Overpeer and RIAA/MPAA guilty of terrorist activity??

[themichael]

A brief discussion among my friends of Overpeer's act of using WMx DRM to disrupt networks

Overpeer grabbed headlines in 2002 for its work infecting P2P networks with garbled music at the behest of some major music labels. It now looks like the company - a subsidiary of Loudeye - is sending out contaminated files that launch numerous ad-filled browser windows and that try to take over a user's homepage. Loudeye is standing by the practice, saying P2P users are getting what they deserve.

would seem to make them terrorists .

In the USA, under Homeland Security and the PATRIOT act Overpeer (and major labels by association) seem to be guilty of cyberterroism. The main defining point is the INTENT to disrupt p2p networks, exploit security flaws in IE, and to modify files on user's computers to cause harm.

Are we just crazy? Does anybody see this are a possibilty? Any lawyers out there have an unofficial thought on this??

[pacmania_2001]

I'm not familar with the whole situation regarding Overpeer but they'd want to be careful with their own network and business.

Revenge is a bitch.

[adam]

Considering that the Patriot Act is really only a few years old, there has been a ton of litigation on the issue of cyberterrorism.

Basically, its not really that difficult to engage in an act which could be considered an act of cyberterrorism, the catch is that unless the act is being committed against the government itself, there is a requirement that your damages exceed $5,000, not in the aggregate. (ie: 1000 people can't each claim it cost them $5, each one has to have $5000 in damages.) So all of these programs that steal your homepage, or create pop-ups, etc... don't quite cause enough damages to bring them under the Act. It just doesn't cost anywhere near $5,000 to get the pc restored to its prior settings. Lots of people have tried to sue (insert name of any program that AdAware removes) and not many have been successful. Under current case-law, it seems that you're not going to be able to prove enough damages unless the software is also a data miner (harvests data, like e-mails, and sends it to a 3rd party, ie: spam list) or just really malicious. These annoyance type tactics probably aren't going to cut it.

Now since its such a largescale, targeted, and organized (I assume) movement, there could possibly be some other legal implications. For instance, I'm guessing that Kazaa has alot of contracts with various types of sponsors so this conscious attempt to harrass "peers," who are literally customers of Kazaa, could constitute tortious interference with a contract.

So in short, I doubt any given P2P user could do anything, but some P2P operators might be able to.

[bazooka]

Microsoft is saying that there is no windows media flaw.

[VCDHunter]

Microsoft is saying that there is no windows media flaw.

Quality.

[Doramius]

Harming customers can cause the P2P operators well more than $5000 in damages and they could surely push a lawsuit. Say 5000 people who pay $1 each, remove their memberships for the cause of harm to their computer. Generally speaking, that's considered severe damages to the P2P operators.

[themichael]

The 'flaw' in WMx and the DRM plans is really an undocumented feature that Microsoft planned to use to erase illegal copies of Windows!!

Lets say I have mplayer go check a website for DRM rights to a video file.
I the have it download a piece of code that saves itself in the startup folder.
The code runs on the next reboot and waits for a netowrk connection and downloads a bigger chunk of code.
On the next reboot the new code check for p2p software and then erases every mp3 and mpeg on your computer.
If you use p2p and have mp3/mpeg files then they must be illegal (Overnet logic).

According to IT security professionals the ONLY way to stop malicious code from running is to NOT use the WMA/WMV formats. I think this might cost Microsoft more than 5K if a really evil piece of code gets run.....

[adam]

That's not what the cyberterrorism statutes are intended to be used for Doramius. An act of cyberterrorism is when you somehow gain unauthorized access to a computer and cause damage as a result. When this happens, the owner of THAT computer has a cause of action under the statute as long as THEIR personal damages exceed $5,000. A P2P operator cannot avail themselves of this act by saying that the computers of their customers were accessed. But like I said, there are other grounds to sue under when someone has interfered with your business and existing contracts.

