The infamous shut-down of Napster in 2001 was not the end of illegal file sharing. Despite the lawsuits brought (and won) against the company, new peer-to-peer programs such as Limewire and Acquisition popped up. A few weeks ago, however, the Recording Industry Association of American (RIAA) got the court to pass an injunction ordering Limewire to immediately disable its software that allows for searching, downloading and trading. The injunction said that Limewire’s software knowingly “allows for [copyright] infringement on a massive scale.”

The RIAA also managed the suit against Napster. This time, the plaintiffs represented big-time record companies like Sony Music, Motown Records, Arista Records, Capitol Records, Interscope Records and Warner Bros. Records, among others. This decision has been four years in the making—the RIAA filed in 2006—and isn’t over yet. New York Federal District Judge Kimba M. Wood also held that the file sharing company is liable for damages for violating copyright law in billions of illegal downloads. Federal law allows for up to $150,000 in damages per copyrighted song, so the amount could potentially be enormous.

Since the late October injunction, a pirated version of Limewire—that still allowed file sharing— came out, and the RIAA accused Limewire of violating the injunction. However, this version of the software appears to be distributed by someone else, and Limewire claims it has no affiliation with “Meta Pirate,” the individual publishing the software. The RIAA asked the court to appoint a receiver, who would investigate and make sure Limewire was complying with the injunction.

Limewire users have still been able to work software that has already been downloaded and installed. PCMag.com has also pointed out that by shutting down Limewire, downloaders will probably just move to new software; the record labels missed their chance at making Limewire a paying community. Others have said that the loss to record companies is negligible and should even be considered free advertising since users share music.

Can Limewire users be held liable for damages as well? Only a handful of people have been prosecuted and ordered to pay tens of thousands in damages—one mother was ordered to pay over $1 million for downloading 24 songs—so it’s unclear whether the RIAA plans to go after individual users. Your best bet is to simply pay for your music by downloading from iTunes, Rhapsody or listening to music on Pandora.

Do you use file sharing software? Do you think it should be illegal?

Posted by Nancy on November 29, 2010 at 3:13pm.

How many of us have scoffed at the warning given by movie distributers about illegal copying or distribution of the film we are about to watch? Probably not too many people live in fear of the big, bad distributor knocking on the door, seeking a bag of money as retribution for downloading or streaming their film on the web. Well…thanks to U.S. District Judge Rosemary Collyer, perhaps more people should be.

On Friday, September 10, the Judge Collyer allowed the holder of a movie copyright to subpoena the names of people accused of illegally downloading and distributing a film over the Internet. Similar to the witch-hunt to find Napster users led by the not-so-charitable rock band Metallica in 2000, the German limited partnership Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG, a creator and distributor of motion pictures, is suing internet users who are accused of copyright infringement after downloading the film “Far Cry”, a film the company holds the exclusive license to the copyright. The partnership identified the Internet protocol (IP) addresses of computers associated with the alleged infringement. It then subpoenaed the Internet service providers (ISPs) seeking names of individuals associated with those addresses. Thus, the ISPs had to spill the beans.

Upon being notified by their provider, some of the customers challenged the subpoenas, but courts have upheld that Internet subscribers do not have an expectation of privacy once they give their information to an ISP.  It’s probable that those who were subpoenaed were feeling remorse not only for being on the wrong side of the law and standing to lose thousands of dollars, but also because they put themselves in that position over a film such as “Far Cry,” which is a video game adaptation.

What do you think about this? Is it OK that Internet service providers were forced to give up such vital information? Are most people aware they are putting themselves at such risk, even if they’re only downloading a single lousy movie like “Far Cry”?

Posted by Alex on September 16, 2010 at 4:53pm.

As Twilight: Eclipse runs wild throughout the movie theatre, this is an excellent time for an update on a case related to Twilight: New Moon.  It is also especially timely considering the recent government crack-downs on sites streaming copyrighted video.  This is a case of either attempted piracy or willful ignorance, malicious prosecution from a theatre manager or simple negligence.  However it ends, this case revolving around the second Twilight movie shows how seriously Hollywood is taking piracy, particularly of its hottest franchises.

As soon as the internet made file-sharing possible, the movie and music industries have struggled to control a lawless corner of cyberspace that threatened their profits.  The government may crack down on the keepers of physical websites but more will pop up.  File sharing sites, the ones that make downloading copyrighted content possible, are notoriously difficult to stop.  Because the content is held on the hard drives of thousands, if not millions, of users, there is no central server to raid and shut down.  Streaming sites, places where you watch or listen to content without saving it to your computer, are easier to stop.  The government successfully cracked down on nearly a dozen just last week.

