Copyfutures

RIAA Still Trying

The Recording Industry of Amercia has not given up hope that lawsuits will deter people from illegally downloading music on P2P networks.  The RIAA has announced 754 lawsuits against both named and unnamed defendants.  The RIAA is making their usual claim that the defendants are infringing on the rights of their members.  This year we have already seen the proliferation of lawsuits with cases in Europe and the MPAA launching some lawsuits of its own.  The question is what impact are the lawsuits having on the illegal downloading of music?  Is the continuation of lawsuits by the RIAA a sign of futility or do they actually believe the lawsuits are an effective deterrent?

As of today the RIAA has sued 7706 people, the majority of whom are users of P2P networks who make huge libraries of music available for download.  One way of analyzing the effect of lawsuits is to measure the growth or decline of illegal P2P use.  This is difficult to determine since there are no real individual statistics for illegal use.  The only real way to measure P2P use is in the general growth of its use.  According to Reuters there were 7.5 million users of P2P networks in November of this year.  It was only 4.4 million users in November of 2003.  That is a 70.5 percent growth in just one year despite the lawsuits and threats of the RIAA.  Whether or not the RIAA lawsuits are deterring illegal use is uncertain, but it is clear that it is not having any effect on the overall popularity of P2P networks.  The RIAA must have some confidence that the lawsuits are deterring illegal downloads of music, or they probably would have changed their method of attack.  They could stop suing just the owners of large music libraries and start suing users who make small libraries available or even individual downloaders.  This would probably result in tens of thousands of lawsuits.  It is apparent that at this point the RIAA still fears that such a move would result in a backlash rather than be an effective deterrent.  However, if the proliferation of P2P networks continues it is likely the illegal downloading will as well.  This could eventually force the RIAA to get more aggressive in their lawsuits, or risk the continuing decline of CD sales.

The Glass is Half-full in a Post-Grokster World

After a semester of being considered out of touch with reality and unwilling to look at the practical realities of the modern era of copyright  I am now finally starting to understand the outrage of copyright “minimalists” – they just want to be able to share their recipes. It makes total sense; Fred Von Lohman is fighting for the right to be able to lend the world his personal diaries and to share with hundreds of college kid everywhere his music collections of indy-label garage bands. So where I am I going with this you ask – either one side really does want to share cookbooks over the internet or they are being just a little disingenuous in this copyright “war.”

I’m constantly reminded that these “minimalists” aren’t pro-pirate, but that they are pro-technology and even “pro-culture”. Lawrence Lessig is fighting this battle because as he has said, “never in our history have fewer people controlled more of the evolution of our culture.” I’m willing to concede that point, but does that mean that he supports the masses who use Kazaa-like servers so they can save 15 bucks ignoring the controlling “few people” who tell them they are breaking the law? Mr. Lessig lauds the EFF with praise, I just wish he would agree then with Mark Lemley – this isn’t about suppressing culture through the suppression of technology, rather this fight is one worth fighting in order simply to restore copyright protections to pre-p2p levels. In addition Mr. Lohman ardently believes that there is no reason to disturb Sony as it has worked thus far promoting the interests of consumers and content producers alike (this apples to oranges rationale just doesnt work). Looking through all the smoke and mirrors that both sides of this battle put up so they can be seen as the pro-consumer party, there’s a revealing way to look at all the parties involved. Anyone who has an opinion on these issues know that the future of illegal p2p now is up to the directives of the USSC and as far as I see it there are three different possible demographics of those who think a Grokster loss is just the worst thing that could ever happen….

First, we’ve got the people that see no excuse for restricting technology despite the fact that it is being used for illegal means (commercial distribution of copyrighted materials). Despite the fact that anyone with a brain knows that while Grokster is capable of substantial non infringing use, Grokster is/was being used almost exclusively for infringing uses, this first group believes that the innocent p2p technology should not be a victim (coincidentally these people who are upset about the loss of p2p are probably the same people who use p2p for infringing use – just a guess).

Second, we’ve got those people who believe that music should be free (I actually believe there’s a good argument that Larry Lessig belongs in this group – evidence you ask, his whole book Free Culture is premised on the fact that copyright-circumventing “borrowing” was done in the past and it has led to innumerable modern day marvels). These modern day hippies believe that they have some god-given right to be able to free ride. I won’t even try to rationalize this group – everyone learns in basic history class that communism fails miserably.

