Friday, September 28, 2012

Open WiFi Is NOT Negligence

I wanted to post a quick note about the new case recently filed by Daniel G. Ruggiero in Pennsylvania, as reported by DieTrollDie. [EDIT: Earlier I incorrectly identified the case] This case isn't particularly noteworthy, except that the complaint includes a claim for negligence based on the subscriber having an unsecured WiFi network. The good news is that claim should die a quick and miserable death. Since my earlier post on open WiFi, there have been more cases concluding that open WiFi is not negligence. In fact, a negligence claim is preempted by federal law.
Below are a couple of the actual orders issued by judges who conclude open WiFi is NOT negligent. Threatening people with punishment under a theory that has been soundly rejected already, several times, just redoubles the extortion stigma that already exists with these cases.
Liberty Media Holdings v. Tabora, et al., NYSD (7/9/12)

AF Holdings v. Hatfield, et al., CAND (9/4/12)
Order Granting MOTD
Order Granting MOTD

Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 (N.D. Cal. July 8, 2011)(tortious interference state claim premised on DMCA takedown notices preempted by Federal DMCA provision); see also Miller v. Holtzbrinck Publishers, LLC, No. 09-0919 (2d Cir. May 14, 2010)(tortious interference preempted by Copyright Act).

Tuesday, September 25, 2012

Copyright Trolls: What Does It All Mean

In case you just got one of those letters from your ISP telling you that you have been selected for the latest bittorent extortion program, otherwise known as a subpoena for your personal records, then you might be asking yourself "what does this all mean?"
Copyright Troll Litigation: What Does It MeanI myself wrote a brief article that describes your dilemma--what has come to be known as copyright trolling. So if you don't have any history with copyright trolls yet, read that.
And if you are more in to the spoken word, DieTrollDie put together a nice little podcast where you can hear him explain how the whole thing works. Take a listen and you will learn something. Then go on to search for all the incredible help that exists today. Below is a list of what I believe are the best sites for information on the problem and help with the solution:
Electronic Frontier Foundation.
And arsTechnica has some pretty good stuff now and then.
If you think there are other good sites that should be added to the list, just let me know.

Monday, September 24, 2012

Seriously?!?! The CIA Has To Investigate Copyright Infringers? Updated

CIA spying on citizens over copyright squabbleTorrentFreak just reported that the Australian equivalent of our C.I.A. (the Central Intelligence Agency, not the Copyright Infringement Advisor) was illegally spying on Kim Dotcom to help the U.S. build a case against MegaUpload.
Turns out the Government Communications Security Bureau (GCSB), the Australian CIA, is legally prohibited from spying on New Zealand citizens like Kim Dotcom. Still, the GCSB was surveilling Dotcom and his family.
Seriously? 1984 much?
Today Australia's Prime Minister called for an investigation into the illegal activity of the GCSB. Kim Dotcom's U.S. lawyer, Ira Rothken, said he is looking forward to learning of any US involvement in the illegal spying.
So am I. So. Am. I.
In times when our own are blowing each other up, and defecting to terrorist organizations, should our intelligence agencies really be spending time trying to keep Hollywood rich? I think not.
UPDATE: The beginning of the end. New Zealand's Prime Minister has apologized to Kim Dotcom for the legal violations of New Zealand's CIA, which was illegally spying on Dotcom to build a case against him. So now, if New Zealand has a system of justice similar to ours, all the evidence amassed as a result of that spying should be inadmissible in court.
So the government seized millions of dollars in cash, cars, and guns based on illegally obtained evidence. This is exactly why the citizenry needs protections from an overly zealous government out to punish those its sees as "wrong doers" without any consideration of the law. A government agent being convinced someone is doing something wrong does not ever justify throwing out all of that person's rights.

Apple Infringes Swiss Rail Copyrights

Copyright attorney explains how Apple infringes clock face copyright
Apple or Swiss Rail: Which is which?
So you would think after Apple wins a billion dollars against Samsung for patent infringement, that they would be a little more sensitive about infringing the rights of others.
Well, guess again.
Swiss Federal Railways just announced that it may be pursuing legal action against Apple for putting a knock-off clock face in iOS 6. Clearly the two clock faces are the same. Whoever is responsible for putting that clock face in iOS6 has some ‘splainin’ to do.
Here’s what Swiss Rail had to say:
SBB is the sole owner of the trademark and copyright of the railway clock. The railway company will now get in touch with Apple. The aim is a legal, as well as a financial solution. It is not right that [Apple] simply copies the design.
For a company so quick to accuse others of copying their stuff, Apple sure does its [un]fair share of infringing the work of others. One. Two. Three. Four.

