p2pnet view – P2P | RIAA News | MPAA News | Freedom | Politics

In November, 2004, I published an item on a supposed merger between the two “trade” organisations owned, as they are, by the big four record labels and big six movie studios.

The 2004 Post kicked off, “p2pnet.net News Exclusive:- 2004 will go down as the year the entertainment industry went to the wall in an all-out bid to wipe out file sharing on the p2p nets. Permanently.”

Now, “It appears that the RIAA and the MPAA have gotten together and created a collusive ‘Memorandum of understanding’ for ISP’s to sign, which calls for the signing ISP’s to assist the Big 4 record companies and the Big 6 motion picture companies in enforcing their copyrights, in ways never contemplated by the Digital Millenium Copyright Act” says Ray Beckerman in Recording Industry vs The People.

My 2004 story, a rejig of an earlier spoof, went on:

“As part of the actions, two of the entertainment industry’s principal faux police enforcement organizations are to merge, we can reveal… The RIAA (Recording Industry Association of America) has been hammering p2p file sharers since September, 2003, and has so far sued 76,191 people without ever seeing one of its victims appear in court. And the MPAA (Motion Picture Association of America) has just mounted its own RIAA-style sue ‘em all attack.”

As Beckerman said in his blog post on this latest piece of criminal injustice, “I haven’t had time to analyze it yet (it’s 36 pages), but at first glance it made me kind of ill, in that it appeared to…

• violate the antitrust laws of the federal government and of various states,
• constitute abuse of copyright,
• expand the lawful copyright monopoly into an unlawful monopoly,
• overlook the First Amendment,
• overlook the fair use defense and other defenses afforded by copyright law,
• conflict with the Digital Millennium Copyright Act,
• be against public policy, and
• contradict net neutrality.

What I’m wondering about is which, if any, ISP’s have signed off on this, because I’d want to do my utmost to avoid doing business with them. The document I’ve seen is unsigned but lists some ISP’s. If your ISP is on that list, and does sign, I recommend switching ISP’s asap.

What ever happened to “free enterprise”?

The entertainment industry finds it highly cost effective to subpoena men, women and children, scamming the mainscream media into believing file sharing is illegal, without ever having to actually prove a case before a judge.

Victims are all ordinary people with no financial or legal resources. They have no choice but to accept the entertainment industry’s offer to “settle”.

It’s either that or take on the squads of highly paid, highly skilled lawyers fielded by the multi-billion-dollar recording and movie industries.

In 2004  I wrote, “Now, instead of running separate actions, the RIAA and MPAA will merge their resources and staffs to become the World Recording and Motion Picture Industry Association (WRAMPIA, pronounced “wrampia”), say industry sources.

Retiring IFPI boss Jay Berman will take up the post as chairman, RIAA president Cary Sherman will become WRAMPIA’s first ceo and RIAA Mitch Bainwol will run the new organization’s Reality Realignment and Fact Adjustment Bureau (RRFAB, pronounced “rrfab”).

Ex-MPAA boss Jack Valenti will be the new organization’s cmo (chief misinformation officer).

However, this isn’t about money: it’s about circumventing any form of competition and gaining complete control of the Internet as the primary vehicle for distributing, marketing, advertising and selling corporate digital “product” online.

Who, ask the lawyers and the Big 4 executives they advise, cares about the customers — the people who make it all happen?

But every single one of the 40,000 people who have received RIAA subpoenas has sat back in shock, wondering how they can possibly take on a hugely wealthy Vivendi Universal, EMI, Warner Music and Sony Music with their immense legal, financial and political resources?

The answer is: they can’t, and the people who run, and who work for, the RIAA such as it’s bosses, Mitch Bainwol and Cary Sherman (Top right top right and Cara Duckworth and Jonathan Lamy, know it as they accuse their victims of stealing, when nothing’s been stolen, of being criminals, when no crime has been committed, of having caused misery to record industry workers, when the people behind the “trade” association are wholly to blame.

“I was completely awed and amazed and also totally surprised when I was asked to chair WRAMPIA,” said Berman at the ‘invitation only’ Bahamas press conference to announce the new organization.

“I’m thrilled, excited, honoured and, well, simply stunned,” said Bainwol.

“Now we’ll be able to give the music and movie loving public around the world exactly what they deserve,” said Sherman.

Remarked Valenti, “These online pirates think they’ve been getting away with it. Well, they have. But I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

In his first public statement, Berman said WRAMPIA will organize and fund its own US political party to help politicians and their staffs better understand the difficulties facing the entertainment industry as it strives to overcome online piracy, and to define the steps the Bush administration will need to take to combat it.

To be called the First American Political Management and Persuasion Party (FAPMAPP, pronounced fpmapp).There’s a saying along the lines of, “many a true thing has been said in jest”.”

And while you think about that, here’s the memorandum in all its magnificence:

[Formatting still in progress - DA]

FINAL

7/6/2011
MEMORANDUM OF UNDERSTANDING

Whereas:

 Copyright infringement (under Title 17 of the United States Code) on the Internet (“Online Infringement”) – including the illegal distribution of copyrighted works such as music, movies, computer software, gaming software, e-books and the like via Peer-to-Peer (“P2P”) file exchanges and other illegal distribution via Internet file hosting, streaming or other technologies – imposes substantial costs on copyright holders and the economy each year. Online Infringement also may contribute to network congestion, negatively affecting users’ Internet experiences.

The availability of copyrighted content, including live and recorded programming, from pirated sources harms legitimate content creation and distribution. Content creators are taking steps to make lawful content more available online. The lawful online distribution businesses are vibrant and growing and they are harmed by infringement. In addition, law enforcement is pursuing opportunities to enhance its ability to investigate, prosecute, and ultimately punish and deter those who violate copyright law.

 While the government maintains a critical role in enforcing copyright law, it should be readily apparent that, in an age of viral, digital online distribution, prosecution of individual acts of infringement may serve a purpose, but standing alone this may not be the only or best solution to addressing Online Infringement.

If Online Infringement is to be effectively combated, law enforcement must work with all interested parties, including copyright holders, their licensees, artists (and the guilds, unions and other organizations that represent them), recording companies, movie studios, software developers, electronic publishers, Internet Service Providers (“ISPs”), public interest groups, other intermediaries and consumers on reasonable methods to prevent, detect and deter Online Infringement. Such efforts must respect the legitimate interests of Internet users and subscribers in protecting their privacy and freedom of speech, in accessing legitimate content, and in being able to challenge the accuracy of allegations of Online Infringement.

This work should include an educational component because evidence suggests that most informed consumers will choose lawful services and not engage in Online Infringement. This work also should include the development of solutions that are reasonably necessary to effectuate the rights that are granted by copyright without unduly hampering the legitimate distribution of copyrighted works online or impairing the legitimate rights and interests of consumers and ISPs. Such efforts serve not only the shared interests of creators and distributors of creative works, but also the interests of Internet users who benefit from constructive measures aimed at education and deterrence in lieu of litigation with its attendant costs and legal risk.

 A reasonable, alert-based approach may help to protect legal rights granted by copyright and stem the unlawful distribution of copyrighted works, while providing education, privacy protection, fair warning and an opportunity for review that protects the lawful interests of consumers. The efficiencies gained from such a cooperative model may benefit all interested parties, including consumers.

 Enforcement and consumer education programs alone may not be able to fully address the issue of Online Infringement. In addition, it is important for content and copyright owners to continue to make available an array of lawful alternatives for consuming movies, music, and other content online, including new distribution models that make it easy and attractive for consumers to lawfully obtain online the content they want. ISPs can assist in these efforts by encouraging subscribers to seek legal alternatives for obtaining content. The widespread availability of lawful content will benefit consumers, content owners and ISPs.

Whereas, the Content Owner Representatives, the Participating ISPs, and the members of the Participating Content Owners Group (all, as defined in Section 1 below) and independent record labels and film production companies (Independent Content Owners , as defined in Section 5C below) represented by the American Association of Independent Music (“A2IM”) and the Independent Film and Television Alliance (“IFTA”), respectively, seek to establish a consumer-focused process for identifying and notifying residential wired Internet access service customers of the Participating ISPs (“Subscribers”) (other than dial-up Subscribers) who receive multiple notifications of allegations of Online Infringement made via P2P networks and applications (“P2P Online Infringement”), in an effort to educate consumers, deter Online Infringement, and direct consumers to lawful online legitimate sources of content.

Whereas, having considered the desirability of implementing such a process as a means to encourage lawful and legitimate use of copyrighted content, the Parties (as defined in Section 1 below) hereby voluntarily enter into this Memorandum of Understanding (the “Agreement”).

IT IS HEREBY UNDERSTOOD AND AGREED AMONG THE PARTIES THAT:

1. Parties to the Agreement

The parties to this Agreement (the “Parties”) are The Recording Industry Association of America, Inc. (“RIAA”), The Motion Picture Association of America, Inc. (“MPAA” and together with RIAA, the “Content Owner Representatives”); the entities set forth in Attachment A (as may be amended from time to time) (collectively, the “Participating ISPs”); and solely for the purposes of Sections 2(E), 4(C), 4(D), 4(H), 4(I), 5(A), 5(C), 6, 7, 8, 9(E), 9(F), and 10 of this Agreement, MPAA members Walt Disney Studios Motion Pictures, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc. (such MPAA members, together with MPAA, the “MPAA Group”), RIAA members UMG Recordings, Inc., Warner Music Group, Sony Music Entertainment, and EMI Music North America (such RIAA members, together with RIAA, the “RIAA Group” and together with the MPAA Group, and any other entities set forth in Attachment B (as may be amended from time to time), the “Participating Content Owners Group”).

2. Establishment of CCI

A. Not later than sixty (60) days after the Effective Date (as defined in Section 8(A) below), the Content Owner Representatives and the Participating ISPs will establish the Center for Copyright Information (“CCI”) to assist in the effort to combat Online Infringement by, among other things, (i) taking an active role in educating the public about the laws governing the online distribution of works protected by copyright, including educating the public regarding civil and criminal penalties for Online Infringement; (ii) interfacing with third party stakeholders on issues and questions of common interest to the Content Owner Representatives and the Participating ISPs pertaining to Online Infringement and related matters; (iii) assisting in the design and implementation of a process that provides for consumer and Subscriber education through the forwarding of Copyright Alerts to, and application of Mitigation Measures (as defined in Section 4(G)(iii) below) on, Subscribers engaged in persistent P2P Online Infringement, including reviewing the accuracy and efficacy of Content Owner Representative processes for identifying instances of P2P Online Infringement and ISP processes for identifying the Subscriber accounts associated with such P2P Online Infringement; (iv) periodically reviewing the effectiveness and impact of such processes as further described in Section 9 below; (v) collecting and disseminating to interested parties and the public data regarding Online Infringement and the lawful means available to obtain non-infringing copyrighted works; and (vi) facilitating the involvement of nonparticipating ISPs in the work of CCI and in the Copyright Alert program (as defined in Section 4(G) below).

B. CCI will be governed by a six (6) member executive committee (the “Executive Committee”) that will be selected as follows: three (3) members to be designated collectively by the Content Owner Representatives, and three (3) members to be designated collectively by the Participating ISPs. Each member shall serve without compensation for a term of two (2) years, which may be renewed.

C. The members of the Executive Committee shall be selected within fortyfive (45) days of the Effective Date (as defined in Section 8(A) below). The Executive Committee shall hold an initial meeting and designate an individual to serve as its Executive Director. The Executive Director shall not be one (1) of the six (6) members of the Executive Committee.

D. The Executive Committee shall also establish a three (3) member advisory board to the Executive Committee (the “Advisory Board”). The Content Owner Representatives shall select one (1) member of the Advisory Board, the Participating ISPs shall select one (1) member of the Advisory Board, and the two (2) selected Advisory Board members shall select the third member. Each of the members of the Advisory Board shall be drawn from relevant subject matter expert and consumer interest communities and, unless otherwise agreed in writing, shall not be employees or agents of the Content Owner Representatives nor of the Participating ISPs. The Advisory Board shall be consulted on any significant issues the Executive Committee is considering relating to the design and implementation of the Notice Process and the Copyright Alert program (as defined in Section 4(C) and Section 4(G), respectively), and shall provide recommendations to the Executive Committee as appropriate. The Advisory Board may also provide recommendations regarding the CCI educational program described in Section 3 below, upon the Executive Committee’s request.

E. Funding for CCI will be provided fifty percent (50%) by the Participating Content Owners Group and fifty percent (50%) by the Participating ISPs. The initial CCI budget shall be presented to and approved by the Executive Committee within ninety (90) days of the Effective Date (as defined in Section 8(A) below) and shall be funded by the Participating Content Owners Group and the Participating ISPs promptly thereafter according to the apportionment set forth in this Section 2(E). The Executive Committee shall also oversee and approve by majority all matters regarding the corporate formation of CCI and the further development of its internal structure. CCI shall be governed by its articles of incorporation and bylaws to be filed in connection with its corporate formation in the State of Delaware. The bylaws shall, inter alia, include a mechanism for adding parties to this Agreement.

3. CCI Educational Program

In conformance with its budget, CCI shall develop an educational program to inform the public about laws prohibiting Online Infringement and lawful means  available to obtain digital works online and through other legitimate means. CCI will also establish, host and maintain an online information center where educational material will be available to the general public. The Content Owner Representatives and the Participating ISPs shall contribute to CCI any applicable educational materials already developed by the respective Content Owner Representatives and Participating ISPs, and CCI shall facilitate the dissemination of such educational materials through online or other media. Such educational materials shall include, among other things, information about the technical means Subscribers can use to secure their computers and networks to avoid unwittingly assisting others in Online Infringement. Any Content Owner Representative or Participating ISP may add additional educational materials to the online information center subject to the prior permission of the Executive Committee.

4. System for Reducing Instances of P2P Online Infringement

A. The Content Owner Representatives will develop and maintain written methodologies, which shall be adopted by the applicable Content Owner representative, for identifying instances of P2P Online Infringement that are designed to detect and provide evidence that the identified content was uploaded or downloaded or copied and offered on a P2P network to be downloaded through a bit torrent or other P2P technology. Each Participating ISP will develop and maintain methodologies, which shall be adopted by the applicable Participating ISP, to match Internet Protocol (“IP”) addresses identified by the Content Owner Representatives to the Participating ISP Subscribers’ accounts, to keep a record of repeat alleged infringers, and to apply Mitigation Measures (as defined in Section 4(G)(iii) below). Such Content Owner Representative and Participating ISP methodologies are collectively referred to herein as the “Methodologies”. The goal of these Methodologies shall be to ensure that allegations of P2P Online Infringement, related records, and the application of any Mitigation Measures are based on reliable, accurate, and verifiable processes and information.

B. In conformance with its budget, CCI shall retain an independent and impartial technical expert or experts (the “Independent Expert”) to review on a periodic and ongoing basis the Methodologies and any modifications thereto, and recommend enhancements as appropriate, with the goal of ensuring and maintaining confidence on the part of the Content Owner Representatives, the Participating ISPs, and the public in the accuracy and security of the Methodologies. If a Content Owner Representative Methodology is found by the Independent Expert to be fundamentally unreliable, the Independent Expert shall issue a  confidential finding of inadequacy (“Finding of Inadequacy”) to the affected Content Owner Representative to permit the affected Content Owner Representative to modify or change the Methodology for review.

The selection of the Independent Expert shall require approval by a majority of the members of the Executive Committee. The Content Owner Representatives and the Participating ISPs agree to provide reasonable cooperation to the Independent Expert and provide to the Independent Expert a copy of their respective Methodologies, and any technical or other information reasonably related to their respective Methodologies needed to undertake this review process. As a condition of retention, the Independent Expert shall agree in writing to keep confidential any proprietary or other confidential information provided by the Content Owner Representatives and the Participating ISPs as part of the Independent Expert’s review. The Content Owner Representatives and each Participating ISP shall exchange general descriptions of their respective Methodologies upon request.

At the direction of CCI, the Independent Expert may consult with each Content Owner Representative or Participating ISP concerning the implementation and ongoing operation of that Representative’s or ISP’s Methodology. In addition, the Independent Expert will (i) review the Methodologies with recognized privacy experts agreed to by a majority of the Executive Committee and (ii) recommend enhancements to the Methodologies as appropriate to address privacy issues, if any, identified by the privacy experts. Failure to adopt a recommendation of the Independent Expert shall not amount to a breach under this Agreement. The Independent Expert’s recommendations must be shared with each of the Content Owner Representatives and the affected Participating ISP, but may not be disclosed to other parties, including Participating ISPs other than the affected Participating ISP, without the express written permission of each Content Owner Representative and the affected Participating ISP and any disclosure to such other third parties shall not include any proprietary or otherwise confidential information of the Content Owner Representative(s) or Participating ISP affected.

C. The Content Owner Representatives may send notices pursuant to this Agreement and the implementation agreements described in Section 5(A) of this Agreement (the “Implementation Agreements”) to the Participating ISPs of instances of alleged P2P Online Infringement (each an “ISP Notice”), and the Participating ISPs shall accept and process such notices involving the Participating ISPs’ Subscribers (such Content Owner Representative and Participating ISP actions being, together, a “Notice Process”).

The Content Owner Representatives agree to generate ISP Notices only for instances of P2P Online Infringement identified through the use of the Content Owner Representative Methodologies that have been reviewed and evaluated by the Independent Expert, and that have not been issued a Finding of Inadequacy. For purposes of generating ISP Notices, the Content Owner Representatives further agree to focus on instances of P2P Online Infringement involving files or data consisting primarily of infringing material or containing unauthorized copyrighted works in complete or substantially complete form and to avoid instances of P2P activity in which de minimis amounts of allegedly infringing material are incorporated into files or data consisting primarily of non-infringing material.

The Content Owner Representatives will also endeavor to generally send the ISP Notices within twenty-four (24) hours of confirmed identification of the alleged activity described in the ISP Notice. ISP Notices shall be generated and sent solely by the Content Owner Representatives or their service providers (including on behalf of the Participating Content Owners Group, the Independent Content Owners (as defined in Section 5(C) below), the RIAA Group’s members’ distributed labels and those entities set forth in Attachment D hereto). The individual members of the Participating Content Owners Group; IFTA and A2IM; the Independent Content Owners (as defined in Section 5(C) below); the RIAA Group’s members’ distributed labels; and those entities set forth in Attachment D hereto shall not generate or send ISP Notices.

D. The Content Owner Representatives agree that each ISP Notice provided to a Participating ISP as part of the Notice Process shall clearly identify: (i) the copyrighted work that allegedly has been infringed and the owner of such work; (ii) a description of the basis upon which the notifying Content Owner  representative or its agent asserts the right to enforce the particular affected copyright on behalf of the person or entity who owns or controls the copyright and/or exclusive distribution rights in the copyright (a “Copyright Owner”); (iii) a statement that the notifying Content Owner Representative or its agent has a good faith belief that use of the material is not authorized by the Copyright Owner, its agent, or the law; (iv) a statement that the information in the ISP Notice is accurate and that, under penalty of perjury, the Content Owner Representative is authorized to act on behalf of the Copyright Owner whose rights were allegedly infringed; and (v) technical information necessary for the Participating ISP to identify the Subscriber (e.g., IP address, date, time and time zone of the alleged P2P Online Infringement, and such additional information as may be necessary as the Participating ISPs transition to IPv6). The Content Owner Representatives and the Participating Content Owners Group agree that all notices of P2P Online Infringement generated by them or on their behalf and delivered to the Participating ISPs shall meet the requirements for ISP Notices hereunder, shall comply with the terms hereof and shall be governed exclusively by this Agreement and the Implementation Agreements.

E. Reserved.

F. Each Participating ISP agrees to communicate the following principles in its Acceptable Use Policies (“AUP”) or Terms of Service (“TOS”): (i) copyright infringement is conduct that violates the Participating ISP’s AUP or TOS and for which a Subscriber may be legally liable; (ii) continuing and subsequent receipt of Copyright Alerts (as defined in Section 4(G) below) may result in the Participating ISP taking action by the application of Mitigation Measures (as defined in Section 4(G)(iii) below); and (iii) in addition to these Mitigation Measures, the Participating ISP may also adopt, in appropriate circumstances, those measures specifically authorized by section 512 of the Digital Millennium Copyright Act (“DMCA”) and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination, except that nothing in this Agreement alters, expands, or otherwise affects any Participating ISP’s rights or obligations under the DMCA.

G. Each Participating ISP will develop, implement and independently enforce a Copyright Alert program as described in this Section 4(G) (each such program a “Copyright Alert Program”), provided that each Participating ISP shall not be required to exceed the notice volumes pertaining to its Copyright Alert Program as established in Section 5 of this Agreement. Each Participating ISP’s Copyright Alert Program will be triggered by the Participating ISP’s receipt of an ISP Notice that can be associated with a Subscriber’s account and will result in the Participating ISP sending one (1) or more alert notices to the applicable Subscriber concerning the ISP Notice, as further described below (each such alert notice a “Copyright Alert”).

