IAmEntitled Plaintiff's team

From CS378H Public Policy and the Digitally Native Technologist
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Rohan

Joe

Will

Sathya

Summary of the Attack

We represent the interests of broadcasters, content providers, and content creators. IAmEntitled.com has created a service that aims to distribute media to users in one of three ways: by partnering with media outlets, finding online streamed content, or simply conducting a search for the requested content. We claim that this third angle of attack is an illegal public performance of media to which neither IAmEntitled nor its users have ownership of the copyright. We claim that simply providing an ad-fueled service to search torrents is, under precedent set in IsoHunt, illegal under US copyright law. Furthermore, we claim that IAE is a service primarily designed to help users find content outside the public domain, and thus under precedent set in Grokster, does not have a sufficient non-infringing use to maintain the business model. We also claim that the performance of the media they attempt to distribute is a public performance, and therefore under precedent set by Aereo, the service itself infringes upon the rights held by the copyright owners.

Questions

It is suggested that IAE provides users with accurate results; that is, a search for a particular program will return the program itself. However, a naïve search of the Web yields results that are, if not illegal, then of questionable accuracy. For example, it is not unreasonable to conduct a search for a particular TV show, and have the first result be either incorrect or virus-laden, if not both. How, then, does IAE guarantee accuracy of results? Do they prescreen results to ensure that no viruses will be sent to the user? If so, how do they do so without storing the content on their servers first? How then is IAE incapable of stopping such infringing uses?

Interesting Articles

MGM Studios, Inc. v. Grokster Addendum to the Betamax doctrine that states a company can be held liable for acts of infringement using their technology if they market their technology with infringement in mind.

CSUSA Presentation on Space Shifting Addresses a variety of legal background in regards to space shifting media.

Flaws in the Service

Illegal Performance

In the Aereo case, any public performance where the performer does not have ownership of the copyright of the performance is illegal under the Copyright Act of 1976. Therefore, if we can establish that not only is the performance of the media in this case public, but that the performer does not have ownership of the copyright, then Aereo sets the precedent for such a business to be found illegal.

Under 17 USC 101, a performance is defined as "...in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible" (link). In this case, as defined in the opinion in Aereo, both the user and the distributor of the content are performers of the work )(link). Moreover, a public performance is "to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times". Crucially, any time-shifted or space-shifted performance, as defined in the last sentence of the definition, makes the performance public. It is evident from the business model of the defendant that their performances are therefore public; what remains to be shown is that the performers do not have ownership of the copyright.

Based on precedent set by Aereo, the copyright is not owned by the user; in particular, the performance is therefore illegal under the same precedent. Consequently, in this case, as the performer clearly does not own the copyright, the performance is rendered illegal. Rohan (talk) 14:54, 28 January 2015 (EST)

Copying

Because the content is coming from a P2P torrent service and one could never backtrace the copy to the source, there inevitably exist illegal copies. These copies are not duplicates of the performance that the consumers would have received from their cable, as it would have been had they recorded it; instead, they receive the source media, without the timeshifted commercials or station logos. Clients receive not a timeshifted performance, but different content entirely.

Each copy that a client makes is also an unauthorized copy, as the client is not time-shifting from material that they subscribed to, but instead from an underground network. Because this behavior is the core purpose of IAE, IAE cannot argue that their value proposition is legal.

On Torrent Search Engines

By the DMCA's Red Flag Knowledge standard, torrent search engines are not exempt from all instances of infringement by simply blaming their users. By the precedent set in Columbia Pictures v. IsoHunt <ref>Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc. - http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/21/10-55946.pdf</ref>, a hypothetically reasonable person can be proposed as a tool to build the case of knowledge of infringement, even if the defendant claims ignorance. In the above cited case, Gary Fung, owner of Isohunt Web Technologies, Inc., was charged with operating a set of websites that hosted torrent files for content that a hypothetically reasonable person would have realized was infringing, e.g., for movies and TV shows not yet released for private use.

