As part of a initiative cracking down on Internet piracy and counterfeiting, at the end of June U.S. Immigration and Customs and the Department of Justice took action against nine web portals suspected of linking to first-run movies. Seven sites had their domains seized – TVShack.net, Movies-Links.TV, FilesPump.com, Now-Movies.com, PlanetMoviez.com, ThePirateCity.org and ZML.com. Raids were also carried out against the popular NinjaVideo site.
But these were only the most recent steps taken by movie industry companies and their agents to take down such websites. Action against a significant number of others has been going on for some time. Several large linking websites operated by mostly U.S. citizens have been sued in recent times.
In this article we take a look at some of them, and the large damages awards ordered against operators. The summaries below are followed up with some analysis and the uneasy realization that although cases are being ‘lost’ all the time, the law remains untested.
Paramount Pictures / Universal Studios v Omegatube.com / Atomicmovies.com
These two sites were sued in December 2008. The studios got a court order and discovered the owners’ idenitities – they were Canadians. The studios could not discover any contact information for Pilippe Bruno and 9190-3864 Quebec Inc. The third defendant, Michaud, was served but did not respond to the studios’ letters or emails. Since Michaud did not reply but was served, he lost by default. In the end, the studios simply dismissed the lawsuit against all parties, most likely because the owners were not U.S. citizens.
Warner Bros. / Paramount Pictures v Movies-On-Demand.TV ( Began 2008)
Salman Haque, the owner of Movies-On-Demand.TV, entered negotiations with the studios. He pleaded guilty to contributory copyright infringement and agreed to pay 2.1 million USD to the studios. The trial ended in January 2010.
Warner Bros. / Paramount Pictures v Watch-movies-online.tv (Began 2008)
‘Vladimir Kramskoy’ lost by default, since no one was able to discover his true identity. Assumed to be in Russia. Studios did nothing, trial ends 2010.
Universal City Studios v VideoHybrid.com (Began 2007)
Defendants engaged in contributory copyright infringement and inducement of copyright infringement by identifying, organizing, and indexing on the website (www.videohybrid.com) links to infringing material, which had been posted on third-party websites. Defendant was found liable for damages of $1,075,000.
Disney v FOMDB.com (Began 2008)
Defendant found liable for damages totaling $300,000.
Universal City Studios Productions LLLP et al v. YouTVpc.com et al (Began 2007)
Defendants Billy Duran and Sam Martinez lost their case by not defending themselves. They were ordered to pay statutory damages of $875,000.00, attorneys fees of $21,100.00 and plaintiff’s costs of $6,017.17.
Warner Bros. Entertainment Inc. et al v. Nabolister.com et al
Based on Warner Bros. Entertainment Inc. and Disney Enterprises, Inc.’s Notice of Voluntary Dismissal, which was filed on February 22, 2010, the Court dismissed the case without prejudice. Owners were Canadians, and later closed the site.
Warner Bros. Entertainment Inc. et al v. Peekvid.com et al
The MPAA hired private investigators who presented testimony in the trial. Defendant Frank Meadows represented himself, did not have a lawyer and was unable to defend his point of view. A Default Judgment was issued against Peekvid. Frank Meadows was found liable for damages totaling $2,500,000.
Disney Enterprises, Inc. et al v. 66Stage.com et al
Defendants were found liable for damages to the studios of $500,000 after a ‘consent judgment’. This meant that both parties agreed to settle without a trial.
Discussion
All lawsuits listed above called for the determination of the same question of law. Each lawsuit involved claims of “contributory copyright infringement” because the owners of the sites provide links to copyrighted TV shows or movies.
Initially, studios do not know who owns a site so they obtain a court order to find out. This is an action that cannot take more than 60-90 days. If they fail to identify and serve the owners, the lawsuit will be dismissed due to lack of prosecution. After the owners are discovered, they are added to the lawsuit.
All of the cases that had a favorable outcome for the studios involved US citizens who operated the sites in the US. The lawsuits against websites with Canadian owners were dismissed voluntarily by the studios.
In all of the cases presented, the websites lost by default judgment or they decided to settle in favor of the studios in order to avoid a lawsuit. This means that a crucial question of law remains unanswered:
Is it contributory copyright infringement to provide links to copyrighted content?
There are many facets to this question but all remain unanswered because a full trial did not take place. Among the faces and facets of this question are;
Is it infringement if:
– You link to copyrighted content but you don’t know it’s copyrighted?
– You operate a search engine which links to vast content, some copyrighted? (Google says no!)
– If you use and apply all the directions of the DMCA?
Furthermore, how do the safe harbors for Search Engines apply in such cases? (see OCCILA)
The problem is very complex and we still have no answer even in the US, the most litigious country and the spearhead of copyright/intellectual property law. Instead, new questions have to be answered.
How are ICE/US Customs able to seize domain names when there is no legal precedent and no judgment (even in the US) on the legality of such websites? This seems more like an abuse of power. Also, why is a taxpayer-funded institution serving the interests of private industry and studios?
An interesting side note is that the UK site TV-Links.co.uk was sued in UK and won it’s lengthy trial. This would set a precedent at least in the UK/European Union that in some conditions, these website owners do not do anything illegal. In relation to Section 17 of the European Commerce Directive 2000, TV-Links was a conduit of information and was afforded a complete defense in criminal proceedings for linking to other websites.
Despite extensive legal action, the question of legality of linking websites in the United States still remains unanswered.
This was a guest post from Searchfreek, a keen observer of developing linking sites and law. He can be contacted via searchfreak[at]yahoo.com.
