Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
The CoC posted that "A fair use of a work is an infringement" which is directly contradicted at 17 U.S.C. § 107, which states that a fair use is not an infringement.
To be fair, the distinction is somewhat subtle, because it turns on the notion of how fair use is invoked, as a defense against a charge of infringement. To be charged with a crime is to require a defense against that crime; if your defense is accepted then by definition you did not commit that crime. So it is with fair use - it acts to defend users of material against infringement charges and if their fair use defense is sustained, then they did not commit an infringement.
Subtleties aside, though, you'd expect an organization like the Chamber, which is purporting to lecture people on "5 Copyright Terms We Need to Stop Using Incorrectly", to get its basic facts correct.
As David Kravets reports for Ars, ISPs who are now part of the Cartel's enforcement arm have sent over 1.3 million infringment notices to customers in the last year.
Is it working? Depends on what you think "working" looks like. If you're the RIAA you spin this as "cautiously optimistic". If you're capable of looking at a calendar you might flip back to the dark ages of 2001 and note that it's been 13 years since Napster was shuttered and the Cartel is still treating its customers like the enemy. You might also note that trench warfare is really dull and unproductive and try to find more interesting things to blog about. Here, have a funny picture of a baby yawning.
Masnick calls this "collusion" which is no doubt correct but I bet you could also apply the term "racketeering" to it. Sadly, I'm not a lawyer because if I was, I'd be out there seeing if a RICO case could be made against ASCAP and its label partners. That would be a damned sight more satisfying than settling with the e-book publishers.
MPHJ, generally known as the scanner patent troll, owns patents that, it claims, cover any use of scanners to digitize and send documents. Their methods for attempting to enforce these patents have been particularly odious: they hide themselves inside shell companies and misdirection schemes; they mass-mail small companies with obnoxious threats; they try to pressure scanner makers into having the companies that buy scanners pay off MPHJ. They're like the poster children for bad patent enforcement behavior and now that notorious porno-scammers Prenda have gone down in flames MPHJ seems to have the field of disgusting misbehavior largely to themselves.
As such, they've been the target of an FCC investigation and since the FCC has subpoena powers that mere mortals do not posses this has caused a number of documents to come to light. MPHJ has sued the FCC and filed other documents in support of its suit; the FCC has likewise filed documents defending itself against this suit. All these are filtering into the public record, from which the EFF has concluded that these people are festering pustules on the buttocks of the patent system. No, wait, that's my conclusion.
What got me to write about this is that the EFF has finally said something I've been banging on about in this blog for years: the root of the problem is crap patents, which enable bad actors like MPHJ. EFF's blog posts notes that the patents are "too broad and vague" and even admits that the current Congressional legislative proposals "would largely fail to address the underlying problem of patent quality."
The EFF seems to think that because SCOTUS agreed to hear Limelight v Akamai and Nautilus v Biosig this will somehow "get at the heart of the patent quality issue". Yeah, I'm not so sure. Given the hash that SCOTUS made of the Mayo case I am not hopeful.
As Masnick points out this is at least three kinds of error: you can't copyright government documents; individuals don't own the documents produced by institutions (including the government); and the entire purpose of putting a copy of a document with the LoC is to make it available to the public.
He discusses how publishers and content producers have a general truce, often through channels that help get agreements to use game footage and even early access keys. Why Wild Games Studio chose to break the truce and go after TB's critical video is still unclear. What is clear is he's having none of it, as he lays in to Wild Games for this incident and recounts several other rounds of shady behavior. The spat has also spilled onto the Steam forums, where the CEO of Wild Games has posted claims that "TotalBiscuit has no right to make revenues with our license" - claims that TB refutes in his video.
Details of the particular spat aside, the core question persists: is YouTube's notice-and-takedown system working, or is it being used to silence unwanted criticism? As I blogged last week, the details of any notification system is where the devil resides. It's clear that notification systems need to be designed with safeguards, as TB describes how he is able to rely on external assistance that's not available to smaller-scale critics. YouTube doesn't seem to be doing a lot itself to provide more active safeguards, and that's a potentially bigger problem.
Oh, and I have to mention that TB is donating any ad revenue generated from this video to the EFF.
He notes that this suit is not generally unusual - institutions sue over patents fairly often - but has the unusual feature that BU is going after distributors. Typically, one sues manufacturers who are accused of violating patents, and sometimes one sues retailers in order to force a halt to distribution of allegedly infringing products. This suit may be unusual in targeting distributors, who are often middlemen between manufacturers and the actual retailers.
