Congressional Subcommittee Begins “Comprehensive Copyright Review”

Posted on May 17, 2013 by admin

This week, the Intellectual Property and the Internet Subcommittee of the House Committee on the Judiciary began its “comprehensive review” of U.S. copyright law, kicking things off with a hearing that included testimony from a handful of legal scholars and attorneys whose views on copyright are quite divergent.

Witnesses for the subcommittee’s first hearing included Jon Baumgarten, former General Counsel of the U.S. Copyright Office; Laura Gasaway, of the University of North Carolina Law School; Daniel Gervais, the Director of the Vanderbilt Law School Intellectual Property Program; Pam Samuelson of the University of California at Berkeley Law School, and leader of the Copyright Principles Project; and Jule Sigall the Assistant General Counsel for Copyright at Microsoft, and former Associate Register for Policy and International Affairs of the U.S. Copyright Office.

Sigal reportedly recommended that Congress consider creating a “safe harbor” for consumers similar to the safe harbor provisions found under Section 512 of the DMCA, saying that Congress should contemplate legal protections to make clear that “ordinary and reasonable personal use of legitimately purchased content will be enabled, not stifled, by copyright.

“I’m not talking about piracy here, but situations in which consumers who have legitimately purchased content are confronted and confused by assertions that actions enabling the enjoyment of that content are somehow infringing,” Sigal said.

Samuelson concurred, saying that crafting such a safe harbor should be among Congress’ top priorities as it considers copyright reform.

Baumgarten, on the other hand, wondered aloud whether the concerns of consumers aren’t already too dominant in the conversation about potential copyright reforms.

“The copyright debates today and search for changes are too often driven by those enthused by the promise of new technology…. that anything standing in the way is to be simply tossed aside in favor of permitting it to happen,” Baumgarten said.

Baumgarten’s concern was echoed by at least one subcommittee member, Rep. Mel Watt (D-NC), who said that in recent years, “there has been a shift in the public discourse about copyright away from the people who actually devote their talent to create works for the benefit of society, and those who invest in them, toward the users of works and the financial interests of those companies eager to commercially exploit them.”

“Free speech does not mean free stuff,” Watt added, expressing a sentiment that I guarantee you is shared by DMCA Force clients for whom we perform DMCA takedown services.

I’ve read over the recommendations made by the Copyright Principles Project in its “Directions for Reform” report and found them to be mostly sensible. My only concern is similar to the one expressed by Baumgarten at the hearing: the CPP might be recommending a bit too much relaxing of the rules in some areas with respect to consumer use of copyrighted materials.

Having said that, the report is really very balanced, and includes a number of recommendations that I think will sit well with a lot of rights-holders. I’ve highlighted a couple of these recommendations below, but for the context and details of the suggestions, I highly recommend reading the report for yourself. I’ve left the recommendation numbers intact below, so you will be able to easily find the explanatory text relating to each recommendation within the report.

Several of the CPP’s more appealing recommendations — from my perspective, at least:

Recommendation #1: Copyright law should encourage copyright owners to register their works so that better information will be available as to who claims copyright ownership in which works.

Recommendation #4: The Copyright Office should give serious consideration to developing some mechanism(s) through which users could receive guidance on “fair use.”

Recommendation #5: A small claims procedure should be available for resolving small-scale copyright disputes. (Note: the CPP isn’t the only group that likes this idea….)

Recommendation #7: Copyright owners should have the exclusive right to control communications of their protected works to the public, whether by transmission or otherwise.

Recommendation #16: More elements in copyrighted works than just ideas and information should be excluded from the scope of copyright’s protection for original works of authorship.

Recommendation #17: Copyright law should recognize that there are more fair use purposes than is recognized in the current statute.

Recommendation #20: Limitations and exceptions to copyright law ought to be based on principles, rather than being largely the product of successful lobbying.

Recommendation #25: Serious consideration should be given to extending to authors of works, other than those made for hire, a right to be identified as authors of their works.

More Stuff You Probably Shouldn’t Do as a DMCA Takedown Service Provider

Posted on May 15, 2013 by admin

On several occasions now, this blog has addressed things that one shouldn’t do as a DMCA takedown service provider, like place too much faith in DMCA takedown automation or issue a DMCA takedown notice in response to use of copyrighted material that is pretty likely to be deemed ‘fair use.’

Today, news has broken that brings us to another thing you really shouldn’t do as a provider of DMCA takedown services: make unauthorized use of copyrighted images on your company’s website.

As related on Vice.com, a DMCA takedown service provider that represents at least one fairly major rights-holder was recently shown to have used copyrighted images without seeking the permission of the rights-holders to those images. To say the least, this sort of hypocrisy — intentional or otherwise — sends a bad message to prospective clients, as well as to the general public, once it comes to light.

While the company involved notes that they relied on a third-party web designer to create their site, the developer purchased the images from an “image bank,” and the company was unaware prior to the Vice article that there was any issue with the images, when you offer intellectual property services, you are rightfully held to a higher standard with respect to assuring that your own sites, designs, products, etc, are compliant with intellectual property law.

Mistakes happen, and certainly this shouldn’t be a fatal mistake for the company involved. On the other hand, problems of this sort stemming from design work are pretty well-known among web companies and designers alike, and it’s hard to explain why a company that offers intellectual property rights enforcement services wouldn’t be more attentive to the need for due diligence here.

When notified of the problem, the company reportedly removed the offending images quite quickly, which is a good start. What they haven’t followed through on, at least as of the time of this post, is the promise to provide the rights-holders with the name of the designer and image bank involved, but that information could still be forthcoming.

I’m not sure this incident reveals the sort of mind-bending hypocrisy that the company in question is being accused of in some of the reader comments I’ve perused, but it’s definitely embarrassing, and cause for more than a little uncomfortably bad press.

Pirate Party Rep: Artists Don’t Have “the Right to Get Money”

Posted on May 13, 2013 by admin

I suppose it should come as no surprise that Amelia Andersdotter, a member of Sweden’s Pirate Party and the youngest member of the European Parliament, is hostile to the very idea of a music industry, but comments attributed to her yesterday by The Independent still made my jaw drop a bit.

On a visit to England to take part in a debate on media piracy, “Ms. Andersdotter said musicians and film-makers had no right to charge people for downloading their work for non-commercial use, and the public should be allowed to interact with it for free,” according to The Independent’s Ian Burrell.

“You don’t have the right to get money,” Andersdotter said. “If your idea was commercially uninteresting then maybe you need another idea.”

Here’s a thought, Ms. Andersdotter; if a musician or artist’s idea is that “uninteresting” to you, perhaps you could not download it in the first place?

It’s a wacky thought, I know, but to some of us, it doesn’t make a whole lot of sense that a song could be worth your time to listen to, worth the space it takes up on your hard drive (or in the space taken up in “the cloud,” if that’s how you roll), worth the time it takes you to listen to it (perhaps repeatedly)… but, somehow, not worth a buck or two.

I’m open to the idea of copyright reform that would create lesser penalties for non-commercial file sharing. I’m open to the idea that many individual pirates are also major purchasers of music and other copyrighted works. I’m open to a lot of things that many people might not expect from someone who works at a company that provides DMCA takedown services, and who makes his living by helping rights-holders enforce their copyrights.

What I’m not open to, and will never be open to, is the idea that what a musician or artist does isn’t worthy of compensation. Yes, close-minded brute that I am, I’m absolutely closed to the notion that musicians, artists, authors and other creators of copyrighted works should have to rely on some limited, watered-down version of the revenue streams available to them, simply because a lump of consumers have unilaterally decided that entertainment is simply information, and that “information wants to be free.”

While we’re on the subject of money, it might be worth noting that as a member of the European Parliament, Andersdotter earns around 7,500 Euro a month (roughly $10,300 in U.S. Dollars).

So let me get this straight; musicians have no “right to get money,” but politicians do, even if their own party’s whole reason for existence flows from the enforcement of intellectual property rights? After all, if copyright and other bodies of IP law were to be abolished tomorrow, what possible relevance could a “pirate party” have then?

A Different Sort of Copyright Theft

Posted on May 6, 2013 by admin

Normally on this blog, when we talk about copyright infringement or intellectual property theft, the perpetrators are people generally unknown to the rights-holder — for-profit pirates operating from parts unknown, file-sharing web users, and the like. After all, our business is in DMCA takedown services, so it makes sense for our focus to be squarely on that manner of infringement.

Over the weekend, a story broke about a different (and far more literal) form of copyright theft: To Kill a Mockingbird author Harper Lee has filed a lawsuit against her literary agent, Samuel Pinkus (the son-in-law of Lee’s ailing long-time agent, Eugene Winick), alleging that Pinkus duped Lee into signing away her copyright to the book back in 2007.

Here is how Reuters describes the facts that led to the lawsuit being filed:

“When Winick became ill in 2002, Pinkus diverted several of Winick’s clients to his own company….Pinkus in 2007 “engaged in a scheme to dupe” the then 80-year-old Lee into assigning her To Kill a Mockingbird copyright without any payment…. Pinkus engineered the transfer of Lee’s rights to secure himself “irrevocable” interest in the income derived from her book and to avoid paying legal obligations he owed to his father-in-law’s company for royalties that Pinkus allegedly misappropriated [according to the lawsuit].”

If Lee’s claims about Pinkus are true, then Pinkus is vermin of the worst sort. Taking financial advantage of an elderly person, particularly one who suffers from eyesight and hearing problems of the sort that makes it hard for them to know when they are being played, isn’t just wrong, it’s despicable. When you’re a person who is supposed to be helping that same elderly person for a living, it just makes the scam all the more cruel.

Pinkus has not responded to Lee’s claims yet, either in the media or in court, so it remains to be seen what his side of the story is. Given the nature of the work at issue, one sure hopes that the real-life triers of fact in this situation come to a more sound conclusion than did the jury who heard Tom Robinson’s case….

Of Cats and Copyright; Warner Bros Sued by Meme Makers

Posted on May 3, 2013 by admin

Warner Brothers, no stranger to intellectual property litigation, now finds itself on the defendant’s side of the table of a trademark lawsuit filed by… (wait for it…) the creators of the Keyboard Cat and Nyan Cat memes.

Seriously…. I’m not kidding.

Actually, while the idea might seem odd on its face, it sounds like at least one of the two creators might have a case.

The infringement alleged in the case comes in the context of Scribblenauts, a game pubished by Warner’s gaming division, WB Games, and authored in conjunction with developer 5th Cell.

In the complaint, the plaintiffs (Charles L. Schmidt, creator of Keyboard Cat, and Christopher Torres, creator of Nyan Cat), note that the popularity of the memes “makes them extremely valuable for commercial uses,” adding that, unlike WB and 5th Cell, “many other companies, respecting plaintiffs’ intellectual property rights, regularly pay substantial license fees to use plaintiffs’ memes commercially.”

According to intellectual property attorney Milord Keshishian, Schmidt might have a tough time obtaining statutory damages, enhancement of damages and attorney fees, in light of the fact that the claimed infringement took place in 2009, but the copyright on Keyboard Cat was not registered until 2010.

Where’s a facepalm gif when I need one?

Reforming Copyright: Where’s the Balance?

Posted on April 26, 2013 by admin

Over on Ars Technica today, Timothy Lee has published an interesting piece called “Five ways Congress should improve the copyright system,” and while I’m not in complete agreement with the measures Lee suggests, I find them fairly reasonable, overall.

Lee hits some familiar notes; current statutory damages for copyright violation are excessive, copyright terms are too long, etc. Again, for the most part, I agree with him on those points. What I take exception to, though, is the lack of balance in these suggestions.

Is there no room for improving rights-holders’ lot in life in the process of copyright reform? Does the onerous cost of copyright litigation only negatively impact defendants? Is there really no means by which the middlemen in the equation — the websites, cyberlockers, search engines, hosting companies and other “Internet Service Providers” — can begin to shoulder some of the burden for preventing the illegal dissemination of pirated materials over their sites and/or networks?

The primary complaint that we hear from rights-holders here at DMCA Force (and that we have as rights-holders; several employees of DMCA Force have published works of their own) about the current state of affairs with online piracy is that the onus for combating piracy falls entirely on them. The rights-holder is the one who has to find his/her work being infringed upon on the web; the rights-holder is the one who has to send out the DMCA take-down notice (or pay for someone like us to do it on their behalf); the rights-holder is the one who has to incur the expense of filing a lawsuit to enforce his or her rights – and so on and so forth.

If copyright is ever to be reformed, perhaps as part of an upcoming “comprehensive review” of copyright soon to be undertaken by the House Judiciary Committee, there needs to be some balance in the mix.

So-called “copyright maximalists” need to acknowledge that certain facets of the law are outdated, that there is a big difference between commercial copyright infringement and noncommercial p2p file-sharing, and at least entertain the notion of dialing back the term of copyrights somewhat.

On the other side of the aisle, those who would take a chisel to existing intellectual property law need to accept that some measure of legal consequence for things like file-sharing is going to remain in place, even in the Internet Age, and rather than arguing for the abolition of copyright damages (or for the abolition of copyright itself, as some do) argue instead for penalties that strike them as more reasonable and measured.

By combining the suggestions of people like Lee with those of groups like the American Photographic Artists, who have proposed the establishment of a small claims court of sorts for copyright offenses, we might be able to get somewhere on this issue, some sort of middle ground that rights-holders, tech companies and consumers can all live with.

