Piracy, ISPs, and six strikes: not two outs, or even one…

In a voluntary self-policing effort most likely intended to help safeguard their Communications Decency Act (“CDA”) Section 230 immunity from suit, several Internet Service Providers (“ISPs”) have created a “Copyright Alert System” (“CAS”) to allow content owners the opportunity to report piracy, through which “strikes” can be issued to Internet service users as a warning for piracy.  This YouTube user who I can’t identify as an authority, has a few generally accurate, and fairly informative videos about the CAS regime.  It’s not clear whether this user is a representative of the ISPs or not.  Comcast also has a pretty good set of faqs on the CAS.

Essentially, the CAS allows content owners to identify infringing IP addresses after verifying that infringement is taking place by P2P (“peer to peer”) file sharing.  The ISP then sends a warning to the Internet service user who had that IP address at the relevant time.  After multiple warnings the Internet service user may be required to view a video about piracy, and after several warnings that user’s service may be “throttled,” or slowed down to make piracy more difficult or time-consuming.  The CAS includes an arbitration process for challenging warnings (Russell’s teapot: How do you prove you weren’t pirating?), but no circumstance under which an Internet service user’s account is to be terminated.

Federal Court Rules that First Sale Doctrine Does Not Apply to Digital Music Resale

Earlier this week, the U.S. District Court for the Southern District of New York ruled in favor of record label Capitol Records LLC in its dispute against Redigi Inc., a facilitator of online music resale.  The Court held that Redigi violated the Copyright Act when it facilitated the sale of used digital music files, even though Redigi’s program ensured that seller’s copies are deleted upon sale.

How Your Cell Phone Became a Perching Felony: About the Recent DMCA Transition to Making Cell Phone Unlocking Illegal

Before you read any further, go read and take note of this petition.  You may want to sign it (I did), but context will help in reading this blog post.  In case you’ve been studying really, really hard for the Bar Exam, or were suffering from a surprise case of “dead” over the last week, you inevitably heard that the process of “unlocking” cell phones, previously legal, is now illegal because of government fiat.  For those who may not have understood or thought to ask, “unlocking” is not the same as “jailbreaking.”  In a nutshell, jailbreaking involves making it possible for a device to run code either from sources the manufacturer did not intend the device to be able to use or to run code the manufacturer did not intend it to be able to run (though most people talk about Apple IOS devices, Sony, for example, will note that other devices can also be “jailbroken”).  Unlocking, however, involves making it possible for a device intended for use on one wireless network to be used on a different network – wireless devices sold by a particular wireless company are generally, but not always, sold programmed so that they can only use that company’s network.

Regular readers of Internetbizlaw and the Centre Knowledge blog know that I am pro technology consumer, and very cynical about the “graying” of property rights.  I am not going to spend a lot of time in this post discussing the “right and wrong” of legalizing unlocking, or not, but everyone should understand a few facts:

Digital Rights Management Issues Continue to Tangle Consumers

There was a time, long ago, when we bought something and it was ours.  We could use it, give it away, light it on fire… whatever, but it was ours.  Recently it came to be that something that was ours was also sort of somebody else’s (the recent Supreme Court Kelo case) – or something that was somebody else’s was kind of ours (the more venerable Supreme Court Sony Betamax case) (confused yet?).  Today, things that are ours, aren’t really ours at all.

MegaUpload Previously Assisted Prosecutors

We have previously blogged about the Megaupload saga which has affected all its 50 million users with possible data loss and some with prosecution.  And who could forget its larger than life founder Kim Dotcom?  Now comes word that before MegaUpload was being prosecuted by the US Government, it helped the Government prosecute a smaller file sharing service that used MegaUpload’s servers.

Don’t Be Caught Surprised: Internet Law Now Touches Every Aspect of Businesses

What is Internet law?

I get that question a lot.  When you think of it, the Internet and the law the governs has pervaded society over the last ten years and its expansion and this integration will continue.  This will be especially true for businesses – hence the name for this blog.  Below the jump are some examples of common trends and issues:

DMCA Takedown Notices Can Change Your Google PageRank

Some startling news from Google: the amount of DMCA Takedown Notices your company received can change your Google PageRank….for the worse.  Google does not often disclose what makes their algorithm tick, but in this instance they have been pretty open with the fact that if your website receives a number of DMCA Takedown Notices (which are directed at Google), your rank on Google may suffer.

MegaUpload’s Founders are in Trouble but Could its Users be too?

We have previously blogged (quite a few times) about the file-sharing site MegaUpload and their ongoing legal battles, but now there is reason to pause for some of its heaviest users. It has recently come out (via a court filing by Carpathia Hosting, Inc.) that the Motion Picture Association of America (MPAA) is requesting that MegaUpload’s server host, Carpathia, retain all 25 petabytes of MegaUpload’s data “in light of the potential civil claims by the Studios.” This could mean potential civil claims brought against copyright infringing users as the MPAA is demanding that Carpathia retain information about the MegaUpload users who uploaded or downloaded those files.

A Piece of “Pi” Topped with a Dollop of Copyright Clarity

What is copyrightable: the idea or the execution of the idea?  One case just gave us the answer.

Rarely do copyright cases provide clear lessons, but last week a case out of Oregon did just that by elucidating an oft-misunderstood principle of copyright law—the “idea-expression dichotomy.” This is the rule that a copyright protects the expression of an idea, but not the idea itself.

Breaking: MegaUpload Users Get 2 Week Reprieve

MSNBC is reporting (via CNET) that data belonging to MegaUpload’s customers will not be deleted on Thursday as originally reported.  The two companies hosting MegaUpload’s data – Carpathia Hosting and Cogent Communications – have agreed to preserve information on their servers for another two weeks.

From a legal perspective, the data should be preserved because it may be crucial to MegaUpload’s defense.  For instance, maybe an analysis of the data shows .000001% of the content uploaded to MegaUpload was being uploaded and distributed without authorization.  Or maybe the number is 50%.  That could make a big difference in the perception of how seriously MU took its responsibilities under the safe harbor exception.

Eric S. Crusius, Esq.