Privacy Digest

Oregon Judge Says RIAA Made 'Honest Mistake,' Allows Subpoena - Via Slashdot :

NewYorkCountryLawyer writes "In Arista v. Does 1-17, the RIAA's case targeting students at the University of Oregon, the Oregon Attorney General's motion to quash the RIAA's subpoena — pending for about a year — has reached a perplexing conclusion. The Court agreed with the University that the subpoena, as worded, imposed an undue burden on the University by requiring it to produce 'sufficient information to identify alleged infringers,' which would have required the University to 'conduct an investigation,' but then allowed the RIAA to subpoena the identities of 'persons associated by dorm room occupancy or username with the 17 IP addresses listed' even though those people may be completely innocent. In his 8-page decision (PDF), the Judge also 'presumed' the RIAA lawyers' misrepresentations were an 'honest mistake,' made no reference at all to the fact, pointed out by the Attorney General, that the RIAA investigators (Safenet, formerly MediaSentry) were not licensed, rejected all of the AG's privacy arguments under both state and federal law, and rejected the AG's request for discovery into the RIAA's investigative tactics."

(Read Original Article - Via Slashdot .)

Why MPAA Should Lose Against RealDVD - Via EFF.org Updates:

Earlier this week, the motion picture industry sued RealNetworks over its RealDVD software. The MPAA companies also asked for an immediate temporary restraining order (TRO) to block Real from distributing the product, which allows consumers to copy their DVDs onto their personal computers for later playback.

There are many obvious reasons why this is a short-sighted and futile gesture by the studios (as Jon Healey of the L.A. Times points out), but let's focus just on the fatal flaws in their legal theory. (We've posted the key legal documents, including TRO briefs, for those who want to read them and form their own opinions.)  read more »

RIAA Lawsuit Campaign Losing Credibility - Via EFF.org Updates:

San Francisco - Five years after the Recording Industry of America (RIAA) began its massive litigation campaign against music fans suspected of sharing copyrighted music files over the Internet, the campaign has failed to get artists paid or reduce peer-to-peer (P2P) file sharing. Meanwhile, the legal foundation of the campaign is being questioned by several federal courts.

Since September of 2003, the recording industry has leveled legal threats against close to 30,000 American music fans. In a report released today, "RIAA v. The People: Five Years Later," the Electronic Frontier Foundation (EFF) presents a comprehensive overview of the RIAA's litigation campaign and concludes that it is hurting music fans and artists alike, without making a dent in unauthorized file-sharing. The report notes increasing skepticism by courts, academics and state watchdog groups about the RIAA's investigation tactics and legal theories. For example, judges have repeatedly rejected the RIAA's "making available" theory, the notion that merely having a music file in a "shared" folder on a computer constitutes copyright infringement, even if no one ever copies the file. Just last week, a federal judge ordered a new trial for Jammie Thomas, found liable for more than $220,000 because the jury had been instructed erroneously that liability could be premised on this "making available" theory.

"If the RIAA wants to keep suing hundreds of people each month and collecting these huge settlements, it can't take shortcuts," said EFF Staff Attorney Corynne McSherry. "It's not enough to say the law 'could have been' broken and demand thousands of dollars to make the accusation go away. The recording industry must prove its case and show that infringement actually occurred."  read more »

MPAA, RealNetworks Wage Court Battle Over DVD-Copying Software - Via Threat Level:

RealNetworks and the Motion Picture Association of America are suing one another over whether movie fans can copy their DVDs.

The Tuesday lawsuits came the same day RealNetworks released RealDVD, a $30 application allowing movie fans to easily make copies of their DVDs using their computer.

The Seattle company asked(.pdf) a federal judge to fend off a legal challenge brought the same day by the Motion Picture Association of America. The MPAA -- the litigation and lobbying arm of the Hollywood studios whose grip on the DVD is at a crossroads -- is demanding(.pdf) that a judge block(.pdf) the sale of RealDVD.