If the extreme sides of the debate stubbornly stick to their ‘no compromises’ rhetoric, on the other hand, we’re just going to continue to go in circles, and ending up right back where we started: angry, frustrated, and seriously at-odds with each other.

Court: Grooveshark Not Protected by DMCA Safe Harbor on Pre-1972 Recordings

Posted on April 24, 2013 by admin

In a decision handed down yesterday, a five-judge panel from the New York Supreme Court held that the ‘safe harbor’ provisions of the Digital Millenium Copyright Act do not shield Grooveshark from liability with respect to sound recordings created prior to February 15, 1972.

Complete Music Update provides a pretty good summary of the how the case reached this point in the process, so rather than rehash that narrative, I’d like to focus on a few specific passages from the appellate court’s decision.

One of the fundamental disconnects between Grooveshark’s position and that of judicial panel is the question of whether there is any “tension” between the DMCA and section 301(c) of the Copyright Act; Grooveshark maintains that there is no such tension, and the court…. well, the court disagrees, to put it lightly.

“Initially, it is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act,” the court wrote in its decision. “Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG’s rights, and an implicit modification of the plain language of section 301(c). The word “limit” in 301(c) is unqualified, so defendant’s argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act.”

The court also didn’t cotton to Grooveshark’s assertion that if the DMCA is deemed to not apply to pre-1972 recordings that “the very purpose of the DMCA will be thwarted.”

“The statutory language at issue involves two equally clear and compelling Congressional priorities: to promote the existence of intellectual property on the Internet, and to insulate pre-1972 sound recordings from federal regulation,” the court wrote. “As stated above, it is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works. In any event, defendant’s concerns about interpreting the statutes in the manner advocated by UMG are no more compelling than UMG’s concerns about interpreting the statutes in the manner advanced by defendant. Under such circumstances, it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.”

Grooveshark has said it intends to appeal the decision, and there’s no question that other courts examining the same questions have come to different conclusions (including, notably, the court that heard Capitol Records v. MP3tunes in 2011), but the decision is definitely a setback for Grooveshark, which is reportedly hurting financially, according to its co-founder, Sam Tarantino.

The Perils of DMCA Take Down Notice Automation, Yet AGAIN?

Posted on April 22, 2013 by admin

I’ve previously addressed, a few times now, the problem with relying too much on automated systems to identify infringing files that are then targeted with DMCA take-down notices. The latest widely-reported incident of this kind is even more unfortunate in some ways, because the victim of the unwarranted take-down notice also happens to be a fairly vocal critic of the DMCA: author, blogger and activist Cory Doctorow.

The issue is pretty simple; in an effort to remove files (and links to those files) that infringe on its popular TV Show Homeland, 20th Century Fox also mistakenly issued take-down notices relating to Doctorow’s novel of the same name.

As you can imagine, Doctorow is less than thrilled by this development. While he accepts that it was done by mistake, he’s still flummoxed by that error, and understandably so.

“It’s clear that Fox is mistaking these files for episodes of the TV show ‘Homeland,’ Doctorow wrote. “What’s not clear is why or how anyone sending a censorship request could be so sloppy, careless and indifferent to the rights of others that they could get it so utterly wrong.”

I’m a bit more sympathetic than is Doctorow where mistakes like this are concerned, mostly because I reserve most of my sympathy where piracy is concerned for the rights-holders whose work is being shared willy-nilly by large numbers of people who show the copyrights owned by those rights-holders no regard whatsoever.

When you deal with thousands of infringements at a time, which I’m sure Fox is with respect to Homeland, it quickly becomes unfeasible to review each possible infringement individually, so you create programmatic short cuts designed to reduce the “leg work,” so to speak.

In the case of DMCA Force, we use our content spiders look at file names, link text and descriptive text that might accompany the files, among other things, to help us sort potential infringements based on the likelihood of actual infringement. Once the results have been sorted, we look for clues to use in the future that could indicate infringement (or just as useful, non-infringement) and adjust our system, accordingly.

Although we’re quite confident in our software, the last line of defense against this sort of error, for us, is our individual analysts. We rely on the hardest part of a human being to simulate in the context of artificial intelligence — subjective, individual judgement — in order to reduce the likelihood of errors to the lowest possible level.

Even with all that effort we put in to prevent mistakes, I’m sure we’ll make some along the way — which is why I’m inclined to go softer on Fox in this situation than is Doctorow.

The reason today’s post title ends with a question mark is that I’m not entirely sure this particular take-down notice error is the result of over-reliance on automation in the service provider’s system. If it isn’t, then the error becomes a lot harder to explain. If the URLs in the notice at question were assembled by hand, it gets more difficult for me to fathom missing Doctorow’s name, right there in the URL itself.

Having said all the above, the real problem here isn’t Fox; the problem is all those people who feel they have the right — and possibly even an obligation — to “share” that which is not theirs. No amount of bogus take-down notices justifies the total disregard for intellectual property that many Internet users display these days, and it’s important that we don’t forget that, even as we chide rights-holders for their own foibles.

YouTube Wins Another Round Against Viacom

Posted on April 19, 2013 by admin

By now, you’ve probably seen the news that U.S. District Judge Louis Stanton has awarded summary judgment to YouTube in Viacom v. YouTube, and you’ve probably read the salient quotes from the decision, as well.

Rather than add to the number of blogs that have talked about what the decision says, and what it means, I’d like to briefly focus on what it does not mean.

First, this decision does not mean that the case is over, or that YouTube has won a decisive victory in the case. A Viacom representative has already said that the company will appeal the decision, and it’s not entirely out of the question that the higher court will again reverse Judge Stanton.

This decision also doesn’t mean that every other user-generated content (“UGC”) site under the sun is now somehow magically immune to liability under the DMCA. Many UCG sites do not operate the way YouTube does (or the way YouTube operates now, at least; it’s easy to forget the conduct they are being sued over is six years old). Among other things, some UGC sites don’t register a DMCA agent with the U.S. Copyright office; some never establish or enforce a policy with respect to repeat infringers; some UGC sites do not respond to valid DMCA take-down requests — and each of these things is required of UGC sites, if they want to claim safe harbor under section 512 of the DMCA.

At this point, if I were a betting man, I’d be inclined to bet that YouTube eventually will come out on top in this case. But that day isn’t today, and it won’t be next week, next month, or even necessarily next year. This case is far from done, and it’s not a given that the higher courts will see things the same way Judge Stanton does.

Spain Tries to Keep Itself Off of USTR’s Watch List

Posted on April 15, 2013 by admin

Each year, the office of the United States Trade Representative (USTR) puts out what it calls a “Special 301″ report, a review of “the of intellectual property rights (IPR) protection and enforcement in trading partners around the word,” as the USTR put it in the Executive Summary of its 2012 edition of the report.

In its 2012 report, the USTR stated that it had removed Spain from its “Watch List” of countries it has serious intellectual property-related concerns about — a designation that can lead to trade sanctions and restrictions — a move that came as “recognition of Spain’s recent efforts with respect to IPR protection and enforcement,” including the implementation of the “Ley Sinde,” a law that specifically targets online copyright infringement.

At the same time, the USTR noted that the U.S. “continues to have serious concerns with respect to criminal IPR enforcement, particularly the 2006 Prosecutor General Circular that appears to decriminalize peer-to-peer file sharing of infringing materials, and urges Spain to take steps to remedy this significant problem.”

In February, the International Intellectual Property Alliance (“IIPA”), a copyright enforcement advocacy and lobbying group, asked that the USTR place Spain back on the Watch List, for “denial of adequate and effective IPR protection or fair and equitable market access.” (In its statement, the IIPA did not specify precisely why Spain should be included; it merely included Spain with 24 other countries that it recommended placing on the Watch List for the same general reasons.)

According to Reuters, the IIPA’s recommendation to place Spain back on the USTR’s Watch List got the attention of Spanish officials, who are now working on a new anti-piracy law designed to “speed up the process” of going after “problem websites.”

Spanish Education and Culture Minister Jose Ignacio Wert told Reuters that “this reform should satisfy those who are worried about Spain’s insufficient level of protection for intellectual property,” including by targeting “linking sites” that point people to infringing content hosted on third-party sites. The law also reportedly includes a measure to block piracy sites from various online payment services, including credit card processors.

It remains to be seen if introduction of the new bill will be enough to keep Spain off of the USTR’s Watch List, but if Spain does find itself back thereon, officials there can at least take heart in the fact that the country isn’t on the USTR’s “Priority Watch List,” which features such well-known hotbeds of piracy as Russia, Thailand, China, Pakistan, India, and our neighbors to the north, Canada, among others.

Issuing a Take-Down Notice; Sometimes, Even if You Can, Maybe You Shouldn’t

Posted on April 10, 2013 by admin

Given the services that DMCA Force provides, one might reasonably assume that I’m in favor of issuing DMCA take-down notices in response to any and all apparent online infringements on a copyrighted work; one would be wrong to make that assumption, however.

Just to be perfectly clear here, in this post I’m not speaking on behalf of DMCA Force; I’m speaking for myself {namely, Quentin Boyer, a mere Client Services Representative for DMCA Force, not an executive, owner or director thereof} and myself alone. What follows is a personal opinion based not on intellectual property law, but on my perspective as a person with experience in public relations and brand identity management.

I’ve been known to say that the best things about the Internet Age are also the worst things about the Internet Age. For example, widespread and essentially unfettered access to a medium of self-expression of the power and scope of the Internet has given rise to some of the very best acts of creativity in human history, while simultaneously offering the easiest and fastest means to commit acts of fraud, intellectual property misappropriation, intimidation, coercion, etc., that has ever existed.

Similarly, the Internet Age has multiplied the power of “word of mouth” marketing significantly, while also facilitating global content piracy in a way that no previously developed technology could have done. As such, these days the lines between word of mouth marketing, a fan’s “product evangelism” and plain ol’ content piracy is less obvious than you might think — and it is in that gray area between the three where I believe that rights-holders have to be the most cautious about whether or not to issue take-down notices.

To cite one current example, I believe it’s a public relations mistake for NPG Records to have issued a take-down notice in response to Vine videos recently posted by Prince fan Zack Teibloom.

I’m not saying that NPG didn’t have the right to issue the take down notice in question, nor am I saying that a court would rule in Teibloom’s favor, were this matter ever to go to trial. I’d like to think I’m a reasonably well-informed layman where intellectual property law is concerned, but all that really means is that I know just enough about the law to know that I’m not remotely qualified to make such an assessment. Happily, for the purposes of my argument here, legal questions are less relevant than public relations ones.

In this instance, I just don’t see how a public relations impact analysis of the situation could possibly favor targeting Teibloom’s videos with take-down notices. Among other things:

* The videos represented an extremely small slice of the Prince performance(s) from which they were made.

* Teibloom’s use was not commercial (that I’m aware of, at least), nor do I see how his videos could possibly supplant Prince’s products in the market, or undermine the commercial value of those products in any way.

* To the extent that the videos were shared and viewed by other Vine and Twitter users, it seems to me that the primary messages being communicated were “I like Prince’s music” and “Here I am at a Prince concert,” neither of which strike me as messages that Prince or his record label should object to.

The videos posted by Teibloom were a very different kettle of fish than, say, a video made by a fan that contains an entire song by Prince, or a video that represents an unauthorized ‘cover’ of a Prince song by another artist. While many consumers would object to targeting even those sorts of videos, I think the broader consumer market would accept it as a valid use of the rights-holder’s power under copyright law. In the case of these Vine videos, however, I think Prince and NPG make themselves look petty and small – vindictive, even.

Make no mistake, at DMCA Force we conduct our services according to the wishes of our clients; if a client wants us to send notices in response to noncommercial videos posted by consumers that make unauthorized use of the client’s copyrighted works, as long as doing so isn’t inconsistent with the provisions of the DMCA, we’re going to salute and do as we’re told, whatever our personal perspective on the videos in question might be.

At the end of the day, the right approach is the one you are comfortable with as a rights-holder. My point here is that sometimes there is likely to be very little actual benefit to issuing a take-down notice, and a fair amount of potential for doing so to backfire. When that’s the case, I just think it can’t hurt to take a little extra time in answering the “Should I, or shouldn’t I?” question that arises.

One Subject on Which Piracy Apologists Have a Point… To a Point

Posted on April 8, 2013 by admin

In reading about the (inevitable) piracy of Netflix’s popular original series House of Cards, and the evidently record-setting piracy of the third seasons premier of HBO’s Game of Thrones, I’m struck by what the two have in common, beyond their popularity.

Both series are distributed behind pay walls, with one (House of Cards) being a bit more difficult to pirate, due to the fact that it is streamed through a system that uses pretty robust DRM. Thrones is in its third season, so it has built more of an audience (paying and otherwise), but both have generated a buzz that has been heard in the market outside of their paying customer base.

Naturally, along with the buzz comes the desire to see the shows — which is tricky for would-be viewers who do reside in areas that don’t receive HBO or Netflix’s service. This brings me to one of the very points on which I agree with many piracy apologists and radical copyright reform advocates: the combination of a media product being wildly popular and not available in any given area or region greatly increases the odds of it being pirated in that area/region.

This is not to say that I think it’s A-OK for those who can’t obtain these shows legally to obtain them illegally, just that I think the desire to do so is understandable, and the fact that many consumers in such regions will turn to piracy is inevitable — right or wrong be damned.