The next hurdle in stopping the flood of content on the web is stopping those who put it out there.  Music is much more difficult because as soon as the content is released to the public it is in homes and under the direct control of the purchasers of the CDs.  Movies pose another challenge.  Not counting leaks from within the individual studios, most illegal movies on the web are what are known as “cam” copies; people bring video cameras into the theatre and record the movie as it is projected onto the big screen.  The quality is almost always poor, but folks looking to save on the price of admission often don’t care.

A cam copy is the heart of this recent case.  A Chicago-area woman was caught filming inside of a screening of New Moon.  The police were called in and upon the advice of the MPAA itself the memory card was destroyed and an incident report was filed.  However, the movie theatre manager insisted that charges be filed on behalf of the movie chain.  A month later the court dropped the charges.  Now, seven months after the entire incident appears to have been put to rest the woman is suing the movie chain.

What is her case?  She had claimed, and the judge who dropped the charges clearly agreed, that she had been taping her sister’s birthday party in the theatre.  There were less than three minutes of actual footage from the movie on her camera, footage she claimed she took “hoping to capture the title and beginning as a memory of this exciting event.”  She is also suing for negligence since neither the usher nor the manager attempted to stop her filming prior to calling the police.  Finally she is claiming malicious prosecution, intentional infliction of emotional distress  and defamation since the manager “signed the criminal complaint in hopes of collecting a reward for providing information that leads to the arrest and conviction of a person engaged in video piracy when he very well knew that she was guilty of no such act.”

With a judgment in her defense already, this woman seems to have an excellent case.  The court still needs to decide and it could go either way.

Posted by Becky on July 16, 2010 at 12:43pm.

How much do you own your life story when other people are equally involved in it? That may seem like an odd question, but a recent court case is making it suddenly relevant. Alix Daily is suing her aunt and uncle for writing, directing and producing a movie based on an incident in all of their lives. She’s claiming her privacy has been violated by the movie Finding Amanda. Despite the fact that story being told was also lived by her uncle, she claims that she is owed damages since she was never consulted or informed about the movie.

Finding Amanda is the story of gambling addict traveling to Las Vegas to save his niece from a life of prostitution, drugs and her abusive boyfriend. During this trip he also learns about himself and his limitations. In interviews Peter Tolan, the screenwriter and uncle to Alix Daily, has told reporters the movie is based on real events from his life. Daily’s suit claims that “much of the dialogue, facts, and events really happened,” and the character of Amanda “looked, dressed, and behaved like Daily.” She claims that events in the movies were revealed to her aunt and uncle during a personal crisis. Clearly she feels violated, but are there grounds for damages in mere likeness?

If this is Ms. Daily’s case it seems difficult to see how she could be successful. The character’s name was changed so the only way the general public would ever associate the events in the movie with her is due to her suit. In addition, the events in question weren’t experienced by her alone. If she wins, the quirky barista in movies can sue if they resemble the person the screenwriter may have interacted with while writing and the angry neighbor that may be molded off someone in the building will be owed money. It’s hard to imagine that no one can write about things they experienced with other people in order to protect them. If Mr. Tolan is writing about events in his own life, and selling it as such, there appears to be no violation.

Posted by Becky on July 9, 2010 at 11:23am.

What are the legal implications of an advertising promo?  A tiff between former executive producers of The Sopranos and David Chase, the show’s creator, may be causing problems for a new series on CBS.  The problem appears to have been resolved amicably, but if it were to go before a judge what might the outcome have been?

The issue at hand is the wording of a promotional tagline used to advertise the new CBS series Blue Bloods.  It stars Tom Selleck and was created by Mitchell Burgess and Robin Green, a married couple who were longtime executive producers on the HBO hit The Sopranos. The two were producers for 69 out of a total of 85 episodes, and were with the show from its beginning until their departure prior to the final season.  At the time, the couple said their departure was amicable, although sources close to the situation now say that Chase wanted them off the show.  Regardless of the reason for leaving, Burgess and Green were successful producers who were heavily sought after within the industry, so they easily moved onto other work. There was seemingly no ill will between either them or David Chase.

That peaceful façade began to crumble last week when CBS released a trailer for the couple’s new series Blue Bloods.  The network touted the new series as from “the executive producers of The Sopranos.”  They were subsequently sent a request from HBO lawyers to stop using that phrase to advertise their new series.  The rationale was that the use of “the” made it appear that Burgess and Green were the only executive producers on the famed HBO series.   HBO was using semantics in a way to rival Bill Clinton.

