Recording Industry vs The People: Brooklyn Law School investigating its students for MPAA

Wednesday, October 28, 2009

Brooklyn Law School investigating its students for MPAA

We have been advised that Brooklyn Law School students have received the following email from Brooklyn Law School:

From: Phil Allred
Date: October 28, 2009 11:49:41 AM EDT
To: All Users
Subject: [BLS] Illegal downloading

This semester we have received several warnings from our Internet service provider that copyrighted movies and TV shows are being downloaded illegally via our wireless network. The Information Technology office is now ascertaining who is doing this. Once we have names of the individuals involved, we intend to give them to the copyright holders for enforcement purposes.

We remind everyone that copyright abuse is illegal and that use of the Internet while at Brooklyn Law School must be in accordance with our published Terms of Service document located at http://www.brooklaw.edu/terms.

Phil Allred
CIO
Brooklyn Law School

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

14 comments:

quietlyconfident said...: One would think that this contravenes the BLS terms of service & Privacy Policy: (emphasis mine)

Privacy Notice
Brooklyn Law School takes privacy seriously. In general, we will not disclose or sell your data to third parties, except as required by law or judicial action, or as explicitly given permission by you. Brooklyn Law School is a not-for-profit educational institution; therefore, the disclosure of most of your data is governed by Federal Law.

...

Data sharing: Brooklyn Law School does not share log data (i.e. which services you have accessed) with third parties.
...; October 28, 2009 at 4:26:00 PM EDT
Anonymous said...: Absolutely ridiculous that a law school would sell out its students like this.; October 28, 2009 at 4:40:00 PM EDT
raybeckerman said...: Seems rather odd.; October 28, 2009 at 4:53:00 PM EDT
DreadWingKnight said...: Kind of odd that a law school would violate their own terms of service contract like that (at least that's what I see from here).; October 28, 2009 at 6:52:00 PM EDT
Anonymous said...: It's also a good way for a school to lose students. Most educational institutions consider situations like this "learning opportunities", not "let's throw our students to the MPAA's mercy opportunities".

You can imagine how many top quality students won't apply there in the future, because they know the university doesn't have their back, at all. That's something the university heads should intervene on. And if press coverage is large enough, I speculate they will.

XYZZY; October 28, 2009 at 9:21:00 PM EDT
Anonymous said...: >>The Information Technology office is now ascertaining who is doing this. Once we have names of the individuals involved...

Uhmmm, and just how do they plan on identifying the "individuals" involved??

-xox-; October 29, 2009 at 11:16:00 AM EDT
derivative said...: Speaking of "learning opportunities", I could be wrong, but I suspect that if somebody in charge of the law school realized that their "CIO" was threatening students, violating the TOS, and otherwise being a jackass, probably all over the desire to save a couple of thousand dollars a month in bandwidth costs, said "CIO" might be receiving his own "learning opportunity."

Any high powered lawyers know anybody in charge there?; October 29, 2009 at 12:41:00 PM EDT
Anonymous said...: Look at Stanford.

http://www.stanforddaily.com/cgi-bin/?p=1035083; October 29, 2009 at 3:04:00 PM EDT
derivative said...: If you read between the lines on the Stanford one, they are going after "uploaders", not "downloaders."

The Brooklyn thing might be the same, but there aren't that many lines to read between and the article explicitly states "download" so who knows?

It's bad either way, but it's much worse if they really are going after downloaders. You shouldn't be able to get into trouble for watching something that someone else really shouldn't have uploaded to youtube.; October 29, 2009 at 4:52:00 PM EDT
Matt Fitzpatrick said...: Someone should make sure Mr. Allred is aware that the "... of America" part of "MPAA" does not mean the MPAA is a government law enforcement agency.; October 29, 2009 at 7:36:00 PM EDT
Justin Olbrantz (Quantam) said...: If I weren't too lazy, I'd write him a sincere thank-you e-mail. Choosing the right university is hard, and he's made the decision just a little bit easier.; October 29, 2009 at 7:54:00 PM EDT
quietlyconfident said...: This morning, BLS backed off and changed their policy back to a more sane position:

________________________________________
From: Announcements On Behalf Of Phil Allred
Sent: Thursday, October 29, 2009 12:08 PM
To: All Users
Subject: [BLS] Update on illegal downloads e-mail notice

Yesterday, I sent out an e-mail regarding the recent spate of abuse notices we have received from our Internet service provider. Under our contract, users are prohibited from downloading copyrighted works. If we knowingly allow such activity to continue without taking action, we risk losing access to the Internet. When we can ascertain the people who are responsible for alleged illegal downloads, we will notify them to cease such activity. We will comply with the Digital Millennium Copyright Act (http://www.copyright.gov/title17/92chap5.html#512 ). Outside of the legal process, we are not obligated to turn over the names of the alleged infringers to copyright holders and will not do so.; October 29, 2009 at 8:15:00 PM EDT
Anonymous said...: Well, what do you expect from a TTT law school?; October 30, 2009 at 2:46:00 AM EDT
DreadWingKnight said...: Ultimately though, because the MPAA is an organization of private companies and not a division of a law enforcement agency, if there's no court order in place, this CIO is violating the TOS as well by providing the information.

Doesn't exactly give him a lot of high ground to fight on; October 30, 2009 at 5:45:00 AM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove