RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users

  Text of RIAA Letter to ISPs (February 2007)
Following the receipt of applicable subpoenas, U.S. ISPs currently provide the RIAA with personally identifying information about alleged P2P users with sufficient detail to bring legal proceedings against them.

The Recording Industry vs The People has obtained the letter linked-to above allegedly used by the RIAA in an attempt to obtain further voluntary assistance from ISPs. The RIAA is asking ISPs to retain  log files for at least 180 days and to send out letters to users offering $1,000 settlement discounts if alleged infringers settle before the RIAA has to initiate costly court proceedings. 

Dale's Comment: One wonders why U.S. ISPs would comply with such a request given that they fought (and won) at least one court case in the past where the RIAA sought to compel their assistance without subpoenas. Such voluntary assistance would certainly assist the RIAA. 

Source: Recording Industry vs The People |Ars Technica | TechDirt | Wired | P2PNet | Digital Citizen

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Oregon District Judge – ‘Making Available’ – Sufficient Grounds For Copyright Infringement

  Decision – Motion to Dismiss Denied (October 25, 2006)
In a decision that may have far-reaching consequences an Oregon District Judge Ann Aiken has held, for the purposes of denying a motion to dismiss, that merely having a 'shared files folder' on one's computer, and thereby 'making files available for distribution', with nothing else, constitute the necessary elements of a copyright infringement action.

In response to this decision Recording Industry v. The People aptly says:

This is the first instance of which we are aware in which a judge has explicitly held that the RIAA's allegation of "making files available for distribution" is sufficient in and of itself to state a claim for relief under the Copyright Act. The decision contains no discussion of the Copyright Act, applicable case law, legal scholarship, or anything else that might give a clue as to how the judge came to agree with the RIAA. We will investigate further to see if the issue was briefed and, if so, how.

Dale's Comment: Wow! Whether or not making files available for distribution is sufficient to constitute copyright infringement (without proof that the file was actually copied by anyone) is the subject of wide-ranging debate. For this judge to make such a sweeping conclusion without supporting it in any way is surprising.  Fortunately for Barker the RIAA dismissed this case. Shrewdly for the RIAA, such dismissal may negate Barker's appeal on the merits while yielding a precedent they can point to in future cases. I suspect that whether this decision is appealable or not, the 'decision' will be hotly contested in future cases.

Sources: Recording Industry v. The People | Afterdawn | *ars technica 

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Shawn Hogan’s Motion to Dismiss RIAA Claim Denied

Motion to Dismiss Denied (December 11, 2006)
Text of Motion to Dismiss (November 2, 2006)
Last August I wrote about millionaire Shawn Hogan's decision to fight back against the MPAA's allegation that he illegally downloaded "Meet the Fockers". Last November I wrote about his motion to dismiss based on faulty copyright registrations

District Court Judge Thomas J. Whelan agreed that Hogan was factually correct but has nevertheless denied the motion to dismiss stating:

Courts take a liberal approach to errors in copyright registrations. Serious errors—even in the claimant’s name—do not invalidate copyright registrations in the absence of fraud before the Copyright Office or prejudice to the alleged infringer … Otherwise, the infringer would get a “free pass” to infringe, essentially because of a technicality.


Hogan has not even suggested that ither Universal entity defrauded the Copyright Office, nor has he shown prejudice dueto the error. Instead, he seeks to avoid addressing the merits of the copyright infringement claim by pointing out an error in the registration. Fortunately (for authors,claimants, and the general public), the Copyright Act does not require such rigid aherence to formalities.  

Sources: Text of Motion to Dismiss | Recording Industry v. The People |

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RIAA P2P Defendant Brings Class Action Suit Against Kazaa Creator Sharman Networks

  Text of Amended Complaint (December 8, 2006)
Catherine Lewan, a defendant who settled with the RIAA in one of its many law suits, is now suing Sharman Networks, the creator of Kazaa.  The compliant alleges:

  • Sharman deceptively marketed Kazza as a product allowing "free downloads";
  • the software created a shared files folder (presumably creating the RIAA law-suit liability) without disclosing this to users;
  • the software it installed spyware 

Dale's Comment: This one reminds me a bit of the law suits against Starbucks a few years back where the plaintiffs claimed the coffee was too hot or the lawsuits against McDonalds claiming McDonalds was legally liable for their getting fat. Any user of P2P software knows how the software works and, indeed, can see it working. Files being shared in the shared folder are typically shown graphically in the P2P client's user interface as they are being shared. 

While I have little sympathy for the first claims, I do believe that most P2P users never knew that the quid-pro-quo for using the software was the installation of Spyware. Indeed, when a Spyware-free version of Kazza (Kazaa Lite) was distributed without Sharman's consent I seem to recall Sharman using efforts to shut it down.

