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List:       dmca-discuss
Subject:    Re: [DMCA_Discuss] Ruling  InternetMovies.com
From:       Weasel <weasel () www ! nmrc ! org>
Date:       2003-06-30 15:13:21
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Wouldn't Mr. Rossi's beef be with FlexNet and not the MPAA?

Yes, the MPAA was ethically at fault for sending a cease and desist based on
an empty allegation. But it was FlexNet who was weak-in-the-knees and
bent to the threat, likely breaching the service contract in the process.

Or do I have this completely wrong?

-------------------------------------------------
 "If it benefits a corporation or a politician,
  it's probably a bad thing."  - weasel@nmrc.org
-------------------------------------------------

On Mon, 30 Jun 2003, Vladimir Katalov wrote:

>
> US DC Hawaii No. CV 02-00239BMK
>
> Michael J. Rossi dba Internetmovies.com
> v.
> Motion Picture Association of America, Inc., et al.
>
> A federal judge in Hawaii has dismissed a lawsuit by an Internet
> entrepreneur seeking damages arising out of the attempted shutdown of
> his website by the Motion Picture Association of America (MPAA).
>
> Michael J. Rossi owns and operates the website “InternetMovies.com.”
> The website calls itself “an online directory of artists' works and
> Internet news magazine providing information and resources about
> movies on the Internet.” It provides links to download movie trailers
> plus news about current movies. It also aspires to be a distribution
> point for movies. According to the website, “One of the goals of
> InternetMovies.com is to allow studios and independent artists to
> distribute digitally secure movies to its membership and duly
> compensate artists for their works.”
>
> In March 2001, MPAA was contacted by one of its members and asked to
> examine Rossi’s website for copyright violations. The home page had
> the words “Join to download full length movies online now! New movies
> every month. Full Length Downloadable Movies. Now Downloadable
> Online.” The page also featured graphics of the posters for several
> current movies.
>
> Based on this home page, MPAA believed that the website was offering
> downloads of current movies. In fact, the website was offering only
> the trailers of the current movies pictured there. According to Rossi,
> “One of the downloadable movies noted by the MPAA was Lord of the
> Rings: Return of the King, which is due in theaters in December 2003.”
>
> MPAA, seeing the website as violating the copyrights of its members,
> wrote to FlexNet, the website’s internet service provider (ISP), and
> demanded that the website be removed from FlexNet’s server. MPAA cited
> the provision of the Digital Millennium Copyright Act (17 U.S.C.
> 512(c)(1)(C)) that offers immunity from liability to an ISP if after
> receiving notice of a claimed infringement the ISP expeditiously
> removes the infringing material. It followed this up with three more
> written requests and a telephone call.
>
> FlexNet gave in to the pressure and notified Rossi that his website
> would be shut down four days later. Rossi was able to find a new ISP
> and the website was never offline.
>
> Rossi then turned around and sued the MPAA for tortious interference
> with contractual relations, tortious interference with prospective
> economic advantage, defamation and intentional infliction of emotional
> distress. The MPAA brought a summary judgment motion to dismiss the
> complaint.
>
> US Magistrate Judge Barry M. Kurren noted that the tortious
> interference claims required a showing that the MPAA acted “without
> justification.” The judge said that here the MPAA had acted within its
> rights in sending a notice to FlexNet.
>
> Kurren ruled that there was no provision in the Digital Millennium
> Copyright Act (DMCA) that required a copyright holder to conduct an
> investigation to establish actual infringement prior to sending a
> notice to an ISP. “Rather, the DMCA only requires a copyright holder
> to form a good faith belief of an alleged or ‘claimed’ infringement
> prior to sending an ISP a notice.” The judge found that there was
> little question that the statements on the plaintiff’s home page
> “strongly suggest, if not expressly state, that movies were available
> for downloading from the site.” Accordingly, the judge found that the
> MPAA had more than a sufficient basis to form the required good faith
> belief that InternetMovies.com was engaged in copyright infringement.
>
> Kurren ruled that since the MPAA was justified in sending the notices
> to the ISP, the plaintiff cannot show tortious interference and those
> counts must be dismissed.
>
> Similarly, the judge ruled that the defamation claim must be dismissed
> because the statements made by MPAA to FlexNet were privileged as a
> sanctioned communication between parties with a common interest under
> the statute.
>
> Finally, the intentional infliction of emotional distress claim fails,
> according to the judge, because the MPAA’s conduct was not
> “outrageous” as a matter of law. On the contrary, the judge felt that
> the notices were “justified and reasonable.”
>
> With his entire complaint dismissed, Rossi has decided to take his
> case from Honolulu to San Francisco in an appeal to the 9th US Circuit
> Court of Appeals.
>
> Plaintiff counsel: Fosbinder & Fosbinder (Kahului, HI)
>
> Defense counsel: Paul Maki (Honolulu, HI).
>
> _______________________________________________
>
>
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