Kicking People Off The Internet Not Enough In South Korea, Copyright Lobbyists Demand More

from the it-never-ends dept

If you thought that the entertainment industry would stop at having the ability to force ISPs to kick people they accuse (not convict) of file sharing offline, you might want to pay attention to what's happening in South Korea. South Korea, of course, is home to very high broadband penetration, with exceptionally high speeds. And, not surprisingly, there's a lot of unauthorized file sharing going on there. Of course, if you looked at the Korean cultural world, you'd immediately learn that smart entrepreneurs and entertainers quickly learned to adapt and take advantage of this new world. Entrepreneurs like JY Park recognized the changing marketplace, and adapted -- and the massive success he's had with artists like Rain and Wonder Girls, suggests that perhaps "piracy" wasn't a big deal. All you need is some smart business people who can adapt.

But, of course, we've all seen what sorts of companies are afraid to adapt. The big record labels and the big movie studios couldn't be bothered with the tricky proposition of actually understanding the new marketplace and adjusting their business model. So, they went to the US government and said "something must be done." That "something" turned out to be a new "free trade" (ha ha!) agreement with South Korea, that had little to do with free trade, but plenty to do with pushing ridiculously draconian copyright laws on South Korea (i.e., protectionism for the entertainment industry, not free trade). Of course, these new laws went way beyond what any other country had, and included getting the government to shut down file sharing sites while restricting how user-generated content sites could work as well. Not surprisingly, once the law passed, various sites began restricting how they could be used, even limiting the uploading of any songs, even ones that users themselves had created. And, of course, with all that, a "three strikes" plan to kick people off the internet was also included.

You would think that the industry would be happy and leave well enough alone, right?

Of course not. Reader Dan alerts us to the news that some entertainment industry lobbyists are now demanding that all file sharing services must use content filters. Otherwise, they plan to sue. Just another reminder that for some of these folks, enough will never be enough. They will keep pushing for more and more, just as consumers keep pushing back on having their own rights stripped away.

And, don't think this is limited to South Korea. Many of the "leaked" points about the needlessly secretive ACTA deal are supposedly "based on" the trade agreement that was done with South Korea. So take a look at what's happening there and see if that's how you think copyright law should work in the US.

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Good News/Bad News In Brazil: Effort To Legalize Mashups... But Google Liable For User Actions

from the ah,-brazil dept

These two submissions came in one after the other, both having to do with Brazil, so I decided to just mix them together into a single post. Of course, it's a bit of a good news/bad news sorta thing. Let's start with the "bad news." Reader Stuart Waterman alerts us to the news that Google, owner of Orkut (the social network that is amazingly popular in Brazil for reasons still unclear) has been ordered to pay Formula 1 racer Rubens Barrichello $500,000 because there were fake profiles of him on Orkut. If this were the US, the case would have been tossed out on Section 230 grounds (noting that the service provider is not liable for the actions of users -- even though the users may be liable). But the Brazilian court apparently said that Google is, in fact, liable because it manages the site. If you're a service provider in Brazil, you just got a reason to lock down any sort of user-generated offering. Of course, this has happened before to some extent. Remember that a Brazilian court once tried to get YouTube shut down entirely due to an uploaded video that someone didn't like.

On to the good news. Carl alerts us to the news that Brazil is considering a new copyright law that would legalize mashups and private copies. It would also allow the reproduction of out of print works. Of course, this is just the proposed bill, and you can expect that the entertainment industry is about to send in the lobbyist army to fix things up quickly. On the whole, though, Brazil has been quite good about recognizing the downsides to overaggressive copyright law. In fact, Gilberto Gil, a grammy-award winning musician and Brazil's former minister of culture, released his music under a Creative Commons license, and has regularly spoken out against abuses of intellectual property law. And, of course, we've seen stories about how forms of Brazilian music have thrived by taking advantage of the easy promotion and distribution allowed by file sharing. It would be nice if the country's laws were updated to reflect that.

Now, if only they could also change the laws to stop blaming service providers for the actions of users, then Brazil would get it all right this time.

