RIAA Gets To Move Forward In Case That Tries To Force ISPs To Help Copyright Trolls

from the this-stuff-is-important dept

Back in February, we wrote about the details of the appeals court ruling in BMG v. Cox, a case that looked at whether or not internet access providers are required to terminate users accused of repeat infringement. The case was really a proxy for copyright trolling operation Rightscorp, which floods ISPs with claims of infringement tied to "settlement" offers that it wants the ISPs to pass on to end users. As discovery during the Cox case revealed, Rightscorp engages in incredibly sketchy practices to pressure people into paying up (such as telling them that they need to take their computers to the local police station for a search to prove they're not infringing).

However, due to a bunch of weird details in that case -- including a judge who made it clear he didn't think the internet was such a big deal -- Cox lost that case, and then again on appeal. The good thing in the appeal, however, was that the opinion mostly limited its decision to the specific facts in Cox's case, which included the fact that it had a "repeat infringer policy" but it didn't follow its own policy. That's really what sunk Cox. The court noted that an ISP should have wide latitude in designing its own repeat infringer policy, it just had to then follow its own policy. And Cox didn't.

While that case was going on, a second similar case was filed, this time by Universal Music Group against Grande Communications. Back in February, the magistrate judge on that case made recommendations to allow the case to move forward, though throwing out some of the claims. As TorrentFreak recently pointed out, the Article III judge in the case has accepted the recommendations of the magistrate, which you can see here.

Neither UMG nor Grande Communications are probably all that happy with the results (same probably goes for Rightscorp.), though UMG is probably happy that the case is at least moving forward on claims of contributory infringement. Grande's management company, Patriot Media Consulting, is dropped from the case, and the vicarious infringement claims are dropped as well. People often confuse "vicarious" infringement and "contributory" infringement as they're both forms of secondary liability for service providers. Vicarious infringement, though, requires two specific prongs: the right and ability to supervise or control the infringing activity, and the direct financial benefit from that activity. In other words, you need to be pretty damn involved and making money directly off of that specific infringement. In this case, the magistrate judge realized that clearly is not the case with an ISP:

The closest that the Complaint comes to addressing this issue is the allegation that “the availability of music —and particularly UMG’s music— acts as a powerful draw for user’s of Grande’s service, who use that service to download infringing music files using BitTorrent protocols.” ... This is not sufficient to show the “direct financial interest” necessary to support a vicarious infringement claim. There are no allegations that Grande’s actions in failing to adequately police their infringing subscribers is a draw to subscribers to purchase its services, so that they can then use those services to infringe on UMG’s (and others’) copyrights. Instead UMG only alleges that the existence of music and the BitTorrent protocol is the draw. But that would impose liability on every ISP, as the music at issue is available on the Internet generally, as is the BitTorrent protocol, and is not something exclusively available through Grande’s services. Accordingly, the Court finds that UMG has failed to plead facts showing that Grande receives a direct financial benefit from its subscribers’ infringing conduct, and that UMG’s vicarious copyright infringement claim should be dismissed for failure to state a claim.

Contributory infringement, on the other hand, is the concept that comes mainly out of the famous Grokster ruling, and basically says that if the service provider is inducing infringement, then they can also be liable for contributory infringement. Grande tried to get around this by using the Sony Betamax standard, noting that there were substantial non-infringing uses of its service, and thus it shouldn't be held liable for some infringement that does occur. The magistrate judge doesn't seem entirely won over by Universal's argument, but suggests at the motion to dismiss stage -- at which point the judge is required to treat everything the plaintiff claims as true -- there's enough in the pleadings to allow the case to move forward:

The Court acknowledges that this is not yet a well-defined area of the law, and that there are good arguments on both sides of this issue. However, at this point in the case, the Court is persuaded that UMG has pled a plausible claim of secondary infringement based on Grande’s alleged failure to act when presented with evidence of ongoing, pervasive infringement by its subscribers.

That's not exactly a strong endorsement, and if I were Universal Music's lawyers, I'd be worried about how things will go at the next stage (most likely summary judgment). Grande now gets to make the case that it did not "induce" infringement on its network, and merely failing to do what Rightscorp demands hardly reaches the level of inducement. To me, that's a pretty strong argument, but judges in copyright cases often seem to lose perspective when it comes to any kind of infringement. This will be an important case to pay attention to.

As a separate note, I'm a little surprised that the Supreme Court's Packingham decision, saying that the government can't kick people off the internet, didn't come up yet in this case. I imagine it will at some later date.

Filed Under: copyright, copyright trolls, isp, riaa

Homeland Security Admits It Seized A Hip Hop Blog For Five Years Despite No Evidence Of Infringement; RIAA Celebrates

from the fuck-you,-riaa dept

Last month, we were actually the first publication to report that Homeland Security had very quietly "returned" two domains that it had "seized" five years ago based entirely on totally bullshit claims from the RIAA. We focused our story on the search engine torrent-finder, but also mentioned that it appeared that DHS had returned OnSmash.com as well. As we had noted, back when the domain was first seized, OnSmash was a popular hip hop blog that many in the industry purposely sent their music to, because it was great for marketing and publicity. In fact, Kanye West had been known to promote OnSmash himself. That doesn't sound like a site "dedicated to infringement" as Homeland Security's ICE division claimed in the affidavit used to seize the website.

