The posting by Sydnor had plenty of accusations against a Chilling Effects study which was used by Google in New Zealand. It should be known that the PFF is known for being supporters of the RIAA, the MPAA and other organizations that represent a point of view that copyright should be more restrictive.

The PFF Argument

Sydnor wrote, “The Internet can contribute significantly to the quality and quantity of debate about important questions of public policy. But–particularly when copyrights are at issue–it can also amplify and perpetuate the worst nonsense spouted by the least competent employees or agents of even generally well-intended entities.”

Sydnor discussed a document by Google during a hearing in New Zealand to discuss copyright related issues. He cites a small footnote as well as a comment by a representative which was traced back to a summary of a study regarding DMCA notices and the chilling effects of the DMCA. The claim was, according to Sydnor, that 37% of the DMCA notices issued to Google were problematic.

Sydnor responded, saying, “This claim is nonsense: That 37% figure derived from an egregious misreading of an absurdly aggressive “summary” of a “study” that was, itself, so biased that it could find even a takedown notice directed at inarguably infringing conduct to be “substantively flawed.”"

Sydnor said, directed at the summary, that “not only does the Urban/Quilter summary repeatedly contradict the actual study, it also repeatedly spouts blatant nonsense. [...] In short, the Urban/Quilter “summary” of the Chilling Effects study distorts law and the study itself so badly that even foreign lawyers only dimly aware of the basics of U.S. law probably should have realized that this summary was unreliable.”

Sydnor then says, “In conclusion, the Google comments to New Zealand were not only dead wrong, they were also hyper-technical at best, and self-destructive at worst. Nevertheless, the usual cheerleaders-for-piracy will surely claim that these were mere technical errors because the Chilling Effects study itself would support claims that 31% of DMCA notices are “substantively flawed.” See Chilling Effects at 667.

Don’t bother, piracy cheerleaders. Even had Google correctly reported its results, the entire Chilling Effects study would still be useless junk science.”

Sydnor concluded, “The “scholarship” of the copyright-hating Free Culture Movement has become so absurdly biased against creators and copyright enforcement that refuting it is often even less challenging than shooting fish in a barrel. After all, fish in a barrel do not exacerbate their predicament by obliviously pinning “Shoot-Me” signs upon their own scaly backsides.”

Fred Von Lohmann from the EFF Responds

“In my view,” Fred Von Lohmann, Senior Staff Attorney for the Electronic Frontier Foundation (EFF) replied, “this is essentially name-calling. The study speaks for itself — Google simply cited it as one example in a much lengthier document.”

“As for the potential copyright liability of search engines,” Lohmann told Zeropaid, “Mr. Sydnor overstates his point.”

Lohmann explained some of the case law behind the DMCA, “Most copyright experts agree that providing hypertext links to infringing material (whether in a search engine or otherwise) can give rise to copyright infringement liability where the link provider knows or should know that the linked material is infringing (Tom doesn’t even cite the most important case on this, Perfect 10 v. Amazon.com). But search engines that qualify for the DMCA safe harbors cannot be hit with monetary liability for it. There is lots of debate about the precise contours of the DMCA safe harbors (notice-and-takedown, removing links when it has actual or “red flag” knowledge, etc), but no one seriously debates that the DMCA safe harbors were intended to include search engines (Yahoo was a chief architect).”

“How offshore infringements interact with copyright liability for search engines and the DMCA safe harbors is a complicated subject, and one that has received almost no attention in the courts. There’s certainly nothing approaching legal consensus about it, despite some comments by the judge in the recent Isohunt case (cited by Sydnor).” Lohmann added.

Sydnor did say that the Chilling Effects Study was biased because of the samples given for one. Lohmann responded to that criticism.

“Frankly,” Lohmann told ZeroPaid, “if Sydnor is so concerned about accurate statistics on the number of bogus DMCA takedowns (and there have been many, many documented reports of bogus takedown notices), he should be pushing to copyright owners provide copies of all of their notices to Chilling Effects. Then we’d have a data set that would give us solid insights!”

Summary Authors Also Respond

Jennifer M. Urban, one of the two authors of the Summary, “Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act”, the Summary Sydnor criticized so heavily also responded.

Urban agreed with Lohmann that Sydnor missed the most relevant case, Google v. Perfect 10. “The Napster, Grokster, and Aimster cases all involved peer-to-peer filesharing software or services as opposed to the basic search engine (Google) we were studying.” Urban told ZeroPaid. She added, “There are quite important differences in both the technology and the actions of the defendants in peer-to-peer cases, as compared to search engines like Google or Yahoo. For example, Grokster was found to intentionally induce infringement by users, Aimster showed “willful blindness” to infringements, and Napster had actual knowledge of specific infringements by users who were using its software to pass information back and forth through its indexing server. The caselaw has changed some since we wrote our paper, but these differences largely still remain.”

We asked Urban to give a brief explanation about her study and she responded, “We set out to review DMCA takedown notices in order to understand what we could about how they were being used, whether they were working for copyright holders and whether they were being misused. Takedown notices are very difficult to study, because for the most part, they are simply private correspondence between copyright holders, service providers and in some cases, alleged infringers, and are not available to researchers. We were fortunate in this instance to have access to all the takedown notices Google had received for a certain time period, so we were able to look at that whole landscape of notices. Certainly there are limitations to the study–for example, because we largely had notices from Google, which were mostly targeted at its search engine, we couldn’t tell anything about notices to webhosts or other service providers. We were, we think, very clear about these limitations in the study. At the same time, because we had all the notices from Google over the time period, there was not a bias in the selection–just a limit on how much we could compare them to other situations.

