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Usenet.com May Find Safe Harbor From RIAA lawsuit
Posted by
Zonk
on Wed Oct 17, 2007 04:55 PM
from the quit-stepping-on-the-little-guy-biggie dept.
from the quit-stepping-on-the-little-guy-biggie dept.
Daneal writes "Ars Technica has some interesting analysis of the RIAA's lawsuit against Usenet.com. There's reason to believe that Usenet.com — and most other Usenet providers — could qualify for protection under the DMCA's Safe Harbor provision. 'The DMCA's Safe Harbor provision provides protection for ISPs from copyright infringement lawsuits as long as they take down offending material once they are served with a notice of infringement. "Whether the Safe Harbor applies is the central legal question that is going to be raised," EFF senior staff attorney Fred von Lohmann told Ars. An RIAA spokesperson tells Ars that the group has issued "many" takedown notices to Usenet.com, but von Lohmann says that the volume of takedown notices isn't what counts. "The DMCA's Safe Harbor makes it very clear," von Lohmann said. "The number of notices doesn't matter as long as you take the infringing content down."'"
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News: RIAA Sues Usenet.com 495 comments
Several readers pointed us to Torrentfreak's coverage of the RIAA's latest move: the major record labels have launched a copyright infringement lawsuit against Usenet.com. The complaint, filed in the federal District Court in New York, accuses Usenet.com of providing access to millions of copyright-infringing files and slams it for touting its service as a "haven for those seeking pirated content." Usenet.com has been refusing the labels' requests to block access to alleged "copyright infringing groups."
Firehose:Usenet.com may find Safe Harbor from RIAA lawsuit by Anonymous Coward
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Entertainment: Warner Sues Search Engine, Tests DMCA Safe Harbor 113 comments
I Don't Believe in Imaginary Property writes "Warner Bros. Records is suing SeeqPod, the music search engine, in an attempt to test the limits of the DMCA Safe Harbor provisions with a theory of contributory, vicarious and inducement liability. While other services like Last.fm have cut deals with the labels, SeeqPod relied on the DMCA Safe Harbor alone to protect it. According to the complaint [PDF] SeeqPod 'deliberately refrains' from adding simple yet ineffective content filters to screen out copyright infringing materials, presumably by not buying those filters from label-affiliated companies. Of course, this lawsuit is merely part of a recent trend seeking to move the responsibility for policing copyrights away from the copyright holders and on to third parties."
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Seem to remember... (Score:5, Informative)
Re:Seem to remember... (Score:5, Informative)
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Re: (Score:3, Informative)
"If Usenet.com can show that it complies with the DMCA by removing access to infringing content and by suspending the accounts of repeat offenders, it may be enough to provide it with protection under the hosting and linking provisions of the DMCA."
Re: (Score:3, Funny)
Re:Seem to remember... (Score:5, Interesting)
They probably refuse to take down content that is legally protected or that is legally not a full work and even if they take it down, within a few minutes another version might be up again so it sounds like the RIAA is going to have to send a lot of notices to take every single Usenet post down.
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Re:Seem to remember... (Score:5, Informative)
"To date, Usenet.com has refused to remove content or discontinue offering certain newsgroups."
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Re: (Score:3, Informative)
The Wired article [wired.com] has a link to the actual lawsuit in PDF format. It actually makes an interesting read.
USENET? (Score:5, Interesting)
They wanna take down USENET?
And they're gonna target a single NNTP provider to do it?
OMFG, USENET was P2P before P2P was invented. It's so distributed, diffuse, and attributionless that it's practically untouchable.
Who keeps picking out windmills for RIAA to tilt at? Their legal attack strategist needs to put down the crack pipe and step away from his desk.
Seriously...
Re:USENET? (Score:4, Interesting)
Some ISPs don't provide newsgroup access anymore, make it a pain to get or have limits on uploading or downloading binaries. RIAA pressure could make this the norm.
Services like Usenet.com and Giganews are quite possibly vulnerable, as we see from this lawsuit. Maybe they'll try to go for customer logs next?
It may not be possible to take down Usenet, but it is quite possible to make it a little more difficult or risky than it is now for the average college student to access binaries.
Although I think the real point of this is to instill paranoia. RIAA lawsuits are a more than anything else a scare tactic and an effective PR campaign designed to instill fear in casual downloaders. That may be why they're going after Usenet.com instead of Giganews or similar sites, to instill some confusion and so that the aforementioned college student thinks he's at risk of a lawsuit himself if he downloads from Usenet (no matter what provider he uses.) My theory at least, take it with a grain of salt.
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Re: (Score:3, Informative)
Bummer. But it was bound to happen. The binaries hosts have gotten a bit too blatant with their marketing and have made USENET binary downloads a far easier endeavor than it used to be. The critical mass of users which triggers copyright lawsuit
Re:RIAA's biggest mistake.. (Score:3, Insightful)
Seriously...
