitur, with Tenenbaum's team arguing that the statutory damages for non-commercial use is clearly a major Constitutional issue, and by forcing it through the remittitur process, all the courts are doing is pressuring people like Tenenbaum to settle, rather than ever allowing it to be judged on constitutionality. And that has consequences -- namely in enabling copyright trolls to shake people down, without ever allowing them to challenge the constitutionality of massive statutory damages.

I actually think this is a much more persuasive argument than I've seen from Team Tenenbaum in the past, but it seems unlikely that the Supreme Court will actually take the case on. I hope I'm wrong (and then, if I am wrong on that, I hope I'm wrong in my guess as to how it will come out, because this version of the Supreme Court doesn't appear to understand the issues around copyright law). Either way, we should find out soon enough.

I do think it's interesting that Nesson is using the copyright troll issue as part of the argument. Eventually, this or an issue like it will get to the Supreme Court, and hopefully the Justices realize just how damaging such practices can be:

They use the asymmetric cost of litigation to make defense by the individual economically irrational.

This Court should do everything it can to remedy this misuse of process. Its effects are not ended because the RIAA has ceased suing individuals. Others are using the legal structure and litigation tactics they have put in place.4 The weight of federal litigation is not a tool appropriately used to suppress legal challenge. The absence of cases pending in the federal courts highlights the problem: a deeply misshapen judicial architecture has been set in place. Without review, it is unfixable. The suppression of ability to challenge a process that is repeatedly producing appalling results, not circuit splits, is exactly why this case is worthy of this Court's present attention.

It's an interesting argument to get around the lack of a circuit split (conflicting rulings in different circuits, which is one of the key reasons why the Supreme Court agrees to hear certain cases). However, I just don't think the Court will think it's a big enough deal to jump on it, perhaps figuring that it can bounce back up eventually. Of course, that only underlines the point: for that to happen, it means years more of Tenenbaum's time wasted with this case. That seems unfortunate.

Filed Under: charles nesson, file sharing, jammie thomas, joel tenenbaum, riaa, scotus, statutory damages

Swizz Beatz: Technology Brings Freedom To Musicians; Those Not Embracing It Are Greedy

from the nicely-said dept

Swizz Beatz, one of the most well-known, well-respected music producers around -- who was very briefly listed as the CEO of Megaupload right before it was shut down by the US government -- was just interviewed on MTV about Megaupload, technology, file sharing and music and made a bunch of good points. When asked why the industry has been so slow to adopt what technology enables, and specifically about file sharing, which the interviewer notes is "so important in hip hop," he sums it up simply: it's all about greed by the labels.

I think the only reason why people wouldn't embrace technology is because of greed. And because of the old way of doing business, which is also greed. And then you have people running the business -- no disrespect -- that's 80 years plus. They don't even know how to operate an iPad, and they're making decisions on the younger generation's future.

And my association with forward thinking technology is very deep. And it came up a little bit with Megaupload -- which still, today, is a big misunderstanding of technology. And the day that you mix the old business with the new technology, we'll have a better place. It's actually going to be a time when artists can come out and do 10 million records their first week. Because the technology is going to be so locked in tight globally. You have billions of people, all over the world. Why can't artists that everybody likes do 10 million a week? It's just that the communication and the technology and the old way of doing business is off. But once that catches up, which is going to happen in the next three years, it's going to be amazing.

And the cool thing is that technology equals freedom for the artist. And that's the best thing that could ever happen for artists that work hard and that really want to get their career off the ground.

He's then asked a bit about "piracy" and actually getting people to buy, and he notes that if you make good music, people will support you. He says the problem is that people have gotten away from making good music. But when there is good music, people want to support "great music." He notes that people have no problem paying for those "timeless pieces," because they know they're supporting the artists. It's just that when musicians today are "bluffing," the public knows it, and isn't so interested in supporting it.

It's a good interview, and it's good to see more people -- especially in the hip hop world -- speaking out about this, rather than merely accepting the lines from the 80 year old execs at the music labels.

Update: Apparently, Swizz is feeling talkative these days. He also did a nice longer interview on a radio show where he talks a bit more about all of this, again saying that the Megaupload situation was a misunderstanding -- and talked about how he had figured out a way for musicians to make "wow money" but it won't happen now because of the "miscommunication" that has the US government making it look like they were breaking the law.

