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Archive for the ‘P2P file sharing’ Category

EFF, Public Citizen And ACLU Ask Judge To Quash Mass Subpoenas From US Copyright Group: “While companies like Verizon apparently won’t stand up to protect their users’ rights against the ridiculous and overly broad mass copyright infringement lawsuit filings made by a group called US Copyright Group (really a DC-based lawfirm called Dunlap, Grubb and Weaver), Time Wadrner Cable is pushing back, but mainly on procedural issues — not in any way to stand up for the rights of those being sued. Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.

Those three organizations filed an amicus brief with the court in the Time Warner Cable case, where they point out that there are multiple reasons why the subpoenas should be quashed. Among the many problems with the process used by USCG are the ideas of suing thousands of people in a single lawsuit and all in Washington DC. Obviously, this makes it easier and cheaper for Dunlap, but it’s not how the legal system is supposed to work. First, it only makes sense that each lawsuit should be filed individually, as each involves different circumstances. Second, they should be filed in the proper jurisdiction, not in DC. As the briefing notes:

This Court cannot consider this case unless it has personal jurisdiction over the Doe
Defendants, and it is Plaintiff’s burden to show that such jurisdiction exists. The Constitution
imposes that burden on every plaintiff as a fundamental matter of fairness, recognizing that no
defendant should be forced to have his rights and obligations determined in a jurisdiction with
which he has had no contact. These requirements ‘give[ ] a degree of predictability to the legal
system that allows potential defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to suit.’ World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

Plaintiff has not met this burden. Instead, the very information upon which Plaintiff
relies as a basis for seeking the identity of the Doe defendants — their Internet Protocol (IP)
addresses — indicates that few, if any, reside in this District. If, as it appears, the vast majority of
the Doe defendants do not have sufficient minimum contacts with this jurisdiction to satisfy due
process, the Court should quash the subpoena for information about out-of-district defendants.

….

Requiring individuals from across the country to litigate in this District creates exactly
the sort of hardship and unfairness that the personal jurisdiction requirements exist to prevent. It
requires the individuals urgently to secure counsel far from home, where they are unlikely to
have contacts. In this particular instance the hardship is very clear. When the underlying claim is a single count of copyright infringement, the cost of securing counsel even to defend a
defendant’s identity is likely more than the cost of settlement, and possibly even more than the
cost of judgment if the Defendant lost in the litigation entirely.

As for lumping all of the lawsuits into a single filing, the brief shows that courts have rejected this approach in the past as unreasonable and should do so again here:

There is little doubt that Plaintiff’s joinder of more than 4,500 defendants in this single
action is improper and runs the tremendous risk of creating unfairness and denying individual
justice to those sued. Mass joinder of individuals has been disapproved by federal courts in both
the RIAA cases and elsewhere. As one court noted:

Comcast subscriber John Doe 1 could be an innocent parent whose internet access
was abused by her minor child, while John Doe 2 might share a computer with a
roommate who infringed Plaintiffs’ works. John Does 3 through 203 could be
thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs’ property and
depriving them, and their artists, of the royalties they are rightly owed. . . .

Wholesale litigation of these claims is inappropriate, at least with respect to a vast
majority (if not all) of Defendants.

BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)
(severing lawsuit involving 203 defendants).

Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against them
must arise from a single transaction or a series of closely related transactions. Specifically:

Persons . . . may be joined in one action as defendants if: (A) any right to relief is
asserted against them jointly, severally or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will
arise in the action.

Fed. R. Civ. P. 20. Thus, multiple defendants may be joined in a single lawsuit only when three
conditions are met: (1) the right to relief must be ‘asserted against them jointly, severally or in
the alternative’; (2) the claim must ‘aris[e] out of the same transaction, occurrence, or series of
transactions or occurrences’; and (3) there must be a common question of fact or law common to
all the defendants. Id.