My guess is that BU is targeting these distributors as part of a legal strategy. If the distributors want to be removed from the suit they might choose to do so by going before the judge and explaining that they (no longer) distribute the allegedly infringing product. If the manufacturer can't find distibutors they may be pressured to come to a settlement quickly since the lack of distributors can have the same effect as a court-issued injunction, but much more quickly.
YouTube has tried to correct some of the excesses; for example, modifying its own ContentID scanning software. But since most of the fights over these things happen out of sight and are settled out of court there's precious little caselaw to support the notion that you can use copyrighted materials in ways that accord with fair use principles - and post videos of that fair use without being stifled.
This story will no doubt take some time to wend its way through, because Lessig and the EFF are out to make a point. Ultimately, though, the reach of any decision is only going to be a region-locked posting. Even though the lecture in question was delivered in South Korea, the petition for judgment rests on US law. Countries that do not recognize scholarly and other exceptions to copyright doctrine might still block the video. Even so, getting a good court case on the books would be a big help.
(I feel compelled to remind readers that the EFF is a non-profit organization and their work is made possible by people and organizations who donate. I do, and if you think this is worthwhile, you can check out their donation page yourself.)
No, really, I can't make this stuff up. E-books are so convenient! people cry. We can take lots of them on a trip. Sure thing, folks. Just make sure the actual e-book owner (which is the publisher or the tablet maker or the OS maker or frankly anyone but you) doesn't detect where you are. Because DRM follies.
Back in June I wrote about SiDi - a DRM watermarking technology that I believe commits copyright violations and perpetrates fraud by producing altered versions (derivative works - illegal under copyright law) and then passing those off as the author's original work (fraud - illegal under marketing and consumer protection laws).
Today Boingboing has an update on the story detailing how various entities such as BREIN (which passes itself off as an anti-piracy group) are working with e-book sellers to record all customer activity, and presumably send the Stasi to your door (or your ISP's door) if they don't like what they see.
The ALA invited me to give a talk but I thought, nah, with the Apple collusion verdict this is kind of old hat now. Maybe, maybe not. E-books still suck, people, and DRM is a big reason why.
Now comes SiDi, a technology that claims to be fighting copying but in fact is creating illegal works. Here's the deal: an e-book with SiDi (and please help me resist making jokes about inSiDious here) has been subtly changed. Words are replaced with equivalents, creating a kind of "watermark" for the e-book that renders it different from the original. If that watermarked version later finds its way out into the wild you know what the original source was. So far so good - in fact, Margaret Thatcher once used a similar technique to figure out who in her cabinet was leaking memos to the press.
However, unlike Ms. Thatcher, SiDi doesn't own the works it's distorting. In fact, what it is doing is creating a derivative work, and passing that derivative off as the original. Now it may not make a huge difference if you read a work where the author's word "unhealthy" is replaced by SiDi's "not healthy" but the law clearly gives the copyright holder the power to determine what changes are and are not permissible. Changes, even minor ones, can create a derivative work. And if you create an unauthorized derivative work, then you've committed a copyright violation.
Worse, if you create a derivative work and pass it off as the work of the original author, you've committed a fraud. What may seem to you or me to be a trivial change may in fact upset an author who has gone to significant trouble to shape the wording of, say, a particular character's dialog. That dialog helps the reader build a mental picture of the character, and the wording of the story sets the pace and flow - all of which we expect the author to control. If you've never watched an author and a copyeditor fight over seemingly trivial wording changes then this may not strike you as a big deal but I have, and trust me it matters. Authors care about the fine details of their craft and having some piece of software go in and arbitrarily change those fine details is a violation of both the spirit and the letter of almost every publishing contract I've seen.
In her column, Susan Lulgjuraj asks the question of whether we've gotten to the point where e-book copying is so widespread that we need yet another form of DRM to combat it. That presumes that this form of DRM will be any more effective than all the other forms, which is to say not at all. And it misses the most crucial question, which is why are we even contemplating something this stupid?
(Image above of Bến Tre - bonus points to anyone who can guess the relationship of that image to this story, without searching first.)
The core idea of this treaty is that people who can't read print or access printed books would be allowed to get some kinds of access for things like education, employment, and so on. The US is actually pretty good about this but for some reason (*cough*money*cough*) the Administration is going about poisoning this treaty so it can't benefit people outside the country but will enrich the MPAA.