Third, we’ve got those people who think a Grokster loss is unfair because there is no telling how many cooking recipes will fail to gain the world-wide publicity that they fairly deserve (hint – this is the disingenuous group, because while most try to place themselves in here, common sense dictates they are really a category one or two).

So, where do you fit Mr. Lohman? Let me guess you’re a category three. You think p2p servers should thrive because you believe everyone should have their rightful access to noncommercial materials – and so by my account you are representing the hopes and desires of about 1000 people (that’s a liberal figure). Now, I don’t think there is anything wrong with the people who want to share their recipes and in fact its great if technology will thrive based upon the growing demand for servers to make easily accessible recipes. Therein lies a looming problem – nobody wants Grokster to live for this morally-justifiable reason.

An argument that I would guess Mr. Lohman would take issue with is this: let’s make cop-killer bullets legal. Everyone has the right to use them. I mean come on are you just the dumbest person alive, cop-killer bullets are capable of any number of substantial noninfringing uses and if we disallowed them, there’s no telling how much creativity/innovation we would drown. We are allowed to hunt and in addition, the target shooting industry is a legitimate multi-million dollar industry. Yes I realize that cop-killer bullets are hardly ever used for noninfringing uses, but they have the capability… I absolutely do not mean to suggest that the pro-p2p/“minimalist” crowd’s motives are this extreme, but I do mean to suggest that for 99.9% of the crowd, their rationales are just as disingenuous. (disclaimer - I know that analogy is poor, but you get my point)

So, now that I’ve offended anybody who has read this far let me propose the reasons why a Grokster loss isn’t the Orwellian nightmare that everyone is trying to convince us of.

Perhaps I’m blatantly misconstruing some matter of common sense – but is seems technology would continue to thrive in a post-Grokster world. However, only for the right reasons….

First, a Grokster loss is absolutely NOT a per se ban on p2p. Rather a Grokster loss is a per se ban on p2p servers that rely on and promote blatantly illegal activity, defend their conduct (or lack thereof) solely with the blind eye defense. If the court doles out rightful justice it will NOT ban Grokster, it will just force them to monitor the use of their product. If Grokster can’t or won’t monitor the use of their product, eliminating the copyrighted materials which they facilitate the sharing of – no sympathy here, byebye Grokster. On the other hand, if Grokster does monitor their site and/or copynorms change and everybody just uses p2p for recipes, indy bands, materials copyrighted under a creative commons-like scheme, and authorized copyrighted downloads, technology will thrive and p2p will thrive.

Second, p2p technology innovation will thrive with unprecedented fervor because the reality is that people like MP3s and realize that a world that combines burgeoning internet technology with something everyone likes – music, is having your cake and eating it too. As a major plus for everyone involved the recording industry is currently in the process of embracing this reality and there is no doubt in my mind that a Grokster loss p2p would elevate this technology even more than a Grokster win.  People may not like having to pay for MP3s now but in time they will be converted - because some recording companies have already signed away their song lists to the likes of Shawn Fanning to use in Snocap, it is a matter of common sense that the remaining major labels will jump on the technology bandwagon. With more music being legally available online, innovators will compete to create the best p2p server available. Moreover, because the p2p servers will be getting paid there is even more incentive for them to create the best possible server. There’s no doubt that illegal p2p servers will exist – but with incentives to innovate so disproportional there’s not a reasonable likelihood that illegal servers will continue to thrive in the mainstream. Innovation is driven by competition, this foundation for copyright protection is incentivized much more with a Grokster loss NOT a Grokster win. Plain and simple, a Grokster loss would demand competition among technology buffs for the almighty dollar – this is an enormous incentive not currently a large part of the picture in terms of p2p innovation.

