Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
U.S. Supreme Court Mulls RIAA, Verizon Dispute
The entertainment industry's copyright battle against rampant online music and movie file-swapping is heading to the United States Supreme Court.
At its private conference this month, the Supreme Court will consider whether to add dozens of cases to its docket, including Recording Industry Association of America Inc. v. Verizon Internet Services Inc., No. 03-1579, which pits the recording industry's copyright concerns against the privacy priorities of Internet service providers (ISPs) in a dispute over subpoenaing possible infringers.
“Allowing massive, anonymous Internet piracy to continue unchecked has a corrosive effect on bedrock commitments to the rule of law and protection of private property on the Internet,” the RIAA's lawyer, Donald Verrilli Jr. of the Washington, DC office of Jenner & Block, argues in a review petition. “At any given moment, four or five or six million people are copying files unlawfully online.”
The RIAA is seeking to overturn a decision by the U.S. Court of Appeals for the D.C. Circuit last December that interpreted the Digital Millennium Copyright Act to bar subpoenas against an ISP in search of information about infringers, unless the copyrighted material at issue is stored on the ISP's computers.
To give the law the full force that Congress intended, Verrilli says the subpoena power should be read more broadly to include the “vast majority” of copyright infringers who store infringing material on home computers.
Verrilli asserts that the D.C. Circuit “undoes the fundamental bargain” that led to passage of the act in 1998: that ISPs would be shielded from liability for copyright violations committed by their customers in exchange for agreement by ISPs to help combat online piracy.
Under the law, even without filing lawsuits, copyright holders may have district court clerks issue subpoenas requiring ISPs to reveal the identity of subscribers they believe to be infringing their copyrights. When the RIAA used this mechanism in 2002 to seek the name of a Verizon customer who was disseminating more than 600 songs, Verizon resisted the subpoena, claiming on privacy and First Amendment grounds that the subpoena authority did not extend to customers storing material on their own computers. U.S. District Judge John Bates rejected that position as creating a “large loophole.”
In a decision written by Chief Judge Douglas Ginsburg, the D.C. Circuit reversed, reasoning that since the
ISP has no control over content on customers' computers and could not remove the infringing material if it wanted to, the subpoena authority had to be limited. The decision guts the statute and makes it harder to fight piracy, says Verrilli. “The only way we can have an effective campaign is to know who the infringers are.”
According to an amicus curiae brief filed by the Motion Picture Association of America and other industry groups, the D.C. Circuit ruling “already is having enormous and deleterious economic effect.” Piracy through systems like KaZaA and Morpheus have cost creative industries $13.6 billion in lost revenue annually, according to a brief by John Kester of DC's Williams & Connolly.
But Verizon counters that the narrowed subpoena power is not keeping the industry from “vigorously employing numerous legal tools” to go after infringers in other ways.
Prime among those, says Andrew McBride of DC's Wiley Rein & Fielding, is the so-called John Doe procedure traditionally used in litigation against anonymous defendants.
“Having a court supervise the discovery is not a detriment, but a positive. It forces the companies to do their homework,” says McBride, Verizon's counsel in the case. He says “rubber-stamp subpoenas” from clerks that the RIAA seeks are prone to error.
Verrilli responds that cumbersome John Doe lawsuits are clogging the courts and are “way, way harder” than the subpoena method he thinks Congress intended.
Before the high court, the recording industry also has the support of Time Warner, which is notable because the company has interests on both sides of the dispute – owning movie, television, and book publishing companies that hold copyrights as well as owning ISPs such as AOL and Road Runner.
In a brief by Henk Brands of Paul, Weiss, Rifkind, Wharton & Garrison, Time Warner urges the Court to take the case and allow for the kind of subpoenas RIAA seeks. “John Doe suits impede settlement,” he writes, because they require lawsuits to be filed first, whereas the other kind of subpoena allows for resolution short of filing a suit.
Pennsylvania's Internet Child Pornography Act is unconstitutional, a federal judge declared last month, because it effectively forced Internet Service Providers (ISPs) to block access to more than 1.1 million “innocent” Web sites in an effort to target a few hundred sites containing child pornography.
