Category Archives: Legal Issues

Google Wins Anti-Piracy Filtering Lawsuit, Filters Anyway

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Since April 2010, French music rights and anti-piracy group SNEP has been engaged in legal action against Google. SNEP felt that Google should censor search terms such as torrent, RapidShare and MegaUpload. Having been decided once already in Google’s favor the case went to an appeal. This week the Court of Appeal decided that Google can’t be forced to filter.

Image is Loading....The Syndicat National de L’édition Phonographique (SNEP) is an organization set up to protect the rights of the French recording industry. SNEP collects royalties for its member labels and also carries out anti-piracy activities on their behalf.

As part of their anti-filesharing actions, in April 2010 SNEP initiated legal action against Google in an attempt to force the search giant to filter certain terms from their auto-suggest feature. It will come as little surprise that the words targeted were ‘torrent’, ‘RapidShare’ and ‘MegaUpload’.

SNEP’s case relied on Article L336-2 of France’s intellectual property code. The article states:

“In the presence of an infringement of copyright or related right caused by the contents of a communication service to the public online, the high court, acting as appropriate in summary proceedings,” is authorized to take “all appropriate measures to prevent or halt such infringement…”

As noted by news outlet Numerama, this provision was introduced into law in anticipation that some day ISPs would be asked to block access to file-sharing sites. SNEP clearly thought they could extend the target of the legislation in their favor.

In September 2010, the Tribunal de Grande Instance de Paris rejected the complaint and ordered SNEP to pay Google 5,000 euros in costs. Dissatisfied with the court’s decision, SNEP took the case to appeal, asking for damages of 1,000 euros for every day the results appeared in Google’s listings. Furthermore, they added a list of artists, albums and songs to be filtered in connection with the above terms.

This week the Court of Appeal in Paris handed down its ruling. In common with the earlier decision, the Court found that the mere presentation of terms in a set of search results did not necessarily mean that an infringement of copyright would follow.

Furthermore, in an apparent reference to RapidShare and MegaUpload, the Court noted that just because users of these sites can use them to transfer unauthorized copies of music, it does not automatically follow that the sites are rendered illegal as a result. The Court also made clear that SNEP could not hold Google responsible for the subsequent activities of Internet users who use their search engine.

However, as first reported by us earlier this year, Google already took the decision to filter its auto-suggest feature, a move duly noted by the Court of Appeal. But does it then follow that this act of self-censorship must be an admission of guilt?

“The fact that Google has filtered its results does not mean that they have complied with [SNEP's] request and admitted responsibility,” said the Judge, adding that despite Google’s actions, any infringing content still remains on the web.

Once again the case was decided in Google’s favor and SNEP was ordered to pay 5,000 euros costs.

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Leader of Music Piracy Group Faces 5 Year Jail Sentence

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A 29-year-old man from California has pleaded guilty to his role in a long-running warez-scene release group and now faces up to 5 years in jail. The group, called OSC, ran from 2002 until 2007 and was responsible for the pre-release of the Kanye West album Graduation. It’s connections to ex-members of the previously busted group, Rabid Neurosis, appeared to prove fatal.

According to a release by the Department of Justice, yesterday Richard Franco Montejano of Harbor City, California, pleaded guilty before U.S. District Judge George H. King to one count of conspiracy to commit willful copyright infringement.

The single charge relates to the pre-release of the Kanye West album, ‘Graduation’, which which according to the DoJ was uploaded to a private server in August 2007, one week before its official release. According to Scene records, it was in fact uploaded 11 days before.

Montejano had previously admitted that from 2002 to 2007 he was the leader of the warez release group OSC (oL-sKOOL-cLASSiCS), a group dedicated obtaining music and making it available to the Scene in advance of its commercial release.

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According to court documents, Montejano maintained OSC’s server and also admitted to uploading music to servers operated by other warez groups.