The finding that roughly a third of the notices were problematic was based on a relatively conservative set of criteria. For example, we counted only the clearest types of possible fair uses. Basically, we counted notices that presented a clear question for a court–situations where you would want some external review rather than automatic takedown. We certainly welcome people to read our study and to let us know their comments.”

Urban also clarified that there was more than the dataset in the Chilling Effects clearing house that was used in the study. “I explained the Google dataset below, which was the bulk of our research project. We also, however, looked at notices that individuals had self-submitted to Chilling Effects. We kept this sets separate from the Google set for almost all purposes and were cautious with it. This is because the self-submitted notices likely do have selection bias–they were submitted by people who presumably had various reasons for doing so, and we had no insight into their motives, etc. For this reason, we separated them out. They did not make any difference, from a statistical perspective, in the overall percentage of notices with substantive flaws–it was 31% with the self-reported notices and 29% without them. Either way, it was about a third.” Urban said.

After Thoughts

It should be noted that discussion on this issue was encouraged. We couldn’t agree more because copyright infringement claims, in the face of a massive push by the major entertainment industries to implement a three strikes law everywhere in the world through agreements such as ACTA, should be carefully examined. After all, in some instances, even in France at one point before the constitutional courts forced France to have judicial oversight on disconnections, a three strikes law has been seen as little more than three accusations and your out. How reliable are copyright infringement claims anyway? What if Yahoo filed three copyright infringement claims against Google? If they were invalid, should Google be disconnected from the internet? What about someone who has personal issues with another person online? If one were to make three fake copyright infringement claims against another individual, would that warrant a disconnection against the accused? What safeguards will there be against potential abuse?

DMCA notices can be a very good way of asking these important questions. Are the DMCA notices legally sound or are they filed by people who have limited knowledge of the applicable laws? Certainly if a third of the DMCA notices received by Google appear to be legally problematic, that’s enough to raise some concern especially when countries are considering implementing a three strikes law.

This is definitely an issue worth discussing.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Imagine a world where false accusations are a new weapon to anyone, against anyone. There’s no need for evidence, just a trio of simple accusations of copyright infringement. Those accusations would then, in turn, disconnect alleged infringers from the internet. The copyright industry has long hoped this would become a reality and with the Anti-Counterfeiting Trade Agreement, this hope by major copyright businesses could become a reality.

We here at ZeroPaid were curious to know just how common false accusations really are and sent out a call for people’s stories who were part of a false accusation for copyright infringement. You, the readers, certainly already delivered. Here are the false accusations we received from you as well as a few we found already hanging around the web.

Accusation #1

IslamWay

Our first alleged false accusation comes from an anonymous submitter who simply passed along a YouTube clip of the story.

In a nutshell, according to the video, the alleged false accusation came about when users who disagreed with this vlogger set up a website called “IslamWay” well after the vlog was started. After setting up the website, the users then sent a DMCA notice to YouTube to pull down any videos about IslamWay claiming copyright infringement.

This does not constitute legal advice, nor is this an expert legal opinion, but as far as we know, at least in Canada, when an idea is transfixed onto a medium, the creator automatically gains a copyright on that given work. One can’t simply have an idea and claim copyright as it has to be transfixed. Registering the work is another story, but if one can prove something was created prior to someone else producing an identical work, it would be difficult for the person who created that second work to go after the first person who created that work – especially if that idea also isn’t registered.

Are there legal questions to be made? Maybe. Does it matter? Not in a three strikes system.

Accusation #2

Usher.mp3

This is a well known case clear back in 2003. Many articles surfaced describing the tale.

Apparently, a teacher posted lectures on an FTP site. The problem was that the last name of that teacher was “Usher” and he posted his lecture as “Usher.mp3”. The file, along with another file with a similar story, caused the automated system the RIAA had to combat piracy shoot a DMCA notice against Penn State’s department for astronomy and astrophysics. Administrators were puzzled and later communicated with the RIAA. The RIAA, pink in the face, were forced to apologize for the false accusation and withdrew its case saying that it was just some temporary employee.

Was an error made? Yes according to both sides. Does it matter under a three strikes regime? Not really.

Accusation #3

A Ribbed Viacom

Remember the Viacom case of 2007? That case where they sent thousands of DMCA notices to YouTube? Then Viacom discovered that some of those videos were not really there’s? yup, that’s the one! What a shame someone’s rib dinner wound up being caught in the mix.

The story goes that while talks between Viacom and Google over filtering technology were going on, Viacom sent a DMCA notice to YouTube demanding the removal of over 100,000 video’s. The video takedown was brought to you by various keyword searches. As a result, someone’s video of eating a rib dinner was caught up in what many consider the Viacom YouTube dragnet. It’s unclear what became of the story, but it was pretty obvious a mistake was made somewhere along the line.

Was a mistake made? Probably. Does it matter in a three strikes regime? Nope.

Accusation #4

I Downloaded What?

Another anonymous user sent us the following e-mail:

Yup, got a warning notice from our provider saying I had downloaded a certain movie. I don’t download movies. Just the same I scanned every computer in the house for the file I supposedly had–nada. We have a secure network, and I doubt it would be hacked since both our immediate neighbors have left theirs open. So I replied with a somewhat nasty letter saying they better not keep any sort of record saying I did this….never heard back.

This sort of thing has been known to happen for anyone who watched any popular file-sharing forum for a few years. It seems that sooner or later, a user receives a copyright complaint. Puzzled, the owner scans the computers in the household and finds nothing.

