James Delahunty
21 Apr 2005 20:37
Michael Jay Rossi, President of InternetMovies.com Inc. is turning to the Supreme Court in his fight against the MPAA for the wrongful shut down of his website in 2001. The Ninth Circuit Court ruled that good faith belief under the Digital Millennium Copyright Act (DMCA) is subjective and not objective. "The Ninth Circuit Court's subjective interpretation of good faith belief stated in the DMCA is unconstitutional, allowing copyright holders to abuse people's rights without conducting proper investigation on alleged violations." said Rossi.
In the Ninth Circuit ruling, Judge Johnnie B. Rawlinson states, "Applying the subjective good faith standard of #512(c) and viewing the record in the light most favourable to Rossi, Rossi failed to raise a genuine issue of material fact regarding the MPAA's violation of the DMCA." However Rossi is not convinced and believes his attorney James Fosbinder did indeed raise a genuine issue of material fact regarding the MPAA's violation of the DMCA. The MPAA accused him of offering movies for download, including one that wasn’t released or even finished production yet.
"Plaintiff Rossi did not ever offer any movies for download from his site, contrary to the MPAA's express statements to the contrary in their violation letters, and in fact he could not have done so given the server space available for his site at that time. Interestingly, one of the movies he was accused of having available for download in 2001, 'Lord of the Rings, The Return of the King' did not even come out until December of 2003", Fosbinder stated in his Appellant's Opening Brief to the 9th Circuit Court.
"My fear is that if the Ninth Circuit court's ruling that the DMCA Good Faith standard is subjective is not overturned, is that copyright owners will continue to abuse the law unjustly shutting down online publications like mine giving them an unfair advantage in the marketplace and abridging free speech. Also in danger is the right given by the Fifth Amendment to due process in cases of lost life, liberty or property. The freedom to defend oneself is being curtailed by the 'shoot now, ask later' style of shutting people down when offences may not be occurring. Any industry or person should not have the power to curb the rights of another under the protection of the DMCA's subjective interpretation of good faith belief." Rossi said.
Sources:
PrimeZone
InternetMovies.com