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Author Topic: A win for the bad guys  (Read 7708 times)

Jerry Witt (mcfilms)

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A win for the bad guys
« on: May 21, 2012, 12:19:37 PM »
http://news.yahoo.com/court-wont-reduce-students-music-download-fine-144922490.html
Quote

The Supreme Court has refused to take up a Boston University student's constitutional challenge to a $675,000 penalty for illegally downloading 30 songs and sharing them on the Internet.

The high court on Monday refused to hear an appeal ... for illegally sharing music on peer-to-peer networks. In 2009, a jury ordered Tenenbaum to pay $675,000, or $22,500 for each song he illegally downloaded and shared. A federal judge called that unconstitutionally excessive, but the 1st U.S. Circuit Court of Appeals in Boston reinstated the penalty at the request of Sony BMG Music Entertainment, Warner Brothers Records Inc. and other record labels represented by the RIAA.

Although this isn't specifically about the stock photo industry, I thought ELI readers would find it interesting. I was quite surprised that the higher court was unwilling to hear about excessive fines. Also, there is a big difference between using an image on your site that has been seen by 20 people and sharing a song with millions of free downloaders.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

SoylentGreen

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Re: A win for the bad guys
« Reply #1 on: May 21, 2012, 01:21:02 PM »
Yeah, it's a big win.
But they'll probably never get a cent from him.
That's kind of the irony of these huge awards.

Too bad that he didn't have a better defense.

S.G.


Matthew Chan

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Re: A win for the bad guys
« Reply #2 on: May 21, 2012, 01:39:09 PM »
I briefly followed and researched this case and this is a minor setback for most people. This is an older case.  We are talking about 30 songs here and music downloaders back then were much more belligerent about it vs. making an innocent mistake. College students are notorious for asinine things and had a bad reputation for egregious downloading and handling their affairs inappropriately.

And although this case exists, it will not directly apply to most of our audience because the circumstances are very much different here.

The music industry is fairly deep-pocketed.  So much so that they were able to lose a ton of money on the collective RIAA lawsuits. But when the dust settled, the RIAA came to their financial senses that the only people who made out like bandits were the lawyers that were milking these cases for all they are worth. They "won" with a very steep cost.

The article is still somewhat encouraging.  The argument being turned down was "constitutionality". However, that court has "hinted" to some future judge to consider reducing the award. It doesn't seem entirely over to me.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Greg Troy (KeepFighting)

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Re: A win for the bad guys
« Reply #3 on: May 22, 2012, 09:31:30 AM »
Just curious, I saw in the article where it said:
“Tenenbaum argued that the U.S. Copyright Act is unconstitutional and that Congress did not intend the law to impose liability or damages when the copyright infringements amount to "consumer copying."

I am curious what the views of the group are on this and if it were to be challenged and work its way up through the courts what you think the outcome would be?
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Lettered

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Re: A win for the bad guys
« Reply #4 on: May 22, 2012, 01:18:34 PM »
Copyright law is supposedly based on the "copyright clause" in the constitution.  I read that clause literally to apply to only copyright protection for written works and patent protection for discoveries.  So on a personal level I would agree that copyright law in its modern form is unconstitutional.  The first copyright law in the 1700's limited itself to that narrow category of written material I think. 

But what do I know?  I still can't see how they get away with denying jury trials to people up on criminal charges in certain cases.  The constitution seems very clear on that issue as well to me.

In the end, I think the powers that be with the deep pockets are going to steer our law in spite of the constitution.

But to answer your question, seeing as how the federal copyright law has been applied to consumer copying of sound and visual recordings for decades, I doubt any judge would agree that copyright law is unconstitutional.


Just curious, I saw in the article where it said:
“Tenenbaum argued that the U.S. Copyright Act is unconstitutional and that Congress did not intend the law to impose liability or damages when the copyright infringements amount to "consumer copying."

I am curious what the views of the group are on this and if it were to be challenged and work its way up through the courts what you think the outcome would be?
« Last Edit: May 22, 2012, 01:28:56 PM by Lettered »

Jerry Witt (mcfilms)

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Re: A win for the bad guys
« Reply #5 on: May 22, 2012, 01:45:09 PM »
Yes I think a fight on the constitutionality of copyright law may not have been the best move. It has long been accepted that other forms of expression are protected and our laws change to cover new technology.

I think "consumer copying" has been tested and won. We do have the right to buy a cd and make a mix tape for our own enjoyment. We can transfer our laser discs to VHS and then DVD for our own use.

