More On The Torrent Issue
Here is some more information about Allied Telesis Yokota’s policies regarding copyright infringements.
AFN News Video on Illegal Downloads
DMCA Violations Frequently Asked Questions
Digital Millennium Copyright Act
Allied Telesis Yokota Acceptable Use Policy
I most sincerely hope that as Allied Telesis expands their channel content and drops their rates, I know that is wishful thinking. If there was anything that AAFES ever has done well is find services that never go down in price, but rather can always go up. This is self evident as AAFES promised Yokota residents that as Misawa and Kadena came online with their telecommunication services, that rates would drop. Well, I am still waiting.
I believe that should Allied Telesis offer more content or rather a broader base of content that appeals more of the base population of Yokota, folks will cut back on illegal content downloads as their needs are being met. Your casual downloaders tend to focus more on TV shows that are not available locally through AFN. We all know that Allied Telesis does not carry any popular shows aside from what is on Sports channels, Discovery, and Comedy Central. However, the syndicated shows on ABC, CBS, NBC, and USA are not present and thus prime targets for Yokota residents to download. Should Allied Telesis start offering those channels, I am very confident that 1/4 to 1/2 of the illegal content downloaded through their system would immediately stop, after all some of us own a TiVo or some variation there of.
Just remember folks, regardless of your own personal opinion of file sharing, each time you perform a download you are running the risk of getting id’d by the copyright’s holder and run the potential of the associated civil liabilities. To date, the legal cases have been predominantly civil, but criminal cases have occurred. See below for more details.
First Digital Millennium Copyright Act (DMCA) Criminal Sentencing in California Involving
More than 4,500 Bootlegged Video Tapes
Three Others Have Recently Been Convicted for Aiding and Abetting the DMCA violation
SACRAMENTO United States Attorney John K. Vincent announced today that MOHSIN MYNAF, 37, of Vacaville, California, was sentenced by U.S. District Court Judge David F. Levi to 24 months in federal prison, a three year term of supervised release, a $1,600 special assessment, and also ordered to pay approximately $201,738.70 in restitution for engaging in six counts of criminal copyright infringement; six counts of trafficking in counterfeit labels; and one count of circumventing a technological measure that protects a copyright work (the Digital Millennium Copyright Act”). As part of his plea agreement, MYNAF agreed to the forfeiture of the equipment he used to commit the copyright violations, the forfeiture of $5,000, and the destruction of a substantial amount of property used to commit the copyright violations.
MYNAF pled guilty on March 28, 2002. On October 31, 2002, he also pled guilty to three additional counts, including Unlawful Use of A Means of Identification of Another Person; Possession with Intent to Use or Transfer Unlawfully Five or More Identification Documents; and Possession of Unauthorizedly Produced United States Government Identification Document. According to court documents, more than 4,500 bootlegged video tapes were found on December 5th, and 6th, 2001 during the service of five federal search warrants at three video stores (Video Stop, 1100 Marshall Road, Suite A, B, C, D, Vacaville, California; Videoland, 2147 North Texas Street, Fairfield, California; and Videoland, 128 Robles Way, Vallejo, California), a Vacaville storage facility rented by defendant MYNAF, and the defendant’s Vacaville residence. According to the plea agreement, at the MYNAF residence, agents found a movie videocassette reproduction lab with equipment hooked up to manufacture counterfeit movie videocassettes and labels. The equipment included approximately eighteen video cassette recorders, equipment used to bypass videocassette copyright protections, and printers. Defendant MYNAF utilized some of the equipment, including the SIMA Video Copy Master, to circumvent a technological measure that effectively controls access to copyrighted works. This case represents the first criminal conviction and sentence in California under the Digital Millennium Copyright Act (DMCA), which was enacted in October 1998. The provision under which defendant MYNAF was convicted prohibits anyone from willfully, and for purposes of commercial advantage and private financial gain, circumventing a technological measure that effectively controls or safeguards access to a work protected under the copyright laws. This is the first known DMCA prosecution targeting the circumvention of security measures placed on analog videocassettes. This case is only the second known criminal conviction in the country under the DMCA. The U.S. Attorney’s Office for the District of Nebraska successfully prosecuted an individual concerning a modified chip that circumvented a Sony software security measure to allow the Sony Playstation to play unauthorized copies of copyright protected Sony computer games. According to Assistant U.S. Attorney Mark L. Krotoski, who prosecuted the case, three other individuals have been convicted for their role in aiding and abetting MYNAF in violating the DMCA. On May 23, 2002, Mohammad Anwar Shafi pled guilty to one count of aiding and abetting the circumvention of a technological measure that effectively controls access to a copyrighted work. On June 18, 2002, Siriporn Rojanachaichain, defendant Mynaf’s wife, pled guilty to the same charge. On February 11, 2003, Shoaib Aziz pled guilty to the same offense. Their sentencing hearings are pending.
The case was investigated by the Federal Bureau of Investigation Fairfield Office with the assistance of the Vacaville Police Department and the Motion Picture Association of America.
DMCA Still Faces Its First Criminal Test
Criminal case will test Digital Copyright ActBy Jason Hoppin
The Recorder
March 27, 2002Dmitry Sklyarov is free, but the law under which he was jailed remains.
The young Russian programmer turned cyber-cause celebre, arrested last year after a speech in the United States, has been home since he promised to testify in what was once, arguably, the Northern District’s highest profile case.
