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TorrentSpy takes on the MPAA

p2p news / p2pnet: MPAA owners Time Warner, Viacom, Fox, Sony, NBC Universal and Disney are in essence trying to outlaw the dot torrent file format, says a lawyer representing TorrentSpy.com, one of the sites named in the MPAA's panicky onslaught against file sharers in particular, and the p2p community in general.

"Apparently, Hollywood is now using the Grokster opinion to sue search engines that do not even link to their copyrighted files," Ira Rothken tells p2pnet.

He's representing Torrentspy which will today file a motion to dismiss a federal lawsuit brought by rthe MPAA ((Motion Picture Association of America).

Torrentspy will among other things argue it doesn't not link to copyrighted works; that it's cooperated by removing "objectionable links to dot torrent files;" that it doesn't actively promote copyright infringment,; and, it can't be held "tertiary" liable for visitors' conduct that occurs away from its web search engine, says Rothken.

"This is the first case that we are aware of where major Hollywood studios are suing a search engine that does not even link to any files copyrighted by Hollywood," he told us.

Rothken also acted for Eric Parke whi sued MPAA brother organization the RIAA when it tried to get its customers to incriminate themselves through its spurious Clean Slate Program.

TorrentSpy Files Motion to Dismiss
March 28, 2006
Thomas Mennecke

TorrentSpy, as its name suggests, is a BitTorrent indexing site. Considering much of the terminology associated with file-sharing is rooted in little more than colloquialisms, the exact function of a "BitTorrent indexing site" is generally considered a "catalog" of available files - including movies. An indexer shouldn't be confused with a tracker, which hosts the actual torrent file, coordinates the file swarm and directs BitTorrent traffic.

Such indexing/tracking sites, such as SuperNova, EliteTorrent, and LokiTorrent, have been the target of the movie industry in their effort to styme the flow of unauthorized content. The movie industry claims their primary function was to facilitate widespread copyright infringement.

The MPAA filed its lawsuit against the BitTorrent indexer back on February 23, 2006. The complaint cited the defendants knowingly "enable, encourage, induce and profit from massive online piracy."

Blindsided by the MPAA's selection of TorrentSpy as its next example of copyright enforcement, Justin Bunnell and the named defendants have decided to fight back. In a motion submitted to the United States District Court of Central California, the legal council representing TorrentSpy asked for the complaint's dismissal.

The main impetus of TorrentSpy's motion claims they cannot be liable for copyright infringement - whether primary or secondary - because the site itself does not infringe on any intellectual property rights. In other words, how can TorrentSpy possibly encourage or participate in piracy when there is no infringing activity on TorrentSpy? In Justin's words, "we are just responding to the baseless MPAA claims."

Typically the MPAA doesn't target random websites or pick names out of a hat. It would seem however, the MPAA is concerned with the content of TorrentSpy based on more tangible evidence. Most of the MPAA's complaint is filled with typical legal fluff, but there was a single passage that could prove to be the catch-all.

Defendants have actual and constructive knowledge of the infringing activity that occurs on their torrent site.

TorrentSpy responds by reiterating the points made above; they couldn't possible have knowledge of infringing activity since the very nature of TorrentSpy is non-infringing.

A defendant must possess either actual or constructive knowledge of the infringing activity to be found contributorily liable. Ellison, supra. Here, there is no actual infringing activity and no knowledge, actual or constructive, of any infringing activity. At most there are claims that defendants have a duty to acquire knowledge by inspecting indices of uploads and comparing filenames found there with some speculative compendium of copyrighted titles. No such duty exists.

The big question for the courts is whether TorrentSpy is a victimized search enginge or a facilitator of piracy. TorrentSpy hosts no torrent files, media files or other infringing material. They do however, index material that may be construed at infringing. Whether this is primary or secondary infringment remains the big question, and appears this confusing issue may finally achieve closure in the courts.

The courts will have to question whether TorrentSpy is responsible for the torrents indexed on their site, or whether they have no such duty to eliminate potentially infringing content. If knowledge of infringement is all the MPAA needs to enforce their member company's copyright, and the courts accept that as grounds for infringement, TorrentSpy may have difficulty justifying they're not liable for the actions of their users.

Two years in prison for downloading latest film
From Roger Boyes in Berlin

GERMANS risk two years in prison if they illegally download films and music for private use under a new law agreed yesterday. Anybody who downloads films for commercial use could be jailed for up to five years.
The measures, some of the toughest in Europe, were announced after an aggressive campaign by the film industry in Germany, the largest market in the EU and one of the most computer-literate populations.

The law, which comes into effect on January 1, 2007, has infuriated consumer groups. They claim that it will turn consumers into criminals and harm the Government’s efforts to create a knowledge-based economy.

