Tag Archives: torrents

A Few Words About “Copyright Trolls”

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If you follow copyright law and intellectual property-related news at all, then there’s little doubt that you’ve read about “copyright trolls,” a term for which Wikipedia offers as good a definition as I’ve seen: “a pejorative term for a party that enforces copyrights it owns for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing the works it owns for paid distribution.”

In the last several weeks, there has been a great deal written and said about Prenda Law, and the various attorneys and law firms associated with it. Over at Popehat.com, attorney Ken White has covered the Prenda saga much better than I’m capable of, so if you aren’t familiar with the story to-date, that’s where I would start.

Let me say up front that I don’t know whether any of the allegations against Prenda are true, and that Prenda and the attorneys, paralegals and others associated with it are entitled to the same presumption of innocence that the rest of us are. If, however, the allegations against Prenda are true (allegations that include failure to disclose a financial interest in its cases, identify theft, and blatantly ignoring orders of the court, to name a few) then it is the sort of organization that should be condemned, loudly and forcefully, by rights-holders, the legal community, the judiciary, and the general public alike.

Make no mistake; I’m of the mind that modern digital piracy is a scourge much worse than its pre-Internet Age counterpart. In the days before online distribution, even the largest of pirate outfits couldn’t distribute its counterfeit wares instantly and globally, as the modern pirate can (and does). Staring at a problem like that, it’s no wonder that some rights-holders would consider damn near any tactic as a countermeasure, including suing torrent users as “John Doe” defendants.

What we cannot do as rights-holders, however, is to allow our frustration and anger over online piracy to affect our judgment when it comes to how we approach the anti-piracy fight. We cannot allow our cause to be derailed by unethical opportunists, by people who would abuse the very legal system that we are asking to help protect and enforce our intellectual property rights.

I have no issue with rights-holders seeking redress in the courts when their intellectual property has been infringed upon. I must admit, I have reservations about the idea of suing file-sharers, in general (reservations that stem from public relations and customer satisfaction concerns more than legal concerns), but if it is done properly and with due respect for the rules of evidence and protocols of the court, I don’t see anything inherently monstrous in a rights-holder taking to court those who infringe on their copyrights via torrents, or by way of any other distribution technology.

What I do have a problem with is using our legal system to intimidate, cajole and manipulate people (people who may well be innocent of the alleged infringement at hand, to boot) into signing settlement agreements, presenting questionable evidence as ironclad proof of infringement, and treating orders from the court as mere suggestions.

If you’re a rights-holder who decides to go down the road of filing lawsuits against end-user consumers, be they torrent users or people who share files via some other p2p protocol, you absolutely must take the time to do your due diligence when hiring attorneys to represent you in those efforts. When considering an attorney for that purpose, here are some basic, fundamental questions you should ask yourself:

* Is your prospective counsel an experienced intellectual property litigator?

* Does your prospective counsel have a proven track record of ethical conduct? (Or, at the very least, a track record lacking evidence of unethical conduct.)

* Does your prospective counsel ask you the right questions when discussing your litigation plans? For instance, if the attorney in question doesn’t ask you, fairly quickly, whether you have registered a copyright for the work(s) you’d like to sue over, then something is wrong. That person either doesn’t know what he’s doing, or is making entirely too many assumptions regarding his prospective client’s familiarity with intellectual property law.

There are other considerations, of course, but if you find cause for concern with respect to the answers to any of the questions above in connection with an attorney/firm you are considering retaining, then you should NOT hire that attorney or firm. Period.

One of the services that DMCA Force offers to its clients is referral to solid, reputable intellectual property attorneys. Even given a recommendation from us (a recommendation that I like to think is a very well-considered one) it is still incumbent upon the client to ask the right questions, and to confirm that the attorney or firm they’ve been referred to is right for them.

Intellectual property litigation is serious business. It’s complicated, costly, fact-intensive and potentially controversial in the eyes of the court, particularly once you get into litigating against John Doe end users. As such, it’s not the sort of thing you want to hire just any old lawyer to handle. Choosing the wrong attorney can result in much worse than a waste of time, effort and money; it can result in your very brand being tarnished, when consumers (or arguably worse, federal judges) start painting you with the same brush applied to your choice of counsel.

The Copyright Alert System, Consumer Attitudes and…Fascism?

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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 Copyright Alert System Launches At Last

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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.

Piracy and the Entitlement Mindset, Again

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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.

Two Reports Suggest a Decrease in Illegal Downloading; Are They Right?

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Two recently published reports, one from Musicmetric and the other from Sandvine, report recent declines in illegal downloads of music and videos (or, at least, reduced use of platforms that are popular for the download of such files), and both point to an increase consumer adoption of legitimate sources for streamed content as the reason for the decline in piracy.

