For those who have been watching the PlayStation Network (PSN) outage story, it was likely only a matter of time before someone would be resorting to litigation. Well, it's finally happened in a Northern District of California.

The lawsuit alleges that Sony "failed to encrypt data and establish adequate firewalls to handle a server intrusion contingency, failed to provide prompt and adequate warnings of security breaches, and unreasonably delayed in bringing the PSN service back on line." It also accused Sony of violating the Payment Card Industry (PCI) security standard, which prohibits companies from storing cardholder data.

Mass litigation has commenced against 2,000 individuals accused of copyright infringement by Gallant Macmillan on behalf of record label Ministry of Sound. While this isn't the first mass litigation in Europe, it is a style of litigation that even the BPI doesn't condone.

Even the body that represents the UK recorded music industry, the BPI, which is keen to stamp out illegal filesharing, says it does not condone the mass-mailing of alleged internet pirates. "Our view is that legal action is best reserved for the most persistent or serious offenders, rather than widely used as a first response," it says.

Most recipients of the letters have binned them and, to date, avoided any further action. But Gallant Macmillan says it is taking a different approach to the other legal firms that pioneered this business, and that its sole client, Ministry of Sound, is serious when it threatens legal action. Until now, none of these cases have ended up in UK courts. A Ministry of Sound spokesman says that actions have been won in German courts, and it is confident that it can do the same in the UK.

Copyright is critical to the survival of the music industry and its creators, but lack of respect for copyright is not why artists are struggling to make ends meet, argued a recent panel of media lawyers and music industry experts. The blame for that lies squarely on the corporate-focus of the music industry, and how it has bent copyright law to serve companies rather than composers, said a panel at the University of Westminster. File-sharing too is an issue, but innovative thinking may be required to find new ways to manage music sharing practices which have become outdated, panellists said. The “biggest flaw in music is not copyright, it’s business practice,” said attorney and lecturer Ben Challis. Business practices that shift rights from the author or song writer to companies are the reason that artists do not get paid, he added. A fair regime would protect artists as well as the corporate side, he added. Copyright has “shown itself for what it truly is,” said Kienda Hoji, an entertainment lawyer and senior lecturer at the University of Westminster. It is a system that benefits those who want to make money, not the creators who deserve to, he said.

It may be the least surprising reaction of the year, but the RIAA (Recording Industry Association of America) has said that they would contest the ruling that saw the reduction of the Tenenbaum fine from $675,000 to $67,500. The organization said that it would contest the ruling, but exactly how remains to be seen at this point.

In a recent announcement, the RIAA says that it has sent 407 “pre-litigation” letters to 18 universities across the United States.

They include a detailed list of where the lawsuits went: Arizona State University (33 pre-litigation settlement letters), Bowdoin College (11), California State University, Monterey Bay (25), College of William and Mary (15), Duke University (16), Massachusetts Institute of Technology (19), Mount Holyoke College (15), Rhode Island College (22), Saint Mary’s College of Minnesota (13), Stanford University (15), Texas Christian University (14), University of California, Berkeley (26), University of California, Los Angeles (26), University of Connecticut (25), University of Iowa (24), University of Nebraska-Lincoln (22), University of Texas at Austin (50), and Virginia Polytechnic Institute & State University (36).

“The record industry is partnering with a variety of innovative services to offer fans an extraordinary array of musical experiences and generate new business opportunities,” said Jonathan Lamy, Senior Vice President, Communications, RIAA. “College students are among music’s most tech-savvy fans. The latest legal alternatives now come bundled with fan favorites such as social networking features, music videos, and movies. The many alluring legal options currently available are free or deeply discounted and going legal means that students avoid getting in trouble with their university and the law.”

Noticeably missing again seems to be Harvard University. Some who watch these news stories have asked if the RIAA has ever sued anyone in Harvard. This wave of letters indicates that no letters were sent to the law school.

“Bringing lawsuits has never been our first choice,” Lamy added. “But for those who continually ignore enticing legal alternatives and plentiful warnings, it’s a necessary part of the equation.”

Maybe Pandora should have been one of those options.

