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June 23, 2009

Feds Reach Out to Universities Targeted in Massive Spam Operation

Prosecutors are reaching out to universities that may have been victims of spammers who allegedly culled e-mail addresses from more than 2,000 colleges and bombarded students with messages.

It’s the latest twist in a story that broke in April, when prosecutors announced the indictment of two brothers who allegedly used the University of Missouri computer network in a national spamming operation. The spammers are said to have deployed extracting programs that harvested more than eight million student e-mail addresses.

Martin Manjak, information-security officer at the State University of New York at Albany, said that a “U.S. Department of Justice Victim Notification System” e-mail message he received last week was the “first such notice we had received” from the department. He was one of nearly a dozen people from universities around the country to discuss the notifications in recent days on a security listserv maintained by Educause, the higher-education technology association.

“It came out of the blue as far as we were concerned,” Mr. Manjak told The Chronicle. “We had no idea that we had been victimized by these individuals, although we certainly get our fair share of spam.”

The e-mail message the university received, which Mr. Manjak shared with The Chronicle, came from the U.S. Attorney’s Office for the Western District of Missouri. It begins, “Your name was forwarded to our office by law enforcement as a victim (or potential victim)” in the spamming case. The message notifies receivers of their rights as victims and provides instructions for seeking more information. It also tells recipients how to notify prosecutors if they believe they may have “information or evidence that will aid in the prosecution of this case.”

The trial is scheduled to begin November 2, but the e-mail message cautions that “most criminal cases are resolved by a plea agreement.”

Asked if he was sure the notification wasn’t itself a piece of spam, Mr. Manjak e-mailed this reply: “It would be a pretty elaborate hoax if it wasn’t from the DOJ, but I rarely use the word ‘sure’ in anything that deals with Internet security.” —Marc Parry

Posted on Tuesday June 23, 2009 | Permalink | Comment [4]

June 19, 2009

24 Songs Shared, Nearly $2-Million in Fines

Jammie Thomas-Rasset’s 2007 trial didn’t end well. That fall Ms. Thomas-Rasset, the first peer-to-peer-piracy suspect whose case reached a civil trial, was found guilty of sharing 24 songs on KaZaA, the once-popular file-sharing service, and ordered to pay $220,000 to Capitol Records. Then she got a second shot: The judge who had heard that case called a mistrial, explaining that he had given the jury improper instructions.

But for Ms. Thomas-Rasset, trial No. 2 turned out far worse than the first one. Yesterday a federal jury again found her guilty of sharing those 24 songs, this time adding charges of “willful infringement,” and hit her with a $1.92-million penalty.

That’s $80,000 per song, a rate that even the RIAA might not have dared to expect. Ms. Thomas-Rasset called the figure “kind of ridiculous,” according to the Associated Press, but she didn’t say whether she would appeal the verdict or pursue a settlement.

The plaintiff, the Recording Industry Association of America, said it was satisfied with the decision. “We are pleased that the jury agreed with the evidence and found the defendant liable,” Cara Duckworth, a spokesperson for the trade group, said in a written statement. “Since day one, we have been willing to settle this case and we remain willing to do so.”

The RIAA didn’t crow about the size of Ms. Thomas-Rasset’s fine, and that might be a smart move. The size of the verdict “may do more to hurt than help the RIAA,” said Ray Beckermann, a lawyer who has frequently opposed the trade group in court, “because it offers a vivid demonstration of how out of sync the RIAA’s damages theory is with decades of case law.” The RIAA has eased up on its once-aggressive legal campaign against piracy, and its decision to lay low may have paid dividends. But as Computerworld‘s Richi Jennings points out, the sheer size of yesterday’s award has generated plenty of blog buzz.

(Folks who are keenly interested in the trial would do well to read Ars Technica’s blow-by-blow coverage.) —Brock Read

Posted on Friday June 19, 2009 | Permalink | Comment [25]

May 29, 2009

Copyright-Law Curricula Face Each Other in a Duel

Just a few months after the Recording Industry Association of America began offering a curriculum for teaching copyright law, the Electronic Frontier Foundation has released a curriculum of its own.