"RealNetworks’ RealDVD should be called StealDVD," said Greg Goeckner, the MPAA's executive vice president and general counsel. "RealNetworks knows its product violates the law."  read more »

And Walmart Makes Three: Another Music Service Plans to Shut Down DRM Support - Via EFF.org Updates:

Following in the footsteps of MSN Music and Yahoo! Music, Walmart has notified customers that it will be shutting off its DRM servers in less than two weeks. Walmart's been selling DRM-free music since February, but anyone who bought music before that date will not be able to transfer those songs to “unauthorized computers,” or access the songs after changing operating systems. Walmart, like MSN and Yahoo!, advises customers to back up their music to a CD if they want to be able to access it in the future. So, Walmart customers get to invest more time, labor and money in order to continue to enjoy the music for which they have already paid.

We’ve warned music fans for years that they could lose their DRM-wrapped music if vendors decided to withdraw support for it. So we're not surprised that three major vendors have done just that. What is surprising is that Walmart has not learned from MSN Music and Yahoo! Music's experience and made some effort to make things right with its customers.  read more »

Slashdot | Positive Rights News From Europe - Via Slashdot :

Various readers are sending in good news from Europe on the rights front. First, at the EU level, Mark.J brings word that the European Parliament has canned a number of controversial amendments to its updated Telecoms Package, which could have resulted in ISPs being forced to disconnect customers for involvement in illegal file-sharing of copyrighted material. Next, SplatMan_DK writes from Denmark on a recent ruling by the Danish High Court that means that Danes are still innocent until proven guilty  read more »

Senate Passes Bill Creating 'Copyright Czar' - Via Threat Level:

U.S. lawmakers approved the creation of a cabinet-level position of copyright czar as part of sweeping intellectual property enforcement legislation that sailed through the Senate on Friday.

However, a controversial measure granting the Justice Department the authority to sue copyright infringers on behalf of Hollywood and the music industry was removed after the White House
lobbiedagainst assuming those new powers.

The legislation's passage underscores the importance lawmakers place on protecting intellectual property. The entertainment industry says it loses billions of sales a year to piracy.  read more »

EFF Urges Court to Protect Innovation in Arista v. Lime Wire - Via EFF.org Updates:

New York - The Electronic Frontier Foundation (EFF) and a coalition of groups representing both consumers and industry filed an amicus brief today in the first major lawsuit since MGM v. Grokster against a creator of peer-to-peer (P2P) filesharing software, warning that the case has profound implications for the development of new software and hardware.

In Arista v. Lime Wire, the recording industry plaintiffs seek to hold Lime Wire liable for acts of copyright infringement by users of its software. In its amicus brief, EFF urges the court to apply the law in a manner that will not chill technological innovation and to reaffirm that developers should not be held liable for copyright infringement based on misuses of their technology that they did not actively promote.  read more »

Thomas Mistrial Decision Bolsters RIAA Litigation - Via Threat Level:

For those keeping tabs on the Recording Industry Association of America's 5-year-old litigation campaign, a federal judge's decision late Wednesday declaring a mistrial in the Jammie Thomas case was a significant event.

The judge's ruling in the nation's first and only file sharing case to go before a jury was substantial for two reasons: It nullified an almost foolproof method for the RIAA to prevail in cases and replaced it with another.  read more »

New Lobbying Group Calls for Internet Filtering - Via Threat Level:

A just-formed lobbying group of content producers, equipment makers and internet gatekeepers said Thursday that internet service providers should embrace filtering.

Behind the lobby are AT&T, Cisco Systems, Microsoft, NBC Universal, Viacom and the Songwriters Guild of America. Among other things, the lobby, called Arts+Labs, says "network operators must have the flexibility to manage and expand their networks to defend against net pollution and illegal file-trafficking which threatens to congest and delay the network for all consumers."

The creation of the lobbying group came almost two months after the Federal Communications Commission issued an open invitationto ISPs to filter for unauthorized copyright material. The Aug. 1 invite was buried in the text of the FCC's stinging rebukeof Comcast for throttling BitTorrent and other peer-to-peer traffic.

AT&T and NBChave already made it clear they support blocking streams of unauthorized works, for obvious reasons. NBC and the songwriters want to get paid for their works. and AT&T supports filtering because it could reduce high-volume, peer-to-peer traffic.