I’m not about to do what many piracy apologists do at this point in the discussion, which is to disparage the executives at HBO or Netflix as “idiots,” or to lecture them about the proper way to release and distribute their content and how much more money they would make if they distributed their programs in a truly universal fashion from Day One. Among other things, HBO and Netflix seems to be doing just fine on their own, they have made infinitely more money than I have (or ever will), and I understand that creating the legal licensing framework for a truly global release of new content isn’t as simple as merely deciding to do it.

I also think HBO Programming Presdent Michael Lombardo has the right attitude toward the meaning of the widespread piracy of Thrones; in a recent interview with Entertainment Weekly, he said: “I probably shouldn’t be saying this, but it is a compliment of sorts. The demand is there. And it certainly didn’t negatively impact the DVD sales. [Piracy is] something that comes along with having a wildly successful show on a subscription network.”

That’s a sensible view to hold, I think, and is quite different from saying that piracy is a good thing, or that respect for copyright is an outdated notion. Lombardo is just telling it like it is: these days, popular media always gets pirated, and if your movie/song/tv show/book/whatever isn’t being pirated, it’s probably not getting purchased that much, either.

What will be interesting to me is what excuse piracy apologists will make when content that is released globally, at a very low price and across a wide range of distribution platforms still gets pirated, despite meeting all the demands of the Give It to me Cheap, In the Format I Want It, Right Now! young consumer set.

Will the piracy apologists then admit, finally, that some people are indeed just cheap and opportunistic, or will they come up with some new rationale as to why so many people refuse to pay the asking price, one that places the blame squarely on the rights-holders, as usual?

Sadly, I’m betting the answer will be the latter…. but I hope to be proven wrong.

Judge: ‘Either the Law or ReDigi Must Change’

Posted on April 4, 2013 by admin

Back in October, I wrote briefly about Capitol Records’ (a division of EMI Music) lawsuit against ReDigi, a service that allows users to store, stream, buy and sell “pre-owned” digital music.

At the time, I thought U.S. District Court Judge Richard Sullivan might have some difficulty in coming to a conclusion about Capitol’s claims, but in reading the order issued by Sullivan last week, it appears that he didn’t have much trouble at all reaching the conclusion that ReDigi infringes on Capitol’s distribution and reproduction rights under the Copyright Act.

I’m going to quote from Sullivan’s order at some length below, both because this is a significant case and issue, and because the context of his conclusions is important to understanding the logic used to arrive at those conclusions.

Noting that the “novel question” posed by the case is “whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine,” Judge Sullivan ultimate concludes that the short answer is “no.”

“Courts have consistently held that the unauthorized duplication of digital music files over the Internet infringes a copyright owner’s exclusive right to reproduce,” Sullivan writes. “However, courts have not previously addressed whether the unauthorized transfer of a digital music file over the Internet – where only one file exists before and after the transfer – constitutes reproduction within the meaning of the Copyright Act. The Court holds that it does.”

Drawing on precedent set in London-Sire Records v. John Doe 1, Sullivan notes that previous courts that have dealt with peer-to-peer file-sharing systems “provide valuable guidance on the application of this {reproduction} right in the digital domain.”

Sullivan observes that in the London-Sire case, the court held that when a P2P user downloads a song from another user, “he receives into his computer a digital sequence representing the sound recording. That sequence is magnetically encoded on a segment of his hard disk (or likewise written on other media). With the right hardware and software, the downloader can use the magnetic sequence to reproduce the sound recording. The electronic file (or, perhaps more accurately, the appropriate segment of the hard disk) is therefore a ‘phonorecord’ within the meaning of the statute. Accordingly, when a user downloads a digital music file or ‘digital sequence’ to his ‘hard disk,’ the file is ‘reproduce[d]‘ on a new phonorecord within the meaning of the Copyright Act.”

Adding that this understanding it is “of course, confirmed by the law of physics,” Sullivan asserts that it is “simply impossible that the same ‘material object’ can be transferred over the Internet.”

“Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the Internet, the Court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act,” Sullivan writes.

With respect to Capitol’s claim that ReDigi infringes on the label’s distribution right under the Copyright Act, Sullivan notes that ReDigi itself “does not contest that distribution occurs on its website – it only asserts that the distribution is protected by the fair use and first sale defenses.”

The problem with that assertion on ReDigi’s part, from Sullivan’s perspective, is that ReDigi’s fair use and first sale defenses are flawed at their core.

“On the record before it, the Court has little difficulty concluding that ReDigi’s reproduction and distribution of Capitol’s copyrighted works falls well outside the fair use defense,” Sullivan writes. “ReDigi obliquely argues that uploading to and downloading from the Cloud Locker for storage and personal use are protected fair use. Significantly, Capitol does not contest that claim…. Instead, Capitol asserts only that uploading to and downloading from the Cloud Locker incident to sale fall outside the ambit of fair use. The Court agrees.”

Sullivan finds that each of the four statutory factors in the fair use test “counsels against a finding of fair use” in the case before him.

“The first factor requires the Court to determine whether ReDigi’s use ‘transforms’ the copyrighted work and whether it is commercial,” Sullivan writes. “Both inquiries disfavor ReDigi’s claim. Plainly, the upload, sale, and download of digital music files on ReDigi’s website does nothing to ‘add[] something new, with a further purpose or different character’ to the copyrighted works…. ReDigi’s use is also undoubtedly commercial. ReDigi and the uploading user directly profit from the sale of a digital music file, and the downloading user saves significantly on the price of the song in the primary market.”

Sullivan then moves on ReDigi’s first sale defense, noting first that “the fair use defense is, by its own terms, limited to assertions of the distribution right” and, since he has already conluded that ReDigi’s service violates Capitol’s reproduction right “the first sale defense does not apply to ReDigi’s infringement of those rights.”

Sullivan adds that the statute “protects only distribution by ‘the owner of a particular copy or phonorecord…. of that copy or phonorecord,” observing that ReDigi is not, in fact, the owner of the works in question, at all.

“Here, a ReDigi user owns the phonorecord that was created when she purchased and downloaded a song from iTunes to her hard disk,” Sullivan writes. “But to sell that song on ReDigi, she must produce a new phonorecord on the ReDigi server. Because it is therefore impossible for the user to sell her ‘particular’ phonorecord on ReDigi, the first sale statute cannot provide a defense. Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives. The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.”

The upshot of Sullivan’s order comes in its highly quotable conclusion: “[T]o comply with the law, either the law or ReDigi must change.”

“While ReDigi 2.0, 3.0, or 4.0 may ultimately be deemed to comply with copyright law – a finding the Court need not and does not now make – it is clear that ReDigi 1.0 does not,” Sullivan writes.

ReDigi apparently issued a statement to the effect that the company was “disappointed” with Sullivan’s ruling, but “pleased” that the ruling didn’t impact version 2.0 of the service (although, in fact, Sullivan simply didn’t consider version 2.0 at all, so clearly he has not endorsed the legality of ReDigi 2.0; he just considered irrelevant to the case before him). I would link to the ReDigi statement, but it appears to have been removed from the ReDigi site, or moved from its original location, at least.

Court Denies Broadcasters Prelim Injunction in the Aereo Case

Posted on April 2, 2013 by admin

In a ruling that some interpret as a very bad portent for the plaintiffs’/broadcasters’ claims, a panel of judges from the Second Circuit Court of Appeals has upheld a lower court’s decision declining the plaintiffs a preliminary injunction in the consolidated cases WNET 13 v. Aereo and ABC v. Aereo.

Relying heavily on a decision in a previous case (Cartoon Network v. CSC Holdings, AKA the “Cablevision case”), the majority found that Aereo’s service does not infringe on the plaintiffs’ public performance right under the Copyright Act.

As the majority stated in its ruling “In evaluating [the plaintiffs'] claims, we do not work from a blank slate. Rather, this Court in Cablevision…. closely analyzed and construed the Transmit Clause in a similar factual context. Thus the question of whether Aereo’s transmissions are public performances under the Transmit Clause must begin with a discussion of Cablevision.”

In the Cablevision case, the central issue was the cable company’s RS-DVR system, which “created unique copies of every program a Cablevision customer wished to record.” The court found it significant in that case that the RS-DVR’s “transmission of the recorded program to a particular customer was generated from that unique copy; no other customer could view a transmission created by that copy…. Given these two features, the potential audience of every RS-DVR transmission was only a single Cablevision subscriber, namely the subscriber who created the copy.”

This reasoning is crucial to the court’s finding in the Aereo case, because Aereo’s service functions in a similar way.

“When an Aereo customer elects to watch or record a program using either the ‘Watch’ or ‘Record’ features, Aereo’s system creates a unique copy of that program on a portion of a hard drive assigned only to that Aereo user,” the majority writes in the Aereo decision. “And when an Aereo user chooses to watch the recorded program, whether (nearly) live or days after the program has aired, the transmission sent by Aereo and received by that user is generated from that unique copy. No other Aereo user can ever receive a transmission from that copy. Thus, just as in Cablevision, the potential audience of each Aereo transmission is the single user who requested that a program be recorded.”

The above fact, according to the majority, renders Aereo’s service to be the same (legally speaking) as Cablevision’s RS-DVR. Given that the “performances” rebroadcast by the RS-DVR were not found to be “public,” it follows that Aereo’s transmissions aren’t “public performances” under the law, either.

Dissenting Judge Denny Chin, however…. well, let’s just say he doesn’t find the reasoning employed by the majority in this case to be persuasive.

“The Copyright Act confers upon owners of copyrights in audiovisual works the exclusive right “to perform the copyrighted work publicly.,” Chin wrote in his dissent. “This exclusive right includes the right ‘to transmit or otherwise communicate a performance…. to the public, by means of any device or process.’ In my view, by transmitting (or retransmitting) copyrighted programming tothe public without authorization, Aereo is engaging in copyright infringement in clear violation of the Copyright Act.”

Chin also described Aereo’s technology platform as “a sham.”

“The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna,” Chin wrote. “[I]ndeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”

Another point of departure between Chin’s dissent and the majority’s ruling involves the question of licensing; in the Cablevision case, the cable company had a license to broadcast the content in question, so the issue was whether that license included the sort of functionality and service offered by the RS-DVR. In this case, Aereo has no such license.

The majority found this fact to be irrelevant, because “the question is whether Aereo’s transmissions are public performances of the Plaintiffs’ copyrighted works. If so, Aereo needs a license to make such public performances; if they are not public performances, it needs no such license. Thus whether Aereo has a license is not relevant to whether its transmissions are public and therefore must be licensed.”

Judge Chin, on the other hand, found the lack of licensing to be a “critical difference.”

“Cablevision involved a cable company that paid statutory licensing and retransmission consent fees for the content it retransmitted, while Aereo pays no such fees,” Chin wrote. “Moreover, the subscribers in Cablevision already had the ability to view television programs in real-time through their authorized cable subscriptions, and the remote digital video recording service at issue there was a supplemental service that allowed subscribers to store that authorized content for later viewing. In contrast, no part of Aereo’s system is authorized. Instead, its storage and time-shifting functions are an integral part of an unlicensed retransmission service that captures broadcast television programs and streams them over the Internet.”

In any event, the case is not over. The plaintiffs could simply allow the case to proceed to trial, where they might still prevail on the merits of their claims, or they could ask for the panel’s decision to be reviewed en banc.

Judge Rules in Favor of AP in Meltwater Case

Posted on March 27, 2013 by admin

Late last week, U.S. District Judge Denise Cote ruled that the Associated Press is “entitled to summary judgment on its claim that Meltwater has engaged in copyright infringement and that Meltwater’s copying is not protected by the fair use doctrine.”

While many observers fret that the ruling presents peril for search engines (and services like Google News in particular), Judge Cote’s opinion appears to be largely aimed at Meltwater’s commercial nature, and her view that Meltwater essentially resold AP’s content unaltered, without paying to license that content.

Largely relying the first prong of the ‘fair use test,’ which holds that the court’s fair use evaluation is guided in part by “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” and the question of whether Meltwater’s use of the AP content at issue was “transformative,” Judge Cote concluded that Meltwater’s use failed the fair use test.

“Neither the purpose nor use of the Meltwater News Reports, nor its excerpts from the Registered Articles in the News Reports, is transformative,” Cote wrote in her opinion. “Meltwater uses its computer programs to automatically capture and republish designated segments of text from news articles, without adding any commentary or insight in its News Reports. Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is the central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material.”

Judge Cote also found that the “examination of the public interest weighs against Meltwater.”

“Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work,” Cote wrote. “Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”

Elizabeth McNamara, a partner from Davis Wright Tremaine who represented the AP in the case, applauded Cote’s decision.

“It’s an important decision that recognizes the critical value and import of the press in the Internet age,” McNamara said, according to FolioMag.com. “For years, Meltwater and others have maintained that news available on the Internet can be freely taken and commercially sold—this decision unequivocally rejects this argument. The court recognizes that Meltwater cannot construct a business model that does little more than free-ride on costly newsgathering.”

Unsurprisingly, the defendants and their supporters see things a little differently than does McNamara.

“We’re disappointed by the court’s decision and we strongly disagree with it,” said Jorn Lyseggen, CEO of Meltwater, according to Reuters. “We’re considering all of our options, but we look forward to having this decision reviewed by the Court of Appeals, which we are confident will see the case a different way.”

