How we helped a local filmmaker & our guide for filesharing defendants

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 New Media Rights has had an eventful month! Here's what we have been up to...

New Media Rights creates a legal guide for defendants in the mass copyright lawsuits

As you may know, over 100,000 people have been accused of illegally downloading films and adult videos in the last two years. With suits this broad, many innocent individuals have been caught in the crossfire and threatened with legal action unless they pay $1,000's in settlement money. Even for innocent defendants, it is less expensive for them to pay that settlement money than it would be for them to hire a private lawyer to learn/defend their rights.

New Media Rights has assisted many of these individuals for free, but recently, we have been overwhelmed with the amount of defendants contacting us. That's why we thought it would be useful to create this legal guide for these defendants we can't personally assist...

Guide for defendants in mass copyright lawsuits

That way, they will at least have a chance of understanding their rights before being "extorted" by erroneous settlement letters. Please share this guide as widely as possible so this information gets to the people who need it. Also, let us know at if you post a link to the guide on your site or post it on Twitter so we can thank you personally.

New Media Rights helps a local San Diego documentary filmmaker

Unfortunately, there are few resources available for documentary filmmakers to get one-to-one assistance with reviewing their films before publication. San Diego filmmaker Maricar Camaya created a documentary about the plight of a San Diego man facing deportation to Uganda and that country's repressive anti-homosexuality laws, and the film used a newspaper article and photos in fair use under copyright law. He asked New Media Rights to review his documentary to ensure that his work didn't violate copyright laws. You can read his short story here.

Mr. Camaya is just one example of the hundreds of individuals who rely on New Media Rights monthly.  If you've made a film, or if you've been told to remove your photos, video, or other content from the web, contact New Media Rights at 619-591-8870 or and we can take you step-by-step through the process of getting your content reviewed or restored.

New Media Rights welcomes fellows Dan Terzian and Chrissie Himes

New Media Rights recently added to two new Fellows to the team. You can find some of their contributions on the New Media Rights blog

The FCC's Net Neutrality Rules: A tale of two internets by Dan Terzian

US Supreme Court Declines to hear ASCAP Appeal by Chrissie Himes

NMR Will Be Presenting at the Media Law in the Digital Age Conference in October

NMR will be at the Media Law in the Digital Age conference on October 22nd at Kennesaw State University in Atlanta, GA. The event will start at 8:30AM with sessions all day until 5:00PM

Executive director Art Neill will be on the panel "Apps and Wireless: New Platforms for Online Content Providers and Journalists." The panel will be discussing potential legal risks for entrepreneurs from terms of use, to copyright, to licensing, to using geolocation data to tailor content, as well as the general legal issues surrounding mobile content distribution. 

We were graciously invited to participate by the co-producers of the event, the Citizen Media Law Project at Harvard University’s Berkman Center and Kennesaw State’s Center for Sustainable Journalism.

NMR Will Be Exhibiting at Blogworld in Los Angeles in November

NMR will be exhibiting at the BlogWorld convention on Friday, Nov. 4th and Saturday, Nov. 5th at the Los Angeles Convention Center. We were able to meet lots of independent creators at our booth last year that ended up using our services, and we hope that the demand is even higher this year. For attendees who'd like to schedule a time to get into contact with us, drop us a line at

Ways to get involved with NMR without getting out of your chair!

Do you want to support our work protecting the rights of content creators online?

1, You can donate by visiting our secure donation page

2. You can retweet us on Twitter, like us on Facebook, and subscribte to our Youtube and Flickr accounts

3. Write articles for our blog. If you would like to become part of our blogger network, send an email to

4. Suggest new resources, projects, and advocacy efforts for us to participate in by using our contact us form


Icons created by Missrivs under a Creative Commons Attribution-Share Alike No Derviatives 2.0 License


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Guide for defendants in mass copyright lawsuits (Bit Torrent Filesharing cases)

We want to thank the California Consumer Protection Foundation for their support, which allowed this guide to be created.



If you are reading this guide, you may be a defendant or may know a defendant involved in one of the “BitTorrent filesharing lawsuits.” These suits are also sometimes referred to as “Mass copyright lawsuits” because for the first time, hundreds and sometimes thousands of individuals like yourself have been implicated in lawsuits alleging “copyright infringement.” Indeed, as of September 2011, there are over 200,000 individuals involved in such lawsuits.

You may have received a letter from your Internet Access Provider that alerted you of the potential lawsuit against you. Since this may be the first time anyone has ever threatened legal action against you, the contents of this letter may shock, frustrate, or confuse you.
As a public interest legal advocacy organization, and due to the dramatic number of defendants and pressure on resources for assistance, New Media Rights has drafted the guide below to provide you basic information regarding how to handle the letter you have received. Please read everything in this guide carefully. Also, realize that this guide is not a substitute for legal advice from a lawyer.
This guide is not a substitute for advice from a lawyer because each person’s case is different. We would like to ensure that ever person gets accurate, up-to-date information, but a guide like this can only serve to provide basic orientation.
You may be able to find a lawyer who can assist you by visiting the EFF’s Subpoena Defense resource at

Because these suits have been filed against such large groups of people relatively indiscriminately, defendants like yourself may be in one of several very different situations.  Some possibilities:

(1) You may be aware of the circumstances surrounding the filesharing of the movie/video you are accused of sharing illegally online

(2) You aren’t aware of the circumstances surrounding the filesharing of the video you are accused of sharing illegally online, and you may not even know what BitTorrent is.

