The recording industry's music piracy fight was dealt a setback Tuesday when a federal judge rejected the RIAA's "making available" argument in a lawsuit against a husband and wife accused of copyright infringement.
In Atlantic v. Howell, Judge Neil V. Wake denied the labels' motion for summary judgment in a 17-page decision (PDF), allowing the suit to proceed to trial. The argument--that merely the act of making music files available for download constituted copyright infringement--has been the basis for the Recording Industry Association of America's legal battle against online music piracy.
The RIAA sued husband and wife Pamela and Jeffrey Howell for copyright infringement in 2006, claiming the couple had used Kazaa to make copyrighted files available for download. In a deposition, Jeffrey Howell admitted loading the file-sharing software onto his computer and that the songs listed in the complaint were for personal use but that he had not placed the files in the program's shared folder. He said that the recordings were copies made from CDs he owned placed on the computer for personal use and not copies downloaded from Kazaa.
He also argued that that he was not the one sharing the files, but that it was the computer that was sharing the files.
While the couple lacks legal representation, the Electronic Frontier Foundation said it filed an amicus brief on behalf of the couple (PDF). The EFF argued against the RIAA's "making available" position, saying in a statement that it "amounts to suing someone for attempted distribution, something the Copyright Act has never recognized."
Judge Wake apparently agreed with that position.
"The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," wrote the judge in his order. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."
EFF staff attorney Fred von Lohmann called the order the "most decisive rejection yet of the recording industry's 'making available' theory of infringement."
The order is a bit of an oddity in that it's a reversal of an order Wake issued in August, in which he granted the RIAA's summary judgment and fined the Howells $40,850 in penalties and court costs. However, the Howells appealed and the judgment was later vacated.
The Electronic Frontier Foundation says that Microsoft has "betrayed" MSN Music customers and wants the company to make things right by issuing an apology, refunds, and eliminate digital rights management technology from the Zune music player.
Microsoft stirred some controversy last week by announcing that it would no longer issue DRM keys for defunct MSN Music after August 31. This effectively will prevent former customers from transferring their songs to new devices after the deadline. Customers could potentially lose their music if they get a new computer or if the hard drive crashes on their current one.
EFF, an advocacy group for Internet users, said in a statement that it sent a letter to Microsoft Chief Executive Officer Steve Ballmer on Tuesday outlining steps the company should take, such as issuing refunds and launching a publicity campaign to educate former MSN Music customers about their options.
"MSN Music customers trusted Microsoft when it said that this was a safe way to buy music, and that trust has been betrayed," Corynne McSherry, an EFF attorney, said in a statement. "If Microsoft is prepared to treat MSN Music customers like this, is there any reason to suppose that future customers won't get the same treatment?"
In an interview last week with CNET News.com, Microsoft's Rob Bennett said that continuing to support the DRM keys was impractical, that the issue only affects a small number of people, and focusing exclusively on Zune was the best way to go. He also noted that it wasn't Microsoft's decision to wrap music into digital rights management.
A Microsoft spokeswoman declined to comment.
Microsoft has suggested that customers should back up their music libraries by burning them to CDs; this way, they can always transfer them to a new computer.
"Microsoft is asking its customers to spend more time, labor, and money to make degraded copies of music that was purchased in good faith," said EFF Executive Director Shari Steele.
Like many in the blogosphere, EFF said the situation proves that DRM doesn't work.
"With MSN Music, Microsoft has admitted just how expensive, clumsy, and unfair DRM is," McSherry said in the statement. "It's time for Microsoft to reject this sloppy technology, and for customers to demand something better."
The Pennsylvania mother who sued Universal Music over a YouTube video of her toddler dancing to a Prince song isn't having much luck in court.
Last October, we wrote about the suit that Stephanie Lenz filed in federal court in San Jose claiming the record label had abused the Digital Millennium Copyright Act by sending YouTube a notice of copyright infringement. Three lawyers from the Electronic Frontier Foundation are representing Lenz.