The foundation’s program, “Teaching Copyright,” includes a Web site and five 60-minute lessons that the foundation hopes will give students what it calls “the real story” about their rights when it comes to downloading movies, music, and other media from the Internet.

Tracy Mitrano, who is director of IT policy at Cornell University and also director of the university’s computer-policy and law program, says it’s important to remember that both organizations have their own points of view and motivations.

“If you get something form the RIAA, it’s going to have its own motivation for its perspective implicit in its curriculum,” Ms. Mitrano says. “If you get something from a not-for-profit, you may want to know something about its positions on other matters, and where it may fall on the political spectrum.”

“If I was teaching copyright law as an undergraduate course, I’d offer both up,” she adds. “That’s what democracy is all about. That’s what debate is all about.” —Marc Beja

Posted on Friday May 29, 2009 | Permalink | Comment [7]

May 8, 2009

Recording Industry's Antipiracy Campaign Lingers, but Federal Law May Loom Larger

Rumblings this week about the recording industry’s antipiracy offensive centered on what form it’s taking in the supposed post-mass-lawsuit era.

Ray Beckerman, a lawyer in New York who writes the blog Recording Industry vs. the People, went looking for new lawsuits against alleged illegal file-sharers, found three, and called the Recording Industry Association of America’s stated end of its mass-litigation campaign a “total fabrication.”

Ars Technica characterized the RIAA as cagey, for fudging the definition of “new cases,” but the lawyer Ben Sheffner, on his blog Copyrights & Campaigns, said the “new” lawsuits were just “conversions of previous ‘John Doe’ suits against defendants whose names have now been revealed through the subpoena process.” Wired.com headlined its item “Nothing to See Here.”

Indeed, the announcement back in December was that the RIAA would stop suing groups of students — and, in fact, that the trade group had already ceased doing so. That meant an end to more than five years of periodic batch lawsuits against computer users, notoriously college students, who the industry said were illegally sharing copyrighted music files. “Batch” remains an operative word.

“We’re working diligently and in good faith to move cases forward and out of the pipeline and offer reasonable settlements,” a recording-industry spokeswoman told The Chronicle in an e-mail message this week. “For those who refuse, we must continue with the case and move it through the legal process.”

After having seen increased “takedown” notices from the RIAA in February, some colleges now report a drop-off, attributing it, in part, to institutional policies that discourage students’ music piracy.

Federal law, which now requires colleges to “effectively combat” copyright violations with “a variety of technology-based deterrents,” may supplant RIAA threats as an incentive, beyond the moral imperative, to rein students in. Regulations that explain what “effectively combat” means are still being hashed out by appointed negotiators who meet for the final time next week. —Sara Lipka

Posted on Friday May 8, 2009 | Permalink | Comment [3]

April 17, 2009

Judge Bars the Internet From the Courtroom in a File-Sharing Case

So much for the long-awaited, fiercely contested Webcast in the recording industry’s hottest piracy case. A federal appellate judge ruled today that it cannot happen.

Charles Nesson, a Harvard Law School professor, had asked to Webcast a court hearing in the case against his client Joel Tenenbaum, a graduate student at Boston University whom Sony BMG Music Entertainment sued for copyright infringement. The presiding federal judge, Nancy Gertner, approved the request in January. But the recording industry, fearing that the hearing in U.S. District Court in Boston would become a circus, appealed to the U.S. Court of Appeals for the First Circuit.

Today, that court barred the Webcast, which was to be recorded by the Courtroom View Network and carried gavel to gavel by Harvard’s Berkman Center for Internet & Society. Judicial rules close federal courtrooms in Massachusetts to all forms of broadcasting, including Webcasting, Judge Bruce M. Selya wrote in the ruling.

The opinion pops what it calls Judge Gertner’s “free-floating bubble of discretion” to allow a Webcast. Cameras have an “intimidating effect” in courtrooms, Judge Selya quotes from federal judicial guidelines. Proceedings should be recorded for television or the Internet only in limited circumstances, the ruling says, such as to memorialize a ceremony or a naturalization.

