Whatever You Think Of The RIAA's Lawsuit Over Aurous, Shouldn't We Be Concerned That It's Pretending SOPA Is Law?

from the seems-like-an-issue-that-ought-to-be-looked-at dept

As you may have heard, earlier this week, the RIAA sued Aurous and its creator Andrew Sampson for creating an apparently easy to use software front-end for streaming music from some unauthorized repositories (mostly in Russia). For his part, Sampson insists that he just used some publicly available APIs and created a nice front end, without doing anything that is directly infringing himself. While I can understand those claims, the existing details and case law suggest that Sampson isn’t going to fare very well in court. Given Sampson’s own public statements, at the very least, the RIAA has made a fairly compelling case under the Grokster “inducement” theory. You can — as I do — think that “inducement” to copyright infringement is a ridiculous thing to be considered against the law, but that doesn’t change the fact that it is, indeed, the law. Unless there are some as yet unknown details here, Sampson is likely going to have a hard time getting around the inducement claims.

So given all that, I fully expect that Sampson will lose the lawsuit (and lose easily) if the case gets that far. However, that doesn’t mean that parts of the lawsuit aren’t concerning. Of particular concern is what the RIAA is asking for in the lawsuit — and what the judge appears to have granted. Specifically, in the lawsuit itself, the RIAA doesn’t just ask for Aurous to be shut down, but also asks for all sorts of third parties to be restrained as well. Here’s the list of things the RIAA asks the court to issue an order for:

(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.aurous.me) through which Defendants infringe Plaintiffs? copyrights;

(B) requiring domain name registries and/or registrars holding or listing Defendants? domain names and websites (including, without limitation, www.aurous.me) through which Defendants infringe Plaintiffs? copyrights to: (a) disable www.aurous.me 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 Defendants and any other domain names, URLs or websites through which Defendants infringe Plaintiffs? copyrights, including without limitation www.aurous.me; 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.aurous.me.

This is problematic, to say the least. Remember, SOPA did not become law, and yet the main part of the original SOPA bill was to create just this sort of remedy, whereby copyright providers could get a court order to get third party companies to be barred from doing any business at all with a site deemed a “pirate” site. Yet, SOPA did not become the law and the RIAA is just pretending it is law in asking the court to block all of those third parties from providing any services to the site.

The RIAA also submitted a desired temporary restraining order, which the judge effectively rubber stamped, granting everything the RIAA asked for — but rejecting the RIAA’s request not to have to put up a bond over this. Instead, the judge ordered the RIAA to put up a tiny $5,000 bond in case a party was “wrongfully” enjoined. That temporary restraining order seems pretty broad as well:

… Defendants and their officers, agents, servants, employees, attorneys, and all persons who in active concert or participation with each or any of them, or who are aiding and abetting their conduct, are hereby RESTRAINED and ENJOINED until further Order of this Court from infringing, or causing, enabling, facilitating, encouraging, promoting and inducing or participating in the infringement of, any of Plaintiffs? copyrights protected by the Copyright Act, whether now in existence or hereafter created…

Of course, one might question what qualifies as “all persons who are in active concert or participation,” but it still has the potential to be overbroad, and to pull in all sorts of third parties who are doing nothing more than providing basic services.

Again, none of this is to say that Aurous is legal or shouldn’t be facing this lawsuit. But pulling in third parties here was exactly the kind of thing that Congress chose not to do when it did not pass SOPA, in the wake of overwhelming public sentiment against allowing these sorts of remedies.

So why is the RIAA simply acting like it got what it wanted with SOPA and asking the court to proceed accordingly?



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Companies: auroros, riaa

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Comments on “Whatever You Think Of The RIAA's Lawsuit Over Aurous, Shouldn't We Be Concerned That It's Pretending SOPA Is Law?”

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45 Comments
That One Guy (profile) says:

Why not?

Why wouldn’t they do exactly this? What can they possibly lose by asking for too much? At most the judge might have refused their demands(which apparently didn’t happen), and it’s not like that costs them any more than some paper and billing hours for their lawyers. They have absolutely nothing to lose by asking for everything they can possible think of.

On the other hand, what they stand to gain is significant. They failed to get SOPA through, but by demanding that parts of it be enforced as though it were law anyway they effectively bypass the lawmakers entirely so long as they can find a willing judge and unsympathetic enough target. Win one case, and they have a precedent to point to for future cases, all of which will be easier as a result. Win enough cases, and it doesn’t matter if what they’re demanding isn’t actually law on paper, it will still be treated as law in practice.

