Tuesday, July 31, 2012

Seth Abrahams v. Hard Drive Productions heats up

This is an interesting copyright infringement case. If you haven't heard, this case is part of an ever-increasing battle brewing between the porn-industry copyright crusades and the getting-tired-of-it public. Here is some background on the cases:

HDP v. Does 1-118 [4:11-cv-01567] Filed Mar. 31, 2011

First, Hard Drive Productions filed another one of the many lawsuits against Does 1-118 for copyright infringement of, no surprise, a pornographic movie. The allegation was that the Does were sharing the movie "Amateur Allure" among themselves and others using the bittorrent protocol.
HDP got early discovery and uncovered the name of one of the Does, IP, who was identified as Seth Abrahams. HDP tried to extort a settlement out of Mr. Abarahams just like it has so many others. Unfortunately for HDP, Mr. Abrahams fought back and got himself dismissed from the case. This case was ultimately terminated on January 19, 2012.

HDP v. John Doe [4:11-cv-05634] Filed Nov. 21, 2011

In apparent retaliation for Mr. Abrahams failure to pay the blood money, HDP brought a suit against one Doe only, and it named Mr. Abrahams as the person HDP believed to be that Doe. It appears that HDP wanted to make an example of Mr. Abrahams to persuade others not to follow in his footsteps.

Abrahams v. HDP [3:12-cv-01006] Filed Feb. 28, 2012

As my colleague Phill Mann so often says, sometimes when the schoolyard bully picks on a little kid, it turns out he knows karate. Seth Abrahams didn't take being sued so kindly, so he, counseled by Steven Yuen, filed a counter-suit back against HDP.
It's On! I look forward to seeing how this plays out.
Now, I should mention that this counter-suit sounds like a great idea, but the Abrahams complaint only asks for a declaration that HDP's copyrights are invalid or unenforceable, and asks for an award of his attorneys' fees. Abrahams doesn't even ask for any monetary damages. Given that an award of attorney's fees is never guaranteed under almost any circumstances, one has to ask what is the motivating factor in this case? It may be just the principle of it. Either way, it will be fun to watch this unfold.

Wednesday, July 25, 2012

Motion To Quash Subpoenas In Copyright Infringement Cases

There is a ton of coverage about Motions to Quash the subpoenas that are being served in these mass-infringement cases. There are also several pretty good sample Motions to Quash out there. But the question is: which one do I use? The answer should be, the one that works.
Motion to Quash subpoena in copyright troll caseWith that in mind, I decided to do a survey of as many Motions to Quash as I can come up with. My plan is to evaluate them with an eye, not toward how good they sound, but did they work. I will then publish my opinion on which legal theories are most likely to win in your own motion to quash, and which legal theories you should stay away from.
If anyone out there wants to help with this task, just shoot me a message or leave me a comment below. I hope to have some results soon.
Here are some of the cases I'm looking at:
Third Degree Films, Inc. v. Does 1-152, 1:11-cv-01833 (DCD)
Celestial, Inc. v. Does 1-252, 2:12-cv-00082 (FLMD)
Boy Racer, Inc. v. Does 1-60, 3:11-cv-01738 (CAND)
Malibu Media, LLC v. Does 1-15, 2:12-cv-02090 (PAED)
Cinetel Films, Inc. v. Does 1-1052, 8:11-cv-02438 (MDD)