Here's the money quote:
[The treaty now says, i]f a book is commercially available in an accessible format, it can't be provided by a library to a person with a disability. This is equivalent to walking into a public library and finding padlocks on all the books with a note that says: "If you want to read it, buy it."
That's not right and it's something I don't think librarians should be silent about. Librarians here in the US have generally been pretty awesome about helping people get access to information - despite frequent official machinations to the contrary - and I'm willing to bet you care about the same principles outside our country's borders. In particular I'm hoping you share my belief that it's wrong for our administration to be forcing lockdowns on libraries in the name of corporate profits.
First, the patent office (examiner) should be finding this prior art. Why that's not happening is complex, but a first approximation would be that the examiner isn't well enough trained, doesn't have enough time to examine each application thoroughly, and doesn't have enough or adequate tools at hand. All three of these causes have been discussed on various boards and blogs frequented by examiners. The solutions are pretty obvious, and any attempt at patent reform that doesn't discuss examiner training, production quotas, and available search tools is defective from the start.
Second, the patent applicant is supposed to conduct an adequate prior art review themselves and should be liable for submitting patent applications without such reviews. In fact, the way the law is set up rewards deliberate blindness. Since you have to disclose any prior art you know about, it's safer not to know about any prior art. The result is a raft of idiotic submissions made with completely inadequate prior art information. We know this to be the case because a reasonably competent person with access to Google, Medlib, or the Science Citation Index can often find something not disclosed on the patent application.
This problem is less straightforward to fix. Increasing penalties for bad prior art disclosures only reinforces the willful ignorance problem. I've suggested before that any application with zero non-patent prior art citations should be rejected out of hand by the USPTO. That would cut out a large chunk of the obvious crap but doesn't encourage the positive behavior we all want, which is inventors doing good thorough searches before applications. My social-software nerd brain thinks we ought to let the USPTO develop some kind of reputation system, and allow applicants with good reputations to get priority examinations, but it would take a fair bit of work to design a fair reputation system that was resistant to gaming by people both outside and inside the Patent Office.
Unfortunately, bad as they are, they appear to be at least surface-level legitimate, though Mullin has some fascinating background about just exactly who these guys are that have been hired to carry out the collection part of the plan. This brings me back to the point I keep harping on, which is that we created this mess ourselves and we're not going to fix it until we take serious steps to reform the patent-issuing process itself. Radical things, like hiring more (and more qualified examiners), permitting summary rejections of trash that is clearly intended just to clog up the system and drag everything out, establishing compulsory licensing regimes, and preventing Congress from filching the fees that the USPTO extracts and that ought to be used to fund most of these improvements. Crazy stuff, I know.
This is all over my blogroll today: Games Workshop is coming down absurdly, wrongly, overreachingly hard on a small author over its fantasy of having a trademark on the phrase "Space Marines" that prevents others from using that phrase.
The most direct victim at this time is author M.C.A. Hogarth. Hogarth reports on a disheartening, but all-too-familiar, situation in which the big company pulls out the big lawyer guns and picks on the small (mostly self-published) individual who doesn't have the money to fight protracted legal struggles. One of the people who has responded is John Scalzi whose blog entry at "Whatever" points out that not only is this "weak sauce" on GW's part, the story may turn out very differently if they ever try to pull this crap on ",,,an actual publisher, with actual lawyers. That should be fun."
Doctorow's post (correctly, I think) also lays some of the blame on Amazon. They had no need to take down Hogarth's e-books. That was a craven corporate decision, and a disappointment. Say what you like about Google, but their efforts with their Transparency Report are setting a standard that other corporations including Amazon could do well to emulate.
So what happens next? Well, readers might want to let Games Workshop know how they feel about this. You can reach them by physical mail in the UK. at Games Workshop, Willow Road
Lenton, Nottingham, NG7 2WS - or if you're more digitally inclined I believe they read and comment pretty regularly on their Facebook page (https://www.facebook.com/gamesworkshopofficial)
See for example this page by the developer of the app called "X-Plane", a flight simulator. So far there hasn't been a lot of reporting on this - the Wikipedia page on Uniloc is actually a good summary as of this writing. The basic issue is that if you want to make an Android-licensed app then there are certain procedures Google advises you to follow for verifying that the person running the app does indeed have a valid license for it. Uniloc claims that the procedure is covered by its patents and has spammed out a bunch of lawsuits, including against popular games such as Bejeweled and Minecraft.