145 TARGETED IN OPERATION TRACKER

MAIDENHEAD, England, March 29 /PRNewswire/ --
- File Sharers Exposed in Software Crackdown Following Recent Court Orders
Up to 145 of the 150 individuals identified following a recent Court Order for illegally sharing software over peer-to-peer (P2P) networks have been targeted by the Federation Against Software Theft.
All have been written to by The Federation demanding that they settle in full and pledge not to undertake this illegal activity again. This is the first such campaign of this nature in the UK and represents a major step forward in enforcement of software copyright infringement.
In January, 10 Internet Service Providers were ordered by the High Court to hand over customer details following a 12-month investigation into the covert sharing of software by PC users.
Although most file sharers used false names and email addresses, the ten ISPs handed over full personal details, including names, addresses and dates of birth etc. This followed his Honour Judge Raynor's confirmation that there was "an overwhelming case" for ordering such customer details to be released.
Julian Heathcote Hobbins, Senior Legal Counsel at The Federation, commented: "Traditionally most software owners have relied on notice and take-down procedures and have failed to bring civil or criminal proceedings against the infringers. This is the second strand of an ongoing strategy, bringing these actions to a head when we see software being misused."
John Lovelock, director general at The Federation, added: "We are making an example of the perpetrators to stop them from stealing and passing on the intellectual property of our members for good, and to send a very strong message to end users that they can be found at any time during activities of this nature and we will continue to monitor and search for our member products being illegally shared. This is not a one-off-wonder."
Targets were identified by software title by investigators, working covertly for The Federation on a project codenamed Operation Tracker. They are IT forensics experts, who assisted The Federation in cracking down on the suppliers and P2P file sharers of unlicensed software.

The IFPI (International Federation Phonographic Industry) announced today a new round of lawsuits against 1,872 alleged P2P pirates. Compared to the RIAA's campaign, the IFPI has spaced their copyright enforcement efforts quarterly rather than monthly. The last round of IFPI lawsuits occurred back in November 2005, when approximately 2,000 alleged pirates were targeted.

Although visually impressive compared to the RIAA's efforts, when broken down monthly the IFPI's efforts since November 2005 only total about 500 potential litigants per month (about 200 fewer than the RIAA's monthly average.)

The effectiveness of IFPI's campaign - one that must cover a jurisdiction far greater than that of the RIAA - is debatable. With a jurisdiction that covers 75 countries and a population far greater than the United States, the IFPI has concentrated much of its efforts against Western Europe and other industrialized nations. Today's announced actions found targets in Austria, Denmark, Finland, Germany, Hong Kong SAR, Iceland, Italy, Portugal, Sweden and Switzerland.

"More than a third of illegal file-sharers (35%) in France, Germany, Spain, Sweden and the UK have stopped or cut back on such activity - while 14 per cent increased their activity. That means that a net three million people are cutting back or stopping their illegal file-sharing."

Gauging the viability of surveys tends to be difficult, as individuals are many times reluctant to give truthful answers. This is particularly so when an individual representing the IFPI's interests asks face-to-face (phone survey in Sweden) the file-sharing habits of already concerned netizens.

BigChampagne, a firm that specializes in tracking the size and volume of the P2P and file-sharing community, continues to publish evidence that conflict with Jupiter Research and the IFPI. Since November 2005, BigChampagne found the P2P population outside the United States grew from 2.60 million to 2.68 million in January 2006 – an increase of approximately 76,000 users in 3 months. BigChampagn’s data gathering techniques differ greatly from Jupiter’s, as it relies on deep packet inspections on global ISP back bones.

Whether the IFPI’s efforts are working remains questionable. What are not in question are the BPI’s (British Phonographic Industry) continued losses, which equated to over 1 billion pounds in the last three years and continue to rise. An interesting conundrum that questions how losses can continue to mount if actions against P2P users - the assumed cause of such loss - is a purported success.

Brein takes down more Torrent Sites
04.06.06 15:24

During the past two weeks the Dutch anti-piracy organization BREIN forced 6 (small) torrent sites to stop their services. Brein is known for its intimidating techniques, and is successful in taking down sites, mostly set up by hobbyists.

Among BREIN’s newest victims are weblog.nl, movieget.nl, and torrents4you.com.

BREIN claims to have taken down 50% of all Bittorrent sites in the Netherlands.

Brein often threatens the site owners to admit they are infringing copyright and asks them to give BREIN all the information about their members or we will sue. These threatening and intimidating talk seems to work, although Brein has no legal power, they do have the money to sue.