(3) Someone in your family or a third-party stealing your internet connection may have downloaded the movie/video in question without your knowledge.

These are just some possibilities.  The wide range of situations that you may be in, the wide range of different plaintiffs filing these suits, and the quickly changing legal landscape surrounding these lawsuits makes it so a guide like this is not a proper substitute for legal advice directly tailored to your situation.

That said, we understand how difficult it is to get any information at all about these suits. We also understand that these suits are designed so that it is less expensive for you to settle than hire a lawyer to learn your rights. That’s why we have drafted this guide to explain to you what is going on generally, and the best ways to proceed.


As you may be aware, some producers of independent films and adult video content have been suing individuals who they believe have illegally downloaded their films. These movie companies (the “Plaintiffs”), gather the identifying numbers of the computers they believe are involved in sharing their films, these are called “IP addresses.” For various reasons, some of these IP addresses are associated with internet account holders who have not actually illegally shared a video online. Even if you are sure you are innocent, you may be one of these people who was mistakenly flagged.

These Plaintiffs are accusing people like you of illegally engaging in illegal filesharing of their movies for free through sources like “BitTorrent” or “P2P” programs (filesharing services that can be used for for illegal as well as legal downloading and uploading) rather than legally obtaining the video from sources like iTunes and Amazon. Almost always, these Plaintiffs are looking for settlement money as it would generally be difficult for these plaintiffs to engage in thousands of long, drawn-out trials.  That said suits against individuals are possible, and appear to be targeted at making examples of individuals to force further settlements.

The letter that you received is most likely from your Internet Access Provider (major providers include Cox, Comcast, and Brighthouse). It is important to know that your Internet Access Provider is not suing you. The Plaintiff (the owners of these movies and adult films) forced or is attempting to force your Internet Access Provider to release your personal contact information because of a legal “subpoena.” To get the legal power to send that legal subpoena to your Internet Access Provider, the Plaintiffs had to add your “IP Address” to the lawsuit that they filed.

Until the Plantiffs get your contact information, only your IP address has been implicated in the lawsuit. Unless you have been notified otherwise, this means that you may not yet be a “named defendant” in any lawsuit.

Generally, only “named” defendants, not IP Addresses without names attached, can be sued to the point where a judgment is rendered. Before you are named, you are considered a “Doe Defendant” (as in John Doe).  It can be expensive and complicated to change your status from a Doe defendant to a named defendant. Therefore, the Plaintiffs are very interested in settling, (getting a $500-5000 payoff) before it gets to the point that they have to name you.

That’s why, if their subpoena is successful and the Plaintiffs get your contact information from your Internet Access Provider, the Plaintiffs will typically send you another letter, or series of letters, demanding an amount between a few hundred to several thousand dollars to settle any dispute with them.

Below are options on how to proceed as a Doe Defendant.


Again, while these are no substitute for competent legal advice, these are common paths available in these cases.  They are not listed in any particular order and no specific path is being recommended for your situation.

1. You can wait. You can wait until after the deadline indicated in the letter from your Internet Access Provider. After that day, unless the court rejects the subpoena, your Internet Access Provider will have to forward your contact information to the Plaintiff's law firm. This does NOT mean you've been judged guilty of anything. You will STILL have a chance to defend yourself if a lawsuit is filed.

After the deadline date provided by your Internet Access Provider, it simply means that your name (and likely that of thousands of other potential defendants) will likely be available to the Plaintiffs.

The Plaintiffs will then typically mail a settlement letter or email to you. If you ignore that letter, they will then have to choose whether or not they want to add your name to the lawsuit in that jurisdiction, or dismiss you and perhaps sue you in another jurisdiction based on the geographic information they collected in the subpoena.

2. You can hire an attorney to represent you to file a motion to quash right now. A “motion to quash,” if filed before the subpeona date on the letter that you got from your Internet Access Provider, could theoretically prevent your contact information from being sent to the Plaintiffs. Be aware though that a number of these early motions to quash filed have failed.

Before your information is released, most of what a lawyer could do is file a "motion to quash." Generally, motions to quash in these types of cases are expensive and fruitless will not help your situation, but your specific facts are necessary to make that determination. Unfortunately, collecting those facts and making that determination is something we no longer have the resources for.

Motions to quash don't look at the actual facts of your case: whether or not you committed the infringement. Instead, they tell the court to look at whether the procedure of the suit was or wasn't proper. The first argument is "Personal Jurisdiction" that (jurisdiction isn't proper) and the second is "Improper Joinder" (which is the too many does situation). Both arguments tend to be seen by judges as premature at this stage.

The cost to hire a lawyer to make this motion may be a few hundred dollars or more which, depending on the Plaintiff, could be close to the cost of settlement. Therefore, you should think carefully before you spend your time and resources to file a motion to quash.

A list of attorneys that may be able to assist you is here.

3. You can request that the Plaintiffs “voluntarily dismiss” (drop) their claims against you so you do not have to pay them anything. This may only be successful on rare occasions when you are both innocent and have extraordinary factual circumstances in your favor. For example, if you do not even own a computer, or have irrefutable evidence that can be provided to the plaintiff’s attorneys, you may be a likely candidate to be released from the suit.

