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

[dasunt]

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

A private organization can *demand* anything. Case in point -- SCO demanding linux licenses.

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...]

If the RIAA wants an ISP to shutdown a site, it has to make a good faith statement that the material is not legal, and that they are authorized to act for the copyright holder. Note the "good faith" provision -- this is where things have been going wrong, and it is not a problem with the DMCA. It strongly appears that certain agencies are automating searches for material and aren't manually checking the results before sending letters. This is one of the major problems.

Of course, once a site is taken down, the site owner can demand his day in court, and if the RIAA does not file a lawsuit within two weeks, the site should be put back up.

As I said, not horribly unfair. 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. (IANAL, but the good-faith provision should already be in effect: Asking for material to be removed without acting in good faith should open the asking party up to a few lawsuits under section 512, part f, but again, IANAL).

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.

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).

Re:Too much power

[dasunt]

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).

From my limited understanding of contract law, I might have to disagree. Again, IANAL, but I seem to remember that contracts must be done in good faith: depending on the jurisdiction, arbitrary termination is not consider good faith. So if you have a contract for 12 months of service, and they terminate you in 5 months, you might have grounds for a lawsuit.

I tried googling for this information, and other then finding every TOS for every ISP out there, the only mention that I can find is that Israeli law seems to agree with me. (In the US, there also seems to be regulations against doctors "abandoning" patients, but that seems like a specific case.)

I'd love for a contract lawyer to chime in and tell us what are justifiable causes for termination of a contract.

Re:Too much power

[anthony_dipierro]

Again, IANAL, but I seem to remember that contracts must be done in good faith: depending on the jurisdiction, arbitrary termination is not consider good faith.

Maybe. I should have said you're probably screwed. It all depends on the jurisdiction and the details of the specific case. In New Jersey, for instance, I believe the contract has to be illegal (as in telling someone to do illegal things, e.g. a contract to kill someone) or "unconscionable" to be unenforcible. Terminating someone's contract (and presumably refunding them for any unused time) because you believe that you are going to be subject to a lawsuit if you don't doesn't seem unconscionable to me, regardless of whether or not it turns out you were technically right.

Time travel?

[IO ERROR]

The MPAA stated, under penalty of perjury, that in 2001 www.InternetMovies.com made available for illegal download the third installment of "The Lord of the Rings," which was not actually finished until 2003. The MPAA issued a cease and desist order to InternetMovies.com's ISP to shut down the site.

No, it's worse than that. They made a patently false allegation in order to get the site shut down.

According to Rossi, "MPAA communications with my ISP were unreasonable and outrageous and without just cause or excuse and beyond all bounds of decency -- violating the DMCA. The courts must have overlooked that I could not have made a movie downloadable 3 years in the future, which shows that the MPAA was not within the boundaries of decency and that the court should not have ruled in favor of the MPAA."

He raises a good question. How could he make a movie available for download before it was even made?

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.

They could have saved the money

[mahesh_gharat]

Intead of pouring that much money into the making of LOTR-III, producer of LOTR could have just downloaded it in 2001 itself from www.InternetMovies.com and released it.

It could have saved his money and everybodies time also. People just don't understand.

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.

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"?

Prior restraint, no oversight?

[laughingcoyote]

Actually, the Supreme Court may well rule against this, and I hope they do. The Court has ruled, over and over again, that "prior restraint" (being prevented from saying something before even saying it) is generally not acceptable, except in the most extreme cases.

Excerpted from the decision cited above:

"Although the Sixth Circuit in Procter & Gamble has held that a defendant's improper conduct in obtaining confidential information does not justify a prior restraint, the legal system may yet provide redress through criminal prosecution, if such is found to be warranted by the underlying facts."

What does this say? Even though the speech above may be CRIMINAL in nature (extortionist, read the page to find more detail), and even though it overwhelmingly appears that the information he is publishing are trade secrets which Ford can successfully sue him for, he CANNOT be prohibited from publishing them by injunction.