Friday, September 21, 2012

Abrahams v. Hard Drive: Update 2

Well this is big news: Following up on my earlier update on this case, there was a hearing today on the Abrahams v. Hard Drive case to argue Abrahams two-strike dismissal motion. I'm not exactly sure what was said, but here is the order basically dismissing Hard Drives claims.
Copyright Troll Case Thrown OutIt was stipulated that the two-strike rule applies, so Hard Drive's claims are barred by res judicata. What that means is Hard Drive's lawyers showed up at the hearing today and actually agreed that their claims were barred. What happened to all that talk about how the claims weren't barred?
The interesting thing about today's order is that Abrahams has been ordered to file a brief on subject matter jurisdiction. In case you're not a lawyer, the reason for that is this: Now that Hard Drive's claims against Abrahams have been dismissed with prejudice, there is no longer a "case or controversy" between Abrahams and Hard Drive. Hard Drive can't sue Abrahams any more. And unless there is a real case or controversy, the Court does not have the authority (subject matter jurisdiction) to listen to the dispute--basically because there no longer is a dispute. Interesting.
I'm still scratching my head. This is some of the weirdest lawyering I've ever seen.
You infringe!
No you don't!
Yes you do!
No you don't!
See today's order below.

Tuesday, September 18, 2012

Abrahams v. Hard Drive Productions: Update

So Seth Abrahams is fighting back hard against Hard Drive Productions in an excellent bittorrent battle down in California.
Before we go any further, it's important to get all the cases straight. First, Hard Drive originally sued a bunch of Does (11-1567). Then, Hard Drive dropped that case and re-filed against only one Doe (11-5634). Although he wasn't specifically named, that one Doe was Seth Abrahams. Seth didn't like being singled out, so he filed his own counter-suit back against Hard Drive (11-1006).
Confused yet?
So while Hard Drive's case against Seth-Doe was pending (11-5634), the parties had what is called a case management conference with the judge in the other case (11-1006). I don't know what exactly happened during that conference, but I do know that after it the judge issued an Order that required Hard Drive to dismiss the Seth-Doe case (11-5634) so the parties could duke it out in the Abrahams case (11-1006).
That's where it gets interesting.
See, there's this relatively-obscure rule that if you voluntarily dismiss a claim against the same defendant twice, then you can never bring that claim again. That's called Rule 41(a)(1)(B), or the two-strikes rule. DieTrollDie wrote a good article about it.
seth abrahams and hard drive productions copyright troll battleIn Seth's case, he has now filed a motion to dismiss Hard Drive's claims against him because Hard Drive has dismissed its claim against Seth twice (11-1567 and 11-5634). So, Seth Abrahams is trying to invoke the two-strike rule and have Hard Drive's claim against him dismissed, which would--oddly enough--leave nothing except Seth's claims against Hard Drive to litigate.
DieTrollDie has written an excellent piece about the weaknesses of Hard Drive's opposition to Seth's motion. Not to take anything away from DTD's analysis, but in my view, Seth's motion should be denied for at least a few reasons.
First, Hard Drive is kind of right. Hard Drive's opposition points out that two judges in earlier cases already concluded that the dismissed cases were not sufficiently similar to Seth's case to consolidate them. That's a pretty good argument, since it's true. But for some reason, Hard Drive didn't give it any more than a mention in one footnote. I like to put my good arguments actually in the meat of the brief, but whatever. Prenda Law isn't exactly known for good lawyering.
Second, Hard Drive seems to have completely missed the real point of the two-strike rule--to avoid actual Court oversight by dropping suits before the Court can get involved. In other words, the two-strike rule only applies to cases that are voluntarily dismissed without a Court order. Here, Hard Drive dismissed its second case as directed by a Court order. So in reality, the Seth-Doe dismissal (11-5634) was pursuant to Rule 41(a)(2) and not Rule 41(a)(1) like Hard Drive said in its Notice of Dismissal. The two-strike rule doesn't apply to a 41(a)(2) dismissal. Hard Drive never even mentioned that small detail. Why would Prenda not even mention its best argument? Again, whatever.
Third, I want to see this case get resolved on the merits. A two-strike dismissal doesn't even touch on the merits of the case, and I want to see the issues actually get litigated. Abrahams made some interesting points in his complaint, like whether hardcore porn is even subject to copyright protection and whether Prenda's settlement tactics constitute copyright misuse. Those are good arguments that I want to see fleshed out properly.
Understand that I despise the copyright trolls just as much as anyone else. Well, maybe not as much as FightCopyrightTrolls, but quite a bit. But I really do want to see Judge Sparo deny Abraham's motion because, as a matter of law, it should be. Plus, it's time that the real issues get litigated properly and decided, once and for all.