Following the January 2007 break up of another famous release group known as RNS (Rabid Neurosis), Montejano is said to have utilized the group’s two former suppliers known as ‘adeg’ (Bennie Glover) and ‘StJames’ (James Anthony Dockery). Both were employed at a CD pressing plant that manufactured for Universal Music.

Rabid Neurosis had operated over a longer period – between 1999 and 2007 – and were responsible for dozens of major releases including Eminem’s ‘Encore’ and ‘How to Dismantle an Atomic Bomb’ by U2.

Following their arrests, Glover and Dockery pleaded guilty to conspiracy to commit willful copyright infringement. Both were sentenced on January 15th 2010 to three months in prison and two years of supervised release.

However, in March 2010 two other RNS members, Matthew Chow and alleged group leader Adil Cassim, were found not guilty on charges of conspiracy to commit copyright infringement.

Montejano’s sentencing is scheduled for July 25th where, like those before him in both groups, he faces a maximum penalty of five years in prison and a $250,000 fine.

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Google, MPAA and isoHunt Clash in Court

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Last year the BitTorrent search engine isoHunt filed an appeal in their case with the MPAA. With the appeal isoHunt hopes to overturn a District Court ruling that obligates the site to operate an MPAA-approved censorship filter. The case is still ongoing and the Appeal Court has now granted Google the opportunity to chime in as well, leading to critical comments from both the MPAA and isoHunt.

Two months ago Google got involved in a BitTorrent case for the first time in its history. The company took an interest in the ongoing legal action between isoHunt and the MPAA, fearing that the standing injunction has the potential to damage Google and other web services.

In February Google filed an amicus brief (third party testimony) at the Appeal Court, in the hope that the court would consider Google’s opinion on the case. The MPAA was against a Google contribution, but despite these concerns the Appeal Court has now allowed the search engine’s testimony to be added to the case.

Although Google did not dispute isoHunt’s liability in their testimony, the company stated that some of the reasoning in the District Court verdict went too far, and Google wants to see it scrapped in the appeal.

“While in agreement with the result reached in this case, Google is concerned that some of the reasoning offered by the district court goes too far and would upset the careful balance between copyright protection and technological innovation struck by the Supreme Court and Congress. Particularly because this case is not a hard one, it should be decided narrowly,” Google wrote.

The search giant addresses various issues they feel are not needed to arrive at the verdict, but can negatively impact other services on the Internet. Several of these conclusions are the result of suggestions made by the movie studios, which Google claims are misplaced and incorrect.

Google wants to address these issues because they fear it may otherwise lead to a negative outcome for themselves.

The Appeal Court agreed to accept and consider the amicus brief last month. This is the first time that Google have got involved in a BitTorrent case which is significant itself, but interestingly enough neither the MPAA nor isoHunt are happy with Google’s submission.

In a response to Google’s brief, isoHunt says it agrees with Google’s arguments that the District Court verdict is full of “fatal errors” and “omissions”. However, it doesn’t agree with Google’s conclusion that isoHunt is liable for copyright infringements by some of their users. isoHunt’s lawyer therefore asks the court to reject the latter arguments.

“Defendants submit that Google’s confusing arguments and fallacious reasoning should not obscure the importance of issues presented by this case. Defendants have proposed a practical way to deal with such issues; but Google, like plaintiffs, propose nothing other than affirmance of a factually flawed and legally ill-founded District Court Decision.”

The MPAA also responded to Google’s testimony, and was even less pleased to see the company chime in.

“Google is not a disinterested amicus. Google itself is a defendant in suits charging certain of its business units which intentionally promote infringement. Google’s arguments as amicus reflect its litigation interests in obtaining a legal ruling that facilitation of infringement, even if shown to be intentional, may still be immune from copyright liability.”

The MPAA’s legal team then goes on to refute nearly all arguments made by Google. The search engine wants to scrap all of the District Court’s conclusions regarding liability that could eventually be used against Google, but the movie companies clearly disagree.