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New Law Could Hold Service Providers Liable For Investor Misrepresentations

from the safe-harbors? dept

In general, we're big fans of the safe harbors found in the DMCA and the CDA, as they do what common sense should do instead: make sure that a third party is not held liable for actions of its users. Unfortunately, common sense isn't always so common, and some people have trouble understanding this concept. In fact, it appears that a new bill may go in the other direction when it comes to investor information. A proposed bill that is supposedly designed to allow the SEC to better protect investors from bad info would potentially hold service providers liable for information posted by users if the service provider has "actual knowledge that the material contains a misrepresentation [or] in the absence of actual knowledge, is aware of facts or circumstances from which it is apparent that the material contains a misrepresentation [and] upon obtaining such knowledge or awareness, fails to act expeditiously to remove, or disable access to, the material."

That would go against the basic Section 230 CDA safe harbors, so I'm not quite sure how you reconcile the two. In general, you can understand why it seems to make sense that service provider needs to remove such info, but it opens up all sorts of questions. Say someone in our comments posts some sort of misrepresentation. Are we now going to need to police that? If someone else tells us it's a misrepresentation, will we now need to delete the comment? Are we expected to investigate whether or not some random comment on the site is a misrepresentation? Policing such things on forums all over the place would place an incredible burden on any website that allows user generated content. Why not keep the Section 230 safe harbors and focus on holding the actual parties (those who posted it) responsible, rather than the tools they use?

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Zazzle Sued Because Twilight Fans Like Making Their Own Merchandise

from the safe-harbors-anyone? dept

It looks like "print-on-demand/create your own t-shirt/mug/mouse pad store" company Zazzle has been sued for infringement by Summit Entertainment, who owns the licensing rights to the oh-so-popular Twilight movies. Apparently, all those excited tweens have been making their own Twilight merchandise. Now, basic common sense would tell you that Zazzle is the tool provider, and not the actual infringer here. But, Summit is claiming trademark violations, and (tragically and inexplicably) the official safe harbors cover things like copyright and defamation, but not trademark (hurray for legal loopholes). The only ones doing the actual infringement are the users, not Zazzle itself, but Zazzle has to hope that a court actually realizes this, and sometimes the courts get very, very confused on these sorts of things.

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Japanese Prosecutors Still Want To Blame Developer Of File Sharing Program For Copyright Infringement By Users

from the too-bad dept

We were happy earlier this month to learn that the Osaka High Court had overturned a lower court ruling, against the creator of the popular Japanese file sharing service, Winny. The lower court had found the guy guilty of copyright infringement, despite having just developed the software, not having used it to infringe on copyrights. The higher court got it right, recognizing that just because the software could be used for copyright infringement does not mean that the developer is automatically guilty of copyright infringement. Unfortunately, Japanese prosecutors didn't recognize the common sense and basic logic of such a ruling and are now appealing the case to the Supreme Court in Japan. Hopefully, the Supreme Court agrees with the Osaka high court, but either way, this seems like a massive waste of time and resources.

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Copyright Holders Shutting Down University Copy Shops; Libraries Need To Worry About Photocopier Infringement

from the librarians-beware dept

It looks like copyright holders, in their non-stop effort to make themselves look even more evil, are now aggressively going after university copy shops. Up in Canada, Access Copyright hasn't just won a legal dispute against a Toronto copy shop, but has gleefully seized the photocopiers from the shop. Then, not all that far away in Eastern Michigan, a court found a copy shop to be directly liable for copies made by students. As the post at the Exclusive Rights blog explains, you would expect the copy shop to be liable for secondary infringement, rather than directly liable... but not in this case. And that's problematic for a variety of reasons. Even the publishers in question didn't seem to think they had a chance on direct liability, and only mentioned it in one sentence, while most of the complaint focused on secondary liability. So why is this a problem?

The reason this matters is that to find someone to be liable under secondary infringement (contributory liability), a plaintiff must show that the defendant had knowledge or reason to have knowledge of the direct infringement. This is one of the two mechanisms, along with fair use, that shields libraries from liability if they keep a copy machine by their shelves. If an entity can be directly liable for providing and maintaining a copy machine, and taking payment for copies made on the machine, then libraries have lost a not insignificant shield.

So, watch out librarians. You may have just acquired a bunch of liability. Look out for copyright holders stopping by to seize your photocopiers. Update: The author of that original post, Shourin Sen, has added an update, to take into account questions some people raised concerning 17 USC 118(f) which provides a special exemption for libraries -- but notes that those safe harbors could be under attack as well.