Monday, September 10, 2012

Ye Olden Tale of the Copyright Decree

I had a request from Jason Lamb, a third-year student at the Temple University Beasley School of Law in Philadelphia, PA, to publish an interesting article that he wrote. It's a parodic history of copyright law, set in a medieval fantasy context.
So enjoy, and thank you Jason. . .

Ye Olden Tale of Social Media Pubs and the Copyright Decree

Once upon a time in the land of Litigious there lived a young lawyer named Squire Young-Law. Young Law had apprenticed for years under the respected and venerable Sir John Old-Law. Together, Young-Law and Old-Law had defended shop owners and individuals from the attacks of the MPAA gang and their lawyer, Sir Sues-A-Lot. For decades Old-Law had used his vast knowledge of the law to give his clients the upper hand. But the winds of changes had been blowing in Litigious, and Young-Law saw his chance to break out on his own as he began to notice that the once unbeatable Old-Law had failed to keep up with the times and started to lose to Sir Sues-A-Lot. Old-Law was beginning to lose to the ability to protect his newer high dollar clients, the wildly popular Social Media Pubs.These Social Media Pubs were shops that became gathering places within the public square of towns across Litigious. This network of town squares across the land was known as the Internet, and the Social Media Pubs were driving its popularity. The Pubs provided a place where its patrons could hangout, talk to each about various issues of the day, share the latest traveling minstrel songs and tales, and broadcast statements to the entire Pub on the open mic stage. These Pubs had become popular because they connected people in way not possible before, and also because they allowed patrons to share so much without necessarily getting permission from the Minstrel’s Guild. This guild had in the past used the MPAA gang and Sir Sues-A-Lot to go after individuals who used the minstrel songs and tales without authorization, but now they were going after the owners of the Pubs, claiming that the Pubs were causing and promoting all this trouble.
The works of the Minstrel’s Guild are protected by an ancient Royal Decree of Copyright which says that only the creator, in this case the minstrel himself, can control and make copies of the work. This law protected the minstrels for centuries and allowed them to amass great wealth based on the popularity of their works. It was very difficult to make copies the minstrels’ works by hand. Although the minstrels had managed to record their own songs and tales in magical tomes called “Analogs”, these “Analog Records” and “Analog 35mm Reels” were heavy and unwieldy and also very difficult to copy without authorization and the help of expensive wizards. Any individual trespassers of the Copyright Decree were easily found out by the MPAA gang brought to justice by Sir Sues-A-Lot.
Things began to change about 40 years ago. First the great wizard SONY created new magical analog books called VHS and TAPE CASSETTE that were much smaller than the earlier heavy tomes. SONY had also created incantations that allowed regular people to make their own magical VHS and TAPE CASSETTE books and record minstrel songs and tales on their own. This angered the Minstrel’s Guild and the MPAA gang, so they hired Sir Sues-A-Lot to go after SONY for violation of the Copyright Decree. In that case Sir John Old-Law was able to successfully defend SONY based on the fact that SONY’s spells had substantial non-infringing uses and that SONY had no demonstrated intent to violate the Copyright Decree. Old-Law had defeated Sir Sues-A-Lot and SONY was allowed to sell its spells and smaller analog VHS and TAPE CASSETTE books. Surprisingly, this use that the minstrels saw as a violation expanded the reach of their works and allowed them to amass yet more wealth.
Sometime after the SONY incident the Wizards of Mount Digital created the incantations of CD and DVD. These spells allowed the works of the minstrels to be copied much more easily and got the works into the hands of many more people. Also these new digital spells allowed the minstrels songs and tales to be recorded on much smaller magical scrolls instead of the larger analog books of TAPE CASSETTE and VHS. More importantly, the digital copies on these new CD and DVD scrolls were always perfect reproductions of the master copy, and didn’t suffer from the quality and durability issues sometimes experienced with the older analog TAPE CASSETTE and VHS books, and “Analog Records” and “Analog 35mm Reel” tomes. Still the minstrels remained protected and amassed even more wealth although huge changes were on the horizon. Next the Wizards of Mount Digital would create the incantations of MP3 and h.264. These spells would make the minstrel’s works even more portable as a single scroll could now hold hundreds of perfect, compressed digital copies of the minstrels’ songs and tales. An issue for the minstrels was that the encryption locking spells that had previously accompanied the CD and DVD scrolls had now been removed, and any non-wizard could now create their own scrolls and pass the unauthorized works to whomever they wished. Onto this backdrop the Social Media Pub’s came on the scene and gave their patrons, who were newly empowered with MP3 and h.264 spells, a forum to share these unauthorized copies. Because so many individuals were violating the Copyright Decree at once, the minstrels and the MPAA gang sent Sir Sues-A-Lot after the Pubs. As usual Sir John Old-Law came to their aid.