Of course, this does not mean that he may not be sued and/or prosecuted if and when he DOES, if what he is publishing violates the law. But the Court's precedents are clear: Prior restraint is unconstitutional except in the most extreme cases, e.g. someone is about to publish a planned movement of troops in the paper or on a website. This case, as with the Lane case, only establishes that monetary/commercial losses may result. The Court has ruled very clearly that this is not even a valid reason for a court or Congress to issue prior restraint. Do we wish to give a corporation powers that we would not even grant to our judges and legislators?

The **AA's should have the same standard as anyone else. If you feel that some published speech "damages" you, you have two options. The first option, and probably the best, especially if you feel that they might've accidentally violated the law, is to send a cease-and-desist letter to the PERSON running the website. As to the "But the ISP's won't give us the identity of their customers to send letters to!" I say "GOOD!" That doesn't mean you can't contact them. Most websites have an email link to the site admin, and if not, I would think it acceptable to put a provision in the law that ISP's must forward legal correspondence regarding a website they host to that site's owner. This policy would have two positive effects: The copyright holders would be served by being immediately able to contact suspected infringers, and the consumer would benefit from greater anonymity and the taking of excessive power from the **AA's.

Of course, the second option is to take the webmaster directly to court. If the court finds the site to be infringing, they will issue an injunction ordering the webmaster to take down all infringing material, as well as possibly awarding damages. However, this should not happen until AFTER a trial has been held, or a settlement reached.

Some of your facts are not right

[netmovies]

Thank you for taking time to post your feelings but some of your facts are not right.

You can join and get movies online this is a true statement and was not even in the same area of the movie posters that the Hollywood studios send me each week to post on my website. They love the free PR enjoyed it for 2 years 1999-2001. Only when I posted news about movies being downloaded online they try to stop me for telling the world the news I was the 1st to get the news out on that. Note they said that I had Lord of The Rings: Return of The King, The in 2001 that did not come out till Dec. 2003.

Yes you can download full-length movies online and I link too many of them they are not Hollywood movies and Hollywood does not own the word full-length movies and I did not promise anyone movies on my site you are reading between the lines like the courts and the MPAA.

"Now Downloadable" I coined the phase and it is mine and does not just mean movies it means trailers too and I was the 1st to use it in commerce. It is like say Now Showing.

I emailed my ISP and told them I did not have movies and they knew I did not have movies too and still close my site down saying they would not back up a site that only pays them $10 a month. I did file a counter-notification and it is in the case and was submited to the courts and the courts keep over looking it.

MPAA was trying to put me out of business they just do not like anyone telling the truth about them and they do not own me our my network like the rest that are censoring me that is why you do not see my case in the main news. They can not push the little guys around and that is why I am winning the battle. I am only one man that is back by Members to fight for our rights and not sit around and let their rights be taken way remember that we were supported by the Internet Commerce Coalition (ICC), and NetCoalition.com with amicus briefs. ICC members include AT&T, BellSouth, eBay, MCI, Verizon and others. NetCoalition members include Yahoo!, Lycos, Inktomi and others.

I have a right to say what ever I please any time and any where I like. That is why I swore to protect the constitution USA form friends and foes and the MPAA and RIAA act like friends but are foes. I do not wish to live in a MPAA world that the lobbyist paid for unconstitutional laws to be passed and to submit to them less my constitutional rights. The very rights that my fellow soldiers our fighting and dieing today over to protect as the MPAA are widdling way the constitution and trying to wiggle their way out of this like a snake. I will fight them to the end I am not driven by greed. I am driven to do the right thing for my members that support this fight and fight for what little rights we have left.

Michael Jay Rossi
President
InternetMovies.com Inc.

Re:Some of your facts are not right

[netmovies]

No one was tricked and that is your MPAA thinking and in the documents I did not admit to this. You are very wrong and you are the one that is trying the trick people into believing missed fact just like the MPAA does. If you do not work for the MPAA you should they will love you.

