April 7th, 2011

Legal Attack on Online Video Site Could Throttle Innovation with Fears of Litigation

San Francisco – The Electronic Frontier Foundation (EFF) and a coalition of advocacy groups have asked a federal appeals court to reject attempts to thwart federal copyright law and saddle online communities with new litigation fears in the appeal of Viacom v. YouTube.

In an amicus brief filed Thursday, EFF argues that the infringement claims made by Viacom and the other plaintiffs threaten to undermine the "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA) — safe harbors that have fostered free speech and innovation around the globe. Without the clear legal structure of the DMCA process, companies that host user-generated expression could be hit with potentially massive damage awards, which would encourage over-blocking of content or even the shutdown of services altogether.

"If the DMCA safe harbors are undermined in the way Viacom and the other content companies would like, the free flow of information will be seriously threatened," said EFF Senior Staff Attorney Abigail Phillips. "Communications platforms like YouTube have enabled political and other speech to flourish online. We've all seen the critical role digital communications have been playing in protests across the Middle East. The safe harbors make posting of user-generated content like this possible."

At issue in this case is copyright infringement on YouTube before the online video service voluntarily implemented content filtering technologies in May of 2008. The district court correctly found that YouTube was shielded by the DMCA safe harbors, and Viacom and others appealed the ruling to the 2nd U.S. Circuit Court of Appeals.

"All the online services you use every day — Facebook, Twitter, Amazon, eBay — depend on the DMCA safe harbors in order to allow user-generated content on their sites," said EFF Intellectual Property Director Corynne McSherry. "That's why Congress designed the safe harbors — to allow innovators to manage legal risk and develop new services without fear of devastating litigation, while offering copyright owners an expedited process for taking down infringing content. Viacom's arguments here misinterpret the law, with potentially disastrous results."

Also joining EFF's brief are the International Federation of Library Associations and Institutions, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Center for Democracy and Technology.

For the full amicus brief:
https://www.eff.org/files/filenode/viacom_v_youtube/ViacomvGoogleAmicus….

For more on this case:
http://www.eff.org/cases/viacom-v-youtube

Contacts:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Abigail Phillips
Senior Staff Attorney
Electronic Frontier Foundation
abigail@eff.org

Related Issues: DMCA, Intellectual Property

Related Cases: Viacom v. YouTube

“…Desktop computers will continue to evolve by becoming smaller, faster and more efficient.”

There’s no doubt about it, notebook computers surpassed their desktop computer counterparts in overall sales because of their mobility, small footprint and evolution into being virtually just as powerful. However, there are still several reasons to buy a desktop computer as they offer some fundamental aspects that are difficult for a notebook/ netbook / tablet to emulate. For example, desktop computers can have bigger screens, bigger storage capacity and can function as a centralized location, or a home base/dumping ground for your computing needs. Your desktop computer can also manage your home/office network, have more peripherals connected to it and can be upgraded with new parts in order to future-proof it.

Regardless of whether you are contemplating either a desktop or a notebook purchase, desktop computers continue to evolve and this Tech Tip will identify several trends that can give you additional information on what to look for so you can make an informed decision.

A Shrinking Footprint

One neat feature that computer makers are pushing more of is the need for a computer to occupy less space. Manufacturers realize that technology has advanced so much that many customers opt for more space-saving designs without sacrificing too much horsepower. For example, the Lenovo Ideacentre Q150 measures about 7” x 6” x 1” and weighs about 1 pound. Yet it boasts a 250 GB hard drive, Intel Atom 1.6ghz, built-in Wi-Fi and nVidia Ion graphics. The way PC makers pull this off is by including notebook computer parts that can fit in such a small chassis. A slightly larger variation (and growing in popularity) of this is the All-in-One PC concept where the guts of the computer are built inside the LCD monitor chassis such as the Dell Inspiron One 2305 or the Apple iMac.

