Tuesday, July 7, 2009

DMCA in the S.D. of New York

My friend Lisa Jane has been disappointed that I haven't written on this blog for a while. To her I apologize, but there hasn't been a lot of time lately. I did see something today that made me do the happy dance. It's reported on here and here. It's an R.I.A.A. case, Arista Records v. Usenet.com.

The ruling is on the use of the Digital Millennium Copyright Act (DMCA) safe-haven provisions and it is time for copyright owners to breathe a sigh of relief. First of all, it is in their favor. Second, it's in the Federal District Court for the Southern District New York, where a lot of copyright litigation takes place.

I'm looking forward to reading the actual ruling, but the bottom line is that Usenet.com got slammed for claiming what it was doing was protected by the safe haven when it did things like destroy evidence and encourage the use of the service to infringe on the copyrights of others.

When I represented Harlan Ellison against AOL, AOL claimed it was entitled to the safe haven because copyrighted material uploaded by others was only "in transit" on their servers (how the material sitting for weeks on AOL's servers constituted "in transit" was beyond me, but the trial court judge bought it.) Ultimately, Harlan prevailed in part because the Ninth Circuit believed that AOL did not hold up its end on what it needed to qualify for the safe haven (by keeping accurate information about its agent for service of notice of copyright infringement available on the Copyright Office website.) In part, that's what's bringing Usenet.com down here, but there is also the matter of the court recognizing that the material was residing on Usenet servers so other people could download it.

I am so glad to see a better understanding of the damage that the DMCA can cause copyright owners as time has passed. Harlan's first filing was in 2000, occurring pretty much at the same time as the Napster litigation. There was almost no support for what we were doing and individuals who should have seen what we were doing was in their best interests as well just didn't.

Not everything has been resolved by this ruling, and I'd lay money that it is appealed, so I'll be watching what happens. Probably with a big smile on my face. I think I'll look up Judge Harold Baer and see what his other rulings look like.