I think what the RIAA was testing and fighting against was the legality of "sharing." And in that case they ultimately prevailed. (Although as SG points out it was to their own detriment for a lot of reasons. Suing your present and future customers, it a bad and unsustainable business model.)

The thing is, the record companies are in a position to throw out a lot of sales data and paint a picture in which piracy of songs cost them a lot of money and that they were taking action to stop it at every turn. Compare this to a company like HAN. There images are freely available from numerous sites, and they have not issued takedown notices. Many sites promote the "free" use of these images. The images themselves can be purchased for $10 as a print. And finally I am confident that there is no way that they can provide the sales data to show that these images had a track record of selling for the outrageous amounts they wish to collect.

So they are very different situations. But like I said, it is worth watching where the case goes from here.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

SoylentGreen

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Re: A win for the bad guys
« Reply #6 on: May 22, 2012, 02:11:12 PM »
U.S. copyright law was never intended to deal with issues of copyright related to “file sharing” on the Internet.  That’s why the law is open to fairly wide interpretation (and therefore varying) determinations by different judges.  To make a formal argument of whether or not the law is “constitutional” would be quite a long and expensive affair, and sometimes that’s an answer in itself.  That is, is anything to be gained for the effort of challenging it overall?

The “law” protects “works”, but ironically it can also protect innocents from the likes of corporations such as Getty and their ilk, who make a frequent habit of falsely accusing people of infringement.  So, the law is the best “test” that we have, but the law will always lag behind technology and new issues no matter how hard people make efforts to remedy it.

While “file sharing” is a bit off topic in this section of the forum, it’s probably of interest to some people to know how the methodology of a “defense” differs between infringements of “images” vs. that of “multimedia” files.  The main defense that’s effective against claims of copyright infringements of images is that (with very few exceptions) the “plaintiff” doesn’t own or is not an “exclusive” agent for the image/artist in question.  For multimedia content such as movies and music, you can bet that the copyright is registered and ownership is clear.  However, the defense in such cases is often built around whether or not there’s proof that the accused party actually committed the act of “infringement”.  IP addresses are widely known to be completely unreliable, and therefore the burden of proof must also come from other sources such as logs from the Internet service providers.  However, the service provider can be circumvented from releasing such info on the grounds of privacy.  If incriminating logs were released, one could simply argue that his/her “router was hacked”.  It’s easy to come up with logical defenses that will probably fly, however it often comes down to whom has the most resources, can make the most convincing argument, and ultimately who has the most resolve.  So, the “fight” is very different between the two types of content.

Ironically, the use of “content” outside of what the owners/producers/artists intended (some may call these “infringements”) actually drives sales to some extent.  If channels such as YouTube and others didn’t allow infringing content to some extent, the buying public wouldn’t be exposed to content that they might opt to buy.  That is, people don’t normally buy music that they’re never heard before.  It can be advertized on TV, but that costs a lot of money.  Radio’s a good choice, but it’s only one media channel of many.  In the case of Getty and their images, this is why Getty’s CEO says that they have sophisticated systems to detect infringements along with legal counsel, but encourages people to “play” with Getty’s images and even post them on social media sites such as Pinterest.  Getty's allowing and encouraging infringements to occur in certain situations which is technically "free advertizing", but it also feeds the misconception that people have about the content being "public domain".  This drives Getty's copyright trolling revenue.

S.G.
« Last Edit: May 22, 2012, 02:18:07 PM by SoylentGreen »

Mulligan

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Re: A win for the bad guys
« Reply #7 on: May 22, 2012, 03:05:11 PM »
S.G., thank you for your interesting, thoughtful, and informative post. I especially liked your point about laws always being behind the curve of technology, especially when so many legislators and judges are still relatively computer ignorant.

I've been writing on the Internet for many years, going all the way back to the early days of AOL, CompuServe, and GEnie, and I have to say I miss the old west days before the lawyers and politicians and big corporations realized there were big bucks to be made on what was once a marvelously free-wheeling and free-sharing and very magical thing (I use the word "thing" for lack of a single term that encompasses what the web has always been for me: a tool, a resource, an entertainment, a creative outlet, and so much more).

I have to admit the web has lost much of the magic for me that it once had, and I hate to see it being taken over in so many ways by the greedy bastards who see easy bucks to be made as well as by the power hungry politicians who would control the web to advance their agendas.

Well, enough. I'm high on the soapbox today and that's rarely a good thing for an old man who enjoys ranting almost as much as he used to enjoy a full night's sleep without having to get up to take a leak.