More Beefy Hardware

Most desktop computers that are built now feature more generous hardware as standard such as 3-6GB RAM and 320GB-1 Terabyte (1 TB) hard drives. These were premium costs years ago. Also, more standard multimedia capabilities are included such as nVidia ION graphics and Intel’s Sandy Bridge platform (Core i7, i5, etc.), having built-in video graphics right inside the CPU for enhanced HD video playback and other multimedia tasks. In addition, triple and quad-core CPUs have become such a staple that you can pick up a reasonably-equipped quad-core such as the HP Pavilion P6650Z for a great price. Furthermore, amenities such as a multi-format memory card reader, DVD burner, 5.1-channel audio and built-in Wi-Fi have become desktop PC staple features.

Other more common features appearing on desktop computers are DVI ports if you want the option to connect a high-definition (HD) monitor, 4-6 USB ports, USB 3.0 ports and the phasing out of the older PS/2 connectors. (green-colored mouse connector & purple-colored keyboard connector) In addition, some manufacturers engineer their desktop computers to be able to function as a home media PC (HTPC). So it’s possible to connect your computer to your television and record/playback TV shows, connect and copy/save home movies from your camcorder and play it back on your TV.

More Beefy Hardware – Part Deux

As stated earlier that modern desktop computers are now configured with generous hardware, it is still possible to further upgrade a current desktop PC if you’re worried about obsolescence. For example, many new desktop computers have 4 GB CPU RAM standard and while this is plenty for most people, it can most likely be maxed out at 8-16 GB RAM. Granted, the only practical benefit for this type of upgrade investment would be if you plan to do CPU-intensive tasks like running multimedia applications like Adobe Photoshop and Premiere Pro or computer simulations/calculations. That being said, you should perform due diligence on the prospective desktop computer(s) you’re considering and determine how well it can be upgraded (i. e. extra hard drive bays) if you anticipate your current and future computing needs will require it.

The Future

Desktop computers will continue to evolve by becoming smaller, faster and more efficient. Regardless of your reason for buying one, it is safe to say that the horsepower included with an average-priced desktop PC ($350-$700) is enough for most applications such as small business, school and simple everyday tasks.

The more you use your desktop computer, the more stuff you’re going to be saving to the computers hard drive. Your photos, music, software, and all of your other critical data are stuck on that thing and unless you’re being extra careful, chances are you’re going to fill it to capacity. When this happens, instead of going on a deletion spree, why not just install another drive? If you’re installing a brand new one, this guide will be for you, but if you’re replacing a drive, you should find this helpful as well. In either case, installing a hard drive is very easy and an important skill to have in your arsenal. I’ll explain how to install a new hard drive to a desktop system and prepare it for a fresh operating system installation. If you’re a notebook computer or cheaper netbook user, the same principles will apply, but the connections and the sizes will differ. For the purpose of this guide, I’ll be referencing disk-based hard drives instead of solid-state drives, but the same principles apply for those as well.

What You’ll Need:

A hard drive (IDE or Serial ATA) A screwdriver (usually a Phillips head) Four screws (usually included with the drive if purchased new) An available data connection (the cable, plugged into an available port on the motherboard) An available power connector (4-pin large “Molex” for IDE or 15-pin flat “wafer” for Serial ATA) An available drive bay (usually labeled in your case) Operating System Low-static environment or a place to ground yourself

Steps:

Note for IDE hard drives

Since the cables they use can accommodate two drives per channel, the drive is equipped with jumpers that set its priority on the cable. The settings are Master, Slave, and Cable Select. When using two drives, Cable Select will allow the motherboard to select which drive gets priority on the cable. Otherwise, the Master drive gets the priority and the Slave must wait for the Master’s operations to complete before its own are allowed to go. Since Serial ATA drives are only one drive per channel, they do not require jumper settings. When using a dual head IDE cable and two drives, connect the Master to the middle connection and the Slave to the end. When using optical drives on the same channel as your hard drive, which I do not recommend for performance reasons, set the optical drive to the Slave and your hard drive to the Master setting. Most devices are labeled with the settings for each mode, but in any case, you can check your devices manufacturer’s website for the correct jumper settings.