In his 113-page decision in Center for Democracy and Technology v. Pappert, No. 03-5051 (E.D., PA; Sept. 10,2004), Senior U.S. District Judge Jan E. DuBois noted that the law was “the first attempt by a state to impose criminal liability on an ISP which merely provides access to child pornography through its network and has no direct relationship with the source of the content.”
DuBois concluded that the law violates the First Amendment rights of ISPs, Internet users and Web site operators because, “with the current state of technology, the act cannot be implemented without excessive blocking of innocent speech.”
In practice, DuBois found, the law also amounted to an unconstitutional “prior restraint” due to the Pennsylvania attorney general's practice of using an “informal notice” to ISPs that contained a “veiled threat” of criminal prosecution.
“People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around.”
DuBois said he recognized that “elimination of child pornography is an important goal” and that “those responsible for the creation or distribution of child pornography should be prosecuted to the full extent of the law.”
But he also noted “all of the ISPs involved in the case have given [the AG's office] their complete cooperation.”
He also found there was “little evidence” that the new law has “reduced the production of child pornography or the child sexual abuse associated with its creation.”
Instead, he said, “there is an abundance of evidence that implementation of the act has resulted in massive suppression of speech protected by the First Amendment.”
The ruling is a victory for plaintiffs' attorneys Stefan Presser, the former legal director of the ACLU of Pennsylvania; Professor Seth Kreimer of the University of Pennsylvania Law School; and John Morris, staff counsel for the Center for Democracy and Technology.
Witold Walczak, the current legal director of the ACLU of Pennsylvania, praised the ruling, saying DuBois had “rightly concluded that such an ineffective law that censors so much protected speech clearly violates the First Amendment.”
Larry Frankel, the legislative director for the ACLU of Pennsylvania, said the ruling “shows how important it is for policy makers to take the time to learn how the Internet actually works. This opinion should encourage our legislators to tread very carefully before attempting to regulate the Internet.”
In their challenge to the Internet Child Pornography Act, the ACLU and the Center for Democracy and Technology argued that the law forced ISPs to block more than 1.1 million Web sites that had no illegal sexual content.
The law, passed in February 2002, required ISPs to remove or disable access to child pornography items “residing on or accessible through its service” after notification by the AG's office.
But plaintiffs' lawyers argued that, due to the limits of current technology, the methods used by ISPs to comply with the act led to significant “overblocking.”
They also complained that the AG's practice of issuing informal notices to ISPs amounted to a prior restraint on speech and that its effects stretched far beyond Pennsylvania and therefore placed an impermissible burden on interstate commerce.
The AG's office argued that the law, on its face, does not suppress any protected speech, and that any “overblocking” was the result of action taken by ISPs.
Deputy AG John Shellenberger, also argued the informal notices did not result in any prior restraint of speech because the procedure was developed with ISP input to provide for an informal and noncoercive means of advising ISPs that child pornography was accessible through their service.
Shellenberger also insisted that the law does not violate the Commerce Clause because child pornography is not commerce.
But DuBois sided with the plaintiffs on every legal point.
The law violated the U.S. Constitution's dormant Commerce Clause, DuBois found, because it “has the practical effect of exporting Pennsylvania's domestic policies.”
As an example, DuBois noted that a WorldCom witness testified that a customer in Minnesota would not be able to access a Web site hosted in Georgia if an Internet address was blocked by a Pennsylvania order.
DuBois found that since the law resulted in such a significant amount of overblocking, “a Minnesotan would be prevented from accessing a Georgia Web site that is not even alleged to contain child pornography.”
Some courts, DuBois said, have concluded “the Internet should not be subject to state regulation.”
DuBois declined to go so far, saying he was “not prepared to rule that states can never regulate the Internet.”
DuBois found there was also evidence that the law “places a substantial burden on interstate commerce.”
The AG's office insisted that the law burdens only child pornography, which is not a legitimate form of commerce.
DuBois disagreed, saying “the evidence demonstrates that implementation of the act has impacted a number of entities involved in the commerce of the Internet – ISPs, Web publishers and users of the Internet.”
To comply with the law, DuBois said, ISPs used “filtering” technology that suppressed access to 376 Web sites containing child pornography as well as more than 1.1 million sites that do not.