4. You can settle on your own before or after you receive your letter asking for settlement. Plaintiffs may engage in settlement talks with you before or after they receive your name from a subpoena.  You should know that any settlement amount demand can be negotiated.  Some plaintiffs will settle for a lower amount if the settlement takes place earlier in the proceeding. Some will simply tell you to wait for the letter that will arrive in the mail or email.  If you do contact a Plaintiff before your name is released, you will want to protect your anonymity as best as possible.  This means avoiding using your common email address. Please read this whole guide because, as you will see, contacting the plaintiff on your own without specific legal advice about your specific situation creates a possibility of making your situation much worse.

5. You can hire a lawyer to help you get the claims released or settle. While a lawyer may be useful in obtaining optimal results, you do not need to hire a lawyer to ask for the claims to be dropped or negotiate a settlement on your behalf before your are a named Plaintiff. However, if you are named in the suit (you have been “served with process”), then you will almost certainly need the advice of a lawyer immediately.

Again, here is a list of lawyers that may be able to help you.


The letters these firms send are intentionally written to sound threatening and often intentionally written to be complicated. The claims in these letters may be slightly exaggerated for effect. For example, many letters will claim that if you don’t settle now, you will be liable for up to $150,000 in damages and the Plaintiff’s attorneys fees.  Typical damages for copyright actually range from $750 to $30,000, and to get damages between $30,000 and $150,000 a Plaintiff is required to produce a very strong showing of “intent” on your part.  That said, it is true that copyright lawsuits can be expensive for both damages and attorneys fees.

You should take the settlement letter’s threats seriously even if you didn’t actually share the movie you’re being accused of illegally sharing. Even if you did not upload or download the file that you have been accused of, you should take the allegations seriously and make an informed decision about how to proceed. Innocence may allow you to win your lawsuit, but it’s still possible that a fully innocent plaintiff could be named in a lawsuit. This means it may be helpful for an innocent defendant to reach out, or preferably have a lawyer reach out early to the Plaintiff to ask for dismissal, especially if you have specific facts that can prove clearly that you were not involved in the illegal filesharing activity.

Lawsuits can demand a great deal of time and money to defend yourself, so making an informed choice early on is a good idea.

The U.S. Copyright Group is not a government organization. One of the major Plaintiffs that files these suits is Dunlap, Grubb, Weaver. This law firm works under the name the U.S. Copyright Group. Many people might assume that the U.S. Copyright Group is some kind of government organization. This assumption is incorrect. The U.S. Copyright Group is merely a private law firm acting under an alias that makes it sound more marketable to its movie studio clients and more threatening to the consumers who are their targets.

These letters typically do not involve any criminal trouble. In the U.S., the criminal law and the civil law are entirely separate matters.  The “copyright infringement” claim that a private plaintiff such as a company makes is a civil matter. Although there are some extremely limited circumstances that copyright infringement could become a criminal matter, again these circumstances almost certainly do not apply when the plaintiff is a private entity like a company. It is unlikely that the criminal provisions of the copyright law can be implicated in this case such that you will go to jail, get a criminal record, or be threatened by police at any point in this process.

Settlement will probably cost between $500-$5,000. The letter will likely request that you pay some amount between this range to settle immediately. It will also threaten that if you don’t settle within a certain date, the initial settlement offer will go up. Keep in mind that the firm also has a stake in settling quickly so don't think the quote they provide is always set in stone.


Unfortunately, without knowing the facts of your case, we cannot properly advise you on the best course to take in response to your letter. Below are merely general principles to be aware of.

1. It is almost certainly unwise to give the Plaintiffs any details about your situation that they don’t already have unless you are represented by competent legal counsel. It may be best to avoid sharing any details with the Plaintiff without first discussing the specific facts of your case with legal counsel. Although open communication may sometimes help your case, more often than not it may hurt your case to discuss details with the Plaintiffs. Only a competent lawyer will know which facts can help or hurt your case.

2. Do not lie or misrepresent the facts. If you do contact the Plaintiffs, either do not answer questions that cause confusion or hurt your case, and if necessary, break off communication.  You do not have to answer any questions, so do not lie or misrepresent facts.

3. Keep in mind that even if you own and paid for a physical DVD of a movie, the law generally still does not allow you to download another copy of that movie from an improper source like BitTorrent simply for entertainment purposes. Therefore, telling the Plaintiff that you did download the movie in question but that you also own the movie will NOT help your case. It will actually HURT your case significantly.


At this time, New Media Rights is not acting as counsel in these cases because of our limited resources. Whether you should spend money on a lawyer or not in these types of cases is also an unsettled question. There are so many different plaintiffs and different modes of trying to do business that it's impossible to know... 
(A) whether a plaintiff with be open to negotiate for a smaller settlement, 
(B) whether it would take a lawyer's intervention to negotiate for a smaller settlement, and
(C) whether that lawyer's negotiation would be so successful in lowering the settlement that it would be worth the cost of the lawyer. 
For people who clearly know that they are completely innocent and can easily substantiate that innocence, they can be much more safe in knowing that hiring a lawyer to defend them and/or ignoring settlement letters will produce useful results. For those who clearly know they have downloaded the file, it will be less prudent for them to ignore the settlements, and the benefits of hiring a lawyer are more dubious.
If you do choose to hire a lawyer, it is worth asking 
(A) the exact steps the lawyer will take and why they will be taken, 
(B) what specific results have been achieved for other defendants like yourself in the past by taking those steps and 
(C) whether the lawyer's charge will be an hourly rate or a percentage of the money you save if a lower settlement is negotiated.
Of course, it would be optimal for defendants to hire a competent lawyer who charges defendants a percentage of the lowered settlement rather than an hourly rate. This is because hiring a lawyer at an hourly rate could cost a lot of money and end up being fruitless.