--
The RIAA's biggest mistake is picking up the role of angry bull elephant. When an angry bull elephant starts attacking the village with intent to cause as much harm as possible, the villagers are quick to;
1 Run and hide.
2 Put up defenses.
3 Directly attack the threat.
In short.. Number 1 is trade offline with the sneaker net. USB drives, USB music p
Re: (Score:3, Funny)
Common Carrier Defense ... (Score:4, Interesting)
Along these lines, what about Google/other search engines that show "copyrighted" content - either in the snippet or in their cache?
Re:Common Carrier Defense ... (Score:5, Informative)
The issue is that Usenet.com blatantly (from a common-sense point of view, whether it's legally meaningful I have no idea) markets themselves as a way to illegally obtain copyrighted content. As someone put it yesterday, if the phone companies ran commercials advertising "Telephones -- the best way to plan your terrorist activities!" that would cut into their ability to claim common carrier status as a defense. Same thing for Safe Harbor.
Incidentally, didn't we have a story a few months ago complaining that the MPAA and RIAA weren't suing usenet providers, and how that proved some conspiracy theory? If that faction is relieved at this new development, I haven't seen them mention it.
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Re:Common Carrier Defense ... (Score:5, Insightful)
Where I think they get into trouble is that, in order to claim Safe Harbor, they basically need to be able to claim "hey, somebody put that up onto our system, we didn't know it was infringing, we didn't even know it was there!" And it's a bit tough to do that with Usenet, seeing as how it's about 99% binaries and anyone who's ever opened up the alt.binaries.* hierarchy can tell that it's got a lot of bootlegs and warez in it.
It would be a little comical to see a whole bunch of seasoned network engineers and other greybeards try to claim that they had no idea there was copyrighted material on Usenet. ("Warez? On my Usenet?") But that's sort of the position they have to put themselves in, in order to get a successful 512(c) defense.
They also have to show that in the past they've complied with DMCA takedown orders against content that a copyright holder has pointed out as being infringing, which it seems like they weren't doing. That may also be a problem, although maybe they can argue that they didn't have the capability to delete articles (after all, if they took them out of their store, would they just have come in on a feed from another site that they peer with?). It might be difficult to get a judge to swallow that, though.
I think they're in trouble, but I'm not sure exactly how much trouble just yet.
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Re:Common Carrier Defense ... (Score:5, Insightful)
Why is that a barrier to a successful 512(c) defense? If the host, Usenet.com in this case, services all take down notices in a reasonable and timely fashion and makes reasonable efforts to accommodate copyright holders (the court decides what is and is not reasonable) then have they not fulfilled their obligation under the law? How would they know if there was a copy of Eric Clapton's greatest hits on their network? Sure they could search for it if they wanted to but are they required to have automated agents searching all of the time for everything that might be copyrighted? Is that reasonable or even feasible? Certainly not, it is the responsibility of the copyright holder to locate infringement and take the legally required step of sending a take down notice. As long as there is a reasonable system in place to service requests from copyright holders, then the content host has fulfilled its obligations and should be able to take refuge in the safe harbor.
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Federal funds did * not * build the phone network (Score:5, Informative)
The first US telephone exchange opened in 1978. AT&T and the regional Bell companies were privately financed from day one and evolved into regulated public utilities.
The common carrier rule can be traced back to the days when Western Union was in its prime and censoring telegrams it found inconvenient.
With the the exception of civil engineering projects like the Panama Canal, federal spending on infrastructure begins with the New Deal of the 1930s.
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The rub. (Score:5, Informative)
To be honest, I don't know how Usenet.com can not qualify for DMCA protection, since it's exactly the type of service that the Safe Harbor exception is supposed to protect. The only thing that seems like it could harm Usenet.com is their advertising, which does veer a little into "wink, wink, nudge, nudge" territory. However, damning a company because it says it respects users' privacy, without actually advocating any type of criminal activity, seems like pretty terrible precedent, and I can only hope (although at this point I have little faith) that a judge will see it similarly.
I think the mention in the Ars article about Safe Harbor being related to "transitory network communications" is irrelevant here. Transitory network communications is covered under 512(a) of the OCILLA (which is part of the DMCA); the portion that I would expect Usenet.com to seek protection under is 512(c), "Information Residing on Systems or Networks at Direction of Users".
You can read the relevant section here [cornell.edu], but the significant portion, IMO, is:
The major things they're going to have to avoid are that they "had actual knowledge" that the material was infringing (which might be tough -- I mean, anybody who opens up alt.binaries.movies can probably tell pretty quickly that it's full of bootlegs) and that they didn't receive a "financial benefit directly attributable" to the infringing activity. I think that second one is actually a little easier (for Usenet.com) than the former. And, of course, they have to successfully argue/explain that they don't really have the power to remove articles from Usenet, because of the nature of the network -- it would probably help their case if they started at least deleting articles from their spool/store when they receive a complaint.