Third, a Grokster loss would force Larry Lessig to really examine whether a creative commons scheme is desirable, and if it is to continue promoting this potentially useful scheme. At this stage, Creative Commons is being embraced solely by hobbyists, hopefuls, and has-beens. To be honest common sense seems to dictate and I believed that in a world where an artist knows his materials will be stolen and he has no legal recourse, the opportunity cost seems to weigh towards embracing some type of limited creative commons copyright (at least you earn the praise of a bunch of college-aged “leeches”). What does Madonna have to lose in a pre-Grokster world, if she signs onto CC authorizing mp3 downloads of her works 325 million people would take her music instead of 320 million? So in a post-Grokster world we will see whether people really do want to their creations given out, no strings attached. But who knows, maybe we are just a bunch of hippies free-riding along.

Despite my obvious belief that copyright protection must be restored to previous pre-p2p levels I’m not totally unsympathetic to the other side. Mr. Lohman, I honestly do feel bad for anybody who loses something they so earnestly believe in, but just come out and say how you really feel – you are obviously a much more intelligent man than I, but let’s be honest with each other, either you think music should be free or you don’t. Forcing p2p servers to remove copyrighted materials is a way to promote this burgeoning technology – it is not the means to destroy it.

There are certainly many ways copyright law needs to be updated to meet the realities of modern technology – condemning frivolous claims, ensuring the fair use defense, and re-examining the justifications for copyright terms are all among the deficiencies of copyright that modern innovation has forced us to ponder. However, the fact that p2p and modern technologies highlight these aforementioned inefficiencies is absolutely not a reason to crack down on peer to peer – on the other hand that Grokster-like servers enable the circumvention of laws that promote creativity is a good reason.

A Grokster loss, such that it sets the precedent that turning a blind eye is an absolute joke of a defense is not the be all end all to p2p technology. In fact it is quite the opposite. In my view defending the position of Grokster speaks volumes for so called copyright “minimalists.” Instead of wasting their efforts to condemn the (for the most part) lawful endeavors of the content industry which accuses Grokster and its users of circumventing tried and tested means of benefiting the public as a whole, copyright “minimalists” should take the side that is truly pro-technology. If I have come away with anything this semester, studying both sides of the debate has taught me that anyway you slice it, being pro-technology does not mean having to be against the industries which create the content, which spurs the technology and arguments to the contrary are just a little disingenuous.

The future of copyright is anybody’s guess but we all know that the ruling next year in Grokster will have unprecedented implications on the future of copyright. I just hope the Court sees that copyright laws are in place because they promote the best interests of all involved. Overturning the Grokster decision is not only the best way to promote the arts and sciences, it is the best way to promote peer to peer technology.

Supreme Court to Hear Grokster case

The title pretty much says it all. The Supreme Court has decided to hear the Grokster case and determine whether P2P companies can be liable for the copyrighted material their users share over their networks. You can read more about it here.

The outcome of this case could cause a major shake up in the world of intellectual property. A ruling against Grokster could mean an end to many if not all P2P services...in their current form at least. Much will depend on how the court delivers the opinion. It will be very interesting how the court determines liability. If only those companies that make a profit from the services will be affected, this could open a window for non-profit P2P programs to still thrive. How much knowledge or intent is needed by the company of the illegal uses of the product. If substantial non-infringing use is still an available buzz word. And how P2P companies are supposed to stop their product if the "horse is out of the barn" argument is true. Will the company be indefinitely liable since the product could be used to share songs or movies in the future that haven't even been thought of yet?

I think the court will construe liability narrowly especially if the Court finds Grokster or other P2P owners cannot stop the product from being used even if they wanted to. Otherwise it would seem the company could be liable indefinitely. I guess there would have to be some sort of settlement to pay off those who are injured and maybe have a fund for those who could be affected at some point in the future. Even if a company such as Grokster went bankrupt it still wouldn't seem to prevent P2P sharing if individuals could still run the program without any oversight by Grokster or another P2P company.

Any favorable ruling for the copyrighted material industries would be at least a huge moral victory and would at least put a kink in the P2P networks. However, I think the only way the music and movie industries will really win is if P2P networks are made illegal. Otherwise you will still have P2P programs out there that are made by people not looking to make a profit off of them and thus you don't have anyone to really sue for mass liability as we do in the Grokster and Kazaa cases. Long term it will still require holding the individual users liable or at least finding a way to curb much of the illegal uses by making legal uses a better alternative.

