The Mind Trap

ISPs Are Liable For Customer's Copyright Infringing Activity

UPDATE: Just came across a piece by Alex Malik, a lawyer who was doing a PhD on the copyright-infringement cases brought by MIPI. He said the Judge came down in favour of the recording industry on all counts...contradicting the "5 out of 6 charges dropped" comments mentioned below. This is probably the best piece to read...
ZDNet Australia: For those who missed it, last week Australian Judge Tamberlin declared that ISP ComCen and employee Chris Takoushis were guilty of "permitting or sanctioning and facilitating" copyright infringement for a page of links to MP3s put up by one of its customers. Some of the comments claim that 5 out of 6 charges were dropped, but I've yet to see the detailed analysis that followed the Grokster/StreamCast case, so to be honest I don't really know what is going on -- despite following the story in person for more than a year. One interesting media spat has been Peter Coroneos (head of Internet Industry Australia) downplaying the effect of the verdict, claiming that the case was very unique because the ISP in question had actively cooperated with the user. In response, Michael Kerin -- the new head of the Music Industry Piracy Investigations -- claimed the IIA was taking a 'head in the sand' approach because "Most relationships between ISPs and their customers would...feature a benefit being delivered to the ISPs, whether it be advertising and, or, increased traffic flow or otherwise".
Chris Jenkins at The Australian finished his article with a quote from the judgement:
"I do not accept that Bal and Takoushis were unaware of the contents of the site," Justice Tamberlin wrote..."The repeated evasiveness of Bal and Takoushis under cross-examination, their lack of frankness, and their failure to acknowledge an acquaintance with some basic matters of terminology such as 'webmaster' and 'MP3 files', support a conclusion that they were both involved in and aware of some problems with the operations of the website but decided no to further investigate or take any effective action in relation to the hosting of the website." Which is the first indication I've found that any journalist has actually read the judgement, or even parts of it.

Internet Archive Sued For No Good Reason

New York Times: Healthcare Advocates of Philadelphia sued Health Advocate for trademark infringement...Law firm Harding Earley Follmer & Frailey acted for the defence, and searched the The Wayback Machine for past pages of the website of Healthcare Advocates. "Last week Healthcare Advocates sued both the Harding Earley firm and the Internet Archive, saying the access to its old Web pages, stored in the Internet Archive's database, was unauthorized and illegal".
Sound a little stupid, especially considering the web pages were originally publically available? Yup. Healthcare Advocates had a robots.txt file on their site that instructed the Wayback Machine not to show past pages, but robot.txt files are more of a gentleman's agreement than a legally binding document, and the idea of taking down previously called pages goes above and beyond the norm. The Wayback Machine blocked most requests for the pages sought by the law firm, but a few got through.
"William F. Patry, an intellectual property lawyer with Thelen Reid & Priest in New York and a former Congressional copyright counsel, said that violations of the copyright act and other statutes would be extremely hard to prove in this case...He said that the robots.txt file is part of an entirely voluntary system, and that no real contract exists between the nonprofit Internet Archive and any of the historical Web sites it preserves..."The archive here, they were being the good guys," Mr. Patry said, referring to the archive's recognition of robots.txt commands. "They didn't have to do that."

Google, Amazon Sued For Third Party Copyright Infringement

Red Herring: Adult entertainment company Perfect 10 is suing Amazon and its search engine A9 claiming the site gives a "sneak peek" at Perfect 10 content. In November last year the company filed a similar suit against Google.
“Google is no longer a legitimate search engine. It is a commercial advertising operation determined to increase ad revenue regardless of what rights it tramples on in the process," said Perfect 10 publisher Norm Zada...Mr. Zada, who’s also been publishing a magazine for eight years, said much of the search engine traffic is sex related and he claims it generates billions of dollars a year in revenue. He is determined to fight his case on the basis that Google and Amazon’s A9 are not search engines but "massive advertising operations."
This is much the same argument used by the recording industry against peer-to-peer networks, and the search engines appear to be being targeted for much the same reason -- they've got cash and are easier targets than the people actually doing the infringing.

Microsoft Indemnifies Partners From Intellectual Property Suits

WebProNews: Microsoft is offering uncapped coverage for legal fees and a broader range of claims protection for its partners in a bid to head off concerns amongst its customers they could get sued for IP infringements. "Combined, those businesses represent $18 billion USD of revenue annually to Microsoft. There have been concerns that IP disputes similar to the one brought successfully against the company by a Guatemalan programmer could spread to affect them."

