By Eric Bangeman
April 02, 2008 - 01:32PM CT

Students at the University of Maine School of Law's Cumberland Legal Aid Clinic are continuing their fight against the RIAA's legal tactics. A motion filed earlier this week on behalf of two "John Doe" University of Maine students sued by the RIAA seeks to not only have the John Doe lawsuit filed against the 27 U of M students thrown out, but to bar the RIAA from bringing any such lawsuits in the future.

Previously, the students had sought to have the lawsuit dismissed for what have become "the usual reasons," including the RIAA's use of a boilerplate complaint without specific facts to support its case. US Magistrate Judge Margaret J. Kravchuk denied the motion, but expressed concerns that the RIAA was "intentionally flouting" Rule 11, which covers "factual contentions" made to the court by attorneys.

At issue is the RIAA's practice of clumping a number of Does into a single lawsuit for the sole purpose of serving subpoenas on a single school or ISP. The only relationship between the Does is that they attend the same school or all subscribe to the same broadband provider. The RIAA argues that's a sufficient relationship for the purposes of its lawsuits, but once it obtains names and addresses, that relationship suddenly disappears as individual lawsuits are filed.

Judge Kravchuk suggested that the court look into the possibility of sanctioning the RIAA's attorneys for violating Rule 11, and the law students are now asking the presiding judge to do exactly that. In their motion, the students argue that the sanctions are appropriate because the RIAA has "no good faith evidentiary support" for its joining the 27 University of Maine law students into a single lawsuit.

By Eric Bangeman
March 26, 2008 - 09:10PM CT

Even as exonerated file-sharing defendant Tanya Andersen pursues her malicious prosecution case against the music industry, there is some unattended business left over from the RIAA's original copyright infringement lawsuit. After the RIAA threw in the towel on its lawsuit against Andersen, she sought and won an award of attorneys' fees.

The two parties are now trying to settle the bill, and the RIAA is only willing to pay one tenth of what Andersen's attorney is seeking. Andersen's attorney, Lory Lybeck, is looking for just under $300,000 in fees from his defense of Andersen. The $298,995 figure submitted to the court includes a "multiplier" of two times the "reasonable" hourly rates due to the "high risk, successful" defense (Oregon law allows for multipliers).

In a brief filed earlier this month, the RIAA called the $298,995 figure "excessive" and said that it should be drastically slashed to something along the lines of $30,000. In the RIAA's opinion, Atlantic v. Andersen was a "straightforward copyright infringement claim," and the labels' independent expert believes that the fees sought are excessive "in numerous respects."

Lybeck takes issue with the RIAA's characterization of the case in his reply to the RIAA's brief. "Contrary to plaintiffs' argument, this copyright case was anything but typical or 'straightforward,'" argues Lybeck. "As the court has previously found, the proceedings were complicated, prolonged, and made more expensive by the plaintiffs' unreasonable tactics throughout the case."

by Greg Sandoval
March 25, 2008 11:43 AM PDT

Update 1:33 p.m. PDT: Netflix has apparently fixed the site's recommendations and ratings. Netflix customers saw only minor glitches a day after the movie rental service suffered an 11-hour Web site outage because of an undisclosed systems malfunction. Customers were unable to access ratings and recommendations on Tuesday, according to Steve Swasey, a spokesman for the company.

The company, however, appeared to have fixed the problems by the afternoon. "This is part of the site that we haven't been able to get back online yet," Swasey said earlier in the day. "Otherwise the site is fully functioning. We're shipping and receiving." That's in contrast to Monday, when the glitch hobbled Netflix's logistics and shipping systems as well as the Web site. The company was unable to fulfill all of the orders scheduled to go out.

On the blog Hackingnetflix.com, numerous people who posted to the board said they were informed by Netflix that shipments were held up a day but would resume on Tuesday. Many of those who wrote described themselves as happy customers and said they weren't put out by the outage. But others couldn't understand why Netflix has been plagued by Web site trouble. In July, the movie rental company went down for 18 hours.

"They need a zero down-time system like any other decent company," said someone posting to Hackingnetflix.com who identified himself as Bagman. "It is absurd that their Web site shuts down for even a minute...Amazon and Google haven't been down 11 seconds, that I recall, let alone hours. Please get sorted, Netflix."