Still, the court acknowledges there are “good arguments” for Webcasting. “We are also mindful,” the opinion says, “that emerging technologies eventually may change the way in which information — including information about court cases — historically has been imparted.” But rules are rules, it says.

The Recording Industry Association of America, predictably, was happy. “We are pleased with the First Circuit’s decision in this matter and now look forward to focusing on the underlying copyright-infringement claims in this case,” a spokeswoman wrote in an e-mail message.

Not so Team Joel. “We are disappointed by the First Circuit’s decision and maintain that Joel is being denied a constitutional right to a public trial in the age of the Internet,” says a statement on Mr. Tenenbaum’s Web site, Joel Fights Back. “We intend to explore every legal option available to Joel,” it says. “We encourage the public to weigh in and express its support of Internet in the courtroom with comments on our blog post.”

For now, people may express that support or interest by going to Boston, the ruling suggests.

“While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen,” Judge Selya wrote. “There is no hint here that any portion of the proceedings will be closed to the public.”

At Mr. Tenenbaum’s next hearing, scheduled for April 30, Judge Gertner will consider arguments regarding his countersuit against the recording industry. —Sara Lipka

Posted on Friday April 17, 2009 | Permalink | Comment [4]

March 23, 2009

Justice Department Favors Recording Industry's Position in Copyright Case

A defendant in a lawsuit who asks the federal government to intervene in his case might be careful what he wishes for.

The U.S. Department of Justice rejected over the weekend the argument that the recording industry’s litigation against alleged copyright infringers is unconstitutional. Charles R. Nesson, a professor at Harvard Law School defending Joel Tenenbaum, a student at Boston University being sued by Sony BMG Music Entertainment, had asked the Justice Department in February to prevent copyright holders from collecting statutory damages except from offenders seeking commercial gain.

The Justice Department fiercely denied that request, in a 31-page memo filed on Saturday.

“The remedy of statutory damages has been a cornerstone of our federal copyright law since 1790,” the agency said. Even copyright violations not motivated by profits limit the legal distribution of protected work, it said. “The public in turn suffers from lost jobs and wages, lost tax revenue, and higher prices for honest purchasers.”

Mr. Nesson has argued that the penalties Mr. Tenenbaum faces, if he loses the case, are grossly disproportionate: up to $150,000 for each of the seven songs he is accused of illegally downloading. The Free Software Foundation, in a legal brief on Mr. Tenenbaum’s behalf, cited several recent cases to support the position that the recording industry’s lost profits for each infringement — which it estimates at $0.35 — should not prompt damages of more than 425,000 times that amount.

Still, the Justice Department points out that damages are subject to review for “excessiveness,” says the blog Recording Industry vs. the People, whose author also wrote the Free Software Foundation brief. And the federal agency does not say that Mr. Tenenbaum should have to pay the damages the recording industry seeks, says the blog Copyrights & Campaigns, just that the law that defines them does not violate the Constitution. — Sara Lipka

Posted on Monday March 23, 2009 | Permalink | Comment [3]

March 12, 2009

Student's Defense Against Recording Industry Hits Snags

Joel Tenenbaum, poster child for opposition to the recording industry’s mass-lawsuit campaign, has won much sympathy (and many Twitter followers), but going has been tough lately.

This week the federal judge on Mr. Tenenbaum’s case admonished his legal team, led by Charles R. Nesson, a professor at Harvard Law School and founder of its Berkman Center for Internet and Society. The judge, Nancy Gertner, denied a motion they had filed, calling it “plainly flawed,” and suggested that they were not, as judicial rules require, conferring “in good faith” with the other side, the recording industry.

“Nothing entitles the defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the local rules of this court,” Judge Gertner wrote, “or to dispense with them where they fail to suit his counsel’s teaching style.”

Students in Mr. Nesson’s “CyberOne” course have been working on Mr. Tenenbaum’s case, a fact the judge acknowledged with some frustration. “While the court understands that counsel for the defendant is a law professor, and that he believes this case serves an important educational function,” she wrote, “counsel must also understand that he represents a client in this litigation — a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the rules.”

