The Motion Picture Association of America (MPAA) has won $4 million in damages from two Web sites found guilty of contributory copyright infringement.
MPAA sued CinemaTube.net and Ssupload.com for posting links to Web sites that distribute illegal copies of movies, television shows, and online videos. The United States District Court of Los Angeles in its May 7 ruling ordered both Web sites to stop any further indexing that would violate the copyrights of MPAA members.
MPAA had similar success against indexing Web site TorrentSpy in the beginning of May 2008. The same district court found in favor of MPAA and assessed $111 million in damages against TorrentSpy. That figure was reached after Judge Florence-Marie Cooper required the site to pay $30,000 apiece for 3,699 proven infringements.
TorrentSpy shut down in March 2008 after failing to provide sufficient evidence against accusations of copyright violation.
MPAA efforts against Web sites such as CinemaTube.net and Ssupload.com mark a tactical shift by copyright holders against infringers. The Recording Industry Association of America (RIAA) and MPAA in recent years have moved away from targeting individual violators, instead going after intermediaries that index illegal downloads.
“The MPAA, like the RIAA, is playing a game of whack-a-mole,” said Prof. Michael Madison of the University of Pittsburgh Law School. Madison said MPAA and RIAA “will have some modest success in the short run, but it is difficult to see how this will add up to a comprehensive solution in the long run.”
Alan Wexelblat, Ph.D., of the Massachusetts Institute of Technology, thinks such lawsuits do not carry the same weight in the digital world as they have in physical infringement cases.
“A policy of lawsuits and prosecution makes sense in a world of physical distribution,” Wexelblat said. “It is quite sensible for MPAA to use the courts to fight against organizations that mass-produce copies of DVDs, but attempting to extend that approach to a fluid digital environment is a mistake.”
Targeting Easy Marks
Prof. Matt Jackson of the Pennsylvania State University College of Communications offers a pragmatic explanation for contributory infringement lawsuits.
“Suing the middleman is a very effective strategy because the ISPs [Internet service providers] are the bottlenecks where enforcement is most effective,” Jackson said. “It is much more efficient to go after a handful of ISPs than to try to sue thousands of end users.”
Wexelblat is one of many copyright experts who believe MPAA is doing more harm than good with its lawsuits. “I think these cases show that the MPAA will not respect any boundary in its aggressive pursuit of control,” he explained. “Any target they can conceive of will be attacked.”
Other experts in the field of copyright law feel MPAA has little to lose in the lawsuits.
“The MPAA comes off badly, but they are not losing friends they’d otherwise have had,” said Prof. James Grimmelmann of New York Law School. “They certainly don’t come off anywhere near as badly as the RIAA does in its lawsuits against individual uploaders.”
Grimmelmann highlighted MPAA’s problems with “its campaign to get draconian laws against camcording movies in theaters” when discussing possible repercussions in public opinion.
Could Stunt Web Growth
The low daily visitor rates for Web sites such as Ssupload.net and CinemaTube.net have raised questions about the unintended publicity of these lawsuits for similar Web sites. Most published reports show the sites’ combined daily traffic peaked at just 79,000 unique users prior to the lawsuit.
Some experts on copyright law, including Prof. Michael Grynberg at the Oklahoma City University Law School, raise concerns about potential harm to useful Web sites. “Overaggressive IP enforcement may harm the public at large by stunting the evolution of these online products and services,” he said.
One school of thought holds MPAA’s efforts will be harmful for all participants except MPAA itself.
Prof. Michael Carrier of the Rutgers University School of Law said, “The law being created by the MPAA and courts is expanding to punish activity that has increasingly less relation to the infringing activity.” Carrier added, “While it might be good for the MPAA, it tends to be harmful for parties using technology in innovative ways.”
Customers Treated Badly
Grimmelmann believes the fault lies with the products offered by MPAA and comparable organizations.
“The MPAA needs to treat its customers as fans again and be more aggressive in offering them such easy access to movies that they’re not tempted by comparatively inconvenient unauthorized downloads,” Grimmelmann said. “Even if the law still supports it, an ownership mentality doesn’t get you very far these days.”
Jackson, a proponent of end-user lawsuits, thinks MPAA will eventually move to sue individual violators.
“The MPAA should go after the end users instead of the middle men, even though this is less efficient from the copyright owners’ perspective,” Jackson said. “This imposes costs on society, but that cost is the price we should be willing to pay for free speech.”
Nicholas Katers ([email protected]) writes from Franklin, Wisconsin.