As in the Soverain shopping cart situation, there are companies that have decided it's cheaper to license the patent than fight. The patent (6,857,067) itself is a fairly old item and I can't remember what the state of the art was back in when it was filed. However, the patent cites no non-patent prior art, which is a big red flag since it means that almost any trade, industry, professional or academic publication might be fair game for invalidating the patent. At least two of the smaller players who are being sued have vowed to fight back, so perhaps someone will take this one down, too.
The specific case he discusses involves a shell entity that had its law firm send around "pay up or else" letters accusing IT service providers of violating patents by doing normal business things - in this case scanning a document and mailing a PDF. The troll claimed to have a patent on this process, a ludicrous claim in the first place, and then wanted to enforce the patent against people using equipment, rather than against the manufacturers whose equipment was claimed to be in violation of the patent. But wait, it gets worse.
The protagonist of Mullin's story - Steven Vicinanza- decides to fight back and wins in court - yay! Except that as I blogged about a couple weeks ago, this NPE had rigged the game. The court victory just absolved one company - it didn't touch the patents and claims. Those toxic assets have apparently been distributed to "a network of at least eight different shell companies" that Mullin documents. Each of them is now spreading demand letters, blanketing something like 2/3 of the USA. And, like bullies everywhere, these trolls are targeting the small, poor, and presumably weakest defendants.
According to Mullins (quoting research by Professor Colleen Chien of Santa Clara University) this practice of suing users rather than makers is increasingly popular, presumably because they can be bullied into paying up more easily. Shades of the Copyright Cartel going after individual song downloaders!
As I noted last month, the legal landscape is vastly slanted in favor of this kind of activity. NPEs are immune to counter-suit, they can mass-mail demand letters to collect from the weak and the scared, and the cost of fighting them to the point of invalidating their bullshit patents would be much higher than the costs of paying their extortion demands. Yes, the patents are bullshit - ars links to them and you can go read them for yourself. Vicinanza apparently spent $5000 on a prior art search that was good enough to make the trolls run and hide, which leads me back to my tired refrain of "can we please get the USPTO to stop issuing crap patents."
You can read Mullin's story to follow the shenanigans that are still going on. It's pretty clear that the people involved are doing everything they legally can to hide their tracks, erase past identities that have gotten tainted, and make as many fast bucks as possible. It's bad behavior and bad news all the way through, so if you ever wondered why there's bad blood around patent trolls now you know. Certainly not all NPEs behave this way, and there remain good and valid reasons to use NPEs but that's going to get buried under the heaps of rubbish kicked up by abusers like this.
(Thanks to an anonymous Copyfight reader for the initial tip.)
Meanwhile, in a minor fit of sanity, both sides have separately agreed to withdraw requests that judges block sales of each others' products. Lawsuits will continue until the sun goes nova and grows cold, one expects.
If you aren't familiar with gaming and YouTube, let me give you a bit of background. People who game love to make videos. They make response videos, they make trash-talk videos, they make commentaries. There are also millions of helpful videos - everything from "see this cool mod for this game" to "here's a walkthrough of that tricky bit in Act 2." One of the best ways to judge the vibrancy of a game is to search for it on YouTube. A game with a lot of fans will have a lot of vids and those vids will have recent responses and active comment threads. So when a gaming company steps in and starts hacking away at the fan video activity around their games, it's a big deal.
The picture is complicated by the fact that many fans make money on these videos. There are gaming channels and people who are paid to do walkthroughs, to publish guides for third parties, to live-stream competitive gaming matches, etc. Some of the people who do make money at this have complex agreements with the games they cover, but most of the smaller players do not. So when Sega issues DMCA orders against vidders the result can be the suspension of an entire channel or YouTube user, cutting off legitimate sources of income, not to mention running roughshod over fair use. The professional game-caster known as "Total Biscuit" noted that Sega has even targeted videos of people talking about the game, with no Sega material shown.
In this case, Sega's actions have been oddly specific, targeting pretty much everything related to some very old content. The theory is that they're going to put out a new installment in the franchise and want to control what items come up in searches. I can't express my level of disgust at a corporation using the DMCA to sabotage someone else's Google-juice.
It's generally hard these days to be a Safe Harbor defender. The key provision of the DMCA that permits high-volume sites to operate more or less freely - without pre-approval - requires that they also be willing to respond to take-down notices. And this is where the trouble begins: takedown notices get seriously abused; people file takedown notices for material they don't even own the rights to. The DMCA provides no sanction or penalties that might curtail this abuse; someone can spam DMCA notices like they would spam Viagra ads and nobody is likely to stop them.