Moe Hacken

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Re: A win for the bad guys
« Reply #8 on: May 22, 2012, 03:45:54 PM »
U.S. copyright law was never intended to deal with issues of copyright related to “file sharing” on the Internet.  That’s why the law is open to fairly wide interpretation (and therefore varying) determinations by different judges.  To make a formal argument of whether or not the law is “constitutional” would be quite a long and expensive affair, and sometimes that’s an answer in itself.  That is, is anything to be gained for the effort of challenging it overall? ...

The “law” protects “works”, but ironically it can also protect innocents from the likes of corporations such as Getty and their ilk, who make a frequent habit of falsely accusing people of infringement.  So, the law is the best “test” that we have, but the law will always lag behind technology and new issues no matter how hard people make efforts to remedy it.

While “file sharing” is a bit off topic in this section of the forum, it’s probably of interest to some people to know how the methodology of a “defense” differs between infringements of “images” vs. that of “multimedia” files.  The main defense that’s effective against claims of copyright infringements of images is that (with very few exceptions) the “plaintiff” doesn’t own or is not an “exclusive” agent for the image/artist in question.  For multimedia content such as movies and music, you can bet that the copyright is registered and ownership is clear.  However, the defense in such cases is often built around whether or not there’s proof that the accused party actually committed the act of “infringement”.  IP addresses are widely known to be completely unreliable, and therefore the burden of proof must also come from other sources such as logs from the Internet service providers.  However, the service provider can be circumvented from releasing such info on the grounds of privacy.  If incriminating logs were released, one could simply argue that his/her “router was hacked”.  It’s easy to come up with logical defenses that will probably fly, however it often comes down to whom has the most resources, can make the most convincing argument, and ultimately who has the most resolve.  So, the “fight” is very different between the two types of content.

Ironically, the use of “content” outside of what the owners/producers/artists intended (some may call these “infringements”) actually drives sales to some extent.  If channels such as YouTube and others didn’t allow infringing content to some extent, the buying public wouldn’t be exposed to content that they might opt to buy.  That is, people don’t normally buy music that they’re never heard before.  It can be advertized on TV, but that costs a lot of money.  Radio’s a good choice, but it’s only one media channel of many.  In the case of Getty and their images, this is why Getty’s CEO says that they have sophisticated systems to detect infringements along with legal counsel, but encourages people to “play” with Getty’s images and even post them on social media sites such as Pinterest.  Getty's allowing and encouraging infringements to occur in certain situations which is technically "free advertizing", but it also feeds the misconception that people have about the content being "public domain".  This drives Getty's copyright trolling revenue.

S.G.

I agree with Matthew and Soylent Green that this is not exactly a reversal for the cause. This is more like a tug in the ear from a magistrate who is actually providing guidance as to the proper way to seek relief in the case. The judge is simply saying the constitutional argument is the wrong way to look at it, and suggesting that relief be sought in other venues that have the authority to deal with the proportionality of the fines.

Soylent Green raises a very important similarity with these cases, and it regards the methods for collecting evidence against the defendants. Using IP numbers as a manner of identifying physical persons as criminals is taking some very serious legal blows, as this article explains:

http://www.dailytech.com/Another+Judge+Rules+IP+Addresses+Cant+be+Used+to+Identify+People/article24614.htm

If the IP address is completely deprecated as a manner of identifying criminal activity by individuals, their cases will lose a lot of weight. I think there could also be something to think about along these lines concerning the legality of PicScout and other crawlers doing the equivalent of tapping your phone without a court order. It would be good to set a precedent that any "evidence" acquired by such means is inadmissible in any court.

It's much more important to protect the privacy and civil rights of all Americans than the copyrights of the very few, especially those who specialize in trolling for extortion material.
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Greg Troy (KeepFighting)

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Re: A win for the bad guys
« Reply #9 on: May 22, 2012, 10:38:00 PM »
Thank you guys that answers my question, I appreciate it.  :(
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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Oscar Michelen

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Re: A win for the bad guys
« Reply #10 on: May 24, 2012, 10:19:56 PM »
In reply to Moe Hacken, here's a link to my recent blog post on the IP address case which I think could have far reaching application

http://www.courtroomstrategy.com/2012/05/courts-denounce-copyright-lawsuits-based-solely-on-ip-address/

I think the case that this forum is discussing has no  impact on the Getty Images and related matters  for a number of reasons most of which have been addressed by the earlier posts.  First of all, this case was poorly argued. Who in their right mind is going to raise the constitutionality of the Copyright Act? Article I, Section 8 clause 8 of the US Constitution authorizes Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"  It is from this clause that  the Copyright act is derived. Secondly, who doesn't know that music is copyrighted? Thirdly,peer to peer means you are distributing the work, a big no-no; and finally the verdict came down in 2009. Since then courts have not viewed RIAA lawsuits as favorably as they have.  We are seeing a trend in courts away from troll-like lawsuits and an awakening by the Federal Bench to the harm these lawsuits cause. 