Sources: Daily Tech | ars technica| Recording Industry v. The People | P2PNet | techdirt | TechWeb 

Related Kazaa Posts:

School Teacher Looses Day in French Court for P2P Music Downloading

Twenty-nine-year-old, primary school teacher, Anne-Sophie Lainnemé, somewhat of a cause-celebre in the French P2P community had her day in court and lost. She was the first person in France arrested for downloading music. The court held that she owed two French rights organizations €2,225 (U.S. $2,955). She was also fined €1,200 (U.S. $1,600) but the court issued a deferred sentence. Apparently, if she doesn't get in trouble again, she won't have to pay the fine. 

Dale's Comment: If the past is any indication of the future, she'll have to pay.

Sources: ars technica | Paris Link | Digital Journal

P2P Download Defendant Argues Kazaa Settlement Covers Him (Greubel)

Text of Greubel's Answer to RIAA Complaint

This is an intriguing and novel defense. In addition to David Greubel Argues that Kazaa's $100M+ Settlement with the music industry in July covers any copyright infringement he might have be involved with as a user of KaZaa. He is also arguing, as in the Lindor case, that $750 per song damages per downloaded song is excessive in light of the 70¢ per song lost revenue actually suffered by the recording industry.

Sources: Recording Industry v. The People |ars technica | P2PNet | TechDirt

Related Kazaa Posts:

Judge Allows RIAA Defendant to Argue $750-per-song Damages are Unconscionable

WestLaw Version of Decision – (2006 WL 3335048 (E.D.N.Y.)) (Nov 9, 2006)
Decision Granting Leave to Amend Answer (Nov 9, 2006)
RIAA Response
Text Constitutional Challenge
The standard RIAA consumer file-copying suit seeks $750 damager per illegally downloaded song. As I reported last May, Marie Lindor argued that this amount is unconscionable when the average download price per song is 99¢ per song. Judge David Tragger agreed and has permitted the defendant to amend her defense to include that argument.

Texas Law Review Article on the Topic by: J. Cam Barker

Sources: Recording Industry vs The People | ars technica | afterdawn | the Inquirer | P2PNet | Howard Knopf

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Google Torrents

As the RIAA systematically works to shut down Torrent Sites around the Internet, some enterprising person at Digg Torrents found a way to use Google to search for and download torrent files. Torrent files are small files containing the data used by BitTorrent clients to locate the specific content (ie: a video, a document, music etc.) available for downloading from other BitTorrent users at that particular moment in time.

[Nov 18 Update: Since I first posted this, the service has changed its name from Google Torrents to Digg Torrents and moved to the new URL linked-to below. The name has changed but the use of Google to find torrents has not.]

Sources: Digg Torrents

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Music Downloading Judged Legal in Spain

A Spanish Judge has ruled that downloading music, as "a practised behavior where the aim is not to gain wealth but to obtain private copies" is not illegal or criminal activity in Spain. The judge ruled that article 31 of the Intellectual Property Law in Spain established a right to obtain copies of music without permission, provided they were for private use and not for profit. The Spanish recording industry will appeal.

Dale's Comment: Given the recent Swedish and Finish decisions, it appears judges in different European countries are applying the European copyright directives differently in this regard.

Sources: OUT-LAW.com | The Register | P2PNet | Typically Spanish | *Guardian Unlimited | San Jose Mercury News | PC Pro

RIAA Sues the Kids after Soccer Mom Fights Back

The RIAA had initially sued Patricia Santangelo, a divorced mother of five for illegal music downloading. Santangelo, whom a federal judge called “an Internet illiterate parent” plead her innocence and was interviewed on television shows saying that the RIAA was demanding $7,500 to settle the case. The RIAA claims her 20 year old daughter, Michelle, acknowledged downloading music in prior testimony and that the friends of her 16 year old son, Robert, implicated him as well. So, the RIAA is suing them too.

Dale’s Comment: One wonders if this is some form of retribution for speaking out publicly about this. No doubt this is also an attempt by the RIAA to get their message out to the average parent in hopes that they will police the downloading activities of their children more closely.

Sources: CBS | cbc.ca | Journal News | Newsday.com | Recording Industry v. The People

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Shawn Hogan Files Motion to Dismiss MPAA Case Based on Faulty Copyright Registration

Text of Motion to Dismiss Last August I wrote about millionaire Shawn Hogan's decision to fight back against the MPAA's allegation that he illegally downloaded "Meet the Fockers". His defense was that he did not do this and wouldn't have since he already owned the DVD. During pre-trial discovery Hogan's legal team discovered that the copyright to the movie was registered by Universal City Studios, LLLP and not the plaintiff to the lawsuit, Universal City Studios Productions LLLP. The plaintiff counters that rights to the movie were assigned to it prior to the filing of a faulty copyright registration. Hogan has filed a motion to dismiss on the following grounds:

  1. section 17 USCS § 411(a), of the U.S. Copyright Act provides:

    …no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title…

  2. section 17 USCS § 408(a) provides that only the "…owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim…" and
  3. since the plaintiff, if it is the owner, did not register the copyright, it has no standing to assert a claim of infringement.