Lenz's 30-second video shows her son Holden, then 13 months old, dancing in the family's kitchen with the Prince song "Let's Go Crazy" partially audible in the background (Universal represents some of Prince's publishing rights). It led to a DMCA takedown notice from Universal.
On April 8, U.S. District Judge Jeremy Fogel threw out Lenz's lawsuit against Universal, saying the argument that Universal was misusing its copyright was weak--and that the case wasn't really akin to the Diebold wrongful-use-of-the-DMCA lawsuit. Here's what Fogel wrote:
Diebold is distinguishable based on its facts; although it included a takedown of hundreds of emails, the defendant failed to identify any specific emails containing copyrighted content, and it appeared to acknowledge that at least some of the emails were subject to the fair use doctrine. Here, it is undisputed that the song "Let's Go Crazy" is copyrighted, and Universal does not concede that the posting is a fair use... There must be a showing of a knowing misrepresentation on the part of the copyright owner. Lenz fails to allege facts from which such a misrepresentation may be inferred. Lenz also fails to allege why her use of "Let's Go Crazy" was a "self-evident" fair use. Accordingly, Lenz's first claim will be dismissed, with leave to amend.
Fogel also rejected the other two arguments. EFF had asked for a ruling that the 30-second snippet did not violate copyright law; Fogel concluded it was unnecessary because "Universal has indicated it had and presently has no intention of ever asserting an infringement action directly against Lenz based on the 'Let's Go Crazy' video."
The video, by the way, is back up on YouTube.
But Fogel did say that EFF could try to make its misuse-of-copyright argument a second time. EFF did just that by filing a second complaint (PDF) on April 18. It says, in part:
Defendants had actual subjective knowledge of the contents of the Holden Dance Video and that it did not infringe any Universal copyrights on the date they sent YouTube the takedown notice regarding the Holden Dance Video... Defendants should have known, if they had acted with reasonable care or diligence, or would have no substantial doubt had they been acting in good faith, that the Holden Dance Video did not infringe any Universal copyrights on the date they sent YouTube their complaint under the DMCA.
The case is noteworthy because so few lawsuits over DMCA misuse have been filed. Diebold, which sent dozens of cease-and-desist letters after internal leaked documents appeared online, appeared before Judge Fogel--and ended up writing a check to EFF for $125,000.
Think Secret, the Apple rumor Web site, will no longer be published, under the terms of an undisclosed settlelment with Apple Inc. The site issued a small press release on the matter late last night, with Think Secret's publisher Nick Ciarelli noting, "I'm pleased to have reached this amicable settlement, and will now be able to move forward with my college studies and broader journalistic pursuits."
The site was sued by Apple in 2005 regarding leaks about upcoming hardware and software products that later came to fruition, including an updated iLife software suite and the Mac mini desktop computers that were showcased at the Macworld Expo in 2005.
Think Secret was being represented by attorneys in conjunction with the Electronic Frontier Foundation, and in March, the site had attempted to get Apple's lawsuit dismissed on the grounds of it being a First Amendment violation, although to no avail.
The news is certainly a big hit to other large Apple rumor sites including 9to5Mac, Mac Rumors and AppleInsider. Sites like these encourage news tips and leaks about upcoming or unannounced Apple products, which is what got Think Secret into trouble in the first place.
The Internet has enabled the emergence of a collective consciousness that is unprecedented in human history. We are coming together as a hive, and the intelligence of the swarm is being mined and utilized like never before.
Knowledge is power, information is a cash commodity, and who decides how these resources and benefits are distributed? The latest controversy about Facebook's Beacon advertisements is one of many examples that suggests that the issue of user control over his or her own information is reaching a tipping point. We, the online masses, are developing a new sense that our own information is sacred and worth protecting, and not to be indiscriminately broadcast, or blindly exploited for someone else's commercial gain.