The decision to settle needs to be determined by looking at the specific circumstances of your situation as well as your aversion to risk, so it isn’t a proper subject for this guide.

In a few uncharacteristic cases, the courts have prevented Plaintiffs from continuing for a variety of technical reasons. Defendants like you in those cases were in a much more favorable position simply because they waited to settle while actively monitoring their case.

In many cases, the courts allow Plaintiffs to obtain individual names from your Internet Access Provider. Once your name is released, there is a possibility that they could amend the lawsuit to include your name or file an individual lawsuit against you in your jurisdiction if you do not settle in the time requested.  The prospect of suing hundreds or thousands of people individually is time and resource intensive for plaintiffs, but there is always the possibility of individual suits even if the chances are low that an individual lawsuit would be filed.


It’s an unfortunate and difficult situation to be a defendant affected by these cases.  

Lawsuits like these are based on the fact that it's much less expensive for an individual to settle rather than hire a lawyer and fight this process. We realize what a bad position that puts defendants like you in.

We hope this guide provides a bit of orientation so you can figure out the best path forward.

If you thought you gained something from this discussion, please consider supporting our work at by donating, sharing this guide through Twitter and liking us on Facebook.


This isn’t fair. I didn’t actually download anything. Why is this happening to me?

An analogy might help. Imagine the Plaintiffs collect IP addresses like tuna fisherman cast their tuna nets. Even though they may catch tons of tuna, some other animals like dolphins and turtles they didn’t mean to catch will also be caught in the net. Also, some of the tuna they caught in the net will manage to swim out before the net is pulled up.

In the same way that some people who actually committed the act will “get out of the net” and won’t have their IP address flagged, or be identified by the Plaintiffs, some people who didn’t do anything wrong will “get caught in the net” and will get improperly flagged.

Although, the Plaintiffs’ methods of collecting addresses have been questioned previously both informally and in court action, this may not help your specific situation.

They’re asking me to pay them money, and I didn’t do anything. Isn’t this unethical for a lawyer to do? Can I report them? Can I sue them back?

Although many have made a case that these mass suits are “unethical” generally, only specific conduct after the suits are filed has resulted in successful ethical challenges (see the Texas Evan Stone case). Said differently, while a number of courts are having less patience for these lawsuits, many suits have been allowed to proceed and individual names released. No matter what though, lawyers do have to follow their state bar’s ethics rules and Plaintiff actions can be subject to discipline if they violate those rules.

Am I liable for my adult children's or their friends' internet activities while they are using our internet access?

Generally, these plaintiffs will allege "direct copyright infringement" as the legal reason that you have to pay them settlement money. The person whose name is attached to the internet account (the person who will be addressed in the plaintiff's settlement letter) is the person the plaintiffs are accusing of that "direct copyright infringement." Generally, no-one else is being accused except for the person directly addressed. Direct copyright infringement requires you to actually, voluntarily download the work in question. This means that if "you" (a person who receives one of these letters) had no part in voluntarily downloading the file, then you would be completely free of liability for this claim. 
As the owner of the connection, it is arguable you could be liable for other "secondary" types of copyright infringement. BUT we think a ruling like that would be unlikely. The most likely answer is that a person who did not voluntarily download the file at issue would be free from secondary liability claims as well. 
Finally, some may argue that you still could be found liable under "negligence" since you allowed your connection to be used in an illicit way even if you did not directly download. There has been at least one case where a Northern California court found that an internet subscriber was not negligent for allowing someone to commit copyright infringement over an unsecured network.  The strong arguments against negligence, and developing case law in favor of defendants make it a difficult reason on which to base a settlement. Of course there are still practical reasons that settling could be an option, which are discussed in this guide.
Even if I'm not the one who downloaded something, can they go after my children, friends, or family who are in the same house who may have?
Yes. Even if you are not liable for any of the claims in the settlement letter, and even though someone like you could be in a very strong legal position to ignore settlement letters if you did not directly download, if you were one of the very-very small percentage of people who were actually implicated in a real law suit, you would have to cooperate in the fact finding process (called "discovery"). During discovery, you would likely have to answer questions, under oath, about who lived with you and whether there were any other people in the house who were capable of making the download. You would also likely have to answer, under oath, whether you knew the person who made the download.
After the plaintiff learns that there are other capable people in the home, it would be very easy to change the subject of the suit from you (someone who would be very difficult to win against) to one of the other people in your home who potentially could have done it (who would be easier to win against).

Once again, we want to thank the California Consumer Protection Foundation for their support, which allowed this guide to be created.

Value free legal services for internet users like you?  Support them.


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Is the gatekeeper model of information access the new normal?