Four years ago, we were wondering whatever happened to OnSmash, as other sites that had gone to court over the seizures had had their domains returned -- and it was admitted that this was because the RIAA (which had told ICE about these websites) failed to provide any actual evidence. It appears the same thing happened with OnSmash, though it just took an extra four years to get the domain back, as OnSmash's operator, Kevin Hofman, chose not to take the riskier path that Dajaz1 took in going to court. But, the NY Times story about the return of OnSmash gets a quote from ICE admitting that they never had enough evidence:

When asked about the return of OnSmash and another site, Torrent-Finder.com, which was seized in the 2010 raid and also returned to its operator this fall, Matthew Bourke, a spokesman for the National Intellectual Property Rights Coordination Center of Immigration and Customs Enforcement, said that after working with the Justice Department, “it was determined there was not enough evidence to seize the websites.”

Think about that for a second. The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.

I'm gong to repeat that:

The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.

Meanwhile, the RIAA, which told the agent in charge of the investigation that these sites were nothing more than dens of infringement, is so obnoxious as to now celebrate them being returned with some bullshit line about how they now "wish to be legitimate operators":

Jonathan Lamy, a spokesman for the recording industry association, said he welcomed the return of the sites, as long as they played by the rules. “If the managers of some of these sites now seek to have the domain name returned because they wish to become legitimate operators, that’s a success,” he said.

What a load of horseshit, Lamy. These sites didn't "now seek to have the domain name returned." They asked for it back almost immediately after they were seized on false pretenses based on false information provided by the RIAA. Perhaps, instead of some bullshit about these sites suddenly wanting to play by the rules, Lamy should walk down the hall to see his colleague Carlos Linares (who is still employed by the RIAA) and ask him what was up when he lied to federal investigators, helping to shut down a popular blog, violating the site's First Amendment rights?

This is from the affidavit used to seize OnSmash:
Now, Hofman is trying to rebuild the blog, having basically lost years of momentum due to the RIAA's lies.

Mr. Hofman, whose day job is managing digital accounts for musicians, has already restarted OnSmash, but he said he was aware of the challenges he would face. The site has lost most of its momentum, and blogs — once at the forefront of online music promotion — have largely been superseded by social media. He noted one advantage: By embedding links from sites like SoundCloud and YouTube, where artists and labels post songs directly, there is no more gray area concerning the source of the music.

“The plan now,” Mr. Hofman said, “is to do my best to pick up the pieces.”

Oh yeah, insult to injury: Homeland Security made him pay $7 to get the domain back.

I'm still amazed that these stories haven't gotten more attention. Again, if the federal government seized and shut down a print magazine people would be up in arms. But they do that for a bunch of online magazines and nobody seems to care? Again, they seized the domain based on false information and kept it for five years knowing that they didn't have enough evidence to have made the seizure in the first place.

And the guy who helped at the RIAA is still employed. Has anything happened to the ICE agent, Andrew Reynolds, who wrote the affidavit? How about the magistrate judge, Margaret Nagle, who apparently had no problem signing off on the seizures of internet blogs based on faulty evidence? Apparently, she recently retired and is now acting as a mediator. You know what might have been helpful? If someone had actually been able to mediate things back in 2010 before the RIAA, Homeland Security and Judge Nagle worked together to shut down an internet news website with no justification.

I've issued some FOIA requests to Homeland Security about both OnSmash and Torrent-Finder, and so far they've said that it would be "too burdensome" to search for any emails mentioning either site. I'm hopeful that more information will be exposed on what a colossal screwup this was.

Filed Under: andrew reynolds, asset seizure, blogs, carlos linares, copyright, dhs, first amendment, free speech, hip hop, homeland security, ice, jonathan lamy, kanye west, kevin hofman, margaret nagle, onsmash, riaa, seizure
Companies: riaa

HuffPo Columnist: I Infringe, So All Broadband Users Must Pay A New Piracy Tax

from the here-we-go-again dept

We've talked time and time again about the pipe dream on some fronts (mostly the entertainment industry) that you should tax broadband connections to give them the money they so justly deserve as victims of new business realities they repeatedly refused to acknowledge. It's effectively a "you must be a criminal tax," and despite being an immensely bad idea, it has obviously seen passage in numerous countries in the form of German levies on things like solid state drives and Canada's tax on blank media. Fortunately here in the States, efforts to push these taxes on broadband users or universities run into strong opposition.

Most people understand that letting the entertainment industry tax everybody for the behavior of a few people simply makes no coherent sense. Except apparently for "musician and freelance writer" Chris Peak, who in at attempt at humor over at the Huffington Post proudly proclaims that he thinks it would be a nifty idea if all broadband subscribers had to pay a monthly fine for the behaviors of other people. Peak begins by proudly admitting he pirates, tossing around some of the usual arguments buried under said attempted humor (it's "stealing!" and "bands and musicians have essentially given up on selling music!"), and reaches the point where he asks all broadband subscribers to pay more money for no good reason:

"The fix? There is a fix. And it could work. Tax me. Tax for me the amount of bandwidth I use. Tax me each month, then earmark the tax for the film and music industry. Collect whatever percentage off of that tax you want. Enter into an anti-piracy agreement with both the RIAA and MPAA, and distribute the tax as fairly as possible. It would be a difficult task to allocate the tax to the effected artists and software developers, but there are widely available lists, updated daily and weekly, of the most pirated albums, programs, and movies."

Because it's not like once those taxes are imposed they'll endlessly shoot skyward, completely detached from any real-world financial realities, right? If only we had real-world examples of that to show Peak how awful this idea is. Fortunately, ISPs and the entertainment industry are both known for transparency and accurate math, so it's not like they'll try to expand and abuse such a levy at every conceivable opportunity, right? It's also not like entertainment industry middlemen have a long history of taking this kind of money and ensuring they get the lion's share of it, right? Peak's idea is fool proof!