Screw in the drive

Before you start touching stuff, make sure you’ve grounded yourself to prevent any electrostatic discharge. When you’ve chosen the drive bay you’re installing to, hold the drive in place with the label facing up and partially screw in two of the screws to the side facing you, but only enough to hold the drive steady. From here, check the power and data cables to make sure you have the length. Too many times I’ve screwed the whole thing in to find my one of my cables doesn't reach, enough times that I would be remiss to not pass it along to you. Once you’re confident your power and data cables will reach, you can begin screwing in the drive. Tighten each screw until it’s about three quarters of the way in, then tighten the opposite corners completely. This will help mount the drive securely in the bay and help prevent vibration during use.

Connect the data cable

For Serial ATA hard drives, the connection is very straight-forward. The L-shape design prevents you from inserting it incorrectly. For IDE connections, the red line on the cable goes to the right. Usually the cables are keyed to prevent improper insertion, but I’ve noticed through the years that this is not always the case, so just remember this rule of thumb: red to the right.

Connect the power cable

Your drive isn’t going to be sending or receiving any data without getting any power. Serial ATA power cables are also L-shaped to prevent improper insertion, but much wider than their data-carrying counterparts. IDE drives use the large 4-pin Molex connectors; you probably have at least three or four of these hanging about in your case. The top corners of these connectors are slanted and the bottom corners form right angles to prevent improper insertion as well.

Partition and format

Before you can use the drive, you need to create partitions and format them so they can be read and written to. There are a variety of ways to accomplish this, the easiest being just inserting your operating system into your optical drive, booting up your system, and starting the setup process. From here, the software should take you through the rest of the setup and prepare the drive for use. If for some reason it doesn’t, have your “pocket tech support” ready. From there, you’ll be able to prepare the drive for nearly any operating system.

Final Notes

Creating or deleting partitions as well as formatting a drive will delete all files stored on the drive. If you’re not using a brand new drive and you’re concerned about any data on the drive, you’ll need to copy that data to another place first. I personally recommend replacing hard drives every three years or so. A drive’s lifespan should be longer than that on average, but losing important data is a truly heartbreaking experience and erring on the side of caution is my suggestion.

By Lisa Greim, PCWorld    Apr 20, 2011 5:15 PM

The below originally appeared in the Daily Journal.

The past year has seen the emergence of a new litigation strategy that poses particular challenges for the federal courts: mass copyright litigation. Over 130 mass copyright cases – i.e., copyright infringement cases joining together hundreds and often thousands of Doe defendants at once – have been filed in just the last 15 months in federal district courts across the country, targeting over 135,000 people. These cases involve significant and substantive early, ex parte activity before the individual defendants are even aware of the litigation, much less in a position to respond. Yet even at this early stage, these cases raise fundamental due process concerns. While there has yet to develop a body of published case law about the novel issues raised by the mass copyright cases, a growing body of largely unpublished judicial decisions can help both courts and attorneys handling them, whether on behalf of an ISP (Internet service provider) or on behalf of a defendant.

The cases generally follow the same path. A complaint is filed against hundreds or thousands of unnamed “John Does,” usually involving a single claim of copyright infringement over a single copyrighted work. The cases are brought in the jurisdiction where the plaintiff’s attorney is located, while the defendants are ordinary Internet users scattered across the country. The copyrighted works are usually “independent” movies or pornographic films. One title, for instance, is “Nude Nuns with Big Guns”; others have titles even less safe for work. Immediately after filing, the plaintiff moves for leave to issue early subpoenas to the ISPs of the defendants in order to obtain their identifying information .

If leave is granted and the information obtained, plaintiffs’ attorneys send demand letters to the now-identified individuals sued, giving them a stark choice: They can attempt to defend a suit in a far away court, risking liability up to $150,000 in copyright statutory damages plus attorney fees and costs. Or, they can pay a settlement in the $2,000-$5,000 range. Because the settlement amount is less than the cost of even a pro forma defense, and the downside risk of litigation is so great under copyright’s lopsided damages scheme, the pressure to settle rather than raise legitimate defenses is high. For those accused of infringing pornographic movies, many with gay themes, the prospect of being publicly named in a lawsuit is a further reason to settle quickly. Thus, a court’s decision granting leave to issue discovery often gives the plaintiffs in these cases the only remedy they really want: the ability to demand settlements from the Doe defendants.

