ArtsWatch: DOJ, FBI Team For Botnet Smackdown

Government cyber enforcement gets "creative" to defeat massive malware
April 18, 2011 -- 7:34 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On April 13 the Department of Justice and FBI announced comprehensive tactics used to disable the Coreflood botnet — malicious software experts believe has victimized more than 2 million Windows computers over the last decade, recording users' activity and enabling identity theft, including online banking fraud. Shawn Henry, executive assistant director of the FBI's criminal, cyber, response and services branch said, "These actions to mitigate the threat posed by the Coreflood botnet are the first of their kind in the United States and reflect our commitment to being creative and proactive in making the Internet more secure." In the context of recent hearings regarding rogue websites, the actions — including 29 domain name seizures — illustrate how effective enforcement authorities can be online, even without new powers such as those being considered to crack down on rogue websites. Other actions included a multicount civil complaint, search warrants that led to the seizure of five command-and-control computer servers, and a temporary restraining order allowing agents to temporarily neutralize installed copies of Coreflood when infected computers signal the servers. Private sector cooperation is being provided by Internet Systems Consortium, which will operate a substitute command-and-control server temporarily disabling copies of Coreflood, and Microsoft, which is updating its malicious software removal tool to target the malware specifically. These tactics cannot be expected to eliminate Coreflood from the Internet but they illustrate enforcement authorities' growing ability to extend their traditional role into cyberspace.

Republicans in the House of Representatives led passage of H.J. Res. 37 on April 8, voting to nullify the Federal Communications Commission's Net neutrality and open Internet regulations. Six Democrats backed the resolution, leading to a 240–179 vote. The bill is expected to fail in the Senate. Separately, on April 4 the District of Columbia Circuit's U.S. Court of Appeals rejected lawsuits brought by Verizon and MetroPCS in January claiming the Net neutrality rules exceeded the FCC's authority. The court supported the agency's position that the lawsuits were premature because the regulations have not yet been published in the Federal Register. The FCC's claimed authority to regulate Internet transmissions is unlikely to be specifically granted by this Congress and could eventually be struck down in a drawn-out legal battle long after the rules are finally published.

Former Florida Governor Charlie Crist took to YouTube to apologize to David Byrne as part of the terms of their settlement over Crist's unauthorized use of the Talking Heads' "Road To Nowhere" in an Internet ad campaign that was posted on websites and emailed during his failed senate bid in Florida in 2010. Financial terms of the settlement were not disclosed. "My hope is that by standing up to this practice maybe it can be made to be a less common option, or better yet an option that is never taken in the future," said Byrne. Other artists taking a similar stance in recent years include Jackson Browne and Don Henley. As the 2012 campaign trail begins to heat up, hopefully candidates will show greater awareness that popular songs used in their ads must be licensed.

The controversies between streaming services and content owners covered by ArtsWatch earlier this month have seen further developments.

  • Amazon reiterated its belief that no license is required for its cloud-based locker service in a letter sent to record labels on April 11. Amazon is reportedly holding talks with the labels about licensing expanded features for the service and was separately contacted by the National Music Publishers' Association with a request for more information about both the service and Amazon's claims of legal support for it.
  • On the separate front of iPad video apps, Time Warner Cable filed a lawsuit on April 7 against Viacom in the Southern District of New York's U.S. District Court seeking a declaratory judgment that its home-based WiFi delivery of cable programs is covered under existing agreements to distribute home video programming. Viacom filed a request for injunction against TWC's app that same day. Meanwhile, TWC removed Viacom's content from its app — as well as content objected to by Discovery and News Corp. — and added dozens of new channels.
  • Cablevision launched a home iPad app of its own and has been notified by Viacom of the programmer's objection that the service is unauthorized.

As the copyright damages trial approaches in May for the litigation between the RIAA and file-sharing service LimeWire, on April 4 U.S. District Court Judge Kimba Wood ruled in the former's favor, ordering that individual songs — not albums — count as separate creative works for the purpose of calculating damages. In the related settlement announced last month between LimeWire and the NMPA, Digital Music News reported the financial amount agreed to was $11 million. The RIAA is seeking a much larger figure for the 9,715 works it has listed as infringed on by LimeWire.

Colorado District Court Judge John Kane is now presiding over dozens of the Righthaven law firm's infringement cases, which were filed on behalf of infringed newspapers. In rulings handed down April 10–11, the judge seemed irritated by the firm's mass litigation model. "Plaintiff's wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from defendants cowed by the potential costs of litigation and liability," said Kane. Observers estimate that Righthaven has recovered more than $400,000 in settlement damages so far.


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