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First Lawsuits against Israeli file sharing sites
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Lawyers
of Israel's Entertainment Industry in a special interview for Nana Net-Life
Magazine: “When we finish with the file-trading websites, we'll move on to
the users”
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îàú: By Uri Berkovitz, Nana Net-Life Magazine 14:4421.09.2005
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Lawyers Sarah
and Eran Presenti
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“Whoever
will infringe copyright and run infringing websites will be sued to the full
extent of the law, much quicker than what we've had up until now.” Said today
lawyers Sarah and Eran Presenti, who represent the record and film industry
in a suit against Israel's file-trading websites.
Four of the most popular file-trading websites were shut down yesterday after
the court agreed to the request of the record companies and released a
restraining order which ordered them to halt all activity. In a special
interview for Nana Net-Life
Magazine, the conductor of the suit, Lawyer Eran Presenti, explains his world
view and the arguments which convinced the court today to turn him into the
official eliminator of some of the most popular file-trading websites in
Israel.
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To what extent was the lawsuit's timing influenced by the US Supreme
Court's verdict in the Grokster case?
"We've been working on the current suit since February, four months
prior to the verdict delivered by the US Supreme Court, so it's not possible
to say that the suit was filed in it's wake.
However, we did mention the decision of the US court in this case.
While the Israeli court is not committed to decisions made in the United States,
a verdict such as the one which was concluded in the Grokster case,
especially when it involves the US Supreme Court, can be an affecting element
in the interpretation of the Israeli courts, as in it's
analysis. Among others, it was decided in this case that sharing companies
would be those held responsible for the illegal actions of their users, in a
case in which the main usage of these services would be the illegal sharing
of films and music. The judges clarified that companies who build themselves with
the active intent of encouraging copyright infringement would be those who
would be held responsible for the illegal actions of those who utilize their
services.”
What have you now asked the courts?
“As a first step, be have requested a permanent restraining
order in order to forbid their activity. The next step is the request of a
warrant which will reveal the business conduct of these services, from which
we will be able to learn of their profits. In addition, we have requested
compensation to the sum of half a million New Israeli Shekels (about 110k$)
from each of those being sued.”
What are your expectations of the trial itself, which is due to take place
in November?
“We hope that the court will accept our point of view that the websites in
question are committing copyright infringement by the use of redirection
links. In addition, we hope that they will state that every redirection is,
in fact, the creation of a copy or duplicate (The “Performer's rights law”
states that the performer holds the rights for his creation not to be
duplicated unless he or she specifically grants his or her approval)."
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from la-la. Source: Google Cache
“It's
like having someone tell the entire world where one could purchase drugs.”
You claim that the recommendation itself of a movie would be breaking the
law.
“ It's like having someone tell the entire world
where one could purchase drugs, and would run a website which would increase
its quality. It is, most definitely, “assistance infringement”. Despite all
the talk about “community”, this is about a surprisingly well organized
business where each and every file goes through the hands of the “community”
members, who make sure that the file name and it's
content are identical.
In addition, they work in order to encourage the distribution of these files
by the use of what they call “creating sources”. These websites call to the
surfers to record television series and to upload them to the internet. The
operators of these websites are not philanthropists, but people who conduct
an entire orchestra and are very much involved in everything being done.
They bring in coders and translators, and they have an interest in these
files being distributed under their name. They have an interest in the files
being of specific quality and not “fakes” (files of
a mistaking name and mismatching content). The interest behind these Robin
Hoods is financial. If this business ticks well in regards to the number of
hits generated to the website and it sells advertising space, although they
may still be small companies, it is still a type of product, or a business.
In addition to all these, these website also have “completing infringements”,
because it's not just about films and music, but also album covers and movie
stills – which unlike the the pirated files, these are actually stored on the
websites' servers.”
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And what do you have against adding subtitles to movies?
“Technically, there is no right such as this. The right to translate a work
belongs to it's owner. In this suit we're not really
paying much attention to the issue of adding subtitles because we represent
the creators of Israeli film, which usually do not have to be translated.”
