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1: Lime Wire strikes back in court against RIAA

First off today, opening arguments were heard in the LimeWire trial and attorneys for the company and its founder, Mark Gorton, accused the record industry of attempting to turn LimeWire into a scapegoat and even used quotes from the various record label executives to make their point. The record label attorneys, however, reminded the nine-member jury that the judge had already ruled LimeWire was liable for copyright infringement and that the trial was on the issue of damages alone. They also pointed out that Gorton had told his employees to never respond to inquiries about the service’s legality. The trial is expected to last as long as four weeks.

2: Righthaven, Hoping To Turn Tide In Court, Hires Top NYC Copyright Lawyer

Righthaven, the company that has enforced the copyrights of works created by the Las Vegas Review-Journal and the Denver Post, has suffered from a string of legal defeats and is battling questions as to whether its assignment of rights, the tool that gives it the power to sue, is valid. However, the company is hoping to turn things around by hiring Dale Cendali, a New York copyright attorney best known for representing the AP in the Shepard Fairey case and J.K. Rowling in her battle against an unauthorized Harry Potter encyclopedia. While it is unclear if and how Cendali will be able to help, his firm is known for being an expensive one, with billing rates north of $1,000 per hour.

3: Google Wins Anti-Piracy Filtering Lawsuit, Filters Anyway

Finally today, Google won another victory in France, where an Appeals Court sided with a lower court in ruling that Google’s inclusion of piracy related terms in its autosuggest feature does not violate the law and Google is under no obligation to filter such results. However, Google has already begun to filter those results and started doing so last year, after the legal case had begun. There is no word as to whether Google has any plans to remove the filters, which it has not done at this time.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

1: Prosecution Alters Pirate Bay Charges in Bid to Win Conviction

Yesterday, prosecutors in The Pirate Bay trial in Sweden amended the criminal complaint to remove a portion of their description of The Pirate Bay that claimed that “All components” of the site were necessary for file sharing. Observers and legal scholars believe that this will make it easier for the prosecutor to obtain a conviction, provided they are able to show that the actions of the site’s owners live up to the standard of a crime.

The complaint refers to three components, a Web-based search tool, a database of information and a tracker of connections, but now the prosecutors no longer need to prove or show that all three are necessary for file sharing as the court could, theoretically, decide that two or even one is enough to prove complicity.

2: Messed over by Adam Sandler’s ‘You Don’t Mess with the Zohan,’ sez author’s suit

Robert Cabell, the creator of the gay comic book superhero Jayms Blonde, has sued Adam Sandler, his parent company, Sony and Columbia pictures alleging that the movie “You Don’t Mess with the Zohan” is an infringement on his character and comic book.

In both the movie and the comic book, a trained counter-terrorist works as a hairdresser though in Sandler’s movie it was a bid to start a new life and, in the comics, it was a cover. Cabell claims that he created Jayms Blonde in 2000, with “Zohan” being released a full seven years later.

3: Infringement Case Against McCain Advances

Finally today, a lawsuit against John McCain that started back when the Senator was running for President has been allowed to move forward. A judge has denied McCain’s request to be removed from the lawsuit, filed by Jackson Browne over McCain’s use of his hit song “Running on Empty” as part of a commercial.

McCain has asked to be removed from the suit, saying he had no knowledge of its use and played no role in its selection. However, the judge has denied that motion but is allowing McCain to attempt and show if using the 20-second clip was a fair use.

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: Apple Says Jailbreaking iPhones Is Illegal

Late last week it was discovered that Apple had filed comments with the U.S. Copyright Office countering where it publicly stated that, in its opinion, jailbreaking iPhones is illegal.

Every three years the USCO holds a round of public comment over potential exemptions in the DMCA anti-circumvention clause. Currently, unlocking phones, such as the iPhone, is not an exemption of the rule. The EFF filed comments supporting such an exemption and the Apple comments (PDF) were in response.