IsoHunt Loses Another Round in Court

Posted on March 25, 2013 by admin

In a decision that likely comes as no shock to anyone who is not named “Gary Fung,” IsoHunt founder Gary Fung suffered another loss in court last week, when a panel of judges from the Ninth Circuit Court of Appeals affirmed a lower court’s finding that the defendants were liable for contributory copyright infringement on the “inducement theory” pioneered in the MGM v. Grokster case.

If you’re familiar with the history of the case, you might reasonably have come to the conclusion that Gary Fung’s worst enemy in the case is, in fact…. Gary Fung. Had Mr. Fung been a little less enthusiastic a user of — and commentator on — his own sites, this might have played out a bit differently. Unfortunately for Fung, the Court was able to rely on Fung’s own words and actions to conclude that he was liable for copyright infringement.

As the Court noted in the decision issued last Thursday: “The record is replete with instances of Fung responding personally to queries for assistance in: uploading torrent files corresponding to obviously copyrighted material, finding particular copyrighted movies and television shows, getting pirated material to play properly, and burning the infringing content onto DVDs for playback on televisions.”

The decision includes a footnote conceding that Fung did take an active role in keeping certain kinds of torrents off of his sites — but far from being an observation that helps Fung, it’s one which demonstrates, despite Fung’s protestations to the contrary, that he did have the ability to keep specific types of content from being indexed by IsoHunt.

“Fung did attempt to keep certain types of torrents off his websites,” the Court wrote in the decision’s 15th footnote. “First, because Fung is personally opposed to pornography, he took steps to keep torrent files related to pornography out of his sites’ collections. Second, Fung attempted to remove torrent files that led to downloads of fake or corrupted content files. These efforts were not directed at ‘diminish[ing] the infringing activity’ taking place…. and so are not pertinent to the inducement inquiry (except to show that Fung had the means to filter content on his websites when he chose to do so).”

In a statement released Thursday, the MPAA hailed the ruling as “an important step toward realizing the enormous potential of the Internet as a platform for legitimate commerce and job creation — including millions of workers in the creative industries.”

Fung’s lawyers aren’t ready to concede just yet, though; Ira Rothken says the case needs to be heard by a jury, and he’s going to request an en banc rehearing to request such.

Supreme Court Declines to Hear Jammie Thomas-Rasset Case

Posted on March 20, 2013 by admin

A few months back, I wondered whether the latest appeal from Jammie Thomas-Rasset to reduce the lawsuit damages imposed on her would be heard by the U.S. Supreme Court. On Monday, we got the answer.

The Supreme Court “denied certiorari”, which is a latinate way of saying that it declined to hear Thomas-Rasset’s case, meaning that the $222,000 jury verdict against her will likely stand.

I say it will “likely” stand because even though the Supreme Court has denied to hear her appeal, there is apparently still some hope (albeit pretty dim) that her fortunes might change as a function of another case, that of Joel Tenenbaum, whose appeal is still pending before the First Circuit Court of Appeals. It’s conceivable, at least, that if the First Circuit reduces the damages against Tenenbaum (or remands the case for rehearing on damages), that could give Thomas-Rasset a new basis for appeal.

In any event, according to Thomas-Rasset, the fact that the Supreme Court allowed the damages to stand is an “empty victory for the recording industry,” because she’s broke.

“If they want to come after me, they’ll find I have no assets,” Thomas-Rasset said, according to the same ABC News/Associated Press article I linked to above.

Thomas-Rasset’s attorney, Kiwi Camara (who is also Tennenbaum’s attorney), said that principle, and not money, was at the heart of why Thomas-Rasset fought the claims in the first place.

“It’s not fair or legal that an industry can go and pluck a defendant out at random and punish them for file-sharing, an act committed by millions of Americans,” Camara said, adding that the judgement wasn’t really about what his client did. “It’s just a made-up number. The recording industry is making a public display by pursuing this case, trying to show people that they should be afraid.”

I don’t really have any quarrel with the second part of what Camara said — that this case was largely about making an example of someone in order to change consumer mindsets — but I think the courts pretty clearly disagree that what the RIAA did in the case is not “legal.” After all, if the RIAA’s lawsuit had been illegal in the eyes of the court, Camara would not be in the position to offer that quote in the first place.

New Study Says Piracy Doesn’t Hurt Digital Music Sales…. While Offering No Sales Data At All

Posted on March 18, 2013 by admin

A new study published by the Institute for Prospective Technological Studies (part of the European Commission’s “Joint Research Centre”) asserts that “Internet users do not view illegal downloading as a substitute to legal digital music,” and reports that the authors of the study found “no evidence of digital music sales displacement.”

What’s most ‘impressive’ about this study is that it includes no data whatsoever involving revenue or sales. None.

How did the researchers arrive at their conclusion without actually seeing any sales data? Rather than hitch their conclusions to revenue metrics, Luis Aguiar and Bertin Martens extrapolate their thesis from an in-depth look at click data pertaining to both legal and illegal music-related websites.

“Our approach relies on a novel dataset that enables us to follow a large sample of Internet users and their online behavior in five EU countries during 2011,” the report explains. “For each of the individuals in our sample, we observe both information on demographic characteristics and on the webpages visited during the year. This allows us to identify specific visits on websites related to music consumption, both legal and illegal.”

If you’re thinking that this approach lacks a little something — like, you know, any indication whatsoever of whether the users observed in the data downloaded and/or purchased anything from the sites in question — you’d be quite right about that “limitation” of the data presented in this paper.

“It is important to note that we are only able to observe the number of clicks on a given website and that we do not have a precise description of the individual behavior for each click,” the authors concede. “Rather than measuring actual consumption or purchases, our data therefore gives a measure of the propensity to consume music.”

Don’t fret, though; the authors further assure us that this lack of sales data is not a problem!

“We believe, however, that this is still a good approximation to actual consumption,” the authors state. “We see no specific reason for which an individual would go on a music-consumption website with other purposes than to consume music…. In particular, we do not expect individuals to go window-shopping on legal purchasing websites in order to illegally download after their visit. First, information on specific albums, songs or artists can be found on other music-specific websites, so it is not clear why consumers should use legal purchasing websites for such purposes. Second, we believe information on songs’ prices to be almost perfectly known to consumers before they go on legal purchasing websites, ruling out visits solely related to price information seeking.”

Whether or not you think the assumptions above are reasonable, you have to concede that they are assumptions, and not actual data points, or any sort of data that is subject to confirmation or debunking in the context of this study. What the authors appear to view as a small, almost trifling issue is, realistically, a severe limitation on the usefulness of their data set.

I’m not closed to the idea that many people (perhaps even most people) who pirate music also purchase music, nor do I reject the possibility that some of the highest volume pirates are also among the most frequent purchasers of music — I’d just like to see such theories backed up by something more than non-scientific telephone surveys, or analysis of Internet traffic metrics and user behavior that does not include purchasing behavior.

Study Concludes That Megaupload Shutdown Boosted Movie Sales

Posted on March 15, 2013 by admin

In a study published earlier this month, professors Brett Danaher (of Wellesley College’s Department of Economics) and Michael D. Smith (from Carnegie Mellon University’s H. John Heinz III School of Public Policy and Management) conclude that the January 2012 shutdown of Megaupload positively affected the digital sales of movies for the two major film studios that provided data to the study.

Given the difficulty of collecting data in support of that conclusion — and the fact that the study was reportedly partially underwritten by the MPAA — the study is bound to be met with skepticism from copyright reform advocates and piracy sympathizers, but my reading of the study found it to be reasonable in its methodology, and quite measured in its claims, all things considered.

To cut to the chase, the study’s bottom line conclusion is that “in the 18 weeks following the (Megaupload) shutdown, digital revenues for these two studio’s movies were 6-10% higher than they would have been if not for the shutdown.”

The means by which the professors arrived at that conclusion is quite complicated, and beyond the scope of this post. Rather than focus on their methodology, I’d like to highlight some of the caveats the professors offer about their study and its conclusions — caveats that strike me as very reasonable, forthcoming and intellectually honest, but that will likely be summarily ignored by critics of the study, who are already focused on the extent of the relationship between the researchers and the studios that supplied them with data.

Early on in the study’s abstract, the authors note that anti-piracy measures are really only worth undertaking if they have a positive return for rights holders. Or, as the professors put it, “a necessary condition for supply-side anti-piracy polices to be worthwhile is that we must see a causal gain in media sales and revenues resulting from the reduction in piracy.”

The study then acknowledges that “[i]t is not clear that such a gain will be realized.”

“First, when a major filesharing site or protocol is eliminated, other alternatives exist,” the study notes. “Policy interventions against particular sites or protocols may simply transfer filesharing from one platform to another with no net effect on total piracy or sales…. Second, even if total filesharing activity decreases, if the discouraged pirates consist largely of consumers whose reservation prices for the content are lower than the market price, no sales gain will be realized. On the other hand, if the elimination of some of the largest and most convenient filesharing platforms leads some consumers to turn from piracy to purchases on legal channels, then revenues to content providers can increase. For these reasons, the question of whether shutting down major piracy platforms will causally impact sales to consumers is theoretically ambiguous and must be answered empirically.”

Even with confidence in the source data and their analysis thereof, the authors concede that their work has really just scratched the surface in terms of providing a sound basis for the development of public policy.

The following section is worth quoting at length, because it establishes (to me, at least) that the researchers are genuinely interested in producing solid data and a workable basis for policy, rather than just spouting a preconceived position in furtherance of an agenda.

“Finally, we note that while we believe our results strongly suggest that the shutdown of the popular Megaupload and Megavideo sites is causally related to an increase in digital motion picture sales, that there are several limitations associated with our study. First, Megaupload was a very well-known cyberlocker and its shutdown was highly publicized. As such, the shutdown of Megaupload influenced the policies of several other cyberlockers focused on piracy, and our results necessarily measure the “net impact” of the Megaupload shutdown across the cyberlocker industry, as opposed to just measuring the impact of Megaupload. In addition, our results only analyze the impact of Megaupload on digital motion picture sales. We are not able to measure the effect of this shutdown on other motion picture channels (e.g., DVD sales, theatrical sales) or on other product categories (e.g., music, books). Because we only observe 18 weeks following the shutdown, we also do not know whether the sales increase will persist or if these consumers will eventually find their way back to alternative piracy channels (in spite of the fact that we see no clear indication of such a reversion in the 18 weeks in our data). Finally, we note that our study only measures specific benefits of this regulation – it does not measure either tangible or intangible costs of this sort of intervention, and such costs should be considered carefully as part of any policy decisions.”

The full study can be downloaded here.

EU Court of Human Rights Offers No Solace to Convicted TPB Founders

Posted on March 13, 2013 by admin

With an unanimous 7-0 vote, a chamber of judges with the European Court of Human Rights (ECHR) has rejected an appeal from Pirate Bay co-founders Fredrik Neij and Peter Sunde.

In coming to the decision, which can be read here, the panel of judges weighed the freedom of expression and freedom of information guaranteed under Swedish law against the need to protect copyright, while also taking into account the specific facts of the defendants’ behavior and actions that gave rise to their prosecution in the first place.

The judicial panel acknowledged that the actions taken by the defendants are “afforded protection under Article 10 § 1 of the Convention and, consequently, the applicants’ convictions interfered with their right to freedom of expression,” but noted that such interference does not breach Article 10 when it is “prescribed by law.” Ultimately, the panel concluded that under the Copyright Act and relevant penal code, “[I]t follows that the interference was ‘prescribed by law.’”

The panel also stated that is was “further satisfied that the interference pursued the legitimate aid of protecting the plaintiffs’ copyright to the material in question.”

It’s also clear that TPB’s famously nose-thumbing attitude toward legal threats and notifications of infringement did not serve Neij and Sunde well in their appeal. As the ECHR panel put it in its decision:

In reaching this conclusion, the Court has regard to the fact that the domestic courts found that the applicants had not taken any action to remove the torrent files in question, despite having been urged to do so. Instead they had been indifferent to the fact that copyright-protected works had been the subject of file-sharing activities via TPB.

There’s a lesson in here for everyone who believes that the law provides them with ‘safe harbor’ from criminal and/or civil liability: If you are relying on the safe harbor provisions of any given statute to protect you from liability under that statute, it’s probably best that you make sure you are doing what you are required to do in order to be eligible for that safe harbor before you find out the hard way that you are NOT eligible for it.

In other words, sorry Fred and Pete; that ship you were awaiting the arrival of already set sail, long, long ago.

Of ‘Good’ Lobbyists and ‘Bad’ Lobbyists

Posted on March 11, 2013 by admin

Last month, I wrote about a pair of articles published by Forbes, one by Consumer Electronics Association President Gary Shapiro, and the other by National Music Publishers’ Association CEO David Israelite.

Both articles touched on the subject of lobbying, doing so in essence to call out just how much lobbying is being done by the ‘other side’, and why that lobbying is a bad thing.

In his piece, Shapiro decries the “massive content lobby” and the “huge well-funded army of lobbyists whose sole purpose is to convince Congress that the interests of the massive content companies are more important than the interests of artists, musicians, innovators and ordinary people.”

For his part, Israelite noted that in the last two years Shapiro’s organization “nearly doubled its lobbying budget,” increasing from $1.9 million in 2010 to $2.83 million in 2012, a figure “dwarfing what NMPA spends.”

Today, the subject of intellectual property-related lobbying came up in another article about a panel held over the weekend at the South By Southwest (“SXSW”) in Austin.