I think the largest impact won't be from what the ruling itself says, but from the actions that happen in response to the ruling. The largest impacts will likely be more major lawsuits and settlements against other P2P companies if there is a victory for the recording industry. Or Congress will pass some form of legislation on P2P if Grokster wins. Any Congressional rule will either overturn the Grokster decision or it will attack the individual user and then who knows what will happen. Either the Copynorms will change or maybe this could cause such a major outcry that forces Congress to be more P2P friendly. The possibilities are endless at this point. Let's see what the Supreme Court has to say about it first and then the real battles begin.

RIAA Targets College Students with Latest Round of Suits

The RIAA, in an apparent attempt to reclaim its "most hated industry" title from the MPAA, has issued another 761 subpoenas directed at p2p file sharers. The latest attack is targeting students at twelve American universities. Tech Law Advisor mentions that, according to p2pnet.net, the suits are actually being used as a marketing ploy to force universities into promoting industry-backed p2p networks. According to RIAA president Cary Sherman:

The lawsuits are an educational tool ... They remind music fans about the law and provide incentives to university administrators to offer legal alternatives.

Right...keep in mind that Cary Sherman also co-chairs a Joint Committee of the Higher Education and Entertainment Communities. I'm sure the committee has university students' interests in mind. Basically, with the threat of more suits the RIAA is trying to impel universities into purchasing university-wide "legal" p2p networks (like this from an earlier post on this site).

I have to admit, this is a good approach by the RIAA. Instead of targeting individual users, they are attempting to net the bigger prize of thousands of university students. And, in reality, the universities are going to buckle to the threat of lawsuits involving potentially hundreds of their own students.

As a side note, I did some research on Cary Sherman and found that he was interviewed by the contributors and readers of blogcritics.org back in 2002. Overall, the interview is pretty uneventful -- Sherman being asked the typical questions and giving even more typical responses -- but there was an anwer he gave that did catch my attention. In response to someone questioning whether p2p filesharing is responsible for slumping CD sales, Sherman said:

I wish you were right that CD sales haven't been impacted by filesharing. (I hate that term, by the way. To me, "sharing" means we each get a little less. If I share my pie, I only get to eat half. If I share my car, I can't use it when the other person has it. "Filesharing" however means we each get the whole thing, and noboby gives up anything! That's not sharing, it's publishing!)

In that statement, Sherman exactly describes the difference between sharing something tangible, like a car, and sharing an mp3 file. The rivalrous vs. nonrivalrous distinction. He makes an interesting point; that because of this distinction it should not be called "sharing." That's a pretty lawyerly way to look at it, but if you are convinced that "publishing" is the proper label, then shouldn't rights of exclusion be presumed? Hmmm...I'm not entirely convinced yet, but I'll have to give it some more thought. Unfortunately, with finals coming up I'll have to subordinate that thought for awhile.

Kazaa's Achilles Heel(?)

Kazaa has always maintained that they are unable to control what the users do with Kazaa software.  Today (November 30th in Australia) the Australian Court discussed some facts suggesting otherwise.  An Australian news report states that:

Lawyers for the labels, including Universal, EMI, Sony BMG and Warner and Festival Mushroom, contend Sharman was fully aware that Kazaa was used to download unlicensed music.

Counsel for the labels, Tony Bannon, used Kazaa's own website as proof of Kazaa's knowledge.  The Kazaa website states:

If at any time Kazaa finds that you are using Kazaa to collect or distribute child pornography or other obscene material, (the software company) reserves the right to permanently bar you and your computers from accessing Kazaa and other Kazaa services.

Bannon's point is that if Kazaa can monitor and kick off users for sharing child pornography, why not for illegal copyright infringement?  If Kazaa's warning is true, Bannon has a valid point.  However, it is certainly possible that Kazaa does not in fact have the capability of monitoring users at all.  Maybe they just put the warning to help avoid liability.  Or maybe it was just an attempt to help curb child pornography because it is so vile and harmful.  Is Kazaa caught in a lie?  It will be interesting to see more facts as they develop.

Sampling: P-Funk Style

A recent federal court decision comes down hard on rappers, insisting that they pay for every music sample used in their recordings, "even minor, unrecognizable snippets of music."  However, this decision is not entirely out of the blue.  Previous decisions by lower courts have required that musicians pay for any music sampled from other artists.  However, it was always legal to use "music snippets" without compensating the other artist, as long as the snippets could not be identified.