Moe Hacken

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Re: A win for the bad guys
« Reply #11 on: May 25, 2012, 12:15:41 AM »
In reply to Moe Hacken, here's a link to my recent blog post on the IP address case which I think could have far reaching application

http://www.courtroomstrategy.com/2012/05/courts-denounce-copyright-lawsuits-based-solely-on-ip-address/


Thanks for the link, Oscar. I believe that's where I had read about it first, sorry I didn't remember it was your article. I'm happy to see a sane and objective precedent being set on this issue. Your article is much more cogent than the one I quoted. I picked up on that one because it's a relatively recent report.

Along the same lines as the fallacy of using an IP address as a form of identification, at some point the practice of using spybots to suck up a server's bandwidth seeking evidence against its operators is likely to be called into question in one of these cases, if it hasn't already. This topic has been discussed here before many times and there have been some excellent insights into the technical aspects of copyright trolling.

After following Lucia's excellent advice (which she has shared on several posts in this forum), I set up a "bad-bot trap" and almost immediately started catching poorly behaved spybots. Since then I've been snagging at least one every couple days.

They're coming from the strangest places all over the planet and some are almost impossible to identify as the IP addresses are privately registered or registered abroad in foreign languages. Among them, however, there's been at least one that's traceable to an "IP protection" company offshore, and by serendipity I realized I had also blocked Copyscape's IP address!

Copyscape is a web-based service to help people identify duplicate content on the web. You can use it to find if people are scraping your site for content, or to find your copyrighted text, or to find if you have duplicate content issues you're unaware of that could affect your site's search engine rankings. There are ethical uses, but it could also be used for copyright trolling. Their bot ignored my robots.txt file once, so that's it for me. They're permanently eighty-sixed from all my server hosts.

Some of the bots are just SEO spy tools checking websites for their backlink portfolio and whatever other intelligence they can gather for their competitors. Even that doesn't pass the smell test as far as I'm concerned, if I don't know they're accessing my blocked directories.

One of the negative effects for the webmaster and SEO tech is that these visits distort the traffic statistics, particularly in low-traffic websites as they can actually outnumber human visitors. More often than not, "bad-bots" try to fake the user-agent information to pretend being a humble web browser — albeit an incredibly voracious one that rips through all your data as fast as it can. Some people in tech forums claim PicScout has actually crashed their servers because the bot uses bandwidth so aggressively. Very rude.

There are many drawbacks for the server's operator in having to deal with the swarm of bad-bots hitting them, and absolutely NO BENEFITS unless it's a service the webmaster actually WANTS, like having Alexa crawl the entire site for SEO stat purposes.

It's my layman opinion that busting into someone's server looking for evidence of criminal activity should require a court order or warrant in the same exact way as it does to be able to tap a phone line. Without it, it should be considered inadmissible evidence. Maybe I'm tripping about that. Oscar or anyone, please feel free to deflate my armchair lawyer balloon. I can handle the truth.

If the trolls have to file for court orders or warrants to search for the evidence, they'd have to come up with some kind of LEGALLY obtained probable cause. That's not nearly as easy as sending PicScout to stick its snout in your server and hog your bandwidth.

It would have a similar effect as forcing the porn trolls to pay the $350 for every John Doe instead of paying $350 to file against scores of them at once. The gill nets would taken away and they'd have to go back to fish hooks.
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Oscar Michelen

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Re: A win for the bad guys
« Reply #12 on: May 30, 2012, 09:06:01 AM »
Great post.  I have recently been retained on one of those massive adult film cases in Florida and I think it may be time to address that topic fully in our forum.

Matthew Chan

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Re: A win for the bad guys
« Reply #13 on: May 30, 2012, 02:29:15 PM »
Gee, you think?  ;) It was inevitable you were going to get one of these letters and we were going to discuss them.  Hence, we have a P2P/Bittorrent forum just for this reason.

The good news is it is far easier to defend this now because there have been so many court rulings and judges' public statements going against the extortionists. They are even worse than the stock photo agencies.

I have recently been retained on one of those massive adult film cases in Florida and I think it may be time to address that topic fully in our forum.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

 

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