The author then cries a little bit about his inability to adapt to a new business paradigm he pretty clearly doesn't understand:

"I anticipate in the very near future my own music being completely stolen from me, pirated, and offered for free for trade between my fans. Fans are great. I wish I had more (for self-esteem issues). But that music that you kind of stole from me... I spent years writing, years recording, and years begging and borrowing and spending my life's savings on, hoping that I would find enough fans to buy my music. Because I kind of do this for a living and need to support myself. Get it?"

Got it. Surely the best possible way of building your admittedly-small fan base will be to call them thieves and impose an entitlement fee on top of every broadband connection in the nation, while demonstrating you have limited skills at adaptation. Stardom awaits!

Filed Under: broadband, chris peak, mpaa, piracy, riaa
Companies: huffington post

Hollywood & The RIAA Won't Let Tech Save Them

from the fighting-the-wrong-fight dept

We've discussed in the past how ridiculous it is to claim that there's a fight between "Hollywood and Silicon Valley." After all, the tech industry keeps creating the tools for Hollywood to succeed and broaden its market... and every time they do so, Hollywood responds by attacking those providing the tools. Every innovation that created a vast new market from which to profit from has been attacked. The gramophone. Radio. TV. Cable TV. The VCR. The MP3 player. YouTube. The DVR. In the end, all of these created great new opportunities, but were attacked. As we've said, it's a very strange war where one side (tech) is building all the weapons for the other side... only to see them point those new weapons at their own feet.

Of course, it's actually even worse than that. Because, not only does Hollywood point these new weapons at their own feet... they then try to sue and blame the tech industry for creating these same weapons. It's a pretty hostile environment.

And this is a massive problem for Hollywood. Because, throughout history, it has been shown that the only solution that actually helps solve the "issue" of "piracy" is the creation of new and useful legitimate services. And the entertainment industry is doing its best to scare everyone off from doing that by attacking each of those new services as it comes about. Entrepreneur Tyler Crowley has a great analogy explaining how the entertainment industry is driving the very innovators it needs help from away. He talks about how entrepreneurs look at markets as "islands of opportunity." He lists out a few, such as the Facebook island and the Apple island.

For tech folks, from the 35,000' view, there are islands of opportunity. There's Apple Island, Facebook Island, Microsoft Island, among many others and yes there's Music Biz Island. Now, we as tech folks have many friends who have sailed to Apple Island and we know that it's $99/year to doc your boat and if you build anything Apple Island will tax you at 30%. Many of our friends are partying their asses off on Apple Island while making millions (and in some recent cases billions) and that sure sounds like a nice place to build a business.

He talks about a few other of these "islands of opportunity" (and does a nice job breaking them down). But then he gets to the "music biz island" (which I'd argue is actually the "legacy entertainment biz island") and notes the hostile reception:

Now, we also know of Music Biz Island which is where the natives start firing cannons as you approach, and if not stuck at sea, one must negotiate with the chiefs for 9 months before given permission to dock. Those who do go ashore are slowly eaten alive by the native cannibals. As a result, all the tugboats and lighthouses (investors, advisors) warn to stay far away from Music Biz Island, as nobody has ever gotten off alive. If that wasn't bad enough, while Apple and Facebook Island are built with sea walls to protect from the rising oceans, Music Biz Island is already 5 ft under and the educated locals are fleeing for Topspin Island.

In other words, the good entrepreneurs, who actually can help the entertainment industry (some of whom tried in the past) are actively pushed away from helping. And then the entertainment industry whines that no one wants to help them. Perhaps they should look at being just a bit more welcoming...

On a side note: Crowley's writeup was actually in response to a dinner gathering at some super super swank LA eatery that tried to bring together the heads of the major labels with some LA entrepreneurs. That's actually encouraging, though, again, meeting in backrooms is still missing the point. Why is it so hard for the industry to have a discussion in public?

Filed Under: dvr, hollywood, mp3, riaa, technology, vcr

Aliens v. The RIAA! Win An Early Release Copy Of Year Zero, Techdirt's July Book Club Offering

from the join-in-the-fun dept

Okay, I know it was just two days ago that we announced the Techdirt Book Club book for June (and, a reminder that tomorrow at 1pm PT/4pm ET, we'll be holding a Q&A with Patricia Aufderheide for the Techdirt Book Club book for May), but today we're "pre-announcing" the Techdirt Book Club book for July. And that's because if you want to get a free hard copy of the book, you can enter a giveaway starting today. You may remember, a few months back, Rob Reid (founder of Listen.com, among other things) got plenty of attention for his rather humorous talk about copyright math. And, earlier this week, we wrote about his op-ed for the WSJ concerning ways to compete with "free."

But none of that compares to Year Zero, Reid's new novel, which is being released on July 10th. It's all about aliens who go bankrupt after they realize they owe the record labels more money than exists in the universe, because they got hooked on our music, and shared that music with other aliens. Rob has released a video trailer as a teaser for the book, which is quite amusing:
I've had a chance to read the book, and I can say that it's awesome. Think Hitchhikers Guide to the Galaxy, but with copyright law driving a major plot line. A mainstream humorous sci-fi novel that uses the Berne Convention as a key plot point and tosses aside casual references to Larry Lessig and Fark? Yes. Count me in. And, unlike most novels that bring up copyright, this one gets the legal issues mostly right (there is one point where trademark and copyright get confused, but it's so minor, you'll let it slip).