Joinder based on separate but similar behavior by individuals allegedly using the Internet
to commit copyright infringement has been rejected by courts across the country. In LaFace
Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008),
the court ordered severance of lawsuit against thirty-eight defendants where each defendant used
the same ISP as well as some of the same peer-to-peer (‘P2P’) networks to commit the exact
same violation of the law in exactly the same way. The court explained: ‘[M]erely committing
the same type of violation in the same way does not link defendants together for purposes of
joinder.’ LaFace Records, 2008 WL 544992, at *2. In BMG Music v. Does 1-4, No. 3:06-cv-
01579-MHP, 2006 U.S. Dist. LEXIS 53237, at *5-6 (N.D. Cal. July 31, 2006), the court sua
sponte severed multiple defendants in action where the only connection between them was
allegation they used same ISP to conduct copyright infringement.

The brief also takes issue with the evidence that Dunlap presents in the USCG filings:

Moreover, Plaintiff provides no specific evidence other than its summary declarations to
establish that its investigation was done for each Doe. And such evidence ought to be readily
available, including screen shots showing the IP addresses of the Doe defendants so the Court
can see that the addresses submitted to the Court match those discovered during the
investigation, copies or real-time capture of the activities of the ‘proprietary technologies’ used,
and shots of the P2P server logs that to which Plaintiff apparently had access. Without those, the
declarations merely describe downloading activity in general, and fail to provide the Court with
real information linking each of the individuals sued to the alleged infringement.

This is a big concern because Dunlap and USCG are seeking to reveal private information based on incredibly flimsy evidence:

Robust protection for the right to engage in anonymous communication — to speak, read,
view, listen, and/or associate anonymously — is fundamental to a free society. See, e.g., Talley v.
California, 362 U.S. 60 (1960) (recognizing the First Amendment right to communicate
anonymously); McIntyre v Ohio Elections Comm’n, 514 U.S. 334 357 (1995) (same;
‘Anonymity is a shield from the tyranny of the majority.’); Lamont v. Postmaster General, 381
U.S. 301 (1965) (recognizing the First Amendment right to receive ideas in privacy). This
fundamental right enjoys the same protections whether the context for speech and association is
an anonymous political leaflet, an Internet message board or a video-sharing site. See Reno v.
ACLU, 521 U.S. 844, 870 (1997) (there is ‘no basis for qualifying the level of First Amendment
scrutiny that should be applied to’ the Internet).

Courts in this District have recognized that First Amendment protections extend to the
anonymous publication of expressive works on the Internet even where, as here, that publication
is alleged to infringe copyrights. In re Verizon Internet Servs. Inc., 257 F. Supp. 2d 244, 260
(D.D.C.), rev’d on other grounds, 351 F.3d 1229 (D.C. Cir. 2003) (hereinafter ‘Verizon’); see
also UMG Recordings, Inc., v. Does, No. 06-0652 SBA, 2006 WL 1343597, at *2 (N.D. Ca.
March 6, 2006) (citing Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564
(S.D.N.Y. 2004)). As the court in Sony noted:

Arguably, however, a file sharer is making a statement by downloading and
making available to others copyrighted music without charge and without license
to do so. Alternatively, the file sharer may be expressing himself or herself
through the music selected and made available to others. Although this is not
‘political expression’ entitled to the ‘broadest protection’ of the First
Amendment, the file sharer’s speech is still entitled to ’some level of First
Amendment protection.’

326 F. Supp. 2d at 564 (quoting Verizon) (citations omitted). The Sony court continued:
‘Against the backdrop of First Amendment protection for anonymous speech, courts have held
that civil subpoenas seeking information regarding anonymous individuals raise First
Amendment concerns.’

No one is arguing that a legitimately filed lawsuit shouldn’t entitle USCG to get the right to an individual’s information. The issue is that not nearly enough evidence is presented in these cases, and what is presented is done in a way that does not allow an individual to protect their First Amendment rights. This destroys the basic balance that the courts have established to permit such lawsuits to go forward.

The filing is an important one, and it’s unfortunate that it had to come from three public interest groups rather than the ISPs themselves. In an email from Verizon PR, in response to a question on this issue from reporter Dave Burstein, Verizon PR gave the ‘we’re just following orders’ response, and tries to suggest it goes above and beyond by giving their customers a week or less of notification to fight this on their own. Verizon (and Time Warner Cable) could be making these same arguments on behalf of their customers, and it’s a shame that they have not and, in fact, have handed over information on such flimsy proof in such questionably filed lawsuits.