During the session, panelist Wendy Seltzer, who serves as policy counsel to the World Wide Web Consortium and as a fellow with Yale Law School’s Information Society Project, noted that when American copyright law was last given a major overhaul, companies like YouTube, Tumblr, Facebook and Twitter did not yet exist.

“The way that copyright law gets made is a function of who’s invited to the table when the law is negotiated,” Seltzer said, according to the San Antonio News-Express. “Who’s going to be invited to that party? Well it tends to be the folks that are known, the folks who are in the industry already.”

While it’s unclear whether the SXSW panelists themselves talked about how the fight over SOPA last year signaled to tech companies that they needed to get serious about their lobbying efforts in Washington, the News-Express reports that according to Rackspace general counsel Alan Schoenbaum, the hosting services giant certainly saw SOPA as that manner of wake-up call.

“If we didn’t stay engaged, we could hurt our company,” Schoenbaum said. “We need to make our voice known, and the best way to make your voice known in Washington is to have professionals help you get the attention of the members of Congress and to talk to them and their staffs about the issues that matter.”

The same article reports that Google and Facebook have greatly increased their lobbying efforts following the introduction of SOPA last year. Google increased its lobbying expenditures to $18 million in 2012 (reportedly over $8 million more than the previous year), while Facebook boosted its lobbying from $1.3 million in 2011 to $4 million in 2012.

Whatever one thinks of lobbying as a means of persuading elected representatives, this much is pretty clear: both “Big Content” and “Big Tech” are at this point spending an awful lot of money on it, while simultaneously suggesting that spending an awful lot of money on lobbying is a sign that the other side is up to something unsavory.

To me, the question of how much money each side of this debate spends lobbying Congress is really beside the point. Lobbying, whether we mere mortal citizens like it or not, is just part of the territory in Washington; either side would be horribly, inexcusably remiss if they were not to lobby Congress on behalf of their point of view.

I have no doubt that lobbying expenditure numbers will continue to be batted around by stakeholders on both sides of the copyright reform issue, relevance be damned, if for no other reason than the American public seems to love a good dose of rich-bashing rhetoric, even if the rhetorical bashing is being doled out by someone equally wealthy to the subject of their tongue lashing.

Pot, meet kettle; he says you’re black.

FixCopyright.com – Sounds Good, But a Little Detail Would Be Nice

Posted on March 6, 2013 by admin

Derek Khanna, a copyright reform activist who I’ve written about previously, has launched a new website, FixCopyright.com, as part of his advocacy campaign.

As a staunch advocate of strong intellectual property rights protection, but one who is also open to reasonable copyright reforms, the announcement of Khanna’s new site caught my eye and piqued my curiosity.

After checking out the site, however, I’m a bit disappointed. I was expecting some ideas, some information… something more than an email registration form that returned a short link I could use to send other people to the site, in other words.

To be fair, I also received an email thanking me for signing up…. which included a different short link that points to the same threadbare web page.

I’m assuming that the site will, eventually, offer more than the ability to give Derek Khanna (and whomever else is involved in the site) my email address. In the meantime, some sense of what I’ve just signed up for would be nice.

Have I just unwittingly indicated that I support a particular copyright reform by submitting my email address to this site? Perhaps an effort imploring Congress to repeal or alter the laws that make it illegal to unlock one’s mobile phone, the subject of a recent WeThePeople petition supported by Khanna?

I’m not too worried about how my email address will be used (after 16 years of spending several hours a day online, I’m pretty adept at deleting spam), but I’m still slightly bothered by the fact that Khanna’s site appears to be not much more than an email harvester at this point.

If and when that changes, I’ll compose a new post about the substance of the site…. assuming it develops some in the interim.

The Pirate Bay Hopes to Find Smoother Sailing in…. North Korea? UPDATED

Posted on March 4, 2013 by admin

Update:

OK, so apparently this announcement was a hoax… and I fell for it, along with a whole lot of other people who also should have known better.

Here’s what TBP had to say about it (maybe; I’m not sure I should trust anything posted to Torrent Freak at this point):

We hope that yesterdays little hack proved that we know the internet better than our enemies. Since about 40% of the entire internets traffic consists of torrents enabled by us, you can almost say that we ARE the internets. Fuck with the internets and we’ll ridicule you (points at MAFIAA with a retractable baton) until you beg for mercy.

We’ve hopefully made clear (once again) that we don’t run TPB to make money. A profit hungry idiot (points at MAFIAA with a retractable baton) doesn’t tell the world that they have partnered with the most hated dictatorship in the world. We can play that stunt though, cause we’re still only in it for the fuckin lulz and it doesn’t matter to us if thousands of users disband the ship.

We’ve also learned that many of you need to be more critical. Even towards us. You can’t seriously cheer the “fact” that we moved our servers to bloody North Korea. Applauds to you who told us to fuck off. Always stay critical. Towards everyone!

As much as I hate to say it… well played, TPB. Well played.

————— Original Post —————

Yes, you read that right; The Pirate Bay’s new node-home is now reportedly located in that freedom-loving bastion of liberty known as The Democratic People’s Republic of Korea (more commonly known as “North Korea”).

It’s a decisively odd arrangement, given the TPB’s consistently professed position that their very raison d’etre is to serve as a champion for the freedom of speech and other cherished civil liberties — liberties that are famously not much on display in the Stalinist dictatorship.

The irony isn’t lost on TBP’s leadership either, apparently. As an unidentified spokesperson for the site told TorrentFreak.com:

This is truly an ironic situation. We have been fighting for a free world, and our opponents are mostly huge corporations from the United States of America, a place where freedom and freedom of speech is said to be held high.

The anonymous spokesperson also said that the arrangement might signal that the winds of change might be blowing in North Korea, in light of this development and things like Dennis Rodman’s well-publicized visit.

“We believe that being offered our virtual asylum in Korea is a first step of this country’s changing view of access to information,” the TPB spokesperson said, according to TorrentFreak. “It’s a country opening up and one thing is sure, they do not care about threats like others do. In that way, TPB and Korea might have a special bond.”

Among the things that TPB is hoping that North Korea will do, naturally, is allow its people to use TPB. Only time will tell, of course, but given the completely unfettered nature of TPB, and the North Korean regime’s love of fetters, I suspect that’s a desire that will go unfulfilled.

The Copyright Alert System, Consumer Attitudes and…Fascism?

Posted on March 1, 2013 by admin

Well, that didn’t take long.

The Copyright Alert System has only been in place for a matter of days, and already some consumers (who do not appear to have received any notices) are already comparing it to the mechanisms and implements of control utilized by the Nazis.

I could write a lengthy post about how ridiculous that is, how it tends to trivialize the atrocities committed by the Nazis, and the suffering of those who were the objects of the Nazi’s fascist totalitarianism, but instead I’ll just let the words of one Gawker commentator speak for themselves:

“Looks about like a Gestapo officer saying my papers are invalid. They’ll round us up soon, us dirty pirates. We’re all that’s ever been wrong with the economy, you know.”

Um… yeah, that’s just what these notices are like; the Gestapo checking your papers. Brilliant!

I’m not even sure who the metaphorical Gestapo is in this inane analogy. Is the ISP the Gestapo? The monitoring agency? The rights-holder?

The comment was posted in response to this article, which shows you what the notices themselves apparently look like.

To be fair to the Gawker reader who posted it, it’s clearly meant to be over the top and sarcastic, but I get the sense that the anger and sense of victimization is sincere. He/she hasn’t even been a target of such a notice, and already it’s an outrage.

Setting aside this specific comment for a moment, it’s really beyond time that all Internet users backed off the Nazi analogies. They weren’t apt with respect to George Bush, they aren’t valid when directed at Barrack Obama, and they sure as hell have no place in a discussion of the Copyright Alert System.

Hyperbole has its place, sure…. but enough is enough, already.

The Implicit Message Behind File-Sharing

Posted on February 27, 2013 by admin

It has often been said that in a free market, the value of a product or service is whatever people are willing to pay for it.

Whenever I’m speaking to someone who expresses confusion about how a given service provider or retailer can charge the price of a good or service that they do with a straight face, be it legal advice or plumbing repair, my response is that vendor can do so simply because people are willing to pay that rate. This is also why some professional athletes are paid salaries that seem out of proportion to the importance and value of their ‘work product’; the market has decided that some pro sports are highly valuable, therefor those who excel at those sports are highly valuable, as well.

In the business world, some entities overestimate the price the market is willing to bear, so they either have to adjust their pricing, or face the prospect of going out of business because they can’t grow their customer base to a size that will sustain their operation.

I’ve been thinking a lot about this sort of equation lately, particularly when I’m reading articles, forum posts or comments published by those who believe that it’s greedy, backwards or even unethical for rights-holders to works of entertainment to have the audacity to expect people to pay the asking price for their creations.

By refusing to pay for the goods they consume, what these people are actually saying is that artistic expression, entertainment media and any other digital good they covet has no market value. The proper price for such products, in their mind, is a flat $0.

Yes, yes, I know — file-sharers purchase more than non-file-sharers do (according to non-scientific surveys, always a compelling way to gather hard data), many of these people are “trying before they buy,” many of these same people will purchase content if you provide them with a “quality experience,” etc.

While I’m sure there’s at least some truth to those arguments, I’m equally sure that the degree of truth varies greatly from individual to individual, and from one media type to another. What does it mean, for example, to “try” a movie by watching it from end to end? Am I really expected to believe that habitual downloaders of pirated movies are watching the movies at home for free, then heading to the cinema to watch the same movie for $10? That might happen in some cases, but does it happen in significant numbers? I doubt it.

What isn’t subjective or unknown is the price that a person pays when they download a pirated work for free; by definition, that price is $0.

I’m not one to make the argument that every illicit download equals a “lost sale” (which is dubious reasoning, at best), nor do I believe that the economic harm created by file-sharing is a particularly easy number to derive in any certain way. I’m simply asserting that by declining to pay for a product that you are supposed to buy, that you could easily afford if you chose to purchase it legally, and that is readily available in your market, you are saying that the product’s value to you is zero.

None of this has anything to do with the length of copyright terms, abuses perpetrated against musicians by record companies, the RIAA suing poor college students into the ground, or any of the other rationales I commonly encounter when I read/hear people’s stated justifications for their decision to obtain entertainment products by illicit means. My argument also doesn’t rely on thinking of downloading as “theft,” or on any calculation of economic harm stemming from piracy.

In my mind, it’s very simple; your decision to download a pirated work is a value judgment you have made, and your judgment is that while that work might be worth your time, it isn’t worth your money.

I would be a lot more charitable in my attitude toward habitual file-sharers if they would simply own up to the fact that they don’t pay because (a) they don’t have to, and (b) they don’t want to.

I don’t completely discount every point some of these people make about the current state of intellectual property law, or the need for sensible copyright reform in light of the way that technology has changed our world over the last several decades. I’m open to those arguments — but they simply don’t have anything to do with a decision to not pay for a product that you are supposed to pay for. In the context of the “to pay or not to pay” choice, such arguments are not reasons for not paying; they are rationalizations for not paying.

If you’re a person who downloads for free the products that you are supposed to pay for, consider all of this the next time you chose piracy over purchase. Remember that it’s not about record companies, it’s not about Hollywood, it’s not about Disney, the RIAA or the MPAA. Hell, it’s not even about intellectual property law, at all; it’s about YOU.

The Copyright Alert System Launches At Last

Posted on February 25, 2013 by admin

After an unanticipated delay stemming from the carnage caused by Hurricane Sandy, the Center for Copyright Information’s “Copyright Alert System” (CAS) is kicking off this week, according to a blog post published today by the CCI’s Jill Lesser.

“Over the course of the next several days our participating ISPs will begin rolling out the system,” Lesser writes. “Practically speaking, this means our content partners will begin sending notices of alleged P2P copyright infringement to ISPs, and the ISPs will begin forwarding those notices in the form of Copyright Alerts to consumers.”

Ever since it was first proposed, reactions to the CAS have been mixed, with skepticism about the system coming from both those who favor strict copyright enforcement — who argue that the measure doesn’t have enough teeth — and advocates of relaxing intellectual property law, who see the monitoring component of the CAS as invasive of privacy and who fear that the program will chill free speech and the freedom of expression online.

I’m on the fence about the CAS, myself. I’m not sure it will have a significant impact where online piracy is concerned, in part because it fails to reach a lot of the most problematic infringing behavior of web users (the system reportedly only looks for users seeding torrents with copyrighted material, not those who only download, and not those who obtain their pirated materials from sources other than torrents) and in part because it is fairly easily circumvented.

I’m inclined to withhold judgment, however, and hope that I’m wrong. Perhaps the prospect of being shamed by one’s ISP will be enough to alter the behavior of some consumers, or maybe having one’s bandwidth throttled will prove sufficiently annoying that many ‘casual pirates’ will change their ways in order to avoid feeling like it’s 1997 all over again…. but I’m not optimistic.

Here’s hoping that to most web users the initials ‘VPN’ are even more unfamiliar than the idea of paying for one’s entertainment.

RIAA Grades Google’s ‘Anti-Piracy Algorithm’ and (Surprise!) Google Gets an F

Posted on February 22, 2013 by admin

As you might recall if you follow copyright and piracy-related news, Google announced back in August that it was going to start taking into account the number of valid copyright removal notices it received for any given site, and use that measure as one factor in where such sites appear in Google’s search response pages.