Mike Masnick (profile) says:

Re: Inducement?

According to the inducement theory wouldn’t that mean Xerox is guilty as well? After all they made available the technology – and a solution – to enable the broad copying of copyrighted books?

No. They didn’t go around advertising the fact that this was a way to get around copyright law. Auroros did. The ruling in the Grokster case basically says that you’re not guilty of inducement if your product can be used for infringement (even if you know it’s used for infringement) if you didn’t actively encourage such use. However, if you do… then you’re guilty of inducement. Xerox did not. Auroros did.

Anonymous Coward says:

Re: Re: Inducement?

Inducement can’t be proven because there’s no way to upload anything from the client in it’s current form. The indexed files are sitting on a server that they have no control over and no personal connection to. If VK made the client and the advertising then it would be a totally different story.

Anonymous Coward says:

Copyright was a give and take

Originally copyright gives some people exclusive right for a very temporary time in return for giving the work over to the public right after that time is up. It was contraversial at the time since no one in the public wanted it at all since it was carving out rights (anytime you define rights, you are also defining what isn’t a right). Over time as people got used to the idea and forgot the original intent, the time periods where we have no right to works was extended more and more. Now they want to do away with the right of first sale altogether and tell people what they can and can’t do with something they paid for. We are now at the point where the law and intent has been twisted so far, we are losing the rights we had remaining. The RIAA has nothing to do with creation of content, only the mafia style protection racket that has robbed the public of millions of hours of videos that happened to have music in the background. We are not allowed to build upon the work of those who went before us unlike all of humanity up to this point and we are the ones in the wrong?

Anonymous Coward says:

That sounds to me like they want to erode safe harbor for isp’s and search engines as well in kind of a catch 22. It effectively turns 3rd parties, payment services for example into internet police and all RIAA has to do is file. They don’t bear the burden of proving anything first.

Did Auroros even get launched or were they still essentially an idea or plan?

Anonymous Coward says:

This is problematic, to say the least. Remember, SOPA did not become law, and yet the main part of the original SOPA bill was to create just this sort of remedy, whereby copyright providers could get a court order to get third party companies to be barred from doing any business at all with a site deemed a “pirate” site. Yet, SOPA did not become the law and the RIAA is just pretending it is law in asking the court to block all of those third parties from providing any services to the site.

Mike, Here’s SOPA: http://www.gpo.gov/fdsys/pkg/BILLS-112hr3261ih/pdf/BILLS-112hr3261ih.pdf

Can you point to the section you’re talking about where it would have created this remedy?

I think you’re mistaken.

That One Guy (profile) says:

Re: Re:

Pages 13-14
(A) SERVICE PROVIDERS.—
(i) IN GENERAL.—A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign in- fringing site (or portion thereof) from resolving to that domain name’s Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order.

Page 15:
(B) INTERNET SEARCH ENGINES.—A provider of an Internet search engine shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to prevent the foreign infringing site that is subject to the order, or a portion of such site specified in the order, from being served as a direct hypertext link.

Pages 15-16
(C) PAYMENT NETWORK PROVIDERS.—
(i) PREVENTING AFFILIATION.—A payment network provider shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States or subject to the jurisdiction of the United States and the payment account—
(I) which is used by the foreign infringing site, or portion thereof, that is subject to the order; and
(II) through which the payment network provider would complete such payment transactions.

Pages 16-18
(D) INTERNET ADVERTISING SERVICES.—
(i) REQUIRED ACTIONS.—An Internet advertising service that contracts to provide advertising to or for the foreign in- fringing site, or portion thereof, that is subject to the order, or that knowingly serves advertising to or for such site or such portion thereof, shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to—
(I) prevent its service from providing advertisements to or relating to the foreign infringing site that is subject to the order or a portion of such site specified in the order;
(II) cease making available advertisements for the foreign infringing site or such portion thereof, or paid or sponsored search results, links, or other placements that provide access to such foreign infringing site or such portion thereof; and
(III) cease providing or receiving any compensation for advertising or related services to, from, or in connection with such foreign infringing site or such portion thereof.

ISP’s would have been required to block the connection to the site, search engines would have been required to de-list the site, payment network providers would have been required to block any payments made to the site through their service, and ad services would have been required to stop doing business with them. Collect all those together, and it sounds exactly like what he’s talking about, forcing third-parties to completely cut ties with accused ‘pirate’ sites.