From this point, some users realize they have an open wifi and it was highly probably that someone hijacked the WiFi point – a particularly common problem in densely populated cities. These days, Wifi security is much more commonly practised though since awareness has been boosted, in part, by problems in the past. Still, one cannot ignore one of two possibilities: 1) Wardriving has also become more sophisticated or 2) Someone managed to hijack an IP address (at which point, there’s probably little a user can do to avoid receiving a legal complaint if they are innocent).

Was the user innocent? More than likely. Is it good standard practise to secure a personal WiFi hotspot? Absolutely. Is there reasonable doubt should a case like this go to court? Definitely. Does it matter in a three strikes regime? Definitely not.

—

It should be noted that, if you’d like to submit a false copyright infringement accusation story, it doesn’t have to have happened immediately, that day or even that year. It could be several years old at this point and we’ll be happy to take them. It also doesn’t matter to us if the case is ongoing or settled through counter-notice DMCA claims. We do not provide legal advice nor do we have any professional legal opinions on the matters. You can also submit the stories anonymously and have all members in the case anonymous as well. We are just after stories about false accusations. If you’d like to submit a story, and similar stories to the ones mentioned above are more than welcome, to us about a false copyright infringement accusation, feel free to send me, Drew Wilson or Jared Moya an e-mail (At this time, stories submitted to Jared will probably be forwarded to me):

Drew Wilson – drew@zeropaid.com
Jared Moya – jared@zeropaid.com

Total accusations: 4
Total people it could disconnect: 1

Stories don’t have to be file-sharing related in particular – just as long as the accusation is related to use of the internet in some way. You can simply put “False Accusation” in the header of your e-mail with your story as this will help us sort out e-mails a little easier.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

September

September started off with the continuation of the Jammie Thomas trial where Thomas appealed her $80,000 fine. Amongst other arguments, the fine seemed to be arbitrarily selected.

After a ThePirateBay Mixtape of all the songs Joel Tenenbaum was fined for, an RIAA lawyer took the unusual step of saying that the mixtape was all Joels fault.

France was, of course, back in the headlines in the month when the French Pirate Party had a shot at winning a parliamentary seat, further bolstering the international parties success on the international stage. No doubt, the Pirate Party in that country was able to get some support on the issue of Three Strikes law which, after a few bungled attempts, managed to produce the oddly titled “France Passes Three Strikes Law for Second Time”. Regardless of the French Pirate Party’s growing success, it seemed that the inevitable happened where France adopted their three strikes law.

Tension in Australia over the governments so-called “voluntary-mandatory” internet filter continued when opposition parties wanted to end the farce altogether. In response to some of the criticisms, a minister said that he never wanted to filter p2p traffic.

More news in Ireland happened when one Irish ISP decided to block ThePirateBay.

In the UK, the British government made it official that they supported the three strikes legislation, saying it was an “evolved” plan. The UK ISPs were quick to denounce the move. In a show of even more solidarity against the three strikes law, UK musicians quickly denounced the three strikes law as well. In case there were artists still skeptical about those who are against the three strikes law, a UK consultant said that artists shouldn’t really worry about internet piracy in the first place. Distraught by all those artists arguing against a three strikes law in the UK, the major music labels tried to argue that all artists were united in supporting a three strikes law.

In a rather humorous and ironic moment in September, Sony BMG faced a near repeat of the lawsuit against it for software piracy in France and were accused of a textbook definition of music piracy in Mexico. No doubt the company was once again embarrassed given their stance on piracy in the first place, but it lent credence to the theory that it’s often the case that the biggest complainers to a problem are also often the biggest culprits as well.

Doubts continued with the acquisition of ThePirateBay when GGF was delisted from the Swedish stock exchange. Keeping ThePirateBay accessible for all was under attack, but one Swedish ISP did appeal a court order to block the website. Shortly afterwords, GGF, trying to salvage some credibility, managed to get re-listed in the Swedish stock exchange. Unfortunately, the news was followed up by even more bad news for the buyer when they faced court over unpaid debt. On the legal front, something happened during ThePirateBay trial that few thought was possible, the major record companies and the admins agreed on something – specifically that there were questions to be raised over a judges affiliation affecting his judgment. Admins for ThePirateBay later appealed the decision that the judge was not biased in his guilty verdict citing even more bias from the three judges on the panel.

The Canadian Pirate Party in September was also able to give us a landmark interview when they were one step closer to becoming an official political party. By the end of the month, the party launched a BitTorrent tracker to show once again that there are legal uses for BitTorrent among other things.

October

October started off with the continued, at least for many observers, circus of the acquisition of ThePirateBay. After creating a deadline for the acquisition of the BitTorrent site, the deadline came and went without a purchase. Google also wound up in a bit of controversy when it temporarily removed search results, then re-instated them again. Then, after, once again, failing to get ThePirateBay removed from the internet, the major entertainment industry corporations tried to get, what was described as, the websites ISPs ISP to block access to the website – obviously without much success again. Then, after all the ups and downs, GGF themselves finally admitted that the acquisition of ThePirateBay was “uncertain”. After that fiasco, the legal front for ThePirateBay got even more heated when BREIN was caught forging evidence against the site. Meanwhile, the trial against ThePirateBay was delayed until the Summer of 2010 – putting a halt on the whole trial, no doubt, to the dismay of the copyright industry. Meanwhile in the Netherlands, in spite of falsifying evidence against the admins of ThePirateBay, BREIN won a legal victory against the site. ThePirateBay, after seeing their first sale fall through, said that they were on the hunt for new buyers. Legal issues about the site then took a turn against them when a Swedish court said that the site must be shut down or else the admins faced additional fines.

