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EFF Press Release Archives

Press Releases: January 2011

January 17, 2011

Film Companies Are Abusing the Law to Pressure Defendants to Settle

San Francisco - The Electronic Frontier Foundation (EFF) has asked an Illinois judge to quash subpoenas issued in predatory lawsuits involving alleged illegal downloading of pornography. In an amicus brief filed Friday, EFF argued that the adult film companies were abusing the law in order to coerce settlement payments despite serious problems with the underlying claims.

Friday's brief is the latest of EFF's efforts to stop copyright trolls -- content owners and lawyers who team up to extract settlements from thousands of defendants at a time. Tactics include improperly lumping defendants together in one case and filing it in a court far away from most of the accused people's homes and Internet connections. When adult film companies file these predatory lawsuits, there is the added pressure of embarrassment associated with pornography. All of these factors can convince those ensnared in the suits to quickly pay what's demanded of them instead of arguing the merits of their case in court.

"Copyright owners have a right to protect their works, but they can't use shoddy and unfair tactics to do so," said EFF Intellectual Property Director Corynne McSherry. "We're asking the court to protect the rights of each and every defendant, instead of allowing these copyright trolls to game the system."

Just last month, a judge in West Virginia blocked an attempt to unmask accused pornography file-sharers in seven predatory lawsuits. Closely following the reasoning from an EFF amicus brief, the judge ordered the plaintiffs to file against each defendant individually. Also in December, a judge in the District of Columbia dismissed hundreds of individuals named in the U.S. Copyright Group troll campaign because of lack of personal jurisdiction. EFF had filed an amicus brief in that case as well.

"As judges start to force copyright trolls to play by rules, this kind of mass litigation will no longer be a good business model. That helps protect the rights of Internet users everywhere," said McSherry.

Charles Lee Mudd Jr. of Mudd Law Offices assisted EFF with the filing of this brief.

For the full amicus brief:
https://www.eff.org/files/filenode/uscg/effamicus11411.pdf

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
January 4, 2011

Big Victory for Consumers' First Sale Rights

San Francisco - The U.S. Court of Appeals for the 9th Circuit has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores and rejecting UMG's attempt to claim that a sticker on a CD created a license agreement forbidding resale.

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and the law firm Durie Tangri LLP, was sued by UMG for offering promo CDs for auction on eBay. At issue was whether the labels on the CDs, some of which stated that they were "promotional use only, not for sale," trumped Augusto's right to resell the CDs that he bought. Copyright's "first sale" doctrine prevents a copyright owner from restricting further sales or uses of a work once title has passed.

In an opinion issued today, the appeals court held: "UMG transferred title to the particular copies of its promotional CDs and cannot maintain an infringement action against Augusto for his subsequent sale of those copies." The court noted that UMG did not maintain control of the CDs once it mailed them out, did not require the recipients to agree to the "conditions" it sought to impose with the not-for-sale label, and did not require return of the CDs if the recipient did not consent.

"This ruling frees promotional CDs from the shadow of copyright infringement claims, which is good news for music lovers," said EFF Intellectual Property Director Corynne McSherry. "But it also has broader ramifications. The court flatly rejected the argument that merely slapping a notice on a copyrighted work prevents the work from ever being sold. It eliminates the risk of copyright infringement claims against later recipients -- regardless of whether they paid for the work."

"The Ninth Circuit recognized an important principle: that you can't eliminate consumers' rights just by claiming there's a 'license agreement,'" said Joe Gratz of Durie Tangri, lead counsel for Mr. Augusto. "Once a copyrighted work is freely given, the copyright holder isn't in charge anymore. The copyright owner can't stop you from selling it or lending it to a friend."

For the full opinion in UMG v. Augusto:
https://www.eff.org/files/filenode/umg_v_augusto/UMGvAugusto9thCircuitOpinion.pdf

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
January 4, 2011

Unreasonable Jury Award in Sony v. Tenenbaum Suit Raises Constitutional Questions

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court Monday to affirm downsized damages in Sony v. Tenenbaum, a file-sharing case in which a jury originally ordered a college student to pay $675,000 for infringing copyright in 30 songs. EFF was represented by the Stanford Fair Use Project and the Samuelson Law, Technology & Public Policy Clinic in filing the amicus brief.

A federal judge reduced the jury award to $67,500 last July, citing constitutional concerns and basic fairness. The record companies appealed the judge's decision to the 1st U.S. Circuit Court of Appeals. In Monday's brief, EFF argues that the judge was right to try to ensure that damages in infringement cases bear a reasonable relationship to actual harm.

"The Supreme Court has ruled that courts should review statutory damage awards to ensure they are not grossly excessive," said EFF Intellectual Property Director Corynne McSherry. "But unfortunately, courts have often failed to do so. This is an opportunity for the appeals court to clarify copyright law for creators and guarantee they have their due process rights."

Right now, it is difficult to predict copyright damages. Any creator who relies on an untested theory of fair use or other copyright exemption could be forced to pay up to $150,000 per work if she loses in court. This threat chills start-up companies and online artists as well as libraries and digital archives that may need to enter uncharted areas of copyright law in order to innovate.

"The fundamental purpose of copyright law is to encourage innovation, creativity, and the dissemination of information," said McSherry. "But the fear of crushing liability chills vital experimentation and creativity. Due process review can help bring damage awards back in line with copyright's purpose."

For the full amicus brief:
https://www.eff.org/files/filenode/inresonybmgetal/EFFamicustenenbaum.pdf

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation

Related Issues:
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