Major Record Labels Use Lawsuit Against MP3Skull To Try To Backdoor In SOPA

from the another-backdoor-attempt dept

Another week, another attempt by the legacy copyright players to find a way to enact SOPA via the backdoor. As we’ve been covering quite a bit lately, the Sony hack has revealed how “site blocking” (the key part of SOPA — which is more accurately described as censoring parts of the internet) is still a major priority for the the legacy copyright industry, and they’re exploring all sorts of ways to make it happen, from new lawsuits to new legislation to trade agreements to pressure on third parties to local politicians to the International Trade Commission to attacks on encryption and more.

It appears that the strategy of using lawsuits is now well underway with the major labels all teaming up to sue the site MP3Skull. That site has been around for a while, and is one quite frequently cited by copyright maximalists as an example of a “bad” player in helping people find unauthorized copies of music. At first I wasn’t even sure if it was worth covering the lawsuit as it seemed rather typical of similar lawsuits that the legacy entertainment industry has filed against a variety of sites and services. Frankly, I don’t know nearly enough about how MP3Skull works to have much of an opinion on the legal basis for the lawsuit, but it does seem odd that the labels are suing in Florida, when they’re mostly based in NY and MP3Skull is most likely based in Russia. I’m guessing the MPAA’s win against Hotfile in Florida may have something to do with the choice of venues.

But the reason this story is worth covering has little to do with MP3Skull itself. Rather, it’s the remedies the labels are asking for: which is basically to have the court issue an insanely broad order that no one can ever point anyone to MP3Skull’s websites or in any way help MP3Skull. Basically, the record labels are asking the court to pretend SOPA is the law despite it failing as a law:

…entry of an Order, pursuant to Section 502 of the Copyright Act (17 U.S.C. § 502), 28 U.S.C. § 1651(a), and this Court?s inherent equitable powers, (A) enjoining Defendants and all third parties with notice of the Order, including any Web hosts, domain-name registrars, domain name registries or their administrators, from facilitating access to any or all domain names, URLs and websites (including, without limitation, www.MP3Skull.com and www.MP3Skull.to) through which Defendants infringe Plaintiffs? copyrights;

(B) requiring domain name registries (including VeriSign, Inc.) and/or registrars holding or listing Defendants? domain names and websites (including, without limitation, www.MP3Skull.com and www.MP3Skull.to) through which Defendants infringe Plaintiffs? copyrights to: (a) disable www.MP3Skull.com, www.MP3Skull.to and any related domain names specified by Plaintiffs through a registry hold or otherwise, and to make them inactive and non-transferable, and (b) transfer Defendants? domain names to a registrar to be appointed by Plaintiffs to re-register the domain names in Plaintiffs? names and under Plaintiffs? ownership;

(C) enjoining all third parties with notice of the Order from maintaining, operating, or providing advertising, financial, technical or other support to MP3Skull and any other domain names, URLs or websites through which Defendants infringe Plaintiffs? copyrights, including without limitation www.MP3Skull.com and www.MP3Skull.to; and

(D) enjoining all third-party distributors of applications, toolbars or similar software with notice of the Order from distributing any applications, toolbars or similar software applications that interoperate with any domain names, URLs or websites through which Defendants infringe Plaintiffs? copyrights, including without limitation www.MP3Skull.com and www.MP3Skull.to.

That’s a lot of text, but what it’s saying is that the labels want the court to issue an order that the labels can then wave around to basically anyone, saying they cannot provide any services to the site and cannot link (“facilitating access”) to MP3Skull. The labels chose their target carefully. It seems unlikely that MP3Skull is going to show up in a Florida court to defend itself if the site really is run by a group of mysterious folks in Russia who haven’t revealed themselves. Thus, there’s a half decent chance that a judge could just issue a default judgment, and possibly just sign off on giving the labels exactly what they’re asking for. This doesn’t always happen in default cases, but certainly is more likely when there’s no real adversarial hearing to point out how insane and questionable the proposed remedy is.