That One Guy (profile) says:

Re: Re: Re: Re:

Page 26:
(2) QUALIFYING PLAINTIFF.—The term ‘‘qualifying plaintiff’’ means, with respect to a particular Internet site or portion thereof, a holder of an intellectual property right harmed by the activities described in paragraph (1) occurring on that Internet site or portion thereof.

Page 38:
(1) SERVICE AND RESPONSE.—
(A) SERVICE BY QUALIFYING PLAINTIFF.—A qualifying plaintiff, with the prior approval of the court, may serve a copy of a court order issued under subsection (c) on similarly situated entities described in paragraph (2). Proof of service shall be filed with the court.

Page 38-39
(2) REASONABLE MEASURES.—After being served with a copy of an order pursuant to this subsection, the following shall apply:
(A) PAYMENT NETWORK PROVIDERS.—
(i) PREVENTING AFFILIATION.—A payment network provider shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the court order, or within such time as the court may order, that are designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States or subject to the jurisdiction of the United States and any ac count—
(I) which is used by the Internet site dedicated to theft of U.S. property that is subject to the order; and
(II) through which the payment network provider would complete such payment transactions.

Page 40-41:
(B) INTERNET ADVERTISING SERVICES.—
(i) REQUIRED ACTIONS.—An Internet advertising service that contracts with the Internet site dedicated to theft of U.S. property that is subject to the order to provide advertising to or for such Internet site, or that knowingly serves advertising to or for such internet site, shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, that are designed to—
(I) prevent its service from providing advertisements to or relating to the Internet site;
(II) cease making available advertisements for the Internet site, or paid or sponsored search results, links, or other placements that provide access to the Internet site; and
(III) cease providing or receiving any compensation for advertising or related services to, from, or in connection with the Internet site.

No mention of ISP’s or search engines(that I saw anyway), so those might be out of reach of non-AG’s, but non-AG’s can most certainly get the financial support of a site cut off via court order, and a site with no financial support is one that’s not going to last long.

Anonymous Coward says:

‘So why is the RIAA simply acting like it got what it wanted with SOPA and asking the court to proceed accordingly’

probably because it knows that it only has to throw a few dollars at Congress and it will do whatever it can to make it appear that SOPA actually passed into law. on top of that, most courts do exactly what the RIAA and the movie industry want without even considering the arguments or evidence!
and then there is the usual RIAA tactic of just using what it WANTS to be law as if it IS law! no one else is allowed that ploy but then the entertainment industries are taking whatever steps it can think of, legal or otherwise, to get what it wants. the industries have their sights set on controlling the internet. there are law suits in other parts of the world that the industries have brought to get not just websites blocked, but the trackers! then in another part of the world, an ISP has already stated it will do as the Industries want because it cant afford to go to court to protect the identities of it’s customers and is giving over the information without any court case! once that happens in that country (Italy, i believe) the industries will go global, and that means really big changes coming into force! see if i aint right!!

tqk (profile) says:

Re: Point of order, Mr. Speaker. Query from a grammar Nazi.

and then there is the usual RIAA tactic …

Can anyone tell me where this practice comes from? There’s capital letters embedded in the sentence, yet not one sentence begins with a capitalized word. They can do it, yet for whatever reason, they won’t. Where does this phenomenon come from? Is this just e. e. cummings mashing up against instant messaging laziness, or is this something Jobs (or whoever) came up with and it’s an homage to their greatness?

I was taught that composition skills are to enhance the possibility that readers might want to read what you write. Looking at stuff like this looks like an insult to the reader, at least it does to me. It’s very pathetically “arty” for no apparent purpose or value that I can think of.

tqk (profile) says:

Re: Re: Re: Point of order, Mr. Speaker. Query from a grammar Nazi.

But, it’s not lazy. They capitalize acronyms mid-sentence! Laziness would mean throwing capitals to the wind altogether. It’s an affectation, a la e. e. cummings, just for the “arty” affect. I can grudgingly admit that cummings use was valid (he was a friggin’ poet :-), but here it just looks, I don’t know, millenial, or something just as goofy.

I’m just curious if anyone knows where it came from and what, if any, event precipitated it. I’ve seen it happening everywhere in recent years, not just in this case. I’m wondering if it’s the logical extreme of CamelCase variable names run amok.

Uriel-238 (profile) says:

Re: Re: Re:2 Point of order, Mr. Speaker. Query from a grammar Nazi.

I still have embedded in my head the notion that now that we have bold and italic that we’re supposed to use them for all the places we used to use quotes and underlines, since those are artifacts from the typewriter era.