Friday, July 20, 2012

Negligence Can't Support Contributory Copyright Infringement

Earlier I commented on a Finnish court that ruled leaving a wi-fi router open cannot, as a matter of law, give rise to copyright infringement by a third party. That's great if you live in Finland, what about us in the U.S.? Well, things are starting to look good here too.
Open wi-fi not negligent
As reported recently by FightCopyrightTrolls, a judge in Manhattan just dismissed a case that was brought by Liberty Media Holdings against Cary Tabora and Schuyler Whetstone. Liberty brought a claim for negligence against Tabora. Liberty argued that it was negligent for Tabora to let Whetstone use his internet connection to download copyrighted movies.
Judge Kaplan wrote a great opinion that basically shut down that negligence claim for good. First, Judge Kaplan pointed out that someone can't be liable for contributory copyright infringement unless they actually have knowledge of the infringing activity. It's not enough for contributory infringement that he could have known. Then, Liberty couldn't bring a simple negligence claim against Tabora under state law because the federal copyright law preempts state law. In other words, Liberty can't avoid the higher burden of proof of copyright law by bringing a claim of negligence, which has a lower burden of proof.
This is good news for us. That same line of reasoning applies to the situation where someone has an open wi-fi router and someone else uses their internet connection to download or upload movies. If you can't be found negligent for actually allowing someone to use your internet connection, then you certainly can't be found negligent if you don't even know that a stranger is using it. In other words, these claims that you are negligent for leaving your wi-fi connection open are bogus. Negligence can't support a contributory infringement claim. You have to have actual or constructive knowledge of the infringement.
That case might not directly address the open wi-fi situation like the one in Finland did, but it's close and it went the right way. Let's hope that when a U.S. Court gets a case that is right on point, they don't lose their minds.

Thursday, July 19, 2012

DMCA Takedown Notices Being Abused

Yesterday I posted a blog article about how the DMCA takedown notices are being so heavily abused these days that it amounts to extortion. The good folks over at FightCopyrightTrolls tweeted about my post, it came to the attention of someone at Takedown Piracy, and their owner called me a hack. Well, here's my take. As I said yesterday, DMCA takedown notices have exploded in the last year about twelve fold. Yesterday, this Takedown Piracy company was the number one reporting organization for those takedown notices, at least to Google. They aren't as of today, but they are still number two.
So if you think about it, Takedown Piracy is probably a one-man shop, or at least it appears to be. Yet Takedown Piracy submitted over 400,000 DMCA takedown notices to Google last month. So if this guy Nate Glass works about a 10-hour workday 5 days a week, that's about 215 work-hours a month. So Nate is sending out about 1,860 DMCA takedown notices per hour, or about one DMCA takedown notice every two seconds. You tell me, do you think Nate is doing his homework on those notices?
The Courts have held that before someone issues a DMCA takedown notice, they have to make a determination whether the use of they copyrighted material is a 'fair use.' Does anyone think that Nate Glass and his
ShakedownTakedown Piracy company are performing an actual 'fair use' analysis of every allegedly infringing work before a DMCA takedown notice is served? In two seconds, Nate and his crew can actually visit a site, confirm that a copyrighted work is being used, and determine that it is not a fair use?
Takedown Piracy is a shakedown racket plain and simple. Don't let the smoke and mirrors fool you. They might not get paid directly by the innocents that they shake down, but they are profiting from bogus copyright trolling just the same.

Wednesday, July 18, 2012

Copyright Infringement Crusades Underway

In case you have any doubt about the explosion of attacks that are being made against alleged copyright infringement, you need only look at Google's Transparency Report on the number of URLs that are being attacked.
Take a look. The number of URLs that are being accused of facilitating copyright infringement has gone up by about a factor of 12x since last year at about this time. That means that 12 times as many URLs are being attacked by purported copyright owners. Does this mean that copyright infringement has gone up by 1200% over the last year? Of course not. It means that the copyright infringement crusades have begun.
And who makes more takedown demands than any other entity? Is is the recording industry? No, they are second. The number one reporting organization is Takedown Piracy, LLC. Who is Takedown Piracy? Apparently they are a small company started in 2009 whose entire business model is making copyright infringement allegations on behalf of other copyright owners. We have all heard of John Steele and Prenda Law who use extortionate means to try and extract blood money from individuals. But this Takedown Piracy group is taking it to a new level.
Apparently they don't just mail out threatening but toothless letters demanding money. They actually target business concerns and attack their domain URLs at the search engine, effectively shutting down those businesses unless they pay up. This is approaching organized crime.
In my opinion, there needs to be harsher punishment (is there any now?) for companies that make baseless threats of copyright infringement. Companies like Takedown Piracy and Universal make knee-jerk copyright infringement accusations with little to no proof. They demand that the works and domains be taken down under the DMCA. But what happens when they are wrong? Not much, apparently. So what disincentive do these companies have to send as many bogus takedown notices as they can? None.
With the all out war on ordinary folk that has apparently been waged by copyright owners, we need to organize and think about changes that should be made to the DMCA and other copyright laws to protect the public from baseless charges of copyright infringement. The First Amendment could be hanging by a thread soon if something isn't done.