But nothing has changed about the underlying issues that so inflamed the cyberlaw community. On Monday, U.S. District Judge Ronald Whyte will put those issues under a microscope in a criminal case that should have a significant impact on creative industries’ drive to protect their products through legislation.
Elcomsoft Co. Ltd., Sklyarov’s employer when he wrote a program that unlocks Adobe Systems Inc.’s password-protected eBooks and PDF files, faces charges under the Digital Millennium Copyright Act, which outlaws the circumvention of encrypted digital works.
But Elcomsoft’s lawyers, along with Sklyarov’s attorneys and backed by a phalanx of law professors and public interest lawyers, will ask Whyte to dismiss the case for a number of reasons, including that Elcomsoft could not have understood the penalties it faced.
"The failure of a statute, particularly one that carries criminal consequences, to clearly define the conduct it proscribes and thereby ensnare innocent law-abiding individuals is the essence of constitutional vagueness," wrote Duane Morris partner Joseph Burton in asking Whyte to toss the case.
Two lawyers from the Northern District’s Computer Hacking and Intellectual Property Unit will counter each argument, ranging from broad constitutional issues that may require Whyte to divine the Founding Fathers’ intentions to parsing the specific language of the DMCA.
Whyte has already heard arguments on whether the government has the jurisdiction to prosecute a Russian company, but hasn’t yet ruled. Burton will be joined Monday by attorneys from Keker & Van Nest, who will argue that the prosecution violates Elcomsoft’s First Amendment rights, since computer code is considered speech. Keker partner Daralyn Durie, joined by associate Michael Celio, are appearing as of counsel.
A coalition made up largely of intellectual property law professors, led by Georgetown University’s Julie Cohen, submitted a rare amicus curiae brief at the district court level arguing that Congress overstepped its bounds when it enacted the DMCA.
And the Electronic Frontier Foundation, already an integral player in the case, was joined by a hodgepodge of public interest groups (including the American Association of Law Libraries) in submitting a brief in support of the Free Speech argument. (The EFF had lobbied Adobe to drop its support for prosecuting Sklyarov, which it eventually did following a barrage of protest.)
The case seems to go to the heart of the efforts of a variety of industries — movies, music, videos, books and software — to protect their digital products, which they argue is necessary to protect their livelihood.
Cary Sherman, general counsel of the Recording Industry Association of America, said his group has been following the case from afar.
"We’ve got our hands full with everything else," Sherman said. "The Department of Justice is doing a fine job. … I think that the government should win."
For EFF General Counsel Cindy Cohn, the case is about consumers’ fair use rights and the First Amendment — returning to people the ability to copy, print or otherwise manipulate a lawfully purchased eBook.
"Are we going to put people in jail who simply provide us the tools to get back what they took from us?" Cohn asks.
Also troubling for Cohn is the message sent by prosecuting someone for creating a technology. "I think any attempt to go after the technology is problematic," Cohn said, echoing the EFF’s argument that more cases like U.S. v. Elcomsoft, 01-20138, would chill innovation.
Sklyarov was arrested in Las Vegas by federal agents in July after giving a speech on eBook encryption at DEFCON, which bills itself as "the largest hacker convention on the planet."
He was the first person charged by a federal grand jury under the DMCA. The uniqueness of the case is underscored by the number and breadth of the briefs, which offer not just case cites, but virtual histories of the development of IP law in the late 20th century.
Elcomsoft, Sklyarov’s employer, sold what it called the advanced eBook processor (AEBPR) through a U.S.-based Web site. Very few of the programs were ever sold — court filings show an FBI agent contacted only three buyers, though possibly more.
A prison term is no longer an issue in the case, but Elcomsoft could face stiff criminal penalties. Sklyarov’s prosecution was deferred and will likely be dropped if he cooperates and, if necessary, testifies at trial. In the meantime, his lawyers are helping out with his employer’s defense.
"Once the prosecution of Dmitry was deferred, [Sklyarov's lawyers] were basically out of the case," Burton said. "We asked them to help out on the First Amendment issues."
Handling the government’s case are assistant U.S. attorneys Joseph Sullivan and Scott Frewing, who argue, among other things, that the defense is overstating the fair use issues in the case.
"The claims of Elcomsoft and amici that purchasers of eBooks require the AEBPR program to engage in fair uses are misleading," Frewing and Sullivan wrote, pointing to other, albeit more limited, ways for consumers to exercise fair use rights.
They also argue that since the AEBPR removes copyright protection to reveal a "naked" file, what Elcomsoft’s product produces then is not a copy, but a derivative work, the production of which is a right that lies solely with the copyright holder.
The government also urges Whyte to tread carefully in deciding whether all computer code, or just certain types, can be considered speech.
"The court should be reluctant to extend First Amendment protection to the act of trafficking in a functional product or good that merely acts as a machine," Frewing and Sullivan wrote.
The law professors’ brief, meanwhile, argues that since the DMCA was written into § 17 of the United States Code, headlined "Copyrights," that Congress enacted the DMCA under the authority granted it by what is known alternately as the Copyright or Intellectual Property Clause of the Constitution.
Courts have long held that Congress’ power is limited under the Intellectual Property Clause, and the law professors argue that with the DMCA, Congress overstepped its bounds. The government counters that legislative history shows that the DMCA was enacted under the Commerce Clause.
"Our argument is that you can’t use [the Commerce Clause] to do an end run around the Intellectual Property Clause," Georgetown’s Cohen said.
© 2002 law.com Inc. © 1999-2002 NLP IP Company