By Matthew Lasar
March 25, 2008 - 09:23AM CT

Fox Television has informed the Federal Communications Commission that it will not pay the agency's proposed $91,000 fine for a pixelated strip show on Married in America, broadcast in 2003. "FOX believes that the FCC's decision in this case was arbitrary and capricious, inconsistent with precedent, and patently unconstitutional," the network declared in a press release.

But the media company's detailed, 49-page Petition for Reconsideration, submitted to the agency at the same time, goes far beyond the terse press release. It all but wonders if the FCC's indecency analysts are projecting their own sexual fantasies into the programming that they evaluate. And the Petition sets the stage for yet another legal confrontation as the Supreme Court prepares to hear the FCC's appeal on its "fleeting expletive" rulings, struck down by a lower court in New York City.

The FCC first proposed a fine against the now-defunct Married in 2004 after it received complaints about a 2003 scene in which several engaged couples party at a strip club. According to the FCC's analysis, couples kiss, and lick whip cream off on-stage performers, whose naughty bits are pixelated. But pixelation was not enough for the FCC. "The fact that isolated body parts were 'pixelated' did not obscure the overall graphic character of the depiction," the agency concluded in denying Fox's appeal last month.

"The mere pixelation of sexual organs is not necessarily determinative under our analysis because the material must be assessed in its full context. Here, despite the obscured nature of the nudity, it is unmistakable that the party goers are participating in sexual activities and that sexual organs are being exposed." In its petition, Fox challenges the FCC's description of the program, insisting that many of the agency's key complaints are inaccurate.

By Anders Bylund
March 25, 2008 - 05:34AM CT

DVR pioneer TiVo is shifting its business model into a new gear. In a few years, you might not even recognize the company anymore. If you like the TiVo way of presenting content, then this is all good news. Comcast has started to roll out software updates to New England customers, turning their Motorola set-top boxes into nearly full-fledged TiVo machines.

Cox is planning to follow suit in its Rhode Island and Connecticut coverage areas, and is currently running through technical trials. TiVo is busy talking to other cable operators around the country, and the new distribution channels should make the DirecTV defection a distant memory soon enough. As the cable providers start to shoulder the costs of promoting the TiVo service to their own customers, TiVo is scaling down the marketing spend and pocketing the difference.

The company would no doubt love to become a pure-bred software licensor that simply works on the user interface and lets its partners worry about the underlying hardware. Notwithstanding the early success of the generation 2.5 TiVo HD box, it looks like the company is already heading in that direction. The key to unlocking that kind of high-margin future is the ongoing patent litigation against EchoStar/Dish Network. The satellite slinger has lost at every level of our legal system, and is running out of appeal options.

The direct financial damage to EchoStar stands at $94 million including interest, which would wipe three years of negative cash flows off of TiVo's financial record. Sure, settling the suit would give TiVo's coffers an instant upgrade, but the greater victory by far would be that the case sets a precedent that essentially forces every other DVR provider to become a TiVo licensee. That's when the real money starts to flow in.

by Greg Sandoval
March 24, 2008 11:51 AM PDT

Updated at 4:00 p.m. PDT: We have posted a completely new story here that details how Netflix will be forced to delay deliveries. Internet movie rental company Netflix suffered a site outage beginning at 7 a.m. PDT Monday, and the company doesn't know when it will have the problem fixed, a Netflix spokesman said.

Customer service personnel told CNET News.com that they were told the site was undergoing routine maintenance when something went wrong, information they then passed on to customers. That is incorrect, according to Steve Swasey, the company's director of corporate communications. He said he couldn't discuss the causes but that it had nothing to do with site maintenance.

"Our engineers have been feverishly working on repairing the problem all morning," Swasey said. "It was an unanticipated, unplanned outage and we apologize to our customers." Site outages are typically no big deal as any company can suffer one. But a blackout that lasts for more than an hour is rare, and one spanning several hours is rarer still.

Netflix, which has 7 million subscribers, continued to ship DVDs after the outage began, though its unclear whether the problem will eventually affect the company's entire database, Swasey said. This means it's possible that users might see some delays in receiving movies. He added that customers needn't worry about their stored movie picks. None of their information will be lost.

by Anne Broache
March 24, 2008 12:26 PM PDT

Updated at 2 p.m. PDT: The proposed union of XM Satellite Radio and Sirius Satellite Radio won approval Monday from the U.S. Department of Justice, after more than a year of review. Antitrust officials said they concluded that combining the only two satellite radio players would not "substantially lessen competition," beating back concerns raised by consumer groups and an intense lobbying campaign from broadcast radio operators.