Courts should generally try to avoid putting burdens on third parties entirely unrelated to the case in question. The labels must know this, but are hoping that without an adversarial process, they can present a very one-sided (and potentially misleading) story, and get the kind of ruling it wants, and then use that as a precedent for as long as they can.

Whether or not MP3Skull itself broke the law (and it’s certainly possible the site did), everyone should be extremely concerned about the excessive remedies being sought and the way the labels are looking to get a judge to effectively pretend that an extreme version of SOPA is already the law.

Filed Under: , ,
Companies: arista, atlantic, capitol records, elektra, emi, mp3skull, riaa, sony music, universal music, warner music group, zomba

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Comments on “Major Record Labels Use Lawsuit Against MP3Skull To Try To Backdoor In SOPA”

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44 Comments
radarmonkey (profile) says:

Accessories to a 'crime'

You know who else is “facilitating access”? Web browsers!

Every single web browser can take that simple string of letters and numbers and turn it into an actual page of information, and that information infringes on somebody’s copyright! And since it’s by design, it’s willful! The RIAA needs to eliminate web browsers to save the “artists”!

Sunhawk says:

Re: Re:

Mike Masnick just hates it when copyright law is enforced.

This is something that is in the domain of legislation – not a civil lawsuit. And the thrust of this article is that they’re doing so to attempt to de facto manufacture a law without it needing to be passed by the legislature and signed by the executive.

A law that they tried to get passed by the legislature, in fact, and it was denied.

To hell with copyright – to me what they’re doing is a very literal and serious attempt to usurp the political framework (albeit on a lesser scale then, say, planning a military coup).

The goal of copyright is the encouragement of innovation – but attempting to get around the whole principle of approval-by-voting is “this would be treason if that wasn’t already strictly defined” territory.

DannyB (profile) says:

Insanity on several levels

Do they think removing this from search engines is going to make it go away? What about search engines they don’t know about?

What about foreign search engines?

Even so, what if mp3skull changes it’s domain name?

Do they think they can get every ISP in the entire world to block the IP address? What if mp3skull changes IP addresses? Then should the new owner of the IP address get to sue the major record labels? (Like if you bought a house that all services and utilities were forbidden from servicing because of some former owner’s actions.)

If they are successful, do they realize what a Pyrrhic victory this will be? Sort of like shutting down Napster was. It just caused an explosion of new ways to distribute infringing material that was no longer centralized. (am I making a threat (gasp!) for mentioning the possibility of how other people than myself might react? Make no mistake, I am a lifetime subscriber to the practice of buying and listening to zero of the RIAA member’s products. Yes, really.)

If this backdoor SOPA censorship happens, I can make a few technical predictions.
1. A new decentralized way of looking things up by name (directory)
2. A new decentralized way of searching for things not reachable by major search engines (search, index)
3. Source and destination endpoint encryption or anonymizing of communications. (Tor on steroids)

How will censorship, errr… I mean copyright deal with that?

jupiterkansas (profile) says:

Re: Insanity on several levels

All they’re looking for is the power to say “take that website offline” and hopefully do it before any actual court ruling is made about infringing content. Once they have that power, they will abuse it to no end to make sure the only thing online are websites that meet their approval, and that power will extend way beyond the music industry. Lots of businesses will be asking to take down anything they haven’t made a deal with.

Bergman (profile) says:

Re: Insanity on several levels

What I want to know is how an injunction would work on a registrar that has not yet been founded, is not yet in business, and when it is created, will do business in a nation the court has no jurisdiction over?

Short of reopening the case to send out fresh injunctions every year, I don’t see how that could possibly work.

Anonymous Coward says:

If I were the judge

“Your request is functionally the same as this person committed copyright infringement so no one is allowed to talk about or to him, we get to decide what he says publicly, shut down his bank account and forbid anyone from helping him in anyway do anything, and extend this to anyone accused of infringing copyright. This violates at a minimum the first, fourth, sixth, and fourteenth amendments. Furthermore, there is no law on the books to permit this, and you heavily lobbied to argue for a law that would do this, so your case being thrown out.”