Anyway, as we said, this will be the Book Club book for July, and we'll be doing some fun things with Rob to have him engage with everyone here—but, if you're lucky, there's a chance for you to get a physical copy of the book delivered a month before it's actually released. Rob has the details on his blog, but basically you have to let him know (via a comment on his blog, a tweet or a Facebook comment) what song you'd like to beam to the aliens. Thirty winners -- ten from the comments, ten from Twitter and ten from Facebook (though you can enter all three) -- will be chosen at random to get books. So, go ahead and beam some songs to aliens. And just hope the RIAA doesn't claim that you're "inducing" infringement by doing so...

Filed Under: aliens, book club, contest, hitchhiker's guide to the galaxy, riaa, rob reid, year zero

Myths And Realities About Fair Use

from the and-a-quiz dept

Here's the final excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt and the third excerpt go check them out.

Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.

Myths and Realities about Fair Use

MYTH: Fair Use is only valid when it is non-commercial.

REALITY: Fair use is designed to expand the range of cultural production, not just the range of non-commercial cultural production. Almost all the occasional litigation on fair use, which has determined this legal trend of interpretation, has been over commercial uses. (Generally lawsuits aren't begun if there is no money to be gained.) Fair uses can be made of copyrighted material in any commercial context, so long as the “four factors” of consideration tilt toward the value of new contributions to culture against the cost to current owners. Currently the simplest calculation, the one preferred by the courts, is to find transformation (reuse for a different purpose), and to make sure that only as much of the original has been used as is necessary for the transformation; this is best done with a justification for the habits and practices of a particular creative or user community.

MYTH: Any non-commercial use is fair.

REALITY: Who's it hurting, right? That's a common argument, especially among vidders, remixers, and other creators in the online video environment, but the law doesn't in fact exempt non-commercial uses. The law does privilege such uses in some cases, but you will unfortunately today be in a grey zone if you lean exclusively on the fact that you're not selling your work. That's especially true in online situations, where you may not be making money off your work but somebody else is—usually an advertiser placing ads on a site, or a data miner. (There is no legal definition of “non-commercial.”) Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim, that pocketbook problem can be overridden (depending on how severe it is). Simply not making money does not give you a fair use pass.

MYTH: Fair use is always valid if you're using it in an educational context, and especially within a classroom.

REALITY: Being a good guy is not necessarily enough. Educational uses have their own special exemptions, but fair use in any educational context will have to abide by the same logic as in other contexts. But because fair use analysis is always done, implicitly or explicitly, within the context of a community of practice, you can refer to the mission and needs of your field. Educational contexts provide some very easy justifications for transformation (such as that students are analyzing the content). Educators need to pay particular attention to their claims to fair use if they are using commercial materials explicitly designed for their educational environment. In that case, an educator's use might not be transformative. Sometimes codes of best practices apply; for instance, media literacy teachers can consult the Code of Best Practices in Fair Use for Media Literacy Education (centerforsocialmedia.org/fair-use/best-practices/media-literacy).

MYTH: Fair use is only about criticism and commentary, like parody for example.

REALITY: Criticism, commentary, satire and parody are all great examples of ways in which copyrighted material is reused for a different purpose than for its original market, in the process of creating more culture. (How does satire differ from parody? They are closely related. Parody holds up to usually-funny commentary a particular work. Satire pokes usually ironic fun at anything including behavior.) But they are not the only kinds of activities that qualify as transformative fair use. Pastiche without a specific point to make—a collage or mashup--can also be a fair use. So might quotation for discussion--and much more.

MYTH: Fair use is “the right to hire a lawyer.”

REALITY: In fact, fair use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are. Your greatest comfort is in knowing that your peers in a community of practice have already agreed upon standards of interpretation. Many people have taken the comment of legal scholar Lawrence Lessig, made at the beginning of the 21st century, that “fair use is only the right to hire a lawyer” at face value and repeated it many times since. But Lessig made that remark before the beginning of the current fair use movement, which has greatly clarified safe interpretations of fair use for many communities. Indeed, he made that before he himself founded the Fair Use Project at Stanford, which encourages wider interpretation of fair use.

MYTH: Fair use needs a really good “test case” in the courts, to set precedent.

REALITY: There are several reasons why we shouldn’t wait for litigation to improve our access to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side. Second, any particular lawsuit may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen that confuses or changes the story, muddying the judgment you wanted to get. For instance, the artist Shepard Fairey seemed to have a very clear fair use right to use a photograph of Barack Obama for a poster. But during preparations for the trial, he admitted lying about the photograph he used, creating great distrust and prejudicing his case. Far better than waiting for a definitive “test case” is establishing clear standards of interpretation. Such standards can be highly useful in any ensuing litigation.

MYTH: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be ruined.

REALITY This is a conclusion that is drawn from two common but unfortunate practices: looking only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts. If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal and uncontested practice. In reality, people are employing fair use casually and comfortably every single day across the nation, often without thinking about it, and get no trouble at all. They are in the safe-harbor areas of fair use. You can understand what those are as well. In the rare event of a copyright lawsuit, defendants have a solid phalanx of pro-bono lawyers who are eager to litigate on fair use, including Stanford Fair Use Project, the ACLU, EFF, and some intellectual property clinics. Courts strongly encourage settlement and discourage trials. Anyone who proceeds with litigation has rejected plenty of opportunities to settle. If defendants decide they do not want to proceed, they will get plenty of opportunities to settle for relatively small costs. But the most important thing to remember is that lawsuits are extremely rare, the exception to the rule.

