DirectTV is already well along the path that the RIAA is just starting.
DirectTV has sued over 10,000 people so far for purchasing Smartcard programmers that could allow
theft of satellite TV.
While the details of the DirectTV and RIAA lawsuits differ, on the "extortion" question
they are similar.
One group sued by DirectTV, counter-sued alleging extortion.
The judge dismissed their case
(Blanchard vs. DirectTV).
The judge's reasoning was, in part:
As Plaintiffs explained during oral argument, their claims turn on the fact that DIRECTV's
demand letters demand settlement sums. Plaintiffs contend these demands constitute extortion, First,
no authority supports Plaintiffs' contention; case law does not hold that pre-litigation demand letters
cannot demand settlement sums. Second, and significantly, DIRECTV's demand letters do not
settlement and/or possible litigation. On calling the number, any caller can explain his or her
situation. If he or she has not pirated DIRECTV services, DIRECTV does not request fees or pursue
litigation. Accordingly, DIRECTV's written demand does not necessarily end in payment of fees or
litigation. By demonstrating to DIRECTV that he or she did not steal DIRECTV services, any
Plaintiff using pirating equipment in a "lawful" manner can avoid fees or litigation.
The quote I used from SUNY may not have been clear.
Willfulness is not required for civil copyright violations, but is required for criminal infringement.
But deliberately running a P2P server could could be criminal if it
distributes songs worth $1,000 in 180 days.
Using Apple's $0.99 per song retail price, a well connected P2P server could easily do this.
Actual prosecution would require that the a Federal prosecutor file changes. The RIAA cannot ask a prosecutor to do so, but not force them to file.
At least so far, all of the RIAA's actions against P2P users have been civil not criminal. They have gotten the government to use criminal law against large scale counterfeiters.
There is much confusion in these discussions because of the distinctions between criminal and civil law. If your knowledge of the law comes from watching Law & Order on TV, then you may think that criminal law is the only law that exists. Civil law is thought to be too boring for TV drama. Shows like Law & Order will take real civil cases and turn them into criminal cases by having someone connected to the case be murdered and/or raped.
Copyright is a strict liability offense. This means that civil copyright violations do not have to be willful. A willful violation is more serious than a non-willful violation. Copyright law raises the maximum salutatory damages from $30K to $150K if the action is shown to be willful.
Copyright is a strict liability offense. Under the federal copyright statutes, neither intent nor knowledge of infringement is necessary to hold a person liable. In practical terms that means that you cannot plead ignorance to escape liability. And the liability can be serious. Sound recording copyright infringements can be punishable by up to five years in prison and $250,000 in fines. Copyright holders are seeking damages of up to $150K per song.
The subpoenas are being served through a court. From the CNet article
The RIAA has used court orders to try to identify more than 1,000 computer users it alleges have been offering copyrighted songs on file-trading networks.
The process is that the RIAA files an affidavit alleging a copyright violation with a Federal district court. The court then issues the subpoena.
The subpoena orders an ISP to turn over the name of the "Jane Doe", who is alleged to have committed the violation.
The 5th allows a person to refuse to testify. It does not stop their own records from being used against them. It does not stop records held by third parties, such as their ISP, from being used. It does not prevent third parties from testifying in court about what they know.
How could the RIAA send a warning cease-and-desist letter to someone running an anonymous P2P server without any other contact information? The only purpose of these subpoena is to get the contact information. Subpoenas are not lawsuits or fines.
This notice was sent to their ISP (ATT WorldNet) because ATT WorldNet
registered with the government to receive such notices. There is no requirement that an ISP register. Even after they register, an ISP can ignore these DMCA notices. The only penalty is that the ISP would lose the Safe harbor rights granted them under the DMCA.
Of course, few ISP would want to give up their DMCA rights. Even Slashdot has paid their fee and
registered
to accept notifications, so as to preserve their DMCA rights.
Re:NOT a privacy victory
on
RIAA Quashed
·
· Score: 3, Insightful
Not quite. These are federal actions, not state actions.
State laws are enforced in state courts, usually organized by county. Federal laws (like copyright) are enforced by federal courts, organized into
94 federal judicial districts.
Each state has at least one district.
In Amway, the distributors add value to Amway by pestering their friends, neighbors, etc., to buy Amway stuff. In the proposed system, the distributors are not adding much value.
Why shouldn't musicians just sell MP3s directly and keep the 50 cents?
What could make sense is to have musicians set up affiliate programs (like
Amazon) that pay the fan a commission if a link on a fan's site leads to a sale.
Snapster 2.0 seems to be an attempt to mix the my.mp3.com model with the idea of mutual funds. As Cringely acknowledges, the my.mp3.com model is not legal.
His use of the mutual fund idea will also not work.
Mutual funds are regulated by the
Investment Company Act of 1940.
To simplify a bit, a mutual fund can only invest in securities; it cannot actually run an operating company.