I suspect that this may lead to a shakedown in the Usenet provider world, if Usenet.com loses. At the very least, the big providers might have to do more in order to maintain a veneer of plausible deniability (deleting some of the more obviously movie and/or warez related groups, perhaps), or move their servers out of the U.S.
Wow. Suicide by advertisement. (Score:5, Informative)
http://www.usenet.com/articles/free_download.htm [usenet.com]
To wit: (in case they take the page down, which I sure would if I were them)The hell with it: They're pretty fucked.
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So the **AA's plan is (Score:3, Interesting)
This is going to be interesting. If Usenet.com goes down, next will be NNTP service filters on every ISP in the US, and then by association, such efforts will be made in the rest of the world. Perhaps it might not work in Russia for fear of being mistaken for a spammer, but in the rest of the world, the US government and the **AA will push to have the entire Internet filtered...
The next step? To filter all your email, IM, and VoIP traffic as well, and in fact any method of sharing data. Sounds like tin foil hat stuff, but that seems to be the writing on the wall. If the **AA has those filters in place, guess who will be using them? Why the NSA of course. Any bets on whether the **AA are digging so deep into their wallets on the legal battles because the NSA is promising to refund some portion of the cost, if they are not already secretly funding them from money that went missing in Iraq?
yeah, sounds a bit crazy, but after the lies that have been discovered lately, it would NOT surprise me.
So how does this work for .... (Score:3, Interesting)
Does the genuine originator ever get notified and given an opportunity to counter?
"They don't host it!" (Score:3, Interesting)
This is absolutely wrong. They may not be the initial point that the file enters the network, but they DO host the files on their own servers there -entire- time that it's available to their customers. Every usenet provider does this. It's how the entire system works.
Each provider can choose which groups they will bother to handle (it used to be common for free services not to handle the 'alt.' newsgroups) and they -can- remove anything from that server that they choose. It wouldn't be fun to find exactly what the RIAA has requested a takedown for without specific post IDs, but it can be done.
Places that don't host the files are merely indexing services (like newzbin.com) and truly do not host the files. It's just a list of the post IDs that you need to grab what you are looking for from usenet.
I've never heard of a usenet provider that has removed partial content... Only entire groups, and never (that I've heard of) because someone asked them to.
So while it is theoretically possible for this law to protect them, they've never complied with it and it won't do them a bit of good.
It won't do the RIAA any good, either, though... Hundreds or thousands of servers all over the world mirror the same information from 3 to 200 days... They would have to individually ask for the files to be removed from each of them individually.
(Before anyone objects, I know they aren't stored as 'files', but that's irrelevant to the conversation.)
All MP3's Are Infringing (Score:3, Insightful)
The attitude of the RIAA appears to be that any and all MP3 files are by their very nature illegal, and that they deserve huge woges of money for anyone who has ever touched one. This, of course, is not true at all -- except in the mind of the RIAA.
If anyone at all is going to kill the rich culture of this country, it won't be the filesharers. It will be the RIAA, and copyrights extended to infinity -- and beyond!
I thought most if not all of Usenet is encoded. (Score:3, Insightful)
Maybe i'm missing a point or two here. But it seems to me in order for anyone including the RIAA to define the content of Usenet they would have to decode the binary "and probably have to have a special reader for text" messages. UUencode YENC and MIME seem to be the major encoding types and seeing as the servers store purely code in an unidentifiable format there is no way they could actually SEE what is posted without downloading it and re-encoding it back to a compiled file. Movies/audio etc are all converted TO ascii and then back.
You cannot watch a stream coming into a usenet server and say it's an MP3 or MPEG or AVI If memory serves me. It's possible the subject line would be clear/plain text but more than that is encoding.
Correct me if I am wrong.. I've been using Usenet since 97 but it's been since like 98 since I investigated what made it work.
Re:Take Down Notices? (Score:5, Informative)
Of course, that assumes the party issuing the takedown notice knew to cite the offending articles by Message-ID. The canceled messages will not re-propagate to the server. The poster, anywhere else in the world, could still repost under a new Message-ID (automatically generated for every posting). The cancel messages can even contain the takedown notice in each message body, which would be readable in the newsgroup named "control" and/or in "control.cancel" if it is present.
They wouldn't necessarily even have to cryptographically sign the cancels since they are local, though it might be wise to prevent fellow users of the same server wildly canceling other articles.
These organizations could technically send out their own cancel messages with unrestricted distribution, though I'm not familiar with the current state of the art in preventing forged cancels. If spammers have truly lost interest in Usenet, it may have come to the point where cancel messages are generally ignored.
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