Each Participating ISP’s Copyright Alert Program shall be comprised of six (6) Copyright Alerts, except that a Participating ISP may elect to send a single Educational Step Copyright Alert (as defined in Section 4(G)(i) below). However, to give an affected Subscriber time to review each Copyright Alert pertaining to such Subscriber’s account and to take appropriate steps to avoid receipt of further Copyright Alerts, a Participating ISP and its Subscriber will be afforded a grace period of seven (7) calendar days after the transmission of any Copyright Alert before any additional Copyright Alerts will be directed to the account holder (the “Grace Period”). The same Grace Period shall apply following the sending of a Mitigation Measure Copyright Alert (as described in Section 4(G)(iii) and (iv) below) and during the pendency of any review requested by a Subscriber following the receipt of either such Copyright Alert. During such Grace Period, any further ISP Notices received by the Participating ISP that the Participating ISP determines to be associated with the applicable Subscriber’s account will be handled as described in sub-paragraphs (i), (ii), (iii), and (iv) below.

Each Participating ISP shall use commercially reasonable efforts to develop a Copyright Alert Program in accordance with this Section 4(G), and shall work in good faith to complete all technical development work necessary for implementation of its Copyright Alert Program by a target launch date set forth in the applicable Implementation Agreement (each Participating ISP’s target launch date referred to herein as its “Copyright Alert Program Launch Date”).

Each Participating ISP’s Copyright Alert Program shall be substantially similar to the following four (4) step sequential framework, which shall include an educational step (the “Initial Educational Step”), an acknowledgement step (the “Acknowledgement Step”), a mitigation measures step (the “Mitigation Measures Step”), and a post mitigation measures step (the “Post Mitigation Measures Step”) as further described below. Under this framework, each Participating ISP will send Copyright Alerts with escalating warning language to Subscribers who are the subject of continuing ISP Notices. Specifically, each Participating ISP (1) shall send the Subscriber up to two (2) Copyright Alerts during the Initial Educational Step; (2) shall send two (2) more Copyright Alerts during the Acknowledgement Step; (3) shall send one (1) Mitigation Measure Copyright Alert (as defined in Section 4(G)(iii) below) during the Mitigation Measures Step and shall apply the specified Mitigation Measure (as defined in Section 4(G)(iii) below), subject to the Subscriber’s right to challenge (or the Participating ISP’s discretion to waive) the Copyright Alert(s) at this step; and (4) during the Post Mitigation Measures Step, shall send one (1) Mitigation Measure Copyright Alert and shall apply the specified Mitigation Measure, and may, at the Participating ISP’s sole discretion, send additional Mitigation Measure Copyright Alerts and apply additional Mitigation Measures, subject to the Subscriber’s right to challenge Copyright Alerts at this step.

Each Participating ISP’s Copyright Alert Program shall follow the following format:
(i) Initial Educational Step: Upon receipt of an ISP Notice associated with a Subscriber’s account and taking into account the parameters of the Grace Period (if applicable), the Participating ISP shall direct a Copyright Alert to the account holder (an “Educational Step Copyright Alert”). The Educational Step Copyright Alert shall notify the Subscriber of receipt of an ISP Notice alleging P2P Online Infringement and shall include, at a minimum, the information contained in the ISP Notice regarding the alleged infringement and shall inform the Subscriber that: (a) copyright infringement is illegal as well as a violation of the Participating ISP’s AUP or TOS, (b) users of the Subscriber’s account must not infringe copyrighted works, (c) there are lawful methods of obtaining copyrighted works, (d) continuing and subsequent receipt of Copyright Alerts may result in the Participating ISP taking action by the application of Mitigation Measures, (e) in addition to these Mitigation Measures, the Participating ISP may also adopt, in appropriate circumstances, those measures specifically authorized by section 512 of the DMCA and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination, (f) the Subscriber will have an opportunity to challenge any Copyright Alerts associated with the Subscriber’s account before a Mitigation Measure is applied and may therefore wish to preserve records or information that could be used to show that the Subscriber’s conduct was non-infringing, and (g) additional information regarding the Copyright Alert program may be found at CCI’s web site.

The number of Educational Step Copyright Alerts shall be at the discretion of the Participating ISP, not to exceed two (2) Copyright Alerts per Subscriber account, taking into account the parameters of the Grace Period. The second  Educational Step Copyright Alert shall note specifically that it is in fact the Subscriber’s second Educational Step Copyright Alert.

If the Participating ISP receives one (1) or more additional ISP Notices attributable to such Subscriber’s account during the Grace Period associated with one of the Educational Step Copyright Alerts, the Participating ISP may at its discretion emphasize the educational and warning nature of its Copyright Alert Program by directing to the account holder additional Copyright Alerts that are similar in style to the Educational Step Copyright Alert. Such supplemental Copyright Alerts sent during the Grace Period shall not count toward the limit of two (2) Educational Step Copyright Alerts.

(ii) Acknowledgement Step: At the Acknowledgement Step, upon receipt of further ISP Notices determined to be associated with a Subscriber’s account and taking into account the parameters of the Grace Period, the Participating ISP shall direct two (2) Copyright 1/ The Parties acknowledge and agree that the  limitations on ISP liability under the DMCA are conditioned on an ISP’s adoption and reasonable implementation of a policy that provides for the termination in appropriate circumstances of subscribers and account holders who are repeat infringers (“DMCA Termination Policy”).

Notwithstanding the foregoing, (1) this Agreement does not and is not intended to create any obligation on a Participating ISP to adopt, implement, enforce, or otherwise take any action in furtherance of a DMCA Termination Policy; (2) the adoption, implementation, enforcement, or other action in furtherance of a DMCA Termination Policy is not part of any step of the Copyright Alert program or enforceable under this Agreement; and (3) entering into this Agreement is not, by itself, intended to address whether a Participating ISP has adopted and reasonably implemented a DMCA Termination Policy. This Agreement does not and is not intended to establish any legal inference regarding any ISP that does not participate in the Copyright Alert program or to address whether or not any ISP has adopted and reasonably implemented a DMCA Termination Policy. All references in this Agreement to the possibility of termination of a subscriber account are intended solely as an informational element of the Copyright Alerts required by the Copyright Alert program.

Alerts to the account holder that, as further described below, will require acknowledgement of receipt (but not require the user to acknowledge participation in any allegedly infringing activity) (each such Copyright Alert an “Acknowledgement Step Copyright Alert”). Each such Acknowledgement Step Copyright Alert shall state that the Subscriber, by acknowledging the notice, agrees immediately to cease, and/or agrees to instruct other users of the Subscriber’s account to cease infringing conduct, if any exists.

Each such Copyright Alert shall also state that, upon receipt of lawful process requiring production of records or pursuant to a qualifying claim that the Subscriber has made via the Independent Review Program (as defined in Section 4(H) below and Attachment C hereto), the Participating ISP may provide relevant identifying information about the Subscriber and the Subscriber’s infringing conduct to third parties, including Content Owner Representatives or their agents and law enforcement agencies.

The mechanism provided for the Subscriber to acknowledge an Acknowledgement Step Copyright Alert may be in the form of a) a temporary landing page to which the Subscriber’s browser is directed prior to permitting general access to the Internet (“Landing Page”) that shall state that the Subscriber has received prior warnings regarding P2P Online Infringement, and shall require the user of the Subscriber’s account to acknowledge receipt by clicking through the page prior to accessing additional web pages, (b) a “pop-up” notice which shall be designed to persist until the user of the Subscriber’s account acknowledges receipt by clicking through the pop-up notice, or (c) such other format as determined in the Participating ISP’s reasonable judgment which shall require acknowledgement of receipt of the Acknowledgement Step Copyright Alert.

If the Participating ISP receives one (1) or more additional ISP Notices attributable to such Subscriber’s account during the Grace Period associated with one of the Acknowledgement Step Copyright Alerts, the Participating ISP may at its discretion emphasize the educational and warning nature of its Copyright Alert Program by directing to the account holder additional Copyright Alerts that are similar in style to the Educational Step Copyright Alert or the Acknowledgement Step Copyright Alert. Such supplemental Copyright Alerts sent during the Grace Period shall not count toward the limit of two (2) Acknowledgement Step Copyright Alerts.

(iii) Mitigation Measures Step: At the Mitigation Measures Step, upon receipt of further ISP Notices determined to be associated with a Subscriber’s account and taking into account the parameters of the Grace Period, the Participating ISP shall direct a Copyright Alert (a “Mitigation Measure Copyright Alert”) to the account holder that (a) requires acknowledgement of receipt of the Copyright Alert as described in the Acknowledgement Step, (b) shall state that the Subscriber has received prior warnings regarding alleged P2P Online Infringement, and (c) informs the Subscriber that, per the Participating ISP’s AUP and/or TOS and as set forth in prior Copyright Alerts, additional consequences shall be applied upon the Subscriber’s account as described more fully in this subparagraph (iii) (each such measure a “Mitigation Measure”).

The Mitigation Measure Copyright Alert shall set forth the specific Mitigation Measure to be applied and shall inform the Subscriber that, unless the Subscriber has requested review under one of the dispute resolution mechanisms specified in Section 4(H) below, the Participating ISP shall apply the selected Mitigation Measure after the expiration of a notice period of ten (10) business days or fourteen (14) calendar days from the time the Mitigation Measure Copyright Alert is delivered. The term of the notice period (i.e., ten (10) business days or fourteen (14) calendar days) shall be at the Participating ISP’s discretion. If no review is requested by the Subscriber, the Participating ISP shall apply the specified Mitigation Measure on the applicable Subscriber’s Internet access service account after such ten (10) business day or fourteen (14) calendar day period has expired.

The Mitigation Measure applied at the Mitigation Measures Step shall be one of the following, determined by the Participating ISP and applied in a manner reasonably calculated, in the Participating ISP’s reasonable discretion, to help deter P2P Online Infringement: (a) temporary reduction in uploading and/or downloading transmission speeds; (b) temporary step-down in the Subscriber’s service tier to (1) the lowest tier of Internet access service above dial-up service that the Participating ISP makes widely available to residential customers in the Subscriber’s community, or (2) an alternative bandwidth throughput rate low enough to significantly impact a Subscriber’s broadband Internet access service (e.g., 256 – 640 kbps); (c) temporary redirection to a Landing Page until the Subscriber contacts the Participating ISP to discuss with it the Copyright Alerts; (d) temporary restriction of the Subscriber’s Internet access for some reasonable period of time as determined in the Participating ISP’s discretion; (e) temporary redirection to a Landing Page for completion of a meaningful educational instruction on copyright; or (f) such other temporary Mitigation Measure as may be applied by the Participating ISP in its discretion that is designed to be comparable to those Mitigation Measures described above. Participating ISPs shall not be obligated to apply a Mitigation Measure that knowingly disables or is reasonably likely to disable a Subscriber’s access to any IP voice service (including over-the-top IP voice service), e-mail account, or any security service, multichannel video programming distribution service or guide, or health service (such as home security or medical monitoring) while a Mitigation Measure is in effect.

The foregoing provisions notwithstanding, the Participating ISP will retain the discretion, on a per Subscriber account basis, (a) to decide whether appropriate circumstances exist to waive such Mitigation Measure (a “Waiver”), provided that the Participating ISP will only issue one (1) such Waiver per Subscriber account, or (b) instead of applying the Mitigation Measure specified in the Mitigation Measure Copyright Alert, to apply an alternate Mitigation Measure on the Subscriber’s Internet access service account and to so inform the Subscriber.

If the Participating ISP elects to use a Waiver, the Participating ISP will direct to the account holder a final warning (a “Fifth Warning Copyright Alert”) that will contain each of the elements contained in the Mitigation Measure Copyright Alert as described in this Section 4(G)(iii) and will inform the Subscriber that, in the event that the Participating ISP receives one (1) or more further ISP notices from a Content Owner Representative, the Subscriber’s Internet access service account will be subject to a Mitigation Measure per the Participating ISP’s AUP and/or TOS and as set forth in prior Copyright Alerts, unless the Subscriber requests review under one of the dispute resolution mechanisms specified in Section 4(H).

If, after the expiration of the Grace Period following issuance of a Fifth Warning Copyright Alert, a Participating ISP receives one (1) or more further ISP Notices determined to be related to a Subscriber’s account for which a Waiver has been granted, the Participating ISP will proceed with the transmission of a Mitigation Measure Copyright Alert and the associated activities described above.

(iv) Post Mitigation Measures Step: In the event that a Participating ISP receives a further ISP Notice determined to be associated with a Subscriber’s account after a Mitigation Measure has been applied on that Subscriber’s account, the Participating ISP shall direct a further Mitigation Measure Copyright Alert to the account holder and after ten (10) business days or fourteen (14) calendar days, as applicable, either re-apply the previous Mitigation Measure or apply a different Mitigation Measure, unless the Subscriber requests review under one of the dispute resolution mechanisms specified in Section 4(H).

The Mitigation Measure Copyright Alert at this step shall also inform the Subscriber that the Subscriber may be subject to a lawsuit for copyright infringement by the Copyright Owners and that continued infringement may, in appropriate circumstances, result in the imposition of action consistent with section 512 of the DMCA and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination. Upon completion of the Post Mitigation Measures Step, a Participating ISP may elect voluntarily to continue forwarding ISP Notices received for that Subscriber account, but is not obligated to do so.

The Participating ISP will, however, continue to track and report the number of ISP Notices the Participating ISP receives for that Subscriber’s account, so that information is available to a Content Owner Representative if it elects to initiate a copyright infringement action against that Subscriber.

(v) Reset: If a Participating ISP does not receive an ISP Notice relating to a Subscriber’s account within twelve (12) months from the date the Participating ISP last received an ISP Notice relating to that same Subscriber’s account, (a) the next ISP Notice associated with that Subscriber’s account shall be treated as the first such ISP Notice under the provisions of this Copyright Alert Program and the Subscriber may be afforded an additional Waiver as set forth in Section 4(G)(iii) above; and (b) the Participating ISP may expunge all prior ISP Notices and Copyright Alerts from the Subscriber’s account.

(vi) Transmission of Copyright Alerts to Subscribers: Copyright Alerts should be directed by the Participating ISP to the account holder by means that are designed to ensure prompt receipt (e.g., via email, physical mail, auto-dialer notification, ISP account management tool pop-ups requiring user click through, electronic or voice communications with Subscribers or such other means of delivery as the Participating ISP deems commercially practicable), and the Participating ISP shall design such Copyright Alerts in a manner reasonably calculated, in the Participating ISP’s discretion, to be received by the Subscriber.

Each Copyright Alert after the initial Educational Step Copyright Alert will include the educational and general information required in the Educational Step Copyright Alert and in any other Copyright Alerts that were forwarded to the Subscriber after the Educational Step, together with a summary of the pertinent information regarding the alleged P2P Online Infringement related to prior ISP Notices or a link or other mechanism by which the Subscriber can access or obtain such information. Each Participating ISP will provide the form of its Copyright Alerts to the Independent Expert as part of the Independent Expert’s review of each Participating ISP’s Methodology, and will in good faith consider any suggestions from the Independent Expert.

(vii) Notification of Ability to Request Review: Copyright Alerts directed to account holders at the Mitigation Measures Step and the Post Mitigation Measures Step shall inform the Subscriber of the Subscriber’s ability to request review within ten (10) business days or fourteen (14) calendar days, as applicable, under one of the dispute resolution mechanisms described in Section 4(H). If the Subscriber requests such review, the Participating ISP shall, upon receiving notice of the request for such review and pending a final decision via the chosen dispute resolution mechanism, defer taking any further action under its Copyright Alert Program.

H. Independent Review Program: (i) A Subscriber may seek review of a Mitigation Measure Copyright Alert via the dispute resolution program set forth in Attachment C (the “Independent Review Program”) or as otherwise permitted in the Participating ISP’s AUP or TOS or as permitted by law, at the election of the Subscriber. The Independent Review Program shall allow for the Subscriber to remain anonymous to the Content Owner Representatives and the members of the Participating Content Owners Group, except in cases where the Subscriber elects a defense in which the Subscriber’s identity will be disclosed.

The decision from the Independent Review Program shall be binding on the Parties solely for purposes of the Notice Process and the affected Copyright Alert Program but shall have no force or effect beyond the Notice Process and the affected Copyright Alert Program, and shall not be deemed to adjudicate any rights outside of this limited context. In any judicial proceeding between a Subscriber and a Copyright Owner concerning subject matter that is or has been the subject of the Independent Review Program, as provided in the procedures governing the Independent Review Program, neither the Subscriber nor the Copyright Owner shall seek to enter into evidence, or otherwise refer to or cite, either the fact of the Independent Review or any outcome of the Independent Review.

(ii) The costs of establishing and administering the Independent Review Program shall be borne fifty percent (50%) by the Participating Content Owners Group and fifty percent (50%) by the Participating ISPs.

I. Generation of Monthly Reports: Within ten (10) business days of the end of each calendar month during the term of this Agreement, each Participating ISP shall provide reporting of non-personally identifiable information to the Content Owner Representatives identifying, on an anonymized basis and in the format set forth in the Participating ISP’s Implementation Agreement, information about those Subscribers who have received Copyright Alert(s) during the applicable calendar month and the total number of alleged P2P Online Infringements by each such Subscriber. Such reporting may be done via Automated Copyright Notification System (“ACNS”) standards or other available methods as mutually agreed in the Participating ISP’s Implementation Agreement. The Parties may not (i) use or disclose such data to governmental entities (absent lawful process) or other third parties, unless prior approval for each such use or disclosure is received from a majority of the CCI Executive Committee and the data is disclosed only on an aggregated, anonymized basis, or (ii) use such reports or any of the data that is included in or may be extrapolated from such reports to attempt to obtain the identity of a Subscriber; except that (1) the Parties may use the reports or data to analyze the effectiveness of the Copyright Alert program; and (2) the Content Owner Representatives or any other member of the  participating Content Owners Group may use such reports or data as the basis for seeking a Subscriber’s identity through a subpoena or order or other lawful process. For the avoidance of doubt, the Parties agree that the Content Owner Representatives may share such reports with the other members of the participating Content Owners Group, provided such Parties agree to abide by the limitations set forth in this Section 4(I).

5. Technical Operations; Implementation Agreements

A. The Content Owner Representatives and each Participating ISP (and the members of the Participating Content Owners Group, as necessary) will work together in good faith to establish and agree upon standardized forms and procedures for a Notice Process (for example, by incorporating ACNS or other mutually agreeable standard(s), and endeavoring to include identification of Methodologies used, if practical). The foregoing sentence notwithstanding, the Parties acknowledge that a common interface between the Content Owner Representatives and the Participating ISPs may not be technically or financially practical. The Content Owner Representatives and each Participating ISP (and the members of the Participating Content Owners Group, as necessary) will document the standards contemplated in this Section 5(A), notice volumes, and other pertinent details concerning the technical operation of the Notice Process and Copyright Alert Program between the Content Owner Representatives and the applicable Participating ISP in an Implementation Agreement. The Content Owner Representatives and the Participating ISPs shall agree to a form of the Implementation Agreement, including the terms and conditions of such agreement, that shall be used by all of the Participating ISPs. Each Participating ISP and the Content Owner Representatives (and the members of the  participating Content Owners Group, as necessary) shall make reasonable efforts to execute their Implementation Agreement no later than three (3) months after the Effective Date (as defined in Section 8(A) below).

B. Reserved.

C. The MPAA Group and the RIAA Group will allocate the number of ISP Notices that each shall be entitled to send to each Participating ISP per month (i) on behalf of their members, the RIAA Group’s members’ distributed labels, and those entities set forth in Attachment D hereto; and (ii) on behalf of independent record labels and film production companies that are members of the American Association of Independent Music (“A2IM”) and the Independent Film and Television Alliance (“IFTA”), respectively (collectively, the “Independent Content Owners”), provided that IFTA, A2IM, and the Independent Content Owners (as applicable) agree to be bound by written agreement (for so long as such agreement remains in effect) to the terms set forth in Sections 4(C), 4(D), 4(H)(i), 4(I), 5(A), 5(C), 6, 7, 8, 9(E), 9(F), and 10 of this Agreement that apply to all members of the Participating Content Owners Group (collectively or individually) and certain designated provisions of each Participating ISP’s Implementation Agreement as set forth therein.

D. Each Participating ISP may temporarily cease processing ISP Notices or reduce the number of ISP Notices being processed if, in the sole discretion of the Participating ISP, (i) the Participating ISP receives more ISP Notices than its business processes and systems can reasonably address, (ii) the Participating ISP receives more calls from Subscribers regarding Copyright Alerts than its designated customer service representatives can reasonably address (taking into account the other demands on Participating ISP customer service representatives for unrelated purposes), or (iii) other demands on the Participating ISP’s business processes and systems, such as requests from law enforcement, must be given precedence. If the Participating ISP temporarily ceases processing ISP Notices for any of the foregoing reasons, the Participating ISP shall promptly notify the Content Owner Representatives, subject to any limitations on such notice as may be imposed in law or regulation, and shall work cooperatively with the Content Owner Representatives and, if agreed by all affected Parties, the Independent Expert, to resolve any issues relating to the over-provisioning of ISP Notices.