Mitch Bainwol and Cary Sherman, Chairman and CEO of the RIAA, and Cary Sherman, President of the RIAA, recently submitted an op-ed piece to Inside Higher Ed that seeks to better explain and also justify their recent round of lawsuits targeting college and university students around the country.

In this latest round of lawsuits, 400 of the cases were directed at college and university students around the country, which the RIAA refers to as “unprecedented” yet “necessary.”

They write that “By now, there is broad understanding of the impact from this activity, including billions of dollars in lost revenue, millions of dollars in lost taxes, thousands of lost jobs, and entire industries struggling to grow viable legitimate online market places that benefit consumers against a backdrop of massive theft.” Say what? A “broad understanding?”

Does this “broad understanding” include the millions of people who have read the study performed by researchers at Harvard University and the University of North Carolina titled “The Effect of File Sharing on Record Sales – An Empirical Analysis?”

The researchers tracked music downloads over 17 weeks in 2002, matching data on file transfers with actual market performance of the songs and albums being downloaded. Even high levels of file-swapping apparently translated into an effect on album sales that was “statistically indistinguishable from zero,” they wrote.

“We find that file sharing has only had a limited effect on record sales,” the study’s authors wrote. “While downloads occur on a vast scale, most users are likely individuals who would not have bought the album even in the absence of file sharing.”

The RIAA repeatedly blames P2Pand file-sharing service for the decline in CD sales but, the real cause is unclear at best.

The study notes:

While file sharing significantly reduces the financial cost of obtaining music, it has an ambiguous theoretical effect on record sales. Participants could substitute downloads for legal purchases, thus reducing sales. Alternatively, file sharing allows users to learn about music they would not otherwise be exposed to. In the file sharing community, it is a common practice to browse the files of other users and to discuss music in file server chat rooms. This learning may promote new sales. Other mechanisms have ambiguous effects. Individuals may use file sharing to sample music, which will increase or decrease sales depending on whether they like what they hear. The availability of file sharing could change the willingness to pay for music, either decreasing it (due to the ever present option of downloading) or increasing it because music tracks have gained a new use, sharing with others. Finally, it is possible there is no effect on sales. File sharing lowers the price of music, which draws in lowvaluation individuals who would otherwise not have purchased albums. That is, file sharing primarily serves to increase total music consumption.

So is it not really the case that the RIAA really wants to try to tap into an area of theoretical sales and not actual sales?” Is not the “lost revenue” really lost THEORETICAL revenue instead of lost ACTUAL revenue?

Where are the thousands of lost jobs they speak of? Can we see pictures of these masses filling unemployment lines across the country?

“Entire industries struggling to grow viable legitimate online market places?” Is it yourself you’re referring to? The last time I checked you guys refused to embrace digital downloads for about 6 years beginning way back in 1999, so could it be that you are merely suffering from the fact that you took so long to see the future of music that services like iTunes took your place? Is it not your continued insistence of mind-numbing DRM and playback restrictions that prevents users from being able to justify more purchases if they are never able have full control over what they BUY?

The letter goes on to say that “College students used to be the music industry’s best customers. Now, finding a record store still in business anywhere near a campus is a difficult assignment at best.” Who the heck owns clunky CDs anymore? CD retailers have gone the way of record, cassette, and 8-track retailers that preceded them.

Also, could the fact that low price retailers like Wal-Mart who sell CDs for far cheaper than Tower Records or other closed retailers ever charged had something to do with it as well?

The RIAA also makes the bold assumption that file-sharing is stealing. But, isn’t it sharing and not stealing? Just like sharing mixtapes with your friends back in the day, exposing yourself and others to new artists that you amy have otherwise never heard of, file-sharing does the same thing. With the millions of already existing artists, and the thousands of new ones that appear each day, how on earth is one to hear of them all other than via your friends and collaborative efforts to share the ones worth listening too?

The letter furthers:

This problem is anything but ours and ours alone. If music is stolen with such impunity, what makes term papers any different? Yet we know university administrators very aggressively pursue plagiarism.

Sharing music is like plagiarism? Give me a break. Unless somebody is trying to lip sync the new Jay-Z album at the local cafe on campus, sharing music with your friends is nothing like plagiarism.

The piece also discusses how campus networks are there only for “educational and research purposes.” Oh really. Try to tell that to all the students who use it.

