Brazilian Court Says It's Illegal To Distribute File Sharing Software If You Have Ads On Your Site

from the that-doesn't-seem-right dept

A judge in Brazil has apparently told a website that offers downloads of a P2P file sharing app that because it has ads on the site, its operators can be found guilty of criminal copyright infringement and may face jailtime. Specifically, the entertainment industry had sued a particular website because it distributed a piece of file sharing software called K-Lite Nitro, even though it does not make or control the software. After first demanding that the software filter out a huge list of content, which was impossible since the website operators had nothing to do with the software, the company behind the website is now being told by the court that just offering up the software is infringing. So... first there was contributory infringement for file sharing apps themselves... and now they're going after sites that distribute such software? What is that? Contributory contributory copyright infringement? The site plans to appeal, noting that there are plenty of legal uses of the software as well. They also might want to point out that some forms of Brazilian music has done quite well by embracing file sharing to their advantage... But, for some reason, no one ever seems to want to look at that side of the equation.

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RIAA Wastes Little Time Trying To Extend Interpretation Of Usenet.com Victory

from the oh-really-now? dept

Last week we wrote about the RIAA's victory against Usenet.com, noting that it really wasn't that big a deal precedent-wise, given the rather specific circumstances involved in the case. Specifically, the company Usenet.com clearly destroyed evidence, which pretty much doomed the case, and on top of that engaged in activity that was egregious in terms of making it quite clear that it encouraged illegal activity through the use of its service. But, of course, the RIAA and its friends (as per usual) are having a field day claiming this is a big deal.

The RIAA, for example, put out a blog post calling it a significant victory, ignoring just how specific the case was, and stating misleadingly:

The decision reinforces two basic points: If you mindfully operate an illegal service without compensating the artists and creators whose content you advertise, the law is not on your side. Further, given the abundance of reasonably-priced legal download services, why go to an illegal one?

Not quite on either count. What it actually notes is that if you destroy evidence, you're almost certainly going to lose, and if you choose to outright flaunt the law and encourage people to use your site for illegal purposes, you're probably going to be in trouble too. However, note the neat little lie that the RIAA uses in its words here, calling Usenet.com "an illegal service." That's not accurate at all. Various usenet services have been offered for many, many years and are not illegal. The problem here was that the operators encouraged people to download infringing content. The service itself was not illegal.

Meanwhile Billboard for some reason asked an entertainment industry lawyer with a long history of involvement on the entertainment industry's side on these cases to write up a report about this decision, and it's no surprise that -- while positioned as a news article, rather than an opinion piece -- this same misleading explanation comes through -- again, calling it a "significant win."

Still, there is one part of the ruling (which both articles above cite) that does seem like a major departure from previous case law, which is why I'd be surprised if it's allowed to stand. That's the fact that the judge ruled that Usenet.com wasn't just guilty of contributory infringement, but direct infringement because it maintains an "ongoing relationship" with users. It's hard to see how such a ruling lives on through an appeal. It seems that the judge was heavily influenced by the other two issues -- the destruction of evidence and the egregious encouragement of infringement -- and thus stretched the definition of direct infringement here as well. But if such a ruling is allowed to stand, it basically wipes out the Betamax "substantial non-infringing uses" ruling for any kind of online service, and also seems to go against a number of other recent rulings. That would be a plainly ridiculous interpretation of what the court said in the Betamax ruling, and if the entertainment industry really wants to hang their hat on that, they really ought to look back at the history of what happened to their industry post-Betamax. That's because the technology they fought so hard to kill helped prolong the life of the industry. The same would be true of more efficient means of internet distribution, though they refuse to consider that as a possibility.

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RIAA Wins Layup Against Usenet.com

from the too-easy dept

When the RIAA first sued Usenet.com, we thought it could make for an interesting case. After all, you could make a decent argument that there are a ton of non-infringing uses of Usenet. However, as the details came out, it became pretty clear that Usenet.com dug its own grave, so it should be no surprise at all that a judge was quick to side with the RIAA. There are two main things at issue: first, it appears that Usenet.com may have destroyed evidence -- shades of TorrentSpy. It doesn't matter how the rest of the case shakes out -- if you're caught destroying evidence, you're already at the bottom of a big, big hill. Not only that, but in explaining the destroyed evidence, they gave contradictory explanations suggesting they then lied about the destruction of evidence. Another major no-no. The second issue was that the folks at Usenet.com were incredibly blatant in advertising its services for infringing on copyrighted materials. Whether you agree with the Grokster "contributory" infringement concept or not, it is the rule that the courts need to follow, and there does seem to be rather overwhelming evidence that Usenet.com regularly promoted the fact that it was a better way to infringe on copyrights. So, while the RIAA will again crow about this victory, it's a victory over an egregious player in the space who appears to have gone way over the line.

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Will The RIAA Sue Judge Kozinski For Sharing MP3s?

from the just-wondering dept

While judge Alex Kozinski is getting a ton of press for accidentally sharing pornographic images from his webserver, Justin Levine notes that the report concerning what was on the server also found music MP3s from musicians like Johnny Cash, Bob Dylan and Weird Al Yankovic. Levine wonders if the RIAA will now sue this federal judge as well. In fact, things could get tricky in that some research suggests not only was Kozinski storing MP3s, he may have actively been sharing some of those MP3s as well. That same link mentions that in one of many copyright infringement lawsuits concerning the company Perfect 10, Kozinski wrote a dissenting opinion suggesting that facilitating copyright infringement should be seen as infringement as well:

"When it comes to traffic in material that violates the Copyright Act, the policy of the United States is embedded in the FBI warning we see at the start of every lawfully purchased or rented video: Infringers are to be stopped and prosecuted."

There's a lot more involved in his opinion, which really focuses on credit card companies profiting from infringement -- but considering how he much he writes against those who help others infringe, it's probably not a wise idea that he was out there sharing music files himself.

However, to be fair, as the details come out, this whole thing is quite clearly a witch hunt by someone who seriously dislikes the judge. As we noted when the story broke, it's perfectly ridiculous to try to suggest this makes him any less qualified to judge cases. And, indeed, as the details come out about the content on his server, it's becoming clear that it is, as he noted "funny" stuff. It's all basically the sort of silly viral content that gets passed around all the time, much more for the amusement factor than any sort of titillation.

This post certainly isn't to slam Kozinski, who seems like a genuinely thoughtful judge -- with a sense of humor to boot (he famously nominated himself for a mocking "Judicial Hottie" contest run by a blog, noting: "While I think the list of female candidates is excellent, the list of male candidates is, frankly, lacking. And what it's lacking is me.... I have it on very good authority that discerning females and gay men find graying, pudgy, middle-aged men with an accent close to Gov. Schwarzenegger's almost totally irresistible." The fact that he was also sharing MP3s, again, is just yet another reminder that, contrary to the entertainment's claim that "education" will solve music sharing, many people just think it's perfectly natural and reasonable to share a song with some friends.

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