It’s not completely true. Some people have been confused by my italicized scare quotes, and for those of us who’ve grown up with quotation marks, interpretation of them has become transparent.

We are shaped by the opinions of our professors. At least I’ve been by my graphic design instructors.

tqk (profile) says:

Re: Re: Re:3 Point of order, Mr. Speaker. Query from a grammar Nazi.

Some people have been confused by my italicized scare quotes …

I’ve seen complaints from people who say they can’t even see italics when using a cellphone. I’ve no sympathy. I assume they bought the wrong cellphone. They should have done better pre-purchase testing. Better luck next time, or spring for a cheap tablet or laptop. User error. PEBKAC.

Uriel-238 (profile) says:

Re: Yeah, that moment kind felt like the end of due process.

Though by then we were already denying due process to unlawful combatants because Cheney was feeling miffy about 9/11 and thought that burning some scapegoats would make him feel better.

I wonder if the RIAA and MPAA folks are figuring similarly, that they’d feel better if they just arbitrarily blamed some people and then denied them life or liberty or property.

Our people in high positions are behaving less like officials or representatives of people, and more like nobles and kings.

tqk (profile) says:

Re: Wrong question

Why is the court acting like this is the law?

Money talks, obviously. Judges have seen the writing on the wall and understand their new marching orders. Taxpayers and voters are the new peons, and corporations are the new citizens for whom the gov’t works. “The business of America is business”, and all that. They suffer our existence only as long as we’re useful to them.

After all, have you seen the crap that the peons write and fight about in on-line fora? They’re foaming at the mouth ignorant imbeciles. They invent crap like Occupy Wall St. and the Tea Party, ffs. Who can take anyone like that seriously?

Nomad of Norad says:

Corruption and graft....

Frankly… so many of these wrongnesses come about because there’s corruption in high places, and the linchpin of fixing all these wrongnesses is finance reform of various sorts. For that reason we all need to pay attention to and support groups like Wolf PAC and Represent.Us as they move to make the ultra-rich trying to unfairly influence our duly elected officials, to the extent that the joe sixpacks and soccer moms of the world get NO influence at all, a jailable offense. Once that’s in place, it will be a lot easier to get laws and rulings in place that push things the OTHER way on this, and also a lot easier to steadily dismantle all the existing BAD law out there wrt copyright and liberties.

GEMont (profile) says:

Re: Corruption and graft....

How on earth are they planning to convince politicians to STOP accepting 10-20 thousand dollar bribes and 100,000 dollar gifts, for favors that are perfectly legal to perform??

How do you propose to stop Hollywood from offering cushy post politics positions of power, that demand neither expertise nor labor of any sort, but promise a 6 digit annual income, in return for legal and political favors today??

You have to realize that today, corruption is the equivalent to a second income with bonuses (tax-free), for most of the people working for government, or as government, or in the legal professions – the very people who propose and enact legislation.

While it would normally take half a life time for a judge to save enough money to buy that lovely chalet in Spain, overlooking the sea, he can now do it in just a few years by taking money on the side for making preselected judgements that favor Hollywood, Drug Warriors, and federal government spies.

How on earth are you ever gonna get them back on the farm, once they’ve tasted American corruption and graft, if you cannot even pass laws that make the process illegal??

GEMont (profile) says:

All is Fair in Love and War.

While it would be best to ask a bar full of lawyers, I think that War Measures Legislation allows the federal government to create and install any laws it likes without asking or telling the general public, when the general public is specifically included in the ranks of the “enemy forces” that the government has declared war upon.

The War on Drugs is a war on the American Public, because drug dealers and drug users are indeed American citizens.

Thus, because the federal government department of the Entertainment Industry of America wanted very much to put SOPA through, and because the public charade of democratic procedure failed to get that done, the feds have quietly installed SOPA as law, so they can use it whenever needed, but neglected to inform the general public of that fact in much the same manner as they did with the US Constitution and for pretty much the same reason.

Hollywood, of course, is fully aware of the fact that SOPA was secretly ratified and installed as law, because they wrote the legislation and paid the men and women of the federal government vast sums of money to do exactly that, so they would naturally use the legislation whenever the need arose.

When you think about it, maintaining total secrecy during the “talks” about a Free Trade Agreement, followed by non-disclosure of the details of that agreement for a decade, is pretty much the same thing as simply secretly stating the agreement is law, since there will be no public dissent allowed that might prevent that inevitable outcome.

Just a thought. 🙂

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