[Doramius]

I have about $5k+ in total assets I don't have any debt on. I doubt I'd have that much into any kind of computer equipment or ever will. But that brings to thought, what if I felt like putting $5000+ into computer equipment. I could essentially search out these harmful programs and sue the company for several thousands of dollars. And if they fight back asking why I downloaded the song, I could say I scratched my CD copy and didn't have a back-up and I wanted to obtain those songs to which I have a legal CD to.

[ViRaL1]

I have about $5k+ in total assets I don't have any debt on. I doubt I'd have that much into any kind of computer equipment or ever will. But that brings to thought, what if I felt like putting $5000+ into computer equipment. I could essentially search out these harmful programs and sue the company for several thousands of dollars. And if they fight back asking why I downloaded the song, I could say I scratched my CD copy and didn't have a back-up and I wanted to obtain those songs to which I have a legal CD to.

Equipment doesn't count. Physically your hardware would still be functional. Now if your $5k of accounting business files had an .mp3 extension and they were deleted or corrupted with no backup, you might have a case.

[adam]

If you were infected with a virus that literally exploded your computer then yes, you could maybe suceed on such a claim, but virii doesn't work like that. Your damages would be the cost to repair your computer, or essentially get it back to how it functioned previously.

You get $5,000 when either the program mines data and obtains information which could potentially cause lots of damage (ie: credit card info) or if there are incidental damages as a result of your computer being affected (business shuts down for so many hours.)

If you go out looking to get infected and looking to run up your damages, you will be lucky if you don't end up getting sued yourself. Also there is no sense trying to get standing under this statute because its not like you are going to make any money. You are going to receive damages to compensate your actual losses, so you will end up even at best.

It is ILLEGAL to download copyrighted music even if you have the original CD. This was decided in the RIAA v. Napster case. You have a legal right to backup your audio cds to prevent having an irreparable disk. If you fail to do so, this does not grant you the right to obtain it from the internet anymore than if you tried to convince Best Buy that they had to give you an extra one.

[ViRaL1]

You bring up an interesting question. Let's say you buy a CD that's 'copy protected' and as such you cannot (legally at least) make a backup of it. If it becomes scratched due to normal wear and teat, do you believe that you should have to go out and buy another CD? I guess I'm unclear on exactly what it is I'm 'buying' when I purchase a CD.

[BJ_M]

the right to listen to it is all -- same as software, you dont own it, only the right to use it under limited use and clauses ..

same as a photo , even if used in a mag, the photo belongs to the photographer .

same for video ..

simple explanation ...

adam can explain it better ...

[ViRaL1]

the right to listen to it is all -- same as software, you dont own it, only the right to use it under limited use and clauses ..

same as a photo , even if used in a mag, the photo belongs to the photographer .

same for video ..

simple explanation ...

adam can explain it better ...

How can I listen to it if my disc is scratched / damaged / unplayable?

If I have to buy it again, I'm paying again for something I'm already supposed to have, i.e. the right to listen to it.

[BJ_M]

when your car wears out , does FORD send you a new one no charge ?

when your toaster breaks one day after warrenty - you buy a new one ..

when your hard drive craps out -- you buy a new one ..

when a battery goes dead --- dead is dead on that score ..

[adam]

It is not illegal to bypass protection to back up a CD which you have purchased.

I assume you were implying that it was illegal under the DMCA. But the DMCA has a specific clause which states that it cannot preempt any right granted under any other act or provision. Title 17 section 1008 grants you the right to make digital or analogue copies of your own music for personal use. Therefore, the DMCA cannot make it illegal for you to bypass protection mechanisms as long as you are exercising your rights under this provision.

What are you buying when you purchase a CD? You are purchasing a piece of plastic and license to listen to it...that's all. But when you bougth the blank cdr or the cdr burner, or the standalone recorder, you paid a royalty (actually the manufacturer did but they passed the cost on to you) to the music industry for the right to make personal copies. This was all set up under the Audio Home Recording Act.

