Updates on US copyright law

January 2011

All areas

The U.S. government has seized control of dozens of websites it says are offering unauthorized copyrighted or counterfeit content. The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division took over 82 domains including Torrent-Finder.com, RapGodFathers.com, DVDProStore.com, Cartoon77.com, NFLJerseySupply.com and Handbag.com. The seizure orders come from courts in eight states and take place shortly after a U.S. Senate Committee approved the Combating Online Infringement and Counterfeits Act (COICA), which aims to empower the Justice Department to use tactics similar to those just employed by Homeland Security and ICE.

Wired.com report that EMI has asked the federal judge overseeing its copyright infringement lawsuit against music locker service MP3tunes to bar digital civil liberties group the Electronic Frontier Foundation (EFF) from submitting a “friend of the court” brief in the case saying that the EFF brief is “a pure advocacy piece, not a ‘friend of the court,” and also that the brief is “duplicative,” “contains unsupported speculation,” and exceeds the court’s page length restriction. EMI also argues that, should EFF’s brief be allowed, parties supporting EMI’s position should be allowed to submit additional briefs.

TorrentFreak reports that the US Copyright Group, which has filed copyright infringement lawsuits against tens of thousands of internet users who have allegedly illegally downloaded movies such as “Far Cry” has been hit with a class action lawsuit by over 4,500 of those sued. The retaliatory class action lawsuit alleges “extortion, fraudulent omissions, mail fraud, wire fraud, computer fraud and abuse, racketeering, fraud upon the court, abuse of process, fraud on the Copyright Office, copyright misuse, unjust enrichment and consumer protection violations” and says that the offences were committed by U.S. Copyright Group in its efforts to extract settlement fees from alleged file-swappers. The claim also says that the producers of “Far Cry” did not secure a copyright registration for the film until after it began collecting information on peer-to-peer traffic, and argues that this fact invalidates any earlier claims of infringement.

In case you missed it, there is a war of words going on in the USA over a letter sent to PC Mag by the major record labels and other music industry trade groups over a PC Mag story about the demise of Limewire, which the labels say was promoting unauthorized copyright infringement by naming alternatives to the now defunct Limewire. Apart from the fact it seems that the original story was published by PC World (a competitor of PC Mag) the accusations stirred up a hornets nest, in particular over the magazine’s right of free speech with PC Mag saying “PC Mag’s job is to cover all aspects of technology, which includes the products, services and activities that some groups and individuals might deem objectionable. We covered these Limewire alternatives because we knew they would be of interest to our readers. We understand that some might use them to illegally download content. We cannot encourage that action, but also cannot stop it. Reporting on the existence of these services does neither.” Not content with that, the letter goes on to say “It worries me that the music industry took this action, because it reeks of desperation. The RIAA and other music industry organizations have spent the better part of the decade fighting the digital transition, with only a shrinking business to show for it. In recent years, though, the fist of anger has turned into at least one open hand as the music industry embraces the once shunned digital music industry. Unfortunately, that warm embrace, and the change that comes with it, are not happening fast enough. Clearly the music industry is still losing money to music piracy and even the recalibrated profit margins brought on by legal music sharing services. It’s time for these music execs to pull their collective heads out of the sand and fully acknowledge and accept all the ways their industry has changed. They also have to understand that nothing will stop technology’s inexorable march forward. Things will continue to change. Music downloads and sharing will never go away. These execs have to find a way to use all that technology allows and make a business”.

A  US teenager has failed in her appeal to have her damages for illegally downloading overturned because she didn’t know what she was doing was illegal. A then 16 year old Whitney Harper had used the then popular Kazaa service to download 37 tracks and she was sued by the RIAA and faced damages of $27,750.00. Harper argued that she was not aware that the file-sharing program on her computer was dealing in stolen property saying she thought the songs could be downloaded for free, just like listening to the radio on the Internet. The Supreme Court disagreed (with one judge dissenting) and upheld the 5th Circuit Court of Appeals who ruled in February that Harper could not pay a reduced minimum fine of $200 per infringed track — instead of $750 — as an “innocent infringer.” The federal appeals court cited a provision that says infringers should know they are breaking the law since a copyright notice “appears on the published phonorecord.”

The Copyright Royalty Board in the USA has issued its decision on what royalty rates webcasters will pay rights holders for streaming music online for the 2011-2015 period. The CRB suggested rates — which must still be approved by Congress — are $0.0019 per performance in 2011, $0.0021 per performance in 2012 and 2013, and $0.0023 in 2014-15. These rates affect only webcasters without deals already in place, and will not supersede rates already negotiated by Pandora, public radio stations and others.

Now on to Sarah Palin, who has secured much needed publicity for her new book after HarperCollins, the publisher of “America By Heart: Reflections on Family, Faith, and Flag”, reached a settlement in their a lawsuit with Gawker.com.  The website had published several leaked pages of the book and was ordered to take them down by a New York City judge earlier this week. “In settling the case, Gawker has agreed to keep the posted material off its website and not to post the material again in the future” Erin Crum, HarperCollins spokeswoman, said in an official statement.

And finally to Bradford Cox, the artist behind Deerhunter and Atlas Sound who had a rather unusual weekend after Sony Music issued a DMCA takedown notice against his blog on Friday, it seems in connection with two albums of his own bedroom-made demos which he had uploaded for his fans to download for free. This was somewhat confusing because Cox is not and has never been signed to any Sony Music label so the albums could ot belong to Sony. Deerhunter are signed to Beggar’s 4AD while Atlas Sound release via indie label Kranky according to the CMU Daily. The major has now admitted to Billboard that it had made a mistake and that it had made Cox, his manager and music server Mediafire aware of this fact. And that  brings us full circle to the first story and the risks we all run when content owners are given legal powers to have allegedly infringing websites taken offline – what happens if they get it wrong?


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