My ISP should give anyone they same rights just as the next guy even if the site was free or cost money. Your views on how the world should be our shared with the MPAA and RIAA and most of us on the plant do not share your same ideas of the perfect world.

No one was making a profit of their works and you forget they send me all the movies assets to post on my site. They love the free traffic and ask me to send it to them all the time I sell them millions of movie tickets. One of the MPAA lawyers even asked me for one of my protest T-Shirts to wear. You really have no clue but you're welcome to think any way you like. There is no gray area here just the good and the bad and you're on their side bad thinking. I am suing them for the crime they did and they will pay for it all us good people will see to that without your help.

Micheal Rossi
InternetMovies.com Inc.

I am not a asshole or a lowlife nor rich!

[netmovies]

The other 18 movies they said I had just came out and were listed at the very bottom of the website and 99.9% of my visitors know I did not have movies on my website. There was one email from someone that asked if I had movies on my site and I told the truth in my deposition that is what you should do right tell the truth and that is all I do always on my site. Yes you can download movies online "ONLINE" this means the Internet not my site. As I stated in the post above I was the 1st to post the news about movies on the Internet and the MPAA did not like that but they love the millions of Internet visitors I send them each year. Note they send me all the posters for the movies and the trailers too. I am not rich by no means Anthony I put it all on the line for this fight and I always return money to anyone that is not happy. So you sound like you like the MPAA you sure do talk just like them reading between the lines and only point out what looks good for the MPAA. Anyone can take a word and say it means something other then you meant it to be. It is called "hyperbole." and the MPAA love to do it and the courts. The fact is the MPAA made a very big mistake and are trying to cover it up and I will not let them. Note see how they do not post news about them winning in the courts they just wish I would go away they love keeping everyone in the dark ages. My Members and I will make them face the light it is time for them to crash and burn.

Michael Jay Rossi
President
InternetMovies.com Inc.

Here is more facts form me Michael Rossi

[netmovies]

Anthony your facts are not right again. The MPAA forced my ISP to close my site down here is the letter that they sent to the ISP they did not just email them a C&D letter they called the ISP and order them to close my site down. Then they mailed a signed letter ordering the ISP to close the site down. "Without addressing the merits of your arguments, please be advised again that pursuant to the Digital Millennium Copyright Act, you are required to disable access to this site in an expeditious matter once the appropriate notice has been sent to you."

http://www.internetmovies.com/mpaaletter/mpaalet te r0.jpg

I did send the ISP the counter-notification and it was submitted as evidence to the courts and they keep over looking the fact of the case like you.

NOTE: I did not claim to have movies on my website. I only claimed that you could download movies online and find the information in my website by being a member and I was doing that for over 2 years and they did not get upset tell I started reporting the news about movies on the Internet Hollywood does not own all the movies in the world ok and the are not the world nor gods.

All they needed to do is read the site and they knew that I did not have movies they said so in the case and admitted that. They made a mistake and are using the good faith thing to try to get off the hook.

9th circuit did not look at the evidence I am not sure if they even read all the paper work and you did not see the judge smiling at the MPAA when they walked out the court room like thinking do not worry we got your back MPAA.

I am not on the FrontPage because of their corporate censorship. Note a reporter called me form ABC and did an hour
Interview with me and asked me to email him the DMCA things I had and I did and called him back and he told me that he could not get the emails and can not run the story because ABC is owned by Disney and Disney is the MPAA and they put me on a Black list. So that is why. They like to keep you asleep when taking your rights away when you sleep. Snakes.

The MPAA did commit perjury they did act in bad faith. I do not have a time machine and that is a fact.

The MPAA did break the DMCA law the courts seem to over look the facts and the evidence.

Here is the C&D Letter for you to look at.

http://www.internetmovies.com/mpaaletter/mpaaema il .txt

Michael Jay Rossi
President
InternetMovies.com Inc.

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.