People frequently confuse one kind of danger with another. For instance, the RIAA has sued a clutch of average-citizen downloaders. The RIAA originally attempted to create enormous publicity and public awareness about the illegality of downloading copyrighted material available for sale by a few strategic lawsuits. These lawsuits proved entirely useless in discouraging downloading, while racking up enormous legal bills for the RIAA and others. But the RIAA's case against downloaders bore no relation to any fair uses. Downloaders were simply accessing material they could buy for free, typically to use in exactly the way it was being marketed. The music industry may be backward- looking, but its legal case was technically sound. It was not grounded in fair use arguments. Fair users do not need to be frightened of RIAA lawsuits.

MYTH: Fair use is just a defense, not a right.

REALITY: Fair use is in fact a right that comes into play once someone accuses you of infringement. At that point, you would respond by saying that you had a right to use that material. Until then, everyone is simply going along minding their own business, creating culture. The right of defense occurs in other contexts as well. For instance, if you are physically attacked, you have the right of self-defense. This right never comes into play until you are both attacked and someone accuses you of hurting them. Then you will invoke your right of self-defense. The fact that fair use is a defense does not make it any less of a right.

MYTH: Fair use is just an interpretation, not part of the law.

REALITY: Fair use is neither new nor a mere interpretation. A 150-year-old feature of the law (and widely exercised before that, without being explicitly invoked), it is a key element of a policy dedicated to promoting culture. Fair use is an essential tool for us to be able to exercise our First Amendment rights.

MYTH: I can't use fair use, because the copyright holders would never agree to it.

REALITY: Fair use is a right that you employ simply by accessing material, copying it and incorporating it into your project within an appropriate context. You do not need to get anyone's permission to do that, and you do not even need to let them know that you did it. Some legitimate and uncontested claims of fair use are even made after one or more attempts to license; the attempt to license may even increase one’s case for fair use, if the material is vital to what you are trying to say. Some people like to alert the people whose work they took, as a gesture of respect or homage, and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a vendor or archives holder of their fair use, because they have an ongoing business relationship that involves licensing, they may want to eliminate ambiguity about the use, and they may want to stay on the best terms possible.

Filed Under: aclu, book club, eff, fair use, free speech, patricia aufderheide, peter jaszi, riaa

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

SOPA Supporters Urge White House To Use Secretive TPP Process To Insert Draconian New IP Laws

from the sopa-reunion dept

We've been warning for a while about the TPP negotiations, and how the big interests who pushed SOPA were making a concerted effort to use the (very questionable and extremely secretive) nature of international trade negotiations to sneak through many of the things they wanted in SOPA, without any scrutiny. Make no mistake: while the public has no access to, or information about, what the federal government is negotiating, the big special interests are well informed. As pressure has been mounting against TPP, it appears that the US Chamber of Commerce has "brought the band back together," putting outa letter to the Obama administration explaining why draconian IP rules must be included in the TPP. The letter is signed by a who's who of SOPA supporters, including (of course) the Chamber of Commerce, the MPAA, the RIAA, A2IM, PhRMA, AAP, BSA, ESA and more. Basically, it's a bunch of also ran industry trade groups whining to the feds that they can't innovate anymore and they need economically damaging mercantilist-style protectionism.

For the TPP to achieve that vision, it is essential that the final TPP agreement incorporate comprehensive and high-standards for the protection and enforcement of intellectual property (IP) rights – including patents, trademarks, copyrights and trade secrets. And that outcome can only be achieved through continued and heightened U.S. leadership. By contrast, any attempts to weaken IP rights or to exclude any sector from protection must be strongly rejected and would be inconsistent with overall U.S. Government policy and U.S. economic and trade interests.

Almost nothing in that paragraph is accurate (or honest). The TPP can be a perfectly good trade agreement without touching on IP issues. It's just that, in the past few years, industry lobbyists have realized that sneaking IP law expansion through international obligations is a good way (they thought) to keep them under the radar, and to get ridiculous rules pushed through without having to go through the standard legislative efforts. In fact, deals like these often require changes to the laws after-the-fact, which is exactly what the industry wants. Because then, rather than arguing for a law because they know it will hurt innovative upstarts, they can just stand around pouty-faced, talking about how we have to "respect our international obligations."

Furthermore, there is tremendous evidence at this point that IP laws are way too broad and too draconian, and that's causing significant hindrance to innovation. Claiming that no weakening of IP laws can be allowed is a ridiculous and unsupportable maximalist agenda, designed not to help the US, but to lock in entrenched players at the expense of disruptive innovators.

We commend your Administration for recognizing the key role played by innovative and creative industries in driving economic growth, jobs and competitiveness. As recently highlighted in the March 2012 U.S. government report – Intellectual Property and the U.S. Economy: Industries in Focus – U.S. IP intensive industries support more than one in every four jobs, over one-third of GDP, and approximately 60 percent of exports. The protection and effective enforcement of IP rights are therefore of critical importance to the economic growth and prosperity not only of the United States but also of its eight TPP-negotiating partners.

This is a load of hogwash. The "report" used the US Chamber of Commerce's own totally discredited methodology to inflate numbers to ridiculous levels. Furthermore, the US CoC's interpretation that this report shows that enforcement is "critical" is, once again, complete hogwash. It assumes -- without any proof whatsoever -- that these IP intensive industries exist because of strong IP laws.