Beyond a "right to privacy" that might have meant "secrecy" in the past, we need to think about the right to control our information when it comes to:
- What I say about myself
- What others say about me, and
- How that information is used
I see these issues coming up time and time again in a thread that runs through everything from Internet safety, to social networking, creative artists' rights, consumer/patient rights, all the way up to government wiretapping and surveillance.
... Read more
Everybody knows that copyright owners can demand that YouTube and other Web sites remove unauthorized copies of their work under the law. But what happens when the owners of intellectual property err in their claims?
On Wednesday, the Electronic Frontier Foundation (EFF), a group that advocates for the rights of Internet users, issued six principles that copyright holders should consider before trying to remove a piece of content.
EFF has represented several individuals who have seen their videos removed from Web sites after a copyright owner erroneously claimed that their copyright was violated. EFF recently filed suit against Prince on behalf of a Pennsylvania woman who posted a 29-second video of her infant son dancing to the rocker's song, Let's Go Crazy.
EFF fears that with more and more sites using automated copyright filters, designed to prevent the uploading of copyright work, more and more clips with a legitimate Fair Use claim will be unfairly barred.
"The following principles are meant to provide concrete steps that they can and should take to minimize the unnecessary, collateral damage to fair use," EFF said in a statement.
Among the six principles issued by EFF are that copyright owners must remember that people have the right to include intellectual property for purposes of criticism, reporting, parody or scholarship.
When filtering technology is used, a site should be allowed to dispute the findings of such systems. Once a take-down notice is received from a copyright owner, a Web site should send a notice to the person who posted the video in question so they have an opportunity to dispute the claim.
Prince can't push this mother around.
The pop star wanted YouTube to remove a clip of an infant boy dancing to his 1984 hit song "Let's Go Crazy." When the clip got scrubbed, the baby's mother cried foul and filed suit asking for damages. The woman's lawyers at the Electronic Frontier Foundation (EFF) say the dancing-baby clip is the poster child for fair use.
Corynne McSherry, the EFF attorney representing the baby's mother, Stephanie Lenz, said the music on the clip is barely audible and that Lenz, from rural Pennsylvannia, posted the video for noncommercial uses. Copyright owners are often too quick on the trigger when it comes to sending takedown notices to YouTube and other Web sites, according to McSherry.
The Digital Millennium Copyright Act enables owners of intellectual property to demand that unauthorized copies of their work be removed from Web sites. But Congress also built in safeguards to prevent copyright owners from making misrepresentations.
"We've seen a lot of abuse of the takedown procedures," McSherry said. "It's very easy to get material taken down, and unfortunately folks aren't careful enough when issuing notices. This interferes with free-speech rights. The Internet can't continue to grow or be a robust forum if users can't share views or larger political commentary without being worried that every little piece of content is going to be removed."
There is also something unique about this case. Universal Music Group is the defendant because it represents some of Prince's publishing rights (his current music label is Sony BMG). A year ago, Universal signed a licensing deal with YouTube that allows users to include the label's music in videos. Under the terms of the agreement, YouTube agreed to remove material from any Universal artist who declines to participate.
According to sources knowledgeable with the agreement, only one artist represented by Universal has elected to opt out of the YouTube deal: Prince.
A representative of Universal declined to comment.
The iconic musician sometimes calls up Universal when he spots unauthorized uses of his work and asks them to send takedown notices, the sources said. The author of such hits as "Purple Rain" and "Little Red Corvette," Prince has hired a company called Web Sheriff to patrol the Web looking for unauthorized copies of his work and then try to get them taken down. The company said it plans to spearhead a legal challenge to YouTube and other Web sites on behalf of Prince and the 1970s disco band, the Village People.
John Giacobbi, Web Sheriff's president, said by phone Tuesday that his company had nothing to do with the Lenz baby clip and declined to comment further.
The lawsuit appears to have a ways to go before the issue is decided. Universal has filed a motion of dismiss and EFF is scheduled to issue their reply in the next few weeks.