Recently, Apple once again got caught rejecting an app from the online App Store. Without any other information, a single app being rejected or pulled from the store is unremarkable -- Apple rejects thousands of apps that don’t meet developer guidelines. What is significant about this one is a combination of the content of the app and the reasons it was rejected. The app in question is “Phone Story,” an education game that seeks to tell consumers the true story of the phone they’re using to play it, from the conditions in the Chinese factories where the phones are made to the amount of electronic waste generated by our fast consumer cycles.

It’s just the latest in a line of high-profile, questionable calls Apple has made regarding apps sold through their app store, which unless you jailbreak your iPhone or iOS device, is the only source for apps.

The true problem is the “Gatekeeper” model of internet and information access that is rapidly becoming the new normal. As web access gets easier and more mobile platforms take off, much of the internet is accessed through apps or other third party platforms of some sort (This is not exclusive to Apple, all smartphones have some type of app platform, although Apple’s iOS and Google’s Android are the most popular.), and this gives a remarkable amount of control to the people controlling the marketplace.

Though most prevalent with mobile apps and devices, the gatekeeper model is also present when accessing the internet via browser. Take YouTube, for instance. Easily the biggest web platform for video distribution, YouTube has extensive controls over what does and does not reach the public. Some of this is governed by partnerships with media owners who control how and where their content is re-posted, others are community guidelines enforced through a combination of user-generated reporting and content filters. Though it may not feel that way, YouTube and other widely used sites are private communities. When you sign up for an account, part of the agreement is community guidelines, which gives the business control over what you are allowed to put out through their service.

The standards for what does and what does not get through can change, sometimes on an individual basis which potentially depends on a number of factors, including public pressure. Apple has even removed or approved a number of apps after the public learned of the story. Videos on YouTube are at the mercy of users and the easily-accessible flag buttons, which are unfortunately too often presumed to be accurate reporting, and lack of a function appeals system, coupled with inaccurate reporting of why users’ content or accounts are removed from the service, leave Youtube users with little or no recourse to protest.

On the surface, gatekeepers can look like new services enabling communication with the world around us.  However, gatekeepers, whether acting deliberately, recklessly, arbitrarily, or incompetently, can pose significant hurdles to independent creators in the marketplace, who must rely on large, gatekeeper-type platforms such as the Iphone app store and YouTube to distribute their works to a broader audience.

Image: "As strong as its weakest link" by Shoveling Son shared under Creative Commons Attribution-NonCommercial-ShareAlike 2.0 license.

Blog editors: Art Neill & Shaun Spalding


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The FCC's Net Neutrality Rules: A tale of two internets

Support Net Neutrality - shared under Creative Commons BY-NC-SA 2.0 licenseThe FCC's new rules regulating Network Neutrality split the Internet. No more is it the Internet, singular; it’s the Internets, plural. Or more precisely, it’s the two Internets: The wired and the wireless. And the new rules leave the latter virtually unprotected. With the rules soon to come into affect this fall, and public interest and industry groups aligning for lawsuits, here's what the fight is all about.

What is Network Neutrality?

Network Neutrality—or more colloquially, Net Neutrality—forms the backbone of a “free and open internet." It prohibits Internet service providers from discriminating against content. For example, many Internet service providers also provide cable television. Without Net Neutrality, these companies may choke Internet connection speeds to content competing with its cable television business, such as Hulu or Netflix. Net Neutrality prohibits this. So an Internet service provider must deliver equal speeds to all content, whatever its type.

The FCC's Net Neutrality Rules

Specifically, the FCC's Net Neutrality rules adopt three tenets: Transparency, no blocking and no unreasonable discrimination. But even though one tenet is anti-discrimination, the tenets themselves discriminate based on how one accesses the Internet. They distinguish between "fixed broadband providers" (essentially meaning Internet accessed via cable or DSL) and "mobile broadband providers" (essentially meaning Internet accessed wirelessly via cellphones). This discrimination splinters the Internet. And the result: A relatively free and open Internet for those accessing by wire, but less so for those accessing wirelessly.


The transparency tenet is the only non-discriminatory tenet. It applies equally to both fixed and mobile broadband providers. This rule mandates these providers to: “[P]ublicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for [(1)] consumers to make informed choices regarding use of such services and [(2)] for content, application, service, and device providers to develop, market, and maintain Internet offerings.” More basically, this means that Internet service providers must inform consumers and developers of its service’s quality. This information includes things like connection speed and price.

No Blocking

The no blocking tenet, unlike the transparency tenet, discriminates. Separate rules govern the wired and wireless Internets. For fixed broadband providers, the rule prohibits them from “block[ing] lawful content, applications, services, or non-harmful devices, subject to reasonable network management.” And blocking includes impairing access speeds to these items if it “render[s] them effectively unusable.” So a fixed broadband provider can’t block Skype. Nor Hulu. And if you want to Skype while simultaneously streaming Parks and Recreation from Hulu, feel free. The provider can’t impair your connection because of it. But it can impair your connection if its necessary for “reasonable network management” (meaning “anything from relieving network congestion to security issues”). By contrast, the rule for mobile broadband providers is not so prohibitory. Under the rule, these providers cannot: “[(1)] [B]lock consumers from accessing lawful websites, subject to reasonable network management . . . [or (2)] block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.” Part 2 of this rule means that mobile broadband providers can’t block applications competing with its services. So Verizon can’t stop you from downloading the Skype app. Part 1’s meaning, however, is less clear. Some believe it prohibits blocking the same content listed in the rule for fixed broadband providers. But arguably, the rule for mobile providers protects far less content from being blocked. Its scope covers only “lawful websites,” whereas the rule for fixed broadband providers encompasses “content, applications, services, [and] non-harmful devices.” So implicitly, mobile broadband providers can block lawful applications, lawful services and all lawful content that's not a lawful website (a difficult distinction to make).

