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
Written by: James Delahunty @ 21 Apr 2005 20:37
