Privacy Digest

Wink Wink: RealNetworks Says Don't Copy Rented DVDs - Via Threat Level:

While urging a federal judge not to pull the plug on its DVD-copying software, RealNetworks told a federal judge there's no harm to the movie studios because consumers are only supposed to reproduce their personal movies, not rented ones.

The argument was taking a page right out of head shops that warn consumers that the colorful glass bongs and pipes on display are for tobacco use, not "illegal substances." 

RealNetworks' made the statement at the tail end of a three-hour federal court hearing Tuesday to U.S. District Judge Marilyn Hall Patel. She was hearing last-ditch arguments on why she should not bar the sale of RealNetworks' $30 DVD copying software.  read more »

Piracy Statistics and the Importance of Journalistic Skepticism - Via Freedom to Tinker:

If you've paid attention to copyright debates in recent years, you've probably seen advocates for more restrictive copyright laws claim that "counterfeiting and piracy" cost the US economy as much as $250 billion. When pressed, those who make these kinds of claims are inevitably vague about exactly where these figures come from. For example, I contacted Thomas Sydnor, the author of the paper I linked above, and he was able to point me to a 2002 press release from the FBI, which claims that "losses to counterfeiting are estimated at $200-250 billion a year in U.S. business losses."

There are a couple of things that are notable about this. In the first place, notice that the press release says counterfeiting, which is an entirely different issue from copyright infringement. Passing stronger copyright legislation in order to stop counterfeiting is a non-sequitur.

But the more serious issue is that the FBI can't actually explain how it arrived at these figures. And indeed, it appears that nobody knows who came up with these figures and how they were computed. Julian Sanchez has done some sleuthing and found that these figures have literally been floating around inside the beltway for decades. Julian contacted the FBI, which wasn't able to point to any specific source. Further investigation led him to a 1993 Forbes article:  read more »

Government Painfully Fuzzy on the Effects of Infringement - Via EFF.org Updates:

Last week, the U.S. Chamber of Commerce urged President Bush to sign the PRO-IP Act, claiming that "counterfeiting and piracy of [intellectual property] is a growing problem that costs U.S. businesses nearly $250 billion in revenue each year [and] has already caused the loss of an estimated 750,000 American jobs..." Both figures, $250 billion and 750,000 jobs, are cartoonishly large and have activated the investigatory instincts of some smart reporters. What have they found?  read more »

Judge's Top Secret Decision Blocks Sale of DVD-Copying Software - Via Threat Level:

A federal judge has issued a secret, interim order blocking the sale of RealNetworks' DVD-copying software, RealDVD, two sources said Monday.

In an unusual move, the judge presiding over the MPAA's federal copyright lawsuit against RealNetworks also instructed both parties not to disclose the existence of the restraining order to the public.

U.S. District Judge Marilyn Hall Patel, who previously presided over the original Napster litigation, issued the tentative decision late Friday, the sources said. As of this writing, the electronic court docket does not reflect a sealed decision in the case, although RealNetworks informed consumers on its websitethat, "Due to recent legal action taken by the Hollywood movie studios against us, RealDVD is temporarily unavailable."  read more »

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 »

Court Protects Privacy of Satellite Receiver Owners - Via EFF.org Updates:

Last month, EFF filed an amicus brief in Echostar v. Freetech, where Echostar sought the identities of every consumer who purchased a Freetech "CoolSat" free-to-air (FTA) satellite receiver during the past five years. EFF argued that this demand, issued in discovery in a lawsuit between Echostar and Freetech, represented an unwarranted intrusion into the privacy of individual consumers. Today, the court agreed, issuing an order blocking Echostar's subpoenas.

The ruling potentially sets an important precedent, as it represents the first time a federal court has explicitly rejected a third-party subpoena on the basis of the privacy interests of nonparty consumers.  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 »