No Unreasonable Discrimination

The no unreasonable discrimination tenet, ironically, also discriminates. And it discriminates even more than the no blocking tenet. This tenet applies only to fixed broadband providers. So unlike the no blocking rule, the wired and wireless Internets do not have separate rules. Rather, one rule binds fixed broadband providers, and nothing binds mobile broadband providers. Meaning mobile broadband providers can discriminate. Under the rule, fixed broadband providers cannot “unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management [does] not constitute unreasonable discrimination.” This rule raises two questions. One, what is discrimination? And two, what is unreasonable discrimination? Discrimination in the context of Net Neutrality is basically any time an Internet service provider treats content differently. A specific type of discrimination, for example, is “paid priority.” This is where an Internet service provider increases access speeds to some content, which necessarily decreases access speeds to other content. It’s antithetical to an Open Internet. If that’s discrimination, what’s unreasonable discrimination? Does it include paid priority? Well, we don’t know exactly. For the most part, the FCC’s rules only establish guidelines for determining reasonableness. But the FCC hints that paid priority agreements would be unreasonable, stating that these agreements “would raise significant cause for concern.” So, to recap. Mobile broadband providers can discriminate full bore. And fixed broadband providers can also discriminate, but only reasonably.

Net Neutrality Challenges: Coming to a Court Near You

To many, these rules irreversibly harm the Internet. That’s why over eighty groups lambasted them prior to their official adoption. And that’s also why groups such as Free Press and Access Humboldt have filed lawsuits challenging the rule’s validity, claiming the rules arbitrarily discriminate between wired and wireless Internet access and thus are void. But actually proving a rule void as arbitrary isn’t easy. The standard of review is highly deferential to the FCC’s rule. And as the Supreme Court recently reiterated in Federal Communication Commission v. Fox Television Stations, the standard is “narrow,” and a court cannot “substitute its judgment for that of the agency.” So basically, if the FCC can provide a reason to treat wired and wireless Internet differently, a court may be unlikely to find that the FCC acted arbitrarily. But open Internet groups aren’t the only ones dissatisfied with the rule; Internet access providers are as well. They believe the FCC’s rules exceed their “limited jurisdiction over cyberspace . . . .” And Verizon will almost certainly file a lawsuit challenging the rule on those grounds.

One Is Better than None

Yes, the FCC’s new rules splinter the Internet into two. But the rules do further an open—albeit, splintered—Internet. Though an open Internet in entirety would be ideal, an open fixed broadband Internet is "a step forward."

Blog Editor: Art Neill

"WWIII Propaganda: Support Net Neutrality" by Brian Lane Winfield Moore shared under a Creative Commons Attribution-Noncommercial-ShareAlike 2.0 license


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Cloud Music Services Defend Their Right to Exist Against Record Labels

MP3tunes decision - Screenshot of homepage

Last month, supporters of cloud music services had a victory when prevailed over EMI Group Ltd. in a lawsuit. The U.S. District Court of the Southern District of New York found that these sound cloud services are not directly liable for copyright infringing uses and did not need to conduct independent investigations into whether the legitimate copyright owner uploaded the song or not.

Portions of the decision favored EMI. The court found that was contributorily liable for not immediately taking down songs uploaded to the service that the copyright owner provided notice of infringement through the Digital Millenium Copyright Act. In order to maintain  DMCA safe harbor protection, the court reiterated the fact that “must adopt, reasonably implement and inform subscribers of a policy providing that it may, in appropriate circumstances, terminate the accounts of repeat infringers.” is a reminder that services that simply provide a venue for individuals to store information cannot be held liable for the the users’ infringing actions if they register and implement the DMCA, responding quickly to DMCA notices where the service provider is given notice of alleged infringment.

Spotify sound cloud service - Screenshot of homepage

So how does this decision impact artists and consumers?

One of the biggest concerns of musicians today is how they can monetize their music. The different revenue streams that artists tap into are: selling records, licensing songs, touring, and selling merchandise. Since the debut of Napster in 1999, many artists across the board are finding that selling records the traditional way is not a reliable revenue source.

Consumers are also on their own quest for finding a variety of music at a low-cost. Peer-to-peer downloading services capitalized on this, but it came with a price via the threat of lawsuits for illegally procuring copyrighted work. Enter the new model of sound cloud technology: users can download an application to their computer and upload their own libraries while browsing a larger catalog of uploaded music. Each account is accessible by password, so an user can retrieve their music locker on various computers. The sound clouds are either free with minimal commercials or one can upgrade to a paid account which provides more services.

With’s recent success in the courtroom, other sound cloud websites like Grooveshark are now able to maintain the integrity of their business model without fear of litigation.

Overseas services like Spotify recently expanded in the United States adding to competition in this space, and consumers are quickly signing up to create their own playlists. Playlists include a combination of music in an user’s own locker and music that can be streamed via a search of other users’ lockers. Users can view the playlists of their facebook friends, as well.