6. Consent to Receive Notices
A. Entry into this Agreement by a Participating ISP shall constitute consent by that Participating ISP to receive ISP Notices from the Content Owner Representatives (or their service providers) on behalf of the Participating Content Owners Group, those entities set forth in Attachment D (as such attachment may be amended from time to time) (or in the case of the RIAA Group, on behalf of the RIAA Group’s members’ distributed labels), and the Independent Content Owners upon implementation by the Participating ISP of its Copyright Alert Program, subject to all of the terms and limitations set forth in this Agreement and the Participating ISP’s Implementation Agreement. The members of the Participating Content Owners Group may change from time to time upon mutual written agreement of the Parties, provided that MPAA and RIAA shall remain Parties to this Agreement and, provided further, that in no event shall such changes increase the notice volumes applicable to each Participating ISP under this Agreement and each Participating ISP’s Implementation Agreement, unless this Agreement or the Participating ISP’s Implementation Agreement is modified with the written consent of the Participating ISP to increase the number of ISP Notices that may be sent. Nothing in this Agreement shall require a Participating ISP to accept notices from any third party or restrain it from doing so. No ISP Notices or other notices of P2P Online Infringement directed to Subscribers shall be sent to the Participating ISP by or on behalf of the members of the Participating Content Owners Group, the Independent Content Owners, and those entities set forth in Attachment D of this Agreement (as such attachment may be amended from time to time) (or in the case of the RIAA Group, on behalf of the RIAA Group’s members’ distributed labels) except pursuant to this Agreement and the Participating ISP’s Implementation Agreement.

B. Prior to the Copyright Alert Program launch date for the applicable Participating ISP, such Participating ISP shall continue to process notices concerning P2P Online Infringement in accordance with such Participating ISP’s then current policies or practices or, if applicable, agreements with any member of the Participating Content Owners Group.

7. Force Majeure
No Party shall be liable to any other Party for any delay, failure in performance, loss or damage due to fire, explosion, interruption of power supplies, earthquake, flood, the elements, strike, embargo, labor disputes, failure of public transit or other public infrastructure, acts of civil or military authority, war, terrorism, acts of God, acts of the public enemy, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond such Party’s reasonable control, whether or not similar to the foregoing and whether or not the Parties contemplate such circumstances at the time of entering into this Agreement.

8. Term; Withdrawal
A. This Agreement shall become effective upon the date all of the Parties have executed this Agreement (the “Effective Date”). This Agreement shall remain in effect for a period of four (4) years following the Effective Date.

B. Any Party may withdraw as a Party from this Agreement prior to its expiration (i) if such Party reasonably determines that continued participation in this Agreement is not technically, commercially, operationally or otherwise practical; (ii) if such Party is subject to a complaint before any administrative agency, court, or other governmental entity challenging the lawfulness of the Copyright Alert program, a Participating ISP’s Copyright Alert Program, the Agreement, or an Implementation Agreement to which it is a party or any conduct taken under such agreements or programs; (iii) if another Party to this Agreement is subject to a complaint before any administrative agency, court, or other governmental entity challenging the lawfulness of the Copyright Alert program, a Participating ISP’s Copyright Alert Program, or the Agreement or any conduct taken under such agreements or programs; or (iv) if a government entity enacts or establishes a government-sponsored program or judicial, administrative, or executive process concerning P2P Online Infringement that imposes materially different obligations than those set forth in this Agreement.

9. Records and Evaluation
A. Consistent with its general policies and business practices for retaining Internet access service subscriber records, each Participating ISP agrees to keep reasonable records pertaining to its Copyright Alert Program. Each Participating ISP also agrees to use reasonable efforts to provide semi-annual reports to CCI of the results of its Copyright Alert Program, which shall include, in an aggregated, anonymized form, nonpersonally identifiable information regarding the ISP Notices received and Copyright Alerts sent and such other aggregated, anonymized data as the Participating ISPs may from time to time agree to provide.

B. Consistent with its general policies and business practices for retaining records regarding Online Infringement, each Content Owner Representative agrees to keep reasonable records pertaining to its participation in the Notice Process under this Agreement including records of the Methodology(ies) currently and previously in use and the effective date(s) of such use. Each Content Owner Representative agrees to use reasonable efforts to provide semi-annual reports to CCI of the results of its Notice Process, which shall include, in an aggregated, anonymized form, non-personally identifiable information regarding the ISP Notices sent to the Participating ISPs concerning activities relating to P2P Online Infringement by the Participating ISPs’ Subscribers and such other aggregated, anonymized data as the Content Owner Representatives may from time to time agree to provide. Such reports shall be in a form to be determined by each Content Owner Representative in its discretion.

C. CCI shall keep confidential all records and data relating to the Notice Process and Copyright Alert Programs. None of the records and data relating to the Notice Process and Copyright Alert Programs shall be made publicly available by CCI without prior approval by a majority of the Executive Committee.

D. CCI shall review on an annual basis, beginning on the twelve (12) month anniversary of the Effective Date and occurring each subsequent year thereafter on the anniversary of the Effective Date, the number of Copyright Alerts sent by the Participating ISPs to each Subscriber’s account at each step of the Copyright Alert Programs. Based on the information that CCI receives from the Participating ISPs and the Content Owner Representatives, pursuant to Sections 9(A) and 9(B), in order to assess the effectiveness of the Copyright Alert program, CCI shall assess among other things (i) the proportion of Subscribers of each Participating ISP who ceased receiving Copyright Alerts at each step of the Copyright Alert Program; (ii) the average overall number of P2P Online Infringements detected for Content Owner Representative assets over a weekly or monthly period (in general, and by Participating ISP); (iii) the number of ISP Notices received and the number of corresponding Copyright Alerts sent; (iv) the number and percentage of individual Subscribers who, after receiving one (1) or more Copyright Alerts, did not receive additional Copyright Alerts corresponding to their accounts (in general, and by Participating ISP); (v) the number of Subscribers who requested a review under the Independent Review Program, and at what step they requested it; and (vi) the number and percentage of Independent Reviews which resulted in a decision in favor of the Subscriber – and why such decisions were made. As part of its annual review, CCI shall also examine whether Copyright Alerts are successfully reaching account holders. The Parties shall consider in good faith any recommendations made by CCI resulting from such review and assessment.

E. The Content Owner Representatives, those members of the Participating ontent Owners Group and Independent Content Owners selected by the Content Owner Representatives, and the Participating ISPs shall establish a working group under the auspices of CCI, which will consist of appropriate representatives of each Party, who will meet regularly (at least quarterly during the eighteen (18) months following the Effective Date and then at least semi-annually thereafter) to assist in the initiation and implementation of this Agreement, assess its ongoing operation, and thereafter recommend to the Parties on a non-binding basis any suggested amendments to this Agreement to improve its scope or effectiveness. The working group may consult with the Independent Expert as appropriate.

F. CCI shall maintain any reports or other information provided by any Party hereunder in the strictest confidence and shall not disclose such reports or information to any third party or any Party other than the Party which originated the report or information, absent written consent from the originating Party or as otherwise required by law. In the event CCI receives a subpoena or other legal process seeking the disclosure of such reports or information, CCI shall immediately notify the Party whose reports or information is subject to the subpoena or other legal process and provide such Party with the opportunity to seek a protective order or otherwise to oppose disclosure. If authorized by the Executive Committee, CCI shall also seek a protective order or oppose disclosure.

10. Miscellaneous
A. The Content Owner Representatives, the members of the Participating Content Owners Group, the Independent Content Owners, and the Participating ISPs appreciate that alternatives to obtaining and sharing music, movies, and other copyrightprotected works by means other than unlawful digital distribution should be encouraged. The Content Owner Representatives will undertake appropriate efforts to ensure the widespread communication of lawful alternatives for consuming content through online distribution methods and encourage the public to utilize these alternatives. Each Participating ISP will, via Copyright Alerts and other avenues, encourage Subscribers to seek legal alternatives to obtain copyrighted materials.

B. This Agreement shall be governed by the laws of the State of New York, without regard to any conflict of law principles. The Parties hereby consent to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, New York over any judicial proceedings arising out of or related to this Agreement and agree that all claims in respect of such judicial proceedings shall be heard in such state or federal courts in the Borough of Manhattan, New York. The Parties further agree that any such proceeding shall be filed in the United States District Court for the Southern District of New York if such court has jurisdiction over the proceeding.

C. Nothing expressed or implied in this Agreement is intended, or may be construed, to confer upon or give any person or entity other than the Parties hereto any rights or remedies hereunder. This Agreement may only be amended by written agreement signed by all Parties hereto.

D. This Agreement is subject to any laws or regulations that may be enacted by Congress or adopted by the Federal Communications Commission (or any other federal or state administrative, regulatory or legislative body). If any future law or regulation makes unlawful any provision of this Agreement, that provision will be severed from this Agreement. If any Participating ISP, Content Owner Representative, or member of the Participating Content Owners Group reasonably concludes that such invalidated provision is material to the Agreement or that severing such provision is otherwise impracticable, such Party may immediately terminate its participation in the Agreement.

E. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.

F. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations or discussions, and all past dealings or industry customs between the parties relating to the subject matter hereof.

G. This Agreement may be executed in two or more counterparts and duplicate originals, each of which will be deemed an original and all of which together
will constitute one and the same instrument. An executed copy of this Agreement transmitted via facsimile or email by the executing party and received via facsimile or email by the other party shall have the same legal force as an executed original version of this Agreement.

H. The waiver by a party of any breach of this Agreement by the other party in a particular instance shall not operate as a waiver of subsequent breaches of the same or different kind. Failure of a party to exercise any rights under this Agreement in a particular instance shall not operate as a waiver of such party’s right to exercise the same or different rights in subsequent instances.
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Agreed as of July 6, 2011:

The Motion Picture Association of America, Inc.
By:
Name:
Title:

The Recording Industry Association of America, Inc.
By:
Name:
Title:

Walt Disney Studios Motion Pictures
By:
Name:
Title:

Paramount Pictures Corporation
By:
Name:
Title:

Sony Pictures Entertainment Inc.
By:
Name:
Title:

Twentieth Century Fox Film Corporation
By:
Name:
Title:

Universal City Studios LLC
By:
Name:
Title:

Warner Bros. Entertainment Inc.
By:
Name:
Title:

UMG Recordings, Inc.
By:
Name:
Title:

Warner Music Group
By:
Name:
Title:

Sony Music Entertainment
By:
Name:
Title:

EMI Music North America
By:
Name:
Title:

SBC Internet Services, Inc., BellSouth Telecommunications, Inc., Southwestern Bell Telephone Company, Pacific Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, Nevada Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc., The Southern New England Telephone Company, and BellSouth Telecommunications, Inc. (the AT&T Inc. companies)
By:
Name:
Title:

Verizon Online LLC, Verizon Online LLC – Maryland, and Verizon OnlinePennsylvania Partnership (the Verizon companies)
By:
Name:
Title:

Comcast Cable Communications Management, LLC
By:
Name:
Title:

CSC Holdings, LLC
By:
Name:
Title:

Time Warner Cable Inc.
By:
Name:
Title:

Attachment A – Participating ISPs
The Participating ISPs are the following: SBC Internet Services, Inc., BellSouth Telecommunications, Inc., Southwestern Bell Telephone Company, Pacific Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, Nevada Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc., The Southern New England Telephone Company, and BellSouth Telecommunications, Inc. (the AT&T Inc. companies); Verizon Online LLC, Verizon Online LLC – Maryland, and Verizon Online Pennsylvania Partnership (the Verizon companies); Comcast Cable Communications Management, LLC; CSC Holdings, LLC (solely with respect to its cable systems operating in New York, New Jersey, and Connecticut) (the Cablevision systems); and Time Warner Cable Inc.

Attachment B – Participating Content Owners Group
The members of the Participating Content Owners Group are the following:
1. MPAA and the following MPAA members: Walt Disney Studios Motion Pictures, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc., and their successors and assigns.
2. RIAA and the following RIAA members: UMG Recordings, Inc., Warner Music Group, Sony Music Entertainment, and EMI Music North America, and their
successors and assigns.

Attachment C – Independent Review Program
The Independent Review Program described below is intended to provide an alternative, fast, efficient and low-cost means for Subscribers and Copyright Owners to obtain independent resolution of genuine disputes that may occur in connection with the Copyright Alert program outlined in the Agreement. Its purpose is to provide a Subscriber with a non-exclusive procedure to seek review of Copyright Alerts associated with the Subscriber’s account in the event a Mitigation Measure is about to be applied on the Subscriber’s account.

The Independent Review process shall be just one avenue of appeal for Subscribers challenging such measure. This Independent Review process does not prevent Subscribers or Copyright Owners from addressing disputes through the courts, and that is the proper forum for addressing issues that are beyond the scope of this Independent Review process.

1. Grounds for Independent Review.

Once a Subscriber has received a Copyright Alert stating that a Mitigation Measure is about to be applied, the Subscriber may request an Independent Review of that Copyright Alert and prior Copyright Alerts (as described in paragraph 4.1.4) on the following grounds:
(i) Misidentification of Account – that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.
(ii) Unauthorized Use of Account – that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented.
(iii) Authorization – that the use of the work made by the Subscriber was authorized by its Copyright Owner.
(iv) Fair Use – that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.
(vi) Misidentification of File – that the file in question does not consist primarily of the alleged copyrighted work at issue.
(vii) Work Published Before 1923 – that the alleged copyrighted work was published prior to 1923.

All determinations shall be made by an independent “Reviewer” as described below, and
the determinations shall have the effect set forth herein.

2. Standard of Review.

2.1. Misidentification of Account. A Subscriber shall prevail on this defense if the Participating ISP’s and/or Copyright Owner’s records indicate, upon Independent Review, that a factual error was made in (1) identifying the IP address at which the alleged copyright infringement occurred and/or (2) correlating the identified IP address to the Subscriber’s account. In reviewing the Participating ISP’s or Copyright Owner’s records, automated systems for capturing IP addresses or other information in accordance with Methodologies have a rebuttable presumption that they work in accordance with their specifications, unless the Independent Expert’s review of any such Content Owner Representative Methodology resulted in a Finding of Inadequacy in which event such rebuttable presumption shall not apply to such Content Owner Representative Methodology.

2.2. Unauthorized Use of Account. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates that the alleged activity was the result of unauthorized use of the Subscriber’s account by someone who is not a member or invitee of the household (e.g., via an unsecured wireless router or a hacked Internet connection) of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented. The foregoing sentence notwithstanding, the Reviewer may in his or her discretion conclude that a Subscriber is entitled to prevail under this defense despite the Subscriber’s failure to secure a wireless router if the Reviewer otherwise concludes that the Subscriber adequately and credibly demonstrates that the alleged activity was the result of unauthorized use of the Subscriber’s account by someone who is not a member or invitee of the household of which the Subscriber was unaware. In determining whether this standard has been satisfied, the Reviewer shall consider the evidence in light of the educational messages previously provided by the Participating ISP. Except as set forth herein, this defense may be asserted by a Subscriber only one (1) time to give the Subscriber the opportunity to take steps to prevent future unauthorized use of the Subscriber’s account. Any subsequent assertion of this defense by a Subscriber shall be denied as barred, unless the Subscriber can show by clear and convincing evidence that the unauthorized use occurred despite reasonable steps to secure the Internet account and that the breach of such security could not reasonably have been avoided.

2.3. Authorization. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates with written or other documented evidence that the Subscriber’s alleged activity was actually specifically authorized by the Copyright Owner or its authorized representative. Such written or other documented evidence typically must include a true and unaltered copy of the agreement or communication asserted to grant the claimed authorization. Such evidence shall not be deemed adequate and credible if, among other things, (i) the evidence on its face does not support a claim of authorization, (ii) the evidence does not appear authentic, or (iii) a reasonable person in the Subscriber’s position would not have concluded that the communication was in fact authorizing the specific use made of the work and that such authorization came from the actual Copyright Owner or by someone authorized to act on his/her behalf. The defense shall fail if the Copyright Owner has demonstrated: (x) that the specific use of the work made by the Subscriber was not in fact authorized by the Copyright Owner; (y) if the alleged authorization did not come directly from the Copyright Owner, that the person purporting to grant authorization was not authorized to act on behalf of the Copyright Owner for purposes of authorizing the specific use made of the work by the Subscriber; or (z) that the documentary evidence submitted by the Subscriber likely is not authentic or has been altered in a material manner.

2.4. Fair Use. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates fair use of the copyrighted work under prevailing principles of copyright law (which shall be identified as described in section 6).

2.5. Misidentification of File. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates that a factual error was made in identifying the file at issue as consisting primarily of the alleged copyrighted work. In making this determination, the Content Owner Representative Methodology used to identify the file shall have a rebuttable presumption that it works in accordance with its specifications, unless the Independent Expert’s review of any such Content Owner Representative Methodology resulted in a Finding of Inadequacy in which event such rebuttable presumption shall not apply to such Content Owner Representative Methodology.

2.6. Work Published Before 1923. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates that the alleged copyrighted work in question was actually published prior to 1923.

3. Effect of Decision.

If the Reviewer’s decision is in favor of the Subscriber for a particular Copyright Alert, that Copyright Alert shall be deemed invalid, the filing fee described in paragraph 4.1.6 shall be promptly refunded to the Subscriber, and the Participating ISP shall remove that Copyright Alert from the Subscriber’s account records and refrain from applying any Mitigation Measures based on the invalidated Copyright Alert(s). All other Copyright Alerts shall remain valid, and shall count toward future Mitigation Measures. If the Reviewer’s decision for a particular Copyright Alert is in favor of the Copyright Owner, that Copyright Alert shall be deemed valid, and if applicable, the Mitigation Measure shall be applied promptly. The Reviewer’s decision will be binding solely for the purposes of the Copyright Alert program. By participating in the Independent Review, the Subscriber, the Participating ISP, and the Copyright Owner agree to waive all rights to challenge the Reviewer’s decision for purposes of the Copyright Alert program. The Reviewer’s decision shall have no effect outside of the Copyright Alert program, shall not act as res judicata or collateral estoppel or any similar bar, and shall not have any precedential impact for other Independent Reviews with respect to other Subscribers within the Copyright Alert program. In any judicial proceeding between a Subscriber and a Copyright Owner concerning subject matter that is or has been the subject of Independent Review, neither the Subscriber nor the Copyright Owner shall seek to enter into evidence, or otherwise refer to or cite, either the
fact of the Independent Review or any outcome of the Independent Review.

4. Independent Review Procedure.

4.1. How to Initiate an Independent Review.

4.1.1. ACIR Form. When the Participating ISP sends a Copyright Alert stating that the Subscriber’s account is subject to a Mitigation Measure, the Participating ISP will also make available to the Subscriber access to an online Application to Commence Independent Review (“ACIR”) form and related materials. The ACIR form and related materials will permit the Subscriber to review all of the Copyright Alerts applicable to the Subscriber’s account that have not previously been subject to review, as further described in paragraph 4.1.4. The ACIR form will identify all of the information necessary for the Subscriber to invoke an Independent Review, including each defense asserted as to each work identified in a Copyright Alert under review, and also include space for provision of the Subscriber’s contact information.

4.1.2. Authorization. The ACIR form will contain an authorization by the Subscriber to disclose relevant personal information to the Reviewer and to the Participating ISP. Such information includes: (1) information contained on the ACIR form, (2) information in the Participating ISP’s possession, custody or control identifying the Subscriber or relating to any Copyright Alert sent to the Subscriber by the Participating ISP concerning alleged infringement, (3) information regarding the Participating ISP’s matching of the IP address in an ISP Notice to the Subscriber’s account, and (4) details of actions taken or proposed to be taken as Mitigation Measures by the Participating ISP with respect to the Subscriber’s account. Except as explained in the next sentence or as required by judicial order or other legal process, all Subscriber personal information will be held in confidence and not disclosed to the Copyright Owner. If the Subscriber’s defense is based on authorization, then the Reviewer may, in his or her discretion, disclose to the Copyright Owner only such personal information concerning the Subscriber as is reasonably necessary to permit the Copyright Owner to rebut a claim of authorization if that information is required for such purposes. The ACIR form will contain an authorization by the Subscriber to disclose relevant personal information to the Copyright Owner in the circumstances described in the immediately preceding sentence.

4.1.3. Information Required. The Subscriber must (1) identify the defenses asserted as to each work identified in each Copyright Alert at issue by checking the proper boxes on the ACIR form, (2) explain the specific basis for each defense, and (3) provide the corresponding back-up material to support such grounds. In the case of a defense of authorization, the ACIR form must be accompanied by the applicable written or other documented evidence that the Subscriber’s alleged activity was specifically authorized by the Copyright Owner or its authorized representative, as described in paragraph 2.3. In the case of a defense of fair use, the ACIR form must (1) be accompanied by a true and unaltered copy of each content file that the Subscriber asserts to be a fair use under prevailing principles of copyright law; and (2) an explanation of each use the Subscriber made of the file, including any distribution or downloading identified in the Copyright Alert(s), and the basis for claiming each such use as a fair use.

4.1.4. Copyright Alerts Subject to Review. The Subscriber shall have the right to invoke Independent Review for the last Copyright Alert sent as well as prior Copyright Alerts, provided that the right to have a particular Copyright Alert reviewed shall be waived if that right is not invoked the first time the Copyright Alert becomes eligible to be reviewed. Accordingly, when a Subscriber first receives a Mitigation Measure Copyright Alert, the Subscriber may invoke the Independent Review process as to any prior Copyright Alert, but if any of those Copyright Alerts is not reviewed at that time it will thereafter be unreviewable.

