Tuesday, June 30, 2009

RIAA wins case against Usenet.com based on discovery sanctions & summary judgment

In Arista Records v. Usenet.com, Inc., both of the RIAA's motions -- for discovery sanctions and for summary judgment -- have been granted, and the matter referred to the Magistrate Judge for determination of damages and an appropriate injunction.

Decision granting plaintiffs' motions
Order of reference to Magistrate Judge

Commentary & discussion:

e-Discovery Team

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


T2 said...

Judge Baer's decision is well-written and a good well-researched read. In my opinion, the Usenet case is much-more clear-cut then P2P cases: there was centralized control over copyrighted content, clear distribution, serious money-making, and gross misconduct during discovery. I feel the RIAA was justified to pursue such an organization.

P2P users are a different matter altogether. And yet, it will be quite odd if the damages awarded by the Magistrate Judge are lower (per song) than those awarded in Jamie's case.

Eric said...


To disagree Usenet presented a clear DMCA defense that copyright holders failed to follow. I can't seem to find the exact "misconduct" during discovery and I would find it hard to believe since usenet can be scraped from hundreds of different sources. The judge seemed to brush off the DMCA defense for reasons that are not exactly clear to me.

If gmail was a clear source of copyright violations it would not be google's fault, even if they did store, forward, and profit from the infractions indirectly. It's the reason we have the "safe harbor" provisions of the DMCA.

Usenet should have just done what every RIAA case does, claim attorney-client privileged on anything they don't want to divulge.

There does appear to be a clear bias in these cases, a presumption of sorts, that the data being brought by the copyright holders is correct and everything else is suspect.

John said...

Eric -

"I can't seem to find the exact "misconduct" during discovery and I would find it hard to believe since usenet can be scraped from hundreds of different sources. The judge seemed to brush off the DMCA defense for reasons that are not exactly clear to me."

The Judge devotes 4 full pages to recounting the misconduct involved on pages 8-12 of the opinion. In short -- purposeful deletion of data covered by a discovery order, perjured depositions, witness tampering, and intentional delay.

As a result, the court imposed the sanction it saw fit, namely the preclusion of the DMCA defense, which, given Usenet's active promotion of and knowledge of copyright infringement, seems more than just.

T2 said...


The DMCA does not apply in certain cases, as described in the decision and as you said. You are also correct that profit-making alone does not prevent an exclusion or safe harbor. I also agree about Google and with your general statements that the RIAA's word is taken as fact when, often, and especially on technical matters, they are delivering nonsense to non-technical judges.

In my view, the Usenet case was a one-off case where the operators went too far. The decision is long, but worth reading for the details; it will answer your objections, I believe, or help you refine them.

In short, by "too far" I mean that the Usenet operators blatantly and aggressively marketed their system (esp. their Usenet.com portal) as a way to download popular music for free and safely, often on sites linking to theirs for specific copyrighted content; Google does not pitch itself in this manner. In addition, they had been reluctant and slow to take action to protect the interests of copyright holders when told that copyrighted content resided on their systems (which it did, and profusely so); Google is much more proactive in honoring requests from labels (arguably, too proactive and accommodating of the labels' every paranoid whim).

The misconduct during discovery is described in the decision, at length. Attorney-client applies only to communication between, well, attorney and client. You can't claim attorney-client to withhold employee names or company emails (unless to company counsel), for example.

One part worth noting is that the site operator destroyed all evidence of users' activity with respect to copyrighted content; while an honorable act insofar as the site promised anonymity to users, it was still evidence spoliation.

FYI, my personal interest in it comes from my participation in newsgroups since the early 90's, observing the rise of web-based newsgroup portals (like Usenet.com), and fielding questions from non-geeks about newsgroups. Hence I have observed Usenet.com's conduct since its early days first-hand and I didn't rely on RIAA's claims to form my opinion. Gmail is good, youtube is fine, even (many, but not all) torrent sites act reasonably in business and litigation: Usenet.com did not and got what was coming to it. If they had kept data-agnostic storage servers (in the old newsgroup model), and followed the Federal Rules of Evidence during litigation, that'd have been fine --- they'd be covered by the DMCA as you argue; they did not.

Eric said...

I see the section now.

My current issue with the Plaintiff's motions is they are a condemnation against "usenet" and not specifically Usenet.com.

Anonymous said...

This man hopes that they appeal. For the judge to throw out a DMCA defense as a sanction does not sit well in this quarter and an Appeals Court might easily rule that the judge acted incorrectly in this regard.

{The Common Man Speaking}

Anonymous said...

This stuff has been tried before. On usenet there is an alt.binaries newsgroup and subgroups thereof. It is polite to post binary files to these newsgroups only. Many newsgroup server maintainers have considered the merits of excluding alt.binaries from the newsgroups that they cache locally. The merits are few to none, particularly with the advent of TOR, and VPN services. It is much harder for ISPs to block their subscribers access to newsgroup servers that do have the alt.binaries newsgroups. All they can achieve is to "sweep the problem under the carpet" and force their subscribers to encrypt the traffic that their filters don't approve of.

The original point of newsgroup servers was to have a local cache of stuff marked for public broadcast by the broadcaster. This would reduce traffic on the internetwork, as local users would use local newsgroup servers in preference over the better service and same content. Clipping the alt.binaries hierarchy would force anyone who wished to browse the alt.binaries hierarchy to set up their computer to access a non-local newsgroup server. If their non-local newsgroup server provides the service that they want, then why not use it for everything?