“The overblocking harms Web publishers which seek wide distribution for their Web sites and Internet users who want access to the broadest range of content possible,” DuBois wrote.
DuBois concluded, “the burden imposed by the act is clearly excessive in relation to the local benefits. Thus, the act must fail under the dormant Commerce Clause as an invalid indirect regulation of interstate commerce.”
U.S. Supreme Court Mulls RIAA, Verizon Dispute
The entertainment industry's copyright battle against rampant online music and movie file-swapping is heading to the United States Supreme Court.
At its private conference this month, the Supreme Court will consider whether to add dozens of cases to its docket, including Recording Industry Association of America Inc. v. Verizon Internet Services Inc., No. 03-1579, which pits the recording industry's copyright concerns against the privacy priorities of Internet service providers (ISPs) in a dispute over subpoenaing possible infringers.
“Allowing massive, anonymous Internet piracy to continue unchecked has a corrosive effect on bedrock commitments to the rule of law and protection of private property on the Internet,” the RIAA's lawyer, Donald Verrilli Jr. of the Washington, DC office of
The RIAA is seeking to overturn a decision by the U.S. Court of Appeals for the D.C. Circuit last December that interpreted the Digital Millennium Copyright Act to bar subpoenas against an ISP in search of information about infringers, unless the copyrighted material at issue is stored on the ISP's computers.
To give the law the full force that Congress intended, Verrilli says the subpoena power should be read more broadly to include the “vast majority” of copyright infringers who store infringing material on home computers.
Verrilli asserts that the D.C. Circuit “undoes the fundamental bargain” that led to passage of the act in 1998: that ISPs would be shielded from liability for copyright violations committed by their customers in exchange for agreement by ISPs to help combat online piracy.
Under the law, even without filing lawsuits, copyright holders may have district court clerks issue subpoenas requiring ISPs to reveal the identity of subscribers they believe to be infringing their copyrights. When the RIAA used this mechanism in 2002 to seek the name of a Verizon customer who was disseminating more than 600 songs, Verizon resisted the subpoena, claiming on privacy and First Amendment grounds that the subpoena authority did not extend to customers storing material on their own computers. U.S. District Judge John Bates rejected that position as creating a “large loophole.”
In a decision written by Chief Judge Douglas Ginsburg, the D.C. Circuit reversed, reasoning that since the
ISP has no control over content on customers' computers and could not remove the infringing material if it wanted to, the subpoena authority had to be limited. The decision guts the statute and makes it harder to fight piracy, says Verrilli. “The only way we can have an effective campaign is to know who the infringers are.”
According to an amicus curiae brief filed by the Motion Picture Association of America and other industry groups, the D.C. Circuit ruling “already is having enormous and deleterious economic effect.” Piracy through systems like KaZaA and Morpheus have cost creative industries $13.6 billion in lost revenue annually, according to a brief by John Kester of DC's
But Verizon counters that the narrowed subpoena power is not keeping the industry from “vigorously employing numerous legal tools” to go after infringers in other ways.
Prime among those, says Andrew McBride of DC's
“Having a court supervise the discovery is not a detriment, but a positive. It forces the companies to do their homework,” says McBride, Verizon's counsel in the case. He says “rubber-stamp subpoenas” from clerks that the RIAA seeks are prone to error.
Verrilli responds that cumbersome John Doe lawsuits are clogging the courts and are “way, way harder” than the subpoena method he thinks Congress intended.
Before the high court, the recording industry also has the support of Time Warner, which is notable because the company has interests on both sides of the dispute – owning movie, television, and book publishing companies that hold copyrights as well as owning ISPs such as AOL and Road Runner.
In a brief by Henk Brands of
Pennsylvania's Internet Child Pornography Act is unconstitutional, a federal judge declared last month, because it effectively forced Internet Service Providers (ISPs) to block access to more than 1.1 million “innocent” Web sites in an effort to target a few hundred sites containing child pornography.
In his 113-page decision in Center for Democracy and Technology v. Pappert, No. 03-5051 (E.D., PA; Sept. 10,2004), Senior U.S. District Judge
DuBois concluded that the law violates the First Amendment rights of ISPs, Internet users and Web site operators because, “with the current state of technology, the act cannot be implemented without excessive blocking of innocent speech.”
