Shut-Down Movie Site Promises MPAA Court Fight

idolcrash writes "It looks like the owner a movie site shut down in 2001 will be attempting to take the MPAA to court regarding the shutdown of his website at the request of the MPAA, claiming he'll take them all the way to the Supreme Court to challenge the Constitutionality of the DMCA, under which his website was taken down."

Comments

Too much power

[TFGeditor]

"The MPAA issued a cease and desist order to InternetMovies.com's ISP to shut down the site."

That a private organization could/can autonomously demand that an ISP shutdown a site without due process is repugnant in the extreme.

Re:Too much power

[anthony_dipierro]

The DMCA goes slightly overboard with its power in regards to server shutdowns, but it isn't that horribly unfair with regards to copywrited material on a server. [Its horribly unfair in other ways though...]

Where the DMCA is most horrible is section 512(h), which allows any clerk to issue a subpoena. The parts about server shutdowns are a good thing. They limit the ability of the MPAA to sue the ISPs if the ISPs follow certain rules. Without the DMCA the MPAA would still be sending cease and desist orders, and ISPs would still be taking down content based on those ceasae and desist orders. This provision of the DMCA (the Online Copyright Infringement Liability Limitation Act) has gotten a bad rap but it's way better than nothing, and frankly I think it's an excellent solution since it allows the publisher to file a counter-notification which keeps his/her site up despite a cease and desist order (Rossi didn't file a counter-notification, that was his big mistake).

Note the "good faith" provision -- this is where things have been going wrong, and it is not a problem with the DMCA.

Yes, and I'm somewhat disturbed from the fact that the ninth circuit declared the MPAA to be acting in good faith here. But let's be realistic here, Rossi's website said "Join to download full length movies online now! new movies every month"; "Full Length Downloadable Movies"; and "NOW DOWNLOADABLE." He was asking for it, and had this not been the case I'm hopeful (maybe naiively) that the ninth circuit decision would have gone the other way.

It strongly appears that certain agencies are automating searches for material and aren't manually checking the results before sending letters.

It looks like in this case they checked things manually, but the supposed download files weren't available unless you signed up for an account. Personally I tend to side with Rossi that it was bad faith to not sign up for an account and actually download the files, but this doesn't seem to have been explored during the case. I can see reasons for the MPAA not to want to do this, after all.

The only "fix" I can see is a grace period for the site's owner to reply to the possible copyright infringement before the site is taken down.

The DMCA provides for a counter-notification. Rossi never exercised it. His lawyer said that's because no one ever told him he had the right, but ignorance is no excuse for the law.

The other problem that I am hearing about is that ISPs are taking down sites without valid takedown notices. If I'm reading the law right, this should violate "safe harbor" provisions for ISPs, but I have yet to see an ISP prosecuted for this.

Generally when you sign up with an ISP they reserve the right to take your site down for any reason. Choosing to take your site down even though a proper takedown notice wasn't served doesn't violate the law directly, but the ISP wouldn't have the safe harbor provision to fall back on if they were then sued for breach of contract (but again, if the contract says they can take down your site for any reason, then you're screwed).

Obviously, IANAL, but

[Dachannien]

It seems to me that this challenge wouldn't strike the entire DMCA, but rather just the smallest portion of it - namely, the ability of copyright holders to make DMCA shutdown requests to ISPs, and then only in cases where no good-faith effort has been made to determine whether or not a violation actually exists.

Still, any successful attack, even a small one like this, against the DMCA is a good thing. (I also wouldn't mind having the Supremes put another feather in their cap for overturning one more 9th Circus opinion.)

Re:Obviously, IANAL, but

[anthony_dipierro]

the ability of copyright holders to make DMCA shutdown requests to ISPs, and then only in cases where no good-faith effort has been made

According to the 9th Circuit ruling, the MPAA did make a good faith effort. Specifically, they said that "the district court properly found that no issue of material fact existed as to MPAA's 'good faith belief' that Rossi's website was infringing upon its copyrighted materials."

After my brief reading of the facts, I disagree with the 9th circuit here, but I highly doubt the Supreme Court is going to get involved in such relative minutiae. I'm not even convinced there's a Contitutional issue involved here. After all, the MPAA is not the government. They did something which was probably wrong - tortious interference of a contractual relationship, but they didn't directly violate any First Amendment rights, they merely threatened the guy's ISP causing them to refuse to help him publish his website.

Re:Time travel?

[anthony_dipierro]

How could he make a movie available for download before it was even made?

Before it was finished. But LoTR was just one of many of the movies listed. The brief only mentions LoTR in one sentence, and the ruling doesn't mention it at all. It's not a very big part of the case.

I also can't have very much sympathy for this guy. He took money from people who signed up for his service which offered "Join to download full length movies online now! new movies every month"; "Full Length Downloadable Movies"; and "NOW DOWNLOADABLE." This asshole "even admitted that his own customers often believed that actual movies were available for downloading on his website." One lowlife battles a lowlife company to try to get rich quick, and only the ones who make anything are the lowlife lawyers.

Questions

[slavemowgli]

Well, assuming he didn't actually distribute movies without the respective copyright owners' permission, he's got my full support. Why can a private organization just get a website (any website!) shut down without the facts being checked, without the owner of the site being asked to present his side of the story first, and without actually having to come up with proof that it does do something illegal? And, maybe even more important... why does the MPAA actually lower itself to using false allegations? I can understand that they represent a certain opinion and thus aren't neutral, but that doesn't mean they should use illegitimate or even illegal means to reach their goals, does it? How can they accuse others of doing illegal or illegimate things when they do it themselves? And, in the light of that - why isn't this story on the frontpage?

Re:Questions

[anthony_dipierro]

Why can a private organization just get a website (any website!) shut down without the facts being checked, without the owner of the site being asked to present his side of the story first, and without actually having to come up with proof that it does do something illegal?

That's something you should be asking the ISP. It's the ISP which chose to ignore him and shut down his site, after all. Of course, had Rossi sent in a proper counter-notification, the site never would have been taken down in the first place.

why does the MPAA actually lower itself to using false allegations?

The guy claimed to have the movies available on his website. In order for the MPAA to check whether or not he was lying (as it turns out he was), they'd have to have paid the guy money to sign up for hihs "service". That's probably why they didn't bother.

How can they accuse others of doing illegal or illegimate things when they do it themselves?

Well, according to the 9th circuit, they haven't done anything illegal or illegitimate.

And, in the light of that - why isn't this story on the frontpage?

Someone sued the MPAA and lost. They took the case to the 9th circuit court of appeals and lost. They plan to appeal to the Supreme Court, and the Supreme Court will most likely reject the case. Why does it belong on the front page, because the lawyer is throwing around the phrase "first amendment"?

Re:Anthony get your facts right

[XO]

I'm sorry, Michael, but every message you write, I want to choke the shit out of you for being such a moron. "big news" is not owned by the MPAA. You are wrong, all you have done is tried to cheat people and now you're trying to get them to pay for your dumb ass.