The Intellectual Property Colloquium, a project of the University of California at Los Angeles School of Law, also questions Mr. Tenenbaum’s case in its current podcast.

Mr. Tenenbaum, who allegedly violated law by illegally sharing seven copyrighted songs, is arguing that the recording industry is suing him unconstitutionally. In the podcast, Mr. Nesson discusses his view of Mr. Tenenbaum’s possible penalty as grossly disproportionate: up to $150,000 per song.

“You’re talking about a kid who clicks a mouse,” Mr. Nesson says, “and on the basis of having clicked a mouse is pursued by federal courts with a bankrupting judgment that wrecks basically years of his life.” He calls Mr. Tenenbaum “one of the locust cloud” of file sharers and chides universities for not similarly representing other defendants in lawsuits filed by the recording industry.

But Douglas Lichtman, host of the podcast and professor of law at UCLA, isn’t convinced. He doesn’t see how the lawsuit is unconstitutional; he puts the actual harm Mr. Tenenbaum caused the recording industry at more than the “pennies” Mr. Nesson estimates; he sees room for a penalty that incorporates meaningful deterrence; and he disagrees with the perspective that Mr. Tenenbaum is somehow blameless because he wasn’t using the songs for commercial gain.

The recording industry’s mass-lawsuit campaign may not have won hearts, but it has changed minds, Steven Marks, general counsel for the Recording Industry Association of America, says in the podcast.

“Unfortunately,” he says, “this was the best way for people to understand what was legal and illegal.” —Sara Lipka

Posted on Thursday March 12, 2009 | Permalink | Comment [20]

March 6, 2009

Blanket-Licensing Proponent Not Quite Preaching to the 'Choruss'

The collapse of online music services like Ruckus has left a void in students’ legal downloading options, which the recording industry promotes, colleges encourage, and federal law now requires them to offer.

Enter Choruss, a new blanket-licensing system that would bill colleges and compensate artists based on how much music students were downloading. The project, financed by Warner Music Group, is still in the works, and its president, Jim Griffin, has been out and about lately taking questions.

Last week he spoke to music-industry types at a conference of Digital Music Forum East, and this week he checked in with campus officials in an online chat with Educause. In the latter, Mr. Griffin appealed to educators’ sense of intellectual property. “It’s become voluntary,” he said, “to pay for music products.”

His solution: to pursue “intelligent monetization” by working with colleges to measure music downloading on their networks. Colleges’ help will mean better data, Mr. Griffin said — maybe even journal articles. He is eager for analysis but not free research: “We don’t expect people to be making donations of their time,” he told the Educause audience. “We’re happy to bear those costs.”

Colleges should consider Choruss not just to work on a challenging issue, but to do the right thing to “incent creativity,” Mr. Griffin said. “To keep good stuff coming, there needs to be money such that people can eat.”

He responded to early criticisms of the project, dismissing, for example, its characterization as a tax. The system will be flexible, he said, allowing colleges to set it up for students to opt in or out. And collecting data on downloads will involve after-the-fact accounting, not real-time interception, he said, although he did mention Audible Magic, a company whose patrolling software some institutions oppose on academic-freedom grounds.

Some librarians worry that Choruss will levy fees even for work covered by copyright law’s “fair use” provisions. Mr. Griffin responded to that concern by describing radio stations’ licenses with the performing-rights organization Broadcast Music Inc. even though some of the songs on their airwaves are covered by fair use.

The link between signing up for Choruss and a supposed “covenant not to sue” (by music companies that have engaged in a mass-litigation campaign against students) has prompted some observers to call it an extortion scheme. Mr. Griffin sought to dispel that impression, too, but he predicted that using the service would diminish the “takedown” notices colleges get from the recording industry. —Sara Lipka

Posted on Friday March 6, 2009 | Permalink | Comment [6]

February 19, 2009

Judges Will Weigh Whether to 'Admit the Internet Into the Courtroom'

The most visible defendant in the recording industry’s supposedly dwindling mass-lawsuit campaign may still get his day in court Webcast — just not next week, a federal appellate judge decided yesterday.