While a listener has many artists to choose from, not every artist or song can be found on the website due to resistance by the record label or the copyright owner. As time goes on and the music industry realizes that these services are going to go away,  artists and record lables have begun to investigate how to take advantage of these services. Spotify pays royalties every time a song is played, by reporting the metadata (encrypted information about the song and artist) to record labels and artist aggregators (for unsigned artists). If metadata is incorrect, an artist can notify their record label or artist aggregator to have the information changed, or the software Gracenote will identify and rename the files via music fingerprinting technology. Sound cloud websites have taken notice of newer artists’ concern for promotion; at this time, promotional tools are still in development but they encourage artists to tell fans of their sound cloud involvement.

The citation for this case is Capital Records Inc et al v. MP3tunes LLC et al, U.S. District Court, Southern District of New York, No. 07-09931. A PDF of this most-recent 2011 decision is attached at the bottom of this post.

Photo credit:
MP3tunes Screenshot by googlisti
Spotify screenshot by Dekuwa

EMI+MP3Tunes.pdf1.23 MB


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September Newsletter: Success stories, challenging AT&T, and Blogworld 2011

New Media Rights has been busy! Here's what we have been up to...

New Media Rights' Successfully Defeats Another Improper Content Takedown

Improper content takedowns that abuse the DMCA laws happen everyday. Few resources are available to help individuals understand these abuses. Even fewer resources are available that take these individuals step-by-step through the process of getting their content restored. Recently, New Media Rights succeeded getting Michael Petrelis' political blog back online. You can read his story here.

Mr. Petrelis is just one example of the hundreds of individuals who rely on New Media Rights daily.  If you've received a DMCA takedown, or if you've been told to remove your photos, video, or other content from the web, contact New Media Rights at 619-591-8870 and we can take you step-by-step through the process of getting your content restored.


New Media Rights receives grant from the California Consumer Protection Foundation

New Media Rights is thrilled to announce that our advocacy efforts have been generously funded with a $50,000 grant from the California Consumer Protection FoundationWe need innovative foundations like the the California Consumer Protection Foundation and organizations like New Media Rights to take a leadership role now to ensure that the growing demand for advocacy services for digital creators is met.


New Media Rights Submits Comments to CPUC Discouraging AT&T Merger

New Media Rights and its affiliates Utility Consumers' Action Network and Privacy Rights Clearinghouse recently filed Reply Comments to the California Public Utilities Commission's  investigation into the AT&T/T-mobile merger.  After reviewing the evidence, we're more convinced than ever that the CPUC should recommend denial of the merger.

We make four recommendations in our comments that you can read a summary of here. You can also read the entire text of our comments here.

The fight against the merger recently got more heated. At the end of August, the Justice Department filed suit to block the merger because of "anti-competitive concerns." Just like NMR, the Justice Department argues the merger would "remove a significant competitive force" in the majority of the top 100 U.S. wireless markets.

NMR Will Be Presenting at the Media Law in the Digital Age Conference in October

NMR will be at the Media Law in the Digital Age conference on October 22nd at Kennesaw State University in Atlanta, GA. The event will start at 8:30AM with sessions all day until 5:00PM

Executive director Art Neill will be on the panel "Apps and Wireless: New Platforms for Online Content Providers and Journalists." He'll be discussing potential legal risks for entrepreneurs who use geolocation data to tailor their content as well as the general legal issues surrounding mobile content distribution.

We were graciously invited to participate by the co-producers of the event, the Citizen Media Law Project at Harvard University’s Berkman Center and Kennesaw State’s Center for Sustainable Journalism.


NMR Will Be Exhibiting at Blogworld in Los Angeles in November

NMR will be exhibiting at the BlogWorld convention on Friday, Nov. 4th and Saturday, Nov. 5th at the Los Angeles Convention Center. We were able to give a lot of great one-to-one assistance at our booth last year, and hope that the demand is even higher this year. For attendees who'd like to schedule a time to get into contact with us, drop us a line at For members of the press who want to meet up with us but don't have passes, free press registration is still open.


Ways to get involved with NMR without getting out of your chair!

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4. Suggest new resources, projects, and advocacy efforts for us to participate in by using our contact us form


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New Media Rights files Reply Comments in the AT&T - T-mobile merger review at the California Public Utiltities Commission

New Media Rights and its affiliates Utility Consumers' Action Network and Privacy Rights Clearinghouse filed Reply Comments to the California Public Utilities Commission investigation into the AT&T - T-mobile merger.  After attending the innovation and consumer workshops, and reading a mountain of additional paperwork, we're more convinced than ever that the CPUC should recommend denial of the merger.

We talk about specific reasons why the Commission should recommend denial of the merger at the FCC, and also suggest that in the event the Commission does choose to recommend to the FCC to approve with the merger, some significant conditions should be placed on the merger by California to hold AT&T to its promises.  These conditions include

  • The Commission should recommend to the Federal Communications Commission that all of the conditions placed on the C-Block, effectively now of Verizon Wireless’ LTE Network, should also be placed on AT&T’s LTE Network to ensure consumers have at a minimum the same openaccess options available to them between their two LTE options.