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IAB Takes On FTC Over Silly Blogger Disclosure Rules

from the good-for-them dept

While more disclosure is generally a good thing, the FTC's new guidelines for blogging disclosure have some pretty massive problems, and probably aren't legal. As more and more people are recognizing this -- and interviews with the FTC folks in charge of this suggest they either haven't put very much thought into this issue or they don't quite know how the world works outside of their government cocoon -- the backlash is growing. Now, the Internet Advertising Bureau (IAB) has stepped in with quite the open letter to the FTC, asking them to scrap the rules, while noting (snarkily) how impossible they are to follow, in practice:

So there I was last Saturday, about to send out on my Twitter feed -- which automatically updates my Facebook page and links to my personal blog -- a photograph of this wonderful baked halibut dish I'd just made as a surprise for my wife. I was in the middle of typing a rave review of the recipe, which I'd pulled from my favorite cookbook, Delicioso! The Regional Cooking of Spain by Penelope Casas. But before I could press the "post" button, I stopped and canceled the whole thing.

I remembered that the book was a freebie, sent to me by an editor at the Alfred A. Knopf publishing house 13 years ago. And I didn't want you guys to haul me into court and fine me for violating the rules you've just promulgated to muzzle social media.

While this may seem silly, it really does highlight the problems with the FTC's rules. They're totally unclear and absolutely could concern things like this. Getting a free book here or there happens all the time -- and the FTC actually claimed that if people don't return them, then they may face sanctions. That's ridiculous. Last month, we ran a fun contest for people to win free copies of a Kevin Smith book. If the winners from our comments mention that book anywhere online, do they need to mention they got the book for free? If they mention it to a friend, do they need to do the same thing? Because most of the time when posting stuff online, people really are just talking to their friends.

Again, it's not clear why people can't just sort this out themselves. People who post bogus reviews of things because someone pays them to, or because of something "free," are going to get called out on it eventually and lose their credibility. When people talk amongst friends, they don't reveal where they got the products they talk about, or if they happened to get a promotional sample -- and that's fine. While you can understand where the FTC is coming from, it really has gone overboard with these rules.

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Craigslist's Dumb Lawsuit Against Spam Tools Provider

from the what-are-they-thinking? dept

It's hard to come up with an adjective to describe Craigslist's decision to sue Red Trumpet other than "dumb." Nothing good will come of this lawsuit for a variety of reasons, and Craigslist is asking for trouble in filing it. Now, I can understand why it sounded like a good idea. Last year, we wrote about the increasing problem of spam on Craigslist, highlighting how a variety of spammers had figured out ways around each attempt by Craiglist to stop the spam. And, yes, we absolutely agree that spam on Craigslist is a problem and a nuisance, and it's good that Craigslist is working hard to try to stop it. But that doesn't make this lawsuit make sense. The full lawsuit is below (it's a bit long), and highlights all of the different claims that Craigslist is making against Red Trumpet, a company that offers tools and services to help advertisers post messages on Craigslist (some of which may be spammy, though, certainly not all):

So what are the problems? Well, as Eric Goldman notes, Craigslist is "playing with fire" on a variety of legal doctrines, almost all of which could come back to bite Craigslist. For example, Craigslist is blaming Red Trumpet -- a service provider -- for the actions of its users in spamming the site. Think about that for a second. For the past couple of years, law enforcement officials have been trying to use that exact argument against Craigslist over things like prostitution posts on the site -- to which Craigslist has always put forth a strong defense that as a service provider (under Section 230 of the CDA) it's not liable for the actions of its users. Does Craigslist really want to try to establish a precedent that would chip away at Section 230 protections?

Next, Craigslist is making a really weak DMCA claim here. It's claiming that its various anti-spam technologies (captchas, phone verification, etc.) act as "technological protection measures" that Red Trumpet is circumventing... and thus running afoul of the DMCA's anti-circumvention rules. But the circumvention has nothing to do with violating Craigslist's "copyright," though the lawsuit makes a half-hearted attempt to claim that it does.

Then, there's the trademark claims. There are a few different ones, but it argues that Red Trumpet is violating Craigslist's trademark by mentioning Craigslist on its website and in its ads. While again, you can see why this is annoying to Craigslist, if the company is accurately describing services it provides (the ability to post on Craigslist) it's difficult to see the "confusion" being caused. The ad in question doesn't appear to imply any endorsement at all by Craigslist. And, does Craigslist really want to open up a can of worms concerning trademarks being used in ads? After all, there must be a ton of posts on Craigslist that mention trademarks.