As Senior Vice President of Engineering Amit Singhal put it at the time, “Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify.”

Yesterday, the RIAA issued a “report card” on the effects of Google’s altered algorithm, and to say that the RIAA isn’t impressed would be an understatement.

Right up front in the report’s Executive Summary, the authors put it flatly: “Six months later, we have found no evidence that Google’s policy has had a demonstrable impact on demoting sites with large amounts of piracy.”

Citing specific measures as the basis for its claim, the RIAA further notes that the sites analyzed “all of which were serial infringers per Google’s Copyright Transparency Report, were not demoted in any significant way in the search results and still managed to appear on page 1 of the search results over 98% of the time in the searches conducted…. [i]n fact, these sites consistently showed up in 3 to 5 of the top 10 search results.”

The RIAA’s analysis rings true to us here at DMCA Force, as we’ve observed the same lack of change among the rankings of known pirate sites. There are sites we have asked Google to remove tens of thousands of links to via our take down requests, and yet these same sites consistently rank in the top 10 responses to searches for our clients products. In many cases, these sites rank in the top 10 positions for searches relating to materials that we have repeatedly requested removal of from that very site.

I’m inclined to cut Google a little more slack than the RIAA does, but overall, I have to agree with the RIAA’s bottom line opinion: “[W]hatever Google has done to its search algorithms to change the ranking of infringing sites, it doesn’t appear to be working.”

Another Day, Another (Misleading) Infographic About Online Piracy

Posted on February 20, 2013 by admin

Over on Mashable, there’s a recent post that includes an infographic entitled “The Obscenely High Penalties of Downloading Music” attributed to Total Bankruptcy Attorneys. Couched in language that makes it quite clear that the bankruptcy attorneys take a dim view of rights-holders who employ litigation against end-user consumers as part of their anti-piracy strategy, the infographic strikes a familiar refrain: damages in such cases are “excessive” and the companies that seek them are bad guys.

While the bankruptcy attorneys certainly have a right to their opinion, and there are many who would agree that the statutory damages awarded in such cases are indeed excessive, this infographic is hardly an objective recitation of the facts concerning the perils of downloading music. In joining the chorus of those who deride the RIAA for its litigious nature (while acknowledging that the RIAA has essentially stopped filing such cases in recent years), the infographic omits and obscures some pertinent information regarding the current state of online piracy and the litigation that surrounds it.

After describing the Center for Copyright Information’s Copyright Alert System, the infographic shifts focus to a couple of famous lawsuits, which the author of the infographic deems “insane.” The two cases referenced are those of Jammie Thomas-Rasset and Joel Tenenbaum, both of which are often cited as evidence of music industry greed.

The infographic does refer to the fact that both defendants had the opportunity to settle their cases for substantially less than the damage amounts awarded at trial, but it does so in a way that seems designed to undermine the legitimacy of the eventual jury award, rather than highlight the possibility that fighting the plaintiffs’ claims might not have been the wisest course of action for the defendants.

The RIAA is made out to be the bad guy here, but what the infographic does not invite the reader to do is consider the decisions made by the defendants all along the way — from the decision to illegally download music in the first place, to the decision not to accept the initial settlement offers, to the decision to continue appealing the outcome of the case, thereby introducing even more litigation costs.

In both the Thomas-Rasset and Tenenbaum cases, the defendants were given the opportunity to settle for a small fraction of the potential statutory damages. In both cases, the defendant declined, only to end up with damages that far exceeded the settlement offer. Thomas-Rasset could have skated for $4500; by the time the appeals were said and done, the damages amounted to $220,000. In Tenenbaum’s case, the initial ask was $3500, while the amount of his fine currently stands at $675,000 (pending the outcome of yet another appeal in the case, the roots of which run all the way back to 2003).

While I can certainly understand why many people (including the makers of this infographic, apparently) believe that the damages awarded in copyright cases are excessive, their ire is misdirected.

Why?

Because if you think the damages awarded in these cases are excessive, your quarrel is with Congress (and to some extent, the juries in these cases, one would think, since they set the amount of the damages awarded per the instructions of the court) and not the RIAA.

Statutory damages, as the name suggests, are damages applied as a matter of law (once the liability of the defendant has been established), and Congress is responsible for writing and amending the relevant intellectual property laws at issue here. Railing against the greed of the RIAA might be satisfying on some level to those who do it, but all the RIAA and other rights-holders who have chosen litigation as a means of addressing online piracy have done is to seek the remedy available to them under the law. What are such rights-holders supposed to do, sit there and take it on the chin with a smile on their face? Send roses and chocolate to those who illegally download their works? Throw up their hands, sigh aloud “well, it has been a good run” and hang up their spurs, perhaps?

Believe me, the studios and record labels that make up the RIAA and MPAA would rather not be filing lawsuits. DMCA Force has clients who hail from the music and motion picture industries, and what these people want to spend their time, money and effort on is making, marketing and distributing their creative works. Period. The decision to litigate as a means of combating online piracy doesn’t stem from greed; it stems from an understandable desperation to turn back the tide of unfettered infringement that has all but killed the bottom line for many content producers.

One last note about the infographic; its last section, “Piracy’s New Penalties Are Still Unfair” is the most misleading of the lot. First, there’s nothing “new” about the penalties for piracy. Copyright law has not changed in some fundamental way since the cases the infographic addresses in its previous sections, so there are no “new penalties” and those penalties that exist are just as fair, or unfair, as they ever were. Beyond that, the mass litigation efforts that the infographic mentions have been undertaken by pornographic film studios, not by the RIAA or any of its constituent studios.

As with just about anything of its kind that you find on the Internet, the Total Bankruptcy music piracy infographic is to be taken with a grain of salt — or perhaps even a pillar of the same.

Google Seeking to Cut Funding to Piracy Sites?

Posted on February 18, 2013 by admin

In a brief and maddeningly vague article published over the weekend, The Telegraph reports that Google is in discussions with VISA, Mastercard and PayPal seeking ways to cut off funding to “illegal download websites.”

According to the Telegraph‘s Katherine Rushton:

Executives want to stop websites more or less dedicated to offering links to pirated films, music and books from making money out of the illegal material. The plans, still in discussion, would also block funding to websites that do not respond to legal challenges, for example because they are offshore.

The article offers very little detail about the talks (no word of who is involved from each company, where and when these talks are taking place, etc.) so while it’s tempting to consider this a good sign, it’s very difficult to say how much promise these talks hold, or how the desired cutting off of funds would work.

It’s also important to note, as adland.tv does, that where Google’s own payouts to Adsense publishers are concerned, such payments are not dependent on VISA, Mastercard or PayPal, and the same can be said of many other online ad networks. As such, it’s hard to say how much impact VISA, Mastercard and PayPal could have on advertising revenues made by illicit sites, but they could certainly put a dent in the ability of such sites to sell ‘premium memberships’ and the like, purchases that often do require a credit card or PayPal account.

I tend to take just about any news that Google is going to do more to combat online piracy as good news, but in the last year I’ve also begun to take such news with a grain of salt. For instance, I’m still waiting for definitive evidence that another of Google’s announced anti-piracy measures, lowering the search result rankings of sites that receive a high volume of DMCA take down notices, has actually been put into effect.

To cite one example that suggests not much has been done in terms of Google punishing known pirate sites, according to the Google Transparency Report, Google has received requests to remove a total of over 99,000 URLS originating at filestube.com from its search engine responses in the last week alone, yet the site still appears in the first page of responses for quite a number of searches relating to copyrighted materials, including the phrase “the black keys free download.” (Filestube itself helpfully provides over 5000 links in response to that same search phrase.)

You know that they say, Google: talk is cheap. Heck, I’ll bet if I search around enough using your site, I can find hundreds of places where it’s absolutely free!

(Not So) Intellectual Property

Posted on February 15, 2013 by admin

Among the many stumbling blocks that face rights-holders in the Internet Age, one of the more confounding is… other rights-holders.

Take, for example, the case of investigative reporter Teri Buhl, who recently decided that she could retroactively declare all of her tweets to be “off the record,” and therefor unable to be legally copied and disseminated by other Twitter users.

Setting aside for a moment how fundamentally impractical this notion is, given what Twitter is and how it functions, it’s also an incredibly stupid one. Noted First Amendment attorney (and official Friend of DMCA Force) Marc Randazza summarized it as “moronic” — and knowing Marc, that’s him being charitable.

Why does it matter? Why do things like this get under my skin?

Given how eager many in the media (and tech-focused media in particular) are to find any and every conceivable basis to argue that copyright laws are stifling innovation and chilling free speech, incidents like this get a lot of play, every time.

Those same media outlets aren’t going to give much page space to the millions and millions of examples of clear, unambiguous copyright infringement that happen on a daily basis, but they will giddily pile on example after example of rights-holders (or people who imagine themselves to be such) doing stupid things, whether by accident or of their own unwise volition.

It’s not right, and it’s not fair, but it’s the way of the Web.

My point, I suppose, is that if you’re a rights-holder who thinks that he has come up with some brilliant, novel means of applying intellectual property law, and you aren’t also an expert in intellectual property law, you are probably wrong. As such, when these innovative approaches to IP enforcement strike you, it’s probably worth a phone call to your attorney to confirm that you’re not about to embarrass yourself — and, by extension, the rest of us, as well.

Two Wrongs Don’t Make a Right – But They Do Make For An Entertaining Lawsuit Threat

Posted on February 14, 2013 by admin

When you see headlines about ThePirateBay being involved in a legal tussle, one place you don’t expect to see them is in the position of the plaintiff in a copyright case. If a lawsuit threat issued by TPB this week is to be taken seriously, however, we might just witness that unlikely orientation soon enough.

Evidently, the Finnish anti-piracy organization CIAPC not only created a site that looked a lot like the original TPB, they also jacked the TPB’s CSS.

In a comment that one assumes has to be sarcastic, a Pirate Bay spokesman told TorrentFreak:

We are outraged by this behavior. People must understand what is right and wrong. Stealing material like this on the internet is a threat to economies worldwide.

It’s hard to defend CIAPC’s choice to pilfer TBP’s code, but I do get a good belly laugh out from the idea of TPB suing for copyright infringement in any context.

The TorrentFreak article contains another quote that I think we can take much more seriously, coming from the TPB:

If not even IFPI and their friends can respect copyright, perhaps it’s time to move on?

Now that’s the straw-man-building, ‘free culture’ extremism we have come to expect from TPB!

The Perils of DMCA Take Down Notice Automation (Yet Again)

Posted on February 6, 2013 by admin

Here we go, again.

I’ve written before, twice, about the danger of introducing too much automation into your system for issuing DMCA take down notices, and now it appears that HBO is getting an object lesson in that danger, courtesy of one of its DMCA take down service providers.

If you look at the take down notice in question, and scroll down to the section pertaining to the HBO comedy Eastbound and Down, you’ll notice that the notice includes URLs from insidehboshop.hbo.com listed as infringing URLs.

That’s not a good thing, obviously.

Also included on the notice are URLs from IGN.com where official trailers from the show are featured along with brief synopses of individual episodes of the show. The use of materials from the show here sure looks like fair use and not the sort of thing that a rights-holder would want to see removed from the Web.

I’m repeating myself here, but it’s a warning that bears repeating: If you are in the business of issuing take down notices, you must check your work, particularly if you make extensive use of automation along the way. You must also have the foresight to do things like “whitelist” certain websites and URLs so that your spiders that crawl the web looking for infringements cannot erroneously flag sites that are clearly, obviously, unambiguously permitted to display the content in question.

Don’t get me wrong; there’s nothing wrong with automation. Heck, there’s nothing inherently wrong with automation in your DMCA infringement identification system that leads to over-inclusion of suspected infringements, so long as you also introduce protections into your system that lead to such over-inclusion being caught before it is acted upon.

Mistakes happen, even to the most cautious and conscientious among us. What’s not acceptable, however, is a mistake that is both easily anticipated and easily prevented. The mistake that is currently serving as an embarrassment to HBO is such a mistake, I’m sorry to say.

Cory Doctorow on the Difference Between Plagiarism and Copyright Infringement

Posted on February 1, 2013 by admin

Synchronicity is a funny thing.

This morning, in deliberating what topic I should take up next on this blog, a question occurred to me: Why are so many advocates of unfettered file-sharing and/or online piracy also clearly outraged by acts of plagiarism?

As it happens, science fiction author/blogger Cory Doctorow provided a pretty solid answer to that question in an article of his own, a matter of hours before I began to contemplate asking it here.

I’ve read a good deal of Doctorow’s commentary on intellectual property-related subjects over the years, and while I don’t always agree with his conclusions, he’s clearly a very bright, very perceptive guy, and one who I think brings a strong sense of intellectual honesty to the table, even when he’s making points that I disagree with.

Doctorow’s brief article cites the controversy surrounding a cover version of Sir Mix-a-Lot’s Baby Got Back by the Fox show Glee… with the controversy being that Glee’s ‘version’ is virtually identical to Jonathan Coulton’s cover of the same song, and Fox didn’t see it fit to credit Coulton in any way, shape or form.

No matter where you fall in the ongoing debate over copyright in the Internet Age, you have to agree it was a pretty shameful act on Fox’s part, and as Doctorow notes, it’s one that highlights the essential difference between the way plagiarism is viewed by the web-using public, and the way that online piracy is viewed by the same.