4.1.5. Multiple Works Identified in a Copyright Alert. In cases in which a Copyright Alert alleges infringing activity with respect to multiple works, the Independent Review process may be invoked by a Subscriber only if the Subscriber offers a defense as to every work cited in the Copyright Alert. A Copyright Alert will be considered valid and provide a basis for the application of a Mitigation Measure if the Subscriber is found to have no valid defense as to any one work cited in the Copyright Alert, unless the Independent Review establishes a pattern of invalid allegations in the Copyright Alert sufficient to cast substantial doubt on the Copyright Alert’s remaining allegations.

4.1.6. Filing Fee. The Subscriber shall be required to pay a filing fee of thirty-five dollars ($35) in order to invoke the Independent Review, unless the Subscriber qualifies for a waiver or reduction in the filing fee in accordance with the procedures of the Administering Organization (as defined in paragraph 5.1 below). This fee will be refunded to the Subscriber in the event that the Reviewer decides in favor of the Subscriber as to any Copyright Alert eligible for review.

4.1.7. Deadline. The ACIR form, related materials and filing fee (“ACIR Package”) must be submitted electronically within ten (10) business days after receipt of the relevant Copyright Alert. Except as contemplated in paragraph 5.6 below, failure to properly submit an ACIR form by the due date shall be deemed a waiver of the right to seek Independent Review regarding the applicable Mitigation Measure.

4.1.8. Submission of ACIR Package. The Subscriber must submit the ACIR Package to the Administering Organization. The Administering Organization shall immediately send a copy of the ACIR Package to the applicable Participating ISP.

4.1.9. Effect of Filing for Independent Review. A Subscriber’s filing of the ACIR form stays implementation of any Mitigation Measure. A Subscriber’s failure to file an ACIR or otherwise challenge an allegation of copyright infringement shall not be construed as an admission or waiver in any other forum or context.

4.2. Process for Independent Review.

4.2.1. Selection of Reviewer. All Independent Reviews shall be resolved by one (1) individual serving as an independent Reviewer. The Reviewer will be selected by the Administering Organization from a panel of neutrals, as further described in paragraph 5.2.

4.2.2. Initial Review of ACIR Package. A Reviewer will review the ACIR package within five (5) business days of receipt to determine whether it is substantially complete. To be considered substantially complete, (1) the ACIR Package must include a substantially completed ACIR form; (2) the ACIR form must assert a defense as to each work identified in the relevant Copyright Alert subject to Independent Review; (3) for each defense asserted as to each work, the ACIR Package must include sufficient information as described in paragraph 4.1.3 to permit the Independent Review to proceed meaningfully and to potentially result in a decision in favor of the Subscriber; and (4) the ACIR Package must include the required payment as provided in paragraph 4.1.6. If the ACIR Package is not substantially complete, the case will be denied. The first time an ACIR Package is denied, such a denial shall be without prejudice to afford the Subscriber one additional opportunity to correct any mistakes or omissions in the ACIR Package. In such a case, the Reviewer shall notify the Subscriber of the relevant defects and afford the Subscriber five (5) business days to remedy the defects by submitting a substantially complete ACIR Package. Otherwise (except as provided in paragraph 5.6 below), such a denial shall be with prejudice. Either a denial without prejudice that is not remedied within 5 business days or a denial with prejudice shall have the same effects as a denial on the merits (see section 3).

4.2.3. Verification that Defense of Unauthorized Use of Account is not Barred. In the case of any defense of unauthorized use of account, the Reviewer’s initial review will also consider whether that defense is barred because the Administering Organization’s records indicate that the Subscriber previously asserted that defense in another Independent Review. If so, the defense shall be denied, unless the Subscriber can show by clear and convincing evidence that the  unauthorized use occurred despite reasonable steps to secure the Internet account and that the breach of such security could not reasonably have been avoided. If for any reason the Administering Organization’s records are inconclusive as to this question, the Reviewer will request clarification from the Participating ISP pursuant to paragraph 4.2.4.

4.2.4. Collection of Standard Information from Participating ISP and Copyright Owner. If the ACIR Package is substantially complete, the Reviewer will, if needed, request standard relevant information from the Participating ISP and/or Copyright Owner to assess the grounds for review. Details of the standard information to be provided by the Participating ISP and/or Copyright Owner for different types of defenses shall be determined by mutual agreement of representatives of the Administering Organization, Participating ISPs and Copyright Owners as implementation proceeds, with the goal of having provision of this standard information be a straightforward and largely automated process. In the case of a defense of misidentification of account, information to be provided by the Participating ISP is anticipated to consist of information in the Participating ISP’s possession, custody, or control relating to (1) ISP Notices received by the Participating ISP and matched to the Subscriber’s account, (2) Copyright Alerts sent to the Subscriber by the Participating ISP, and (3) the Participating ISP’s matching of IP addresses on ISP Notices received by the Participating ISP to the Subscriber’s account. Information to be provided by the Copyright Owner is anticipated to consist of all or part of the evidence package(s) (i.e., information relating to the alleged access to copyrighted material) for one (1) or more Copyright Alerts that are the subject of the Independent Review. The Participating ISP and Copyright Owner, as applicable, will provide the relevant information to the Reviewer within ten (10) business days after receipt of the request.

4.2.5. First Substantive Review. Within five (5) business days from receipt of the relevant standard information from the Participating ISP and/or the Copyright Owner, the Reviewer will review the case record substantively to determine if additional information from the Participating ISP and/or Copyright Owner is required, or whether it is apparent without soliciting further information that the Subscriber will not prevail as to all works cited in any one (1) or more Copyright Alerts.

4.2.6. Supplemental Information. The Reviewer shall have the discretion to request supplemental information from the Participating ISP, Copyright Owner or Subscriber within the five (5) business day period referred to in paragraph 4.2.5, if such information would likely be material to a just resolution of the Independent Review. If the Reviewer makes such a request, the applicable party(ies) shall have ten (10) business days to respond. If the Subscriber asserts a defense of authorization or fair use and the Reviewer determines that the defense may have merit, then the Copyright Owner shall receive all relevant information about the defense from the Reviewer and be afforded an opportunity to provide evidence to rebut the defense within ten (10) business days from receipt of such information. Such information shall include (1) in the case of a defense of authorization, all substantiating evidence and explanation submitted by the Subscriber as to each relevant work and the Subscriber’s identifying information, unless the Reviewer concludes that the Copyright Owner does not need to know the identity of the Subscriber to evaluate the Subscriber’s claim that his or her activity was authorized; and (2) in the case of a defense of fair use, the content file submitted by the Subscriber as to each relevant work and an explanation of why the Subscriber believes each use of that content file to be a fair use.

4.2.7. Final Assessment and Issuance of Decision. Within ten (10) business days of receipt of all requested information, including any supplemental information provided pursuant to paragraph 4.2.6, or passage of the relevant time to provide supplemental information in the event no supplemental information is received, the Reviewer shall assess the complete case record and enter a final decision. In doing so, the Reviewer shall determine the relevance, materiality and weight of all evidence based on the available record. The proceedings will take place exclusively on the written record, and there shall be no live hearings. For a Copyright Alert alleging infringement of multiple copyrighted works, in order to find in favor of the Subscriber with respect to the Copyright Alert, the Reviewer must consider and find in favor of the Subscriber as to a defense for each individual work referenced in the Copyright Alert or must find a pattern of invalid allegations in the Copyright Alert sufficient to cast substantial doubt on all allegations in the Copyright Alert. Upon reaching a final decision, the Reviewer will notify the Subscriber, Participating ISP and Copyright Owner of the outcome, and if the decision is a denial of the Subscriber’s defense, the Reviewer will also include a short description of the rationale for the denial.

4.2.8. Withdrawal of Notice by Copyright Owner. A Copyright Owner may withdraw an ISP Notice at any time during the Independent Review process, which shall have the same effect as a finding for the Subscriber as to the withdrawn Copyright Alert (see section 3).

4.2.9. Communications Among Parties. Except as specifically described in these rules (e.g., in the case of requests for information as described in paragraphs 4.2.4 and 4.2.6), there will be no communication between the Reviewer and the Participating ISP, Copyright Owner or Subscriber concerning the Independent Review. There is to be absolutely no discovery between the parties to the dispute, and no party shall have any obligation to respond to any request for information or to provide any particular information, except as described herein.

5. Administration of Independent Review Process.

5.1. In General. The Independent Review process shall be coordinated by the administering organization selected by the CCI Executive Committee  “Administering Organization”). The Independent Review process shall be governed exclusively by these rules.

5.2. Selection of Reviewers. The Administering Organization shall have mechanisms for establishing a panel of neutrals and for ensuring their continuing neutrality, their compliance with these rules, and their adherence to the governing principles of copyright law as provided in section 6. Reviewers must be lawyers, but need not necessarily have the legal or case management expertise that would qualify them to act as arbitrators of more complex disputes in a broader-ranging alternative dispute resolution process. The Administering Organization shall provide Reviewers training in this Independent Review process and governing principles of copyright law determined as described in section 6. Reviewers may be staff employees of the Administering Organization if the volume of disputes subject to the Independent Review process so warrants.

5.3. Automation. The Administering Organization shall implement automated processes for managing the workflow of cases proceeding through the  Independent Review process, including means for seeking and obtaining information from Participating ISPs and Copyright Owners in a manner that minimizes the associated workload on Participating ISPs and Copyright Owners and is automated to the maximum extent practicable.

5.4. Records of Subscriber History of Invoking Independent Review. The Administering Organization will maintain a secure database of Subscribers’ history of invoking the Independent Review process, which will be available to Reviewers when evaluating future disputes involving the relevant Subscribers. Thus, for example, it should be possible for a Reviewer to determine from this database whether a Subscriber has previously asserted a defense of unauthorized use of account, and a Reviewer may consider a Subscriber’s Independent Review history in evaluating the credibility of claims under review.

5.5. Recordkeeping and Review. The CCI Executive Committee and Administering Organization will establish processes for (1) maintaining records concerning proceedings, (2) periodically reviewing anonymous, aggregated information about issues and outcomes so that trends can be identified and addressed if warranted, and (3) confidentially auditing decisions for purposes of evaluating the performance of Reviewers and the Administering Organization. Except to the extent necessary to maintain records of outcomes of proceedings for purposes of operation and review of the Independent Review process or as otherwise expressly set forth herein, Reviewers shall not prepare written decisions in the cases they decide. The Parties to the Agreement agree to negotiate in good faith as to adjustments in the Independent Review process if such adjustments are warranted by actual experience in operating the Independent Review process.

5.6. Provision of Information. Fair and efficient administration of the Independent Review process depends upon timely provision of information requested by the Reviewer at various steps of the process, as described in paragraph 4.2. Whenever these rules set forth a timeframe for provision of information requested by the Reviewer, the Reviewer may grant reasonable extensions of such period (not to exceed ten (10) business days) for substantial good cause shown. In the absence of the requested information at the deadline for providing the same, the following provisions will apply:

5.6.1. Delays in Providing Standard Information. If the Reviewer properly requests a standard package of information from a Participating ISP or Copyright Owner, as described in paragraph 4.2.4, and the Participating ISP or Copyright Owner does not provide the requested information as to some or all claims or works on a timely basis, (1) the Reviewer shall promptly notify the Participating ISP or Copyright Owner and the Participating ISP or Copyright Owner shall have a further five (5) business days to provide the requested information; and (2) the Administering Organization shall reflect such deficiency in reports to be provided periodically to the CCI Executive Committee. Recurring failure of a Participating ISP or Copyright Owner to provide requested standard information during the initial period identified in paragraph 4.2.4, in other than isolated instances, will be considered a breach of its obligations under the Agreement. If a Participating ISP or Copyright Owner does not provide available requested information within a further five (5) business days, (a) the dispute will proceed to the next step of decision making based on the available record without such information, giving the Subscriber the benefit of any doubt concerning the missing requested information; (b) the Administering Organization shall reflect such deficiency in reports to be provided periodically to the CCI Executive Committee; and (c) the Participating ISP or Copyright Owner will be considered in breach of its obligations under the Agreement.

5.6.2. Delays in Providing Supplemental Information. If the Reviewer properly requests supplemental information from a Participating ISP, Copyright Owner or Subscriber pursuant to paragraph 4.2.6, and the Participating ISP, Copyright Owner or Subscriber does not provide the requested information as to some or all claims or works on a timely basis, the dispute will proceed to the next step of decision making based on the available record without such information. If the Reviewer believes that the position of a party to the proceeding other than the one that has failed to provide the requested information is otherwise meritorious, the Reviewer shall give such party the benefit of any doubt concerning the missing requested information.

6. Legal Principles to Be Applied in Independent Review.

The Independent Review process will, to the extent relevant, apply prevailing legal principles as determined by United States federal courts. The Administering Organization will commission an accepted, independent expert on copyright law, who is approved by the CCI Executive Committee, to outline prevailing legal principles of fair use for purposes of deciding defenses of fair use, and any other legal principles necessary for resolution of issues within the scope of this Independent Review process. Such outline will be updated from time to time as necessary. If additional material questions of law arise as the Independent Review process is implemented, they may be referred to an accepted, independent expert approved by the CCI Executive Committee as needed. The Administering Organization will advise the Parties to the Agreement of issues referred to, and principles determined by, such an expert, and provide a process for the Parties to the Agreement to provide input concerning the issues, so as to ensure that the expert’s determinations are fullyinformed and reflect prevailing law as determined by United States federal courts.

Attachment D – MPAA Member Company Affiliates

The MPAA member companies’ affiliates are entities under the control of an MPAA member company. For purposes of this Attachment D, “control” is defined as (1) the ownership of at least fifty percent (50%) of the equity or beneficial interest of the controlled entity, (2) the right to vote for or appoint a majority of the board of directors or other governing body of such entity (if the board or governing body may exercise authority with less than a majority, then the right to vote or appoint the number of directors necessary to exercise that authority), or (3) the right or authority to grant, approve or withhold, directly or indirectly, financial resources necessary to the operation of the controlled entity. As of the Effective Date of this Agreement, the following entities are MPAA member company affiliates:
 Disney Enterprises, Inc., entities controlled, directly or indirectly, by Disney Enterprises, Inc. (together, “Disney Enterprises Entities”), and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by Disney Enterprises Entities.
 Fox Entertainment Group, Inc., entities controlled, directly or indirectly, by Fox Entertainment Group, Inc., (together, “Fox Entertainment Entities”) and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by Fox Entertainment Entities.
 NBCUniversal Media LLC, entities controlled, directly or indirectly, by NBCUniversal Media LLC, (together, “NBCU Entities”) and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by NBCU Entities.
 Sony Pictures Entertainment Inc., entities controlled, directly or indirectly, by Sony Pictures Entertainment Inc. (together, “SPE Entities”), and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by SPE Entities.
 Turner Entertainment Networks, Inc., entities controlled, directly or indirectly, by Turner Entertainment Networks, Inc. (together, “Turner Entities”), and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by Turner Entities.
 Viacom, Inc., entities controlled, directly or indirectly, by Viacom, Inc. (together, “Viacom Entities”), and such other entities as have authorized the foregoing to send notices on their behalf with respect to works distributed by Viacom Entities.
 Walt Disney Studios Motion Pictures, entities controlled, directly or indirectly, by Walt Disney Studios Motion Pictures (together, “Walt Disney Studios Entities”), and such other entities as have authorized the foregoing to send notices on their behalf with respect to works distributed by Walt Disney Studios Entities.
 Warner Bros. Entertainment Inc., entities controlled, directly or indirectly, by Warner Bros. Entertainment Inc. (together, “Warner Bros. Entities”), and such other entities as have authorized the foregoing to send notices on their behalf with respect to works distributed by Warner Bros. Entities.

THE CRIMINAL CLASS

Jammie, and Tanya Andersen, and Patti Santangelo, and Rae-Jay Schwartz and Marie Lindor are only five of the people brutalised by RIAA lawyers in American courts of law.

But every single one of the 40,000 people who have received RIAA subpoenas has sat back in shock, wondering how they can possibly take on a hugely wealthy Vivendi Universal, EMI, Warner Music and Sony Music with their immense legal, financial and political resources?

The answer is: they can’t. And having failed with its earlier salvos, the entertainment industries are about to go down the same path.

Jon Newton – p2pnet

I’ll try to do a better job in a follow-up.

In the meanwhile, it now appears the RIAA and the MPAA are teaming up in a collusive “Memorandum of understanding” for ISPs, which calls for the signing ISPs to assist the Big 4 record companies and the Big 6 motion picture companies in enforcing their copyrights, in ways never contemplated by the Digital Millenium Copyright Act, says my friend Ray Beckerman in Recording industry vs the people, going on, “I haven’t had time to analyze it yet (it’s 36 pages), but at first glance it made me kind of ill, in that it appeared to:

- violate the antitrust laws of the federal government and of various states,
- constitute abuse of copyright,
- expand the lawful copyright monopoly into an unlawful monopoly,
- overlook the First Amendment,
- overlook the fair use defense and other defenses afforded by copyright law,
- conflict with the Digital Millennium Copyright Act.”

Ray in turn credits Bruce Gain, an investigative tech writer.

The Age also as has a post on the memorandum.

Jon Newton – p2pnet

p2pnet view P2P | RIAA News | Entertainment |

The basic overview was that Jeffrey Clair for the U.S. Council, and Paul Clement, a prior solicitor general (can you say revolving door?) voiced their arguments based on Williams that allows them to circumvent violating the 7th Amendment concerning Statutory Damages Provision to excess. Mr Clair argued that Remittitur was not even an option that should be heard by the court, and that the excessive damages do not create a Constitutional issue.

Mr Clement, however, was much more colorful in framing the debate around the devastation the recording industry has suffered, and apparently it is all Joel’s fault. He completely side stepped the issue of performance rights violations and focused on the distribution angle. “It’s taking copyrighted work and putting it in the public domain”, he stated. He wrongly advised the court that ALL file sharing technology forces you to share a folder, thus making available.

One of the judges called him on this by asking, “is making available equate to distribution?” He quickly moved the argument over to Joel’s behavior being reprehensible and “we [RIAA] are devastated by file sharing distribution”, making it sound like the entire music industry’s woes are due to Joel downloading 30 songs. “We have technology that could prove distribution, your honor, but the defendant admitted his guilt, so that is proof enough”, “we can prove it, we just don’t know how many times the work in question was distributed”, he continued.

If you can prove it, then why can you not know how many times, and for which work was infringed upon? I would say you can’t. The EFF got to speak, a Ms Jule Aarons, who seemed scared shitless, again affirmed the defenses taken by Joel and others. Because Joel endured a civil trial, there was no jury, only during the damages portion of his trial was there a jury, and the EFF was not allowed to participate in education of the jury. Joel’s motion for fair use was denied, he was not allowed any witness, there was no proof provided by the plantiffs, and the EFF brief to the jury was denied because the plaintiffs argued that would be considered nullification.

Nesson spoke, what a beatnik, anyway, he started his 3 minutes quoting some obscure, irrelevant book, and then goes on to accuse the RIAA of “[they] articulate the statute as expansively as possible in their own interests”. That in 1909 Statutory Damages were introduced for commercial infringement ONLY, there was even a menu of specific infringements and specific damages for each. Even after the amendment in 1976, they changed the ranges of damages, removed the menu, and still maintained the target was commercial infringement, and not to bankrupt consumers. He compared willful file sharing to willful jaywalking.

It was good to actually sit thru the hearing and listen to these bright minds spew mindless drivel arguing that screwing over our customers with astronomical damage awards is just fine, nothing new here. The level of audacity heard in the plaintiffs voices is unmistakable. I believe the Constitution is clear on this, and that the Statutory Damages Provision was implicitly designed for commercial infringement.

File sharing is copyright infringement, nothing more, a civil offense. It is not theft, it is not even a lost sale. The rhetorical propaganda, outright lies of damages, and the abundance of self worth has done nothing to help an industry in the spirals of death. As more and more real research is done on the affects of file sharing, less and less of it is being heard, considered, or even reviewed during any copyright legislation.

So the question remains, will Joel be responsible for $675,000 in damages the greedy RIAA are demanding, or will he owe $67,500 that Judge Gertner imposed, or will the 1st Circuit Court reduce it to $30, which is what Joel believes he owes.

Stay Tuned…

surfer – p2pnet
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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

Use free p2pnet newsfeeds for your site. Subscribe to p2pnet.net | rss feed: http://p2pnet.net/feed

The people who are supposed to act for us act only for themselves.

Now >>>

Operation Payback Web IRC

Target: www.Riaa.com 7PM est

http://pastehtml.com/view/1c90u81.html

“p2pnet was the first to reveal Vivendi Universal, EMI, Warner Music and Sony Music, directly and via their appendages and their RIAA, figured LimeWire owed them not thousands, not millions, not billions, but trillions of dollars”, we posted this morning.

“If anyone has ever wondered if Vivendi Universal, EMI, Warner Music and Sony Music and their RIAA have lost it, they should wonder no more”, we said at the time, going on >>>

“The corks were popping over in LaLa land”, said p2pnet in the middle of May.

That was because judge Kimba Wood had ruled LimeWire infringes copyright.

Now it looks as though one Kelly M. Klaus of Munger, Tolles & Olson, yet another RIAA posse, wants Wood to order LimeWire owner Mark Gorton to pay $1,500,000,000,000 for 200,000,000 alleged downloads, at $750 per.

To whom? To Arista Records, Atlantic Recording, BMG Music, Capitol records, Electra Entertaiment, Interscope Records, Motown Recording, Priority Records, LaFace Records, Sony BMG (?), UMG Recordings and Warner Bros Records.