Sir Sues-A-Lot wanted to make an example of Old-Law’s client, the Netcom Brewery Pub. Patrons of Netcom had used it to share a minstrel’s works in violation of the Copyright Decree. Old-Law, with Squire Young-Law assisting as co-counsel, argued that Netcom was not a direct infringer and that they had only provided a place for its patrons to interact with each other. Old-Law also argued that just because some protected works had been shared and had made it out into the town square, and even to other Pubs, did not make Netcom liable for its patrons’ actions. The court agreed and held Netcom not liable for its patrons’ infringements of the Copyright Decree. Inspired by the Netcom case, and desiring to promote the economic growth brought on by the internet, the network of town squares, and its new Pubs, the King of Litigious made a new decree called the DMCA. The DMCA Decree made Pubs that were merely providing a forum for patrons to share works and interact with one another safe from Copyright liability, provided they had no knowledge of infringement. As long as the sharing was directed by its patrons and the Pub had no knowledge of infringement the Pub would be safe. The Kings tried to strike a balance with the DMCA Decree. The DMCA gave the minstrels a powerful tool in its notice and take down mechanism whereby if a minstrel notified a Pub of a specific infringing copy of its work, including the location within the Pub of the magical scroll that the work resided on, then the Pub would have to remove that copy from the scroll.
After the DMCA decree other cases came up involving new Pubs that were actively promoting violation of the Copyright Decree using the newer MP3 and h.264 incantations. The Napster Ale House was one such Pub, and Old-Law decided to try to defend them using his old tricks from the SONY case. Against the advice of Young-Law he argued that Napster, like SONY, had substantial non-infringing uses. The court ignored this argument and placed liability on Napster due to its purpose and intent to promote copyright infringement. Similarly, Ye Old Grokster Pub was found liable due to its express purpose to promote infringement despite its purported claims to DMCA protection. The courts concluded that these Pubs had knowledge of infringement due to their culpability in promoting their patrons infringements. Sir Sues-A-Lot had begun to rack up some victories and Squire Young-Law did not agree with Old-Law’s strategies of late. Moreover, Old-Law had incorrectly advised Napster and Grokster that between the SONY holding and the DMCA they would be safe despite their brazen promotion of infringement. His recent failings have caused his practice to quickly shrink.
Emboldened by their recent victories the minstrels and MPAA gang sent Sir Sues-A-Lot to test the DMCA and take down the most popular Pub in the town square, the YouTube Pub. This time YouTube chose to use Squire Young-Law instead of Sir John Old-Law. Young-Law argued that YouTube was protected by the DMCA and that YouTube would have to have knowledge of the locations of the specific copies of minstrels’ works that were shared without authorization in order to lose that protection. Sir Sues-A-Lot argued that the DMCA only protected YouTube for direct infringement and that the minstrels could not be expected to identify the locations of each specific infringing copy within YouTube’s many scrolls. The Court agreed with Young-Law and found that YouTube merely provided a forum for its patrons and that the DMCA covered all its patrons’ infringements. The minstrels would have to identify the specific copies and use the notice and take down system built into the DMCA decree.
Young-Law has since parlayed this victory into a striving practice and the Social Media Pub industry continues to grow. The minstrels and the MPAA gang have not given up however. The head of the MPAA gang, Lord Chris Dodd, has convinced some of his fellow nobles to propose new decrees that the King might issue. The proposed SOPA and PIPA decrees would block Pubs where infringements are occurring from access to the Internet, the network of town squares, and block these Pubs from use of Litigious’ official currency respectively. While Pub owners and other town square merchants rose up in opposition to these decrees, SOPA and PIPA have broad support from the minstrels and many nobles. Pub ownership is not the free for all it once was in the days before the Napster and Grokster rulings and winds of political change are beginning to blow. Any lawyer in this arena wishing to avoid the fate of Sir John Old-Law must keep abreast of the current legal and political climate. The stakes are much higher and there is much more money at stake between the Minstrels Guild and the Social Media Pubs than in the days of SONY. Old-Law has retired and faded off into obscurity before his time, while Young-Law has gone on to live happily ever after.
Written by Jason Lamb, Copyright 2012.

Friday, September 7, 2012

Motion to Quash; Motion to Sever; Motion to Dismiss: What's the Difference?