CBS removed the line from their trailers; however, the question is was this a legally valid complaint or a mere request that the offending party chose to honor?  The closest this comes to illegality is fraud, but since it would require proving injury to the victim it seems unlikely to be brought to court.  Even worse to a potential case is that a fraud allegation requires proof of an intent to deceive the victim.  Since HBO is touting one of their new dramas, Boardwalk Empire, as being from the “Emmy-award winning writer of The Sopranos,” while, much like Burgess and Green, Terrence Winter was only one of many folks who held that title on David Chase’s most famous show.

CBS did pull the offending tagline, mostly as professional courtesy, but had they refused to back down to a threatening letter they would likely have prevailed in a courtroom.  And since legal proceedings would have served as a major form of advertising it does seem strange they were so willing to capitulate.  Perhaps the animosity between the creative staff of The Sopranos was so great that Burgess and Green would rather reword the phrase than face their former boss in court.

Posted by Becky on June 4, 2010 at 2:41pm.

Is this piece you’re reading an article? Am I reporter when I tell you the story of a blogger in New Jersey who is not protected by her state’s Shield Law? Or is this merely a diary, journal, or opinion piece, regardless of how well my facts have been checked or how rigorous the standards are to which I personally adhere? These are the types of questions recently raised by a lawsuit in New Jersey, one which clearly stated that bloggers do not have the same legal protections as “legitimate” journalists.

Shelle Hale is a blogger based out of Washington State who was writing an expose on Too Much Media (TMM), a company specializing in software used in the pornography industry. While preparing her piece, Hale received information that TMM had participated in “illegal and unethical use of technology” by profiting off of the theft of customer’s e-mail addresses. She posted this information on a public message board on another web site, along with her assertions that TMM employees “may threaten your life if you report any of the specifics.” Hale was accusing Too Much Media of serious security breaches and of criminal menacing when it came to keeping their misdeeds secret.  TMM responded to these claims with a lawsuit for defamation. As the company attempted to depose Hale, she claimed protection under the Shield Law, so she would not have to identify her sources.

This may be a good time to explain the Shield Law. These are laws that vary by state, but are in place to protect both reporters and their confidential informants. They allow the reporter to refuse to identify their source while under oath. These laws are designed to encourage people to come forward with incriminating information without having to risk their jobs or lives by having their identities revealed. Hale claims that despite the fact that her work wasn’t intended for the Wall Street Journal or The Washington Post, she was researching and reporting on alleged crimes and misdeeds in an effort to inform and protect the public. She set up a public website, pornafia.com, hired writers and informed Washington’s Attorney General of her investigation. Her attorney argued that these laws designed to protect affiliated journalists should be extended to reporters working within the blogosphere.

Unfortunately for both the casual and professional blogger, the judges felt that these protections did not extend to her. They felt that Hale did not adhere to the rigorous standards practiced by the more traditional journalists. She “exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity.” Although the court mentioned a lack of affiliation, they made a point of stressing that the main reason for their judgment was Hale’s lack of adherence to standards the court felt was critical for a professional journalist. She took no notes, never identified herself as a journalist, did no fact-checking and never went to TMM for comment or rebuttal on any of the claims made against them.

It seems to me that Hale’s professional sloppiness in these areas was the major reason for the court’s decision against her. Unfortunately for her, the ruling that she is not a journalist opens her up to a slander and defamation suit since malice is only a requirement in cases involving reporters and their publications. This case should serve as a warning to all amateur bloggers and reporters on the internet; take good notes, get both sides, and be ready to argue this case again if need be.

Posted by Becky on May 26, 2010 at 4:39pm.

In our justice system attorney-client privilege is sacrosanct. Oftentimes, the only way to properly defend yourself is to have a true confidant in which you are able to confide. You may need to tell your lawyer things that could otherwise incriminate or embarrass you. The strict code of ethics the bar association enforces upon its members guarantees this protection for the nation’s clients. Not only can the privileged communication not be brought up in court, it can’t be brought up anywhere. But what happens when the attorney is no longer practicing? Is any information gleaned from his or her time representing someone still to be protected? This issue is at the forefront of a new case pitting the actor Randy Quaid against his former attorney.

Lloyd Braun represented the Quaid family throughout the 90s; he served as not only the family attorney but also negotiated a few dozen professional contracts for Randy as an actor. When Braun decided to switch careers, the Quaids, and the files put together by Braun, transferred to another attorney. Braun now heads BermanBraun, a web company specializing in entertainment sites. One of this company’s sites, a tabloid site named Wonderwall, published content and personal information gathered during Braun’s tenure as the Quaid family attorney.