Not satisfied with a three strikes law, the UK music industry demanded that “illegitimate” p2p sites be filtered as well. Sometime later in the month, a petition surfaced online that would get the government to legalize non-profit P2P activity. Seems like it was just another sign that UK citizens were unhappy about the governments “evolved” plan as well. That was not to say the entire government was on board for a three strikes law though as 21 MPs some time later in the month announced their opposition to the three strikes law; they called it a futile attempt to disconnect pirates. A British ISP also showed further evidence that the three strikes law was ill-conceived by showing just how easy it was to piggy-back WiFi. Ideologies also collided in the country when the major music business argued that The Pirate Party’s idea of a 5 year copyright term would undermine the whole industry. The three strikes debate then roared back in to headlines when a poll conducted with Open Rights Group suggested that 73% of British citizens believed that a three strikes law would harm use of vital services – as if there needed to be more evidence on how many people oppose the law, but further proof was there. It seemed that something happened within the government – whether it was public pressure or France having to legislate that the third strike would be issued by a judge is unclear – as they said that a third strike would be issued by a judge. That didn’t stop Britain’ss top spies from denouncing the three strikes law because they argued that it would fuel online anonymity, thus making it harder to spy on people over the internet. Opposition only continued to mount against the three strikes law when MPs argued that an internet connection is considered an essential service.

Spain made it into the headlines again in October when the government was set to establish an anti-p2p commission.

France, of course, was also in the headlines, but the first headline of the month to come out of the country was definitely an ironic one. The story described the French presidency accused of pirating a DVD. This would make the governing party a repeat copyright infringer of all things. Nothing much happened for a while though until later that month when France’s top court approved of the modified three strikes law where the third strike would be issued by a judge.

In the US, there was finally a resolution for ASCAPs controversial attempt to get performance royalties for ring tones. A judge killed the attempt by ruling that a ring tone is not a public performance.

The whole European Union also made headlines in October when they stunningly did an about-face and gave an OK to disconnect alleged file-sharers.

November

November started rather differently with a story that seemed to have eluded headlines for a while – ACTA. It was revealed that ACTA would bring in a global DMCA and a three strikes law. After facing severe pressure all around the world to have ACTA transparent once and for all, the MPAA hit the panic button and said that criticisms about ACTAs transparency were merely a “distraction”. Later on, an additional leak from the elusive treaty confirmed everyone’s worst fears.

Spain’s government said that they wouldn’t implement a three strikes law.

Norway made headlines when a court ruled that ISPs couldn’t be forced to block ThePirateBay. Sometime later, startling news emerged when an artist was told by a royalty group that they were forbidden from uploading their own work to ThePirateBay.

Interestingly enough, the United Nations also weighed in on the copyright debate by saying that jailing teenagers for p2p was not the answer.

After managing to get a three strikes law in place, South Korea’s copyright industry said that p2p must be filtered.

ThePirateBay made headlines pretty much every month of the year so far, and November was no exception. After the ISPs ISP of ThePirateBay was ordered to shut off access to the site, that entity then appealed the order. Shortly afterwords, a monumental shift from within the site occurred where all torrents were dropped completely and p2p users were directed to magnet links instead (which were compatible with all the popular clients by that time).

MiniNova also made headlines when it announced that they were going legit. User then left the site for more attractive alternatives.

ISOHunt also made headlines when it filed claims against CRIA in self defense.

Meanwhile, in the UK, a very symbolic study was released which showed that artists made more money in a p2p world. It also showed that record labels may be the only entities in the entire business that were actually losing money. Shortly after the study was released, the UK government appeared to be bolder by modifying their three strike law plan and turning it into a two strikes law. British ISPs understandably raised more concern by saying that these types of laws would undermine the digital economy in Britain.

In the US, Fox argued that the US should disconnect file-sharers just like France (with their three strikes law where a judge orders the third and final disconnection).

December

The year is almost out, but just because the year is wrapping up doesn’t mean the news would do the same thing.

In Spain, the copyright wars started to really heat up when the Spanish government signaled that it planned on toughening up copyright laws. Late in the month, Spain mulled shutting down P2P sites without a court order.

In the UK, copyright issues remained red hot when tech giants urged the government to remove a clause in the reform that would force spying on users even if no illegal activity was occurring. British ISPs, in the mean time, reaffirmed that they were against the proposed three strikes law. Adding fuel to the fire, it was discovered that the UKs three strikes law would cost $800 Million per year.

France, in the mean time, made headlines again. For a third time, France’s governing party was caught infringing on copyrighted material. Many observers argued that maybe the French governing party should be disconnected from the internet considering that they were busted a third time for copyright infringement.

ACTA also made headlines when one ambassador implausibly argued that people would walk away from the table if ACTA were to be divulged. Of course, the controversy surrounding the so-called agreement sparked a coalition in New Zealand which aimed to disseminate information about the negotiation and the agreement. Coincidentally, after a few days, New Zealand political parties demanded answers on ACTA.

New Zealand made headlines for other reasons – like their three strikes law moving ahead for instance.

Canada made it into headlines in the biggest way it could. CRIA, an arm of the RIAA, was sued for a historic $6 Billion in damages for not paying artists for selling their music. Regardless of the fact that the case was merely filed, the damage was very apparent with pretty much whatever credibility they had left on copyright related issues pretty much eradicated. It was news that was so big, the owner of a record store wondered why he was being investigated for piracy for having a mere couple hundred CDs without bar codes while CRIA, an “expert witness”, stood accused of pirating hundreds of thousands of works. That didn’t stop CETA, another ACTA essentially, from rearing its ugly head though.

