When an injunction is sought against a service provider for the actions of its third-party users, that doesn't make the service provider a third party. The injunction is against the service provider directly.
And that is the type of injunction that the MPAA was seeking. The injunction didn't state that "MovieTube be required to transfer the domain names..." (&etc). It stated that "Registries and/or Registrars be required to transfer the domain names..." (&etc). The injunctions were directed at the service providers directly.
There is a fundamental difference between being the party enjoined and being a party bound by that injunction because it is in active concert with the party enjoined.
For the purposes of 512 safe harbors, there is not. "A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief..."
It is all-encompassing. If you have those safe harbors, it doesn't matter if you might be considered "in active concert with the party enjoined." Even if you are, you cannot be bound by any injunction whatsoever that falls outside of 512(j).
The safe harbors in 17 USC 512 place absolute limits on the injunctions that can be granted under Rule 65.
Of course, it doesn't make any difference, because courts have defined "active concert or participation" very narrowly. For example:
The Federal Rules of Civil Procedure provide that: "Every order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." This is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in "privity" with them, represented by them or subject to their control. In essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.
The activities carried out by the OSP's do not even come close to this level of involvement. There is precedent on this point:
David, Mary, and Lisa Blockowicz received an injunction ordering Joseph David Williams and Michelle Ramey to remove defamatory comments they posted about the Blockowiczs on www.ripoffreport.com (“ROR”), among other websites. Williams and Ramey never responded to the injunction, prompting the Blockowiczs to contact the websites on which the statements were posted to secure compliance with the injunction. Every website complied, except for ROR. The Blockowiczs asked the district court that issued the injunction to enforce it against Xcentric Ventures, LLC, (“Xcentric”) the host of ROR, and Ed Magedson, the website's manager, pursuant to Rule 65(d)(2)(C). The district court declined, and the Blockowiczs appeal the district court's decision. They argue that Xcentric and Magedson fit within Rule 65(d)(2)(C), and thus should be bound by the injunction, because they had “actual notice” of the injunction, and they were “in active concert or participation” with the defendants in violating the injunction by failing to remove the defamatory statements. We affirm: Xcentric and Magedson were not “in active concert or participation” with the defendants pursuant to Rule 65(d)(2)(C).
The point is that 512 doesn't apply to third parties such as Google since they're not being enjoined.
And that point is the one that is false. An OSP is, by nature, a third party. 512 only applies to third parties such as Google.
Being prevented from aiding an enjoined party is not the same thing as being enjoined.
If that "prevention" takes the form of a court-ordered injunction, then yes, those parties are being "enjoined." That's pretty much the definition of the word.
This was exactly what the MPAA sought. They referred to it specifically as "preliminary injunctive relief" in their filings.
Let's make something absolutely clear. If an OSP has 512 safe harbors, the only relief that any court is legally allowed to grant against that OSP is specified in 512(j). They cannot do anything more than that.
If a court-ordered action on that OSP is outside the bounds of 512(j), the court is acting unlawfully. You can call it whatever you like, try to redefine the term "enjoined" so that is only applies to named defendants, or whatever. But it's still unlawful.
The injunction against the defendants comes under 17 U.S.C. 502. The applicability of that injunction to those in "active concert or participation" with the enjoined defendants comes from F.R.C.P. 65.
Except that section doesn't nullify 17 USC 512. (Indeed, if an OSP is eligible for 512 protection, I doubt it would even be possible to claim that they are in "active concert or participation" with the third party.)
The 512 safe harbors don't mention anything about the OSP's themselves being named defendants (or not). It is all-encompassing: "injunctive or other equitable relief." There is no exception to that very, very clear statement; it's not "injunctive or other relief, provided that they are named defendants."
Simply put, any entity that has 512 safe harbors absolutely cannot have an injunction levied against them on account of infringement by their users - except as provided for in 512(j). This is black-letter law.
To be clear, News Corp. is not Fox News Network, LLC. They are separate and distinct legal entities, and to equate them as one in the same because one may be the corporate parent of the other is a mistake.
Interesting. So you are saying that if News Corp. doesn't hold the copyright on either the Fox News Network or Sky Network broadcasts? That if someone infringed on a broadcast from one or the other, News Corp. wouldn't have standing to sue?
If not, then your point is irrelevant. If News Corp. is the copyright holder of both broadcasts, they DMCA'd themselves.
it has rejected 43% of the DMCA notices it has received as either incomplete or abusive.
That's actually at the low end of the spectrum. If you consider an "invalid notice" to be a notice on content that has already been taken down, that figure jumps to 57%.
It shows, in no uncertain terms, that DMCA abuses are not "outliers."
Now, to find out if other service providers or search engines (like Google or Bing) are taking down/delisting those same abusive notices. This should be possible if they send those notices to Chilling Effects.
Re: Could be worse, they could be dealing with Google's competition
I still do not understand why they think that google's competition, Apple and Microsoft, would be any easier to deal with.
Because they are already working with Google's competition.
