Posts Tagged piracy

New Copyright Alert System Infringes The Constitution

The so called Copyright Alert System (CAS) or better known as Six Strikes is beginning this week and many ISPs including Comcast, AT&T, Verizon,  Time Warner and others will begin policing the Internet for the RIAA and MPAA. The ISPs will first send out warnings if their system determines there has been an unauthorized download coming from your IP address. If you get too many your service may be downgraded and even terminated completely. An entity set up by the ISPs, RIAA and MPAA called the Center for Copyright Information is charged with “educating” those accused and will hear your case for a $35 fee if you fight their charges.

There have been many cases lately where judges have ruled an IP address alone is not sufficient evidence of wrong doing and it in no way proves who did it or even whether any downloading occurred. If CAS relies solely on IP addresses then the standard of evidence is far below that of regular courts and even with regular courts many are falsely accused so the risk is even greater with this outfit.

The problem  is this scheme is blatantly unconstitutional. The Constitution grants Congress sole authority to enact copyright laws and only federal courts have jurisdiction to handle copyright cases and punish violators. The new Copyright Alert System (CAS), or “Six Strikes” does an end run around Congress and the Federal Courts and has set up a quasi-judicial system to punish copyright infringers apart from the federal courts.

There is zero transparency on the process of determining guilt with no apparent appeals process or due process. The process for determining infringers is secret and they alone decide your guilt or innocence.

Righthaven case law could come into place here. Righthaven is now a defunct copyright troll but in their hay-day they were threatening to take the domain names of those they were suing for copyright infringement. Courts ruled that there was no provision in copyright law to award a domain name as part of a copyright infringement suit. Likewise there is no provision in copyright law for an ISP to deny or ramp down service as a punishment for copyright infringement. The ISPs along with the RIAA and MPAA are creating their own law and extra-judicial system to punish copyright violators.

Call your ISP and let them know this system is unacceptable and will not even have the desired effect of reducing piracy. Call your Congressmen and Senators and let them know their authority is being infringed upon. It is a blatant hypocrisy for the RIAA and MPAA to set up a system to go after alleged infringers when they themselves are infringing on the Constitution.

This will undoubtedly fail like similar attempts in France and New Zealand and everything else the RIAA and MPAA  have tried but on the way a lot of innocent people will be victimized by this sham. The only thing that will mitigate piracy is to offer legitimate alternatives and adapt to a changing market place.

Related story from Arstechnica:  What the 1930s fashion industry tells us about Big Content’s “six strikes” plan

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New Federal Judge and Former RIAA Lobbyist Becomes Darling of Copyright Trolls Everywhere

Newly minted Federal Judge Beryl Howell, of the Federal District Court of Washington DC, who’s resume includes being a lobbyist for the RIAA, Helped Draft the DMCA, and was a lawyer for a company that specializes in tracking down and suing alleged copyright violators, in one of her first rulings has opened the floodgates to mass lawsuits by copyright trolls. With her long history of being on one side of the copyright law it would have behooved her to recuse herself as to avoid even the appearance of a conflict of interest but instead issued a ruling that essentially overturned other judges in other districts who had thrown out so called John Doe or reverse class-action lawsuits as being an unconstitutional violation of due process and the rights of the accused.

She also denied Time Warners request to limit the number of subpoenas to 28 a month so they and other ISPs would not be unduly burdened and in doing so handed the plaintiffs a zero – infinity number of defendants they can find and opening the flood-gates to a deluge of paperwork that will take years to process. She also denied the motion to limit all subpoenas to potential defendants that reside in her district. Taking a huge overstepping of her authority she granted nationwide supeana power to the plaintifs. Only after a defendant has been named during discovery could the defendant then make a motion challenging the jurisdiction but there is no limit to where they can pursue them.

http://www.scribd.com/doc/51383490/COTW-doc-no-40

When the defendants are named, they will have the opportunity to file appropriate motionschallenging the Court’s jurisdiction and that will be the appropriate time to consider this issue.The Court and parties are in no position yet to evaluate each putative defendant’s specificconnection with this jurisdiction. Quashing the subpoenas would effectively bar the plaintiffs’from obtaining discovery pertinent to that evaluation, and this Court declines to cut off jurisdictional discovery prematurely when the defendants are named, they will have the opportunity to file appropriate motions challenging the Court’s jurisdiction and that will be the appropriate time to consider this issue. The Court and parties are in no position yet to evaluate each putative defendant’s specific connection with this jurisdiction. Quashing the subpoenas would effectively bar the plaintiffs’from obtaining discovery pertinent to that evaluation, and this Court declines to cut off jurisdictional discovery prematurely.

The defendants that are identified may have to wait till the discovery period is over, which could be years if ever, before they could even attempt to defend themselves. Meanwhile they will be hounded relentlessly by lawyers seeking settlements. In many cases the cost of litigation will be too high and many will not be able to afford lawyers and be forced to settle regardless of the merits of their individual case.

Judge Beryl Howell has become the darling of copyright trolls everywhere. Hopefully this ruling will be overturned on appeal but one thing is curtain Judge Beryl Howell has taken her life’s work to the bench and has way overstepped her authority. If this is not a conflict of interest nothing is.

“Unquestionably, there are online crooks who are getting away with impunity. Victims are fending for themselves.” – Beryl Howell.

I have created a Facebook group “Impeach Judge Beryl Howell for Conflict of Interest” to bring awareness of this judge and track, discuss, and document her rulings. Anyone with a Facebook account can join.

http://houstonlawyer.wordpress.com/2011/03/29/judge-beryl-howell-how-her-decision-affects-copyright-infringement-defendants-cases/

http://www.switched.com/2011/03/29/judge-beryl-howell-used-to-be-riaa-lobbysit/

http://arstechnica.com/tech-policy/news/2011/03/riaa-lobbyist-becomes-federal-judge-rules-on-file-sharing-cases.ars

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