“The Court should reject Google’s pleas for immunities for businesses that intentionally facilitate copyright infringement,” MPAA’s lawyers conclude.

Although Google weighed in on the isoHunt vs. MPAA case in self-interest, the mere fact that they got involved signifies the importance of the case. To some it may ‘just’ be a dispute between a BitTorrent site and the MPAA but if affirmed the District Court ruling may have far-reaching consequences for hundreds of other web-services.

After filing the amicus brief Google’s role in the case has likely ended, but isoHunt and the MPAA will continue their battle in court.

There’s a hearing planned in early May where we will find out more about where the case is heading. Interestingly, this hearing is scheduled on the same day and in the same court as Veoh’s appeal hearing. Another DMCA case, but one where the service provider was not held liable.

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Movie Studio Sues BitTorrent Swarm in Civil Conspiracy Suit

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As the dozens of mass-lawsuits against BitTorrent users move through the U.S. courts, lawyers are slowly optimizing their strategies. This week an interesting case was filed at the Southern California District Court, as the movie studio Liberty Media filed a lawsuit against a BitTorrent swarm, “Swarm of November 16, 2010″ to be precise.

Image is Loading....The movie outfit Liberty Media has been very active in going after alleged BitTorrent users in recent months.

In January we reported that the studio wanted file-sharers to hand themselves in and pay $1000, an ‘amnesty’ scheme that mysteriously appeared to work. In addition, the company has started over a dozen (mass) lawsuits against thousands of BitTorrent users who allegedly shared their content without permission.

In a recent case filed on Monday, Liberty Media and their lawyer tried something new. Instead of simply joining the various defendants in one suit, the company is actually suing a BitTorrent swarm in the case tiled: “Liberty Media Holdings, LLC v. Swarm of November 16, 2010 et al.”

In the complaint they explain:

Image is Loading....“The defendants are a group of BitTorrent users or peers whose computers are collectively interconnected for the sharing of a unique file, otherwise known as a ‘swarm’. The particular file a BitTorrent swarm is associated with has a unique hash,” Liberty Media’s lawyer writes.

“The torrent swarm in this case is not an actual entity, but is rather made up of at least 95 individuals, acting in concert with each other, to achieve the common goal of infringing upon the Plaintiff’s copyright both by illegally duplicating the Plaintiff’s Motion Picture and illegally distributing the Plaintiff’s Motion Picture.”

The lawyers then continue with a very detailed reconstruction of how the swarm came about. For every defendant they list the IP-address and the exact time when they joined the swarm. As the title of the case already suggests, all infringements took place on the same day – November 16, 2010.

Liberty Media’s lawyer then continues the complaint by describing how BitTorrent works, and how the alleged defendants worked together to distribute the files. Not only for their own pleasure, but also to the benefit of the entire swarm.

“In the BitTorrent world, there is honor among thieves. Those who merely download files, without publishing and sharing files, are derisively called ‘leechers’,” Liberty Media’s lawyer writes. “Being a leecher is not only negative due to the pejorative terminology, but leechers are also punished by the torrent swarm.”

According to the complaint the swarm and the 95 ‘does’ are, aside from copyright infringement, also believed to be guilty of a civil conspiracy. “The center of this conspiracy is the scheme to traffic in infringing content,” the complain reads, adding that the role of the torrent swarm is essential in this process.

Although it’s not explicitly stated, we assume that the emphasis on the swarm and the conspiracy are an attempt to circumvent the jurisdiction and improper joinder issues that led to the dismissal of previous suits.

By arguing that all defendants shared bits and pieces in the Southern District of California, even those who live elsewhere, the plaintiffs claim that the Court has jurisdiction. Similarly, it is argued that, since all defendants were part of the same swarm on the same day, joining them in one case should be justified.

Despite this innovative “sue a swarm” approach, the end-game of Liberty Media is the same. They want to know who the people behind the IP-addresses are, to kindly ask them for a few hundred or thousand dollars to settle the dispute. Pay up or else..

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