DannyB (profile) says:

Let's take this to its logical conclusion

Hosting an infringing mp3: RIAA leaves the host alone even though it is the only source of actual infringement throughout the rest of what comes below.

Linking to an infringing mp3: RIAA goes after that, even though it is actually a tool to find the actual infringing material.

But do they stop there?

Linking to a site that links to infringing mp3: Shut it down because it is facilitating and enabling.

Linking to a site that links to a site that links to infringing mp3s?

Linking to a site that links to a site that links to a site that links to infringing mp3s?

Oh, wait! Now it makes sense! So that is why SOPA is about shutting down the entire internet!

DannyB (profile) says:

Re: Re:

This will break the internet.

Once the **AA holes can arbitrarily censor anything they like for any conceivable reason, misconception, misunderstanding, or rationalization, the internet will break.

If one user on a major site links to the wrong thing, or maybe even just says the wrong thing, then the entire site will disappear in a puff of smoke.

And it won’t be just the **AA holes, it will be any big corporate interest. So nothing will exist on the internet unless it absolutely offends nobody and can not be construed as being a crime, even if it is not. Like fair use. Or reporting of news facts that are embarrassing.

You think they won’t go this far? They will do even worse. Until the world wakes up to the level of abuses and takes their ability to do it away.

WDS (profile) says:

Florida

From this article:
“but it does seem odd that the labels are suing in Florida, when they’re mostly based in NY and MP3Skull is most likely based in Russia. “

From Ars Technica:
“The record labels’ lawsuit (PDF) was filed in the Southern District of Florida, where the site’s Web hosting service, Webzilla, is based.”

So there is at least some logic to suing in Florida.

GMacGuffin (profile) says:

Ignorance is the risk here...

Assuming MPAA gets its default injunction with overbroad relief intact, the main risk is that ISPs and other parties given notice will think it applies to them. But except in cases where parties are shown to be sufficiently connected to the defendants, the Court has no jurisdiction over parties who aren’t before it in the action. So go ahead, show me that Order so I can ignore it.

Anonymous Coward says:

Re: Ignorance is the risk here...

But except in cases where parties are shown to be sufficiently connected to the defendants, the Court has no jurisdiction over parties who aren’t before it in the action.

Two words: ex parte

RIAA used such proceedings to try and pry identities out of (eg) universities and ISPs for mass infringement lawsuits. Admittedly, it eventually stopped working so well, but for a while there…

The Foreign Intelligence Surveillance Court also operates ex parte.

Ex Parte is the exception rather than the norm, but in general, you’re right.

Anonymous Coward says:

You cannot block a website on the internet as the UK has discovered with their hilarious corrupt antics. All you do is make a mess and proliferate content wider and further. Innovate or die those are the choices. Staying still is not an option, we are not going to wait for you, we have already and are going to continue to move on.

Anonymous Coward says:

Looks like the mainstream record labels have a choice:

Listen to the tech sector for once about undemocratic site blocking being dangerous, discard their bad ideas once and for all, and give up while still behind.

or

Attempt one last shred at relevance (by trying to backdoor SOPA) that will only make everyone that isn’t in their inner circle hate them and invoke another Disco Demolition Night, only with far less book burnings (and possibly more of that other definition of burning media), geared toward entire labels (as opposed to a genre), and with zero chance of a revival.

Anonymous Coward says:

i suppose the telling thing will be who gets selected to sit on the bench. if, as was the Spectrial against TPB4, the industries have paid out enough to get their choice or will there actually be a proper judge doing the ruling?

the really pissy thing is how, yet again, the USA thinks it rules the planet and can make any decision for what will happen in countries it has absolutely no jurisdiction over. one day, one of these nations is going to get a serious hard on for taking the US orders and shoving them where the Sun dont shine! the problem then will be how long the planet lasts because the thick fuckers ruling the US will go ape shit as usual and take the most stupid action it can and do the lot of us!!