Is this a clear-cut breach of attorney-client privilege? Braun claims it’s not because he hasn’t represented the family in over a decade. However, there appears to be no doubt that the information published by the former attorney was acquired during his time as the family lawyer. Should this still be protected?

To complicate the matter, as an entertainment lawyer Braun brokered deals for which his received a commission. In several cases he is still receiving payments off of residuals. Braun may no longer be the family attorney is practice, but he is still receiving payments for services rendered during that time.

Braun is no longer a member of the bar and is not affected by the association’s sanctions. Should this be a criminal offense, akin to breach of contract? Braun claims he did nothing wrong but the Quaid family rightfully feels violated for having the personal information put out there by someone they felt they could trust with it.

Posted by Becky on May 20, 2010 at 4:03pm.

We live in a society where celebrity gossip is practically a currency.  Headlines splashed across the newsstand tell us who Jennifer Anniston is dating, where Paris Hilton was partying, and exactly how heartbroken Sandra Bullock is.  These are fairly innocuous examples; oftentimes the headlines berate the famous for having a bit of cellulite and call young girls sluts and harlots.  When does it cross the line from frivolous gossip to libel and defamation?  At point is this kind of reporting legally harmful and worthy of damages?

Understanding the state of modern libel and defamation claims, particularly as they relate to public figures, it is first important to understand the origins of America’s free press.  A case pre-dating the American Revolution, The Crown v. Zenger, set the standard for determining libel.  Zenger was charged with seditious libel for printing pieces critical of the governor.  His works may have embellished, but they still told the true story of a governor abusing his power.  Zenger clearly published works that fit the legal standard for the time.  However, the jury instead chose the option of nullification.  They thus created the precedent that led to truth being the standard for a libel case.  The press was free from having to be a mouthpiece for the government.

This was the law until a 1964 case that freed the press even more.  New York Times Co. v. Sullivan changed the standard to require proof of malice.  This case arose when the newspaper published pieces detailing the civil rights violations from Sheriff Sullivan’s officers.  Sheriff Sullivan felt that by telling the misdeeds of the police under him the paper was impugning his reputation.  This was not the paper’s intention; they didn’t see how their piece that named specific officers could be interpreted as damaging to the sheriff by the average reader.  The Court came down on their side and the case has been consistently interpreted since as requiring the plaintiff to prove that the offender intended to maliciously harm their name or reputation.  In essence, the plaintiff has to prove what is in the head of someone else.  Did an editor make something up to get sales or were they publishing information on the good faith word of an otherwise reliable source?  This is the decision juries have to make in these types of cases.

So what does this mean to the modern tabloid culture?  Trash and proper publications can essentially print whatever they see fit.  Not only is a defamation claim difficult to prove on its face, the “narrative” of the tabloid makes it even more of an uphill battle.  The public expects certain stories about certain celebrities.  Another roadblock to these suits may be reluctance on the part of certain celebrities.  Even if they were to manage to prove maliciousness, those who are famous for simply being famous may suddenly find less being written about them.  This would damage their livelihood and may be a deterrent to filing suits except in the most egregious of examples.

Whether certain celebrities chose to file defamation claims or not, the case is still a difficult one to make.  England is notorious for having far stricter laws in place to protect its public figures and thus tends to have many more suits of this nature.  There the plaintiff only has to prove injury to income and that a reasonable person is likely to think less of them.  A case early this year made all libel cases only a civil matter; they are no longer tried in criminal courts.  Regardless of the country, defamation cases regarding public figures boil down to freedom of the press versus the rights to protect their reputation. The American judiciary has clearly chosen one of those sides.

Posted by Becky on May 10, 2010 at 12:12pm.

Copyright issues can get pretty thorny when it comes to parody and satire.  Although the law seems clear when it states that it may be “use[d] in a parody of some of the content of the work parodied,” art is always open to interpretation.  However, this exception exists to allow use for artistic reasons, commentary upon, and some believe, to protect homages.  This is considered the fair use doctrine.  Strangely enough, a recent copyright protection vs. fair use exception issue is arising because a computer program is unable to properly interpret the work it is flagging for removal due to copyright abuse.

When Google bought YouTube in 2006, one of the main changes to the site was a stricter protection for copyrighted material.  One of the main tools the site uses to identity offenders is their Content ID system.  Copyright holders enter their material and a sophisticated metrics system matches markers against other videos and their audio tracks hosted on the site.  The copyright owner can then decide what they want to do; make money off the video via ads, simply track the stats, or have the offending clip removed outright.