Under the DMCA Safe Harbors, service providers are excused from the burden of having to monitor or investigate their own systems. Under this line of reasoning, and using the ruling in Columbia Pictures v. Gary Fung, a service provider, which torrent search sites fall under, can be charged with Red Flag Knowledge if it is found that they have taken actions that can be argued as taken under knowledge of infringement (by the aforementioned hypothetical person). Furthermore by MGM v. Grokster, if it is found that the service provider's business would not be sustainable after removal of all infringing material, it can be demonstrated through argument that the service provider promoted their software or service with the intent of infringing use.

Addressing the claim that IAmEntitled also helps users access films in the US Public Domain, this must be shown to be a significant part of the service used by IAE's users, enough to sustain their business model should the infringing uses be shut down. We believe that IAmEntitled's service is designed to attract users who intend to use it in infringing ways rather than those who wish to browse and view videos in public domain. Among the many resources on the internet that host materials in public domain, two prominent and easily searchable websites are the extensive and accessible archives provided by the Internet Moving Image Archive, which holds over 17,000 full-length movies in public domain, and the National Archives and Records Administration - Motion Picture, Sound and Video Unit, which has "an extensive collection of films created for and produced by the U.S. government that are in the public domain, including military films, educational and documentary films (1915-1976). NARA also has gift materials from private sources, such as Universal Newsreel releases and outtakes (1929-67)." <ref>Public Domain Films - http://www.loc.gov/rr/mopic/pubdomain.html</ref>

With the existence of these and other archives, we propose that nothing is lost in terms of public domain materials in the case that IAmEntitled ceases operation - Furthermore with the approval of the court we can request a subpoena of search logs from IAmEntitled to verify these claims.

Flaws in IAE's Argument

Grokster/Napster

Summary of A&M Records v. Napster

Further summary of MGM v. Grokster

After examining the technology team's proposed business plan, two existing cases stuck out as potentially relevant. First, A&M Records v. Napster (see above) addresses IAmEntitled's attempts to fight possible claims by policing infringing content. IAmEntitled will have to demonstrate a commitment to preventing any and all infringement that they are aware of to prevent being held liable for contributory infringement. In addition, their business model must demonstrate that they do not stand to benefit financially from infringement occurring to prevent being held liable for vicarious infringement. Instead, they will make monthly money for a media player that streams illegal content.

The technology in the second case, MGM v. Grokster, shares many similarities with that of IAmEntitled. Grokster provided software to facilitate P2P file sharing, and profited from streaming advertisements. The Grokster ruling holds that "companies that distributed software, and promoted that software to infringe copyrights, were liable for the resulting acts of infringement". This means that IAmEntitled cannot shift the legal blame for infringement to their users as their product's core purpose is infringement via the public performance argument above. Jmlangas (talk) 17:25, 1 February 2015 (EST)

Timeshifting

In the 5-4 SCOTUS majority opinion of the Betamax case, the legality of timeshifting was qualified in several ways<ref name="Sony">Betamax - https://supreme.justia.com/cases/federal/us/464/417/case.html#418</ref>.

  1. there is a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers (i.e., recorded at a time when the VTR owner cannot view the broadcast so that it can be watched at a later time)
  2. there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works. The VTR's are therefore capable of substantial noninfringing uses

For the first condition, the holders of the copyright, in licensing cable companies to broadcast their television content, may not mind letting a few paying customers consume it later, but they did not license the indefinite copying and redistribution of their material.

For the second condition, there is obvious nonminimal harm to the market and value of the copyrighted works because they are made free to obtain, with no profit for the content producer.

There is a clear and obvious difference between a consumer manually timeshifting a performance that they had access to and a third party providing those copies to them retroactively. Because an unauthorized copying marketed as an abuse of timeshifting is the core service of IAE, IAE is responsible for the infringement it enables and profits from.

References

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