As Doctorow puts it:

Why does Fox’s sin stick in the internet’s craw? I think it’s because Fox hasn’t just wronged Coulton: they’ve wronged the public. We have been misled about the origin of a product we’re being asked to purchase.

This is different from, say, a fake designer handbag that’s offered as a cheap knockoff, where there’s no intent to fool the purchaser, who understands that a 99% discount on a Vuitton bag means that it’s really a “Vuitton” bag.

While I’m not sure I see the distinction between a knockoff Louis Vuitton bag and a plagiarized song as being quite as clear as Doctorow does, I think he’s hit the nail on the head as to how many members of the public distinguish between copyright infringement and plagiarism; in the former, the identity of the originator of the work is (usually at least) not obscured by the pirate, whereas the plagiarist truly claims the original work as his own.

I’m not about to change my position on whether copyright infringement is a bad thing, but thanks to Doctorow, I think I now understand why so many consumers and web users don’t bat an eye over content piracy, but will raise hell when plagiarism rears its ugly, counterfeited head.

Required Reading for Those Interested in the Subject of Online Music Piracy

Posted on January 30, 2013 by admin

When it comes to the subject of the online piracy of music, there’s no shortage of information available on the Web. Unfortunately, a lot of that information can be categorized as “questionable,” if we’re to be charitable, or “outright misleading crap,” if we’re to be a bit more blunt.

One of the more reliable sources of information and analysis about online piracy (in my opinion, at least) is TheTrichordist, a blog collective headed up by David Lowery of Cracker and Camper Van Beethoven fame.

In addition to being a guy who has made some mighty fine music with his various projects over the years, Lowery is a mathematician, a meticulous thinker, and a fellow who does not mince words.

If you’re reading about the online piracy of music from the perspective of a successful musician and entrepreneur TheTrichordist should definitely be on your required reading list.

Bookmark it, check it regularly — and enjoy the free education.

Antigua’s “Legal Pirate Site” Might Be Bad, But Current, Illegal Pirate Sites Are Worse

Posted on January 29, 2013 by admin

If you follow intellectual property-related news, then you’re probably already aware that the World Trade Organization has ruled that Antigua and Barbuda have the right to suspend U.S. intellectual property rights.

The decision stems from a long-running conflict between the islands and the U.S. government over the States’ online gambling regulations, which prohibit U.S. players from waging bets handled by websites (and other remote gambling mechanisms, like off-track betting). The history of this dispute is long, somewhat complicated and well beyond the scope of this post.

Rather than rehash how and why the ongoing negotiations between the U.S. and Antigua reached this antagonistic point, let’s engage in a bit of speculation of as to how the “legal pirate site” operated by Antigua might operate, and how it would compare with existing, illegal pirate sites.

Presumably, since the whole point of the site would be to make money to offset the harm done to Antigua’s economy by the U.S. online gambling prohibition, the Antigua government plans to sell copyrighted works on the site, rather than distribute the works for free, as many illegal pirate sites do. In my view, that fact alone would render Antigua’s legal pirate site significantly less popular than existing illegal sites; the primary reason for such sites’ popularity, after all, is that they offer copyrighted materials for free.

There might be some appeal to the idea that downloading content from the Antiguan site is “legal” (although it’s not clear to me that it really would be legal, with respect to the end-users of the site and the various jurisdictions in which they live), but somehow I don’t think that fact will matter much to people who are already knowingly and willfully obtaining copyrighted materials illegally. If the law doesn’t matter to them now, why would it start to matter to them once the Antiguan site is live?

At the end of the day, I suspect Antigua might be disappointed by the revenue produced through its piracy site, should they follow through with launching it. For one, the site would be capped at $21 million per year in sales under the WTO’s ruling. The larger problem the site would face, though, is one faced by many of DMCA Force’s clients who make their living selling content online — competing with pirates who offer the same wares for free, unrestricted by any need to comply with the terms of a WTO ruling, and unconcerned with the laws and regulations of any country or governing body.

Piracy and the Entitlement Mindset, Again

Posted on January 24, 2013 by admin

Earlier this week, I sent a link to my previous post on this subject to an old friend of mine. Once upon a time, we were both in local rock bands and fancied ourselves to be future professional musicians.

These days, he has a pretty good job, makes a nice living, has a couple of kids… and gets all of his music by way of torrent tracker sites — and I mean ALL of it. He told me a while back that he hasn’t purchased an album in over 6 years, because “there’s no reason to.”

Really? There’s “no reason” at all to buy music? No reason at all to support the efforts of people who are trying to live the dream that he and I once shared, as well?

In a long (and at times, uncomfortably heated, considering that we’ve been friends for over 25 years) phone call we had after he read the post I sent him, he must have covered every single common rationalization for content pirating that I’ve seen, read and heard since online piracy first became subject of public debate.

I’m forced to paraphrase for the most part, because it was a phone call, I generally don’t record calls from my friends, and he talks pretty fast. With those caveats in mind, the reasons my old pal doesn’t buy music anymore apparently include:

* Copyright terms are too long.

* Record labels make all the money from music sales, and they “always screw the artists.”

* Musicians make all their money touring, anyway, and he still goes to shows (“three or four times a year;” that should more than make up for pirating thousands of tracks by hundreds of artists, right?) so he does support musicians, you see.

* He can’t afford to buy music, and really, it all should be free, anyway.

* Something about Disney and Mickey Mouse (see “copyright terms are too long” above, I think)

* Record labels are “racist.” (I didn’t bother responding to, or asking further, about that one)

* These musicians are all rich (something that will come as news to most of the musicians at issue, methinks)

* Something about the MPAA suing grandmothers, baby seals, combat veterans and/or destitute invalids.

* Something about “try before you buy” — which is particularly interesting for someone who openly admits to not doing the “buy” part, ever.

* All the new music coming out these days is “crap” — but apparently crap that isn’t sufficiently pungent to disqualify itself from taking up space on the massive external hard drive where he stores his pirated files.

* Etc. etc. etc.

As you can plainly see, it’s an airtight argument. I mean, why should anyone pay for a song released last week when Mickey Mouse (something which I had been hitherto unaware was a song) is still under copyright after all these years? That just defies common sense!

The best part of the conversation, to my mind, was him telling me how disappointed he was that I had “abandoned my roots and gone to work for Big Content.”

I had no idea what “roots” he was talking about, so I just skipped ahead to asking him which of DMCA Force’s clients was “Big Content,” because the last time I checked, most of our clients run what are really quite humble little operations, owned by people who have poured their hearts, souls, energy — and yes, their money, too — into creating songs, software, movies, books and various other creative, educational and/or entertaining works.

True, these rights-holders and creators do have the unmitigated audacity to request that those who consume their works pay the asking price for the privilege of consuming them (foul and monstrous creatures that they are), but “Big Content,” whatever the hell that is, they are not.

After about an hour of trying to follow the “logic” (his word, not mine) of my friend’s point of view, I felt compelled to check the faucets at my house to make sure that water wasn’t flowing upward into them from the drain, and watch the sunset to confirm that it still takes place somewhere to the west of my house.

As we agreed to disagree toward the end of the call, I asked him if he still plays the guitar at all these days, and his answer was an enthusiastic “yes!” Not only does he still play, he recently purchased a beautiful, brand-new American Deluxe Telecaster…. a guitar that sells for around $1700.

He can’t afford a dollar per song, but he can afford a $1700 guitar?

Unbe-freakin-lievable.

On the other hand, if a regular guy like him can afford one, it must be a piece of cake for all those filthy rich professional musicians, right? Riiiiight.

Carnegie Mellon Prof. Addresses ‘Piracy Myths’

Posted on January 17, 2013 by admin

Speaking at the Digital Book World Conference in New York earlier this week, Carnegie Mellon University’s Michael D. Smith addressed three myths common to discussions of illegal downloading, according to Media Bistro.

The first of these myths, according to Smith, is that piracy doesn’t hurt sales. Conceding that there have been three published studies which suggest that piracy does not have a negative impact on sales, Smith claims there are 25 others that show the opposite.

Second, Smith takes umbrage with the oft-repeated lament that “you can’t compete with free,” arguing that “(c)ompeting with free is just a special case of price competition.” Citing the example of what happened when NBC decided to remove its content from the iTunes store (as part of a conflict between NBC and Apple), Smith contends that the far worse option is to not try to compete with free, at least where the digital environment is concerned.

Smith draws a direct, causal relationship between NBC’s decision to remove its content from iTunes in 2007 and a rise in the piracy of that same content following that action. “When people couldn’t find it in iTunes anymore they went to piracy,” Smith says.

Further, Smith says that was a “negative spillover effect” for the entire TV content industry, because “people went and learned how to pirate” as a result of NBC’s actions. Piracy didn’t just increase for NBC following the iTunes dust-up; ABC, CBS and FOX also observed an increase in piracy of their content over the same period.

The last of the three piracy myths Smith takes aim at is the idea that anti-piracy regulation and enforcement of copyright on the part of rights-holders doesn’t work — a point we here at DMCA Force make until we’re blue in the face.

“(W)hen you look at competing with free, using anti-piracy measures to make piracy less attractive does work,” says Smith.

That’s certainly the implicit strategy behind services like ours here at DMCA Force; the fight against pirates is about reducing the visibility of their illicit wares, while continuing to vigorously promote the legitimate versions which they have pilfered in an attempt to enrich themselves. To my knowledge, nobody really believes that piracy can be eliminated through using services like ours; what you can do, however, is make their life more difficult, and make their illegal copies of your copyrighted works harder to find, by demanding take-down of infringing files, and demanding removal of links to those infringing files from the search engine responses on Google, Bing, Yahoo and other major search engines.

Judge: AFP, Washington Post Liable For Improper Use of Tweeted Photos

Posted on January 15, 2013 by admin

The full case is far from over, but Judge Alison Nathan (Southern District of New York) has reportedly ruled that Agence France-Presse and The Washington Post infringed on the copyrights of photographer Daniel Morel in using pictures he took in Haiti following an earthquake there three years ago and subsequently tweeted.

According to Reuters, Judge Nathan “partially granted Morel’s summary judgment motion but also limited damages he could potentially recover. Several other issues in the case were left to be decided at trial.”

AFP argued that once the pictures had been distributed by Morel via Twitter, they were freely available, but that fact didn’t obviate the need for the news service to obtain permission from Morel to use the photos. AFP reportedly also argued that Twitter’s terms of service granted AFP the right to use the images, but Judge Nathan didn’t buy that argument, either.

Interestingly, it was actually AFP that initiated this lawsuit, seeking an affirmative judgment that it had not violated Morel’s copyrights, after Morel accused AFP of improperly using his images. Morel then countersued AFP, Washington Post and Getty Images (AFP distributed several of the photos to Getty, which is where the Post picked them up, evidently).

Reuters further reports that Judge Nathan declined to rule on Morel’s motion for summary judgment on whether The Post, AFP and Getty acted willfully, as well as whether their conduct violated Morel’s rights under the Digital Millennium Copyright Act; those aspects of the case are to be settled at trial, the date for which has not been set.

Reminder: The Trouble Copyright Infringement Lands You In Ain’t Always Civil

Posted on January 11, 2013 by admin

In discussing copyright violation in the Internet Age, particularly with some of my younger friends, I’m often stunned to find that they are unaware that copyright violation can carry with it criminal liability (as opposed to the mere civil liability of up to $150,000 in statutory damages).

Take the case of Xiang Li, an erstwhile web-based software pirate who is now awaiting sentencing after pleading guilty to one count of conspiracy to commit criminal copyright infringement and one count of wire fraud.

Granted, criminal copyright prosecutions are relatively rare, and you generally only see criminal charges in instances of large scale, for-profit commercial infringement, but when the authorities set their sights on you, you’re quite likely screwed. As the Xiang Li case demonstrates, federal authorities are willing to go to great lengths to get their man. According to a report in the New York Times:

Mr. Li was arrested in June 2011 in Saipan in the Northern Mariana Islands during a meeting that had been arranged by undercover agents posing as American businessmen. The agents arranged the meeting under the guise of picking up their purchase of pirated software, design packaging and 20 gigabytes of proprietary data, and to discuss a plan to transmit cracked software over the Internet so they could resell it to small businesses in the United States.

The trouble didn’t stop at Li, either; two of his biggest customers, a NASA electronics engineer named Cosburn Wedderburn, and Dr. Wronald Best, chief scientist at an “unidentified government contractor that provides services to the Unites States military and law enforcement” (as the Times put it), both pleaded guilty to a single count of conspiracy to commit criminal copyright infringement, and are awaiting sentencing.

Does Congress Have a SOPA Hangover?

Posted on January 9, 2013 by admin

Earlier this week over on Hillicon Valley, Jennifer Martinez penned an interesting piece about an apparent reticence on the part of many in Congress to introducing new legislation designed to curb online piracy, a hesitance reportedly tied to the public outcry against the Stop Online Piracy Act around this time last year.

According to Zoe Lofgren, a member of the House who represents California’s 19th District, some members of Congress remain “shell-shocked” from the SOPA backlash of early 2012.

“It was sort of an unprecedented experience that members do not want to repeat,” Lofgren told Martinez.

Given the tenor and intensity of the opposition to SOPA, I suppose it is understandable that many in Congress would be a bit gun shy about trying to address the issue of online piracy through new legislation, but this attitude seems to assume that no such legislation can be crafted that would be less objectionable to the public.

