American Bar Association cautions against file sharing lawsuits

downloadThe American Bar Association is urging its 400,000-lawyer membership to be more prudent and show restraint when it comes to lodging online file sharing lawsuits.

In a detailed whitepaper advising the US Government on how to best tackle online piracy, the association writes [PDF]: “Finally, while it is technically possible for trademark and copyright owners to proceed with civil litigation against the consuming public who affirmatively seek out counterfeited products or pirated content or engage in illegal file sharing, campaigns like this have been expensive, do not yield significant financial returns, and can cause a public relations problem for the plaintiff in addressing its consuming public.”

In conclusion the paper suggests to institute SOPA-like anti-piracy measures, including injunctions against companies that host servers with copyright infringing material. In an interesting turnaround, the association says that lawsuits against individual file-sharers are ineffective and counterproductive as a whole.

The Intellectual Property Law division of the group noted as Exhibit A the litigation campaigns of the RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America).

This 113-page memo has been largely overlooked in the press. TorrentFreak was the first site to discover its existence. The ABA says that filing of lawsuits against individuals has been proven ineffective in the past and it is unlikely to curb piracy rates.

For instance, the Recording Industry of America (“RIAA”) initiated a campaign several years ago against consumers who engaged in illegal file sharing of copyrighted music. During that time, the RIAA initiated lawsuits against over 18,000 individual users, most of whom paid a few hundred dollars in settlements to avoid the potential for statutory damages of $150,000 per infringing use. More recently, the RIAA has abandoned its former policy of directly bringing cases against consumers in favor of expanding its focus on educating the consuming public about avoiding piracy. The Motion Picture Association of America (“MPAA”) followed in the RIAA’s footsteps with its own set of lawsuits directed against consumers who engaged in the illegal file sharing of copyrighted films and other video, though on a vastly smaller scale. It, too, later abandoned this approach.

 

With this said, the more preferable course of action seems to be in enacting legislation that targets infringing websites such as the torrent tracker, The Pirate Bay. Since its hard to prosecute site owners outside the US, a more indirect approach is suggested. Legislation that is aimed at cutting off funding, advertising and halting funds through cooperation of banks and payment processors. The whitepaper also calls for legislation that would allow injunction against hosting companies that store the websites on their servers. Interestingly enough, the association could not reach a consensus on doing the same for domain registrars and search engines.

Much of the suggestions have been previously included in the oft-criticized SOPA and PIPA bills.

NSA had overseen disposal of Snowden data at The Guardian

SurveillanceThe Associated Press has obtained a series of redacted emails and other documents which indicate that US intelligence officials knew beforehand about British intelligence agents’ effort to destroy data in possession of UK newspaper The Guardian. The emails shed light on the fact that former National Security Agency director General Keith Alexander had been briefed on the plan days before GCHQ analysts oversaw the covert destruction of a laptop at The Guardian’s offices in London, UK.

On July 19, 2013, Guardian editor Alan Rusbridger consented to destroy the data and the laptop it was stored on instead of handing it over to GCHQ. This response was seen as a follow-up after British officials had increased pressure on the newspaper using threats of police raid and prosecution under the Official Secrets Act of the United Kingdom. The AP documents obtained from the NSA under the Freedom of Information Act indicate that Richard Ledgett, then director of NSA’s Threat Operations Center, and one anonymous member of the NSA’s “Media Leaks Task Force”, had replied in an email to Alexander, hours within of Rusbridger’s confirmation to the destroyal of the data; the email was headed “Guardian data being destroyed.”

Ledgett wrote then “Good news, at least on this front” and forwarded an email from one of the redacted sources. In his turn NSA director Keith Alexander relayed the infromation to Director of National Intelligence James Clapper; “Jim- Here is the report I got.”

A day later, on July 20 2013, only a few hours after the destruction of the Guardian laptop and its contents, Clapper was briefed verbally by Alexander on the operation. He sent a thank-you e-mail to Alexander as a reply to the original e-mail thread.

One month later, on August 20, during a White House press briefing, press secretary Josh Earnest replied to a number of questions regarding on whether the US government had been foretold about the destruction of the data stating “I’ve seen the published reports of those accusations, but I don’t have any information for you on that… The only thing I know about this are the public reports about this.”

Obama administration says it owns overseas servers

Worldwide governments, the tech industry, and scholars are keeping close tabs on a legal case in which the US Justice Department claims that Microsoft must produce e-mail data stored in Dublin, Ireland.

What the case boils down to is that President Barack Obama’s administration claims that any company that has a base in the US must comply with warrants for handling over stored data, even if that data is stored on overseas servers. Microsoft, among other companies such as Apple, argues that such a junction is wrong as the enforcement of US law stops at the border.

A magistrate judge has already backed the government’s stance on this issue, ruling in April that “the basic principle that an entity lawfully obligated to produce information must do so regardless of the location of that information.”. The next case is set to be heard on July 31, following Microsoft’s appeal to a federal judge.

In a federal brief filed last week, the US government said that data and content stored online doesn’t have the same Fourth Amendment protection as data stored in the physical world. The Stored Communications Act (SCA) was cited numerous times. This regulation predates back to President Ronald Reagan’s administration:

Overseas records must be disclosed domestically when a valid subpoena, order, or warrant compels their production. The disclosure of records under such circumstances has never been considered tantamount to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s reliance on principles of extra-territoriality and comity falls wide of the mark.

Microsoft’s attorneys said that this decision has troublesome, wide-ranging and global implications. “Congress has not authorized the issuance of warrants that reach outside US territory,” Microsoft’s attorneys wrote. “The government cannot seek and a court cannot issue a warrant allowing federal agents to break down the doors of Microsoft’s Dublin facility.”