[adam]

I could not agree more BJ_M. Many people think that you should have a right to make a backup of any intellectual property simply because its possible. They don't draw the analogy to non-intellectual property which is impossible to copy, even though there really isn't much difference between what it is that you are purchasing.

[ViRaL1]

when your car wears out , does FORD send you a new one no charge ?

when your toaster breaks one day after warrenty - you buy a new one ..

when your hard drive craps out -- you buy a new one ..

when a battery goes dead --- dead is dead on that score ..

What's the warranty period on a CD? Is the license for a specific period of time?

EDIT: As money hungry as we make M$ out to be, if you pay $300 for Window$ XP Pro and you happen to somehow damage your CD after you've installed the OS and affixed your COA, they don't require you to go out and plunk down another $300 for a brand new package.

[adam]

Some studios do offer extended warranties on cds ala their replacement plans. But other than that, its rare indeed to find an express warranty on a sub $25 dollar product, with no moving parts. There's not much point. It either works out of the box, and will continue to do so until damaged or used beyond its useable lifetime, or it won't work at all.

The license on a CD lasts for as long as you retain ownership of that specific CD.

I knew MS offered replacement cds for lots of their products including Office. I didn't know they did this for their operating systems as well. Anway, this is just good customer service. As I stated, some studios do offer replacement plans, some do not. Also, companies in general are less apt to offer replacement plans on small purchase products ($15-20) because lack of such a plan won't alienate your market nearly as much as if someone snapped their $200 install disk.

[ViRaL1]

Some studios do offer extended warranties on cds ala their replacement plans. But other than that, its rare indeed to find an express warranty on a sub $25 dollar product, with no moving parts. There's not much point. It either works out of the box, and will continue to do so until damaged or used beyond its useable lifetime, or it won't work at all.

The license on a CD lasts for as long as you retain ownership of that specific CD.

Just playing Devil's advocate here but, I can borrow the CD (we'll assume unprotected) from a friend and make a backup so long as I have the original since there's no real record of it and it could just as well have been made from mine. But on the other hand if I download the files to that same damged / scratched CD over P2P or wherever, I'm doing something wrong?

[adam]

You are doing something wrong in both of those examples. You can copy YOUR cd, not your neighbor's and not the one hosted on E-Donkey. It doesn't matter whether you have you own original version as well, you are limited to copying the very CD your purchased and no other. Since you only purchased that piece of plastic and not the rights to the music itself, this limitation makes sense. Most people would say this is a reasonable enough way to protect your investment.

I know you are playing Devil's advocate. Somebody always has to whenever these issues are raised.

[ViRaL1]

Which is why I can't understand the idea of copy-protecting to prevent you from making a backup. Although there are tools, they fight tooth and nail to expunge them, without offering a feasible alternative (for those who don't offer replacement plans).

As for M$, they have an 800 number you can call to order a replacement install CD. I'm pretty sure they need your product key, but I don't know if you have to be registered.

[Ripper2860]

But when you bougth the blank cdr or the cdr burner, or the standalone recorder, you paid a royalty (actually the manufacturer did but they passed the cost on to you) to the music industry for the right to make personal copies. This was all set up under the Audio Home Recording Act.

Devil's Advocate (maybe a stupid train of thought):

If I pay a "tax" or "royalty" every time I purchase a recorder or media, have I not already paid for the "right" to burn music. If the royalty is for the purpose of re-imbursing music companies and artists for possible lost sales due to the "illegal" burning, isn't the industry "double dipping" by taking the tax and then clamping down on music downloads. After all -- it's not stealing if I copy/backup a CD I own so the "royalty" should not apply here as there is no lost revenue. Therefore is the "royalty" I pay a fee in advance of my burning something I do not own?

How can they charge me for something I may do and yet stop me from doing it after collecting a "royalty" or "tax" from me?

[ViRaL1]

Good lawyers / lobbyists. (no offense adam)

What's even funnier is that there are tons of legitimate uses for blank media and burners that have nothing to do with copyright infringement.

