Addendum: When I say as-yet undemonstrated, I mean the RIAA has asserted in their complaint that it's possible to search for plaintiffs' recordings via the site, and that searching the site generally results in links to MP3s as well as playback via an embedded widget, but unless I missed something (maybe I did), they did not actually say that they successfully and routinely were able to use the site to access the specific recordings at issue.
IMHO, without such an assertion, it can't be assumed that users are able to infringe plaintiffs' copyrights for those specific recordings, and thus there should be no finding of secondary infringement by the site's operators.
Looks to me like the RIAA is trying to beef up their arsenal of precedents against search-engine-like sites.
I mean they can't seriously think MP3Skull is a threat to their business. They say it's infringing and causing harm "on a massive scale," but they have no numbers to back that up and don't need any. That's because it's not about MP3Skull or their business model at all. MP3Skull could shut down today and it wouldn't result in any bump in business. Nor does the RIAA want to partner with MP3Skull and get a cut of their ad revenue.
No, they really just want to get a ruling against this type of website; they are seeking a declaration that any site willfully infringes if it is a search engine that provides links to copyrighted content.
One of the things the RIAA is doing here is trying to solidify the concept of secondary, contributory infringement—an emerging doctrine in civil case law which does not require proof of actual infringement by the defendant, but rather just proof that the defendant has a sort of conspiratorial role with the people doing the actual unauthorized copying and distributing. All that needs to be shown is that infringement has occurred as a result of MP3Skull's actions, and that MP3Skull was knowingly facilitating it. In this regard, the case is an easy win for the RIAA, and their complaint is chock-full of evidence against Mp3Skull. MP3Skull uses major-label artists as examples, and instructs & encourages users to work around blocks instituted as a result of takedown notices. The RIAA has already used that kind of "red flag knowledge" of infringement by users to obtain favorable precedents against user-uploaded content services, file-sharing services, and file-sharing software distributors. MP3Skull's smoking guns are in plain sight, no discovery of internal emails needed.
One of the other things the RIAA is doing in this case is much more sinister. In addition to claiming secondary infringement, they are claiming direct infringement. They present absolutely no evidence in support of this, but they are hoping the judge (who I assume they've forum-shopped for) will agree with their claim that MP3Skull's owners "reproduce and distribute unauthorized reproductions" and "engage in unauthorized public performances". This right here is the backdoor SOPA and must not be allowed traction.
Unfortunately, MP3Skull's owners are unlikely to emerge from the shadows to raise a First Amendment defense. I am also wondering if it's reasonable to expect any amicus briefs from companies which now have an "arrangement" with the RIAA, like Google/YouTube, Soundcloud, Spotify, etc. Even if a "hyperlinking is free speech" defense were raised, I wouldn't expect it to succeed in this case, given MP3Skull's public nose-thumbing and their apparent intent to hook people up with any music whatsoever, regardless of whether it can be legally distributed.
I think the best we can hope for is an amicus brief from the EFF in an effort to limit the collateral damage. They should insist that no "plain reading" of the statutes nor circuit precedent supports a finding of direct infringement. And if the court is to find secondary infringement, then it must be expressed in a way that makes it clear that it's contingent upon 1. evidence of direct infringement by MP3Skull users (or at least evidence that such infringement is likely, based on site traffic and an as-yet undemonstrated ability to search for and acquire plaintiffs' recordings via the site); and 2. the egregious infringement-encouraging and facilitating things that MP3Skull did above and beyond mere indexing and hyperlinking.
I wouldn't even consider the companies that do the tracking on behalf of advertisers and the NSA to be necessarily distinct entities. We're talking about fully opaque companies specializing in things like ad placement, analytics, and content/widget hosting. Their resources are embedded in practically every webpage we visit nowadays, and are almost always transmitted unencrypted. I count about 20 unnecessary such hosts embedding resources on this page alone. So how can we see whether any one of these is run by, colluding with, or being snooped on by the NSA or anyone else?
Try getting any these companies to tell you just how they operate, who exactly they share our data with, how secure the data is, and what breaches they've had. Ask them if they're, in any way, in league with the NSA or any other branch of law enforcement. Ask them how many NSLs, subpoenas, and requests they've gotten, and how much data they've disclosed, including inadvertently, to third parties, including government, law enforcement, and unidentified persons.
This is where my mind goes whenever someone suggests that we have nothing to worry about from advertisers tracking us.
Consider linking Like fashion to Johanna Blakeley's 2010 TED Talk on the subject. Short version: trademark protection alone has proven more than sufficient to support a flourishing fashion industry that, economically, dwarfs the entire entertainment industry.