What the letter conveniently ignores is that some of the largest players -- and the fastest growing ones -- included in the list of "IP intensive" industries were the tech companies who fought against SOPA and who have complained about enforcement and protection levels being way, way too high. To use those industry's own growth as proof of the need for greater enforcement isn't just disingenuous, it's downright obnoxious.

As you and your Administration have repeatedly recognized, strong IP protections have been an essential element in fostering the explosive growth in new and more efficient technologies, increased productivity, life-saving medicines and other health technologies, as well as a wide variety of creative and educational works. As a result, high-standard IP protections are a key driver of economic growth in the United States and overseas and are linked to the creation and retention of jobs in industries as diverse as consumer and industrial products, educational products and entertainment, scientific products and equipment and information and communications technology.

Ah, flattery. And yet, there is no evidence to support the statement above. In fact, research has shown that IP laws do not, in fact, lead to explosive growth in technologies. Rather, the laws tend to lag growth -- showing that massive growth often happens in the absence of such laws or with weaker laws. The laws are then put in place to protect the leaders against new upstarts. This is exactly what the signatories of the letter are trying to do.

While the benefits of strong IP protections and enforcement are widely supported throughout the United States and safeguarded in our Constitution and laws, such protections are at serious risk in the ongoing TPP negotiations. Some seek to enshrine low standards of protection, with limited enforcement, in the final TPP agreement, arguing that U.S. proposals would be harmful and could undermine other interests.

Actually, some seek to push back on the ridiculous excesses of those who signed this letter, in order to look out for what actually benefits the public the most. Shocker, I know, but these laws are supposed to (we're told) benefit the public. Of course, the letter attacks such claims as well:

The strong IP protections proposed by the U.S. government in the TPP negotiations do not represent, as some suggest, a threat to public health, the development and expansion of the Internet or rights of freedom of speech, but rather a much-needed response to increasingly sophisticated threats to IP protection throughout the world. More, not less, rigorous IP rules are needed to thwart the explosion in IP infringement, including of pirated, counterfeit and unlawful copycat products throughout all sectors of the economy, and trade-secret theft.

Notice how these groups don't even hide the fact that they know what IP protections are being proposed by the US government in the TPP negotiations. That's because they're heavily involved in the process. You know who's not? The public. When special interests -- especially ones with a history of trampling all over the public interest -- get to help write the laws and the rules, while the public is kept in the dark, it's a pretty safe bet to expect that the public will get trampled again. Sorry, special interests, but saying you won't trample the public interest, while not letting the public into the debate, isn't that convincing.

Furthermore, we're already seeing such laws harm public health, hurt internet development, and be used to attack free speech. We can provide tons of examples. So claiming that it won't do more of that is a laughably ridiculous assertion.

What's also true is that never has expanding IP laws and enforcement been successful in "thwarting" infringement. It may work briefly, but within months, people find other ways to infringe. The only thing that works is encouraging real innovation in the field -- enabling startups to enter the market and do cool new things. Let them compete with "piracy" and innovative companies can and do succeed (though the industry then wants to shut them down or squeeze more money out of them). Yet the TPP isn't about enabling disruptive innovators. It's about giving slow, lumbering legacy companies who don't want to adapt the ability to kill innovation.

In their essence, the arguments against strong IP protections are largely based on the misguided assumption that strong IP protections advance only the interests of IP exporting countries and disadvantage countries with less well developed IP-dependent industries. In fact, the adoption of strong IP protections by all countries in the TPP and more widely promotes strong benefits for all, whether or not the country has developed its own major IP-based industries

Citation needed. Seriously. Because tons upon tons of studies have shown exactly the opposite.

Developed and developing countries that have adopted stronger IP protections have proven better able to develop their own technological, science, creative and other innovative and IP-dependent industries, advancing their own economic growth, productivity, exports, innovation and the interests of their workers and consumers alike.

This is lying by use of correlation, rather than causation. The real relationship is the opposite of what they're saying. The innovation almost always precedes the increase in IP protections, which then grant the leaders the ability to stifle upstarts and innovation they don't control. While it's true that developed nations have stronger IP laws, that's more about crony capitalism happening after the fact, rather than stricter laws being the cause of the innovation and growth.

The letter, in typical fashion, is a complete joke. The claims don't stand up to any sort of scrutiny. The authors must know this, but in a political world, they can get away with being extremely disingenuous.

Filed Under: chamber of commerce, mpaa, riaa, sopa, tpp

RIAA Tries To Downplay Its Role In The Feds' Unjustifiable Censorship Of Dajaz1

from the that's-prompt? dept

Last week, we had the story about the unsealing of the court records in the Dajaz1.com case. That revealed that the main reason why the feds (almost certainly illegally) held onto the domain name for over a year was that ICE had asked the RIAA for the evidence it needed (i.e., that Dajaz1 actually infringed -- criminally -- on its members' copyrights), and the RIAA had taken its sweet time responding.

Ben Sisario, over at the NY Times, has an article noting the official RIAA statement on the matter. Both Ben and the RIAA itself were kind enough to send me the full RIAA statement:

"We referred this particular site to ICE for investigation because of its long history engaging in the unauthorized distribution of copyright content prior to its commercial release. ICE conducted its own independent investigation of the site and ICE along with the Justice Department concluded that there was a basis for seizing the domain name. Rights holders and the RIAA were requested to assist law enforcement and made every attempt to do so in a complete and prompt manner. As we stated previously, we were disappointed with the decision to not seek forfeiture but we respect that this is a judgment that properly lies with the government."