Finally, there's Craigslist claiming that Red Trumpet violates the Computer Fraud and Abuse Act by accessing its site despite violating its terms of use. Does this sound familiar? It's the same argument that was used to try to punish Lori Drew, and was recently tossed out by a judge. Basically, it's claiming that if you happen to violate the terms of use of a site, and then still access the site, you've effectively "hacked" into the site. This is a really bad reading of the law, which is why it was good that the Drew ruling got tossed out. So why is Craigslist trying to re-establish that as a rule?

Yes, clearly, Craigslist is upset about the spam on the site -- and it should be. Plenty of users are upset about it, and Craigslist wants to help those users, help itself and stop the spam. But this particular lawsuit, with these claims, seem highly problematic -- such that even if Craigslist wins, the precedents it sets could come back to haunt Craigslist... and many other parts of the internet as well. Is Craigslist really so desperate to stop spam that it's willing to do all this other damage as well?

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Japanese High Court Realizes That Developer Of File Sharing Software Shouldn't Be Liable For Infringement

from the good-news dept

Back in 2006, we were disappointed by a Japanese court decision that found the developer of the popular (in Japan) file sharing software Winny, guilty of copyright infringement. The issue, like in so many other cases around the world, was whether or not, by just creating the software, he had "induced" infringement. But by blaming the developer of software for how others use it, the courts put a significant chill on innovation. It suddenly creates massive liability for any developer. The case was appealed, and the good news (via Slashdot) is that Japan's High Court has overturned the lower court's decision, saying:

"Merely being aware of the possibility that the software could be abused does not constitute a crime of aiding violations of the law, and the court cannot accept that the defendant supplied the software solely to be used for copyright violations."

Nice to see common sense win every once in a while.

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More Problems With The FTC's New Disclosure Rules: Free Speech And Liability Problems

from the disclose-everything dept

I've already noted my general problems the FTC's new disclosure rules, but as others look into the details, the worse they seem and the more you realize the unintended consequences may be pretty bad. Jeff Jarvis makes some key points concerning how this could be seen as a restriction on free speech. And that's because the FTC seems to be viewing blog posts as if they are media, rather than straightforward communication. As we've pointed out in the past, for many, blogging is often no different than a conversation. It's not journalism. It's not reporting. It's having a discussion with people:

Second, the FTC assumes -- as media people do -- that the internet is a medium. It's not. It's a place where people talk. Most people who blog, as Pew found in a survey a few years ago, don't think they are doing anything remotely connected to journalism. I imagine that virtually no one on Facebook thinks they're making media. They're connecting. They're talking. So for the FTC to go after bloggers and social media -- as they explicitly do -- is the same as sending a government goon into Denny's to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you just endorsed.

As such, you could make a case that the new rules are an unconstitutional law hindering First Amendment guarantees on freedom of speech. As I noted originally, it seems like these things get sorted out in the marketplace of ideas -- whereby those who do something so stupid as to sell their "views" on things face the potential of a substantial loss in credibility. But suddenly demanding people reveal the sourcing of some product they mention in blogs leads to all sorts of silly results, amusingly mocked by Mark Cuban in a blog post, where he wonders what sorts of disclosures he'll have to make if he mentions a breakfast at IHOP where the managers comps the breakfast. And while he's mocking the overall situation, it's not so silly. You shouldn't have to confer with your lawyers to figure out how you mention any particular product, just because you got a freebie or a sample somewhere.

And, what's really scary? It appears that even the FTC isn't sure what the policy actually means, and hasn't thought through any of the unintended consequences or fuzzy borders.

Separately, Eric Goldman highlights another massive problem with the new guidelines that no one else seems to have picked up on yet: that in some cases it's the company providing the product that will be liable -- ridiculously blaming the company if a blogger makes claims about its products that are not true. As Goldman points out, there's no way the FTC would be successful in going after companies for that, as Section 230 clearly would protect the advertiser from bogus statements by someone else. But, even assuming that the FTC never considered the Section 230 issues, why would the FTC ever think it's reasonable to fine an advertiser for statements made by someone else?