Filed Under: file sharing, greed, piracy, swizz beatz
Companies: megaupload

Portuguese Man Convicted On Criminal Charges For Sharing Three Songs

from the and-here's-a-playlist dept

Nelson Cruz points us to the latest news of totally ridiculous and disproportionate punishments for file sharing. A young man in Portugal has been convicted on criminal charges for sharing 3 songs. He was sentenced to 60 days in jail, but the jail sentence was suspended, and instead he has to pay €880. While the report notes he was apparently sharing more songs, the charges only covered 3 songs. To make it clear just how ridiculous this is, Nelson also put together a YouTube playlist with all three songs -- showing that they're all available to share in this manner legally. Today. Back in 2006, because of the industry's own stupidity, such services were not readily available. If they were, the kid likely would have used such a legal service. So how is it that what this kid did was so horrible that it deserves a criminal conviction? It seems like all he really did was help show the industry what the public was looking for.

Of course, the ridiculousness doesn't stop there. The local Portuguese version of the RIAA, called the AFP, appears to be using this case as an example of why they need a Hadopi-style three strikes law in Portugal. The problem? It took nearly six years to convict this kid for daring to share 3 songs. Of course, it took nearly as long for the industry to get its act together and offer legal services. Perhaps we should give that a go for a while before we start passing new laws that kick people off the internet, yes?

Filed Under: afp, file sharing, portugal

RIAA Keeps Trying To Spin Hadopi's Clear Failure Into A Success Story

from the how-sad dept

It's one thing to make bad predictions or be focused on the wrong thing -- but to totally spin the data to pretend you were right all along when it's pretty clear you were wrong... well, that's just delusional. And that appears to be the situation the RIAA is in. You may recall the fact that despite Hadopi trying to declare success because unauthorized file sharing appeared to have dropped off considerably, it was pretty clear the program was a failure because music sales continued to drop. And if the point of this kind of crackdown is to help the industry, then it seems like a pretty big failure. But, in the RIAA, apparently "failure is not an option" -- so they just take a clear story of failure and pretend it's a giant success , because there was a boost in digital sales and subscriptions -- even if overall revenue is down.

But this argument makes no sense. You can't just ignore the part of the market you don't like when it's inconvenient. The RIAA tries to get around this solely by focusing on growth within digital (and ignoring the continued free fall in analog sales). But if we're talking about the overall music market, shouldn't that be seen in how the impact is measured? Besides, as Saskia Walzel rightly points out, it appears that the growth in digital services that the RIAA trumpets as proof that Hadopi worked were seen in other countries as well -- including countries without such a draconian three strikes policy. So, while there may be a correlation between three strikes and people paying, the evidence of any sort of causal relationship is totally missing. The RIAA can't just pretend that the changes in France were due to Hadopi when the evidence suggests otherwise. At least someone should call them out for the claim.

Filed Under: file sharing, france, hadopi, piracy
Companies: riaa

File Sharing Drones Proof Of Concept Already Built

from the fly-drone-fly dept

There was a fair bit of discussion recently about the story of The Pirate Bay exploring using drones to build a flying file sharing system -- with many insisting that such a thing was a completely ridiculous-to-impossible notion. They might want to think again. It seems that a proof of concept had already been built by a different group, who had no idea that TPB was considering this idea. Liam Young from Tomorrow's Thoughts Today already built what's basically an implementation of the what the Pirate Bay described, which you can see below: Of course, the key here is that these are just setting up a drone-based local-area network, rather than one connected to the wider internet, but that's easy enough to add at some point (especially as wireless technology improves). There's still a long way to go towards a full-scale system such as what the Pirate Bay guys envision, but the technology itself isn't that far fetched.

Filed Under: drones, file sharing, international waters
Companies: the pirate bay

The Pirate Bay Claims It's Going To Host The Site Via Drones Flying Over International Waters

from the the-pirate-ships-continue-to-go dept

One of the more amazing things about the recent moves by the entertainment industry to put in place stricter laws around the globe to attack file sharing, is that they still don't realize how pointless this is compared to the only real solution, which is to offer more of what consumers actually want, rather than trying to force them into some old way of doing business. For every "victory" the industry declares, we see more and more evidence that the file sharing just moves further away from what the industry can control (and keeps growing). The Pirate Bay, of course, has always been one of the leaders in mocking the legacy entertainment industry as it continues to operate, despite years-long efforts to shut it down. And even as there are reports of new raids pending, the organization has shifted to magnet links, meaning that taking it down will be even more meaningless than in the past.

Even so, the folks involved in TPB are still trying to go further. As highlighted on TorrentFreak, the latest plan from TPB is to see if it can serve the site from GPS-controlled drones flying over international waters:

One of the technical things we always optimize is where to put our front machines. They are the ones that re-direct your traffic to a secret location. We have now decided to try to build something extraordinary.

