March 27, 2008
TorrentSpy Gone, Next Up, IsoHunt
In other Torrent news, TorrentSpy shut down, beaten down by litigation by the MPAA. The issue of whether search engines can be held responsible for copyright infringement will come in the MPAA's litigation against IsoHunt, another Torrent search engine. The TorrentSpy case was hampered by procedural issues, such as TorrentSpy destroying evidence and what. That main issue never got a ruling.
More details are at CNET.
Comcast and BitTorrent Work Out a Deal on Net Management
Comcast and BitTorrent have decided to work things out for themselves. Their corporate personas have probably decided that a pending decision from the FCC on Comcast's network management practices would not be in anyone's interest. The FCC had said a while back that network management by ISPs was ok, but never defined the practice. The fact that the Commission took up the complaints about Comcast must have been unnerving to the industry that prefers no regulation.
Out of this, Comcast will only manage traffic in a protocol-neutral manner, and BitTorrent acknowledges that Comcast (and presumably other ISPs) have the right to manage their network traffic. Comcast also agrees to make the details of its management transparent to consumers, something that FCC Chairman Kevin Martin stressed in statements in the hearings. Network neutrality advocates are disappointed because Comcast and competitors are not locked into regulations defining what they can and can't do. Given that the present make-up of the Commission is heavy into deregulation, a deal such as this may be better than what may have come out of an order. Maybe not.
The whole brouhaha (ha-ha-ha, added emphasis courtesy of the Firesign Theatre) may yet come again when one of the biggies steps out of line and someone like the AP catches the ISP in the act. By then there may be a populist Democrat in the White House and the outcome may be a bit different. Maybe not.
CNN sums it up nicely.
March 25, 2008
Attorney's Fee Award in RIAA Case Appealed to U.S. Supreme Court
One man's tangle with the RIAA is on appeal to the United States Supreme Court over whether he is entitled to attorney fees. Cliff Thompson was sued by the RIAA for file sharing, but later dismissed the suit when they discovered the party they were really after was his adult daughter. Thompson asked for attorneys' fees but was denied at the District Court and later affirmed by the Fifth Circuit. It seems there's a split in the Circuits on what the is the standard for awarding fees when the plaintiff voluntarily dismisses the case. The Fifth Circuit (Virgin Records America, Inc. v. Thompson, 512 F.3d 724 (CA5 January 4, 2008) said that the award is not automatic, citing Fogerty v. Fantasy, Inc., 510 U.S.517 (1994):
Nevertheless, recovery of attorney's fees is not automatic. See Fogerty, 510 U.S. at 534, 114 S.Ct. 1023; Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 817 (5th Cir.1997) (noting that the Supreme Court “repudiated the ‘British Rule’ for automatic recovery of attorney's fees by the prevailing party” and holding that the district court did not abuse its discretion in denying fees). “[A]ttorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion.” Fogerty, 510 U.S. at 534, 114 S.Ct. 1023 . The Supreme Court listed several non-exclusive factors that a court may consider in exercising its discretion: “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. at 534 n. 19, 114 S.Ct. 1023 (quoting Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir.1986)).
In a more recent case, by about a month and a half, Riviera Distributors, Inc. v. Jones, ____ F.3d ____(CA7, Feb 20, 2008), the Seventh Circuit said that a material change in the material legal relationship of the parties is enough, citing Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Services, 523 U.S. 598 (2001):
This approach supposes that the content of a judge's opinion is what makes a litigant a prevailing party. If the judge sustains a litigant's position on the merits, then it “prevails”; otherwise not. The Supreme Court took a different view in Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), which holds that a litigant “prevails” (for the purpose of fee-shifting statutes) when it obtains a “material alteration of the legal relationship of the parties”, 532 U.S. at 604, 121 S.Ct. 1835, quoting from Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). A judgment in a party's favor has such an effect, which is why a consent decree confers prevailing-party status even though everyone denies liability as part of the underlying settlement, and the judge takes no position on the merits.
The RIAA strategy of shotgun lawsuits followed by cutting and running when the case looks like a loser may get some examination if the Court takes up the case. More in Ars Technica.
March 24, 2008
Sirius-XM Merger Clears Justice Department
From the Press Release:
“The Division’s investigation indicated that the parties are not likely to compete with respect to many segments of the satellite radio business even in the absence of the merger. Because customers must acquire equipment that is specialized to the satellite radio service to which they subscribe, and which cannot receive the other provider’s signal, there has never been significant competition for customers who have already subscribed to one or the other service. For potential new subscribers, past competition has resulted in XM and Sirius entering long-term, sole-source contracts that provide incentives to all of the major auto manufacturers to install their radios in new vehicles. The car manufacturer channel accounts for a large and growing share of all satellite radio sales; yet, as a result of these contracts, there is not likely to be significant further competition between the parties for satellite radio equipment and service sold through this channel for many years. In the retail channel, where the parties likely would continue to compete to attract new subscribers absent the merger, the Division found that the evidence did not support defining a market limited to the two satellite radio firms that would exclude various alternative sources for audio entertainment, and similarly did not establish that the combined firm could profitably sustain an increased price to satellite radio consumers. Substantial cost savings likely to flow from the transaction also undermined any inference of competitive harm. Finally, the likely evolution of technology in the future, including the expected introduction in the next several years of mobile broadband Internet devices, made it even more unlikely that the transaction would harm consumers in the longer term. Accordingly, the Division has closed its investigation of the proposed merger.”
The full text is here. On to the FCC.
FBI Fake Links Snare Would-Be Child Porn Downloaders
Declan McCullagh posts a sad story of Roderick Vosburgh, who is about to be sentenced for attempting to download child pornography. Vosburgh clicked on a link that purported to lead to child pornography. The link which did not contain any such thing, however, was posted by the FBI. They logged access, leading to Vosburgh's arrest. Presumably, others are awaiting their visits.
McCullagh has interviews with Vosburgh's attorney and a a fairly detailed description of the issues in the case. The larger issue, of course, is what happens when someone unintentionally clicks on a link in spam or online source that purports to be something and leads to illegal material. Then there is the entrapment issue, but the courts don't seem bothered by that in this case.
Patent Problems May Limit Imports of Cell Phones, Blu-Ray Players
The U.S. International Trade Commission is investigating whether certain imports violate patents by Gertrude Neumark Rothschild, Professor Emerita of Material Science and Engineering and Professor Emerita of Applied Physics and Applied Mathematics at Columbia University. The patents include short-wavelength LEDs and laser diodes used in a lot of different products, including Blu-Ray players and cell phones. That got Sony's attention, though no comment has come forth. The complete list of companies reads like the Who's Who of Asian electronics makers. Should she win, Professor Rothschild should be in for a pretty hefty payday.
Ars Technica has commentary.