Ophelia Millais (profile) says:

What's needed is an amicus brief to discourage finding direct infringement and limit the harm of finding secondary infringement

Looks to me like the RIAA is trying to beef up their arsenal of precedents against search-engine-like sites.

I mean they can’t seriously think MP3Skull is a threat to their business. They say it’s infringing and causing harm “on a massive scale,” but they have no numbers to back that up and don’t need any. That’s because it’s not about MP3Skull or their business model at all. MP3Skull could shut down today and it wouldn’t result in any bump in business. Nor does the RIAA want to partner with MP3Skull and get a cut of their ad revenue.

No, they really just want to get a ruling against this type of website; they are seeking a declaration that any site willfully infringes if it is a search engine that provides links to copyrighted content.

One of the things the RIAA is doing here is trying to solidify the concept of secondary, contributory infringement—an emerging doctrine in civil case law which does not require proof of actual infringement by the defendant, but rather just proof that the defendant has a sort of conspiratorial role with the people doing the actual unauthorized copying and distributing. All that needs to be shown is that infringement has occurred as a result of MP3Skull’s actions, and that MP3Skull was knowingly facilitating it. In this regard, the case is an easy win for the RIAA, and their complaint is chock-full of evidence against Mp3Skull. MP3Skull uses major-label artists as examples, and instructs & encourages users to work around blocks instituted as a result of takedown notices. The RIAA has already used that kind of “red flag knowledge” of infringement by users to obtain favorable precedents against user-uploaded content services, file-sharing services, and file-sharing software distributors. MP3Skull’s smoking guns are in plain sight, no discovery of internal emails needed.

One of the other things the RIAA is doing in this case is much more sinister. In addition to claiming secondary infringement, they are claiming direct infringement. They present absolutely no evidence in support of this, but they are hoping the judge (who I assume they’ve forum-shopped for) will agree with their claim that MP3Skull’s owners “reproduce and distribute unauthorized reproductions” and “engage in unauthorized public performances”. This right here is the backdoor SOPA and must not be allowed traction.

Unfortunately, MP3Skull’s owners are unlikely to emerge from the shadows to raise a First Amendment defense. I am also wondering if it’s reasonable to expect any amicus briefs from companies which now have an “arrangement” with the RIAA, like Google/YouTube, Soundcloud, Spotify, etc. Even if a “hyperlinking is free speech” defense were raised, I wouldn’t expect it to succeed in this case, given MP3Skull’s public nose-thumbing and their apparent intent to hook people up with any music whatsoever, regardless of whether it can be legally distributed.

I think the best we can hope for is an amicus brief from the EFF in an effort to limit the collateral damage. They should insist that no “plain reading” of the statutes nor circuit precedent supports a finding of direct infringement. And if the court is to find secondary infringement, then it must be expressed in a way that makes it clear that it’s contingent upon 1. evidence of direct infringement by MP3Skull users (or at least evidence that such infringement is likely, based on site traffic and an as-yet undemonstrated ability to search for and acquire plaintiffs’ recordings via the site); and 2. the egregious infringement-encouraging and facilitating things that MP3Skull did above and beyond mere indexing and hyperlinking.

Ophelia Millais (profile) says:

Re: What's needed is an amicus brief to discourage finding direct infringement and limit the harm of finding secondary infringement

  • Addendum: When I say as-yet undemonstrated, I mean the RIAA has asserted in their complaint that it’s possible to search for plaintiffs’ recordings via the site, and that searching the site generally results in links to MP3s as well as playback via an embedded widget, but unless I missed something (maybe I did), they did not actually say that they successfully and routinely were able to use the site to access the specific recordings at issue.

    IMHO, without such an assertion, it can’t be assumed that users are able to infringe plaintiffs’ copyrights for those specific recordings, and thus there should be no finding of secondary infringement by the site’s operators.

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