What if, instead of seeking to address piracy entirely through tighter regulations and more stringent intellectual property rights enforcement, Congress instead sought a compromise between the so-called “copyright maximalist” position and the Culture of Free perspective that has become increasingly popular in the Internet Age?

What if, in exchange for changes to the DMCA that made life a little easier on rights-holders who currently have to spend their time and resources ferreting out online infringements on their IP, Congress threw the Copyright Reform Now! crowd a bone by shortening the duration of copyright back to a period that is closer to the one envisioned under earlier iterations of U.S. copyright law?

I don’t pretend to have the solution that will make all parties to the copyright reform debate happy (which is, as Henry Clay noted, not really what “compromise” is all about, after all), but I feel like if the opposing side of the debate could move, even just a little, toward the other side’s position with respect to some of the key issues in the Great IP Debate, we might actually be make some progress that would benefit all involved.

Is the idea of a Grand Copyright Compromise a pipe dream? Probably, but it’s worth a shot. Reasoned debate, while a mighty rare animal in Washington (and everywhere else) these days, is still possible…. theoretically, at least.

The Vimeo Case: A Study in “Knowledge” and “Control”

Posted on January 7, 2013 by admin

At the heart of the “safe harbor” provisions of the Digital Millennium Copyright Act is the idea that Internet Service Providers should not be liable for infringements on copyright undertaken by third-party users of the ISP’s site/services/network, so long as the ISP in question adheres to the requirements delineated under Section 512 of the DMCA.

In practice, many service providers and site operators appear to interpret Section 512 to mean that so long as their website(s) accept materials uploaded by end-users, and they respond affirmatively when asked to remove copyrighted materials at the request of the rights-holder (or someone empowered to represent rights-holders, like DMCA Force), then they are, ipso facto, eligible for the protection that the safe harbor provisions offer.

Fortunately (or unfortunately, depending on one’s perspective), there’s more to receiving Safe Harbor under the DMCA than operating a user-generated content (“UGC”) site and responding to take-down notices — and if the plaintiff’s presentation of the facts of the case are accurate, then popular UGC video site Vimeo.com might be primed to receive a very unpleasant (and very expensive) lesson on the scope and contour of the DMCA’s safe harbor.

Filed in late 2009, the plaintiffs in the case include Capitol Records, EMI and various other record labels, and in their most recent filing, the plaintiffs take aim squarely at the question of whether Vimeo has satisfied the statutory requirements for receiving Safe Harbor under the DMCA.

Spoiler alert: The plaintiffs say Vimeo should receive no such protection…. and if their recitation of facts is accurate, my hunch is that the Court will concur.

In a motion requesting partial summary judgment (and opposing the same for the defendants), the record labels catalog a litany of alleged DMCA sins on the part of Vimeo and its employees, actions (and in some cases, inaction) which are likely to raise some judicial eyebrows in light of what is required of safe harbor recipients under the DMCA.

For example, the plaintiffs argue that the safe harbor provisions do nothing to obviate the liability of an ISP where the alleged infringement at issue is perpetrated by the ISP itself, including employees and staff of the ISP.

Aiming to demonstrate that Vimeo had direct knowledge of infringement on the plaintiffs’ works extant on its site, the plaintiffs assert that “Vimeo’s employees and Staff themselves make audiovisual works that infringe Plaintiffs’ music.”

Apparently, Vimeo doesn’t even dispute this claim; in its latest filing, the plaintiffs wrote “Vimeo admits that ten of the infringing videos on the schedules to the complaints in this action reside in the accounts of Vimeo employees.”

Citing the language of the DMCA directly, the plaintiffs assert that DMCA safe harbor only applies to “storage at the direction of a user,” and further argue that the “user” in question can’t be an employee of the ISP.

“Vimeo-made content is not ‘user-generated content’ and does not meet the definition of Section 512(c),” the plaintiffs argue. “Nor can Vimeo avoid liability by claiming that it is not charged with the actions of its own paid personnel whose job responsibilities include creating videos.”

The plaintiffs also argue that the fact that Vimeo employees created and uploaded some of the videos at issue in the case also belies Vimeo’s claim that it had no knowledge of the alleged infringement — an argument that seems pretty solid, on its face.

The plaintiffs assert that Vimeo’s complicity in the alleged infringement goes beyond the creation of videos, as well. “Vimeo employees not only made infringing videos, they instructed users how to incorporate unlicensed music, and reviewed and commented on videos they knew used unlicensed commercial music,” the motion states.

The plaintiffs also note that in defending the claims against it, Vimeo “does not even submit a single declaration from any Staff member refuting his orher actual knowledge.” The plaintiffs cite internal documents and comments published on the Vimeo website appear to indicate the contrary. For example, Vimeo evidently selected as a “Staff Pick” a video set to a recording by Daft Punk (a Capitol Records artist), and Vimeo employees have allegedly followed and “commented on dozens of videos set to commercial ‘pop songs’…. including videos incorporating recordings by The Beatles, David Bowie, and The Beastie Boys.”

The plaintiffs find fault with many other aspects of Vimeo’s operation, as well, including a lack of enforcement of a repeat infringer policy (a policy that was allegedly not established until after the case was filed), Vimeo’s refusal to adopt filtering technologies that could limit infringement, a lack of timely response to notification of infringement and allegedly inducing its users to commit infringement.

It remains to be seen how Vimeo will respond to the plaintiffs’ latest motion, but if the facts recited in the motion are accurate, it’s hard to see how a court could conclude that Vimeo is eligible for DMCA safe harbor, at least with respect to the specific works and infringement cited in the motion filed last week.

No matter how this case plays out, ISPs and operators of UGC sites would be well advised to question whether they are really doing everything required of them under the DMCA to receive the benefit of the Act’s safe harbor, and to have their legal counsel conduct a thorough review to ensure compliance to the extent possible. After all, the single worst place to find out the answer to such questions is within a court of law, where education often comes with a hefty, potentially business-killing price tag.

Report Asserts That Google Supports Pirate Sites; Shockingly, Google Disagrees

Posted on January 2, 2013 by admin

A new report published by the University of Southern California’s Annenberg Innovation Lab ranks the top ten online ad networks in terms of the number of ads placed on pirate websites, and to just about nobody’s surprise who has ever worked on an anti-piracy campaign, Google’s Double Click network and Yahoo’s Right Media chime in at numbers two and six on the list, respectively.

In comments given to the L.A. Times, an unidentified Google representative took umbrage with the report’s conclusion.

“To the extent [the study] suggests that Google ads are a major source of funds for major pirate sites, we believe it is mistaken,” the Google spokesperson said, according to the Times. “Over the past several years, we’ve taken a leadership role in this fight. The complexity of online advertising has led some to conclude, incorrectly, that the mere presence of any Google code on a site means financial support from Google.”

As I understand it, websites that display ads distributed by the Double Click network do, in fact, receive payment for displaying those ads, so it’s a little hard to understand how the “mere presence” of that particular type of Google code could represent anything other than financial support from Google.

Google can claim it doesn’t intend to support piracy sites through its ad network, or it can claim that allowing such sites to participate in Double Click does not constitute “support” for those sites, even if those sites earn money through the ad program, and perhaps have a valid point. At the end of the day, though, it’s hard to get around the fact that some of the very same websites that Google itself reports receiving the highest volume of DMCA take-down notices in relation to also carry Double Click ads on them.

Bottom line to all our friends at Google: Go ahead and call this sort of thing an unfortunate and inevitable byproduct of the Internet advertising environment, or say that you are giving such sites a healthy portion of “benefit of the doubt” with respect to claims that they willfully violate copyright and other intellectual property laws…. but don’t piss on our shoes and tell us it’s raining.

The Long Saga of Jammie Thomas-Rasset; Will It Include a Trip to the U.S. Supreme Court?

Posted on December 27, 2012 by admin

Way back in 2006, The Recording Industry Association of America (RIAA) filed a copyright infringement lawsuit against a woman named Jammie Thomas-Rasset as a result of Thomas-Rasset’s use of the Kazaa peer-to-peer protocol to download and share music. The case was one of many thousands filed by the RIAA, most of which settled out of court for sums of approximately $3500. Thomas-Rasset, however, declined to settle with the RIAA, and decided to take her chances in court.

What ensued is one of those long, winding tales of litigation that pepper the history of American jurisprudence, one that highlights one of the more controversial aspects of copyright law: statutory damages.

The short version of that story is as follows:

The first jury to hear Thomas-Rasset’s case awarded damages of $222,000 – which works out to $9250 per song for the 24 tracks at issue in the case (the RIAA notes that it could have included hundreds of other songs in its complaint). Having found her to be a “willful infringer,” the jury could have awarded as much as $150,000 per song to the RIAA — so up to $3.6 million for the 24 songs in question.

The district court judge termed the jury’s award to be “oppressive” and “unprecedented,” and ordered a new trial. Unfortunately for Thomas-Rasset, the second jury was even less sympathetic to her than the first, and ultimately awarded damages of $80,000 per song, yielding a total of $1.92 million. The judge liked that sum even less than the original (calling it “shocking” and “monstrous”) and entered a remittitur reducing the damages to $2,250 per song, for a total of $54,000.

As you might expect, the RIAA wasn’t too keen on having damages of $1.92 million reduced to 54 grand, so it refused to accept the remittitur, leading to a third trial for Thomas-Rasset.

The third jury came up with a sum closer to the second jury than the first; $62,500 per song and $1.5 million total. Again disagreeing with the damage amount, the court granted a motion to reduce the judgment back to $54,000, finding that the higher award violated the Due Process clause of the U.S. Constitution.

On appeal, the Eighth Circuit Court of Appeals found that the district court had erred by applying the wrong standard in reviewing the federal statutory damages award. Along the line, the appellate court determined that the original jury award of $222,000 was constitutional, and reinstated those damages.

That development brings us to the latest development in the case; rather than accept the reduced damages ordered by the appellate court, Thomas-Rasset’s attorneys have petitioned for the Supreme Court to hear the case, asserting that various judicial districts around the country are split on the question of which legal standard should apply to reviewing statutory damage awards.

Will the Supreme Court hear the case? Even if it does, there’s no guarantee the Supremes will see things Thomas-Rasset’s way, but it could lead to a review of statutory damages in copyright cases on the part of Congress — which is the most likely path to any sort of change in how statutory damages are handled, anyway. The Court, even if it doesn’t like how such damages are awarded, or the sums they are awarded in, may well punt the issue back to Congress, simply because fundamentally changing the existing statutory damages structure is not within its purview.

Just In Time for Christmas: Judge Issues Ruling in Christmas Carol Copyright Case

Posted on December 17, 2012 by admin

OK, OK, so “Santa Claus is Coming to Town” technically probably doesn’t count as a “Christmas carol,” but considering it one made for a nice, alliterative ending to the headline for this post, so I couldn’t resist.

As I perused the news sites for the latest news on copyright lawsuits, I couldn’t pass this one by without giving it a look: “Judge Says ‘Santa Claus is Coming to Town’ Copyright Suit Came to Wrong Town.” If you’re like me, you simply can’t read a headline like that without wanting to know more.

Imagine my disappointment when I found that the headline really just summarized the news in pretty straightforward fashion: District Judge Kenneth Marra, a federal judge in West Palm Beach, Florida, ruled last week that a lawsuit in which the heirs to the “Santa Claus is Coming to Town” copyright was filed in the incorrect jurisdiction.

“The activities of the affiliated entities that plaintiffs have uncovered are either unrelated to defendant, do not take place in Florida or fall well short of the level of activity required to establish general personal jurisdiction,” Marra wrote.

Happily, as it turns out, the case involves more than an opportunity for bloggers to write clever headlines; it actually covers some interesting and controversial aspects of copyright, as well. Read more about it on law.com.

US Trade Rep Office Releases Updated ‘Notorious Market’ Review

Posted on December 14, 2012 by admin

The Office of the U.S. Trade Representative (USTR) has released its latest “Special 301 Out-of-Cycle Review of Notorious Markets” report, listing both online and physical markets that “exemplify marketplaces that deal in infringing goods and services, facilitating and sustaining global piracy and counterfeiting,” as the USTR put it in its statement published yesterday.

Among the services, link lists and trackers that the USTR pegged as notorious were The Pirate Bay (no real surprise there) the Brazil-focused Baixe de Tudo (which means “download everything” in Portugese), China’s Gougou, the forum Warez-BB, Rapidgator.net, Putlocker, Ex.ua, IsoHunt, Kat.ph, torrentz.eu, Rutracker, Zamunda.net, Arenabg.com, vKontakte, Zing.vn and various clones of Allofmp3.

Striking some familiar notes, Ambassador Kirk noted that piracy and counterfeiting is a problem that “hurts the U.S. economy, harms some of this nation’s most creative and innovative entrepreneurs and companies and threatens jobs for significant numbers of middle-class American workers,” while expressing some optimism in light of recent progress in international cooperation on anti-piracy efforts.

“I applaud the actions that some markets have taken to begin ridding their virtual and physical marketplaces of pirated and counterfeit goods, as well as enforcement actions taken by certain governments that have resulted in the shutdown of several other markets,” Kirk said. “It is through both voluntary and government actions that we will continue to improve the landscape for IPR owners and companies and their workers here at home that rely on IPR protection.”

The full Notorious Markets review can be read here.