Despite tons of feedback and discussion when the FTC first proposed these new rules a few months ago, it really feels like no one at the FTC put much time into actually thinking through what these sorts of rules would actually mean in the real world.

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Time For A Quick Lesson In Why The DMCA Safe Harbors Are Important And Make Sense

from the back-to-school-time dept

I've been hearing some buzzing in the last few months among folks in lobbyist circles that the entertainment industry is actually hoping to cut back on the DMCA's safe harbors. There have been murmurings along these lines in the past -- though, it rarely goes far, since the industry is also afraid that opening up the DMCA at all could lead to edits of all the other parts, which they love. Still, with the recent decision tossing out Universal Music's misguided lawsuit against Veoh, a few folks have been posting opinion pieces suggesting that the DMCA safe harbors are either outdated, or misinterpreted in the Veoh decision, and somehow against Congress's intentions. Neither claim stands up to much scrutiny, but it's worth exploring the issues, and digging in a bit so that people understand the importance and value of the DMCA safe harbors.

Two examples of this type of thinking are represented by Paul Resnikoff, of Digital Music News, who suggests that the Veoh ruling is correct under the law, but the real problem is the DMCA's safe harbors are out-dated and should be done away with (or at least adjusted in favor of copyright holders). Then there's entertainment industry lawyer Chris Castle, who suggests that the ruling itself makes no sense and leaves copyright holders "without a remedy." Castle, in his usual manner, also spends some time insulting anyone who might disagree with him as well, which is quite charming.

Law professor Peter Friedman, who knows a thing or two (or much more) about copyright, does a nice job debunking Castle's questionable thesis, but I wanted to take things back a step and discuss both why the DMCA safe harbors are smart, exactly what Congress intended, applied correctly, and why that's all a good thing -- as opposed to the suggestions of Resnikoff and Castle.

First, you have to go back to one of the reasons why the safe harbors are even in the DMCA. The entire DMCA was basically a love letter to the entertainment industry -- giving them yet another massive extension of copyright and the power to control all sorts of things well beyond the Constitutional purpose of copyright ("to promote the progress..."). The most troubling of all was the anti-circumvention clause, which effectively gave copyright holders a veto (or at least a long legal speed bump) on technological device innovation. Equally troubling is the notice-and-takedown provision, which allows for content to be taken down on accusation, rather than actual evidence of infringement.

However, if Congress was going to grant this massive expansion of rights to the entertainment industry, which would allow them to lord over various internet companies, the internet companies wanted to make sure they had one thing: protection against misapplied liability. In an ideal world, such safe harbors wouldn't be needed, because it would be common sense that you don't sue the tool maker for how the tool is used. You don't sue AT&T if someone uses a phone to commit a crime. You don't sue Ford because someone broke the law with a car. Yet, people keep wanting to sue the tools providers on the internet. So, Congress, smartly, added the safe harbors for a single purpose: to make sure liability was properly applied. Liability should be on those who actually infringe the copyrights, not those who provide the tools that were used.

How could that possibly be controversial? Resnikoff's main complaint is that it's "an impossible task" for content holders to police their own works online. To which the only reasonable response is: as opposed to what? If it's an impossible task for copyright holders, it's more than impossible for the service providers. At the very least, the copyright holders know whether or not a use is authorized. The tool provider has no idea. Plenty of smart copyright holders are now releasing content for free on user-generated content sites like YouTube on purpose. Putting the onus on Google to figure out which ones are legit, and which ones are not makes no sense at all. Resnikoff also complains that the safe harbors do not require any sort of proactive effort, such as a filter, but that is a meaningless complaint. Due to so many lawsuits and a made up threat of "contributory infringement," pretty much all serious UGC companies have installed filters anyway, to help protect themselves against an "inducement" claim. So, that's hardly a complaint.

Castle's suggestion that this acceptance of the basic DMCA safe harbors leaves copyright holders "without a remedy" is a statement wholly without support. Jammie Thomas and Joel Tenenbaum -- facing huge awards from infringement trials -- might disagree, for example. All the safe harbors have done is say that the "remedy" should be from the party actually infringing, rather than the tool provider. This was exactly as Congress had intended, and not just in-line with the law, but also with basic common sense and common fairness.