New Media Rights also strongly encouraged the Commission to require AT&T to fulfill the four recommendations of Professor Susan Crawford as a condition of or subsequent to the merger. Professor Crawford in her written statement presented the following four ideas

  • (1) require that free highest speed-possible wireless access be provided in perpetuity throughout California’s major cities,
  • (2) require AT&T to use some of the ample fiber it controls to wire anchor institutions and open those connections on standard, reasonable terms to anyone who asks,
  • (3) enlist AT&T’s concrete aid in the building of community-owned fiber networks throughout California, and
  • (4) require that AT&T permit accredited audits of its network performance.

New Media Rights believes that requiring these conditions would not only meet the regulatory duties of the California Public Utilities Commission, but it would help address the mandate of the California Broadband Council, in which the CPUC participates, which is to ensure broadband access and digital literacy across California.

"Fail Marks the Spot" by Gumption under Creative Commons Attribution Non-Commercial ShareAlike 2.0

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New Media Rights protects another blogger from censorship and DMCA abuse

New Media Rights recently protected blogger Michael Petrelis' speech and commentary regarding another blogger who pretended to be a gay Syrian woman living in Damascus. His story reminds us that we have the right to criticize and comment on the culture that surrounds us.

Mr. Petrelis is just one example of the hundreds of individuals who rely on New Media Rights daily.  If you have received a DMCA takedown, or are being told to remove your photos, video, or other content from the web, contact New Media Rights at 619-591-8870 and we will try to help you.

From the Petrelis Files:

"...the Harvard guys [Citizen Media Law Project] put me in touch with Art Neill, the executive director of New Media Rights a valuable resource for keeping the web open and free of censorship, answering questions about the law and technology, and helping little guys like me who receive chilling notes from web giants alleging copyright violations.

Art Neill patiently gave me practical advice about counter-complaining to Google, while also educating me on the application and challenges to DMCA. I shared with Art emails and dashboard warning from Google, to familiarize him with my case. He was a kindred soul showing me how to deal with Google to restore my original post with no changes.

I filed a counter-complaint, then had to wait about two-weeks for McMaster to either file a lawsuit against me (ugh), and if he took no such legal action, then Google was required to full restore my post using the quote from McMaster.

While this scenario played out, Google forced my post into draft mode, effectively censoring the post until the matter was resolved.

Late last week, Google dropped this fabulous note into my in-box from their Blogger Team:

In accordance with the DMCA, we have completed processing your counter notification and we have reinstated the content in question on

This post has been restored in draft version. You will need to sign into your account and republish it. Please let us know if we can assist you further.

I am pleased to say my post is restored, and wish to publicly acknowledge the support and assistance from Minal, Jeff and Arthur, and especially Art Neill and his great New Media Rights project. Navigating the Google rules for alleged DMCA violations was made so much easier and less stressful thanks to the people and services of New Media Rights.

Support this incredible resource in their battles to keep the web open and full of free expression!

This testimonial does not constitute a guarantee,warranty, or prediction regarding the outcome of your legal matter.


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Welcome to our newest advocate, Shaun Spalding

Please join me in welcoming our newest Advocate, Shaun Spalding, to the New Media Rights team.

Shaun has a video production and creative background to go with his legal skills, which he has contributed already as a Legal Intern with New Media Rights.

He is a recent graduate of California Western School of Law with a passion for internet and intellectual property law. We are thrilled to have Shaun on the team helping us provide assistance to the hundreds of internet users and creators that rely on New Media Rights for assistance.

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New Media Rights files comments with CPUC on AT&T T-Mobile merger

New Media Rights, Privacy Rights Clearinghouse and UCAN have submitted comments to the CPUC on the proposed AT&T and T- Mobile merger. All three groups feel that this merger would have serious effects on consumer protection- including prices and choice of carriers, telecom jobs, innovation, broadband access and network discrimination.

The CPUC investigation of the merger is a great opportunity for YOU to get involved by attending California public hearings and workshops to speak up about how this merger would effect you. To better understand it's implications on your phone bill, local and national media landscape, as well as jobs in your community, we will be publishing our simple Merger Factsheet next week.


Here are the TABLE OF CONTENTS for the attached document:

I.    Introduction. 1

II.   Reduced Competition Will Lead to More Gatekeeping and Less Innovation. 2

A.   AT&T uses its gatekeeping role to stifle innovations in voice telephony and control the way consumers access the internet 2

B.   AT&T enables its partners to control the way consumers access the internet 3

C.   AT&T’s broader history of censoring speech and use of its network. 5

D.   AT&T’s past spectrum bids illustrate an unwillingness to embrace innovation and openness. 5

E.   The effects of increasing AT&T’s power as a gatekeeper by granting this merger. 6

F.    T-mobile’s role in encouraging competition by openness to innovation. 7

G.   The effect on consumers who rely solely on wireless broadband. 8

III.  The Impact on Consumers: Reduced Service Offerings, Price Competition, and Customer Service Quality  10

A.  Prices and Services. 11

B.  Carrier Practices. 13

IV.  Market Dominance and the Harms of Duopoly. 20

A.   The emerging duopoly and the U.S. experience with over-concentrated markets. 20

B.   Mexico as an example of the high prices and stagnation that arises from market over-concentration  21

C.   The United Kingdom and other countries as examples of the benefits of competition. 22

V.   Consumer Privacy. 23

VI.  Conclusion. 23

NMR Opening Comments to Merger.pdf301.89 KB

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