Hunt for private file sharers is over - prosecutor
Published: 5th April 2006 16:32 CET

A Swedish appeal court decided on Wednesday not to hear the case against a man who illegally shared a film via the internet. The prosecutor said that the decision effectively puts an end to the hunt for private file sharers in Sweden.

The particular case turned away by the Svea appeal court concerned a 27 year old man who was given a fine amounting to 80 days' salary by Sollentuna district court for breaking copyright laws. He admitted making the Swedish action film 'The Third Wave' accessible to others through a file sharing programme.

The prosecutor wanted the punishment reconsidered and appealed against the judgement.

After Wednesday's decision in the high court, he said that a change in the law would now be required if legal proceedings were to be brought against individuals.

But Adrian Engman, an assessor at the Svea appeal court, told TV4 that the court did not see the decision as a precedent.

"This case was about one person who one day made one film accessible on a file sharing network. The preliminary process is very clear on these points - only in bigger cases should there be a punishment of the degree of a prison sentence," he said.

"There were no commercial interests here either."

Henrik Pontén, a lawyer at the industry organisation Antipiratbyrån, said the punishment of 80 days' fine per film was satisfactory.

"We think it's a fair and balanced penalty. We are not surprised that this was not granted a hearing," he told TT.

"It doesn't cause any problems for us since the cases we report today relate to many more films. It's impossible to hunt file sharers who just share one film - but most of them have many more films that that," said Henrik Pontén.

Spanish Police Target 15 Indexing Sites
April 8, 2006
Thomas Mennecke

The global campaign to stomp out BitTorrent and eDonkey2000 indexing sites continued today, this time in the P2P stronghold of Spain. In raids conducted this morning, Spanish Police arrested 15 administrators/owners related to 17 BitTorrent and eDonkey2000 indexing sites.

The move is highly unusual, as Spain has long been known as tolerant of file-sharing and P2P activities. Among many other important P2P developments, it's the home of Pablo Soto, developer of Piolet and the Manolito P2P network. This lenient attitude towards file-sharing appears to be shifting, as these raids mark the first time such an event has occurred in Spain.

According to the police press release, today's raids were the culmination of a lengthy investigation that began in October 2005. The result of this investigation purports the closure of 17 indexing sites, however several are still operational. The remaining operational sites are pctracker.com, pctorrent.com, pctorrent.net, pctorrent.org and tododatos.com.

In an effort to avoid prosecution, the police state all of the 17 indexing sites were hosted outside of Spain. The administrators/owners however, continued to reside in Spain.

The "Asociacion de Internautas" (AI), a consumer organization similar to the EFF, scorned the raids, stating that indexing files is not illegal in Spain. Roughly translated, the AI likened the arrests today with holding the post office responsible for illegal mail shipments.

"The suppliers of services are not responsible for the [actions of their users], it is as if Post office were responsible for which their shipments contain."

First P2P Infringement Case Heads To Court
April 17, 2006
Beijing Secondary People's Court has begun to hear a lawsuit filed by Shanghai Busheng Music and Culture Company against Beijing Feixingwang Music Software Development Company, who is accused of software copyright infringement.

RIAA Case Against Alleged File Trader Dismissed
By Jon Newton 4/22/06

The Big Four Organized Music cartel's mis-named Recording Industry Association of America created a nasty mess for itself in Michigan. Fronting for Vivendi Universal (France), EMI (Britain), Sony BMG (Japan and Germany) and the only American company, Warner Music, it went after the Chan family, there, trying various ploys in fruitless bids to pillory schoolgirl Britanny Chan, now 15, and her mother, Candy, as file sharing thieves. They failed with Mrs Chan, represented by John Hermann, so they turned their attentions to her daughter Brittany, who was 13, at the time.

They wanted a Guardian Ad Litem appointed in Brittany's case. Why would they want that? Their reasons weren't clear but a guardian ad litem's fees could have reached many thousands of dollars. Given that the RIAA was also demanding an order to force Brittany's parents to pay for the guardianship, it may have amounted to yet another terror tactic.

But all to no avail. The RIAA, which has gone through three law firms to date, blew it there as well. It didn't bother to provide documents that had been asked for, despite efforts by the court, "to work with the Plaintiffs in advancing this case". In that light, the RIAA's failure to do so was, " inexplicable," wrote judge Lawrence P. Zatkoff.

Famous musician sues Web for offering free downloads

27/4/2006 10:31


Musician Chen Tong is suing the Website http://www.mop.com for stealing one of his songs in what is set to become a controversial court case.

The suit was filed at Haidian District court in Beijing yesterday, which was also World Intellectual Property Day.

"The suit is not just for my personal interest, but the whole music community, whose livelihoods depend on the protection of their intellectual property," Chen said.