Australia made headlines again in December over, you guessed it, it’s controversial filtering plan. This time, the Australian government revealed their plans for internet filtering. Unfortunately, the Christian lobby signaled that the filtering plan didn’t go far enough. Sometime later, a parody news site made a very humorous article making fun of the Australian governments attempt to filter the internet.

China also made headlines in December when it shut down BitTorrent sites allegedly over porn.

In the Netherlands, BREIN attempted to ban UseNet discussions claiming that what went on in UseNet was simply criminal.

Israel made headlines interestingly enough. Apparently, the most comprehensive study on the subject concluded that Israeli ISPs do, in fact, throttle p2p. The revelation sparked officials to note that the ISPs could face legal action for the activity.

Chile made headlines in December when it resisted American calls to filter the internet.

Back overseas to the US, major copyright industry representatives decided to meet with White House officials to discuss copyright issues. After much criticism, the MPAA were forced onto the defencive. The MPAA answered criticism that they were secretly negotiating without all stakeholders involved by saying that anyone could set up a meeting with US reps too if they so desired. Interestingly enough, an American court also ruled that Canadian site ISOHunt was liable for copyright infringement. How that affects things for the site overall is unclear.

The Joel Tenenbaum case made headlines, though people’s viewpoints had since changed. While the Harvard law professor appealed the case questions were being raised on his performance in the trial. Quite a change considering that toward the beginning, many considered the lawyer and professor a hero – that viewpoint has since started to waiver.

Google was caught up in another copyright case. It seems that having a formal DMCA system where if a result contained infringing material, rights holders can request that the results be removed. Apparently, that wasn’t enough for one record label which sued the search giant for copyright infringement along with several other companies in the search industry.

What year would be complete without the usual headline of the MPAA enjoying record breaking profits again? Even better, the MPAA made profit records not once, but twice.

To 2010 and Beyond!

Where things go from here is unknown. Will 2010 be just as eventful? That much is unknown, but if the past is anything to go by, chances are, many things will happen this year in the world of p2p and tech as well. For now, keep tuned in to ZeroPaid as we get ready to roll on a brand new year. It could be a bumpy ride. We hope you enjoyed the review. Thanks for reading.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

DMCA notices are notorious for relying on what has been widely accepted as flimsy evidence at best. Still, saying that an IP address, a file name and a time stamp has been a staple for evidence against a vast majority of alleged file-sharers.

Currently in the United States, the entertainment industry is meeting with the White House while shutting out dissenting voices in secret meetings. Most countries around the world have been eyeing the secret ACTA negotiations, understandably, with great concern thanks to its utter lack of transparency and debate. While ACTA is known to allow bringing in a global three strikes law and DMCA, Canad faces a second secret trade agreement known as CETA which would bring in similar laws.

The major concern with the three strikes law is that it’s either three accusations and a disconnection or the first two strikes would be simply accusations. It all boils down to extremely flimsy evidence. How does one know that the IP address wasn’t a hijacked number or someone using an open or hacked into WIFI point? Ultimately, there’s plenty of places where a false accusation can happen.

We here at ZeroPaid are interested in hearing your stories. As part of a new series we hope to start, we’ll be posting up these stories to let all decide for themselves if the status quo of such an accusation holds water. If you or someone you know has been falsely accused of infringing copyright on P2P, you can get in contact with us by either posting a reply below or sending an e-mail to either Jared or myself with “False Accusation” as part of the header at the following e-mail addressed:

Jared Moya – jared@zeropaid.com
Drew Wilson – drew@zeropaid.com

We will not be able to help you legally and we won’t be able to provide any legal assistance, we are just looking for stories to repost so others can hear your story. You don’t have to reveal your names and we will not repost e-mail addresses for privacy reasons.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

It’s a legitimate fear as it’s happened multiple times – a music service shutters its DMR music service and servers, rendering all legally purchased tracks useless. For those who do the more honest thing of purchasing music, the very idea that a corporate entity could render legally purchased material useless seems like a betrayal to consumer confidence. It’s not a realistic situation for those that spent 10’s of thousands of dollars on vinyl copies of music (that one day, the content themselves all fail at the same time) but it can technically happen with DRM encoded music.

It’s partly why it makes Steven J. Metalitz’s comments regarding authentification servers during a Q&A session of a copyright hearing so outrageous.

“we reject the view,” Metalitz writes (PDF), “that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards.”

He then explains the reasoning behind it, “No one expects computers or other electronic devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so.”

For many, this would mean that back-ups are illegal – especially in the event of a failure either on the user end or the retailers side of it. That would mean that people would be asked to pay for their legally purchased content again – so much for fair use.

“To recognize the proposed exemption would surely discourage any content provider from entering the marketplace for online distribution or offering consumers the convenience of online authentication of disc-based content unless it was committed to do so — or to guarantee the ability of a third -party service to do so — forever.” He continues, “This would not be good for consumers, who would find a marketplace with less innovation and fewer choices and options. Any argument that such barriers to entry are needed to protect consumers in some way is more appropriately addressed to the Federal Trade Commission, rather than to the Register and the Librarian in this proceeding.”

It’s comments like this that re-enforces what many have known for a very long time already – when you “purchase” content with DRM, you don’t own it, you merely rent it. With thinking like this, it’s no surprise when users turn to piracy. It’s not like they simply want to get content for free, it’s just that they want to be able to have the option to create a way to recover their content in the event something goes wrong – something the industry doesn’t seem to keen on allowing. It’s a mystery how preventing back-ups would be discouraging users and innovation when plenty of innovation revolves around re-using the works in unique ways – something DRM prevents.