Permalink

(Via Techdirt.)

Digital Economy Act: Ofcom consults on blacklisting infringers: “Small ISPs, mobile operators and Wi-Fi providers like hotels and coffee shops will be exempt from a notification and blacklisting process under the Digital Economy Act, at least initially, according to a draft Code published by Ofcom.“

(Via OUT-LAW News.)

Draft code of practice to reduce online copyright infringement « Ofcom

28|05|2010

A proposed code of practice which implements legislative measures aimed at reducing online copyright infringement has today been published by Ofcom, as part of its new duties under the Digital Economy Act 2010.

The Act requires that the code of practice is implemented no later than eight months from Royal Assent, including approval from the European Commission.

Subject to consultation and approval, Ofcom expects the code to come into force in early 2011.
The code of practice

The draft code sets out how and when Internet Service Providers (ISPs) covered by the code will send notifications to their subscribers to inform them of allegations that their accounts have been used for copyright infringement.

In passing the Act, Parliament’s intention was that Ofcom should apply the obligations in a proportionate way, with the code initially covering only the larger fixed-line ISPs, but with the clear message that, should levels of copyright infringement on other networks, including mobile, increase then those ISPs will similarly be required to comply with the obligations.

Ofcom proposes, therefore, that fixed-line ISPs with over 400,000 subscribers will be covered initially.

This would mean that the seven largest ISPs – BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office – will be covered by the code from the outset.

Ofcom proposes to regularly review evidence of online copyright infringement across all service providers and to extend the scope of the code if appropriate.
Online copyright infringers

The code also sets out the threshold for including subscribers on a copyright infringers list which must be compiled by ISPs.

ISPs will have to record the number of notifications sent to their subscribers and maintain an anonymised list of alleged serial copyright infringers.

Copyright holders can then request information on this list and pursue a court order to identify serial infringers and take legal action against them.

Ofcom is proposing a three stage notification process for ISPs to inform subscribers of copyright infringements and proposes that subscribers which have received three notifications within a year may be included in a list requested by a copyright owner.
Appeals process

Ofcom’s approach is guided by the need to protect the interests of consumers and citizens. Ofcom will establish an independent, robust subscriber appeals mechanism for consumers who believe they have received incorrect notifications, arrangements for enforcement and dealing with industry disputes, as well as sharing the costs arising from the code.
Additional measures to reduce copyright infringement

The code of practice forms part of a wider set of industry activity to tackle online copyright infringement including consumer education, the promotion of lawful alternative services and targeted legal action against serious infringers.

Ofcom intends to monitor how these develop and will report regularly to Government on both the effectiveness of the code and on the additional measures.

Click here to read the consultation which closes on 30 July 2010.

Pirate Bay resurfaces after German legal depth-charge: “

Chortling freetards flaunt buttocks at scurvy law-dogs

The Pirate Bay file tracking site is currently offline – apparently forced to close by a German court injunction filed last week.…

“

(Via The Register – Public Sector.)

LimeWire must share users’ liabilities for copyright infringement, says US court: “Peer to peer (P2P) software company LimeWire induced its users to infringe copyright by the unauthorised sharing of music and film files and shares responsibility for that infringement, a US court has ruled.“

(Via OUT-LAW News.)

Pressure Grows on Spain to Curb Digital Piracy: “Critics say it will be difficult to stop illegal downloading in the country because of the popularity of file-sharing sites and a perceived indifference to piracy as a crime.

(Via NYT > Technology.)

Hurt Locker Makers To Sue Thousands of BitTorrent Users | TorrentFreak

Written by Ernesto on May 12, 2010

The makers of the Oscar-winning movie Hurt Locker have joined a very lucrative ‘pay up or else’ scheme that will target tens of thousands of U.S. BitTorrent users. The massive lawsuit is expected to be filed in the coming days and if ISPs cooperate, suspected downloaders will receive a settlement letter in the weeks to come.