Though Apple has been aware of jailbreaking, process that can both unlink the iPhone from its carrier and allow non-Apple-approved applications to run on the phone, it has not taken any official stance on the legality of it. The only action taken, up to this point, has been releasing firmware updates that have broken the jailbreaking process.

2: Music Copyright ‘Pension Extension’ Moves Forward

A 45-year extension of the music copyright term in the European Union has passed a critical committee hurdle in the bureaucracy that is the EU. The proposal includes a review at the end of three years with further review every four years after that to ensure that it is having the desired impact, the helping of musicians. However, with the administration of the extension handed over to collecting societies, it is difficult to say how many musicians will benefit.

There is also now discussion about a similar extension for video copyrights within the EU.

3: The Pirate Bay trial to begin in Sweden

Finally, in the trial that has everyone talking, four of the men behind the well-known Bittorrent site The Pirate Bay are having their trial begin today. The Pirate Bay was famously raided and the men were first questioned back in May of 2006 following a criminal complaint filed by the MPAA in 2004.

The Pirate Bay admins have said that the site will go on, no matter what the outcome of the trial is, and said that they will be unable to pay any fines that they are charged.

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

However, yesterday’s news that the jury verdict had come back in the first RIAA jury trail, Capitol v. Thomas, seems a important enough of an occasion to warrant at least a few words, especially considering the $222,000 judgment against the defendant.

Even before I had finished reading the article though, the spin machine had already started. Lawyers opposing the RIAA said that the case would “almost definitely” be overturned on appeal. The EFF has said that “copyright laws need to be adjusted to reflect today’s reality”. Finally, the RIAA, has said that the case “does send a message… that downloading and distributing our recordings is not OK.”

With so much twisting and warping of the facts on both sides, the only thing that is clear right now is that this issue is far from resolved and that this case has done nothing to settle the underlying issues.

Sad as it is, the worst may be yet to come.

A Case Not About Me

As a supporter of copyright law, at least to a reasonable degree, I am hard pressed to consider this case a win for copyright holders. It is indeed a win for the RIAA, the record labels it represents and, I suppose, the artists that are signed with them. However, I completely fail to see how this is a win for me.

I’m the little guy. I have a lawyer and I know many attorneys, but I don’t have the resources to sue everybody who infringes my copyright. I can’t have my team of attack lawyers track plagiarists all over the country and start shotgunning out subpoenas and filing lawsuits for everyone that takes one of my works.

The best I can do, reliably, is secure takedown of infringing material and work to encourage reuse of my work that supports myself and my goals on the Web. This case, and this outcome, could not be any farther removed from my reality and my needs if it had taken place on another planet. I will never see any benefit from it.

The sad truth is that, even though I don’t share files, the odds of me being sued by the RIAA are higher than me ever filing a series of RIAA-like lawsuit. I am more likely to have my wifi connection hijacked by a bittorrent junkie than I am to magically find myself in a position where I can start tossing out subpoenas like rock candy.

Of course, even if I did find myself in such a position, I wouldn’t likely engage in that behavior anyway. I would target the worst, the plagiarists who have made a name for themselves using my work, but stick to my existing strategy for the rest, using a combination of Creative Commons Licensing for most and takedown notices for the plagiarists and other bad faith operators.

In short, I can envision a universe where I get sued by the RIAA or MPAA, but I can not see one where I behave like them. So as they are drinking champagne at their victory, I, and millions of others of rightsholders, are left to figure out where do we go from here?

Not About the Law Either

Of course, this case and the war over it has never been about the law either. It is pretty well understood that file sharing is illegal and few have risen to challenge that. Instead, most of the challenges to the RIAA have centered around whether the RIAA can identify a person via an IP address or what element of file sharing actually constitutes infringement (making available vs. downloading).