For what it's worth, I also asked the RIAA if it could provide me the date on which it actually responded to ICE's questions, and I was told, politely, that the RIAA had "nothing further to add for now."

Beyond that, however, the RIAA's statement is ridiculous. First, it admits that it was the one who told ICE to seize this domain -- as had been suspected all along, but now has been admitted. At the very least, this raises significant questions about the all-too-close relationship between the federal government and the RIAA. The RIAA claims that "ICE conducted its own independent investigation," but that's clearly untrue. In both the original affidavit and the unsealed documents last week, ICE makes it clear that it relied heavily on the RIAA's statements. As we noted soon after the affidavit came out, ICE's "investigation" consisted of downloading four songs and asking Carlos Linares, the VP of Anti-Piracy Legal Affairs for the RIAA, if they were infringing. He said yes, and that was good enough for ICE to move forward with the seizure. Of course, as we pointed out, on one of the songs, Linares had no right to speak for the artist, since it wasn't even an RIAA artist. On the other songs, it appeared that the RIAA did not check with the labels' own promotions people who had sent the tracks.

That said, the really ridiculous claim here is that the RIAA helped in a "complete and prompt manner." If that were true, then 10 months after the domain was seized, ICE wouldn't be whining to a judge that it needed to censor the blog for another two months because the RIAA wasn't responding or providing the necessary evidence. It's hard to square the RIAA's statements with the government's.

Dajaz1's lawyer, Andrew P. Bridges, however, had a few things to add, and responded, in detail, about how ICE's original claim to being able to seize the domain in the first place was clearly against what the law allows:

The owner of Dajaz1.com appreciates the fact that the United States Government, on studying the matter further with all the information the RIAA could furnish, determined that there was in fact no probable cause to seek a forfeiture of the domain it had seized and held for a year.

That exoneration, however, did not remedy the harms caused by a full year of censorship and secret proceedings — a form of “digital Guantanamo” — that knocked out an important and popular blog devoted to hip hop music and has nearly killed it.

The original seizure was unjustified. The delay was unjustified. The secrecy in extensions of the forfeiture deadlines was unjustified.

Five details are notable here.

First, the seizure occurred pursuant to language the PRO-IP Act authorizing seizures of property used in connection with the making of, or trafficking in, “articles” in violation of copyright law. In that context, “articles” are physical items. The law does not authorize seizure of domains that link to other sites. So from the beginning this seizure was entirely legally unjustified, no matter what the allegations about infringement.

SEC. 2323. FORFEITURE, DESTRUCTION, AND RESTITUTION.
(a) CIVIL FORFEITURE.-
(1) PROPERTY SUBJECT TO FORFEITURE.-The following property is subject to forfeiture to the United States Government:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

Second, seizing a blog for linking to four songs, even allegedly infringing ones, is equivalent to seizing the printing press of the New York Times because the newspaper, in its concert calendar, refers readers to four concerts where the promoters of those concerts have failed to pay ASCAP for the performance licenses.

Third, RIAA’s grand and sweeping attacks on dajaz1.com suggest that RIAA’s powers of demonization far exceed its ability to substantiate its malicious statements with specific and credible facts.

Fourth , when I explained that the blog publisher had received music from the industry itself, a government attorney replied that authorization was an “affirmative defense” that need not be taken into account by the government in carrying out the seizure. That was stunning.

Fifth, when discussing the secret extensions with the U.S. Attorney’s office in Los Angeles, I repeatedly asked the government attorney to inform the court that my client opposed any further extensions and asked for an opportunity to be heard. Not once did the government reveal those requests or positions to the court. The government should be embarrassed for keeping that information from the court.

This entire episode shows that neither the government nor the recording industry deserves any additional powers with new so-called “antipiracy” legislation, especially in the context where copyright law has been expanded and new anti-piracy remedies have been crafted ***16 times*** since 1982. This episode shows that the copyright establishment and the government are very much the “rogues” that deserve to be reined in.

That's a pretty meaty response, especially given the weak statement from the RIAA. All five of those points could be worthy of separate posts, delving into the details. For now, however, I'll just focus on two of the points. First, the fact that the government thinks that the use of authorized works is merely a defense to accusations of copyright infringement suggests a DOJ that is out of control with power, and completely out of touch with both the basics of the First Amendment and the Copyright clause, both of which would disagree with the government's statements here. There are already civil cases on the books, stating that claims need to take into account legitimate uses of the work before filing suit. However, in this case, it's even worse, because we're talking about a criminal issue, where (1) the presumption of innocence is supposed to be in effect and (2) for criminal infringement the behavior must be willful. As such, the fact that the tracks were authorized is not a defense, it's a key part of the question of willfulness. The government must consider that information prior to shutting down a site.

The second point is Bridge's comment about the RIAA's "power of demonization" and failure to actually deliver. This is a really important point, because it demonstrates just how much ICE and parts of the DOJ appear to be captured by this private entity with a history of hysterical overreactions. If the feds were truly independent, none of this would have happened. Instead, the feds appear to have relied heavily on what quickly became clear were... well, let's just say "misguided" claims by the RIAA. We detailed how misguided the claims were just weeks after the seizure. From the evidence shown so far, it appears that rather than admit that it screwed up, ICE and the DOJ simply went running to the RIAA again, asking for more help in getting them out of the mess they had caused. And the RIAA couldn't deliver.