So what does this mean for the courts and ISPs receiving the subpoenas? It means that judicial supervision over the early, ex parte stages of these mass copyright cases is critical.

Luckily, several district courts have taken the time to review the questions raised in the ex parte phase, sometimes sua sponte and sometimes in response to concerns raised by ISPs or amicus briefs. The courts have addressed two main concerns rooted in due process: joinder and personal jurisdiction.

First, joinder. Courts in West Virginia, Texas and California have severed over 40,000 defendants from these cases on the grounds that they are not properly sued jointly. Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against them must arise from a single transaction or a series of closely related transactions. The only thing linking the defendants in these cases is the use of a computer protocol, called BitTorrent, to allegedly infringe the same movie. As one court observed “[M]erely committing the same type of violation in the same way does not link defendants together for purposes of joinder.” Tellingly, only a handful of cases have been re-filed against individuals in the proper jurisdictions following these mass dismissals.

Second, lack of personal jurisdiction. This takes a bit of technical knowledge, but at bottom the concern is that plaintiffs have not met their burden of pleading specific facts sufficient to support the court’s exercise of personal jurisdiction over the defendants. In fact, the plaintiffs own filings normally demonstrate that personal jurisdiction over many of the thousands sued is lacking. This is because while the defendants initially are unnamed “John Does,” they are conditionally identified by an Internet Protocol (IP) address that plaintiffs’ allege was collected during its investigations of BitTorrent users. IP addresses are assigned to Internet users by the user’s ISP, then are used by Web sites and other places a person visits online to ensure that the information sought by the user is routed over the Internet to the user’s computer. Because it assigns the IP addresses to its customers, an ISP can usually connect a particular IP address to the customer using it at that time. Readily available free online tools allow an IP address to be tracked back to the ISP that is assigned to it, and that is how plaintiffs know which ISP to subpoena for which IP address.

Importantly, in addition to allowing the plaintiffs’ to identify the ISP to subpoena defendants, the IP address lookup also gives sufficient information to the plaintiffs to allow them to determine the location of the defendant, usually to within about 25 miles. This geolocation is generally sufficient to identify the judicial district where the defendant is located. So the process by which the plaintiff locates the relevant ISP is the same process by which it can discover the likely proper jurisdiction for the lawsuit. Yet the mass copyright cases continue to be brought not where the defendant (or even the plaintiff) is located, but rather where plaintiffs’ counsel is located, a strategic decision that greatly impacts the defendants’ ability to marshall a defense.

Indeed, a plaintiffs’ attorney in West Virginia recently brought six separate cases targeting thousands of customers of ISPs that did not even do business in West Virginia. In dismissing the case, the court admonished: “These amended complaints shall proceed only against Does with IP addresses of computers located within the State of West Virginia. According to testimony presented to the court, there is a publicly-available website that allows the plaintiff to determine the physical location of each Does’ computer at the time of the alleged copyright infringements.”

Amici are also concerned that courts have failed to apply the appropriate First Amendment test for revealing the identity of Internet users. This test, which has been applied in online copyright infringement cases as early as 2004, requires a careful balancing of the free speech interests of the defendant with the needs of the plaintiff and imposes a number of procedural and substantive obligations that help achieve that balance. Many of the mass copyright cases have failed to make those required showings.

While several courts have raised joinder and jurisdictional concerns, and many defendants have been dismissed based on them, at least one judge in the District Court for the District of Columbia, has ruled that the defendants suffer no due process concerns or harms until they are formally named in the litigation. Given the business model of pursuing settlements that are less than the cost of a defense, however, this ruling is troubling.

The explosion of these mass copyright cases raise novel issues for the courts. Moreover, given the pressure to settle created by the prospect of being named in and defending a copyright infringement suit involving pornographic works, often in a distant location, the initial decision to allow the identities of the accused to be revealed may be the only judicial decision made in the case. Judges presented with these lawsuits, and counsel for ISPs of the accused users, should carefully consider the due process issues raised by courts around the country, and take special care in considering whether to allow early discovery. Finally, this situation could be greatly helped by the issuance of some published decisions so that courts and litigants across the country can better draw upon the experience of others.