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Re: [dvd-discuss] Internet movies loses in Hawaii

On 28 Jun 2003 at 11:57, Marcia Wilbur wrote:

Date sent:      	Sat, 28 Jun 2003 11:57:31 -0700 (PDT)
From:           	Marcia Wilbur <aicra@well.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	[dvd-discuss] Internet movies loses in Hawaii
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> Mike Rossi of InternetMovies.com lost in HI court against the MPAA.

Extracted Fronm

> http://www.entlawdigest.com/story.cfm?storyID=2774

    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. 

I think the only part of the Judges logic I can fault is the "good faith 
belief". .....<wavy screen>

Perry Mason - "So you saw claims that movies could be downloaded?"
Jack Valenti - "Yes I did and I directed our legal staff to take actions 
PM - "Did you actually visit their website?"
JV - "yes I did"
PM - "you have a computer in your office don't you"
JV - "yes I do"
PM- "when did you get it?"
JV "just last month?"
PM- "Is this your first one?"
JV -"No I've had several"
PM-"three or four?"
PM - "So you are aware how to use all the periperals such as the keyboard, 
speakers, mouse"
JV - 'yes"
PM- "and you know how to use the standard software I assume such as a word 
processor, netscape internet browser, email"
JV - "I use Internet Explorer"
PM-"when you use Internet Explorer, how fast does it load?"
JV - "I don't understand"
PM-"well when you click on a graphics image at a website, how long does it take 
for it to come up? When you click on a video clip, how long does it take for ti 
to start running'
JV-"seconds! We have high speed internet access at the MPAA!"
PM-"So tell the court Mr Valenti, how you can claim to have made a good faith 
belief when you are clearly computer literate enough to use a mouse, know how 
to click that mouse on images or videos using Internet Explorer and have a 
hight speed line to actually download and verify that copyrighted material 
acutally is present?"
JV- "ahhhhh...ohhhh"
PM - "I would suggest to the court that by not making that final effort that 
your easily could have done that you deliberately did not verify the claims of 
copyright infringement and that you acted in bad faith.

< unwavy screen>

The judge split hairs here. The investigation was trivial and would have taken 
far less time than this court case did. As such I dispute the good faith claim 
and had he been more computer literate would have too.

> *** ignore your rights, they'll go away ***
> - marcia wilbur