Dale's Comment: If the court does dismiss the claim on this basis, however, the plaintiff could correct the copyright registration problem and institute the action a new. We'll see.

Sources: Text of Motion to Dismiss | Recording Industry v. The People | Shawn Hogan's Blog | TechDirt

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IFPI Launches 8,000 New Lawsuits in 17 Countries

Following the recent successful conviction and settlements against North American P2P Providers, the IFPI has filed 8000 new lawsuits in 17 countries and P2P users using all the major peer-to-peer services, including BitTorrent, eDonkey, DirectConnect, Gnutella, Limewire, SoulSeek and WinMX. While most of the new law suits were filed in Europe and South America, suits have also been filed in Argentina, Austria, Singapore, Switzerland, Denmark, Finland, France and Germany, plus others like Hong Kong, Iceland, Ireland, Italy, Holland and Portugal. The IFPI claims that more than 2,300 people had already been fined or had paid compensation averaging about $3,100.

Dale’s Comment: The thousands of suits launched to date have not made a dent in file sharing. I wonder why these folks continue to think that suing their customers is a better idea than providing a fair way for honest people to purchase music online

Sources: Silicon.com | Herold Tribune | London Times Free Press | L.A. Times | Inquirer | PC World | ars technica | BBC | Reuters | CBC.ca | ABC | Red Herring | Toronto Sun | AfterDAwn | TechWeb | The Jurist | MP3.com | P2PNet | PC Pro | CNet | Business Week (AP) | MacWorld

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Who Needs Kazza or eDonkey when You Have Google?

The recording industry has successfully shuttered several peer-to-peer networks of late. To what end? This recent Digg.com entry demonstrates how easy it is to find and download almost any music without DRM restrictions using a simple Google search. What's more, there is no way that I know of for such downloads to be traced by the means currently employed by the RIAA. No P2P application installations are needed, no attendant spyware, no messy port forwarding, no TPM circumvention is involved, just a simple Google search and download.

Dale's Comment: The RIAA can feel self-satisfied that it is successfully shuttering P2P Networks and ratcheting four digit settlements out of hapless P2P users unwilling or unable to fight the thousands of recent RIAA lawsuits, but until the content industries realize that they need to provide a fair way for honest users to purchase downloadable content, there will always be alternative ways for end users to pirate DRM-free content. The content industry needs to realize and accept the fact that there will always be some amount of piracy. Once it accepts this fact, it can turn its attention to providing first-rate and fair download services that meet the legitimate needs and expectations of honest people. Until they do, there's always Google, AllofMP3.com or the next new thing. Here's a terrific and topical EFF Article: The Consumer is Always Wrong: A User's Guide to DRM in Online Music.

Source: Digg.com

Web Sites that Automate this Google Search: CyberWyre | G2P Tyoogle

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Another BitTorrent User Conviction

Scott R. McCausland, 24, of Erie, Pennsylvania is one of three persons convicted of copyright infringement using a BitTorrent network. He faces up to five years in prison and a possible fine of up to $250,000 U.S. He had been using the Elite Torrents network which the FBI raided and shut down on May 25, 2005. McCausland had seeded the Elite Torrents nework with Star Wars Episode III: Revenge of the Sith more than six hours before it was released in theatres. It was subsequently downloaded more than 10,000 times before the network was shut down. He will be sentenced on December 12.

The press is calling this the “first” BitTorrent conviction. Perhaps this is the first North American conviction, but I reported back on October 5, 2005 that a Hong Kong man was convicted of copyright infringement while using BitTorrent. That, is the earliest BitTorrent conviction I am aware of.

Sources: Standard News Wire | ComputerWorld | Technology News Daily | InternetNews.com | CD Freaks | PC World | Security Pro News | North county Gazette | U.S. Newswire

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Millionaire Shawn Hogan to Fight Back against the MPAA

Last November the MPAA accused millionaire Shawn Hogan of illegally downloading Meet the Fockers over BitTorrent. Hogan denies the accusation and has vowed to fight the MPAA's "abuse" of the system. Many defendants to such RIAA/MPAA driven actions pay up because they can't afford the legal bills to fight them. According to Hogan:

"Someone has to stand up to these clowns… their scare tactics make them sounds pretty foolish IMO. First of all, I would rather spend $US100,000 and not pay them $US2,500 than to just give them $US2,500 (it's about the principle)."