The Hurt Locker has been a great success on BitTorrent, before and after its Oscar triumph. The film’s screener leaked in February of last year, months before it premiered in movie theaters in the United States. However, the demand on BitTorrent went up significantly after it was chosen as the Best Picture of 2009

The day after the award show ‘the hurt locker’ was the most typed in search phrase on BitTorrent, with ‘hurt locker’ ending up in ninth place. This increased demand was also reflected in the download numbers which skyrocketed. Since its win at the Oscars the film has been downloaded more than three million times, totaling well over 10 million downloads.

Despite the recognition from Academy members and the huge success among downloaders, the U.S box office revenue has been relatively low at $16.4 million. In an attempt to increase the film’s revenue its makers will threaten to sue thousands of BitTorrent users who have illegally downloaded (and therefore uploaded/distributed) a copy in recent months.

According to The Hollywood Reporter, the Hurt Locker team has signed up for the services of the U.S. Copyright Group, who will launch a mass lawsuit targeted at tens of thousands of Hurt Locker sharers. The lawsuit is expected to be filed this week and will ask U.S. ISPs to reveal the account owners linked to the IP-addresses that shared the movie on BitTorrent.

The U.S. Copyright Group announced its mass litigation scheme in March, when it targeted thousands who allegedly infringed copyright on several indie film titles. All infringers that have been identified were kindly asked to settle the dispute, or face further legal action. It is expected, however, that the scope of this new round of letters will be much greater due to the high demand for the Hurt Locker on BitTorrent.

‘You can guess that relative to the films we’ve pursued already, the order of magnitude is much higher with Hurt Locker,’ said Thomas Dunlap, a lawyer at the U.S. Copyright Group. Dunlap also said that 75 percent of ISPs have cooperated thus far and that 40% of the BitTorrent users that were targeted early this year have already settled.

Although U.S. Copyright Group say it is their intent to sue individuals who do not pay, in reality that eventuality is impossible to maintain on any scale. Their aim will be to scare as many people as possible into paying, perhaps backed up with legal action against a tiny minority to prove a point.

As we reported earlier, the ‘pay up or else’ scheme is not only lucrative for the rights holders, who get only 30 percent of the settlement money. The remaining 70 percent goes to the U.S Copyright Group and its anti-piracy partners.

In the UK these schemes have been highly criticized by the public, consumer organizations and politicians because of the intimidating tactics and lack of solid evidence. In the UK House of Lords they have been labeled a scam, and the lawyers operating them accused of ‘harassment, bullying and intrusion’ and ‘legal blackmail.’ We expect that the U.S. equivalent will also meet great opposition.

ES – Spanish court rules that links to p2p content are legal: “(EDRI-gram)
A civil court in Barcelona has recently ruled against SGAE (the Spanish collective society of authors and editors) in a case brought against Jesus Guerra who was administrating a site with links to P2P content. SGAE accused Guerra of infringing copyrights by having reproduced and communicated to the public works owned by their constituency. The defendant argued that his website was a non-profit site only providing links that could be used by users only through eMule, a P2P application, to connect to other Internet users. No content was actually hosted on that specific website. The judge ruled in favour of the defendant arguing that linking ‘does not suppose distributing, reproducing or making publicly available copyrighted works.’ In the judge’s opinion, the creation of an index of links is not an infringing practice as linking is an integrant part of the Internet.

(Via QuickLinks Update.)

A user’s timetable to the Digital Economy Act: “

P2P: What happens next?

Now that the Digital Economy Act has been passed by both Houses, what can internet users expect, and when? Quick answer: nothing much soon.…

“

(Via The Register – Public Sector.)

Mandybill: All the Commons drama: “

Web-blocking goes through, orphan works fails

Live TV and internet coverage allowed the nation to feel grubby as the Mandybill was shunted through the House of Commons late last night. The government’s replacement for Clause 18 – a catch-all illiberal web-blocking measure that few in the music business ever expected to survive – was approved, and the photographers cemented a spectacular victory by crushing the orphan works clause.…

“

(Via The Register – Public Sector.)