Supreme Court Rules Against p2p, Sort Of

Well, the Supreme Court in the United States has ruled on the Grokster Vs MGM case, and came down unanimously against Grokster...but not against p2p technology. From the general discussion it appears that the judges ruled that peer-to-peer technology is legal but promoting that it be used for infringing copyright is illegal. The Court Opinion is here as a PDF, and states: "The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients
use it to download copyrighted works, and each took active steps to encourage infringement."
Some Opinions:
BillboardPostPlay: Todd Beals joined the conference call put on by RIAA and MPAA, which labeled the decision "commonsense" and indicated they may now be prepared to work with filesharing technology...apparently having realised that its a far better distribution system than anything they've come up with and will be of enormous benefit to them.
InternetNews.com:Obviously, Grokster and StreamCast are unhappy with the decision, describing it as "Orwellian". Their main beef seems to be that it is not clear what constitutes "inducement to infringe copyright" and this murkiness will lead to the record labels becoming the "thought police". "What the court did today was to write a set of standards whose most notable immediate feature was their lack of clarity," says Rich Taranto, a partner with Farr and Taranto who argued the case for Grokster. (quote taken from the following article)
BillBoardRadioMonitor: Tech companies across the board are troubled by the ruling, apparently due to the same lack of clarity that Grokster complained of. "We do have those concerns," says David Pakman, eMusic COO. "We don't think that stings us down the road based on the current service we have. But we constantly look at new features that we can deploy that may have a combo of infringing and non-infringing use. We now have to question if we can offer a feature that can be used legally by our users but illegally by others, are we liable? That puts a cloud over development activities over innovating new features."..."It's not that we're worried about bad conduct being caught," adds Black. "It's that a whole lot of benign and ambiguous content is now subject to challenge with all the heavy burden that entails."
PC Mag: Lawrence Solum, John E. Cribbet Professor of Law at the University of Illinois College of Law, thinks the decision is a big win for p2p companies -- other than Grokster and StreamCast, of course. "The court laid out what should be avoided in internal memoranda and advertising," Solum said. "With this information, P2P services and software developers can easily figure out how to immunize themselves from prosecution." He seems to be by himself with this claim...
Corante:A cadre of lawyers debating copyright is going to keep talking about this for weeks...or longer...but there are a lot of good things here to read if you want to go into a lot of depth.
As a side note, my old stomping ground ZDNet Australia has reported that two sys-admins for an Australian ISP are being sued for copyright infringement because of actions of the ISPs customers..."The labels allege Swiftel's senior systems administrators Melissa Ong and Ryan Briggs ignored calls to remove Web sites that were in breach of copyright, and instead "treated the infringement notices like spam."

King's Lawsuit Misery

Daily Telegraph: Anne Hiltner, a freelance writer from New Jersey, claims Stephen King's sadistic nurse Annie Wilkes from his book Misery is based on her. She's suing King for $500 million for invading her privacy...
"The lawsuit also accuses King and his distributors of defamation, copyright infringement and violation of anti-trust laws for using her private diaries to create psychic Sally Druse, a similarly frightening character in King's television mini-series The Journals of Eleanor Druse: The Kingdom Hospital Incident."
The defamation claim is a bit rich -- I doubt anyone had made the connection before she started kicking up a fuss...

Supreme Court Refuse to Hear Beastie Boys

NobodySmiling.com: The US Supreme Court has refused to hear a case of copyright infringement brought by a jazz flutist against the Beastie Boys, meaning the decision of a lower court in favour of the Beastie Boys will stand.
"The appellate court ruling conculded that James W. Newton did not have any legal ground to sue the Beastie Boys. Newton had claimed that even though the group did indeed pay a fee to license the six-second, three-note portion of Newtons musical composition from his publisher and record company, the Beastie Boys did not pay him specifically for rights to the work."
This is a good result, considering the Beastie Boys paid a license, they obviously tried to do everything completely legally...

Karaoke CD Label Sues Rivals Over Issue of Licensing

New York Times (reg required): This article is interesting because it's not the record labels suing karaoke vendors for not paying licence fees, but one karaoke vendor suing seven other karaoke vendors for not paying licence fees and thereby undercutting her business...
I also wrote about karaoke here, sort of...major record labels have been (accused of) pressuring mobile content portals not to accept 'cover version' ringtones by companies that pay musicians to record the tunes. The labels have insinuated the practice is illegal, even though the companies making the ringtones pay the appropriate licence fees...

Open Source: Chicken Little and Age-Appropriate Explanations

TechNewsWorld: This is a fantastic article...it's by a lawyer specialising in intellectual property, and starts off explaining why lawyers are (or were) so scared of open source software and why the attitude was wrong. It then goes on to say why software patents are not a big problem (although the argument does seem to be based on the idea that nothing bad has happened yet) because open source is inherently resistant to such claims, and then takes a sideswipe at the DMCA (I'm pretty sure, anyway).

One thing though, the author appears to have missed the whole Windows Vs Lindows trademark infringement suit...

RIAA File-Sharing Lawsuits Top 10,000 People Sued

Slashdot: There's a post about RIAA having sued more than 10,000 people over copyright infringements on p2p networks, that includes links to a couple of articles about why p2p programs aren't bad for the music industry and why RIAA shouldn't be suing for as much as they are (I have no idea how valid the papers are, you'll have to work that out for yourself). What's better is the thread, where a lawyer (or someone who speaks incredibly like a lawyer) has a discussion, and answers a lot of smartarse comments with the kind of patience that comes from reading details records of 50-year-old court cases.

They have yet to prove I HAVE a computer.

Well, it's that you, at the time had one. They just want to look at it now. If you didn't have one, you need only say so. But don't lie, since then you start getting into trouble.

You seem to keep trying to lie in order to escape justice. This usually comes out in the end, and it doesn't work well for you.