"The evidence did not show that the merger would enable the parties to profitably increase prices to satellite radio customers for several reasons," the Justice Department said in a statement. The proposed deal--an all-stock deal now valued at $5 billion--still awaits a decision from the Federal Communications Commission, which had warned that the companies had high hurdles to surmount before gaining approval.

That's because in 1997, the FCC adopted an order prohibiting such a merger when it would result in only one operator controlling all satellite radio spectrum. The commission has asked for comments from the public about whether to waive or modify that rule, and FCC Chairman Kevin Martin said last week that a decision is getting closer. XM and Sirius shareholders approved the merger in November. XM and Sirius issued a statement acknowledging the Justice Department's decision but did not immediately comment further.

The companies have argued in various regulatory venues over the past year that the deal would not result in increased prices for subscribers and that, in fact, it would actually produce more programming choices, such as options to buy themed bundles of channels that are cheaper than either company's existing packages. XM CEO Mel Karmazin argued that those changes would be possible in large part because of "efficiencies" gained through merging the companies.

By Egan Orion
March 21, 2008 - 9:56 AM

A COMMENTATOR at Dow Jones MarketWatch yesterday concurred with what we've been suggesting for a while - that the RIAA is behaving like the mafia. Theresa Poletti's March 20 column begins: "As any fan of The Sopranos knows, the mob often takes out its enemies in a gruesome fashion as a way to warn others to fall in line. The same can be said of the campaign over the past four years instigated by the dreaded Recording Industry Association of America...."

She relates the RIAA's practice of sending college students extortionate letters demanding payments of thousands of dollars and threatening federal lawsuits. She writes: "I don't condone [copyright infringement], but the RIAA's tactics are nearly as bad as the actions of mobsters, real or fictional. The analogy comes up easily and frequently in any discussion of the RIAA's maneuvers." The column quotes Robert Talbot, who is a law professor at the University of San Francisco, as saying, "My students were saying it's extortion."

He teaches an Internet and intellectual property clinic. Many of his law students volunteer to assist people who get threatening letters from the RIAA. Talbot said, "The letters are kind of scary. These are usually kids who are 17 or 18 years old, they don't have any money and they are scared. Students are trying to negotiate, but I don't have much hope. They don't want to negotiate. It's pay up or we go into federal court."

Poletti doesn't believe it's quite fair that the RIAA should be placing students' educations at risk, lashing out at them to make up for its own lack of vision in failing to adjust its obsolete business model to the realities of new technology. She mentions that the RIAA won a big victory last October when a jury found Jammie Thomas, a single mother of two, liable for copyright infringement and ordered her to pay the sum of $222,000 as damages for 24 songs.

By Eric Bangeman
March 20, 2008 - 07:27PM CT

DirecTV DVR owners got some bad news from the satellite TV provider recently when the company announced that it will break some of the existing functionality of the DVRs. Effective April 15, subscribers will only have 24 hours to watch pay-per-view movies recorded to their DVRs.

Once the movies are purchased, the clock starts ticking, and after 24 hours, the PPV movie saved to your DVR will become nothing more than an unreadable collection of zeros and ones. In its announcement, the company laid the blame for the new policy at the feet of Big Content. "Major movie studios have required that satellite and cable providers alike may no longer allow their customers to view these recordings for longer than 24 hours," reads the announcement.

"During the 24-hour viewing period, you will continue to enjoy all of your DVR features such as pause and rewind." PPV special events like sporting events and PPV movies purchased prior to April 15 are not affected by the new policy. DRM isn't dying in the world of video. While extremely disappointing, the move is not all that surprising. DirecTV and the movie studios will argue that the new policy is in line with online rental services such the iTunes Store and Xbox Live. Both of them offer high-definition movie rentals with a limited viewing window.

In the case of the Apple TV and iTunes content, viewers have 30 days to start watching the movie and 24 hours to finish watching once they hit play for the first time. But DirecTV is taking away something that its customers are used to having: unlimited time to watch their rentals. And unsurprisingly, these new restrictions don't come with lower prices.

