The recording industry has scored gold in its court battle with Usenet, which advertises itself as a massive online file sharing community. See: Arista Records v. Usenet, 07 Civ. 8822 (S.D.N.Y. June 30, 2009) The case, filed back in 2007, pitted the record companies against Usenet, with the recording industry alleging widespread infringement of copyrighted recordings through downloading over the Usenet network and Judge Harold Baer agreed, finding Usenet guilty of direct, contributory and vicarious copyright infringement.
But let’s start at the beginning. Usenet was started about 20 years ago as a network of online bulletin boards, members can chat with each other and they can also share files of any type or description, including copyrighted material. Members search the database, as they would any other, for files by subject. Once they find what they want, they click and voila, the file is downloaded to their P/C (or even a Mac!) Usenet tried to argue it was afforded the same protections as Sony under the Betamax decision, which provides an entity with protection from copyright claims if its service provides “significant non-infringing uses.” That rationale was based on the fact that once Sony sold a videotape player that was the end of its involvement with the consumer, who could then use it to either watch home videos, or potentially violate third-party rights.
Usenet also tried to argue for protection under the Digital Millenium Copyright Act but Baer didn’t buy that argument either due to Usenet’s “widespread destruction of evidence.” The DMCA provides a “safe harbor” for service providers provided they didn’t know about the infringement. However, when you destroy evidence that could support your defense, it doesn’t bode well and the court took keen notice of the destruction of hard-drives and other electronic evidence. Therefore, the Court sanctioned Usenet by eliminating its defense pursuant to the DMCA.
To show that it is entitled to such protection, Defendants must not have been aware of “red flags” indicating infringement on the part of their users. E.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007) (finding a service provider may lose safe harbor protection “if it fails to take action with regard to infringing material when it is ‘aware of facts or circumstances from which infringing activity is apparent.’”) (quoting 17 U.S.C. § 512(c)(1)(A)(ii)). Thus, if Defendants were aware of such red flags, or worse yet, if they encouraged or fostered such infringement, they would be ineligible for the DMCA’s safe harbor provisions. The evidence that is alleged to have been destroyed or lost in this case would have been directly relevant to illustrate Defendants’ state of mind in this regard.” Arista Records v. Usenet at p. 17
Plaintiffs have until July 21st to submit a proposed order on the scope of permanent injunctive relief for the Court’s consideration.
About the Author
Lisa Fantino is an entertainment and general practice attorney and an award-winning journalist with an office in Mamaroneck, New York. As a litigator, she has represented clients in local, state and federal courts and is admitted to the bar in New York and Connecticut and the U.S. Supreme Court. As a journalist, she has won multiple awards for her work at stations including WCBS-AM, WINS-AM and the NBC Radio Networks, where she was a news anchor, reporter and producer. She was also host of the celebrity interview show, “Face to Face with Lisa Fantino” on Cablevision. Her blog is Lady Litigator.