Constantin Films, copyright owners of Downfall, an epic tale of Hitler’s final days, used the Content ID system and were alerted to a treasure trove of videos using the video from their film.  A popular meme on the internet has been to replace the subtitles in the scene when Hitler is alerted by advisers that the war is futile, to have him overacting to any numbers of modern things; the release of the iPad, getting banned from World of Warcraft, the death of Michael Jackson, and even the blanket removal of the parodies upon the request of Constantin Films.

The problem with the Content ID software is that it only looks for specific markers and is unable to make a judgment based on content.  Clearly these videos are parodies and are thus protected by the fair use doctrine.  However, this Content ID system takes a human out of the equation and can block any video at the request of the copyright owner.  Warner Brothers recently blocked a professor’s lecture on the importance of remix creativity because it sampled a copyrighted song in a remix played to clarify and illustrate the point.  YouTube offers an appeals process to get these videos back up, and the lecture has since been returned, but how many amateur parodists realize the law is actually on their side when faced with a threatening legal notice regarding their work?

The protection of parodied works is absolute.  The 30-Second Bunny films clearly appropriate copyrighted characters and stories, for profit, and no one questions that the purpose is parody.  The film Be Kind Rewind skewers this issue when the big bad corporate bosses show up and shut down an operation remaking popular films with a distinct lo-fi quality. On its face value, the issues in Be Kind Rewind are the same as that of the Hitler parodies.  All of these “offenders” have every right to make their parodies.  They just need to make sure they are aware of their rights and not be bullied into submission by a corporate letterhead and an empty threat of punitive damages.

Posted by Becky on May 5, 2010 at 1:00pm.

In the search for domestic security, many in the law enforcement community have taken to trampling on the rights of American citizens. Many people feel their safety, and the safety of the community as a whole, trumps the 1st Amendment rights of photographers and videographers. There are three areas where photographers have run into the most trouble: national security concerns as they relate to photographing public spaces, confrontations at protests, and citizens recording their own encounters with law enforcement. The law clearly comes down on the side of those with the cameras, but when the law is supposed to be enforced by those who are flagrantly abusing it, there seems to be little people can do to protect themselves.

In an effort to prevent America from another 9/11, police and other security personal are trying to limit anyone from photographing public spaces and buildings. They are threatening to take film, memory cards, and oftentimes the cameras themselves unless the photographers cease and desist. The thinking is that they are preventing the planning of a suicide bomb-type terrorist attack. In reality they are limiting the access of American citizens to public places. The law clearly states that not only can you photograph public places, you can take pictures or video of private land if you are standing in a public place. Despite the law clearly coming down on the side of individual liberties, security guard and police officers are consistently harassing photographers.

One of the effects of the nation’s increasingly polarizing political climate is an increase in the number of protests, both legitimate and illegal. These protesters are using their rights under the 1st Amendment to publicly state their opinion. Although many of these protests are perfectly legal, law enforcement is generally called in. Their presence is used to ensure not only that law and order is maintained but that the protesters and their opponents are both kept safe. Many people, both professional photographers and ordinary citizens, are documenting these protests for the news, their artistic endeavors, or simply because photography is their hobby. Law enforcement officials have been documented repeatedly taking cameras from people; oftentimes they are refusing to acknowledge press passes. These actions fly in the face of an open and democratic society. Individuals often feel they have no recourse, but large news organizations and civil rights groups are suing police departments and individual officers in an effort to curb these flagrant abuses of power.

Many people who find themselves on the wrong end of police aggression, and even those who just witness excessive force, are using cell phones and digital cameras with video capability to film their brush with the law. They seem to (rightly) feel that in a post-Rodney King era it is to their benefit to have these encounters documented. In many cases this leads to the destruction of their personal property at the hands of sworn peace officers. Other times this leads to the arrest of the videographer. New York City has had to pay out several large sums of money to people falsely arrested for videotaping police officers harassing them. They even had to compensate someone for their arrest while taking pictures in the subway, clearly an illegal arrest as discussed above.

This harassment of law-abiding citizens, all in the name of safety, only reiterates the wisdom of Benjamin Franklin. He wisely said that “those who would sacrifice liberty for security deserve neither.”  Though police officers are for the most part here to protect the public, people need to educate themselves on their rights, demand that the police respect them, and in the worst cases should sue to make sure the authorities are aware of exactly what they are violating.

Posted by Becky on May 4, 2010 at 3:25pm.