A 6th Circuit Court in Cincinnati has dissolved this distinction between the legality of paying for identifiable snippets vs. free use of unidentifiable snippets.   The judges rationalized that "federal laws aimed at stopping piracy of recordings applies to digital sampling."  They also explained their views of the inconsistency in prohibiting an entire song to be sampled but allowing parts of that same song to be sampled (or "lifted").   The judges defended their decision as still allowing creativity among rap artists.   A license to sample the song from the original artist is all that is needed. 

Critics of the decision have argued that it is "too restrictive."  Many rap artists frequently "rhyme" over samples of older songs, and this decision will be especially difficult to follow in such situations.  For example, in Nashville alone there have been more than 800 lawsuits filed against artists who have sampled snippets from older songs.  One such lawsuit was the driving force behind this decision.

'100 Miles and Runnin' by NWA "samples a three-note guitar riff from Get Off Your Ass and Jam by '70s funk-master George Clinton and Parliament Funkadelic.  The original song was somewhat distorted for its use in the rap song: "the guitar pitch has been lowered, and the copied piece was 'looped' and extended to 16 beats."   The song was featured in "I Got the Hook Up," a 1988 Film by No Limit Productions. 

Bridgeport Music and Westbound Records own the copyright to the George Clinton song, and were disputing No Limit's claim that the "sample was not protected by copyright law."  The original suit led to a summary judgment for No Limit.  The court held that "the riff in Clinton's song was entitled to copyright protection, but the sampling "did not rise to the level of legally cognizable appropriation."  Clinton's record label appealed and was successful in the appeals court. 

Any artist who recognizes that he or she is sampling should also recognize the potential liability at stake in using the song without the consent of the original artist, "even when the source of a sample is unrecognizable."  This decision also rested on the fact that No Limit failed to dispute that they "digitally sampled a copyrighted sound recording."  Undoubtedly, the result of this litigation is sure to have serious financial consequences for the music industry, in particular rap artists. 

The Robbers' Reward

The Kazaa suit in Australia has been the subject of a few recent posts, so why not one more? A recent article on CNET news gives some insight into the music industry’s case against Sharman Networks (as if it really was a big surprise what they were going to say).  While Sharman holds the position that it cannot control what the users do with its software, the music industry basically calls the software (or at least the latest version) “the robbers reward” that does nothing to prevent copyright infringement.  In their own words:

Kazaa version 3 provides delightfully contemporaneous evidence that the respondents give their blessing to the copyright-infringing ways of their users. Indeed, they reward them with a new and better product to continue their robbing ways."

Strange how you don’t see this kind of reaction to new and advanced photocopiers that can do anything and everything (including make coffee).  I haven’t seen anybody call for Xerox or Cannon to engage in mass efforts to prevent copyright infringement on their machines, even though it is widely accepted that a good amount of copyright infringement (even taking into consideration fair use) takes place on those machines on a daily basis.  Heck, if these groups were really serious about protecting copyrights as a whole (and not just their profits), they would station a “copyright cop” next to public photocopiers to make sure copyrights aren’t being infringed. Sure, the MPAA and RIAA have more important technologies to worry about (DVD burners, iPods, Tivo, etc), but if their desire to protect copyrights from infringement was so genuine, you’d think they would try a broader approach rather than just target the likes of Sharman Networks.  This way, when they go after Sharman Networks, their argument of protecting copyrights from infringement might not seem so disingenuous. 

What gets me is the industry’s argument that Sharman Networks has the duty to design its software to make it harder for copyright infringement to occur.  Even if, as the music industry says (referring to Sharman), “they are perfectly capable of taking steps to inhibit infringing activity”, this does not confer an obligation on Sharman to put into place any measures to stop infringement.  Although this is an argument that Posner mentioned in Aimster – the “could have designed it better” standard – that is not the state of the law today.  Now, if cert is granted in the Grokster case here in the U.S., maybe there will be some kind of affirmative requirement to take “reasonable efforts” to eliminate the possibility of software being used to infringe copyrights.  However, that is unlikely because it really isn’t an issue in the case. 