So, as you hear stories being spun about how the safe harbors are somehow problematic, take a step back and understand what they're designed to do. Most of the assumptions being used against the DMCA's safe harbors are misunderstanding their purpose, and assuming that the point of the DMCA itself is to give near total control to copyright holders (never an intention of copyright law at any time in history). Instead, the safe harbors were to make sure that liability was applied properly: on those doing the actual infringing. Those complaining about the safe harbors seem to wish for a world where liability is applied to the easiest target, rather than the accurate target. Thankfully, Congress knew better than to allow that to happen.

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Linden Lab Sued Over Copied Virtual Goods

from the dmca,-anyone? dept

Way back in 2003, when Linden Lab announced that individuals owned the real world copyright on virtual trinkets they made in the game, we noted that this was a bad idea that would lead to problems. It was, in effect, taking bad real world laws and bringing them into a virtual world. It was even worse, because it was taking real world laws that were designed for a world of scarcity, and bringing them into a world of abundance -- and effectively allowing the laws to reach from the real world into the virtual world. That's a recipe for trouble.

And, indeed, a few years back there were lawsuits over "copied" products, though the main one we know of ended with both sides dropping the case. However, a new lawsuit has been filed, but this time, Linden Lab itself is a target, and the guy suing is claiming both copyright and trademark infringement. It's the same basic story. A guy creates virtual things (in this case, "sex toys") in Second Life, others copy them, and he's pissed off, so he sues. But he's suing Linden Lab, perhaps because it's better to sue a company that actually has money.

But legally, it seems like a huge longshot. The copyright claim should get tossed out pretty quickly due to DMCA safe harbors. The guy filing the lawsuit claims they don't apply "because it is aware of the rampant infringement of Alderman's copyrights and trademarks, and hasn't take proactive steps to prevent that piracy." Unless there's specific evidence of Linden Lab being informed of a particular infringement that Second Life ignored, it's hard to see how this isn't protected by the safe harbor. The trademark claim isn't covered by safe harbors (which is a problem...), but it's difficult to see how anyone could claim that Linden Lab is the one violating anyone's trademark here. Yet again... someone who can't handle the fact that digital goods are copyable feels he needs to lash out and sue everyone, rather than adapt.

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Dreadful Ruling: Web Hosts Hit With $32 Million Judgment For Content On Customers' Websites

from the chilling-effects dept

Well, this is bad. We've worried in the past about the lack of a specific safe harbor to protect trademark infringement claims being brought against third party service providers. The DMCA has a safe harbor that protects against copyright claims, and the CDA has a safe harbor that protects against all non-intellectual property claims, such as defamation. But trademark is a loophole... and because of that you can get some really dreadful results. Earlier this year, we noted that a court had ruled that web hosting firms could be liable for trademark infringement done by their customers. The case involved luxury goods retailer Louis Vuitton suing some web hosting firms for the actions of their customers. Any common sense ruling would find that the hosts are simply the tool providers, and it was the customers running the actual websites who were liable. That is, if there were common sense.

Instead, as Eric Goldman alerts us, the jury has sided with Louis Vuitton and awarded the company $32.4 million in damages from the web hosts.

This is a bad end result no matter how you look at it. If you do any sort of web hosting, your liability just went up by a tremendous amount, and you may now be expected to proactively police all your customers' websites for anything that might possibly be seen as trademark infringement. It's safe to say that this is not what Congress intended -- given the nature of the safe harbors it set up in the DMCA and the CDA. Hopefully, either a higher court will toss this out and/or Congress will finally get its act together and extend safe harbor protection to trademarks as well.

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Another Good Section 230 Ruling: Forum Owner Not Liable For Posts

from the good-to-see dept

It's good to see judges getting things right -- and more often than not, they're being both quick and smart when it comes to misguided lawsuits from plaintiffs against sites that host content, but don't publish it. The latest involves the owners of a bodybuilding forum website, bodybuilding.com, who were sued by a nutritional supplement maker, claiming that competitors had posted negative reviews on the site. But the judge tossed out the lawsuit against the forum operator using section 230. The supplement maker tried to argue that the forum owners had teamed up with the competitor in a conspiracy to say bad things about the supplement, but the judge didn't buy it. The only question was whether the website owners posted the content. They didn't. There's no case.