Microsoft, the multi-billion-dollar, U.S.-based company, incorporated and headquartered in Redmond, Washington said that consumer trust is negative in the wake of the Edward Snowden revelations. The company told the US judge who was presiding over the case that “[t]he government’s position in this case further erodes that trust and will ultimately erode the leadership of US technologies in the global market.”

Other companies like Apple, Verizon, AT&T and Cisco have taken a similar stance. Verizon said that if a decision favoring the US’ position is taken, it would lead to “dramatic conflict with foreign data protection laws.”. Apple and Cisco have motioned similar statements, saying that the technology sector is put “at risk” of sanctions from foreign governments, suggesting that the US should seek cooperation with foreign nations via treaties and not through coercion. The US government however was in disagreement, saying that treaties are impractical.

The Department of Justice says global jurisdiction is required in an age when “electronic communications are used extensively by criminals of all types in the United States and abroad, from fraudsters to hackers to drug dealers, in furtherance of violations of US law.”

The warrant for the e-mail data sought from Microsoft by the US government is linked to a drug-trafficking investigation. Microsoft stores emails on servers that are geographically closer to the account owner.

In a recent filing, the Irish Supreme Court wrote that the most “efficient” way for the US government to obtain the concerned email data from Microsoft’s servers was through the “Mutual Legal Assistance Treaty”.

Orin Kerr, a Fourth Amendment expert at George Washington University, said, “The scope of the privacy laws around the world is now a very important question, and this is the beginning of what may be a lot of litigation on the question. So it’s a big case to watch.”

Christopher Soghoian, principal technologist at the American Civil Liberties Union says that Microsoft is legitimately fighting to maintain their foreign customers. These movements are necessary “to signal to their foreign corporate and government customers that their data remains safe in the cloud.”

Google’s one-hour policy to counter Facebook’s offers to employees

Google Poaching CaseFollowing the $324 million settlement of the employee wage conspiracy lawsuit in 2011 that involved Google, Apple, Intel and Adobe, four of the biggest Silicon Valley corporations, new emails concerning the case have revealed that in November 2007, Google policy’s was to counter offers made by Facebook to its employees within an hour. Former Google CEO Eric Schmidt has confirmed in emails that the policy had existed only for 24 hours before it was leaked outside the executive management group’s emailing list. Schmidt’s anger was obvious: “Since I announced our 1 hour policy exactly 24 hours ago we should be embarrassed and disgusted by this leak.”

The lawsuit concerning Google, Apple, Intel and Adobe was about current and former employees accusing their employers of agreeing not to poach each other’s workers in an attempt to limit playing against each other with the goal of raising salaries. Although US District Judge Lucy Koh has yet to approve the settlement, both sides have agreed to settle the case for a sum of $324 million. The disgruntled employees sought an initial $3 billion, which could have tripled under current antitrust statutes, if the trial had begun. After a motion from Google in an attempt to seal incriminating emails, Koh made the emails public.

Judge Koh has questioned the fairness of the settlement in a June hearing. Some of the plaintiffs have rejected the amount and have hired attorneys to argue against the offered sum.

In one of the emails released this Friday, it is revealed that Google directors Paul Otellini who serves as Intel CEO and venture capitalist John Doerr have made the suggestion to Google cofounders Sergey Brin and Larry Page to approach Facebook workers on an one-on-one basis with the effort of recruiting them.

“Paul/John asked who was reaching out to the target Facebookers,” Prasad Setty, Google’s vice president of compensation, wrote to several Google executives on April 19, 2010. “They suggested that we have Larry/Sergey and Eng execs reach out rather than the Staffing leads.”

Shannon Deegan, a Google security operations director cautioned against this, saying that “I don’t agree that we should be asking Larry and Sergey to reach out to Facebookers, that will quickly be leaked and I believe [it] won’t look great.

No evidence has been found to suggest that either Page or Brin have done such a thing.

The newly released evidence also points to the fact that Google staffing employees had personally confronted Facebook recruiters and cautioned them about poaching current employees. In March 2008, Arnnon Geshuri, Google staffing director writes “Even though it was an open event, we approached the recruiters at the time and … gave them a warning to (sic) we would be watching them.”

Intel, Facebook and John Doerr could not be reached. Google declined to comment on the matter.

Judge Lucy Koh is expected to rule on the proposed settlement at any time.

The 2011 case had caused wide coverage in the media because of its high-profile figure involvement and the potentially high damages award. It offered a unique glimpse into the lives and workings of the Silicon Valley elite. The case was in most part based on emails that circulated between Apple’s late co-founder Steve Jobs, former Google CEO Eric Schmidt and other big name players from Adobe and Intel. The conspiracy was hatched in order to avoid employee poaching which in turn would have raised salaries for workers across the whole tech sector.

Court documents show an email exchange where one incident is described when a Google recruiter requested an Apple employee. Schmidt told Jobs by email that the recruiter would be fired for this. Jobs had forwarded Schmidt’s mail to a top Apple human resources executives appending a smiley face.

In another exchange, we find out that Schmidt, now the company’s executive chairman, advises discretion after a Google human resources director asks him to share its no-cold call agreement with other competitors.

According to a court filing, the HR director said “Schmidt responded that he preferred it be shared ‘verbally, since I don’t want to create a paper trail over which we can be sued later?'”

The defendants had acknowledged entering into some no-hire agreements but countered the allegations that they had “hatched a conspiracy to drive wages down”. Adding to this, they claimed that employees should not be able to sue as a group.