At any rate, whether or not designers should be forced to take into account the facilitation of copyright infringement does not appear to be the kind of issue that courts should be deciding.  At the Supreme Court mentioned in Sony, Congress is better suited to deal with these types of matters.  From the looks of it, it appears that the music industry’s next strategy (unable to pass legislation in Congress, not making too much headway in the courts, and unsuccessful in scaring people away with lawsuits) is to persuade any court it can find in the world that p2p file-sharing that allows users to engage in copyright infringement is bad and should be stopped.  Of course, now that several major labels have tried to get in on the p2p action, as noted by Yip Yu, do they really think there exists a court that is going to believe them?  If the music industry saved its litigation costs and used them to knock a few bucks of their CD prices, they might not be in this situation today.  But who am I kidding?  That is waaaay too easy of a solution to this problem. 

Crafty Kazaa in Court Monday

Sharman Networks has grabbed its share of headlines lately.  As noted a few days ago by Aaron Hand, Sharman has now integrated their VOIP inteface, SKYPE, into their infamous P2P program, Kazaa.  Old criticism of Kazaa for its incorporation of spyware on user's systems has not dissipated either, at least according to Computer Associates, which ranks Kazaa as the worst overall spyware threat, based as much on the shear number of users as on the actual maliciousness of its little presents (Cydoor, Gator, Altnet...)

Amidst all the legal wrangling surrounding P2P networks and applications, Sharman has been unscathed, largely due to their corporate setup, and a win in the Dutch courts a year ago.  As described in a brief, but highly informative  article in Wired a couple of years ago, the complex, decentralized nature  of Sharman's operations (unknown ownership, born in Netherlands, later incorporated in Vanuatu, Kazaa domain name registered in Australia, servers in Denmark, you get the picture - sort of like tracking down Enron's fake revenue schemes) has allowed it to limit its scrutiny to a large degree.

Law enforcement may be about to gain the upper hand on Sharman though, or at least duke it out in court. According to ABC - "A" for Australia - action starts on Monday, "involving more than 50 lawyers.." in a fight launched by the Australian Record Industry Association against Sharman Networks and its partners, including Lef Interactive, Altnet and others. The case may shed some light on the actual ownership of Sharman Networks and some of its more juicy financial details. One news report indicated that Altnet's role within Kazaa was being examined, with the suggestion made that Altnet may essentially be operating a secondary P2P network within the framework of Kazaa, for the dissemination of its spyware.  Further details should certainly emerge as a result of the "rare" invocation of Australia's "Anton Piller" order, which when permitted in civil cases, permits litigants to aggressively pursue evidence. Apparently, the residences of several executives as well as corporate offices of some of Sharman's business partners were raided in the months leading up to this drama.

Australia may be a tough battle for Sharman. It certainly appears that their courts mean business.  Win or lose, any relevant information from the Anton Piller raids will be unleashed, free like a file on their network.. for any subsequent prosecutions to use as evidence. Barring any legal maneuvering to suppress it, these intimate financial details could well be enough to establish Sharman's secondary liability in US court.

Copyright Winning In Court

Copyright owners are having an excellent week when it comes to court rulings.  CNET reports that a federal lawsuit that was brought against the aggrandizement of copyright  law was dismissed by the judge.  The lawsuit was filed by a group of "internet archivists"  that is headed by Brewster Kahle.  It is his intention to create an enormous digital archive called the Internet Archive project.  It is easy to see why he is an opponent of copyright protection since it greatly limits the material he will be able to make available in his archive.  The group that is part of the lawsuit may be small, but there are millions of people who are not in favor of current copyright law and certainly are opposed to expanding it.

The main contention of Kahle's group is that the lengthening of copyright protection terms by Congress has greatly changed traditional copyright law in a harmful and illegal way.  The group considers it especially bad to allow lengthening of a terms  automatically by law when an author did not make make a request.  The group hoped that the court would find most of the expansion done by Congress to be illegal.  If this were so, there would be a great amount of movies, books, etc. that would be in the public domain.  However, the court did not agree with the group and found that it was within the power of Congress to expand copyright term limits.  The court held that Congress had a lot of flexibility to increase copy protection without interference of the courts.  The judge, Maxine Chesney, based her decision on a recent Supreme Court Ruling which held  that the court "was not at liberty to second guess congressional determinations and policy judgements of this order."  Kahle stated that he would appeal the case and that he had expected to have to prove his case at the appellate level.  He says that his main objection is not necessarily the expanison of the terms, but rather the automatic renewal of copyright terms without the author reregistering. 

