RIAA Wastes Little Time Trying To Extend Interpretation Of Usenet.com Victory

from the oh-really-now? dept

Last week we wrote about the RIAA's victory against Usenet.com, noting that it really wasn't that big a deal precedent-wise, given the rather specific circumstances involved in the case. Specifically, the company Usenet.com clearly destroyed evidence, which pretty much doomed the case, and on top of that engaged in activity that was egregious in terms of making it quite clear that it encouraged illegal activity through the use of its service. But, of course, the RIAA and its friends (as per usual) are having a field day claiming this is a big deal.

The RIAA, for example, put out a blog post calling it a significant victory, ignoring just how specific the case was, and stating misleadingly:

The decision reinforces two basic points: If you mindfully operate an illegal service without compensating the artists and creators whose content you advertise, the law is not on your side. Further, given the abundance of reasonably-priced legal download services, why go to an illegal one?

Not quite on either count. What it actually notes is that if you destroy evidence, you're almost certainly going to lose, and if you choose to outright flaunt the law and encourage people to use your site for illegal purposes, you're probably going to be in trouble too. However, note the neat little lie that the RIAA uses in its words here, calling Usenet.com "an illegal service." That's not accurate at all. Various usenet services have been offered for many, many years and are not illegal. The problem here was that the operators encouraged people to download infringing content. The service itself was not illegal.

Meanwhile Billboard for some reason asked an entertainment industry lawyer with a long history of involvement on the entertainment industry's side on these cases to write up a report about this decision, and it's no surprise that -- while positioned as a news article, rather than an opinion piece -- this same misleading explanation comes through -- again, calling it a "significant win."

Still, there is one part of the ruling (which both articles above cite) that does seem like a major departure from previous case law, which is why I'd be surprised if it's allowed to stand. That's the fact that the judge ruled that Usenet.com wasn't just guilty of contributory infringement, but direct infringement because it maintains an "ongoing relationship" with users. It's hard to see how such a ruling lives on through an appeal. It seems that the judge was heavily influenced by the other two issues -- the destruction of evidence and the egregious encouragement of infringement -- and thus stretched the definition of direct infringement here as well. But if such a ruling is allowed to stand, it basically wipes out the Betamax "substantial non-infringing uses" ruling for any kind of online service, and also seems to go against a number of other recent rulings. That would be a plainly ridiculous interpretation of what the court said in the Betamax ruling, and if the entertainment industry really wants to hang their hat on that, they really ought to look back at the history of what happened to their industry post-Betamax. That's because the technology they fought so hard to kill helped prolong the life of the industry. The same would be true of more efficient means of internet distribution, though they refuse to consider that as a possibility.

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