First there is the problem that Snapster is not planning on buying any securities. By law,
this must be a mutual funds main business.
A CD is not a security.
Second, Snapster is really going to be an operating business, which a mutual fund cannot run.
A rental company, like Blockbuster, cannot organize itself as a mutual fund.
Even without the distribution of physical tapes,
a satellite company, like DirectTV,
cannot organize itself as a mutual fund.
An ISP cannot organize itself as a mutual fund.
Snapster 2.0 is going to need servers, databases, system administrators, etc. This will make it an operating company, not a mutual fund.
A mutual fund run business functions to the extend needed to track shareholders and make investment decisions. Snapster's lending of CDs goes way beyond this.
The law does give a copyright holder the ability to get a court order forcing ISPs in the US to block access to foreign sites violating a US copyright.
I think that there are only a handful of Tier-1 providers (UUNet, etc.) that actually provide connectivity between the US and Europe or Asia,
and other ISPs buy connectivity from them.
What if the RIAA were to find a few hundred P2P servers in Europe and Asia and order UUNet, etc., to block access to them?
It may wreck connectivity and UUNet may fight it,
but the law seems pretty clear and UUNet would most likely lose.
An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States.
The "specific, identified, online location" could be just an IP address at which the RIAA has found a P2P server running.
Subpoenas were not sent to parents. They were sent to ISPs asking for the name on the account using a specific IP address at a certain time. The RIAA could then send a letter or file a lawsuit.
The MPAA is not going to be that upset. They are in the process of launching a major ad campaign against sharing.
From
cnet:
In an unprecedented campaign urging people not to copy movies, the Motion Picture Association of America (MPAA) is launching a series of TV ads and movie trailers as well as a Web site warning of the dangers of violating copyright laws.
These actions by the RIAA are aimed at action in civil court. Civil court does not put people in jail or fine them (unless you insult the judge, etc.).
The outcome of a civil trial is, at most, an order to stop doing it and/or an order to pay damages. While both fines and damages are the payment of money, fines go to the state and damages go to the person/company the court found was damaged.
Re:Any good ISPs out there that destroy records?
on
The RIAA's Hit List Named
·
· Score: 2, Insightful
The risk to the ISP is that the ISP could be held liable for any sharing.
An ISP is not liable for infringement committed by their customers. But if they have not records, how can they prove an infringement was by a customer?
This is not clearcut, but if an ISP were to lose their potential liability could be enormous.
It is more likely that the will sue the parents. Most minors will be using an account belonging to a parent.
Whoever has their name on the ISP account can be held liable, even if the owner did not know it was happening.
Copyright holders cannot just issue subpoenas themselves under this law. They have to file a sworn declaration of alleged infringement with the US Federal District court clerk, who will issue the subpoena. Lying on this declaration would be a felony. Using the information obtained for any purpose other than protecting copyrights would be illegal.
To get a subpoena nothing needs to be proved.
What is required is
"a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title."
512 (h)(2)(c)
Of course, if they just made something up, that would be perjury (a felony).
The RIAA does not have any special powers here. Anyone can submit such a statement to the US District Court clerk.
The matching of the IP address to the student name is up to the University (acting as the ISP).
Before the student can be ordered to pay damages there will have to a trial. The system administrator can be ordered to testify at the trial as to how the match was made. It is up to the jury to decide if the case is proven. As this would be a civil case, the standard is "preponderance of evidence", not "beyond a reasonable doubt."
It looks like Amazon is going to get permission before they do this.
First line of the article: "Executives at Amazon.com are negotiating with several of the largest book publishers...".
There is no infringement if they have permission.
The article asks the source of the 80% figure.
The original report is
here (in German).
On page 34, footnote 1, there is the assumption that 80% will be using VMWare for 4 to 5 years.
The DMCA gives ISPs a "Safe Harbor". It is similar to "common carrier" status, in that ISPs are not liable for copyright violations of their customers.
There are limits. ISPs must be registered with the government. They lose their Safe Harbor
if they allow violations to continue after they become aware of them.
Slashdot Mirror
One group sued by DirectTV, counter-sued alleging extortion. The judge dismissed their case (Blanchard vs. DirectTV). The judge's reasoning was, in part:
In addition, the group was ordered to pay DirectTV $97,220 to cover DirectTV's legal expenses.DirectTV has been suing people who bought Smartcard programmers that could be used to steal satellite TV. They have filed over 11,000 lawsuites.
But deliberately running a P2P server could could be criminal if it distributes songs worth $1,000 in 180 days. Using Apple's $0.99 per song retail price, a well connected P2P server could easily do this. Actual prosecution would require that the a Federal prosecutor file changes. The RIAA cannot ask a prosecutor to do so, but not force them to file.
At least so far, all of the RIAA's actions against P2P users have been civil not criminal. They have gotten the government to use criminal law against large scale counterfeiters.