It will be interesting to see how the appellate court will rule, but the odds of Kahle and his group winning do not seem good since the Supreme Court was so clear on the issue of Congressional authority to expand copyright law as it sees fit.  However, Kahle believes he will prevail stating:

The key component of the district court ruling is that the judge did not consider the main aspect of this case, which is the changing of the contour of copyright law from opt in to opt out.  That has dramatically changed what's under copyright, and even more ominously, changes the nature of what can be put on the Internet.

The ruling against Kahle was not the only victory for copyright owners in court.  A federal court has imposed the maximum fine possible for leaking movies to the internet.  Carmine Caridi has to pay 300,000 to Warner Bros. Studios for giving The Last Samurai and Mystic River to Russell Sprague, who converted them from VHS to DVD and put them up on the internet.  Sprague is currently awaitning sentencing from a conviction for pirating some 200 movies frome the "screener copies" that Academy members receive.  Caridi had the movies since he is a member of the Academy of Motion Pictures.  Academy members receive copies of movies still in theaters so that they can view the movies and vote on them for the Academy Awards.  Caridi's conviction should send out a strong warning message to people who might be pirating movies.  In this case the judge held that such acts were egregious and deserving of the maximum fine allowed under law.   

Google search engine not a "Perfect 10"

Last Friday, the adult entertainment magazine and website Perfect 10, filed a lawsuit against Google, the online search engine, contending the legality of the 800,000 + allegedly unauthorized links Google provides to web users of Perfect 10's models.  Perfect 10 claims that these links are negating membership fees and hurting advertising revenue, and is suing Google for 12 counts of IP violations against both the magazine and website, perfect10.com. 

This is the first time Google has ever been involved in such a lawsuit, and is faced with allegations that their alleged violation "is devastating to and threatens the existence of Perfect 10’s business.”  Perfect 10 executives are requesting a jury trial.  They claim that they made 27 attempts to convince Google "to remove the offending Web sites from its index and stop displaying the photographs in its search results."  Google, however, did not respond favorably to to request.

The majority of the IP courts involve copyright infringement.  The main claim against Google is that search results "pull up photos of nude female models that belong to Perfect 10," which constitutes copyright infringement, according the the lawsuit.

Perfect 10 charges its members a fee of $25.50 per month, and reports that it gets over 100,000 visitors each month.  Their main concern with the Google search results is that they "pick up the photos from other Internet locations, which are described in the lawsuit as 'stolen content sites,' or web sites that steal images and allow Internet users to avoid paying subscription or membership fees for members-only pornography web sites."  Additionally, Perfect 10 claims that some of the Google search results return links to "password hacking sites" that allow web users to view perfect10.com's images without paying for them.

Although the Google search is not directly targeting the perfect10.com site, it picks up the illegal web content of other sites, which Perfect 10 claims makes the company responsible, both legally and financially, for its' search engine's violations.

Norm Zada, a publisher with Perfect 10, explained that his company was going after Google because of their desire to attract new users with pornographic pictures, thus increasing their revenue while decreasing Perfect 10's.   Zada stated that "he fears his company will be driven out of business unless Google is forced to stop distributing the 'free peeks.' "

Perfect 10 models gain recognition and publicity through their images in both Perfect 10 magazine and perfect10.com.  The lawsuit is seeking damages for violation of the models' rights, as well as damages for trademark dilution, unfair competition, and unfair use of a registered trademark.  Zada added, "It's very difficult to make money when all of your pictures are given away worldwide for free."

Federal law requires that the copyright holder bear the burden of identifying copyright infringement, so Google must respond to the alleged violations Perfect 10 has raised against them.  In the past, Google has been known for "quickly removing infringing works from its database," says Jonathan Zittrain, co-founder of the Berkman Center for Internet & Society at Harvard Law School.  "Google gets tons of notices and generally listens to them," Zittrain said. "I'd be surprised if they weren't listening to these."