“I’ve got 78RPM records from my grandparents’ basement that play just fine today — and I’ve got Logo programs I wrote in 1979 that I can run today. I own a piano roll from 1903 that I can play back if I can clear the space for a player piano. I’ve got books printed in the 17th century that can still be read” Cory Doctorow wrote in response, “and if they can’t be read, they can be scanned and the scans can be read. This is what an open format means.”

“It’s hilarious that the same yahoos who argue for perpetual copyright (implying that copyrighted works have value forever) also argue for time-limited ownership (implying that people who buy copyrighted works should be content to enjoy them for a few weeks or years until the DRM stops working).” Doctorow said.

There’s plenty out there who would easily recognize that given that the computer is effectively a copying machine for the most part, it’s not surprising that many would see this latest argument from the industry as backwards at best.

[Via Arstechnica]

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A few days ago, we noted that Jammie Thomas and her lawyers vowed to appeal the $1.92 million damage award saying that the award was unconstitutional. Court documents (PDF, source with built-in PDF viewer, hat tip Ray Beckerman) recently released certainly backs up what the lawyers had said they’d do now.

While the documents border on being considered a lengthy read, it’s certainly well worth it as one can very easily see the amount of research that actually went in to this motion. There are several pages that point out what we have suggested in a previous posting – that there is quite a discrepancy between how much one pays for a single track on iTunes (we suggested it was 99 cents per track as this has been the classic price-point for a single song, but the documents say $1.29) and the actual award ($80,000 per track)

So, starting from the beginning of the filing, the motion argues, unsurprisingly, that the award amount for damages is unconstitutional. How this argument was brought about, and is repeated throughout the entire document, is what makes this argument fascinating. It’s not entirely the large number, $1.92 million, that is seen as grossly excessive, but the damage of cost versus damages. In this case, on a per song basis with the knowledge of what a single track costs on iTunes – $1.29 – the damages ratio is 1:62,015.

If $1.92 Million was bad PR, imagine the kind of PR the RIAA would get if they sued for $134.24 Million.

The filing further argues that if each song was compared to an album for sale, the ratio is a whopping 1:5,333.

The document explains, “such a judgment is inconsistent with the Due Process Clause of the United
States Constitution.”

In a later part of the document, Thomas’ lawyers cite another case that pin-points why the ratio is extremely important in determining the constitutionality of the award:

Campbell, 538 U.S. at 418. Although the Supreme Court has declined to state a bright-line rule about the maximum permissible ratio, it has repeatedly held that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

So, at most, the damage award would be 1:9, or $1.29:$11.61 on a per track basis.

To put the whole concept of the currently awarded damages into another perspective, there’s this particular passage later on in the court documents that highlight further why $1.92 million, or $80,000 per track, is grossly excessive:

Had the recording companies sued on all the songs they claim to have found on Mrs. Thomas’s computer, the verdict would have been $136,240,000. This does not show that they are “being reasonable” by seeking only $1.92M; it shows, rather, that $80,000 per song is a grossly excessive and therefore unconstitutional civil penalty.

“Mrs. Thomas did no physical harm; any harm that occurred was purely economic,” the document further argued, “to the tune of $1.29 for each of the 24 songs or $15 for each of the 24 albums at issue. See also Wechsberg v. United States, 54 Fed. Cl. 158, 167 (Fed. Cl. 2002) (requiring plaintiffs to offer evidence of actual injuries if these are used to justify an award of statutory damages higher than the minimum). Her conduct did not evince any indifference or reckless disregard for the health of safety of others since, again, any harm she did was purely economic. And the targets of her conduct are the largest recording companies in the United States and are hardly financially vulnerable relative to those plaintiffs — maimed children, for example — who we think of as most deserving of punitive damages.”

Not only was there arguments against such a high award, Thomas’ lawyers argued that the discrepancy between the initial $222,000 and the newer $1.92 Million is cause for concern. The document says, “BMW of North America, Inc. v. Gore, 646 So. 2d 619, 626 (1994) (per curiam) (describing disparity between $4M punitive-damages verdict by one Alabama jury and $0 punitive-damages verdict by different jury in case on same facts). “The real problem, it seems, is the stark unpredictability of punitive awards.” Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2625 (2008). In this case, this unpredictability is stark indeed: two different juries returned punitive awards that differ by almost an order of magnitude.”

Another note-worthy point being made can be found in this excerpt:

Importantly, the legitimate interests in relation to which a civil penalty must be reasonable are those related to punishing and deterring a defendant for her conduct and the injury that she caused to the plaintiffs. It is unconstitutional to impose a civil penalty on a defendant for either the conduct of others or her own conduct that harmed those who are not plaintiffs. See Philip Morris USA v. Williams, 549 U.S. 346, 353–54 (2007). The plaintiffs in this case repeatedly argued that, in selecting what damages were appropriate, the jury should consider not only the harm to the recording companies, but also to artists creating music (who the recording companies’ representatives repeatedly testified are independent third parties, not employees) and to consumers of music.

What makes this point particularly interesting is the fact that the copyright industry in the United States have stressed for years that the lawsuit campaign is merely an education campaign. An underlying point through legal threats read by tens of thousands is that you could be hauled to court and forced to pay millions in damages if you don’t pay the settlement. That, legally speaking, if this argument goes over well in court, could be the industry’s own undoing. Another way of putting this is, is one user liable for the actions of another user in a given network or should that second person be liable for their own actions? This question has an interesting resemblance to the safe harbour clause in the DMCA that an ISP is not liable for the users of their own network. In this case, say you upload a copyrighted work to three individuals and leave that swarm. Should you be liable for the actions of those users after you leave that given swarm? The industry certainly seems to want compensation not just for the actions of a given user, but for every user involved in uploading a given work. Trying to get a total award out of just one person is certainly an interesting legal question.