That’s one point five trillion dollars.

If you think that’s ridiculous, bear in mind the labels were once awarded almost $2 million because Jammie Thomas-Rasset allegedly downloaded 24 copyrighted songs.

It seems, however, we got the amount wrong.

Now, “Does $75 trillion even exist?” – asks  the American Lawyer >>>

“The thirteen record companies that are suing file-sharing company Lime Wire for copyright infringement certainly thought so”, it says. “When they won a summary judgment ruling last May they demanded damages that could reach this mind-boggling amount, which is more than five times the national debt.”

The Big 4 had demanded damages ranging from $400 billion to $75 trillion, arguing Section 504(c)(1) of the Copyright Act “provided for damages for each instance of infringement where two or more parties were liable”, says the post, continuing Manhattan federal district court judge Kimba Wood “held that the damage award would be staggering under this interpretation”

“As defendants note, plaintiffs are suggesting an award that is ‘more money than the entire music recording industry has made since Edison’s invention of the phonograph in 1877″, she wrote,  labelling the damages request ‘absurd’ and contrary to copyright laws, limiting damages to one damage award per work.

American Lawyer has LimeWire’ attorney, Joseph Baio joking the money would be better spent on paying for health care, or wiping out the US national debt.

The damages trial begins on May 2, it says.

Stay tuned …

Follow me on Twitter.

March, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

Use free p2pnet newsfeeds for your site. Subscribe to p2pnet.net | rss feed: http://p2pnet.net/feed

“Most people wouldn’t go out and steal a shirt from a retailer, or steal a car from a car dealer”, it quotes her February ‘OpEd’ in the Boise State Arbiter Online as saying, going on:

“These people are causing others not to make the money they worked hard for and deserve.”

Other gems >>>

• [...] downloading music raises an ethical question: “Is it stealing?” The answer is yes. Just because it’s easy to do and hard to get caught doing, downloading music from unauthorized sites is stealing.
• Downloading free music is breaking copyright laws, which was exactly the point the Recording Industry Association of America (RIAA) was trying to make by suing LimeWire for copyright infringement. The RIAA is entitled to $150,000 for each registered work infringed. The number of infringing works is likely in the millions — which is absolutely too many songs being stolen.
• Copyright laws exist to help protect the artists’ intellectual work, and the people who are making money from the artists’ music, such as the record company, stores that sell the music and the artists themselves.
• According to the International Federation of the Phonographic Industry, 95 percent of music downloaded online is illegal. In hopes of lessening illegal downloading, the RIAA attempted to make an example of LimeWire and scare other companies away from using file sharing.
• It’s one thing for bands to give out their music for free. It’s another when a band who isn’t giving away free music is being stolen from — especially from their so-called “fans.” If these people care about the well-being of their favorite bands and are genuine fans, they’ll take responsibility for their actions and stop stealing music.
• When people download free music, they probably aren’t thinking of all the people they are affecting. According to an analysis by the Institute for Policy Innovation, music piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs are lost with a loss of $2.7 billion in workers’ earnings. People who download free music might as well be laying these workers off themselves.

“”We applaud The Arbiter for publishing this thoughtful piece and encouraging college students to think twice about who pays when music is stolen”, says the RIAA.

The Crime

FACT: File sharing isn’t stealing.

FACT: Eva is a victim of one of the biggest scams ever perpetrated.

Way back in December, 2008, I posted >>>

“When 15 college students recently visited the Tribune editorial board, we asked them if they had committed a certain crime.”

That’s the Chicago Tribune, a respected mainstream newspaper.

So, what crime would that be?

“They all eagerly pleaded guilty,” story goes on. “They illegally download music on the Internet. ”

Ah! The crime of illegal downloading!

Except it isn’t a crime. Neither is file sharing.

Copyright infringement might come into it. But even that’s only a civil matter, although Vivendi Universal, EMI, Warner Music, Sony BMG and their RIAA have spent billions of dollars convincing the likes of the Chicago Tribune it’s a ‘crime’ of a similar magnitude to rape and murder.

Sharing does not equal stealing

“The Recording Industry Association of America says 7.8 million U.S. households a month steal music online,” says the story. “That means singers, songwriters, musicians, producers and others don’t get compensated for their work.”

Actually, it means nothing of the sort.

Sharing does not equal stealing. No exchange of money is involved and no one, least of all the Big 4, has been permanently or temporarily deprived of something it, or they, used to own.

Nor has it caused “singers, songwriters, musicians, producers” to lose income.

The Institute for Policy Innovation, “a pro-business think tank, says illegal music sharing costs the U.S. economy $12.5 billion a year,” says the story, the implication being the IPI is a credible organisation whose statements and statistics should be taken seriously.

However, “think tank” is incorrect. It’s another organisation that’s in many ways akin to the marketing firm NPD Group, which regularly and routinely pumps out highly questionable ( to be charitable) statistics which ‘prove’ the Big $ and their RIAA are making headway in their battle to sue music lovers into becoming compliant corporate cash cows.

Nothing could be further from the truth.

On file sharing, “The music industry’s preferred method of fighting this — filing large lawsuits against a tiny percentage of downloaders — has earned the RIAA plenty of bad publicity, with little deterrent effect,” says the Chicago Tribune, continuing, “The RIAA seems finally to have realized that. It announced last week that it would stop filing lawsuits against individual music thieves — in favor of other, more creative deterrents.”

Making piracy ‘irrelevant’

Creative? Not at all.

The RIAA has merely stolen an idea originated by Hollywood’s MPAA, and which it still uses: get ISPs to act as corporate copyright cops.

Meanwhile, “illegal downloading is not as harmless as illegal parking,” opines the newspaper in a mangled comparison.

No matter. “It’s the theft of someone’s work,” says the story. “But if you file 30,000 lawsuits, you hit fewer than four-tenths of 1 percent of the estimated 7.8 million people who illegally download. The RIAA finally sees that it doesn’t need a different enforcement model, it needs a different business model. It needs to make piracy ‘irurelevant,’ [sic] says RIAA President Cary Sherman.”

Where would the RIAA, MPAA, CRIA, IFPI, BPI, so on and etc, be without all these wonderful magic numbers?

“When the RIAA detects a serial downloader, it will notify the person’s ISP,” story goes on. The ISP will, “initially ask the downloaders to simply stop, eventually slow down their Internet service and, finally, cut them off.”

The RIAA hopes.

And 30,000 lawsuits? Actually, that’s subopenas, a subpoena being a piece of paper, not a court case. And it’s probably more like 40,000.

However, subpoenas are excellent for terrorising innocent men, women and children and, “Most of the targets, faced with the prospect of attorneys fees and ruinous financial judgments, settle and agree to pay,” says the Chicago Tribune in another industry inspired exaggeration

The RIAA never releases numbers on precisely how many people settle. But “most” should be “some” because without exception, the RIAA’s innocent victims (not one of them has ever been found guilty of anything in any court) are very ordinary people with very ordinary means. They can no more afford to meet the RIAA’s extortionate ’settlement’ demands than they can pay for adequate legal representation to defend themselves against the legions of highly paid lawyers fielded by the RIAA.

But the object of the exercise is to generate headlines and imply thousands of people have been successfully prosecuted for the non-existent crime of file sharing.

As we said earlier, numbers are magic, especially when they’re supplied by such as the Institute for Policy Innovation and NPD Group.

Creative accounting

What’s the difference between the RIAA, MPAA and BSA? – p2pnet asked recently, answering, rhetorically:

“There is no difference. MPAA means Motion Picture Association of America, RIAA is Recording Industry Association of America and BSA is Business Software Alliance.

“All three are front organizations owned and maintained by vested entertainment and software interests to give the entirely false illusion that they operate in a fair, free and open market place.”

The point was to suggest statistics and claims from any or all of these organizations are often unreliable at best, or completely fabricated at worst.

The music, movie and software cartels claim ‘piracy’ is a Number One problem not only for themselves, but for the world as a whole, I said in a 2006 story.

The industries have, “fabricated a multi-headed monster by turning a simple commercial concept — copyright infringement which in truth, affects only them — into a huge, international conspiracy involving millions of their own innocent customers around the world, and genuine criminal counterfeiters,” I said, continuing »»»

So successful are their continuing dis- and misinformation propaganda campaigns that they’ve been able to use them to dragoon entire governments and police forces into acting as industry enforcers.

However, the cartels are also frequently accused of fabricating statistics upon which they base their claims and according to the Havocscope global index of illicit markets, far from being at the top of the pile, movie and music piracy are way, way down the list, ranking 16th and 20th, respectively.

And even those positions are highly questionable given that in both instances, to reach them, Havocscope relies on statistics tainted more than somewhat by the industries concerned.

The movie industry figures are, for instance, based on, a study released by the Motion Picture Association of America (MPAA), bolstered by further stats from the Institute for Policy Innovation which, starting from an MPAA $6.1 billion claim, says the, total impact of movie piracy in terms of lost jobs and tax revenue costs the US economy $20.5 billion.

But the latter numbers were also put together with, some funding from NBC Universal and the MPAA, says The Washington Post.

And guess where the music statistics come from?

The IFPI (International Federation of the Phonographic Industry), owned by EMI, Warner Music, EMI and Vivendi Unversal, the members of the multi-billion-dollar Big Four Organized Music family who singly and collectively claim they’re being devastated by their own customers who are, they scream, ‘criminals’ and ‘thieves’.

Institute for Policy Innovation

I’d described the IPI study cited by the MPAA as “deeply flawed,” suggesting its attempts to qualify music industry claims that files shared equal sales lost were just so much hogwash.

A Reader’s Write contributed by IPI boss Tom Giovanetti responded, “I love it when someone only gives a cursory scan to a press release and then thinks they can characterize an economic study as ‘deeply flawed’.”

He went on, “Why don’t you at least read the study and then tell us precisely how you think the study is flawed? Why don’t you show some sign of actually familiarizing youself with something before firing off a knee-jerk reaction?

“I challenge you to tell us, from an economic standpoint, how our study is ‘deeply flawed.’ Consider the gauntlet layed down.”

Actually, Tom, I did read it, I answered, “but didn’t see much point in saying anything more than I did,” going on »»»

But since you mention it, I particularly liked the bit where Stephen E. Siwek, the author, says:

In the Motion Picture Piracy study, estimates of the global losses to the U.S. industry from motion picture piracy were available from the extensive piracy survey analysis conducted for the Motion Picture Association of America by L.E.K. Consulting.

Is he referring to The New York Motion Picture & Media Industries: Piracy and the New York Economy (.pdf), prepared for the Motion Picture Association of America (MPAA)?

It’s hard to say: the MPAA comes out with so many of these things. But if that’s the case, the spin is: it’s a definitive document accurately portraying losses incurred by Time Warner, Viacom, Fox, Sony, NBC Universal and Disney due to the ravages of ‘piracy,’ and quoted by the MPAA on its home page.

How accurate is it? Let’s just say statistics produced by Hollywood’s MPAA are generally as fanciful as RIAA (Recording Industry Association of America) facts and figures.

In the RIAA (oops, IPI) study, Siwek goes on:

At this writing, no such comprehensive analysis [as the New York item?] of piracy exists for the recorded music industry. However, many of the underlying building blocks of such an analysis do exist in a variety of industry and trade publications.

For this study, the most important of these sources was 2006 Global Recording Industry in Numbers which is published by the International Federation of the Phonogram Industry (IFPI).

It’d be interesting to know who authored it because the IFPI is, of course, nought but another of the many and various enforcement units used by Warner Music, EMI, Vivendi Universal and Sony BMG, the members of the Big 4 organised music cartel, to present ‘reports’ purpose-written to bolster Big 4 claims, and justify the lawsu9ts they’ve launched their own customers in a bid to: turn them into compliant consumers; and, gain control of online distribution.

In other words, Siwek is using music industry figures to support music industry claims.

And guess who wrote the MPAA’s Motion Picture Piracy study alluded to above?

Yinka Adegoke picked up our p2pnet post and wrote about it in the Reuters Mediafile, saying, All those illegal music downloads don’t just harm the beleagured music industry, they also damage the wider U.S. economy, according to a new report.

Further down, the story says:

The report has already been panned by some doubters who believe it was funded by the music industry.

But IPI spokeswoman Erin Fitch says the report was paid for by its general support funds for Intellectual Property program. Fitch says the thinktank’s policy is not to disclose its sponsors, though she says IPI, which was founded by former Congressman Dick Armey, has worked with the Recording Industry Association of America (RIAA) and could do so in the future.

Well, Yinka, I didn’t actually say I thought it was funded by the music industry. I merely observed:

Confidently expect to see this fulsome and overblown report repeated as incontrovertible fact ad nauseum, and at length and in detail, in the mainstream media, and by various bought-and-paid-for US congresspersons

But since you mention it …

And at the end of his ’study,’ Siwek says:

Economists Incorporated is grateful to the International Intellectual Property Alliance (IIPA) and its member associations for their support and assistance in the drafting of this report. In particular, we would like to thank the staff of the IIPA, including Eric H. Smith and Maria Strong, for their comments. The IIPA is a private sector coalition formed in 1984 to represent the U.S. copyright-based industries in bilateral and multilateral efforts to improve international protection and enforcement of copyrighted materials. These six member associations – the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (I.F.T.A., formerly known as AFMA), the Motion Picture Association of America (MPAA), and the Recording Industry Association of America (RIAA) – represent over 1,300 U.S. companies producing and distributing materials protected by copyright laws throughout the world.

yada yada yada.

All of these outfits are owned by, and represent, heavily vested corporate interests.

But back to the IPI’s deeply flawed study, says another p2pnet reader:

Consider what this would mean if it were true: 12 billlion dollars and 300 million Americans. That means that every man, woman and child, every tiny baby, every 100 year old nursing home patient, every prisioner, every soldier OWES the record industry 40 bucks!

And thats just music. Surely the movie industry, software, and game producers could generate a similar report.

Then there are the lesser crybabies: books, phony handbags, duff Rolex watches, Chinese designer clothing, etc, etc., By the time everybody releases their reports, every last American OWES the economy several hundred bucks. This money would come right outa our pockets and into the coffers of ‘the economy’. So let’s bankrupt the nation for the sake of those poor starving cartels.

Isn’t that what their balony report boils down to?

Stay tuned.

Jon Newton – p2pnet

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Arbiter Online – Illegal downloading: The real cost of ‘free’ music, February 28, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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Unlike the Recording Industry Association of America, owned and operated by Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by a Canadian) elements.

According to the Big 4,  she’s a criminal and a thief who’s now said to owe them 1.5 million dollars for allegedly sharing 24 mp3s on the disgraced Kazaa p2p file sharing app.

That works out to $62,500 for each mp3, none of which would be worth more than 10 or 15 cents per in a real world.

By the same virtue, in a real world, the RIAA would long ago have been disbanded after having been found guilty of extortion and blackmail.

But “the RIAA and the US Department of Justice have filed briefs opposing defendant’s motion to reduce the jury’s award of $1,500,000″, Ray Beckerman points out on Recording Industry vs The People. [RIAA's opposition brief - Department of Justice's opposition brief]

And that’s not all.

“It should be noted that the RIAA’s primary copyright litigation lawyers are now high ranking members of the US Department of Justice”, says Beckerman.

New attorney general

“Just when you thought things couldn’t become any more twisted in the Obushma administration, meet (ex-)Jenner & Block employee Don Verrilli (right)” said p2pnet last spring, going on >>>

If his face seems familiar, it’s because you’ve seen it before.

In Excess Copyright, Canadian copyright lawyer Howard Knopf noted Verrilli “fought and won the Grokster case for the music industry in the US Supreme Court”.

Then, when Obama took over from Bush, Verrilli was named associate deputy attorney general, making him third-in-command in a DoJ now packed with (ex-)RIAA helpers.

He fell in behind another RIAA favourite and (ex-)Jenner & Block employee, namely Tom Perrelli.

Not only but also, he was front and centre on behalf of Vivendi Universal, EMI, Warner Music and Sony Music’s RIAA in the Jammie Thomas-Rasset debacle.

The thrust of the story was: Verrilli might become the new Obama attorney general.

And indeed, that’s now come to pass.

He’ll be in charge of all the other RIAA stalwarts serving on the Obama administration’s DoJ.

Now, in the Jammie Thomas-Rasset vs the DoJ and Big 4 record labels, will justice be done?

No chance.

Jon Newton – p2pnet

Follow me on Twitter.

1.5 million dollars – Pay $1.5 million, Jammie Thomas-Rasset ordered, November 4, 2010
disgraced Kazaa p2p file sharing app – Kazaa, the RIAA and Jammie Thomas: redux, November 5, 2010
Recording Industry vs The People – Kazaa, the RIAA and Jammie Thomas: redux, February 21, 2011
p2pnet – RIAA man nominated as America’s Top Cop, January 25, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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It is estimated that there are currently 17 percent fewer professional musicians in the United States than there were 10 years ago.

While the Internet may offer unparalleled opportunities for musicians to reach global audiences, there are sadly fewer and fewer opportunities for musicians to earn a living from their craft.”

Seventeen percent, eh? Dear oh dear.

BUT —- “Luckily, this is not irreversible or the result of immutable natural laws”, says the RIAA, declaring >>>

We can, and must, create an environment that cherishes creativity, and which provides incentives for investment in the creation of original cultural materials. While there are certainly complicated issues at the margins, the path towards a more accountable online space is straightforward — governments must provide no safe harbors for those who would intentionally profit from the distribution of the creative works of others. There is no place in a responsible cultural ecosystem for companies like Baidu and vKontakte to operate dedicated music services without obtaining licenses from the creators. There is no place for providing services designed to facilitate music theft. And there is certainly no place for allowing enterprises to be built on the back of illegal content, and then to only require them to take down such content when they are notified by the copyright owner. ‘Catch me if you can’ is not a recipe for sustaining American creativity.

Extortion and threats

Reading the quote above, some might come away with the impression the corporate music industry is honest, and run by honest people honestly trying to do their honest best.

However, the truth is somewhat different.

Through the likes of their RIAA which, lest we forget, stands for Recording Industry Association of America, Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but run by a Canadian), have stifled any and all creativity, also suing their own customers, for good measure.

Extortion and threats are just two of the weapons in their arsenals.

In their phony ‘copyright violation’ lawsuits, they went after a dead grandmother, a 10-year-old kid, a woman desperately ill with multiple sclerosis, another woman who didn’t even know how to turn a computer on, etc and so on.

After some 40,000 subpoenas, they ended up with two court cases, both of which were, and are, complete mockeries.

Not for nothing are they and their compadres know as the MAFIAA.

Hoods together with hoods

‘Music icon Tommy James tells all in new book’, was the headline to a My Central Jersey post almost exactly a year ago

But “No, the ‘mob’ in Tommy James’ new autobiography, ‘Me, the Mob and the Music,’ is not a reference to the millions of fans who screamed for his hits, including ‘I Think We’re Alone Now,’ ‘Mony, Mony’ and ‘Crimson and Clover’,” says the post, adding:

“Rather, it’s the underworld mob … guys inclined to beat people up with baseball bats and take more than their fair share of royalties if you happen to be recording for them … that James speaks of.”

“It’s a kind of Mafia-type run business”, NIN’s Trent Reznor told Inquirer Entertainment a year earlier.

In 1986, “record industry executives from around the country arrived in New York to attend a $1,000-a-plate, black-tie ceremony at the Waldorf-Astoria hotel”, said the Los Angeles Times, continuing >>>

They were there to honor the first 10 inductees into the newly established Rock ‘n’ Roll Hall of Fame. But law enforcement authorities detected some visiting executives doing a few other things, too.

Some were on the phone with top East Coast Mafia figures, or meeting with them. Among their contacts was reputed Gambino family boss John Gotti. Federal, state and local authorities noticed the activity while conducting separate undercover investigations of New York organized crime families.

The contacts with Mafia figures had no apparent connection with the Hall of Fame ceremony itself. But the presence in town of so many record executives who had so much to say to mobsters aroused investigators’ suspicions. And they contributed to growing concern that the Mafia, no stranger to the field, had stepped up its activity in the record industry.

Of course, these days, there’s no such thing as the MAFIA.

And the corporate music industry is squeaky clean.

No need to stay tuned.

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ther whines and whinges – The RIAA attacks Canada, February 18, 2011
IIPA BS release – BAAAAD Canada: latest IIPA ‘report’, February 17, 2011
My Central Jersey – Music icon Tommy James tells all in new book, February 24, 2010
Inquirer Entertainment – Trent Reznor, 20 years late, July 13, 2009
Los Angeles Times – Growing Force of Investigators Probes Mob Ties to Record Industry, October 1986.

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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The IIPA (International Intellectual Property Alliance) is touting another of its spurious ‘reports’ and, says the RIAA, quoting from the document, “the Canadian Government has inexplicably consumed yet another year without modernizing its copyright regime, leaving a legal structure in place that is not adequate to respond to present challenges.”

Posted Michael Geist, “This [IIPA] report is what Canadian officials have in mind when they talk about it being driven entirely by U.S. industry.

“There are many aspects worth noting in this year’s report — the criticism of countries like Vietnam and the Philippines for encouraging the use of open source software (the Vietnamese program was established to help reduce software piracy), the criticism of Bill C-32’s digital lock provision that allows cabinet to establish new exceptions (the IIPA would like any new exceptions to be both limited and for a limited time), and the near universal demand that countries spend millions of public dollars on increased policing, IP courts, and public education campaigns.”

