The recording industry last week filed suit against a new music platform called Aurous. With a Spotify-like interface, the app is designed to search, retrieve, and play music files, whether they’re stored on legal platforms or on BitTorrent sites around the world. And according to early reports, the primary function is the sourcing of pirated media on BitTorrent sites, leading some to refer to the app as “The Popcorn Time for Music.” The RIAA suit charges Aurous founder Andrew Sampson and 10 unidentified collaborators with inducement to infringe as well as contributory and vicarious infringement. “The defendant’s business model is new,” states the RIAA, “but it’s business plan is old; illegally profiting from piracy.”
Sampson himself has already made a number of smug and dismissive public statements about the case despite a general consensus—even among parties likely to be sympathetic to Aurous—that he stands on pretty shaky legal ground. In fact, Mike Masnick on Techdirt writes, “I fully expect that Sampson will lose the lawsuit (and lose easily) if the case gets that far. However, that doesn’t mean that parts of the lawsuit aren’t concerning.” What Masnick means by “concerning” is that several of the remedies sought by the RIAA are, he claims, remedies called for under SOPA, which we all know did not become a law.
As surprised as I am that Andrew Sampson thinks the market can actually use yet another way to source or pirate music at this point (I mean how much freer can it all get really?), it’s no surprise at all that it has become SOP to say “SOPA” among the same consortium of activists about every case in which any plaintiff seeks injunctive relief from third-party providers like search engines, ISPs, or registrars. In fact, when the lawsuit was first announced, The Trichordist rather humorously (though not at all facetiously) announced an “office betting pool” as to how soon the Electronic Frontier Foundation would file an amicus brief on behalf of Aurous. And while no serious IP attorney may reasonably defend Aurous against the infringement claims, that hasn’t stopped the EFF from repeating the latest mantra of Internet industry defenders: That [insert plaintiff here] is behaving as though SOPA became law. Although the EFF has not filed an amicus brief or anything so official on behalf of Aurous, here’s the tweet they sent out, as Ellen Seidler reports on Vox Indie:
While, all this SOPA chatter may be pretty good spin—and a great way to belabor the narrative that rights holders are just insidious, draconian, evildoers hating on freedom—the references to SOPA are entirely specious. I mean not even close.
Bottom Line: Aurous is a Domestic Business
SOPA/PIPA were exclusively written to target foreign-based piracy sites that are beyond the reach of U.S. jurisdiction for criminal proceedings, with the objective of starving these sites of both U.S. traffic and U.S. revenue. Far from the menacing, web-killing legislative sledgehammer they were made out to be, these bills were a limited variation on existing domestic law based on the reasonable notion that American Company A should not facilitate or incidentally profit from the foreign-based theft of American Company B. But regardless of all opinions about piracy itself, the remedy in which plaintiffs may seek injunctive relief from third parties was neither unique to the proposals in SOPA, nor unprecedented in U.S. law.
As explained in my post about the Equustek case in Canada, it is a well-established procedure that when a court enjoins a defendant (e.g. Aurous) from continuing to operate pending the outcome of a case, it may also enjoin third parties from aiding the defendant (even if that aid is not intentional) in the activities central to the case. This is both common-sensical and common legal practice that has been applied—yes, even on the Internet—both in the U.S. and abroad. And this type of relief has been granted repeatedly without resulting in any of the supposed harms to civil liberty or the vital functioning of the Internet that was predicted to occur if SOPA had passed. Moreover, it’s worth noting that with regard to web entities like Google, a court order in such a case probably enjoins the service from being used in a manner already proscribed by the site’s own Terms of Service.
This was one of the ironies about the protest against SOPA—that Americans were duped into opposing legal remedies already in force in U.S. law, all using the not-broken Internet and uninhibited free speech to do it. As the language in the SOPA bill effectively says, if the foreign site in question would be subject to criminal charges or civil liabilities in the U.S., then by court order, U.S.-based third parties could be enjoined in the same manner as if the infringing site were domestically based. It’s a subtle distinction that the SOPA bell-ringers would rather not mention, but all SOPA aimed to do with regard to third parties was to apply a commonly used remedy in regard to a specific category of websites whose owners cannot be brought into a US court; but it imposed no new liabilities on the third parties than if the target websites had been domestically based. In fact—and this is what’s particularly funny about Masnick, EFF, and Sampson himself invoking SOPA here—enjoining a third party to take similar measures under SOPA would have been far more restrictive, involving more procedural protections, than civil procedure requires in a domestic case like Aurous.
One may argue the merits of enjoining third parties in these cases until doomsday, but the invocation of SOPA does not apply to Aurous for the simple reason that it is a domestic company with domestic owners and, therefore, well within the reach of U.S. courts. Assuming the RIAA suit proceeds, the third-party injunctive relief being sought is fully consistent with the law, since long before most of the people who so vigorously protested SOPA were even born.
Of course, all legal technicalities aside, who isn’t sick of the infantile and tediously repetitive story that keeps playing out in these cases? It seems clear that not even Aurous’s natural defenders will attempt to claim it isn’t trading in pirated music. And even though the logical contortions that “digital-rights activists” go through to defend on principle these predatory applications do beg in-kind rebuttal, they more reasonably inspire outright dismissal. It really is like arguing with a six-year-old who’s built an elaborate yet flimsy defense for not putting on a jacket or some damn thing. At a certain point, every parent reaches the limits of his tolerance for juvenile debate and explodes with ultimatum. And then there are tears. So, bring on the tears and get it over with already. Then, we might begin to more effectively grow a more sustainable 21st century creative economy, and we can also stop the nauseating repetition of an absurd argument that defies common sense.
© 2015, David Newhoff. All rights reserved.