With the development of GPS controlled drones, far-reaching cheap radio equipment and tiny new computers like the Raspberry Pi, we're going to experiment with sending out some small drones that will float some kilometers up in the air. This way our machines will have to be shut down with aeroplanes in order to shut down the system. A real act of war.

We're just starting so we haven't figured everything out yet. But we can't limit ourselves to hosting things just on land anymore. These Low Orbit Server Stations (LOSS) are just the first attempt. With modern radio transmitters we can get over 100Mbps per node up to 50km away. For the proxy system we're building, that's more than enough.

Whether or not they can actually pull it off is a totally different question, but as we've been discussing recently, drone technology is getting cheaper, and the potential disruption of the Raspberry Pi should not be underestimated. While such things might not really be ready yet to do what TPB hopes to do, it's not difficult to project these trends out just a little ways to see that not only will it be possible in the not-too-distant future, but it would be a surprise if we didn't see setups that go way beyond what TPB is currently proposing before too long.

Filed Under: drones, file sharing, international waters
Companies: the pirate bay

File Sharing Moves En Masse To The Darknet; Good Luck Shutting That Down

from the the-industry-loses-another-generation dept

It's not like this wasn't easily predictable, but as the entertainment industry has "succeeded" in taking down Megaupload and continues to move against The Pirate Bay and others, anyone who's followed this space had to have known that file sharing would just move one step further underground. We've seen the same thing after every single "victory" against file sharing since Napster was shut down. Each time, it moves to a system slightly more underground and more distributed. The early ones were still easy to take down but as they get further underground, it just becomes worse for the industry (and makes it that much harder to win back those users). The latest news is that there's been massive uptake of a growing number of anonymous, decentralized file-sharing tools. As is pretty typical in these "shift" periods, it's still not clear which systems will "win" out over the others, but the leaders are starting to emerge. The Torrentfreak article above mentions players like Tribler and RetroShare. People in our comments have been discussing both, as well as Ares Galaxy. Who knows if any of these apps are actually any good, but it seems pretty clear that people are continuing to file share -- they're just finding ways to do so that are even harder to track down and stop. How long until the legacy entertainment industry starts publishing articles about these evil anonymous, decentralized file sharing systems and demanding new laws against them?

Filed Under: anonymous, darknets, decentralized, encryption, file sharing, underground
Companies: ares galaxy, retroshare, tribler

Why Ebook Portal Library.nu Differed From Other Filesharing Sites

from the paying-the-price dept

A couple of weeks ago the popular ebook portal Library.nu was shut down, apparently voluntarily, after a coalition of book publishers obtained an injunction against it and a similar site. As an excellent post on the kNOw Future Inc. blog points out, Library.nu was significant in a number of ways:

the demand for the works offered there demonstrates that filesharing is not just about pop music, porn and cams of action movies, but also those forms and sources of knowledge whose acquisition are ritually celebrated within 'enlightenment' culture.

The stereotypical downloader -- young, and looking for easy entertainment online -- was in part a function of what was available initially. The Library.nu site showed that fans of "high culture" were just as keen to obtain digital versions of their stuff as those with more "low-brow" tastes.

Many of those whose works were offered derive income not from royalties, but from related activities such as teaching and research. Such people were themselves an important component library.nu’ user base.

The first part means that the authors of those books wrote not for money, principally, but for other reasons -- for example, prestige or influence. It was actually in their interests for their works to be circulated as widely as possible in order to enhance their reputation, and Library.nu made that possible. It's not clear what evidence there is for the second sentence quoted above, but assuming it's true, it would indicate that for some, at least, the Library.nu ethos was "share and share alike".

The post concludes:

Some [of those downloading from Library.nu] have other means to access the same materials, others, especially those in countries with weaker education infrastructures and more emaciated library budgets, do not. Outside of formal education, the millions of online autodidacts may be denied access to material, seriously impinging on their lives and possibilities. When one considers the cost of text books and more especially scholarly articles, that is no hyperbole, and applies not only to the global south but the post-industrial north as well, awash in its dreams of knowledge economies and human capital.

That suggests two things. First, that publishers are missing out on a huge audience that is hungry for knowledge, but simply can't afford text books, say, at current pricing. Once again, piracy is driven partly by a failure to serve the market properly.