So what is being requested includes the following:

Defendant Jammie Thomas respectfully requests that this Court (1) alter or amend the judgment under Rule 59(e) to remove the award of statutory damages; (2) order remittitur of the statutory-damages award to the statutory minimum; or (3) order a new trial on all issues under Rule 59(a).

Another interesting point being brought up is that Media Sentry had illegally obtained evidence against Thomas. The motion to suppress the evidence was denied because the court only looked at Minnesota law. Since Media Sentry was operating outside of that state, the original motion to suppress the evidence was denied. So where was Media Sentry operating? Turns out, they were operating in New Jersey. Since that is a known fact now with regards to this case, Thomas’ lawyers looked at applicable private investigators acts and determined that the activity conducted by Media Sentry was illegal. This was said at the time:

Neither MediaSentry nor Plaintiffs have disclosed the location of MediaSentry’s activities in February 2005. Media reports in 2005 indicate that MediaSentry most likely conducted its activities from either New Jersey or Maryland. Both New Jersey and Maryland have private investigator and wiretap statutes that MediaSentry would have violated if it conducted its activities from these states. See N.J. Stat. §§ 45:19, 2A:156A-2; Md. Code, Business Occupations & Professions § 13-801; Md. Code, Courts & Judicial Proceedings § 10-402.

This court document certainly has a lot of food for thought on the legalities of file-sharing. It also shows that even though the DMCA exists to supposedly make the legal issues of file-sharing as clear as black and white, there’s still a huge grey area – namely around awards in part, thanks to the fact that there hasn’t been any other file-sharing case that has gone this far that’s related to an individual user.

Currently, the RIAA already wants Thomas to destroy all copies of copyrighted works and hinted at wanting more than the $1.92 Million awarded in court. One can easily see that this particular legal case is far from over even though it’s been carrying on since 2007.

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Three accusations. Three assumptions of guilt. Is that enough to get your connection terminated permanently and get you banned from the internet? According to a new New Zealand law that will come into force, it is. It wasn’t like New Zealanders went down without a fight, ISPs, technology experts and activists alike protested until the very end with their government ignoring their calls and passing what may be one of the riskiest copyright laws the world has ever seen.

The EFF highlighted the protest website developers are organizing to protest the new law. The protest is known as the internet blackout where participants turn their icons black to show their support for the protest against the “guilt upon accusation law” The meaning, of course, is that New Zealands internet would go black thanks to the new copyright law.

There is even a remix contest where users can remix the Copywrong Song by CFF, Mike Corb and Luke Rowell.

The EFF offers some details of what the S92a law really is:

Section 92A comes into force on February 28th, and states:

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

This isn’t an entirely original framing of ISP duties. The chances are that this language was taken from the United States’ very own DMCA, which in 512(i)(1)(A) states:

The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.

But New Zealand experience demonstrates the dangers of simply adopting language from other countries without including a wider context. “Repeat infringer” in the DMCA is a term that was not defined in the law itself, and remains contentious here in the United States. Legal experts like David Nimmer have argued that “repeat infringer” means what it says: someone who has been repeatedly shown in court to have infringed, not simply accused of multiple infringement by rightsholders. There’s certainly no universal acceptance in the home of the DMCA that rightsholders can force ISPs to throw US subscribers offline simply because they’ve been on the receiving end of (often inaccurate) notices by those same rightsholders.

The New Zealand law doesn’t clarify that element of “repeat infringers.”1 In their draft Code of Conduct, New Zealand’s ISPs have defensively accepted the widest possible interpretation, and conceded that they must take a “three strikes” response to rightsholder’s accusations, rather than actual court convictions.

The EFF points out that the law could inspire other countries to adopt similar legislation.

The EFF is currently highlighting a new legal victory for video sharing sites. The case is known as the UMG vs. Veoh case where UMG sued video sharing site Veoh for the activities of it’s users – some of which uploaded copyright infringing material on the site.

Veoh argued that their activities of offering a medium to post content falls under the Digital Millennium Copyright Act’s “Safe harbour” provisions which says that, among other things, that internet services are not liable for the actions of their users – a provision that seems to be glossed over like a mere suggestion these days with the copyright industry demanding ISPs to fight copyright infringement.

UMG (Universal Music Group) counter argued, saying that hosting companies should be liable for every bit a user uploads.

All too often when these cases come up, user generated websites are frequently branded as little more than a vehicle for copyright infringement. Like the internet itself, when one makes an argument that labels, say, a video sharing site as something simple like a medium for piracy, it’s far too easy to argue many ways in which that given site is not. Examples of possible counter arguments include the fact that it’s a learning tool (plug in virtually any software product and add “tutorial” to see what we mean), or an independent musician site (OK-Go is one of the more famous examples of musicians jump-starting their careers with a viral video), a website for magicians (where magic tricks are often a popular keyword), a gaming website (where speedrun is a good keyword for something like this), a tool for businesses to host video content (many businesses like small town newspapers are jumping onto YouTube to post their small town journalism reports, or a cleverly well produced advertisement for companies like BlendTec for their rather famous ‘Will it Blend?’ series), or even an education tool where students can post final projects like animations. Pretty much anything in general one can think of is more than likely posted on a video-sharing site.

Still, it’s an effective weapon the copyright industry has against such sites by saying that users just go there to pirate their content as it gives them a public relations edge that actually works for a lot of people. Make everyone think that people just go there just to watch music videos and there will be those that will easily believe them.