I got an email from Fred von Lohmann of the Electronic Frontier Foundation yesterday. It began, "Half the companies you blog about have copyright or privacy legal issues simmering just under the surface. Since most of them are thinly capitalized, when they get into trouble, they're likely to call EFF for legal advice. Several already have."
I called von Lohmann right away, since I've had a nagging feeling for months that too many of the interesting products I've been seeing were legally shaky. So I talked with him to come up with this list: 9 Fun Ways Web 2.0 Startups Can Commit Legal Suicide.
For more information than can fit in a blog post, you might want to check out the EFF's upcoming Compliance Bootcamp on Oct. 10 in Mountain View. I told von Lohmann I'd link to the event in exchange for this preview.
1. Ignoring the rules of Safe Harbor
Many media sharing sites, like SimplifyMedia, exist in a narrow legal framework carved out of the DMCA. But you can't take advantage of the Safe Harbor provisions of the DMCA if you don't register as a "copyright agent." All that's required is filling out a form and paying an $80 fee. You can't get protection without registering. As von Lohmann said, "The difference between you and Napster might be this form."
2. Ignoring the Terms of Service chain
This applies to sites that collect or aggregate data--like Mint, which collects its users' financial information. The sites where the data are coming from may have terms of service that prohibit their users from sharing them with third parties. Sites that collect this information may be seen as encouraging breech of contract, which is a legal exposure.
3. Falling for a sob story
If you're collecting personal information from or about people, there will be other people who want it. They may call up your company and give someone there a convincing story to get it. If your team falls for this "pretexting," or social engineering, users can sue you for exposing their information.... Read more
We all heard the stories about the Recording Industry Association of America lawsuits and the mostly college students who found themselves in the crosshairs several years ago.
Many people are opposed to music piracy, but far fewer actually agreed with the RIAA's heavy-handed legal approach.
Among dissenters is the Electronic Frontier Foundation, which on Tuesday filed a lawsuit against RIAA member Universal Music Publishing Group after the company asked that a home video be removed from YouTube due to copyright infringement. The video features 18-month-old Holden Lenz dancing to Prince's "Let's Get Crazy" and runs for a total of 29 seconds. Following Universal's complaint, the video was removed by YouTube and remained offline until recently.
The EFF points out that, "Under federal copyright law, a mere allegation of copyright infringement can result in the removal of content from the Internet." This legal framework mandates that services take down material that may actually be completely lawful or protected under fair use, and this situation is the impetus for the suit.... Read more
As expected, the Electronic Frontier Foundation plans to file a friends-of-the-court brief in support of TorrentSpy, the search engine accused of copyright violations.
The top motion-picture studios filed a lawsuit last year against TorrentSpy and other search engines that locate torrent files. The studios allege in their suit that these companies simplify the illegal sharing of copyright content.
The magistrate judge hearing the case recently ruled that computer RAM or random-access memory, is a tangible document that can be stored and must be turned over in a lawsuit. If allowed to stand, the groundbreaking decision may mean that anyone defending themselves in a civil suit could be required to turn over information in their computer's RAM hardware. This could force companies and individuals to store vast amounts of data, say technology experts.
The judge has ordered TorrentSpy to create logs detailing users' activities on the site.
Fred von Lohmann, senior staff attorney with EFF, which advocates for the rights of Internet users, said the group has notified representatives from TorrentSpy and the motion picture studios of their intent to file an amicus brief that argues for a reversal of the judge's decision.
He added that EFF is also looking for others to join them on the brief.
"This is the first time the court has found that information found only in RAM is subject to preservation," von Lohmann said. "Companies may be obliged to begin logging and producing information about conversations that occur on digital phones, which are stored on RAM. Nobody is asked to preserve records for analog phone conversations."
Lawyers from the Motion Picture Assoc. of America argue that the law has always found RAM to be electronically stored information and that there won't be any significant impact to others besides those engaged in illegal file sharing.