It notes:

The prevalence of this activity on our college campuses should be as unacceptable to universities as it is to us. These networks are intended for educational and research purposes. These are the environments where students receive the guidance necessary to become responsible citizens. Institutions of higher education, of all places, are where people should learn about the value of intellectual property and the importance of protecting it. Don’t administrators have an obligation to prepare students for the real world, where theft is simply not tolerated?

For a better rebuttal to this one, I decided to include the response of Ethan Sommer, a College Systems Administrator for an undisclosed university.

He writes:

I am a College Systems Administrator, and the idea that that network is intended for education and research is simply wrong. So is the idea that students don’t live in the real world. The dorms are the students’ homes. We provide them with a network connection because Internet access is a part of their daily lives, it is there for quality of life. Sure some (most) use it for education and/or research, but they also use it to post on facebook to plan events with friends and to send e-mail to relatives. We (colleges) have no more responsibility to crack down on file sharers than Comcast or Qwest does, and Comcast and Qwest do as little as possible to comply with the law. Any attempt to focus attention on college campuses is obviously a PR tactic not based in reality.

Exactly. So now if our educational institutions weren’t already having a tough enough time as it is just trying to teach our kids and provide them with an education that is important for the survival of our country’s economy and health as a democracy, they now have to worry if little Johnny freshman is sharing the new Beyonce album with his neighbor down the hall? It’d be sad if it wasn’t so disturbing.

In any event, this new letter from the RIAA once again confirms just how backward and ignorant it really is. It’s like they say, that “The more things change the more the stay the same.” The RIAA has taken “staying the same” to a whole new level. What’s funny to note about the article is that they really do miss CD stores, and that should really tell you a lot about them.

What’s also so ironic is that in trying to “educate” the next generation of music listeners about the evils of file-sharing they’re also angering the next generation of lawyers, politicians, tech-industry geeks, parents, etc., and “educating” them about the hypocrisy of the RIAA and the need for meaningful copyright and DRM reform.

Students on campuses across the country are watching as classmates get sued and harassed for thousands of dollars that they can’t afford simply because they swapped a few songs with their buddies. To boot, all the evidence indicates that the RIAA doesn’t really lose money when people share files, for how is one to know whether an actual purchase would have taken place if they otherwise had chosen not to download it? Also, if a person likes the music they get from a friend, not only do they then probably go to that artist’s concerts and support them but, they also are then likely to buy a future or existing album or other type of band merchandise.

It actually made me kind of happy to hear that they had begun this campaign to crack down on college students because now we will see widespread debate about the merits of their bullying litigation practices in classrooms nationwide, as well as in the homes of the parents of these children when they find out that their child needs $4000 USD because he shared some songs with friends. How many college students have an extra $4000 USD lying around?

What better way to see the RIAA finally crumble into irrelevance then by watching it’s tactics be debated in homes and classrooms everywhere? Forget the fact they’ve sued dead people, the paralyzed, small children, and grandparents alike, this new move by the RIAA really takes the cake in my opinion. Bravo RIAA. Bravo.

digg_url = ‘http://digg.com/music/RIAA_explains_its_crackdown_on_student_file_sharing’;

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SOULXTC: “walkin’ the streets of P2P”

This is an historic opportunity for you to take steps to make the RIAA’s litigation campaign more of a level playing field.

The way things are:

Once the RIAA has obtained whatever “settlement” money it can squeeze from students and parents willing and able to pay the money, and to agree to the other extortionate demands in the RIAA’s standard nonnegotiable form ‘settlement’ agreement, it will bring a “John Doe” proceeding against the others. Contrary to the spirit of the Federal Rules of Civil Procedure, it will do everything it possibly can, in that proceeding, ex parte. It will file the complaint without notice to anyone, and submit the ex parte discovery order application without notice to anyone. Then, once it’s gotten an ex parte order signed by the judge, it will give minimal notice to you with minimal notice to your students, of an order which has already been entered.

Typically, “John Doe” will receive only a copy of a subpoena and a copy of the order with a letter from you, and will have just a few days, or at most a couple of weeks, to respond before his or her personal confidential information will be divulged. Meanwhile, if the student were to confer with a lawyer the lawyer doesn’t know what to say, because he or she has no copy of the underlying summons and complaint, no copy of the papers upon which the ex parte order is based, and no copy of the judge’s rules, all of which a defendant normally does receive in any normal litigation.