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“eMule is next”
Let's face the truth: The world of file-sharing is going to go on living
far after you take down the last of the file-trading websites.
“We've got serious actions in the barrel which will harshly affect the world
of illegal file-sharing. Of course, at first there will have to be a court
verdict which states that the sharing of files without the granted permission
of the rights owner, is illegal, and it's probable
that we'll we able to convince the courts of this. It won't be a precedent in
comparison to the rest of the world, but it will a
precedent in Israel. The legal comparison between Israel and the rest of the
world is necessary in order for us to be able to continue swiftly with this
matter.”
When you say “swiftly”, are you referring to additional file-sharing
websites or the file-traders themselves?
“There is a great deal of information we've gained regarding individual users
which is currently not being taken advantage of. The process of filing a suit
in the case of a single file-trader is far more simple.
In the eyes of the law, these are infringing users. No one has the right to
duplicate copyright protected files. When I download a file, I am actually
making a copy of it, and I open myself to the entire world so users can
download the same file from me. In effect, every user is a distribution and
duplication machine, just like a CD burner.”
So what, Are you planning on suing every single file-trader in Israel? Or
are you planning on focusing just on the “heavier” traders?
“eMule is the plan's “Phase 2”. Technically we're
looking only for those who leave the application open all the time and
upload/download files non-stop. As far as we're concerned, they are
distributors. I'm only referring to the “heavy” surfers, since in their case
it's far more practical and simple for me to display the overall damage to
the court”.
And how are you planning on tracking these users? Do you already have the
names?
“We know exactly who they are. The entire network is monitored and we have
their IP addresses.”
But in order to find out who stands behind an IP address, you need
warrants.
“Warrants are not a problem to get.”
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From what you've managed to find out up until now, what is the revenue of
these file-sharing websites? How much are they really making from their
activities?
“We're talking about an revenue of $3000 - $6000 per month.
"
Where have you managed to acquire this information? You have only just
received access to the documents and servers belonging to these sites.
“We've been investigating these websites under cover for a few months. From
the investigation of Amir Tesler (operator of the lala.co.il website) we have found that his
income reaches $6,600 per month.”
How did you reach that number?
“Very simply: We called him in order to request price quotes for different
types of ad banner aplacements, and later on we counted the number of ad
banners on the website. Of course we are aware of the fact that there are
arrangements which we have no way of knowing about, such as discounts which
were specifically given to this or that dvertiser.”
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“The state of the record companies is very bad”
So what's the solution? Continue charging 80nis (about 17.5$) for the price
of one album? File-traders claim that they no longer believe the record
companies and are not willing to continue adding to the wealth of the
organizations who strip from the artists.
“That's not the situation at all. Except for Helicon which is an “odd bird”
in the world of record companies, the financial state of the rest of the
companies is very bad. Sales percentages such as those which we saw during
the time of Michael Jackson's “Thriller” are long gone. The result of this is
that most of the companies are no longer in a situation in which they sign
young artists, invest in them and promote them, but are busy creating
compilation albums and recycling materials which they already have the rights
for, and the target crowd for these is already the crowd which purchases CDs.
Of the role they use to play in the past, as promoters of creation, all
that's left is their operation as distribution companies. In light of the
fact that it's much cheaper and simpler today to produce albums, there's no
need for them to fulfill this function, but on the other hand the artists
cannot manage without this ability of distribution. Even a small artist who
releases his music for free via eMule wants to make a living off music, and
without the record companies it's going to be very hard for him to reach
that. The bigger artists have performances, their own recording studios,
their own musical productions, but what does a new artist have? What would he
do without the association which stands for his right to receive commission?
What will he do, go to every broadcasting entity individually and ask to
receive commission? Look what happened to the PIL association, of Middle
Eastern music. They started asking for commission, and since there were
entities who did not want to pay them, these entities refrained from playing
the association's artists entirely.”
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