By Nate Anderson
March 20, 2008 - 01:17PM CT

The MPAA has a bee in its collective bonnet about collegiate piracy, and the group isn't about to let anything so banal as "facts" get in the way of some cathartic outrage. How else to explain the fact that the group continues to petition members of Congress for special favors that would force colleges to make plans for offering up legal music services to students and for implementing copyright filters after the MPAA's own data shows that schools have little to do with the overall problem?

In a new letter this week, the MPAA continued to push its agenda in Congress, arguing that filters aren't just good for the movie business, they're good for the schools. The College Opportunity and Affordability Act sailed through the House last month. The bill contains a reauthorization of key federal funding for student aid, and the MPAA managed to pack the House version with a pair of provisions that the colleges and universities in question want nothing to do with. Another version of the bill without those provisions was passed by the Senate, and the two chambers are currently trying to hash out a compromise bill.

On March 11, the American Council on Education sent a letter (PDF) on behalf of 13 higher-ed groups to Congressional leaders, urging them to reject the controversial language. ACE said that schools had no problem telling their students about copyright and the legal and institutional penalties for violating it. But the schools did object to wording that would "require institutions to develop plans to provide alternative music and movie services and implement technological measures to deter illegal file sharing."

That letter pointed out that the MPAA had recently revised its own collegiate piracy numbers downward, now saying that students accounted for 15 percent of revenue lost to piracy (instead of 44 percent). But as ACE points out, only 20 percent of US college students live on campus and so "only 3 percent of MPAA losses can be attributed to college students using the campus networks." (The MPAA recently reported record box office revenue, indicating that piracy concerns, though real, aren't killing the movie business.)

by Greg Sandoval
March 19, 2008 12:30 PM PDT

UPDATED 2:55 p.m. (To include legal challenges to alleged anticompetitive relationship between iPod and iTunes.) Apple is in for a fierce legal fight should it ever release a device that offers all-you-can-eat music, according to David Pakman, CEO of rival digital music service eMusic. "It smells like classic Sherman Antitrust Act to me," Pakman said.

"I only know what I've read but the plan sounds very similar to the tying practices Microsoft used with Windows/Explorer. And Microsoft is still paying the penalties for that one." The Financial Times reported Tuesday that Apple is in talks with the four largest record labels about offering a device with access to the entire iTunes music library. A source close to the negotiations confirmed the report in an interview with CNET News.com and said the offering would be free initially but device owners would later be charged subscription fees.

The talks are preliminary and no agreements have been reached, the source said. That hasn't stopped some of Apple's competitors and antitrust lawyers from sounding alarms. Pakman says Apple is following Microsoft's lead. In 1998 the U.S. Department of Justice filed a lawsuit accusing Microsoft of monopolistic practices by bundling Internet Explorer with its Windows operating system. The case was settled in 2001. In that case Microsoft had monopolistic position in operating systems with Windows, the government charged.

The company achieved dominance in browsers by forcing Windows buyers to use Microsoft Explorer. The parallel is that Apple is forcing people who buy this device with preloaded music to buy its music, Pakman argues. An Apple spokeswoman said the company doesn't comment on rumor or speculation. Critics say that Apple, which sells 70 percent of all digital music devices, could use its overwhelming market share to wall out competitors. No other music services--download or subscription--could sell songs to such a device.

By Eric Bangeman
March 16, 2008 - 09:40PM CT

Even as Tanya Andersen refilled her malicious prosecution lawsuit last week, the RIAA won a victories in two unrelated lawsuits. One involved a case where the defendant never showed up in court; the other a defendant who admitted to using KaZaA to download and distribute music. James V. Lewis was sued by the labels in August 2007 after an IP address flagged by MediaSentry was traced to his ISP account.

Lewis never showed up in court, and the RIAA filed for a default judgment in October. Initially, the judge declined to give the labels what they were looking for, instead scheduling a hearing to discuss the case. After a hearing held last week, the judge gave the RIAA what it was looking for: a default judgment in the amount of $3,000 plus an additional $420 in court costs. Lewis has also been barred from infringing on "any other sound recording, whether now in existence or later created, that is owned or controlled by the Plaintiffs."