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Latest Misguided Lawsuit: Apple Hit With Copyright Infringement Claim For Third Party App

from the learn-to-sue-properly dept

I'm really beginning to wonder if there should be sanctions on plaintiffs who sue the obviously wrong party. We write about so many cases, where people sue whoever has the deepest pockets, rather than those actually responsible, that it's clearly an abuse of the law. The latest example, sent in by davebarnes, involves a photographer suing Apple, because an iPhone app from a third party developer includes some of his photos. Note that the guy did not sue the actual app developer: just Apple. I'd also like to see the argument that explains how getting this guy's photographs more publicity somehow "damages" him, but that's another story...

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iiNet Says Complying With Anti-Piracy Complaints Would Violate Telecom Laws

from the privacy-anyone? dept

We've been following the lawsuit down in Australia, where AFACT, the local entertainment industry "anti-piracy" group, has sued ISP iiNet, complaining that the ISP refused to do anything when it would send over infringement notices. From the beginning, iiNet's response has been clear:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

AFACT continues to insist that iiNet should be responsible for becoming copyright cops themselves, and had won an early battle, forcing iiNet to hand over "sample" records of users. However, Big Al points us to the latest news, where iiNet is claiming that not complying with AFACT's usual demands (it is handing over the sample data after working out the details) isn't just an issue of iiNet not wanting to be AFACT's enforcer, but that it violates Australia's telecom act, and could be a serious breach of privacy laws:

"Under the Act, it is illegal for iiNet to use customers' personal information in the manner demanded by AFACT without a court order or warrant. Breaches of the privacy provisions of the Act can attract a two-year gaol sentence."

Separately, iiNet noted:

"To examine customer communications on the basis of a third party's allegations would be a criminal act for us to engage in."

"Our starting position on this would be there is good public policy reasons for why Australia Post should not be opening your letters. And good reasons for why carriers should not be listening to your phone calls or looking at what you download. Our view is that would constitute a criminal offence."

It should come as no surprise that AFACT isn't buying this, calling it a "very novel" argument and one it hadn't seen before, and claiming that IP address information is not the sort of information that's meant to be included under the telco act, since it's not really "confidential." This case just gets more and more fun to watch (though, if I had to guess, iiNet's arguments probably won't prevail).

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Another Misguided Lawsuit: Ustream Sued Over Users' Actions

from the trademark-safe-harbors dept

It's no surprise these days to see that service providers are getting sued for the actions of their users, but it is always fun to see how the lawyers for the plaintiffs try to get around the obvious problems of DMCA or CDA safe harbors. The latest case involves boxing promoter One Ring suing Ustream, one of a number of live video streaming companies out there. Like the misguided lawsuit threat against Justin.tv, this involves a sports group suing the platform provider because a user turned their webcam towards the television, so that others could watch the stream. The DMCA pretty clearly makes these lawsuits entirely baseless, as the only liability is on the person who actually used the account and pointed the webcam at the TV (separately, the fact that you can potentially be guilty of copyright infringement for showing the world what you see with your own two eyes is quite troubling, but a discussion for a different day).

In this case, though, there's a little tidbit, brushed over by the original article, but which suggests how One Ring hopes to get around the DMCA safe harbors on copyright infringement. It's not just suing Ustream over copyright, but it's also claiming that since its logo was seen via the broadcast, Ustream is also guilty of trademark infringement. That's because there's an annoying loophole in that trademark is not technically covered by either the DMCA's safe harbors or the CDA's safe harbors. The DMCA only covers copyright, and the CDA specifically exempts "intellectual property," thus leaving trademark in nowhere's land between the two. Not surprisingly, this has become a popular loophole for lawyers to try to exploit (in fact, we were recently threatened on this very point).

That said, it still seems like Ustream should have a strong case. Even if trademark is not explicitly covered by a safe harbor, simple common sense should make it clear that the company should in no way be liable for the actions of its users. On top of that, claiming that its trademark infringement to show the One Ring logo is also quite questionable and hardly seems likely to stand up under scrutiny. Still, it's an annoying lawsuit that Ustream has to deal with, for no particular reason.