In an interview with National Public Radio, Rich Bengloff, president of the American Association of Independent Music, endorsed Musicmetric’s speculation about the cause in reduced downloading, arguing that “making music available the way consumers want their music made available…and pricing it at a level that is attractive enough to them that they don’t want to pirate the music” is an effective means of combating piracy.

For its part, Sandvine reported a substantial reduction in the percentage of total North American traffic comprised by BitTorrent use, stating that in the last year, “BitTorrent has declined from 18.87% of total traffic on North American fixed access networks to 12.44%.”

While trends in both reports seem like good news, some question whether there’s more to the story than an increase in legal streaming alternatives available on the market. Joshua Friedlander, an analyst for the RIAA, is among those skeptical of Musicmetric’s findings.

“They were only looking at torrent traffic, and there are actually a number of other illegal sites out there that provide illegal access,” Friedlander told NPR. “So I’m not sure that that was a complete view of the market.”

Based on the data tracked by DMCA Force, I’m inclined to agree with Friedlander; torrents are merely one source of pirated materials, and while it may indeed be true that use of torrents is on the decline, other illicit sources for pilfered digital content abound, and in our experience, migration to new protocols and platforms is at least as quick and common among content pirates and freebie-seeking downloaders as it is among paying consumers.

Having said that, to the extent it’s true that infringing use of torrents is down (there are some non-infringing uses for torrents too, after all), here’s hoping that trend continues, and the convenience and ease of digital distribution breathes new life into entertainment industry revenue-generation efforts, rather than serving to undermine those efforts.

Is There Such a Thing as a ‘Legitimate’ Cyberlocker?

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Whether you call them “cyberlockers,” “file lockers” or “cloud hosting services,” sites that offer both file storage and file sharing capabilities to their users have been in the news a lot lately, often not in a positive context.

In the midst of the ongoing Megaupload story and Australian webmaster Robert King’s mission to make life difficult for various allegedly illicit cyberlockers, an interesting question comes to mind: Is there any such thing as a legitimate and/or responsible cyberlocker?

Despite the potential for abuse inherent in the way cyberlockers function (those that offer a financial incentive to encourage file sharing by their members, in particular), DMCAForce’s answer to that question is a resounding “yes.” The problem with cyberlockers is not the technology itself; the problem is in what some unscrupulous site operators do with that technology.

Take the allegations in the Megaupload case, for example; if the prosecution proves its claims concerning the alleged willful acts of copyright violation (including a mass ‘scraping’ of YouTube’s video library in 2006) the consequences for Megaupload won’t be a function of having run a file locker, they will be a function of having run a criminal enterprise. In other words, it’s not about a site’s technology, it’s about that site operators’ conduct.

In our view, any file locker that pays account-holders based on the number of views or downloads generated by the content uploaded by those account-holders is playing something of a dangerous game, because to many rights-holders, that sort of arrangement between a cyberlocker and its users looks an awful lot like providing customers with an incentive to infringe. Indeed, if you look at what the most popular, most downloaded and most viewed content on cyberlockers (and/or on the torrents), there aren’t too many home videos to be found on the list; the most popular files are, by and large, Hollywood movies, and usually relatively recently released ones, to boot.

While it’s unreasonable to expect a site the size of Megaupload to be entirely aware of all the files uploaded and shared across its system, there is such a thing as willful blindness, and in some cases cyberlocker providers are likely a whole lot more aware of the illegal activity taking place on their site and network than they will publicly admit. Some operators might not only be aware of the illegal acts, they might be the ones committing those acts, as well.

So, if illicit cyberlockers are ones that turn a blind eye to infringement (or worse, are operated by those who engage in infringement directly) how does a legitimate cyberlocker conduct itself, by contrast?

For starters, any site that publishes or provides access to “user-generated content” (UGC) should abide by the safe harbor provisions of the DMCA. Even for sites based outside of the U.S., run by operators who may not believe themselves to be subject to U.S. law, it is still a good business practice to abide by the DMCA.

Beyond DMCA compliance, we also believe it isn’t a good sign if a cyberlocker includes an affiliate program that pays users based on the number of views and/or downloads that their uploaded content generates. Inevitably, such an arrangement invites users to upload the content that they believe will be the most popular with other users, and thereby the most profitable, as well. If you think about how many views the new Batman movie would attract, as opposed to the number generated by some random amateur homemade video, we think it is fair to say the former would be the bigger draw. For a lot of cyberlocker uploaders seeking to make money off of these affiliate programs, many of whom hail from countries with depressed economies and few job opportunities, the ease and speed of making money from content piracy is too great a temptation to withstand.

In short, there’s no reason why a cyberlocker can’t be a valid, law-abiding business. For that matter, cyberlockers enjoy a great deal of leeway under the law (more leeway than a lot of rights-holders are comfortable with, in fact). Running a cyberlocker as a legal, legitimate service doesn’t require a superhuman effort, just respect for the law, common sense, and the ability to resist the temptation of the “easy money” that piracy and other crimes often represent.