It's truly amazing that ICE and the RIAA still can't even admit how wrong they were here, let alone give an apology to Dajaz1.com. I guess that would be tantamount to admitting just how badly they violated the site's free expression and due process rights.

Filed Under: andrew bridges, censorship, dajaz1, domain seizure, ice, riaa

Judge Lets Feds Censor Blog For Over A Year So The RIAA Could Take Its Sweet Time

from the no-rush dept

You may recall a few months ago, that we broke the story about how the US government seized and censored the hiphop blog Dajaz1.com for over a year, before suddenly giving it back with no explanation or apology. Among the many problems with the government's actions, the really crazy part was the fact that despite a legal requirement to either give the "seized property" back by May 15th or file a case for forfeiture against the site, the government appeared to do absolutely nothing. When Dajaz1's lawyer, Andrew P. Bridges, asked the government about this, he was told that the government had filed for and received an extension, though no one had bothered to inform Dajaz1 or Bridges, or even allowed them to see the filing, the order or to speak to the judge. This "secret" extension process supposedly happened two more times, and all of it was "under seal," so even when the domain was given back, all we had to go on was claims from Dajaz1 that it had really happened.

The good folks over at Wired, the EFF and the California First Amendment Coalition sprang into action and filed with the court to have those documents unsealed. And while the court agreed to unseal the documents back in March (and then ordered them unsealed "immediately" on April 5th), the documents finally were unsealed yesterday.

The documents are embedded below, and there's really not that much there. Basically, the government keeps asking for an extension, insisting that it's in the middle of an important "criminal investigation" and needs more time. It claims, without anything to back this up, that actually doing what the law requires (giving the domain back or filing for forfeiture) would mean alerting those who were being investigated what was up, and might cause them to make a run for it or to destroy evidence. They provide no evidence to support this, and since Dajaz1 was never informed about any of this... they had no chance to refute these ridiculous claims by the government.

The only point that's brought up to explain the delay is in an affidavit from ICE Special Agent Andrew Reynolds, the slightly befuddled recent college grad who was in charge of the original error-riddled investigation, in which he notes repeatedly that the RIAA has not gotten back to him about whether or not their rights have been violated.

A sampling of content obtained from the DAJAZ1.com website and its purported affiliate websites was submitted for rights holder evaluation and has yet to be returned to HS, SAC/LA. Additionally, a representative with the Recording Industry Association of America (RIAA) has stated that he will provide a very comprehensive statement to ICE's and CBP's outstanding questions, in coordination with corresponding rights holders, which will be forthcoming in approximately 30 days.

That was Reynolds statement on September 7th, 2011. Remember, thanks to Agent Reynolds, Dajaz1.com was seized on November 24th 2010. So we're talking 10 months later, and he's claiming that the RIAA still hasn't gotten back to him over whether or not the tracks were actually infringing or with answers to ICE's questions?!? And yet, in the original filing, Reynolds stressed the importance of completely taking away and censoring this website as quickly as possible because of all the harm it was causing. Yet, the RIAA gets to wait 10 months and never actually confirm that anyone's rights were violated? Perhaps the RIAA's reticence to respond was because it started discovering that the songs in question were actually handed over by official representatives of the labels or the musicians. Of course, that's no excuse for ICE to continue to hold onto the website in question. Just because they totally screwed up and rushed in to censor, doesn't mean they get to drag their feet in admitting error.

Either way, this is pretty crazy. Basically the documents show that the feds seized first, and then sat around waiting for the RIAA to actually provide evidence.... evidence that appears to have never showed up. As the EFF's Cindy Cohn told Wired:

“Here you have ICE making a seizure, based on the say-so of the record company guys, and getting secret extensions as they wait for their masters, the record companies, for evidence to prosecute,” Cohn said in a telephone interivew. “This is the RIAA controlling a government investigation and holding it up for a year.”

Even more troubling, however, is that the repeated requests for extension do not (at all) address the key First Amendment issues about the fact that a news publication was completely shut down based on these accusations. The law is pretty clear that the burden for shutting down a publication is pretty damn high, and nothing in the filings comes anywhere close to meeting that burden. Even worse, the judge in the case, Margaret M. Morrow, just rubber stamps the request allowing them to move forward at will. She does not appear to ask any questions. She does not appear to even be curious about the fact that an entire website was shut down and censored without meeting the clear burden under the law. It's just "request granted," basically.

Not only that, but with the last two extensions, she granted them late. That is, they were both granted after the deadline, by which the government legally had to give back the domain. The first extension needed to be in place by May 15th, and indeed, was granted on May 13th. But after that, perhaps, someone realized that without anyone on the other side even having to know about this, they could take their time. The first extension only went until July 15th. But the second extension wasn't granted until July 18th. Legally that seems to mean that the government illegally held the domain for those three days when it had no right to do so. Similarly, the second extension expired on September 13th. But the judge didn't sign the next extension until September 19th. Again, it would appear that the government was then holding onto property it had no legal right to for about a week after the earlier extension expired.

Either way, for all the promises of a big criminal investigation that was going to turn into a big criminal lawsuit just as soon as the RIAA got back to Special Agent Reynolds, it appears the whole thing fizzled into absolutely nothing, leading the government to quietly hand the domain back to Dajaz1 in December... almost exactly a month after the final extension expired on November 11th. There isn't much enlightening in the unsealed documents other than a pretty clear reminder that the feds seized and censored a website on questionable legal reasoning and then refused to give that website the ability to have its day in court to protest that First Amendment violation.

Filed Under: censorship, dajaz1, domain seizure, ice, riaa