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Google, Yahoo Fined In Argentina Because Searches On Band Name Leads To Porn Sites

from the liability-screwup dept

Reader Osno points us to the latest in misplaced liability rulings... this time in Argentina. Apparently both Google and Yahoo have been fined (Google translation) approximately $15,000 (US) after a lawsuit from a member of a popular reality show band accused both search engines of leading people to pornographic websites when people searched on her name. This reminds me of a similar lawsuit in the US, that is still ongoing and seems unlikely to get very far. It's difficult to see how a search engine can be responsible for what others put up on a porn site, or the fact that a search on someone's name leads people to a porn site. But... apparently that's what the judge in Argentina decided. There's a separate jurisdiction issue here as well, since neither Google nor Yahoo have operations in Argentina. Either way, it's expected that the companies will appeal, and hopefully the higher level courts will recognize that this shouldn't be a search engine's liability.

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Belgium Fines Yahoo For Protecting User Privacy On Its US Servers

from the this-is-bad... dept

For many years, we've discussed the many challenges faced by countries in trying to recognize that "jurisdiction" on the internet isn't what they probably think it is. Many countries want to interpret internet jurisdiction as "if it's accessible here via the internet, it's covered by our laws." But it doesn't take much scenario planning to recognizing what a disaster would result from such an interpretation. Effectively that means that the most restrictive legislation anywhere in the world (think: China, Iran, Saudi Arabia, etc.) would apply everywhere else.

That's why it's quite worrisome to find out that Belgium is trying to fine Yahoo for protecting its users' privacy and refusing to hand over user data to Belgian officials. Yahoo noted, accurately, that it does not have any operation in Belgium, and the data in question was held on US servers, not subject to Belgian law. On top of that, the US and Belgium have a good diplomatic relationship, such that such a data request could have gone through established diplomatic channels to make sure that US laws were properly obeyed as well. But, instead, Belgian officials just demanded the info from Yahoo's US headquarters directly, and then took the company to criminal court where the judge issued the fine. The Center for Democracy & Technology highlights the problems of not pushing back against this ruling:

The implications of this ruling are profound and far-reaching. Following the court's logic would subject user data associated with any service generally available online to the jurisdiction of all countries. It would also subject all companies that offer services generally available on the global Internet to the laws of all jurisdictions, potentially exposing individual employees to a variety of criminal sanctions.

The U.S. government should be paying close attention here: To understand how problematic this ruling is, we need only imagine how the governments of China, Iran, Vietnam or other repressive regime of your choice may decide that the precedent set here is one well worth following. Such actions undermine Belgium's moral authority since, after all, it would only be hypocritical for Western democracies to criticize such radically overbroad assertions of jurisdiction by other nations.

CDT suggests the US government should get involved and protest the Belgian court ruling:

In the present case, Yahoo! has done right by its users. The company asked law enforcement officials to follow established diplomatic and legal processes in order to gain access to user information. It also enlisted the support of its home government to facilitate the process. In return, Belgian authorities have flouted an existing MLAT agreement, slapped Yahoo! with a fine, and set a dangerous precedent that potentially imperils the privacy of all Internet users and invites abuse by bad actors.

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Filmmaker Sues Websites After Commenters Cost Him A Job

from the misdirected dept

Over the years, we've been threatened with lawsuits a few too many times -- almost always due to something that someone said in our comments. The pace of those threats has certainly increased over the years, but most are nothing more than angry bluster. In the few cases where it appears to be someone serious, we have our lawyers explain to them Section 230 in rather plain language, noting that suing us for something said by others in our forums will (1) get thrown out of court incredibly quickly and (2) probably only serve to bring a lot more attention to the comments they're so pissed off about. To date, this has always worked quite well.

Of course, other countries don't have Section 230 safe harbors, and so you get a lot more ridiculous lawsuits with someone blaming a forum owner for what people say in that forum. Hopefully, common sense prevails in those cases too... but you never know. A bunch of folks have sent in the story of a lawsuit in Australia where a filmmaker is suing some online forums for comments in those forums that the filmmaker believes cost him a job. Apparently, some folks agreed to a deal with him to produce a certain movie, but after finding those comments, they pulled out of the deal.

First of all, the filmmaker, Greg Smith, appears to be suing the wrong parties. Rather than those who actually made the comments, he's suing the owners of the web forums where the comments occurred. And, on top of that, he never contacted those forum owners about the comments in the first place (at least one says that the first he knew about the complaints was when the lawsuit was filed -- at which point he immediately removed the comments anyway). And, of course, all this has really served to do is call a lot more attention to the comments about Smith (and the way he handles such things).

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