The other point is that although publishers may rejoice that Library.nu has been taken down, readers around the world will suffer in terms of losing access to these works that they can't afford. Some may say that's just tough, or that these people should work harder or make greater sacrifices elsewhere in order to be able to afford such books. But in many locations, those books are not available legally at any price.

As a result, when sites like Library.nu disappear, there is a cost to society as a whole because of the knock-on effects of reduced information flow, and of practical knowledge that is unavailable for application as a result. In this respect, sites with large collections of digitized textbooks are quite different from those that are principally offering music or video downloads for entertainment.

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Filed Under: culture, ebooks, file sharing, library

Another Answer To Dealing With Piracy: Keep Creating Better Tools & Business Models

from the they-keep-on-coming dept

We've already discussed, a few times, how the tech/startup industry has repeatedly given the entertainment industry the "solution" to piracy, in the form of new tools, services and business models, which are helping many "compete with free" by offering something better... all without regulation. Unfortunately, the entertainment industry still seems to think that the only solution is to pass laws that try to do the impossible: stopping piracy. This is the wrong approach. They're not at all focused on revenue maximization, they're so obsessed with the idea that infringement represents a "loss," that they're missing out on the fact that they're missing tons of opportunities to make more money.

Dante Cullari, the founder and CEO of Beat-Play (and a musician himself), has a post up on Music Think Tank, noting both the impossibility of stopping file sharing, and wondering why the industry doesn't embrace new solutions (like his, of course) that allow them to compete. He further notes that the solutions the industry are suggesting clearly show a lack of understanding of how people use the internet. Putting up a paywall? Good luck with that:

To me it seems pointless to even bring up the prospect of a subscription service, or even a pay-as-you-go model as a viable solution for a future sustainable industry model. This is because the internet, now the basis of content consumption, is like a huge river of information. A paywall is like a little pebble being thrown into it. The water in the river has no trouble getting around the pebble. Paywalls will never solve the piracy problem, and damming up the whole river, as we’ve seen with SOPA, will not be easy, and most likely will never happen.

Really though, I don’t think that the actual problem that the rights holders have with piracy is the copying, but rather it is the loss of revenue brought about by the copying that motivates the rights holders into action. They want to be rightly compensated for their work. Who wouldn’t? The problem is that the business model - the mechanism that they’ve chosen to help them receive compensation, is not only a little dated, but it has been proven ineffective in this new environment that is very different from the one we saw even 15 years ago.

The rights holders need a new mechanism for compensation. It’s that simple. Why they’re trying to preserve the one they have, I really don’t know. But the sooner they accept the fact that it is broken and it’s time to get a new one, the happier they will be.

Of course, plenty of us have been arguing for over a decade that it's better to recognize the reality of the market, and then use that to your own advantage. Perhaps early on there weren't enough tools and services to make such new business models a reality, but these days it's impossible to argue that such alternative revenue sources no longer exist.

Beat-Play's model is based on using music from artists within brand-driven games (for example a Facebook skiing game, paid for by a ski apparel company, using a band's music), which lets fans hear free music, while also allowing companies to better track who their audience is. This really is an example of the "ads as content, content as ads" model we've discussed for years. I have no idea if Beat-Play will work. Execution matters quite a lot, of course, as does the willingness of those in the music industry to recognize that this is a viable path forward, but conceptually the idea makes some sense. It doesn't try to force consumers into a model they don't like. It doesn't try to be annoying or interruptive. It just tries to set up a system that lets fans do what they want, while also giving content creators a good way to get paid as well. That seems like a solution that's a lot more reasonable... and a lot more likely to lead to more revenue... than something like SOPA.

Filed Under: business models, file sharing, startups
Companies: beat play

Movie Studios Jump In Late: Sue LimeWire And Demand Cash From Dead Site

from the the-new-business-model? dept

Limewire is long dead and buried as a file sharing platform, and with the company settling the lawsuit filed against it by the major record labels for $105 million (down from the many trillions it had originally said it deserved), you might think that the legal shenanigans were long over. Apparently, someone in the MPAA just woke up to the fact that this might be a way to get some easy cash to pump into its next lobbying campaign, and has just now sued Limewire as well, demanding cash for any of its files that were traded. Of course, a bunch of indie record labels also sued, so it appears that lots of those who chose not to innovate are now trying to feed off of what's left of Limewire's carcass. It does make you wonder, of course, what made the movie studios wait so damn long. Of course, isn't that just like Hollywood? Rather than do something original, it just does a "remake" of something someone else already did?

Filed Under: copyright, file sharing, lawsuit
Companies: limewire, mpaa