The MPAA is singled out here - and it's justifiable, since they're the worst offender - but they didn't act alone in bribing Jim Hood to go after Google.
Another partner in Project Goliath was an organization called FairSearch. This is an anti-Google coalition started by competing search engines (Expedia, TripAdvisor, etc.), Oracle, and Microsoft. They're also the ones who are behind the Google antitrust case in the EU.
And, there's also organizations like Arts+Labs. It is funded mostly by major telecoms, and was later joined by music organizations like BMI and the SGA. It was set up as an anti-Net Neutrality organization, and later went on to support SOPA.
Here's an interesting tidbit: Chris Castle (of Music Technology Policy/Trichordist infamy) being interviewed as part of Arts+Labs, pretty much admitting that they're an astroturf organization: https://www.youtube.com/watch?v=bXIoJVFmKvQ
Of course, like a classic astroturf group, they seem to have disbanded after their policy advocacy failed; their site is offline.
...There's a lot more of course, but I think you get the idea.
Re: This anomaly probably due to automated skimming, such as of publicly available "hosts" files that blacklist: "127.0.0.1 piratesite.com",
what would Techdirt do without anomalies to be used against copyright?
Yet if a UGC site has as many infringing files as there are these DMCA "anomalies," rights holders would successfully sue them out of existence.
Funny how you consider "oh, it's a mistake that got through our system" to be a valid defence when censoring protected speech, but when the censors use that excuse, you defend them to your dying breath.
Sad, because I have always found that a discussion involving seemingly incompatible and diametrically opposed views are the ones that provide the greatest opportunity for actually learning about a subject and all its nuances.
Well whaddaya know, GamerGate folks aren't the only ones into sea-lioning.
Re: Re: Out of the frying pan, into the fire(but now with self-righteous satisfaction as you roast)
Piracy is just another word for stealing when used in the framework of economics.
Absolutely false. In the framework of economics, piracy is the same thing as perfect competition.
And the rule of perfect competition is that the product's price naturally gravitates towards its marginal cost - the cost to make one more copy. In the case of a digital file, the marginal cost is zero.
Rather surprised Google has only payed off 10 state ATs...
It's the other way around. From the leaked emails, it was the MPAA that was (is?) funding multiple AG's across the country.
Jim Hood was just the most prominent. Also, at the time, Hood was the president of the National Association of Attorneys General. He set the tone for the rest of the state AG's. (His Presidential Initiative? "Protecting Our Digital Lives: New Challenges for Attorneys General.")
So, it's hardly a surprise that stat AG's would stand behind their leader.
allowing one client to work with another one behind the scenes
That's not quite what an API is. An API says something like: "if you have an instance of a class called Stack, and invoke a method called pop() on it, it will remove and return an object (of a specific type) that is semantically on the top of the stack."
Obama's administration is littered with ex-Google types. The infestation is so complete that they dodged a US anti-trust lawsuit because of it.
This is pretty obviously bullshit. If the Obama administration is "littered with ex-Google types," it's only because Google is a big company that has hired lots of smart people, and the administration wants smart people.
But that "if" is wrong. The "ex-Google types" that are in the administration are far, far outweighed by the "types" that were previously lobbyists for big media companies.
Sun Microsystems wrote the APIs (now owned by Oracle) which were specifically designed for the sandbox compiler.
This is actually the crux of the issue. Oracle's license specifies that the Java bytecode that is produced be compatible with the JVM. (I don't know if it was the same under Sun.) Google actually implemented their own VM (Dalvik), and much of its bytecode was incompatible with the JVM - which is unsurprising given the need to run efficiently on mobile devices.
Google should have written its own APIs, even if they performed identically to the Java APIs.
This would be disastrous, especially for open-source projects. For example, it would require that Mono write its own API's. This would defeat the entire purpose of Mono, and force everyone who used the C# API's to use the Windows CLR (and possibly pay royalties to do so). Likewise, Unix could copyright what is now the POSIX standard (it's an API, after all), which would make other implementations of this standard be unlawful without a license.
By stripping out the APIs to make another OS is nefarious. I didn't say it was wrong, but damn, does it cross an ethics line.
I don't see why. For example, Linux could feel free to not implement some of the POSIX system calls, and I don't think there would be anything nefarious about it.
Also, the parts of the API that Google stripped out are the parts that were not relevant to a mobile language (like the Swing API).
As a reminder: Google forked Linux for its kernel, but it's still called Linux. Not the same for Java, which is now Android.
First: Java is a programming language, not an operating system. Android is an operating system, but applications for it are written in the Java programming language, using the Android API's to communicate with the OS. (Or not, if you use something like PhoneGap.)
Second: the OS is called Android, just as Ubuntu is called Ubuntu. The kernel may be a fork of Linux, but the kernel is not the entirety of the OS - at least, not how you define it. (The technical definition is that the kernel is the OS, and toolkits or software packages are not part of it. For example, the Bash shell is not part of the Linux OS.)