The other case, Atlantic v. Anderson, involves a Texas resident who was sued in November 2006 for copyright infringement. Abner Anderson decided to fight the lawsuit, submitting a brief answer to the RIAA's complaint in which he did little more than deny the labels' accusations. He also said that any infringement that did take place was due to the negligence on the part of the RIAA.

The RIAA moved for summary judgment in the case, arguing that Anderson's making the songs in question available on KaZaA was the same as distributing them, and that the facts of the case were indisputable. Anderson disagreed. In his response to the RIAA's motion, he argued that the problem of illegal downloading was the result of the recording industry's own negligence.

By Ryan Paul
March 16, 2008 - 06:44PM CT

The Swedish ministers of Justice and Culture made a statement in a Swedish newspaper editorial late last week calling for the government to establish a legal framework that would enable courts to order ISPs to reveal the IP addresses of file-sharers. The Swedish Pirate Party issued a response on its own web site, condemning the government for making a "declaration of war against an entire young generation of voters... on behalf of the American film and record companies."

The Swedish government has recently expressed concern about the growing perception that the country is a safe haven for peer-to-peer file-sharing. This proposal provides insight into the sort of legislation that the government intends to craft in its effort to address the issue. The government has also recently launched a legal assault against The Pirate Bay, a widely-known Swedish BitTorrent tracker that has fearlessly continued to operate despite prior raids and countless threats.

The proposal offered by the Swedish ministers is favored by ISPs because it shifts some of the burden of copyright enforcement on the content industry rather than placing all of it on telecommunications companies. That characteristic distinguishes the proposal from one published recently by an appeals court judge who suggested that ISPs should be required to terminate service for users who repeatedly obtain copyrighted material from file-sharing networks without authorization.

According to Swedish news site The Local, support for disclosure of IP addresses represents a significant reversal for the Center Party, which had previously vowed to fight against anti-piracy proposals that erode privacy. This debate in Sweden comes at the same time that the European Parliament is evaluating the possibility of classifying IP addresses as personal information and extending legal protection to IP addresses accordingly.

By David Chartier
March 13, 2008 - 09:47PM CT

Major musicians are exploring the market potential for directly interacting with their fans and releasing music independently. Nine Inch Nails and Radiohead both made headlines recently for experimenting with Internet-based releases, but NIN frontman Trent Reznor has just called Radiohead's effort "insincere."

"I think the way [Radiohead] parlayed it into a marketing gimmick has certainly been shrewd," Reznor said when speaking to Australian Broadcasting Corporation's Michael Atkin. "But if you look at what they did, though, it was very much a bait and switch to get you to pay for a MySpace-quality stream as a way to promote a very traditional record sale."

Reznor is referring to Radiohead's release of "In Rainbows" as lossy 160kbps (max) MP3 downloads, which many would argue are sub-par when compared to DRM-free offerings from Amazon and iTunes Store (both of which offer 256kbps DRM-free music). Furthermore, Radiohead's album is also no longer offered as a digital download, as the band openly stated that they were still going to rely on traditional labels and distribution channels for the rest of In Rainbows' sales.

"There's nothing wrong with that," Reznor continued, "but I don't see that as a big revolution [that] they're kinda getting credit for." In addition to the quality of Radiohead's MP3s, NIN's frontman also took issue with the band's omission of artwork and altogether not taking care of the fans. "To me that feels insincere. It relies upon the fact that it was quote-unquote 'first,' and it takes the headlines with it."

Mar 11, 2008 at 2:59 PM MDT

DRIGGS, Idaho (AP) _ The woman who starred as Mary Ann on the television show ''Gilligan's Island'' is serving a six-month probation for her arrest last fall in eastern Idaho. Dawn Wells, 69, was taken into custody after being caught with marijuana in her vehicle while driving home after a surprise birthday party on October 18th.

Wells pleaded guilty as part of a deal last month to one count of reckless driving. In exchange, prosecutors dropped three misdemeanors for driving under the influence, possession of drug paraphernalia and possession of a controlled substance. Police reports show she was pulled over by a Teton County Sheriff deputy who claims Wells' car swerved several time on State Highway 33.

Police reports show deputies seized four half-smoked joints and two small cases used to store marijuana from the vehicle. Defense attorney Ron Swafford says a friend of Wells' voluntarily testified that he had left a small amount of marijuana in the car after using the vehicle earlier in the day.