Joel Tenenbaum, backed by Harvard Law School, has become a poster child for opposition to the recording industry’s copyright-infringement litigation. A graduate student at Boston University, Mr. Tenenbaum was sued for illegally downloading seven copyrighted songs. Harvard’s Berkman Center for Internet & Society is fighting to stream his case online.

Last month a federal judge in Massachusetts, Nancy Gertner, ruled for a Webcast of a pre-trial hearing — filmed by the Courtroom View Network and carried gavel-to-gavel by the Berkman Center — but the recording industry appealed the decision to the U.S. Court of Appeals for the First Circuit. The Electronic Frontier Foundation and several news-media organizations filed briefs supporting the Webcast. Yesterday, the circuit court said it wanted to hear oral arguments on the Webcast question — in early April.

That decision may draw out the case even further, postponing the hearing originally set for mid-January and then rescheduled for late February. At the hearing, whenever it happens, Judge Gertner will consider Mr. Tenenbaum’s countersuit against the recording industry, which argues that its authority to sue him is unconstitutional.

Charles Nesson, a Harvard Law professor representing Mr. Tenenbaum, asked the U.S. District Court in Massachusetts to “admit the Internet into the courtroom” for the hearing because of “the potential learning value of this case to a broad audience.” Indeed, Mr. Nesson has found much learning value in the case, supervising several law students’ work on it and trying an experiment in crowdsourcing (or “collaborative lawyering”) for a motion to compel the deposition of a certain recording-industry lawyer.

One of Mr. Nesson’s students, Debbie Rosenbaum, said Mr. Tenenbaum’s team considers the Webcast critical. “We’re going to work really hard to have the First Circuit rule in our favor,” she said. “We believe that this is a really important right.”

The recording industry, however, opposes the Webcast, arguing that the district court lacks the authority to allow it and raising concerns about its influence on the case.

“We are for an open trial in an open courtroom,” Cara Duckworth, a spokesperson for the recording industry, said in an e-mail interview. “What we are against is the manipulation of the judicial process and using a court of law for legal theater and gamesmanship, which is the clear objective of the other side.” —Sara Lipka

Posted on Thursday February 19, 2009 | Permalink | Comment [3]

February 9, 2009

Razing Ruckus

Students will download songs and movies one way or another, so part of deterring piracy is offering free, legal resources. But now a go-to option for many colleges, Ruckus, has dropped out of the dwindling business.

“Unfortunately the Ruckus service will no longer be provided,” says a message that reportedly replaced Ruckus’s Web site on Friday evening. “Thanks.”

The Chronicle’s calls to the company’s headquarters, in Herndon, Va., were not immediately returned on Monday.

Colleges began signing up for Ruckus five years ago, and in 2005, almost one in five was considering a subscription to a music or movie service, according to a survey by the education-technology group Educause. At first Ruckus charged for campuswide access, but by 2006 it had shifted its focus from site licenses to advertising, still requiring colleges to sign deals, but not to pay.

Record-company executives hailed the service, with its extensive digital library, as a means of curbing copyright violations. But students weren’t convinced: Ruckus was incompatible with Macs, and files downloaded through the company’s free service couldn’t be uploaded to iPods and other portable devices, because of digital-rights-management protections.

Still, the end of Ruckus nearly dries up the old pool of legal file-sharing alternatives. The similar service Cdigix discontinued its music and movie libraries in 2007, and Napster has all but abandoned the collegiate market. Ruckus, a part of Sony BMG and Universal Music Group’s Total Music project, was a popular remaining option.

“help help help!!” one student posted on a Ruckus-devoted page on Facebook. “i can’t cope :-( bring back ruckus!” Another lamented the timing of the service’s demise: “I didn’t get to finish my Neil Diamond collection.”

Students reported that their previously downloaded files still play — as long as the individual digital-rights-management licenses haven’t expired — but colleges are going to have to look for new legal sources of music. Federal law now requires the institutions to deter students’ piracy by offering alternatives to illegal file sharing. In this changing market, what will those alternatives be? —Sara Lipka

Posted on Monday February 9, 2009 | Permalink | Comment [2]

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