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.