[adam]

Copy protection mechanisms were around before the passing of the AHR Act. But the studios obviously still use them to try to make their disks as safe from copying as possible. It does create a conflict of interest since the protection mechanisms prevent legal copying as well. But then again the lock on my front door is no different. The fact is that the vast majority those who copy cds and the like do so for illegal purposes. Therefore it is not necessarily unreasonable to include protection mechanisms on software.

Ripper2860- The tax did not always exist. The two industries (music and hardware manufacturers of digital audio recording devices) drew a truce which was solidified in law. Manufacturers agreed that they would pay 2% royalties to the music industry in exchange for indemnity from contributory infringement, as well as for the right to be given to individuals to make personal copies using those very manufacturing devices.

Had P2P operators agreed to pitch in 2% royalties, maybe they would have included them in on the deal...but this didn't happen. Thus there is no exemption for P2P operators, and no right for you to effect your copying via these means.

All of our legal rights to backup are the result of a balancing of interests. Even if the result is the same for us either way (ie: pay the royalty tax when we buy the cdr regardless of where we get the songs from) it is not unreasonable to limit consumer copying to the actual cd they purchased, rather than an identical copy hosted on the internet. The consumer still has every opportunity to make their legal copy, and the copyright holder is still able to police their work even after it reaches the internet.

Imagine what would happen if you could legally download something, as long as you already owned another copy of it. It would literally be impossible to hold accountable anyone who infringed a copyright via P2P. If you sue them, all they have to do is go out and buy a copy of it and claim they owned it prior to infringement. Everyone on P2P could operate with absolute impunity.

[Doramius]

here's another clincher for ya. Who keeps the cost of CDs & DVDs from being raised in cost, on whim? Honestly, what if the MPAA & RIAA decided to raise the cost of every item listed in stores 100%. A double in the price. I'm sure there would be outrage, and a large boycott of the goods for quite some time. The Pirating black market would be extremely more vicious, but let's say some fantasy encryption & device system was created that kept pirates from copying the media. What would keep the copmanies from increasing their costs?

Currently, the manufactured disc (or pressed disc) is made cheaper with the information on it than burning the disc because of the mass scale. SO, let's say the cost is $.09 per DVD. Yet the movie is sold for a moderate price of $11.95. 500 million copies are sold worldwide. That's almost $6 billion in sales for that 1 movie. Let's remove $100 million for worldwide advertising. Assuming the costs of actors, set, and other budgets, broke even in the box office, we'll wipe those clean even though they are mostly and increase in profit. Let's remove another $100 Million for media, case & jacket costs. $600 Million for labor & various import/export costs. An $30 million for the sheer reason to party for a successful selling of the movie worldwide. Where does the other 5 billion go? I'm betting a very minute percentage goes to profit shares. Honestly, a movie like that can still get a major chunk of change, selling the DVD for only $3.50 and still keep nearly a billion for the copyright. Disney releases about 2-5 movies a month at a cost of $19.95. I'm more apt to think a pirate won't mess as much with a DVD that costs $3.50, because it costs too much to make it on his own. If Disney were to increase the cost to $40, it would be more worth the pirate to spend time and money finding a way to copy the media and provide it at a lower cost and profit to himself, by charging the $20 price.

[BJ_M]

i dont think anyone has sold 500 million copies of anything

[lordsmurf]

Copy protection mechanisms were around before the passing of the AHR Act. But the studios obviously still use them to try to make their disks as safe from copying as possible. It does create a conflict of interest since the protection mechanisms prevent legal copying as well. But then again the lock on my front door is no different.

I cannot believe you just said that.

The lock on your front door... yeah.... no analogy here...

Grasping for straws, maybe?
Legal arguments are great, but stupid ones.... ???

[sacajaweeda]

Locks (like encryption algorythms) are only there to keep honest people honest.

[BJ_M]

thats why they put them on jail cells ?