Sources: Wired | Shawn Hogan's Blog | Fool.com | The Age | Slate.com | Bit-tech | Afterdawn.com | DVD-Recordable.org | Neoseeker | Filmfodder News

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RIAA Drops Open WiFi Case – Virgin v. Marson

Text of Order to Dismiss (Jan 24, 2006)

In an earlier post I had noted that an open WiFi connection could act as an affirmative defense against the RIAA's IP-centric lawsuit tactics because anyone could have been using a defendant's open (ie: non-encrypted) WiFi connection to download P2P content. It appears the RIAA dropped a case on that exact basis back on January 24, 2006.

Sources: Recording Industry v. The People | Bit-tech.net | P2P-Weblog | P2PNet | Techdirt 1 | Techdirt 2 | ars technica | Register | Neoseeker

Related Article: Salon.com

Dale's Update [Aug 4, 2006): The original reports about this case mentioned that Ms. Marson had an open WiFi and that was the basis of the dismissal. The later reports, see for instance the ars technica report, are now saying that Ms. Marson a cheerleader teacher that had hundreds of girls come to her house, anyone of which could have used her computer to download music. Some reports (eg: the register) say both defenses were used. The net result, however, still seems to be the same. When you can show evidence that someone other than the IP address owner/user had access to Internet connectivity through that IP address, that may very well be an affirmative defense – as would be the case with a computer with open WiFi. While ars technica is quite right that no judgment has yet turned on this point, it seems to me evidence of an open WiFi would be at least as compelling a defense. And who knows, the RIAA may already have dropped open-WiFi defense cases without disclosing this to the public.

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Lawyer who Fights the RIAA Speaks Out

MP3 version of Conference Call (6.4M)
Ray Beckerman, a lawyer who defends consumers in RIAA cases, held a recent press conference on the topic.

Sources: ars technica | Transcript of Conference Call | P2P Weblog | EFF Deep Links

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Dutch Court Rules ISPs Need Not Disclose File Swapper IDs

English Version of Earlier July 12, 2005 District Court of Utrecht Decision
The Dutch appeals court upheld an earlier District Court of Utrecht Ruling that the method used by the MediaSentry software used to collect IP addresses of alleged Dutch P2P file shares had no lawful basis under European privacy laws. The software scans shared folders on the suspect's hard drive. The Dutch anti-piracy organization, Brein, had requested that 5 Dutch ISPs disclose the name and address of the users of IP addresses identified by the MediaSentry. As is the case with RIAA-initiated lawsuits in the United States, Brein would have used that information to bring copyright infringement actions against the alleged file sharers.

Sources: The Register | CD Freaks | DigitalMusicWeblog | TelcomPaper | Michael Geist

Dale's Comment: If anyone has access to an English copy of the Appeals Court decision, please send a copy to me and I will post it here.

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RIAA Loses in File Sharing Case Against Mom

Text of Dismissal and Final Order
After refusing to pay the RIAA’s standard $5,000 settlement demand, a mother who didn’t even own a computer fought the RIAA in court. Over the RIAA’s objections, she was awarded attorneys fees and the case alleging copyright infringement for file sharing was dismissed after the RIAA failed to provide details as to the time and name of files allegedly downloaded to her computer.

Sources: Ars Technica  |  Recording Industry vs. The People  |  CD Freaks  |  Inquirer

British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users

Citing lack of due process, the British ISP Tiscali refused to disconnect 17 users based solely on the BPI's presentment of a KaZaA screen shot showing a KaZaA users IP address.

Sources: ars technica | Reuters | Guardian Unlimited | Slyck | Afterdawn.com | BBC | The Register | Macworld | PC World (IDG) | TechWeb

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RIAA Sends Cease and Desist Letters to Youtube/Google Video Users

Post a few seconds of you or your friends dancing to an RIAA-member song on YouTube or Google Video? Expect a cease and desist letter from the RIAA.

Sources: ars technica | techdirt

Dale's Comment: I wonder how the RIAA is going to justify how a video of my sister contorting to the Chicken Dance is going to hurt their members' bottom lines.

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China Bans File Sharing Without Copyright Owners Permission

The Chinese government has passed a new regulation to ban the uploading and downloading of Internet material without the copyright holder’s permission. The production, import and supply of devices that are capable of evading or breaching technical measures of copyright protection and technical services are prohibited under the regulation. The new regulation provides for a fine up to 100,000 yuan (12,500 U.S. dollars) and confiscation of computer equipment for those who breach copyright.

Sources: People’s Daily Online  |  ars technica
Dale’s Comment: Of course, the real question is, will China enforce this law in any way.

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