It’s interesting that Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by Canadian Edgar Bronfman jr) chose to have their RIAA rather than their CRIA (Canadian Recording Industry Association of America), which is also a member of the IIPA, slander Canada.

No need to stay tuned.

Follow me on Twitter.

spurious ‘reports’ – BAAAAD Canada: latest IIPA ‘report’, February 17, 2011
Michael Geist – Copyright Lobby Group Makes the Case for Flexible Digital Lock Rules, February 17, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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Donald Verrilli Jr (right) is already one of the many ex- or actual RIAA managers working for the US Department of Justice. In fact, he’s third in command.

Now he’s been nominated as America’s Top Cop.

With entertainment cartel stalwart Hollywood Joe Biden as US vice-president, it couldn’t get any better for the Recording Industry Association of America (RIAA), owned and operated by Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but run by Canadian Edgar Bronfman jr, recently fined $6.8 million for alleged insider trading).

It wouldn’t be bad for Hollywood’s MPAA either.

“Often called ‘the 10th justice,’ the solicitor general is the government’s representative at the Supreme Court, advising the attorney general on legal matters and deciding whether the government will appeal adverse lower court rulings”, says the Washington Post, noting, the job is “one of the most prestigious” in the Washington legal world.

When the scandal of RIAA staffers being named to the DoJ first broke, “I’ve been really interested in the ‘RIAA Takes Over DOJ’ exchanges, in particular those featuring Don Verrelli and Perrelli”, I said in p2pnet, going on >>>

The idea seems to be, basically, they’re clever guys – nice guys, really – who are only doing their jobs.

Where have I seen that excuse before?

Anyway, I thought others following the thread might be interested in two clips from a story I posted little while ago. They feature two young women whose studies have been disrupted by the attentions of the RIAA, its subpoenas and its settlement centre(s).

The first is about Brittany Kruger, whom I cited in an earlier … post.  She said, “I have problems sleeping, my hair is falling out in ungodly amounts, I’m having a hard time concentrating in class, but most of all I hate the fact that I’ve pulled my entire family into this,” and, “Right now it doesn’t seem like this is ever going to end, I’m just now entering the tunnel and the light is miles away.”

The second is on a student who said she was going to kill herself. This was, “because she’d heard from someone at an (the?) RIAA extortion settlement centre categorically promising her she’d be taken to court unless she came up with more than $9,000 to buy the RIAA off,” I wrote, going on, “She said she was already up to her neck in debt because of school loans and had absolutely no way of finding that kind of money, or anything like it, that she couldn’t sleep, couldn’t study, couldn’t live a normal life because of the worry.”

Further down, I posted, “I eventually had a long telephone conversation with girl I mentioned earlier, the one who was threatening to kill herself, and she said she, too, would write something about her experiences. But she changed her mind after her parents agreed to bail her out. She wouldn’t tell me the price, but she said she now hoped she’d be able to get back to her studies and on with her life. I hope she does. But I have to say her escape is at the expense of providing the RIAA with another statistic, and another reason to keep on with their brutal sue ‘em all campaign.”

As I said on my … post on Brittany, it’s interesting how … threads on profits, licensing formulas, costings, and so on, always elicit lots of learned responses, but mention of the people in the centre of it all draws nothing but cold silence.

It’s like they don’t even exist.

Meanwhile, Verrilli still has to be confirmed by the senate.

Stay tuned.

Jon Newton – p2pnet

Follow me on Twitter.

third in command – Jenner & Block – running the DoJ?, April 26, 2009
insider trading – WMG’s Edgar Bronfman jr fined $6.8 million, January 21, 2011
Washington Post – Obama chooses solicitor general, January 25, 2011
p2pnet – ‘Dear Jon: I am still alive … ‘, August 2, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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According to Victoria Sheckler, .music is the latest awful threat to the livelihood of her employers, Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by a Canadian).

Sheckler is ‘deputy general counsel’ to the Big 4’s RIAA (Recording Industry Association of America) and the main signatory to a missive making “vague legal threats over ICANN’s new top-level domains program”, states domainincite.com.

Issuing spurious threats is, of course, one of the few things the RIAA, run by Mitch ‘The Don’ Bainwol, is good at.

Ask the 40,000 or so Americans, including very young children, targeted in its failed six-year Sue ‘Em All music campaign, which did nothing more than to alert the internet at large about the opportunities offered by file sharing.

Now it’s “concerned that .music, for example”, might “encourage copyright infringement”, says domainincite.com.

The Big 4 legal extortion unit wants ICANN to “ensure best practices are developed” to prevent musical TLDs being used to enable music piracy’, says the article, quoting Sheckler’s letter as bleating >>>

We are concerned that a music themed gTLD will be used to enable wide scale copyright and trademark infringement.

And >>>

We would like to work with ICANN and others to ensure that best practices are developed and used to ensure this type of malicious behavior does not occur.

And >>>

We strongly urge you to take these concerns seriously … we prefer a practical solution to these issues, and hope to avoid the need to escalate the issue further.

“Please contact us if you have an comments or questions, or would like to meet to discuss the best practices to avoid malicious behavior”, Sheckler adds.

She has the traditional RIAA tone dead on — pretentious, over-bearing, patronising.

Meaningful content? Nada.

One of the RIAA’s objections to the current Applicant Guidebook for new TLDs is the “community objection” procedure, domainincite.com says.

Apparently, the RIAA “doesn’t think gives it a good enough chance of blocking a .music TLD application”, says the post, going on:

I wonder if the RIAA is planning its own .music bid.

There is already one very public .music initiative, championed for the last couple of years by Constantine Roussos, an active and vocal ICANN community member.

But the string is valuable, is likely to be contested, and there’s a not insignificant chance that Roussos will be beaten to it by an applicant with deeper pockets.

Regardless, the RIAA’s argument that .music equals piracy is pretty poor, possibly disingenuous, and unlikely to influence the Guidebook.

“ICANN constantly walks the tightrope between technical coordination and content regulation”, says the story, adding, “getting into the business of fighting piracy is not going to make it onto the agenda any time soon.”

Did she dream this up all by herself? Or was she helped by Bainwol and his main man, Cary ‘Tough Love’  Sherman, , one wonders

Stay tuned.

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domainincite.com – RIAA threatens ICANN over new TLDs, January 18, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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MasterCard recently said it was cutting off payments to Julian Assange’s whistle-blower site because “MasterCard rules prohibit customers from directly or indirectly engaging in or facilitating any action that is illegal”, according to spokesman Chris Monteiro.

He didn’t explain what court had ruled WikiLeaks or its revelations as ‘illegal’.

Now, smelling another event through which to further their efforts to gain control of the internet as their exclusive sales, marketing and distribution vehicle, the Big 4 labels — only one of which is even partially American — have finessed MasterCard’s move into a way to add it to their list of Corporate America copyright cops, using the RIAA as the front.

MasterCard bosses say they’re also “willing to stop processing transactions from sites trafficking in pirated music, movies, games, and other digital copyrighted content”, posts the ever-helpful CNet News.

Lobbyists working for MasterCard “told trade groups from the entertainment sector that the credit card company is supportive of The Combating Online Infringement and Counterfeits Act, an antipiracy bill introduced into the Senate last September, sources with knowledge of the talks tell CNET”, it says, quoting disgraced RIAA employee Mitch Glazier as stating:

“MasterCard in particular deserves credit for its proactive approach to addressing rogue Web sites that dupe consumers,

“They have reached out to us and others in the entertainment community to forge what we think will be a productive and effective partnership.”

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CNet News – MasterCard willing to cut off pirate sites, December 16, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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They’ve had a qualified Attaboy Seal of Approval from the Big 4.

Well, from their American general factotum, anyway.

Google, the net’s Number One file sharing indexing site, “has now officially lined up alongside the entertainment cartels”, said p2pnet recently.

“There are more than 1 trillion unique URLs on the web and more than 35 hours of video uploaded to YouTube every minute”, we quoted Google lawyer Kent Walker as saying on the company blog, going on, but “along with this new wave of creators come some bad apples who use the Internet to infringe copyright”.

Actually, they don’t, p2pnet pointed out, going on, “They share with each other, as people have done since the beginning of time. But Hollywood and Big music have re-framed sharing as ‘copyright infringement’.

But “As the web has grown, we have seen a growing number of issues relating to infringing content”, Walker gargled on Google. The answer? Four changes, to wit >>>

• We’ll act on reliable copyright takedown requests within 24 hours. We will build tools to improve the submission process to make it easier for rightsholders to submit DMCA takedown requests for Google products (starting with Blogger and web Search). And for copyright owners who use the tools responsibly, we’ll reduce our average response time to 24 hours or less. At the same time, we’ll improve our “counter-notice” tools for those who believe their content was wrongly removed and enable public searching of takedown requests.
• We will prevent terms that are closely associated with piracy from appearing in Autocomplete. While it’s hard to know for sure when search terms are being used to find infringing content, we’ll do our best to prevent Autocomplete from displaying the terms most frequently used for that purpose.
• We will improve our AdSense anti-piracy review. We have always prohibited the use of our AdSense program on web pages that provide infringing materials. Building on our existing DMCA takedown procedures, we will be working with rightsholders to identify, and, when appropriate, expel violators from the AdSense program.
• We will experiment to make authorised preview content more readily accessible in search results. Not surprisingly, we’re big fans of making authorised content more accessible on the Internet. Most users want to access legitimate content and are interested in sites that make that content available to them (even if only on a preview basis). We’ll be looking at ways to make this content easier to index and find.

“These changes build on our continuing efforts, such as Content ID, to give rightsholders choice and control over the use of their content, and we look forward to further refining and improving our processes in ways that help both rightsholders and users”, Google stated and, “No need to stay tuned”, we said.

But we were wrong.

On the heels of  the announcement, “We certainly have a deep interest in these issues”, said Mitch Bainwol, spinster-in-chief for the Recording Industry Association of America (RIAA), owned by Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by a Canadian).

He went on >>>

Our first blush take? These are encouraging and positive first steps towards a more sensible online experience for both users and the music community.

Google deserves credit for proposing a constructive set of reforms and undertaking useful steps to better protect the rights of creators and encourage legal ways to enjoy music.

While there is much more work to be done, this announcement is an important acknowledgement that everyone involved in the online ecosystem has a shared responsibility to constructively address the online piracy problem that is devastating the creative industries.

Obviously, the details of implementation will be critical, and we look forward to working with Google on all the steps necessary to effectively combat infringement.

OK. Stay tuned.

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p2pnet – Google to become Corporate Copyright censor, December 2, 2010
spinster-in-chief – Better musical Googling, December 2, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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Walt Disney Studios, Paramount Pictures, Sony Pictures, Twentieth Century Fox, Universal City Studios, and Warner Bros Entertainment, on the other hand, had “confined themselves to sites rather than families and children”.

The MPAA’s thoughts on ‘notorious markets’ were released to the Great Unwashed on November 5. But the RIAA got there first the day before with its own version.

In all its informative glory, “In both the physical and online environments, there are pirate ‘destinations’ where piracy is both open and notorious, and where consumers go to acquire infringing materials”, says Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music’s (US, but controlled by a Canadian) RIAA (Recording Industry Association of America).

In both settings, it says, “there are businesses who either directly profit from the sale or other distribution of infringing materials, or who profit from facilitating such theft — in many cases through the sale of advertising space”, continuing >>>

We greatly welcome this Federal Register notice designed to shine light on these businesses. We highlight that being a “notorious pirate market” doesn’t mean that everything that is done in that market is connected with infringement. For example, there are vendors in Mexico’s Tepito market, or in Argentina’s La Salada, who sell legal merchandise. But the fact that some vendors may be selling legitimate materials doesn’t change the responsibility of the state, or the relevant market owners, to take responsible action. Similarly, many of the online sites that we identify may conduct some legitimate activities, but they fail to address their own conduct in facilitating the theft of intellectual property and therefore deserve to be identified as notorious pirate markets. Some of these sites wear that badge intentionally—see for example The Pirate Bay. Others like Baidu or vKontakte operate network services that include features that intentionally and effectively induce infringement. These services deliberately gain market share by providing access to infringing materials—launching music services without any form of licensing.

RIAA members [read Big 4 partners, subsidiaries, and so on] are excited about the potential of the internet and other communication technologies to provide an efficient means of distribution to music lovers globally. Regrettably, this potential remains largely unrealized—mired in a morass of piracy. We hope that the information provided herein will be helpful in illuminating the practices of some of the worst actors in global markets, and that by addressing these markets, we can take a big step towards creating greater accountability that will expand opportunities for legitimate commerce.

La Salada Market – Buenos Aires – Argentina

“La Salada” fair is a huge market located in the Buenos Aires metropolitan area, and well known for its diverse pirating activities that include retail sales, wholesale distribution and replication labs. La Salada is made up of four markets – Punta Mogotes, Urkupiña, Ocean (indoor fairs) and La Ribera (open-air fair)– built up on the Riachuelo shore. It is a sprawling area with about over 30,000 stands selling everything from music to bags, and it provides pirate and counterfeit merchandise to retailers and re-sellers from Argentina and neighboring countries.

La Salada is a worldwide emblem of the commerce and production of illegal merchandise. Sold products are mostly illegal copies of European or American brands (as reported by the EC) Nike shoes, Prada bags, Puma jackets, at less than one-fifth their original price. But illegal CD’s are the products consumers most look for when visiting the fair.
This market opens twice a week –on Wednesdays and Sundays– at changing times but mostly at midnight, and is visited by approximately 1 million people each day. The total volume of sales in 2009 amounted to U$D125million, of which around 10% came from counterfeit music CDs and film DVDs.

Even after several illegal music CDR and DVDr raids have been conducted, with 1 million physical formats seized, “La Salada” continues to be the most popular distribution center for pirate music in Argentina, and more robust and continuous government support is needed.

Poland – Border markets with Germany

A market survey was conducted in the summer of 2009 of the ten main Polish border markets situated at major crossing points at the border with Germany. The markets surveyed were located at, Gubin, Halle, Kostrzyn, Leknica, Slubice, Swinoujscie, Szczsecin x 2, Wroclaw and Krakow.

The markets sell a variety of produce from food stuffs to commercial goods and clothing. They are operated by Polish nationals and are primarily aimed at the German tourist market. (The exception to this is the market in Krakow (Market Balice), which is outside the tourist area of the city). Organised coaches visit the markets daily from Germany together with visitors in cars. While brand name luxury goods can be found, without doubt the main infringing articles for sale are music CD’s and DVD’s containing film content.
All the counterfeit music CD’s were on CD-R recordable format and found openly for sale at the markets (in some cases the discs were hidden in a nearby store). The repertoire is primarily a mixture of American and German current titles sold for between five Euros for a single to ten Euros for a double CD. The printing quality of the artwork is average and it is obvious the product is not genuine.

Some of the larger markets, (600 + stalls) were found to have up to fifty vendors’s openly selling music with two to three thousand units on each stall. No legitimate music content was seen on any of the markets.

Police patrol some of the markets and appear to assist with parking on busy days but no enforcement action is apparently undertaken and the product is openly on show.
Intelligence from Polish law enforcement (Border Guards) indicates that the markets are principally operated by organised crime syndicates who control the music, film and counterfeit tobacco sales at each venue.
Tepito

There are an estimated 100 million pirate music units in Mexico goes through an estimated 50 thousand sales points around the country. Tepito, located in Mexico City, is by far the single biggest market. It is located in a section of town known as Colonia Morelos and covers an area of approximately 4 square kilometers. Films and music are found in the streets of Matamoros, Aztecas, Eje Uno Norte and Peralvillo Streets. Some estimates put the music pirate activity in Tepito at about 30 percent of all sales in Mexico. The main reason for this high level of sales is that distributors of pirate product of surrounding major cities such as Puebla and Queretaro also come to Tepito for merchandise. They can also find raw materials such as blank CDRs, DVDRs, burners and covers in the same location.

ONLINE NOTORIOUS PIRATE MARKETS

BAIDU: China
Baidu is a NASDAQ traded Chinese company. Baidu is the Chinese leader in providing search services in China, but by its own admission owes much of its popularity to a dedicated music service in which it assembles deep links to infringing materials. Indeed, few if any of the links provided by Baidu connect the user to legitimate versions of copyright-protected materials. It is undoubtedly one of the largest distributors of infringing music in the world. While the infringing materials may or may not be stored on Baidu’s servers, it is clear that Baidu’s music service is wholly premised on inducing infringement through the provision of access to infringing materials. And its own SEC disclosures highlight the material risk to the company if it is ever held to the same standards related to inducement as those articulated by the US Supreme Court in Grokster. On January 22, 2010, the Beijing No. 1 Intermediate Court decided that Baidu was not liable for copyright infringement. The appeal was heard in October 2010, and the decision is pending.

VKontakte: Russia
VKontakte is the most popular online social network in Russia, though it is available to a wider international audience in many languages including English.  It currently ranks in the top 40 most visited sites in the world according to alexa.com.  VKontakte’s full ownership structure is not publicly known, but Russian internet company Mail.ru has plans to increase its 24.9% holding to 39.9%.  The site’s music functionality is specifically designed to enable members to upload music and video files, hundreds of thousands of which contain unlicensed copyright works.  It’s dedicated content search engine enables other members to search and instantly stream infringing content, giving VKontakte the edge over other social networks that do not offer free access to unlicensed material.  As more members upload infringing content, more new members are attracted to the site, and yet more infringing files are uploaded.  With some 93 million registered members the scale of damage to right holders is significant.  In addition, third party software developers have distributed apps that enable non-Vkontakte members to search and download the content available on the site.  The developer of the Mulve app has been subject to criminal action in the UK, but similar apps remain available and appear not to be blocked by VKontakte, which takes no proactive measures to prevent copyright infringement on its service.
Allofmp3.com Clones

After allofmp3.com was taken down, a number of copycat sites have sprung up in Russia and Ukraine to take its place, in many instances apparently under the same or related ownership. These sites, many of which are serviced by major credit card companies such as Visa or MasterCard, claim licenses from known rogue collecting societies who have no authority to issues such licenses. These sites are illegal pay-per-download sites, and are organized to operate in the same fashion as legitimate sites such as iTunes. This is nothing short of direct commercial piracy, and there is no justification for the failure of the Russian and Ukrainian Governments to criminally prosecute the principals behind these sites and the rogue collecting societies with whom the sites operate a continuing criminal conspiracy.

The following music payment sites are hosted in the Russian Federation
GoldenMp3
Mp3ninja

The following sites are hosted in Ukraine
Mp3fiesta
Mp3panda

The Pirate Bay
Like IsoHunt, The Pirate Bay is also a Bittorrent site with a global scope.  The site was previously operated from Sweden, but having obtained criminal convictions against the four founding individuals there in April 2009 (currently on appeal), the individuals thought to be responsible for the operation of the site have left the country.  The individuals claim the site is now owned by a company based in the Seychelles although no evidence of a sale has been provided.  In October 2009 the Swedish District Court granted a preliminary injunction against two of the site operators, based on the “complicity in copyright infringement” found by the criminal court.  The individuals have appealed and the application is still pending against a third individual.  In August 2009, an injunction was also obtained in Sweden against an ISP which had provided internet service to The Pirate Bay (also on appeal).
Despite the successful litigation to date in Sweden, the site is still active and thought to be the most popular Bittorrent site in the world, with a total count of over 30 million users and the world’s most popular films and music can be instantly downloaded via the service.  Rights holders have therefore been turning to ISPs for co-operation and have so far obtained blocking orders through the courts in Denmark, Italy and Ireland (with an unsuccessful application made in Norway), to have ISPs block their subscribers’ access to the site.

RMX4U
Rmx4u.com is hosted in Luxembourg.  The site is a forum used by members of the site to share pre-release music content.  The majority of the music that is made available on the site is obtained via phishing emails and Trojan files sent to artists/producers and record label employees by the members of the site.  Over the past year, the site has been the first place we have found pre-release content for major recording artists.

RAPIDSHARE
Rapidshare is a German One-click hosting site that operates from Switzerland but whose main servers are based in Germany. Rapidshare allows anyone to upload files of up to 100MB. The user is then supplied with a unique download URL, which locates the file and enables anyone with whom the uploader shares it to download the file.  Rapidshare users post those URL’s on blog sites in an effort to induce those who come to the site to infringe by downloading the file.  Many of the files posted to lockers whose URLs are then displayed on blogs are pre-release content. RapidShare is among the 100 most visited sites in the world.