In practice, DuBois found, the law also amounted to an unconstitutional “prior restraint” due to the Pennsylvania attorney general's practice of using an “informal notice” to ISPs that contained a “veiled threat” of criminal prosecution.
“People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around.”
DuBois said he recognized that “elimination of child pornography is an important goal” and that “those responsible for the creation or distribution of child pornography should be prosecuted to the full extent of the law.”
But he also noted “all of the ISPs involved in the case have given [the AG's office] their complete cooperation.”
He also found there was “little evidence” that the new law has “reduced the production of child pornography or the child sexual abuse associated with its creation.”
Instead, he said, “there is an abundance of evidence that implementation of the act has resulted in massive suppression of speech protected by the First Amendment.”
The ruling is a victory for plaintiffs' attorneys Stefan Presser, the former legal director of the ACLU of Pennsylvania; Professor Seth Kreimer of the
Witold Walczak, the current legal director of the ACLU of Pennsylvania, praised the ruling, saying DuBois had “rightly concluded that such an ineffective law that censors so much protected speech clearly violates the First Amendment.”
Larry Frankel, the legislative director for the ACLU of Pennsylvania, said the ruling “shows how important it is for policy makers to take the time to learn how the Internet actually works. This opinion should encourage our legislators to tread very carefully before attempting to regulate the Internet.”
In their challenge to the Internet Child Pornography Act, the ACLU and the Center for Democracy and Technology argued that the law forced ISPs to block more than 1.1 million Web sites that had no illegal sexual content.
The law, passed in February 2002, required ISPs to remove or disable access to child pornography items “residing on or accessible through its service” after notification by the AG's office.
But plaintiffs' lawyers argued that, due to the limits of current technology, the methods used by ISPs to comply with the act led to significant “overblocking.”
They also complained that the AG's practice of issuing informal notices to ISPs amounted to a prior restraint on speech and that its effects stretched far beyond Pennsylvania and therefore placed an impermissible burden on interstate commerce.
The AG's office argued that the law, on its face, does not suppress any protected speech, and that any “overblocking” was the result of action taken by ISPs.
Deputy AG John Shellenberger, also argued the informal notices did not result in any prior restraint of speech because the procedure was developed with ISP input to provide for an informal and noncoercive means of advising ISPs that child pornography was accessible through their service.
Shellenberger also insisted that the law does not violate the Commerce Clause because child pornography is not commerce.
But DuBois sided with the plaintiffs on every legal point.
The law violated the U.S. Constitution's dormant Commerce Clause, DuBois found, because it “has the practical effect of exporting Pennsylvania's domestic policies.”
As an example, DuBois noted that a WorldCom witness testified that a customer in Minnesota would not be able to access a Web site hosted in Georgia if an Internet address was blocked by a Pennsylvania order.
DuBois found that since the law resulted in such a significant amount of overblocking, “a Minnesotan would be prevented from accessing a Georgia Web site that is not even alleged to contain child pornography.”
Some courts, DuBois said, have concluded “the Internet should not be subject to state regulation.”
DuBois declined to go so far, saying he was “not prepared to rule that states can never regulate the Internet.”
DuBois found there was also evidence that the law “places a substantial burden on interstate commerce.”
The AG's office insisted that the law burdens only child pornography, which is not a legitimate form of commerce.
DuBois disagreed, saying “the evidence demonstrates that implementation of the act has impacted a number of entities involved in the commerce of the Internet – ISPs, Web publishers and users of the Internet.”
To comply with the law, DuBois said, ISPs used “filtering” technology that suppressed access to 376 Web sites containing child pornography as well as more than 1.1 million sites that do not.
“The overblocking harms Web publishers which seek wide distribution for their Web sites and Internet users who want access to the broadest range of content possible,” DuBois wrote.
DuBois concluded, “the burden imposed by the act is clearly excessive in relation to the local benefits. Thus, the act must fail under the dormant Commerce Clause as an invalid indirect regulation of interstate commerce.”
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
In June 2024, the First Department decided Huguenot LLC v. Megalith Capital Group Fund I, L.P., which resolved a question of liability for a group of condominium apartment buyers and in so doing, touched on a wide range of issues about how contracts can obligate purchasers of real property.
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.