Those who have opposed the RIAA in the courtroom, including those who have won, have done so not by challenging the RIAA head on, but by either trying to deflect the blame to another party or finding a technicality in the law. Though the RIAA has been wrong and there have been cases where those tactics were justified and appropriate, much of the time it is just an attempt to find a way out for that one defendant with little thought about the others.

However, when I look at the two extremes in this case, the record labels and the pirates, I have no love for either. The RIAA uses some of the most abhorrent legal tactics in history and the pirates want to strip me of what few protections I have with my work and seem to degrade the time and expense I go through to create the things I do.

One side claims to be fighting for my right to control my work, the other claims to be fighting for my freedom. Neither could be farther from the truth. Both sides are mired in their own self interest and neither represents myself or the millions of other small copyright holders.

We are the writers, musicians and artists who want to allow some sharing but also need some level of control over our work to build our careers. We are centrists, people who want to modify copyright law, but not abolish it. We want to strengthen some protections, such as moral rights, but are willing to weaken others, such as the length of the copyright term. We don’t want to bankrupt single moms but we don’t want to be bankrupt ourselves.

We are left without a voice and this case only accents exactly how powerless we really are. We are passengers on an airplane being piloted by one group of extremists while another tries to hijack it. Me, I just want to get home but I have no idea where this plane is going to land.

The only thing that I do know is that we are in for some rough times ahead.

The Case at Hand

Getting back to the case at hand, the odds of it being overturned on appeal are not as great as some would hope. The controversial “making available” jury instruction is not an anomaly and is more than defensible. Even if we assume that and overturning is likely, we can’t just put our feet up and rest assured it will happen. We have to accept the reality of today while we hope for the best.

But the reality of today is very bitter. Because, despite all of the talk of freedom and justice, what we really have is a 30-year-old single mother of two, Jammie Thomas, who has been saddled with a nearly quarter million dollar judgment. There is a human being at the center of this case and, more than anything, she should be in our thoughts.

Part of me has to agree with Chris Castle, a copyright attorney and former music executive when he said, “This woman found lawyers who tried to make her the Joan of Arc of illegal downloading. And are they going to write the check?”

When one looks at the evidence, this was clearly one of the RIAA’s strongest cases. The IP address information was fairly clear, she had used her Kazaa name elsewhere and she had allegedly attempted to destroy her hard drive after learning of the lawsuit. It seems clear that fighting back, in her case, was not in her best interest and her doing so will also negatively impact other cases that may have stronger arguments.

I am not a lawyer, but even I can see that this case should never have made it to trial. If anyone had been thinking about her best interest or the best interest of the issue at large, they would have encouraged her to settle and make room for other cases with less compelling evidence. Instead, they’ve done as much to ruin her life, and the life of her kids, as the RIAA.

My only hope today is that Ms. Thomas and her family will not be too harmed by this verdict and that the end result does not have consequences that do not fit the crime.

Conclusions

To quote Metallica (and inject some irony) “There ain’t no heroes here.” Right now, there are only villains and victims. Even then the line gets blurry fast.

Not only are people being hurt, possibly for the rest of their lives, but the vast majority of rightsholders are not being represented and the entire drama works only to serve two extremes in a very broad and complicated discussion.

Two sides, directly opposed to one another, set the dominoes in place and knocked them over. Sadly, the most recent one fell on a single mother with limited means. Where will the next one fall? Will it land on a small artist trying to make a meager living? Will it land on a Webmaster trying to protect his content from scraping? What about a poor college student already saddled with student loans? Who gets hurt next?

It could be you, it could be me, it could be all of us.

In 2005, Professor Lawrence Lessig gave a presentation entitled “Who Owns Culture?” where he called for a “war against war” and for people to “sue for peace”. Now, two years later, we see not just the technological and the cultural implications of such a war, but also the human cost.

If there ever were a low point for copyright law in the time that I have been alive, today would be that day. It’s not because the RIAA has won, but because we have crossed a milestone from which there is no going back. We are now ruining lives and, sadly, Ms. Thomas will likely just be the first.