IsoHunt
IsoHunt is a Bittorrent site operating out of Vancouver, Canada, with a global scope.  With the actions against The Pirate Bay (Sweden) and Mininova (Netherlands), isoHunt in now one of the largest bittorrent site in the world, with millions of users monthly and most of the world’s most popular music and films available for instant download.  In December, 2009, a US federal district court found isoHunt liable for massive copyright infringement, finding that isoHunt’s “business model depends on massive infringing use.”  The US court cited unrebutted evidence that 95% of the files traded through isoHunt’s sites are likely infringing. In May of 2010, the US Court issued an injunction that IsoHunt has thus far ignored. Criminal contempt proceedings have been initiated. In Canada, by contrast, isoHunt sued the rights holders, in order to have the court declare that they’re perfectly legal under Canadian law.  As the Canadian newspapers said, it’s a case of man bites dog. The isoHunt case illustrates how the law is so uncertain in Canada that file-sharing services are suing the rights holders.  It’s no wonder that Canadian internet users don’t know what’s right or what’s wrong, or that Canada has the highest rate of unauthorized file sharing of any OECD country according to the OECD.

www.filestube.com: Poland
www.filestube.com indexes over 100 million one-click download links for music, film, games, software the vast majority of which is infringing content. Users access the content by conducting searches which display results based on the search term. Due to the large volume of links indexed by the site, there are usually hundreds of copies for each album or song title available via this file-sharing search engine. Industry reports links to the site operator but the speed of the takedowns cannot match the speed at which new links are added.

www.demonoid.com, Ukraine
www.demonoid.com is a private member only site used to share copyrighted material via the Bittorrent file-sharing protocol.  Like the other Bittorrent indexing sites (thepiratebay and Isohunt) only the torrent file is hosted on the site. The site has over 300,000 members and there are over million titles (music, films, software and games) being indexed by the site. Over the past four years, the site has been shut down a number of times through cooperation with the hosting companies and when required law enforcement agencies. The current host provider will not remove the site.

The administrator removes torrent links but it can take many days for the links to be removed. On average each torrent is downloaded thousands of times before it is removed and on most occasions if a torrent is removed a new copy is added within hours.

www.warez-bb.org: Swedish domain registrant, Luxembourg ISP
www.warez-bb.org is one of the world’s largest forum sites offering illegal material including music, films, tv shows and software. There are tens of thousands of postings on the site offering the latest pre-release album and back catalogue titles, for the more popular titles there will be multiple postings to ensure users can download the content. The content is stored on one-click download sites like Hotfile.com and Rapidshare.com. The site operators have ‘scripts’ which check the status of the download links, if the links are removed the user is prompted to post new download links. We have on occasions removed multiple copies of the same album as the user has re-posted new links within minutes of the links being taken down.
The site has over 2million registered users and there is a total of 36,000 postings within the music section of the site. The site is currently hosted in Luxembourg and the hosting company refuses to shut down the site.

katz.cd: New Zealand domain registrant, Hong Kong ISP
katz.cd indexes postings from forum sites offering music, film, games, software and e-books. In the music section there are over 40,000 postings including pre-release titles. Users search for a specific title and then click on the matched results which takes the user to the forum site offering the title. This allows over hundreds of thousands of users daily to access a vast network of forum sites from one site, making it more likely they will find the music title they want.

www.rlslog.net : Russian domain registrant, Swedish ISP
www.rlslog.net has thousands of pre-release or recently released music titles available on the site. For each title there are multiple one-click download links known as ‘mirrors’. Having mirror copies of a title ensures that if one link is removed there is still a working download link available. Users will post mirror links which can result in there being tens of copies of the same title available on the site and this can continue for weeks and months after a title was first added to the site. Due to the speed of which content and mirror links are added, this site enables users to download pre-release titles quickly but also request new links if older links have been removed.

www.seekasong.com: Vietnamese domain registrant, US ISP
www.seekasong.com indexes over 98,000 music titles made up of newly released and older ‘popular’ song titles. For most titles there are multiple download links so the total number of links offered by the site is closer to 500,000. The site lists the top 20 charts for the biggest music markets (US, UK, Germany etc), most popular songs and the latest songs added to the site. All these facilities are designed to attract new users and make it easier for users to find new titles. Users can also download a ringtone version of the songs and lyrics all from unauthorised providers.

www.123musiq.com: India (US hosted)
www.123musiq.com is the largest download site for Bollywood repertoire, with other 100,000 album titles indexed by the site. Users can download individual songs or the whole album which is offered in low quality (smaller file size) for users with slow Internet connections (mainly for the local Indian market) and high quality (larger file size) for users that have a fast connection speeds. There are also English, Tamil, Malay and Korean titles available on the site, which helps attract a large volume of traffic.

www.ex.ua: Ukraine
www.ex.ua is a file-hosting site in Ukraine used to store and share audio, image and video files. Users upload content onto the site which is then indexed for other users to search and download. Users that are members of the site, search for music titles within the audio section of the site and then select the files they want to download.
This is the largest service in Ukraine and the vast majority of the Internet users in Ukraine use the site to download music and film content. None of the content made available on the site has been authorised by the copyright owners and the site operators are unresponsive to takedown notices as a result there are thousands of music titles available on the site.

Sohu/Sogou
Sohu/Sogou engages in the business of providing hyperlinks directly to infringing music files situated on third party sites.  Through the Sohu/Sogou site, users may by various means find unauthorized copies of sound recordings. Record companies sued Sohu and Sogou on 4 February 2008 at the Beijing No.1 Intermediate People’s Court.  On 22 Jan 2010, the Court found that Sohu and Sogou were jointly liable for infringement in respect of only a few specific tracks that had not been removed following the right holder notices.  However, the judges did not find Sohu and Sogou to have the requisite knowledge to determine whether the linked sound recordings were infringing so that Sohu and Sogou was not generally held liable in respect of its unauthorized music deep-linking service.

Appeals were filed to the Beijing Higher People’s Court against this decision. Sohu/Sogou has also filed cross-appeal.  Appeal hearings were conducted on 25 October and 2 November 2010.  The appeal decisions for these cases are pending.

Xunlei
Xunlei operates an unauthorized deep-linking service called “Gougou” which is similar to the Baidu and Sogou music deep-linking services. Users can use Gougou to search for deep-links for music files and torrent links.  There are Gougou buttons embedded in to the software client that easy access to the deep-linking service. Furthermore, Xunlei provides a software plugin called “Xunlei Ting Ting” to the Xunlei software client. “Xunlei Ting Ting” provides music charts and allows users to stream and or download the music files through this unauthorized service.

Legal actions were filed against Xunlei at the Shenzhen Intermediate People’s Court on 25 June 2009, the Court hearing was held before Shenzhen Intermediate Court on 19 July 2010. The judgments are still pending.

Torrentz.com
Rather than a conventional Bittorrent indexing site, Torrentz.com is a “meta search engine” (i.e. an aggregator) of over 25 third party Bittorrent sites, including The Pirate Bay and BTJunkie.  Independent market research has shown it to be particularly popular in key markets such as the US, UK, Australia and France.  The site boasts indexing of over 30 million live torrents across 1,200 live Bittorrent trackers.  No details are provided on the site as to the identity of those controlling the service or where it is physically located, but it has been operating on up to four different IP addresses simultaneously, spread across a range of hosting providers, we assume in order to make enforcement action difficult as well as any technical specification benefit derived from hosting the site in this way.  The site is currently hosted by Swedish and Dutch ISPs and a letter has recently been sent by right holders to the former, although no response has yet been received.

BTJunkie.org
BTJunkie is a Bittorrent indexing site, akin to The Pirate Bay and Demonoid.  Independent market research has shown it to be particularly popular in Italy, Australia and the US.  The site does not operate its own tracker but instead utilises the various public trackers available, such as the OpenBittorrent tracker.  No details are provided on the site as to the identity of those controlling the service or where it is physically located, although it is currently obtaining internet service from a provider in Sweden.  Right holders recently wrote to the Swedish host provider requesting that it terminate the service provided to the site.

Blubster
Blubster is a music-dedicated P2P service run out of Spain, previously estimated to have up to 200,000 concurrent users.  The service was created by Pablo Soto, a young Spanish programmer whose express intention was to create a network for ’sharing’ music.  A statistical analysis confirmed that the vast majority of music being shared on the service is infringing.  Blubster has a decentralised structure and no central indexing server, but it is operated by a group of companies and is not open source.  The operators generate income through advertising and through sales of advertising-free client software.  The Spanish music industry brought proceedings in April 2008 against the operators of the service.  The principal aim of the proceedings was to stop infringement, whether by having the network shut down or otherwise (e.g. filtering), and damages of €13m, based on the estimated extent of infringement, were also claimed.  An application for an interim injunction was subsequently made in October 2008, which was heard in December 2008.  The judge indicated in November 2009 that he needed one further month to make his decision.  In April 2010 the judge was suspended from the judiciary for his delays in delivering decisions and this suspension was lifted in October 2010.  No judgment has yet been delivered.

BaixedeTudo – http://baixedetudo.net
Brazilian blog site dedicated to distributing infringing music content. Only available in Portuguese and very popular in Brazil for infringing downloads, estimate more than 1.3 million unique users per month.

The site is part of a network called “Web ring” made up of 11 blogs in total offering music and other types of infringing content (films, software etc).

Rede Download – http://rededownload.com
Popular infringing blog offering unauthorized downloads of music, tv series, films, games and e-books. Users are mainly from Brazil – 91% and Portugal 6.5% and the estimation of unique users per month is more than 1.1 million.

The content is made available via one-click download sites organized in different sections of the blog.

Ba-k – www.ba-k.com
Forum site with more than 1.4 million registered users, content is posted on multiple one-click download sites to distribute infringing music, tv series and film titles especially pre-release and newly released titles.
The majority of the traffic is directed at the music section of the site as this section has more than 55,700 postings. Most of the site is public but to access the premium content (such as pre-release titles) the user must register an account.

DirectorioWarez – http://www.directoriow.com/
One of the largest forum sites offering Latin music titles. The content is made available via one-click download sites and users must register to view the postings.
The site provides users with information of the most recent postings and the most viewed postings, ensuring that the more popular titles are accessed and downloaded by the majority of the users on the site.

Tipete – http://www.tipete.com
Forum site with over 10,000 music titles made up of pre-release and popular album or song titles.  The content is posted on one-click download sites and there are multiple copies for the more popular titles.

Frequent uploaders are rewarded by the site in the form of free merchandise.

Now you know.

Many thanks, Vivendi Universal, EMI, Warner Music and Sony Music.

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p2pnet – ‘Online Notorious Markets’, November 7, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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“Yea.”

That was Jammie Thomas-Rasset when she learned she’s been ordered to find the staggering sum of $1.5 million for 24 songs

Her wry comment referenced the fact the time before last — that’s to say the trial before last — she was ordered to pay $1.92 million for sharing music online.

The Recording Industry Association of America (RIAA), owned by multi-billion-dollar corporate record labels Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by a Canadian), years ago sued Jammie for allegedly infringing copyrights.

Says The Register >>>

Despite the presence of celebrity legal academic and poker lobbyist Charlie Nesson, the re-re-run was unsuccessful. This was the third trial for the same offences; the fine has been increased, and her lawyers plan to … appeal again.

Thomas (her name at the time of the first trial) became the first defendant to take RIAA members’ file-sharing accusations to court. Unlike thousands of others, she rejected an out-of-court settlement, preferring to argue her innocence in front of a Minnesota jury in 2007. The jury found her list of excuses implausible, and the Duluth judge imposed a fine of £220,000. Thomas was sharing 24 songs on Kazaa, and the statutory fine can be imposed anywhere between $750 and $30,000 per infringement, with a $150,000 ceiling for wilful violation, aimed at wilful infringers. The court placed the fine somewhere in the middle, at $9,250 per song.

The post makes it appear as though ’settlements’ are reasonable solutions offered by reasonable people.

In fact, they’re extortionate ‘Pay us or we’ll get you’ demands levelled by unscrupulous lawyers at very ordinary people — including young children — who have neither the money nor the legal resources to defend themselves.

Paying the lawyers are the Big 4, fronted by their RIAA.

The labels claim files shared equal sales lost. Think about that for more than two seconds and it’s obvious the assertion doesn’t even begin to hold water.

Jammie lives in Minnesota and her comment comes in a Duluth News Tribune story which has RIAA spinster Cara Duckworth stating:

“We are again thankful to the jury for its service in this matter and that they recognized the severity of the defendant’s misconduct. Now with three jury decisions behind us along with a clear affirmation of Ms. Thomas-Rasset’s willful liability, it is our hope that she finally accepts responsibility for her actions.”

But it isn’t over yet.

“Thomas-Rasset said she will appeal with the help of her Houston, Texas, team of attorneys, Kiwi Camara and Joe Sibley”, says the story, quoting her as stating, “The very first thing Kiwi said as we were leaving the courtroom is that we’re going to appeal on constitutional grounds.”

A hard-working mother

While the lawyers and hangers-on working for the RIAA happily clock up thousands of billable hours, Jamie Thomas-Rasset tries to get on with her life, I wrote in June last year, continuing >>>

The labels and their RIAA  have spent a fortune trying to paint a picture of her as someone who stole, and who then illegally distributed, copyrighted music files.

However, with file sharing, no money changes hands and no one is deprived permanently, or otherwise, of something he or she used to own.

The RIAA lawyers say she’s a thief. But she’s nothing of the kind. Rather, she’s a hard-working mother who during the day is the Brownfield coordinator of the Mille Lacs Band of Ojibwe Indians in Minnesota. She’s responsible for administering a grant from the US Environmental Protection Agency for her tribe to redevelop contaminated properties.

She’s also in charge of housing and land acquisitions for the Band’s Department of Natural Resources and Environment

“I try to focus on the day to day of life instead of the potential outcomes,” she says.  “I know, win lose or draw, it won’t be over for a long time. So I just hunker down for the long haul and hold on for the ride.”

Going clockwise, other than baby Tarent, the kids in the picture are Christian, her four-year-old stepson, Tyler, who’ll be 15 next month, and Triston, who’ll be 13 in August.

Jammie and her husband, Chad (”Chad Thomas-Rasset, we both hyphenated”) were married in February. He’s at home, taking care of the boys so Jammie can get on with her job without having to worry about the younger two in daycare.

“What’s it like, having this hanging over your head,” I asked Jammie.

“Actually, the case from day to day is sort of like the feeling you have something really important to do, yet you’re not quite there yet to do it,” she said, going on »»»

“The stress of the case is always there, but it’s manageable most days.

We still get up every morning, the boys go to school, or they did until summer break started this week, I still go to work, Chaddie, my husband still takes care of the babies.  We have a routine and fortunately, the case doesn’t really disrupt that, at least for the most part.

But lately, stress level has hit its maximum load and although I hate admitting it, a constant panicky feeling has taken hold.

I understand the consequences of my case, not just for me, but for everyone else being sued by the RIAA, and sometimes it’s a bit overwhelming.

Now, with the trial starting next week, I find it hard to concentrate on much else.

I constantly worry “maybe if we do this” or “maybe we should do that”, then I have to slow down, take a breath and ask myself,e “what’s the worst that could happen?”

But the worst, in my opinion, has already happened.

Now, “It’s a shocking, monstrous verdict once again”, she told the Duluth News Tribune.

It is.

Stay tuned.

Jon Newton – p2pnet

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The Register – World’s dumbest file-sharer guilty for third time, November 4, 2010
Duluth News Tribune – File-sharing damages raised to $1.5 million, November 4, 2010
thousands of billable - Jammie Thomas-Rasset: file sharing thief, June 10, 2009

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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p2pnet coined the Sue ‘Em All phrase for the first time back in 2003 when the RIAA spearheaded Big Music’s ongoing campaign to gain control of how, and by whom, music is distributed online.

The music ‘trade’ organisation claimed then, and claims now, that files shared equal sales lost. But the contention has never been even nearly demonstrated or supported and in fact, a number of academic and other studies have put it to the lie.

‘RIAA’ is short for Recording Industry Association of America, an interesting title given that, to all intents and purposes, it’s owned and operated by Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by a Canadian).

Acting for, and on behalf of, the Big 4 labels, the RIAA started suing Big 4 customers, including very young children, claiming they were file sharing criminals and thieves — “massive” distributors of copyrighted digital tunes.

As well as collecting and storing relevant documents, Beckerman represented a number of victims, taking on the likes of Matt ‘The Dentist’ Oppenheim, one of the RIAA’s most infamous attack lawyers.

The labels are obscenely wealthy, hiring not merely high-priced lawyers, but entire law firms, to force their specious cases through legal systems around the world.

Their targets are very ordinary men and women without the financial or legal means to even begin to adequately defend themselves.

Beckerman is only one man, but he’s repeatedly shown the RIAA and its attorneys up in their true light as he both maintained his site, and acted for some of the victims.

We mention Oppenheim because he was recently featured in a copygrounds.com Q&A, copygrounds being the new University of Texas website created by Brett Caraway, lecturer and PhD candidate in the department of Radio-Television-Film.

Oppenheim also turns up in this copygrounds Q&A between Caraway and Beckerman >>>

Copygrounds: In both the Tenenbaum and Thomas-Rasset cases the statutory damages have been lowered—though for different reasons. Why did the judges employ different legal reasoning to arrive at similar results? What are the differences in the cases? And does this prevent the cases from being joined and sent to the Supreme Court?

Ray Beckerman: Neither judge provided satisfactory reasoning consistent with the law. Neither thought it through correctly. Judge Davis declined to decide the constitutional issue at all, for reasons which are not clear to me. He then awarded damages which were far beyond the normal range of copyright statutory damages. Were he correct in declining to decide the constitutional question, his copyright law answer should have been that the maximum recoverable was $750 per infringed work, not $2250 per infringed work. Judge Gertner demonstrated strong familiarity with all of the applicable case law, and then jumped into similar murky water to that in which Judge Davis had become immersed.

There is simply no precedent in either (a) copyright law or (b) constitutional law for deciding the maximum range of statutory damages as a multiple of the minimum statutory damages, as opposed to a multiple of the actual damages. The cases do involve similar issues and could wind up together if they get to the Supreme Court. But it seems to me you’re putting the cart before the horse, as both are district court decisions.

Copygrounds: The Tenenbaum, Thomas-Rasset, and Harper cases all seemingly hinge on lowering the allowable damages in file-sharing cases. Is that the pivotal legal issue for this litigation campaign?

Ray Beckerman: There is no single pivotal issue. There are quite a few pivotal issues. This is just one of many. It’s an important one because the RIAA has followed a terroristic strategy, one which would be blunted by reasonable damage awards as opposed to outlandish damage awards.

Copygrounds: Is this the issue which is most likely to gain traction and make it no longer cost effective for groups like the RIAA to file suits en masse against individual file sharers?

Ray Beckerman: It could be, but my credentials as one who can see into the future are… well… nonexistent.

Copygrounds: Why did you start “Recording Industry vs The People“?

Ray Beckerman: I started it because I thought having a centralized place for reporting information on these cases would soften one of the RIAA’s many advantages, which was a monopoly of information. The RIAA had a single firm handling 25,000 + cases. They were the only ones who knew what was going on in the cases, or indeed if there were any cases … i.e. if anyone else was fighting back. I created the blog to give attorneys representing defendants a chance to share information.

Copygrounds: Who was your intended audience?

Ray Beckerman: My intended “audience” was other lawyers representing other defendants in the RIAA cases. But audience isn’t the right word, because I also expected them to contribute to the body of documents and other information. I looked on it as me being a catalyst for lawyers representing the RIAA’s victims to assist each other.

Copygrounds: Is fair use a relevant legal issue in the defense of P2P file sharers accused of copyright infringement? Or does fair use only get raised in cases where the copyright industries have targeted the firms who market P2P platforms (cases like Grokster)?

Ray Beckerman: There are numerous behaviors in the use of p2p file sharing software, some of which would definitely qualify for fair use, some of which would definitely not qualify for fair use, and some of which would represent a gray area. It is impossible, and misleading, to try to speak to the overly broad question is whether fair use is applicable to p2p file sharing. I have not seen a single case in which any logical fair use issue has been properly framed. I have never discussed, and will not discuss, any of those behaviors, and how fair use might or might not be applicable to them, because I am a practicing lawyer first, rather than an academic or theoretician or writer, and it is not inconceivable that I may someday be called upon to litigate the fair use defense in a p2p file sharing context. I only discuss issues like that AFTER, never BEFORE, I have briefed them, because I have no interest in giving the RIAA a free look at my thinking.

Copygrounds: Has the RIAA litigation model been adopted by other industries?

Ray Beckerman: Not industries, but there is a massive group of new motion picture cases adopting, and abusing to an even greater extent, the RIAA model.

Copygrounds: On that note I would like to get your thoughts on something Fritz Attaway of the MPAA said to us on Copygrounds. I asked if the RIAA litigation might serve as a model for future litigation by the movie studios. He responded that while the MPAA has filed some end-user suits they have determined that, in general, this tactic is too expensive for them and there are other routes for them to pursue which will provide better returns. So my question is this: To what extent has the motion picture industry pursued civil cases against individuals accused of copyright infringement over P2P networks?

Ray Beckerman: Use of the term “motion picture industry” is not helpful, because there are different segments. The MPAA—with which Attaway is affiliated—never followed the RIAA model of mass lawsuits. It did pursue people, but it appeared to have (a) much fewer cases and (b) a different investigative method. Lately there is a new wave of ‘motion picture’ litigation which does not involve the MPAA, which does involve smaller less major studio type films, and which is brought by contingent fee lawyers (which the RIAA and MPAA did not use). This one does follow the RIAA model but carries it to extremes even the RIAA did not employ.

Copygrounds: Has the number of new RIAA cases dropped off?

Ray Beckerman: RIAA cases appear to have dropped off. The contingent-fee, small movie, cases are already in the tens of thousands within a matter of months.

Copygrounds: I would also like to get your opinion on something Mr. Oppenheim stated on Copygrounds. The exchange was something as follows:

Brett Caraway: If the average settlement amount is in the neighborhood of $4000, is there a real expectation that an indigent defendant could achieve an equitable settlement amount after incurring attorney fees as part of the negotiation process?