What you should, at a minimum, do for your students.

What you can do is insist that the RIAA stipulate with you that (a) any motion for an order granting discovery of the students’ identities will be on notice, both to you and the students, rather than ex parte, (b) that the RIAA must furnish to you, for each “John Doe”, a copy of the summons and complaint and exhibits, a full set of the motion papers, and a full set of all other court documents which are required to be served on the defendant when an action is initiated… for you to distribute to the affected students, before — not after — the motion is to be heard.

If the RIAA refuses to so stipulate, you should go to Court yourself and get an order requiring them to comply with these fundamentals which are required by due process.

What you should also do.

The courts have held that in order for a claimant to get an order for discovery of confidential names and addresses of a John Doe in a copyright infringement case, it must make a prima facie evidentiary showing, based on admissible evidence, that it has a case for copyright infringement against each “John Doe”. See authorities cited in our memoranda of law:
http://www.ilrweb.com/viewILRPDF.asp?filename=warner_does1-149_memooflaw*
http://www.ilrweb.com/viewILRPDF.asp?filename=warner_does1-149_replymemo*

Since the RIAA has been proceeding ex parte, however, and since they haven’t been challenged by the ISP’s, judges have signed off on the orders even though the applications were supported by conclusory, hearsay, opinion statements of suspect reliability which would never be considered admissible in any court in the United States. (Compare the courts of the Netherlands and Canada, where the ISP’s challenged the application for “John Doe” information, and the Courts refused to grant the discovery orders, due to the unreliability of the RIAA’s investigative “method”).
http://recordingindustryvspeople.blogspot.com/#Foundation_v_UPC_Nederland*
http://recordingindustryvspeople.blogspot.com/#BMG_v_Doe(Canada)*

The lack of reliability of the RIAA’s “investigatory” technique is becoming more and more well documented. See, eg. the February 23, 2007, deposition of the RIAA’s expert.
http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070223JacobsonDepositionTranscript*

See also expert witness statement of Prof. Pouwelse and Dr. Sips:
http://www.ilrweb.com/viewILRPDF.asp?filename=foundation_upcnederland_witnessdeclaration*
and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA’s “driftnet” litigation strategy:
http://www.ilrweb.com/viewILRPDF.asp?filename=capitol_foster_amicus

Accordingly, we believe you should oppose the RIAA’s application for an order of discovery.

Likewise, if you learn of the RIAA obtaining such an order ex parte, you should move to vacate the order.

Typically, the RIAA joins a number of “John Does” in a single suit, in order to save itself money, even though under the Federal Rules such joinder is clearly improper. See, e.g. In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004) http://www.eff.org/IP/P2P/RIAA_v_ThePeople/20041117_austin_severance_order.pdf
In fact, the foregoing case specifically enjoined the RIAA to cease and desist from continuing its practice of joinder, an injunction which the RIAA has simply ignored. Opposing the RIAA’s deliberate misjoinder of unrelated “John Doe” defendants is another thing you can do to assist your students and their families in achieving a more level playing field.

A third thing you can do is point out to the Court that there is no known cause of action for “making available”, which is the basis of the RIAA’s suits, in the Copyright Act. See Elektra v. Barker, argued January 26, 2007, and awaiting decision.

Sincerely yours,

-Ray Beckerman

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SOULXTC: “walkin’ the streets of P2P”

I’m sure many of you have wondered how and why your Internet Service Provider (ISP) monitors your file-sharing activity. Well, I know a guy who knows a guy, wink, wink, with first-hand experience of what they keep an eye and why. It’s pretty straightforward actually, and harks back to the Wild West days of Napster and Kazaa. So break out your pen and paper and jot down these tips to prevent you and your ISP from getting to know each other on a first name basis.

This guy I know has experienced their “wrath” two times thus far in the last 4 months, all this after some 2 plus years with not so much as a peep from the powers that be. Each time he has gleaned more and more info as to what they’re looking for and why.