The only people that this disadvantaged was the local ISP as only very light users would be using the local newsgroup server for anything, and all the heavy newsgroup traffic now required forwarded access. Also impolite users who didn't figure out how to reconfigure their newsgroup server settings could just post binaries to other newsgroups.

Also the only advantage it gained for the local ISP was less hassle from the legal marionettes for the content industry. It's sad that that may sometimes have been worth it.

You might consider that maybe banning international encrypted traffic might alleviate this problem, but it may well also have the undesired side effect of making all the rich people leave for places where they can use SSL to secure access to their foreign bank accounts.

This is the problem that the content industry faces. Too much money is made on the internet, legally, with encrypted traffic. Until they can get the banks (among other interested big-money groups) to agree that the encrypted traffic on the internet should be turned off, it won't happen, and file-sharing will remain unstoppable.


Albert said...

I think regardless of how bad Usenet.com was in destroying information, hiding witnesses and promoting itself, that it is wrong of the judge to prohibit raising the DMCA Defense, which is a right provided by the LAW.

Yes, by making this ruling it made life easier on the Judge, as it had the effect of making it impossible for Usenet.com to defend itself at all, and gave in effect an automatic win to the other side.

Yes, Usenet.com promoted the binaries available, but NOWHERE did I see any suggestion that the Usenet.com staff placed these items on Usenet in the first place, thus Usenet.com was NOT the publisher or speaker under the DMCA. In all cases it is always the extreme case that is used to justify things like this. Actually, I was waiting for the "Child Porn" card to be played in this case to make Usenet.com seem even worse.

I hope this is appealed and reversed. The DMCA exemption is too important to the current operation of the internet to be in effect ruled out in ANY case. Yes, these defendants are not angels by any means, but for a Judge to overrule a LAW as a discovery sanction is clearly wrong. If this stands, who is to say that Google will not be next.

Also, this ruling is bad for the American economy. It shows that if you want to create a website based upon the content provided by others, (think facebook, google) that you better give serious consideration of NOT setting up your business in the USA. Connections to other parts of the world are getting better and soon there will no longer be a speed disadvantage of not being in the USA. Microsoft has already suggested leaving the USA because of regulations here. Do we really want every one else to follow them out of the USA, leaving us as the only major country without internet jobs for its people? Internet based jobs appear to be the future. Should the USA be left out?


T2 said...

@Dokuro --- the technical facts you shared are accurate. Can you please point to past litigation (post-DMCA) by copyright holders against ISPs for storing Usenet caches (local servers) of copyrighted materials? I believe the DMCA provides adequate protection for these cases, as it was intended to do, provided the ISP acts reasonably.

@Albert --- the judge referenced case law where the DMCA Safe Harbor protection is lost (page 17), and that applied to the defendants in this case. That is, the right to safe harbor is indeed provided by law, but it is a right that comes with certain responsibilities --- which the defendants failed to meet.

As for economic arguments against this ruling, the War on Drugs started with Reagan under the illusion that borders can be closed to keep narcotics out: but, in fact, where there's demand, the suppliers will find a way. The DMCA is ill-conceived as well insofar as it disadvantages the US: the Internet is even more porous than the US borders. That said, economic arguments are all fine and good, but for the time being, narcotics are illegal and even state law cannot override the FDA; and the DMCA is the law of the land. It is up to Congress, not the Courts, to reverse legislation borne out of an unrealistic view of the US's ability to control flow of goods and content. But until Congress does so, citizens who disagree with the law must still abide by it and use legal means to effect change.

Albert said...


I think Removal as outlined In the DMCA is pointless in a Usenet enviroment. Sure, I can remove the articles that have been claimed by the rightsholder as the DMCA requires, but the next feed from another peer where the article still exists will result in the article being put right back on the Usenet.com servers.

In effect, short of stopping the Usenet feed for ALL articles, it would be very difficult to take down the articles, without them coming back from another feed.

I was under the impression the DMCA takedown rights were for content HOSTED by a specific company/person. Also, my understading as to the reason RIAA is no longer able to use DMCA subpoenas is that the content is not hosted by the ISP that is just providing a conduit. Thus these subpoenas can no longer be used in a peer to peer enviroment.

Usenet is ALL Peer to Peer and store and forward, and NO server is in effect the "HOSTING" server. A person posts, and the article is forwarded to all other usenet servers that carry that newsgroup thru automatic action of the usenet software.

As such, a DMCA takedown notice is not really proper for a node that is merely receives a usenet feed, but is not responsible for the original posting. Because of problems of the past, most Usenet Servers refuse to honor cancel messages, so there really is no action to "recall" a given article for any reason even if it being done by the original poster.

Usenet.com should have been allowed to present experts in the operation of usenet to show that Usenet.com was not hosting the content, and the problems with attempted removal of content under DMCA takedown notices. Thus, I think the Judge was wrong to not allow such evidence before making a decision. Of course, Usenet.com might not have even tried to present such evidence, so without knowing if it was tried, Im not now sure who acted wrong in this case.

Of course, regardless of this case there is still gobs of all kinds of copyrighted content on usenet to this day, so this case has not had any real effect on the flow of the materials...