The good folks over at FightCopyrightTrolls and DieTrollDie do a great job, probably better than anyone, at keeping everyone informed about the state of mass bittorrent litigation, frequently called copyright troll suits. One of the hottest topics, always, is what to do when you get that letter or email from your ISP telling you that they got a subpoena for your private information. I already wrote a little about what it means when you get that letter. Now I'm going to tell you what the three most common options actually mean.
Your three main options when you are informed about one of these ISP subpoenas are:
  • file a motion to quash
  • file a motion to sever
  • file a motion to dismiss
Motions to Quash Sever and Dismiss Copyright CaseYou can do any one or more of those, in any combination. Actually there are several more options than that, but those are the most frequent, especially if you want to resist the subpoena. Of course, you could just do nothing, but that's not any fun.

Motion to Quash Subpoena

The motion to quash is basically a request to kill the subpoena, but not the lawsuit. So the subpoena is actually nothing except an order by the Court to produce some information. In these cases, that information is your personal name and address. So the subpoena is an order to your ISP to produce your name and address to the accuser (the troll). So if your motion to quash is successful, all you have done is prevented the troll from learning your name and address directly from the ISP, at least for now. You are still a defendant in an active federal litigation matter. In other words, you have still been sued and that case is still moving forward.
A winning motion to quash must attack the sufficiency of the subpoena itself, not the merits of the lawsuit. In other words, informing the Court that they don't have personal jurisdiction over you might be proper grounds for a motion to quash. But just telling the Court you didn't do it is not proper grounds. If you want to address the merits of the lawsuit, that's what the litigation process is all about.

Motion to Sever

The motion to sever is basically a request to separate out all the defendants, but continue the lawsuit. Ordinarily when these mass bittorrent cases are filed, the plaintiff (the troll) names a large number of defendants (the subscribers), sometimes in the thousands. If you got one of these ISP letters, that means you are one of those defendants. A motion to sever is basically asking the Court to divide up the several defendants into their own, unique and individual lawsuits. So if the original lawsuit had 1,000 defendants, a successful motion to sever would result in converting one lawsuit into 1,000 individual and separate lawsuits. But still, even if your case is severed, you may well still be in an active federal litigation matter, just not the same one as was originally filed.
A winning motion to sever must attack the propriety of having lots of defendants in one lawsuit, again, not the merits of the case. Proper grounds for a motion to sever are that the multiple defendants don't have anything in common and each defendant has his or her own unique defenses that should properly be litigated separately. Also, proper grounds can include the difficulties of such a large number of individual defendants having to show up for hearings at the same time. In a nutshell, you should argue that keeping all the defendants in one lawsuit would be impractical for the Court.

Motion to Dismiss

The motion to dismiss is the big one. A motion to dismiss is a request to the Court to let you out of the lawsuit. In other words, a successful motion to dismiss is the only way you are officially completely let out of the suit. If your motion to dismiss is successful, you are no longer a defendant in any federal litigation matter.
A proper motion to dismiss is the only place that you can address the actual merits of the case, and even then the evidence must be overwhelming. Remember, the litigation process is exactly how all the he-said-she-said disputes are resolved. So you will not win an actual motion to dismiss with just “the troll can’t prove I did it” or even worse “trolling is just bad.” You have to advance clear undeniable evidence that it wasn’t you, like “that IP address was never mine” or “I’m not even a Comcast subscriber.”
Those are tough cases to make, and those facts are probably rarely true. But the best winning argument you can make is that the Court where the case is currently filed doesn’t have personal jurisdiction over you. To do that, you would have to inform the Court that you have absolutely no ties to the state where the lawsuit is pending. You would have to include an affidavit or declaration, and it would need to say things like “I do not now nor have I ever lived in Forum State,” “None of the acts complained of occurred in Forum State,” and “I do no business in Forum State.” That is a much easier argument to make, and due to the nature of these types of cases, those facts are usually true. And the good news is if those facts are true, and you put them forth in a clear and easy format, the Court is very likely to grant your motion to dismiss.

What does it all really mean?

So those are the technical differences between your three main options to respond to one of the ISP subpoena letters. I should mention that although only the third one (M2D) actually lets you out of the lawsuit, as a practical matter any one of the three would do it. If any one of these three motions is granted, then the cost to the troll plaintiff goes way, way up (orders of magnitude). That extra cost usually makes pursuing the case cost-prohibitive and the trolls just go away. The copyright trolls are having a tough time pursuing their main objectives. So far (with a few exceptions) the trolls stick to the low hanging fruit.
Hopefully, this has cleared up a little confusion that some of you may have had about the legal differences between those three motions. If you still have questions, feel free to contact me or put them in the comments below, anonymous if you’d like.