Aurous Shut Down, Marketing by Lawsuit gets TKO

Several record companies have settled a lawsuit against both an app named “Aurous” (the “Popcorn Time” of recorded music) and the app’s developer Andrew Samson.  MTP readers will remember the Silicon Valley technique of “marketing by lawsuit”–this program requires investors and developers backing a technology they know to be infringing and then praying to get sued to market their infringing product.  It looks to me like that’s exactly what the plan was at Aurous.

Aurous is not your garden variety copyright infringement lawsuit for a number of reasons: the artist backlash against Aurous, Mr. Samson’s violation of the Court’s injunction and Aurous’s mistaken reliance on Lessigisms.

Once Mr. Samson got sued–a lawsuit he possibly perceived as manna from marketing heaven–Aurous (and I think Mr. Samson himself) started a Twitter campaign trying to stir up anti label sentiment amongst the Twitterers.  He of course utilized the Lessig-esque memes that once worked against Metallica as part of the coordinated litigation PR campaign in 1999. What he evidently didn’t count on was the negative reaction on Twitter from artists who were not part of the lawsuit, many of whom used the #irespectmusic hashtag.

The artist backlash was immediate and unmistakably negative toward Aurous, principally for one reason.  Aurous appeared to have been designed to facilitate piracy and the artists and songwriters were sick and tired of being sick and tired of these people who profit from the human misery they create.  So Mr. Samson’s distinctly 1999-era rhetoric went nowhere fast.

Then there was the contempt of court part.  The labels requested a restraining order against Aurous which was granted.  That restraining order prohibited, among other things, the distribution of the Aurous software and source code.  Aurous’s source code appeared on a public website which is the old trick to allow “others” to continue to fight the good fight by making the pirate software open source–because, you know, information wants to be free.  This gets tricky when you have an injunction from a U.S. court prohibiting you from distributing that source code and like Mr. Samson, you live in the United States–within the jurisdiction of the Court.  There’s a reason Kim Dotcom headquartered in Hong Kong.

Purposely ignoring the judicial powers of the nation state can land you in the…whatchamacalit…jail…for contempt of court.  But we should not be surprised that Mr. Samson thought he could safely ignore the court order.  Ignoring the law is the bread and butter of Internet culture.  As former Obama White House aide Susan Crawford tells us:

I was brought up and trained in the Internet Age by people who really believed that nation states were on the verge of crumbling…and we could geek around it.  We could avoid it.  These people were irrelevant.

Only if you don’t mind having the irrelevant marshals drag your irrelevant ass to the highly relevant pokey.  So Mr. Samson’s adherence to the conventional wisdom got him nowhere.

And speaking of the conventional wisdom, remember Lessig’s hectoring about “criminalizing” the “kids” who “remix”?  Or on the Colbert Report: “[O]ur kids have been turned into criminals.”  Mr. Samson remixed the Lessig script according to a quote on Torrentfreak–after he caved:

I implore Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood.

Mr. Samson’s problem isn’t that “teenagers and students” were being prosecuted.  Mr. Samson’s problem is that he was being prosecuted and prosecuted for his own misdeeds.

The elephant in the room is the judge.  The record suggests that the judge in the Aurous case wasn’t really having much of what Mr. Samson was serving, which isn’t surprising.  If there’s one thing that judges, especially federal judges, do not like one little bit is being bullshitted.  Particularly by a defendant who ignores the court’s orders.

When you stack the Aurous case alongside the BMG Rights v. Cox Communications case, it’s starting to look like federal judges have had about enough of those who are playing silly with the DMCA.  This doesn’t appear to be lost on Mr. Samson who told Torrentfreak:

My only fear is that this lawsuit opens up other websites and services to attack.

Between the ruling against Cox Communications denying them use of the ISP safe harbor and the Aurous permanent injunction, who knows.  This may be a trend.