The revenues generated by this scheme have not gone unnoticed by other copyright owners whose works do not have the ubiquity online of popular music. In the last few weeks, various news stories have surfaced that claim that some owners of copyrighted works have decided to tap into this revenue windfall by surreptitiously posting their own copyrighted works online, waiting until users download them, and then threatening a lawsuit unless the downloaders pay them off. One article claims that certain copyright owners are “priming the pump” by posting their own works online, and then threatening litigation in order to wrest fat settlements from those who download their works. A second article claims that an American pornographer hired a German company to post his videos online, and then hired a law firm to threaten downloaders with copyright infringement litigation unless they “settled” and paid a significant sum.

Some commentators have argued that if a copyright owner uploads its copyrighted content to a free downloading site, the owner should be deemed to have impliedly licensed the downloading of that content, and such license should preclude a later claim of copyright infringement. I agree with that view. The problem that I see with asserting that defense is that 1) the downloader has already been sued and will have to incur the legal fees necessary to establish the defense, and 2) it will be very difficult to prove that the copyright owner authorized the posting of the works on the downloading service.

The proof issue is the major problem with defending against these bogus claims. Copyright owners who choose to implement this scheme generally are not going to post the works from their own computer, nor use employees or third parties who can easily be tracked down and who have no incentive to lie under oath. Instead, they will take steps to hide their tracks, using anonymous posting services, public terminals or hackers to post the materials. That will make it virtually impossible to track the postings back to the copyright owner. In addition, most accused downloaders will not have the money or the expertise to track down the party who actually uploaded the works in the first place and establish the copyright owner’s complicity in the scam.

This scam seems almost unstoppable. You can be sure that more scammers will be using it in the future. As long as copyright law allows owners to extort huge sums out of individuals who download copyrighted materials for personal use, this scheme will proliferate.

Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 2 for October 5, 2008

Our Panel for Today:

MPAA v. RealNetworks

• WSJ: “Right to Copy DVDs to PCs at Center of Copyright Spat”
• Wired: “MPAA, RealNetworks Wage Court Battle Over DVD-Copying Software”
• LA Times: “MPAA vs. RealNetworks”

RIAA Lawsuits – Discussion of the EFF’s Report

• EFF Report: “RIAA v. The People: Five Years Later”
• EFF: “RIAA Lawsuit Campaign Losing Credibility“

Did Statutory Royalties Almost Spell the End of iTunes?

• Apple’s Submission to the Copyright Royalty Board
• IPKat: “Is this the end for iTunes?”
• Tech Law Prof Blog: “Apple Threatens to Take Its iBall and Go Home if Artist Royalties Rise”
• LATimes: “Digital music royalties for songwriters left unchanged”
• “Copyright Royalty Board Keeps Download Rates The Same; iTunes ‘Saved’”

Online Poker Cheating Scandal

• “‘Back Door’ Cheating Scandal Rocks Online Poker”
• MSNBC: “Poker site cheating plot a high-stakes whodunit”

Network Neutrality: A Few Observations

• Michael Scott Writes: “Network Neutrality: To Regulate or Not to Regulate”
• WGA: “Winning the Fight for Net Neutrality”

Talking Point of the Week: MI6 Photos and Data Accidentally Sold on eBay

• “MI6 Terror Photos, Data Accidentally Sold On Ebay”

This recording is an informational resource only. It is not designed to offer legal advice.

Here are the show notes for this week’s episode:

Shownotes for Singularity Law Podcast Episode 1 (September 29, 2008)

Our Panel for Today:

Cloud Computing

• “Cloud computing” (Wikipedia)
• “Cloud computing may draw government action”
• “Clouded in uncertainty – the legal pitfalls of cloud computing”
• “Cloud computing is a trap, warns GNU founder Richard Stallman”

Walmart and DRM

• “Wal*Mart shutting down DRM server, nuking your music collection — only people who pay for music risk losing it to DRM shenanigans”
• EFF: “And Walmart Makes Three: Another Music Service Plans to Shut Down DRM Support”
• Josh Kagan Writes: “Ten Reasons Why DRM Schemes Are Bad For Society”

Capitol Records v. Thomas

• Text of Court’s Decision (Sept. 24, 2008)
• Josh Kagan Writes: “Capitol v. Thomas: For RIAA, Better Than “Making Available” May Be Difficult To Prove”
• Michael Scott Writes: “Prove Our Case? . . . We Don’t Need to Prove Our Stinkin’ Case!! Just Fork Over the Money”
• EFF: “Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower Statutory Penalties for P2P”
• National Car Rental v. Computer Associates, 991 F.2d 426 (8th Cir. 1993)
• Perfect 10 v. Amazon.com (9th Cir. 2007)

New Copyright Legislation (PRO-IP Act)

• Text of PRO-IP Act as passed by the Senate
• “Congress Passes PRO-IP Act, but Bush May Veto”
• “Intellectual property bill passes in the House”
• “Senate unanimously passes RIAA-backed bill”
• “Bush administration opposes RIAA-based copyright bill”

Talking Point of the Week — Banned from the Internet for Life

• EU Makes it Official: “You Can’t Randomly Ban People From the Internet”
• EFF: “The Struggles of France’s Three Strikes Law”
• EU: “Net Access is a Human Right, We’re Not Going To Take That Away”

This recording is an informational resource only. It is not designed to offer legal advice.