The EFF concludes with the following:

Relying on the statutory language, as well as the legislative history, the court concluded that all of these activities are covered by the DMCA Section 512(c) safe harbor. Lots of online service providers will greet this ruling with relief. If the court had accepted UMG’s arguments, every web host would lose the safe harbor as soon as it made web pages available to the public. The ruling should also help YouTube in its ongoing battle with Viacom, which also turns on the continuing strength of the DMCA safe harbors.

But the Veoh ruling also points out a surprising irony: while YouTube and Viacom are fighting their interminable litigation trench war, many interesting DMCA legal questions are being resolved in smaller, faster-moving cases involving companies like Veoh. At this rate, the highly-anticipated Viacom v. YouTube lawsuit may end up a footnote in the legal fights that define the rules governing user-generated content.

It might be worth noting that the legal battles going on with the DMCA in the United States will more than likely be little more than the tip of the iceberg with legal questions being raised with video sharing sites since many broadcasters from around the world have also sued YouTube for copyright infringement. As much as the copyright industry likes to, from time to time, believe that the US laws apply to other countries, the DMCA only covers US cases and international cases will be far more complex. Worst case scenario in the future, some countries will end up being either blocked by or blocking YouTube due to a court decision not deciding in a video-sharing sites favour. It’ll have a negative effect on video sharing sites, but it’s unlikely that it’ll be a fatal one – especially if the lawsuits in the US end up failing to take down YouTube (and YouTube’s position seems to be more favourable as a result of this legal victory).

A lot of corporate driven polls suggest that the election has started out with the question of Conservative majority or Conservative minority governments. Lately, the same polls are now raising the question of Conservative minority or Liberal minority. It stands to reason that this new prospect for those who watch the copyright file should be thrilled at the prospect of a minority government given that it has lately been the only reason why there hasn’t been a Canadian DMCA pushed into law. From the looks of things, it’s highly likely going to be the reason Canadians will be saved from a Canadian DMCA this time around as well as Canada is poised to get an unprecedented third minority government in a row.

Some may wonder, why wouldn’t the Liberal party table something less draconian since they did criticize Bill C-61? This might be brought on by the fact that some people haven’t been around in the copyright debate clear back in around 2004-2005. What happened was, with the only consultation happening in 2001, the Liberal government tabled what is known as Bill C-60. The legislation, see if this sounds familiar, introduced anti-circumvention legislation (section 34.02) as well as the much dreaded law that makes it illegal to “communicate” copyrighted works (section 15).

At the time, it was viewed that the copyright act was overbroad and overreaching – a law that would treat ordinary consumers like criminals because it doesn’t take into account things like format shifting, time shifting, etc. (never mind what it would do to people who end up in legal cross hairs of the copyright industry over p2p networks)

The legislation died on the order paper when the government fell. The uproar the legislation caused had ultimately led to a showdown between the member of parliament that was behind the copyright legislation and Canadians during the election of 2005. The member of parliament was Sam Bulte and there is the ever famous video that many say cost Bulte her seat in that election. The video, interestingly enough, was recently posted on YouTube:

So during the election, Canada, as the campaign phrase of the Conservative party went, voted for change. The Liberal party was pushed into the opposition and the Conservative party took their place as the governing party. After several months past, there were numerous rumours that equally draconian copyright legislation was going to be tabled. There were delays while candidates changed portfolios. The copyright portfolio went from Bev Oda to Maxime Bernier to Jim Prentice. By the time Prentice got a turn with the copyright reform legislation, there was already movement afoot with the Fair Copyrigtht for Canada FacebookFacebook group which exploded to over 90,000 people. Most say that this sudden uprising was the reason why Prentice temporarily pulled the legislation off the table again before re-tabling it.

Right before tabling the legislation, Prentice was swarmed by people who were concerned over the legislation. Much like the Sam Bulte video, Prentice appeared to take one side of the issue. The video, just like the Bulte video, is also posted on YouTube:

The legislation that was ultimately tabled was known as Bill C-61 (some call it Canadian DMCA 2.0) In the legislation was, again, anti-circumvention laws (41.1) as well as enforcing a notice-and-notice regime (section 41.25).

Generally speaking, both of the proposals could have been disasterous for consumers as well as artists since some services that sell MP3s wrap Digital Rights Management in the song (like the Zune for instance) and merely focuses on saying that a small number of organizations that represent foreign international interests are the winners while Canadians are the losers in the copyright debates. It’s difficult to tell the two parties apart when they tabled the Canadian DMCA.

With this in mind, if either the Liberal Party or the Conservative Party get in power, it’s really easy to predict that Canada will be hit with Canadian DMCA 3.0. The fact that the probability that this up and coming government will be a minority government provides the only hope that the legislation won’t be passed.

Confusingly enough, though, the mainstream media has been focusing solely on international polls, not seat count. The more seats won, the more members of parliament there will be. Unlike the United States, there are no ‘winner takes all’ areas – though it is a first past the post system. It’s unclear how the seat-count will play out, but the seat count is where the election counts (and likely where the mainstream media will focus on tomorrow evening)

We can only hope that this will be a minority government because chances are, Canada will get another one-sided Canadian DMCA and it will likely die on the order-paper like the first two attempts. The NDP have been vocal on the issues and have shown to voice the opinions expressed by Canadian artists and consumers. As Jared already points out, the NDP is for consumer rights and net neutrality.

We have already sent questions related to copyright to the various political parties only to have no responses come back unfortunately, so we really only have what is already known at this point.

So, whether it’ll be a Liberal government or a Conservative government, it’s more than likely we’ll get a Canadian DMCA. Let’s hope that it’s a minority government so it can be reasonably scrutinized.