And Cisco has the means to produce filtering equipment, while Microsoft has recently secured a patentto watermark music and track it through the internet.  read more »

Entertainment Lobby Calls for Internet Filtering - Via Threat Level:

It didn't take long for a consortium of content producers, equipment makers and internet gatekeepers to cling to a Federal Communications Commission decision embracing internet filtering.

Buried in the text of the FCC's stinging rebuke of Comcast for throttling BitTorrent and other peer-to-peer traffic was an open invitation to ISPs to filter for unauthorized copyrighted material. That August 1 invitation was embraced Thursday by a newly formed lobby named Arts + Labs.

Behind the lobby is AT&T, Cisco Systems, Microsoft, NBC Universal, Viacom and the Songwriters Guild of America. Among other things, the lobby says "network operators must have the flexibility to manage and expand their networks to defend against net pollution and illegal file trafficking which threatens to congest and delay the network for all consumers."  read more »

YouTube Anti-Scientology Takedowns: Good News, Bad News - Via EFF.org Updates:

Now that the dust has settled on the anti-Scientology video takedown controversy, it's time to take stock. For those of you who missed this one: on September 4th and 5th, hundreds and possibly thousands of videos critical of the Church of Scientology were taken down as a result of DMCA notices reportedly sent by by American Rights Counsel, Dr. Oliver Schaper, the Schaper Company, Media House Enterprises, and ContentFactory America. It rapidly became clear that these entities did not hold the copyrights to the materials they claimed to be infringed, including footage from a Clearwater City Commission meeting and a man-on-the-street interview. In addition, many of these videos were obvious fair uses, such as independent news reports.

Here’s the good news: YouTube quickly realized something was fishy, and began investigating. Within days, YouTube suspended the accounts that had sent out the allegedly fraudulent DMCA takedown notices, reinstated the accounts that had been suspended for multiple allegations of copyright infringement, and put most of the videos back up on YouTube, all without waiting to receive DMCA counter-notices from YouTube users who had had their videos taken down.  read more »

Judge Declares Mistrial in RIAA-Jammie Thomas Trial - Via Threat Level:

A federal judge on Wednesday set aside the nation's first and only federal jury verdict against a peer-to-peer file sharer for distributing copyrighted music on a peer-to-peer network without the labels' authorization.

U.S. District Judge Michael Davis of Duluth, Minnesota, declared a mistrial in the case of Jammie Thomas, a Minnesota mother of three, setting aside the $222,000 penalty levied by a federal jury last year for copyright infringement -- $9,250 for each of the 24 infringing music tracks she made publicly available on the Kazaa file sharing network.

Davis' decision means the Recording Industry Association of America's five-year copyright infringement litigation campaign has never been successful at trial.  read more »

Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower Statutory Penalties for P2P - Via EFF.org Updates:

Joining the ranks of federal district judges in Arizona and Massachusetts, District of Minnesota Chief Judge Michael Davis today concluded [44-page PDF] that simply making a music file available in a shared file does not violate copyright law, and ordered a new trial in Capitol Records v. Jammie Thomas.

The case made headlines last year as the first peer-to-peer file-sharing case to go all the way to trial. In October 2007, a jury held Thomas liable and awarded $222,000 in damages to the record companies, based in whole or in part (it wasn't clear) on an instruction that merely making a file available violates a copyright owner's distribution right.  read more »

Bush Administration Opposing Expanded Justice Department Copyright Enforcement Powers - Via Threat Level:

The Bush administration is opposing sweeping legislation granting it the ability to prosecute civil cases of copyright infringement.

The legislation, backed by Hollywood, labor unions and manufacturers, sailed through the Senate Judiciary Committee, 14-4, on Sept. 11.

In a letter (.pdf) to Sens. Patrick Leahy and Arlen Specter, who were among the sponsors of the legislation, the Justice Department wrote Tuesday it "strongly" opposes expanding its powers. Doing so, the letter said, could undermine the department's prosecution of criminal cases and transform it into an office "serving as pro bono lawyers for private copyright holders."

The Justice Department said the private sector should remain responsible for enforcing its copyrights in federal civil lawsuits.  read more »