from the settlements-are-not-precedential dept
Earlier this year, we noted the decision by Disney and Warner Bros., to sue Triton Media, an advertising firm, for supposedly working with various sites that (the studios claimed) facilitated copyright infringement. A big part of the argument was that Triton was working specifically with such sites, knowing what they did and was therefore somehow liable. Yet, as we noted, this seemed like it was massively separate from the actual infringement. Many of the sites in question were merely links sites, so any actual infringement was happening with users on very different servers, so it seemed crazy to blame the company that was selling ads.
Yet, last month, when we wrote about how Triton decided to settle up for $400k, this hardly meant, as The Hollywood Reporter claimed, that this was a “win.” There were many reasons why Triton might settle (including that it’s cheaper than fighting), and such a settlement isn’t precedential on anyone else. But (of course), in typically misleading fashion, the MPAA put out a press release claiming that it had “obtained a judgment,” against Triton.
Now, here’s what’s sneaky. There are various ways to “settle” a case, and one is a “consent judgment.” That’s just a settlement worked out by the two parties, rather than the judge issuing an actual decision on the case. As part of that, there is a consent judgment issued by the court, but it’s what the parties agreed upon, rather than what you normally think of as a court ruling, where the judge is deciding the result. Yet, the MPAA spun it as the studios winning a ruling where the judge had to weigh the merits of each side and came up with this result. That is incredibly misleading… but it seemed to have the desired effect.
For example, music industry lawyer Chris Castle, who never misses a chance to attack Google, no matter how weak or laughable (or wrong) the argument might be, posted to his blog about the decision, comparing it to Google, and suggesting that Google might be next. I left a comment for Castle noting that, as a lawyer, surely he was aware of what a consent judgment was, but (surprise, surprise) Castle refuses to post any comments from me (the same thing happened earlier this year when I repeatedly sent him comments noting blatant factual errors in posts). And, with that in the bag, Andrew Orlowski over at The Register decided to write his standard misleading drivel, claiming that the “ruling” sent a “chill through Google.” Except, again, it’s not actually a ruling in the traditional sense, but a settlement between the parties. Somehow, that doesn’t make it into the article at all. And then others, who aren’t as directly biased, picked up on it as well. Kit Eaton, over at Fast Company, picked up on Orlowski’s article, and wrote an article suggesting “Google could be next.”
Well, sure, Google “could” be next, but the scenarios are entirely different, and what Google does is quite different than Triton. But, more importantly, this “ruling” has no bearing on Google because it’s not a precedential ruling, but just a settlement between the parties. And, it’s unlikely that Google would just settle such a lawsuit, but would fight it. Of course, the studios and the MPAA know all of this. I’m not sure if Castle, Orlowski and Eaton know (or care) about all of this, but at least with Castle and Orlowski, it appears that they played this up for maximum FUD, as is their standard operating procedures.
Update: Apparently there are two different companies named Triton Media, and the one that wasn’t sued doesn’t like to be associated with the one that was sued (understandable). So the one that was sued and settled is Triton Media, out of Scottsdale, Arizona. Not Triton Media Group, which is based in Sherman Oaks, California.