There is much confusion in these discussions because of the distinctions between criminal and civil law. If your knowledge of the law comes from watching Law & Order on TV, then you may think that criminal law is the only law that exists. Civil law is thought to be too boring for TV drama. Shows like Law & Order will take real civil cases and turn them into criminal cases by having someone connected to the case be murdered and/or raped.
From the State University of New York at Albany:
The process is that the RIAA files an affidavit alleging a copyright violation with a Federal district court. The court then issues the subpoena. The subpoena orders an ISP to turn over the name of the "Jane Doe", who is alleged to have committed the violation.
The 5th allows a person to refuse to testify. It does not stop their own records from being used against them. It does not stop records held by third parties, such as their ISP, from being used. It does not prevent third parties from testifying in court about what they know.
If this is dumping, what are we to make of the fact that 24.8% of insider shares of Red Hat have been sold in the same time period?
The blackout started just after the market closed (4pm Eastern).
How could the RIAA send a warning cease-and-desist letter to someone running an anonymous P2P server without any other contact information? The only purpose of these subpoena is to get the contact information. Subpoenas are not lawsuits or fines.
Of course, few ISP would want to give up their DMCA rights. Even Slashdot has paid their fee and registered to accept notifications, so as to preserve their DMCA rights.
Not quite. These are federal actions, not state actions. State laws are enforced in state courts, usually organized by county. Federal laws (like copyright) are enforced by federal courts, organized into 94 federal judicial districts. Each state has at least one district.
What could make sense is to have musicians set up affiliate programs (like Amazon) that pay the fan a commission if a link on a fan's site leads to a sale.
Mutual funds are regulated by the Investment Company Act of 1940. To simplify a bit, a mutual fund can only invest in securities; it cannot actually run an operating company.
First there is the problem that Snapster is not planning on buying any securities. By law, this must be a mutual funds main business. A CD is not a security.
Second, Snapster is really going to be an operating business, which a mutual fund cannot run. A rental company, like Blockbuster, cannot organize itself as a mutual fund. Even without the distribution of physical tapes, a satellite company, like DirectTV, cannot organize itself as a mutual fund. An ISP cannot organize itself as a mutual fund.
Snapster 2.0 is going to need servers, databases, system administrators, etc. This will make it an operating company, not a mutual fund.
A mutual fund run business functions to the extend needed to track shareholders and make investment decisions. Snapster's lending of CDs goes way beyond this.
I think that there are only a handful of Tier-1 providers (UUNet, etc.) that actually provide connectivity between the US and Europe or Asia, and other ISPs buy connectivity from them. What if the RIAA were to find a few hundred P2P servers in Europe and Asia and order UUNet, etc., to block access to them? It may wreck connectivity and UUNet may fight it, but the law seems pretty clear and UUNet would most likely lose.
The part of the DMCA authorizing this: Title 17 section 512 (j)(1)(B)(ii)
The "specific, identified, online location" could be just an IP address at which the RIAA has found a P2P server running.Subpoenas were not sent to parents. They were sent to ISPs asking for the name on the account using a specific IP address at a certain time. The RIAA could then send a letter or file a lawsuit.
MPAA also has a new site respectcopyrights.org
The outcome of a civil trial is, at most, an order to stop doing it and/or an order to pay damages. While both fines and damages are the payment of money, fines go to the state and damages go to the person/company the court found was damaged.
An ISP is not liable for infringement committed by their customers. But if they have not records, how can they prove an infringement was by a customer? This is not clearcut, but if an ISP were to lose their potential liability could be enormous.
Copyright is a strict liability regime under which any infringer, whether innocent or intentional, is liable for infringement. This link is from an abstract of a paper arguing that this is bad policy. But it is the law; bad policy is not necessarily unconstitutional.
Copyright holders cannot just issue subpoenas themselves under this law. They have to file a sworn declaration of alleged infringement with the US Federal District court clerk, who will issue the subpoena. Lying on this declaration would be a felony. Using the information obtained for any purpose other than protecting copyrights would be illegal.
The RIAA does not have any special powers here. Anyone can submit such a statement to the US District Court clerk.
The matching of the IP address to the student name is up to the University (acting as the ISP). Before the student can be ordered to pay damages there will have to a trial. The system administrator can be ordered to testify at the trial as to how the match was made. It is up to the jury to decide if the case is proven. As this would be a civil case, the standard is "preponderance of evidence", not "beyond a reasonable doubt."
It looks like Amazon is going to get permission before they do this. First line of the article: "Executives at Amazon.com are negotiating with several of the largest book publishers...". There is no infringement if they have permission.
The article asks the source of the 80% figure. The original report is here (in German). On page 34, footnote 1, there is the assumption that 80% will be using VMWare for 4 to 5 years.
The ISP is safe, but the Freenet node operator is not. The DMCA gives registered ISPs "Safe Harbor" protection for actions by is customers.
There are limits. ISPs must be registered with the government. They lose their Safe Harbor if they allow violations to continue after they become aware of them.