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Re: What's needed is an amicus brief to discourage finding direct infringement and limit the harm of finding secondary infringement
IMHO, without such an assertion, it can't be assumed that users are able to infringe plaintiffs' copyrights for those specific recordings, and thus there should be no finding of secondary infringement by the site's operators.
What's needed is an amicus brief to discourage finding direct infringement and limit the harm of finding secondary infringement
Looks to me like the RIAA is trying to beef up their arsenal of precedents against search-engine-like sites.
I mean they can't seriously think MP3Skull is a threat to their business. They say it's infringing and causing harm "on a massive scale," but they have no numbers to back that up and don't need any. That's because it's not about MP3Skull or their business model at all. MP3Skull could shut down today and it wouldn't result in any bump in business. Nor does the RIAA want to partner with MP3Skull and get a cut of their ad revenue.
No, they really just want to get a ruling against this type of website; they are seeking a declaration that any site willfully infringes if it is a search engine that provides links to copyrighted content.
One of the things the RIAA is doing here is trying to solidify the concept of secondary, contributory infringement—an emerging doctrine in civil case law which does not require proof of actual infringement by the defendant, but rather just proof that the defendant has a sort of conspiratorial role with the people doing the actual unauthorized copying and distributing. All that needs to be shown is that infringement has occurred as a result of MP3Skull's actions, and that MP3Skull was knowingly facilitating it. In this regard, the case is an easy win for the RIAA, and their complaint is chock-full of evidence against Mp3Skull. MP3Skull uses major-label artists as examples, and instructs & encourages users to work around blocks instituted as a result of takedown notices. The RIAA has already used that kind of "red flag knowledge" of infringement by users to obtain favorable precedents against user-uploaded content services, file-sharing services, and file-sharing software distributors. MP3Skull's smoking guns are in plain sight, no discovery of internal emails needed.
One of the other things the RIAA is doing in this case is much more sinister. In addition to claiming secondary infringement, they are claiming direct infringement. They present absolutely no evidence in support of this, but they are hoping the judge (who I assume they've forum-shopped for) will agree with their claim that MP3Skull's owners "reproduce and distribute unauthorized reproductions" and "engage in unauthorized public performances". This right here is the backdoor SOPA and must not be allowed traction.
Unfortunately, MP3Skull's owners are unlikely to emerge from the shadows to raise a First Amendment defense. I am also wondering if it's reasonable to expect any amicus briefs from companies which now have an "arrangement" with the RIAA, like Google/YouTube, Soundcloud, Spotify, etc. Even if a "hyperlinking is free speech" defense were raised, I wouldn't expect it to succeed in this case, given MP3Skull's public nose-thumbing and their apparent intent to hook people up with any music whatsoever, regardless of whether it can be legally distributed.
I think the best we can hope for is an amicus brief from the EFF in an effort to limit the collateral damage. They should insist that no "plain reading" of the statutes nor circuit precedent supports a finding of direct infringement. And if the court is to find secondary infringement, then it must be expressed in a way that makes it clear that it's contingent upon 1. evidence of direct infringement by MP3Skull users (or at least evidence that such infringement is likely, based on site traffic and an as-yet undemonstrated ability to search for and acquire plaintiffs' recordings via the site); and 2. the egregious infringement-encouraging and facilitating things that MP3Skull did above and beyond mere indexing and hyperlinking.
Re: If the advertisers can track you...
I wouldn't even consider the companies that do the tracking on behalf of advertisers and the NSA to be necessarily distinct entities. We're talking about fully opaque companies specializing in things like ad placement, analytics, and content/widget hosting. Their resources are embedded in practically every webpage we visit nowadays, and are almost always transmitted unencrypted. I count about 20 unnecessary such hosts embedding resources on this page alone. So how can we see whether any one of these is run by, colluding with, or being snooped on by the NSA or anyone else?
Try getting any these companies to tell you just how they operate, who exactly they share our data with, how secure the data is, and what breaches they've had. Ask them if they're, in any way, in league with the NSA or any other branch of law enforcement. Ask them how many NSLs, subpoenas, and requests they've gotten, and how much data they've disclosed, including inadvertently, to third parties, including government, law enforcement, and unidentified persons.
This is where my mind goes whenever someone suggests that we have nothing to worry about from advertisers tracking us.
Nice TED Talk covering the fashion side
Consider linking Like fashion to Johanna Blakeley's 2010 TED Talk on the subject. Short version: trademark protection alone has proven more than sufficient to support a flourishing fashion industry that, economically, dwarfs the entire entertainment industry.