Matt Oppenheim: The record industry has always been acutely aware that indigent defendants would likely not be able to pay standard settlement amounts. For this reason, defendants without the resources to pay a traditional settlement were asked to discuss with the record companies what they could pay and how. Often the settlements in those circumstances were for dramatically lower amounts of money, frequently paid over time. In some instances no payment was required at all. But, those settlements were handled individually with the particular facts and circumstances of each defendant taken into consideration.

Ray Beckerman: I consider his statement to be a crock. But he makes sure to keep the settlements secret so that we can’t verify it. There were some settlements below the standard average amount, but they were extremely difficult to get, even for many people who had nothing. I’m sure if there were any settlements where no payment was required, they were cases in which the RIAA had wrongfully sued someone and should have been reimbursing them for attorneys fees. The “average” settlement was in and of itself an abomination, as it usually represented thousands of times the RIAA’s actual damages.

Copygrounds: To what extent could defendants without the financial means for legal representation achieve an equitable settlement?

Ray Beckerman: Never. I’ve never seen an “equitable” settlement with him. With or without the means for obtaining legal representation.

Stay tuned.

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mention Oppenheim – Matt ‘The Dentist’ Oppenheim on Copygrounds, September 24, 2010
copygrounds Q&A – Ray Beckerman Talks to Copygrounds, October 28, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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http://riaa.com/

The requested URL /UOReQ/ was not found on this server.

Time? 10:15 am Pacific.

“Following the recent shutdown of LimeWire in which the Recording Industry Association of Amercia (RIAA) played a large role, a new DDoS attack is planned to take down the RIAA’s website for the second time”, said Unite the Cows yesterday.

The planned attack would start around 4pm EST 10/29″, says the post, adding:

“The power of Anonymous is not to be underestimated, especially when we look at the damage they caused to ACS:LAW and more recently ACAPOR.”

Could it be the 4Chan/Anonymous Operation Payback Low Orbit Ion Cannon is back in action?

Also targeted to date (as far as we know) >>>

ACS:Law; RIAA; MPAA; AiPlex; Davenport Lyons; TMG.e; AFACT; WebSheriff; DG Legal; GM Legal; Ministry of Sound; MCU; pro-musicae; FIMI; IFPI; Gallant Macmi; and, Intellectual Property. Office.

Also see Bomb threats? They’re just the start …

Stay tuned.

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Unite the Cows – New DDoS Planned Against RIAA, October 28, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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But it isn’t.

The most famous victim in the Big 4 labels Sues Their Own Customers travesty, she’s “filed a motion for reconsideration requesting the Court to now reach the constitutional due process issue which it had declined to reach in its prior decision setting aside the verdict on the ground of remittitur, but not on the basis of due process”, says Recording Industry vs The People.

A ‘remittitur’ is procedural process through which an excessive verdict of the jury is reduced.

She points to judge Nancy Gertner’s decision in SONY v Tenenbaum, suggesting a third trial “would likely reach the same result as the first two trials”, says the post.

What does this latest move mean? – p2pnet asked Jammie.

It was made “due to the Judge showing a strong inclination, at the pretrial hearing to address the constitutional issue to prevent a ‘Groundhog Day’ scenario from happening (the jury award being outrageous, the judge reduces the award on remitter, the plaintiffs refuse to accept the remitted amount so a new trial on damages is scheduled and held, rinse and repeat)”, she said.

“I have very competent attorneys … and I no longer have any worries about what needs to be done and when.”

A cartel of foreign record companies

Boston student Joel Tenenbaum was ordered to pay the labels $675,000  for downloading 30 copyrighted songs.

The amount was later reduced to $67,500, judge Gartner ruling in a 64-page decision >>>

• Statutory damages must bear a reasonable relationship to the actual damages; and,
• The usual statutory damages award in even more egregious commercial cases is from 2 to 6 times the actual damages.

Even then, after concluding the actual damages in the Tenenbaums case were ~ $1 per infringed work, “she entered a judgment for 2,250 times that amount”, said Recording Industry vs The People.

Owned by Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by Canadian Edgar Bronfman jr), ‘RIAA’ is short for Recording Industry Association of America.

This ‘trade’ association, working for a cartel of foreign record companies, has been chasing Jammie from pillar to post ever since it was wrongly awarded almost two million dollars after calling her a criminal and thief, a,  ‘massive online distributor’ of copyrighted corporate music.

But she’s not alone. The RIAA has for years been extorting ‘Pay us and we’ll go away’ money from innocent American families with impunity, falsely claiming its owners are being “devastated” by people who share music with each other online.

They say files shared equal sales lost. But a number of authoritative academic and other studies say otherwise; that file sharing is in fact an invaluable form of viral advertising.

Because the truth is: the RIAA Sue ‘Em All lawsuits aren’t about copyright infringements. They’re part of a continuing bid to gain control of the internet as an exclusive corporate sales, distribution and marketing vehicle.

A long haul

In June, 2009, “The RIAA lawyers say she’s a thief”, said p2pnet, going on >>>

But she’s nothing of the kind. Rather, she’s a hard-working mother who during the day is the Brownfield coordinator of the Mille Lacs Band of Ojibwe Indians in Minnesota. She’s responsible for administering a grant from the US Environmental Protection Agency for her tribe to redevelop contaminated properties.

She’s also in charge of housing and land acquisitions for the Band’s Department of Natural Resources and Environment

“I try to focus on the day to day of life instead of the potential outcomes,” she says.  “I know, win lose or draw, it won’t be over for a long time. So I just hunker down for the long haul and hold on for the ride.”

And a long haul it’s been.

“The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. Moreover, although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.”

So said judge Michael J. Davis in a decision which ordered Jammie to payes Big Music $2,250 instead of $80,000 for each of 24 songs she’s said to have downloaded without permission.

She was originally ordered to pay $1.92 million.

But he didn’t reach the constitutional due process issue raised by Jammie’s counsel, instead deciding the motion based on standard principles of ‘remittitur’, said Ray Beckerman on Recording Industry vs The People, going on >>>

The judge described the standard for remittitur as follows:

so grossly excessive as to shock the conscience of the court. A verdict is not considered excessive unless there is plain injustice or a monstrous or shocking result

In discussing the factors upon which his decision rested, Judge Davis indicated that he had found that Ms. Thomas-Rasset lied under oath.

Judge Davis also indicated that he found even the reduced amount to be “harsh” and that, were he — rather than a jury — deciding the appropriate measure of damages, the award would have been even lower than $54,000. But he felt that since the jury had determined the damages, it was his province to determine only the maximum amount a jury could reasonably award.

Stay tuned.

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Recording Industry vs The People – Jammie Thomas moves for Court to consider constitutional due process issue, October 20, 2010
two million dollars – Jammie Thomas-Rasset: file sharing thief, June 10, 2010
p2pnet - Jammie Thomas-Rasset: file sharing thief, June 10, 2009
reduced to $67,500 -Award slashed in RIAA vs Tenenbaum, July 10, 2010
Recording Industry vs The People -$675,000 verdict reduced to $67,500 in SONY v Tenenbaum, July 9, 2010
Recording Industry vs The People -Jammie Thomas verdict reduced from $1.92M to $54,000, January 22, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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But this is one of those all too rare occasions.

I’d like to personally thank Monkey D. Luffy for reminding us, in a p2pnet Reader’s Write yesterday, of something none of us thinks about enough.

Here’s what Mr Luffy said:

“Every time you steal from the great deity Steve Jobs or the RIAA, a kitten dies …”

Sooooooo true.  And so sad.

Certainly, this tragic reality is ignored every hour of every day by the the hundreds of millions of file sharing criminals and thieves who blight the honest record labels and artists as they try to eak out their precarious livings online, beset on all sides by men and women, and even children, who would rob them blind, depriving them of what is rightfuly theirs as they plunder songs lovingly crafted by artists, wrought by their blood, sweat and tears as they ….

I could continue, but this is meant to convey my — Nay, our — message that every time a song is illegally downloaded, not only are contracted corporate employees from all sides thrown onto the streets to fend for themselves —-

—- a little kitten dies

So Save A Kitten Today!

Don’t steal a song!

Thank, you Mr Luffy.

Mitch Bainwol - RIAA

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September, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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‘MO’ is RIAA attack dog Matthew ‘The Dentist’ Oppenheim (right), who’s currently trying to weave a web of misinformation, disinformation and outright bullshit on copygrounds.com, a new University of Texas online course discussion forum for students.

“There’s an interesting online dialogue developing between Joel Tenebaum, one of the RIAA’s more famous Sue ‘Em All victims, Matt ‘The Dentist’ Oppenheim, one of the RIAA’s more famous BS-slingers, and Charles Nesson, the Harvard law professor who defended Joel”, p2pnet posted yesterday, continuing.

“Oppenheim, a lawyer who turns up in RIAA cases although he no longer works for the Vivendi Universal, EMI, Warner Music and Sony Music legal extortion unit, earned The Dentist nickname when he went after Jessie Jordan who was trying to establish a search engine, way back. He described himself to Jesse as ‘a dentist you don’t ever want to have to visit again’. He also once said the ‘Fourth Amendment does not apply to (the RIAA)’.”

It “seems that there is much to discuss regarding the intersection of  copyright, the internet and peer to peer”, says Oppenheim on the Universityof Texas copygrounds page.

But, if you read it [Oppenheim's failed attempted dismissal of Tenebaum's Q&A], “you’ll see he willfully misinterprets what Joel means” says Robert in his Reader’s Write to the p2pnet post.

Robert goes on >>>

MO: First off, Joel makes the curious statement that he “just wants a fair day in court for the allegations against me.” This statement seems to forget the history of what has happened. Joel had a full-blown trial in front of a Boston jury and a federal district court judge. While on the stand, Joel testified, for the first time after several years of litigation, that he was responsible for the p2p use that he was accused of engaging in. Based on that admission, the District Court Judge held that Joel was an infringer. And, a jury found that his conduct was willful and worthy of a significant damage award. The suggestion underlying Joel’s comments that he “wants a fair day in court” is akin to a giraffe claiming that it wants to be tall. It makes no sense. Joel had his fair day in court and was found to be a willful infringer.

JT: I tried to settle — multiple times. I offered $500 from the outset and $5250 in court, but by then, this offer was apparently not enough for the music labels. And besides, the idea that someone could just call you up and ask you for thousands of dollars, showing no hard evidence, without your getting a fair day’s representation in court seemed absurd.

The RIAA sued me. I just want to have a fair day in court for the allegations against me. I’m not the one who can dismiss the lawsuit.

[...]What I’m fighting in court is that $675,000 — and even $67,500 — for 30 songs is unjust. Turns out that you can NOT use a civil law suit to “deter” other individuals: it’s an abuse of court. And so, “making an example” out of me to scare others is more than just unfair.

Robert: What Joel considers unfair is not that he was under represented or that he didn’t commit an act of infringement, he said the “damages” requested are the unfair part, and the lack of any hard evidence …

** DEEP POCKETS **

MO: Second, Joel makes the unfounded claim that the RIAA gets “to buy more justice by having the deep pockets necessary to pay dozens of lawyers to fabricate an interpretation out of a statute we believe wasn’t intended.” This kind of accusation not only lacks any merit, but avoids any worthwhile discussion of the issues. Joel Tenenbaum can hardly claim that he lacked for legal counsel; he had a preeminent Harvard Law School professor, a team of Harvard Law School students, a Boston litigation law firm and his mother (an attorney), all representing him. There also is no merit to the suggestion that the copyright law was not intended for the purpose of addressing p2p copyright infringement. Dozens of federal courts have found that the unauthorized uploading or downloading of copyrighted music on a P2P network is copyright infringement. Moreover, the Congressional Record is replete of support for this conclusion. It may sound good for Tenenbaum to claim that the copyright law was not intended to deal with the likes of his infringement, but it simply is not true.

– Nowhere did Joel say he was not well represented, so that’s again a strawman fallacy. “lacks merit, but avoids worthwhile discussion of the issues” is also false, because nowhere is [there] an argument to counter the statement of deep pockets provided. It’s entirely sidestepped. Secondly, it HAS been proven that the lawyers have been abusing the law and several judges have commented as such, see riaavsthepeople.com for the details or read the court hearings on Jammie Thomas or Tanya Andersen.

– Name the “dozens” of federal court cases where judges have found the unauthorized uploading/downloading as infringement? Settlements do not count and bringing a case before a judge does not count either! Name the cases and link to them. And no where does Joel say that copyright law is not related to his infringement. Joel states that the claims of devastation are full of shit, which is true, and anyone who wishes to read the balance sheets of the labels could attest to that.

– The entire rebuttal is one large strawman argument, comprised of smaller strawman arguments.

MO: Third, Joel suggests that he used P2P networks to sample music to decide whether to buy it or not. I have heard this defense for years. Apart from the fact that it lacks any legal merit, it isn’t accurate factually. If you were only sampling to buy, you would download a file, listen to it, decide whether to buy an authorized copy, and then delete the infringing copy. When individuals, like Joel, maintain large libraries of infringing copies in a share directory, they cannot fairly claim that they are just sampling.

– Just as the labels have [no] hard proof of infringement, they can’t prove that people who sample do not buy either! There’s a reason so many restaurants and grocery stores provide free samples now and again: because IT INCREASES SALES. Exactly what “legal merit” is this lacking? There is nothing legal about it. If you are referring to “hard proof” they refer to the studies that ARE independent and far more accurate than “music industry loses 17 billion each month” type studies that were used to push through laws, along with payments in forms of campaign contributions. Contrary to the belief that this isn’t true, the funding is taxable and is also in balance sheets available to the public, since it is the government’s public service people who are receiving this money.

– Deleting the infringing copy? Why is that even relevant? You purchase one, you’ll likely overwrite the bad quality one, unless the purchased one is of worse quality, as who needs two copies on their HDD of the same song? Or is MO referring to a copy on the CD and HDD and iPod? At which point it is NOT illegal to have a copy on each device, at the same time.

– Large libraries of songs in a single directory not sampling? Of course not, it’s the same as combining their photos from multiple albums into one location on their HDD; organization! Why does it matter whether the songs are on purchased CDs AND on HDDs? Who uses CD players when their computer has a much larger library two which you can enjoy hours of music without changing discs, not to mention a great mix-up.

– How is any of the last two points illegal? It’s simply organization and NOT illegal, especially when the samples lead to purchased copies, which are stored on a HDD instead of several discs. It’s paid for, why does storage means matter? It’s not a legal matter at all.

– Your main issue is, and only is, the fact that the location of the files is in a SHARED directory, regardless of how many copies of the same song exist or what media is used for storage or how it is stored. Joel’s only ‘legal’ fault is, which has NOT been vastly accepted by the legal system but only a few judges (few =< 5 — hardly the entire legal system), knowingly using a file sharing protocol which permits others to copy material from his shared folder to their folder. (It would really help if you understood that every website that is ‘copyrighted’ is actually infringed because copies are placed on one’s computer by simply viewing the site — it’s unavoidable, otherwise you’d never see the site material!).

** CONCLUSION **
The only real problem is: Joel used a file sharing protocol and shared music he was not authorized to do so, which he admitted to, but the damages suffered are not even close to that which the industry claims to be true.

Oppenheim, you are not a very good with logic and reasoning, and the only way you could possibly be of any assistance to prosecutors is to hope to have a judge who doesn’t bother to read or pay attention to the arguments presented.

I’m not a judge or a legal expert, but I’d throw your butt out of the court room …

Stay tuned.

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September, 2010

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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So the many millions of dollars spent by the RIAA to promote the law, and claims by him and other RIAA employees that ‘piracy’ was being kept in check, were just bovine excreta?

Acording to Sherman, the 1998 Digital Millennium Copyright Act has “loopholes” that “allow broadband providers and Web companies to turn a blind eye to customers’ unlawful activities without suffering any legal consequences”, says the story.

His statement assumes ISPs and webcos have some kind of responsibilty for what their customers do.

If that kind of thinking prevailed anywhere else, there’d be chaos.

Picture it: Ford sued every time a drunk driver kills an innocent pedestrian.

But we’re talking about the RIAA and its owners, Vivendi Universal (France), Sony (Japan), EMI (Britain), and Warner Music (US, but controlled by a Canadian). For them, no position is so bizarre or ridiculous that it can’t be adopted. And no one will say anything about it, least of all the lamescream media.

“The DMCA isn’t working for content people at all,” Sherman told the Technology Policy Institute’s Aspen Forum, says CNet, quotinghim as stating, “You cannot monitor all the infringements on the Internet. It’s simply not possible.”

Interesting. But before we get to that, “In response to a question from CNET, Sherman said it may be necessary for the U.S. Congress to enact a new law formalizing agreements with intermediaries such as broadband providers, Web hosts, payment processors, and search engines” says the story, going on:

“The RIAA would strongly prefer informal agreements inked with intermediaries, Sherman said: ‘We’re working on [discussions with broadband providers], and we’d like to extend that kind of relationship — not just to ISPs, but [also to] search engines, payment processors, advertisers’.”

In Big Music’s perfect world, all companies even remotely associated with the music industry would be ratting out their customers left, right and centre.

‘Monitoring software installed on people’s computers … ‘

Sherman’s observations about monitoring difficulties notwithstanding, “We already know that content providers don’t care one bit about hard-fought concepts like freedom and privacy, but the joint proposals by the RIAA and MPAA to the US Intellectual Property Enforcement Coordinator really blew my brains out”, p2pnet quoted Thom Holwerda as saying in OS News recently.

He’d been moved to comment by a Deep Links post from Richard Esguerra, staff activist for the (EFF) Electronic Frontier Foundation.

Monitoring software installed on people’s computers, border inspections – “it’s all there, and then some”, said Holwerda, continuing >>>

As you may recall, the US Intellectual Property Enforcement Coordinator made a request late February for comments on how the United States should handle intellectual property enforcement within the current administration. Apart from advice from the public and organisations like the Electronic Frontier Foundation, big content itself is of course also allowed to shine their light on the matter. Which is good.

What isn’t good, sadly, are the idiotic measures they’ve come up with. If it were up to the RIAA, MPAA, and similar organisations, the American public’s privacy isn’t worth a darn dime. For instance, they state that people should install software on their computers that continuously scans the hard drive for files that may infringe copyright, similar to how antivirus software works. While they add the “voluntary” modifier, the Sony rootkit fiasco has shown us that these people are not to be trusted.

Not only should such software be installed and used by ordinary people, network administrators should install them network-wide as well. Big content already managed to buy talk US Congress into forcing institutions of higher education into employing such technologies on their campuses back in 2008.

If that wasn’t enough, big content also wants to use border controls and customs as means to combat intellectual property infringement. They want customs to inquire people about infringing content, and taking into account the contents of the latest leaked ACTA proposals, this would also include unlimited access to digital music players and laptops at the border.

But wait, there’s more! The RIAA and MPAA also want to bully countries with more modern and balanced copyright laws, such as The Netherlands. They suggest using the infamous Special 301 report, a list which identifies countries that, according to the RIAA, MPAA, and BSA have too loose IP protection laws. What’s too loose? Canada is listed because it requires customs to have court orders before searching digital devices at the border. Chile is listed because it instated fair use exceptions to copyright. Israel is listed because DMCA-like legislation was rejected there because it was deemed ineffective.

Countries listed in the Special 301 report would then be “put [...] on notice that dealing with such hotbeds of copyright theft will be an important topic of bilateral engagement with the U.S. in the year to come”. In other words, the US should sour relationships with allied countries just because their democratic processes work better (and thus more accurately reflect the will of the people, namely that individual downloading and fair use are not wrong).

Lastly, the RIAA and MPAA want to enact a joint task force with the FBI and Department of Homeland Security that should pro-actively prevent the leaking of summer blockbusters (among other things). “An interagency task force should work with industry to coordinate and make advance plans to try to interdict these most damaging forms of copyright theft, and to react swiftly with enforcement actions where necessary,” they say.

I wish I was making this stuff up. We can laugh all we want (and as a Dutchman living with relatively modern copyright laws, I most certainly do point and laugh), but the fact of the matter is that these proposals are not as unlikely to be accepted as it seems.

The Obama administration has already sided squarely with the ACTA proposals, which are more or less exactly the same.

Don’t be surprised to see these proposals come into effect sooner rather than later.

Since I don’t want to be writing the same thing over and over again, let me just copy what I said in a comment on our previous article about this subject.

Should the government have protected companies that made carriages when cars became popular? Should they have supported typewriter makers when word processing software became capable enough? Should they spend tax dollars supporting oil companies once an alternative becomes available? If the Microsoft Windows ecosystem were to ever suffer some sort of devastating blow leading to a mass exodus of users, should the government enact laws to force people to use Windows and buy Windows software anyway, because else so many jobs would be lost?

“What’s more important to you, Mr President? -  Holwerda asks in OS News.

“Those juicy RIAA/MPAA campaign dollars, or the rights of the American people?”

No need to stay tuned.

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… and identi.ca

CNet News – RIAA: U.S. copyright law ‘isn’t working’, August 23, 2010
p2pnet – RIAA, MPAA to IP czarina Espinel: II, April 16, 2010
OS News – RIAA/MPAA Want Monitoring Software, Border Checks, April 15, 2010
Deep Links – The Entertainment Industry’s Dystopia of the Future, April 14, 2010

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