First and foremost, as was made clear in the Kazaa cases and is still pertinent today, is that those who are making cases against individuals for “illegal” file-sharing do so under the context of what you “share,” i.e. upload. It is the “sharing” of files that constitutes copyright infringement. Thus, it is naturally the “uploading” one does that has been made in issue by those organizations pressuring ISPs to comply with copyright law.

When my friend was first contacted by his ISP it was done with an internet “lockout,” his browser reduced to little more than a street corner billboard informing anyone who cares that the standards of practice have been violated and internet access suspended.

To summarize, the notice stated that the individual’s bandwidth in question has been “overused,” and that this was symptomatic of the use of file-sharing services like “Morpheus, Kazza, Limewire, and Grokster,” (yuck, yuck, yuck, and more yuck). This was probably the oddest part of the whole affair as how can one “overuse” their bandwidth? I mean if you pay for a 512kB/s download speed and a 58kB/s upload speed, shouldn’t you get to do what you please with it? It smacks me of false-advertising, the notion that you get “X” amount of bandwidth but better not use it all.

The note went on to say something to the effect of “Thus, in an effort to ensure that precious bandwidth is not being ‘wasted,’ this account has been temporarily suspended until you contact one of our members in the Internet Security Dept. at 1-800-XXX-XXXX. For reference purposes use this security code.”

After contacting their Internet “Security” Dept, he was astonished to learn what it was all about and why they had decided to suddenly make an issue of it. What had happened to wreak their ire? Well, upon talking with the gentleman he informed him that they routinely monitor residential accounts that upload data in excess of 1GB p/day. This was a key piece of gleaned info, as per what was mentioned previously, it is the UPLOADING of certain files that is what constitutes copyright infringement. It occurred around the holidays, and so I suspect it was part of a preemptive Oscar’s “screener” sweep that caused his account to raise eyebrows behind the mighty ISP’s internet security desk.

In seeking to explain this “mysterious” upload rate, he used the ruse that his router lacked WEP encryption and thus was probably some random user who had logged on and used his connection for such “evil” purposes. It worked, of course, and the connection was reinstated.

But, several months later, just recently in fact, he encountered the same thing, his connection was locked and so told to call the Internet “Security” Dept. once again. This time things weren’t quite so smooth sailing. Figuring that the router story wouldn’t fly again, he used the explanation that he was running a WinAmp Shoutcast server several times a week and that was the cause for his bandwidth usage. The guy’s reply was that a “business” account may better serve his needs, an answer that actually made him angry for the first time.

USER: “So let me get this straight, I get 58kB/s upload bandwidth but I can’t use it all?”
ISP: “Uh, actually no, if you read the service contract you received when you signed up for our high speed internet service you would see that the bandwidth is subject to limitations. It is not meant to be used in a way that maxes it out continuously,” the ISP guy replied.
USER: “So then why is the total amount of download bandwidth not an issue and just the upload is?”
ISP: “Sir, if you read the service contract it says everything you need to know.”
USER: “Um, is it online, because to tell you the truth I tossed it 2 seconds after I subscribed, and that was like 2 years ago.”
“ISP: Go to our website, you can find it there.”

Well, he never found it there or anywhere else, so it remains a mystery as to what exactly their company’s policy is in detail. But, he does have his internet access still, at least for the time-being.

Moreover, his solution to the problem was to try and minimize what he downloads from “registered user” BitTorrent sites, i.e. Demonoid, TorrentTit, etc., in order to preserve his share ratios, and try to use public sites like Torrent Spy and Pirate Bay more often. Now this isn’t a perfect solution, as one has the tracker loaded just long enough to download the file and not to share it to that magic “1.0.” It disturbs the whole zen-like balance in the BitTorrent universe, but hey, what are you gonna do if the “Man’s” after you?

At the risk of sounding redundant, it’s all about the ULPOAD, UPLOAD, UPLOAD. This is what the RIAA, MIAA, and whoever else with a copyright infringement axe to grind uses to unleash the hounds on you. I can’t stress this enough.

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SOULXTC: “walkin’ the streets of P2P”

Apple said a bad batch of Nanos had caused those problems and denied the device was more likely to scratch than other models of the popular player. Asked a comment on the lawsuit, Apple said: “We do not comment on pending litigation.”