The facts appear simple: some years ago, a blogger at Edublogs published copyrighted content. According to WPMU.org, another site hosted by ServerBeach, the offending material consisted of 279 words and was published in a 2007 blog entry.
Pearson, the educational technology company, owns rights to that material and sent a DMCA notice earlier this month to have it taken down. The notice passed through to Edublogs administrators who, as the BBC noted, used a simple Wordpress feature to make sure the entry containing the disputed material was only visible internally. This, however, did not satisfy ServerBeach, which took upon itself the role of "three strikes arbiter" and less than a day later shut down 1.45 million edublogs. That's all million-and-a-half blogs, all entries, blacked out.
Think you might be overreacting just a WEE bit there, ServerBeach? The hosting company claims it had no choice but to black out the entire site since it couldn't selectively block a single blog or page. Now, aside from being complete technical nonsense, it's also legal nonsense. Technically speaking, any ISP can selectively block traffic to or from any URL it is the host for. It may not be a trivial switch to throw, but the capability exists; claiming it doesn't exist is just stupid. And really, it's not ServerBeach's job to be a copyright cop. That's the whole point of the DMCA - ISPs get Safe Harbor by acting as neutral third parties. The copyright dispute exists between Pearson and whoever is determined to be responsible for the publication of the material, which might be the article's author, the blog owner, or Edublogs, in some combination. If the owner (Pearson) wasn't satisfied with the action taken to remove the material from public view, it should say so.
The story got a round of attention in both the tech and mainstream press, but to my understanding ServerBeach continues to defend its position and actions. Which, if I was Edublogs, would be prima facie evidence that a new ISP is needed, and pronto.
(Thanks to Copyfight reader Ross Hudgens of WPMU.org for bringing this story promptly to my attention; it's been languishing in my queue for almost two weeks now.)
In this case the villain is Microsoft, but you can find hundreds of similar instancse going back to the earliest days of the DMCA, and the story is always the same: $player sends thousands of takedown notices for material in which it claims copyright. The recipient takes down the material and may or may not notify $targets that their stuff is no longer visible. If $target is a big entity with lawyers and money it can usually get its stuff back online, quickly. If $target is you or me, we are (as my kids like to say) ood-scray.
In this case Microsoft clearly went bananas, targeting its own search engine Bing along with other things. But the specifics aren't the point here - the point is that the automated spewing of these notices is now routine and widespread practices and there are no requirements that $player emit only reasonable notices, or are there any penalties for failing to do so. I still think that the DMCA Safe Harbor idea is a sound one, but it clearly needs additional regulatory strength to curb abuses and stop companies controlling online speech.
TorrentFreak reports on leaked MPAA internal memos that highlight the problems the Cartel is having with trying to buffalo the UK's law enforcement into joining its private army, where the US DOJ is already captive - namely, people think it's not right. In fact, so many sane people, even in the media, think it's not right that the MPAA can't get any favorable coverage. Boo hoo.
And when you can't do that, then you need "third parties" (as the memo calls them) who will deliver your message for you, while not appearing to be you. We have a different name for that: lying, or more politely "astroturfing." Basically you recruit some patsies (Boingboing calls them "sock puppets") , feed them your prepared scripts, and have them trick journalists or other citizens into believing that anyone at all, beyond possibly the criminally insane, thinks it's a good idea to ruin this guy's life.
In case you are concerned that TorrentFreak might be engaged in its own misrepresentation, there's a Scribd embed in the story. The document appears to have no seal or other identifying mark on it, so you'll have to judge for yourself whether it's real. Or you could ask the MPAA whether they're employing the same tactics here that they used to try and manufacture support for SOPA. Maybe it's coincidence... yeah, that's it.
In specific, O'Dwyer ran a site that linked to online television programs. You know, the kinds of things you can find via a Google, Yahoo, or Bing search. But nevermind that, his site (which was never on US soil either) apparently violates the law in some way that those search engines don't. Mostly by being run by a poor individual rather than a large corporation, I'm guessing. As a result, O'Dwyer is now facing extradition to the US where he could be looking at a 10+ year sentence for - I keep having to say this because it's so unbelievable - doing nothing wrong.
Sign the petition if you haven't already (as of this writing they're closing on their initial 25,000 signature goal) and please if you live in the UK contact your representatives - anyone whose voice the Home Office might hear.
Today's blogroll brought me two stories of situations where takedowns aren't working. In one case an actual DMCA takedown notice was abused; in the other, someone failed to make a Reality Check and really needs to get a notice.
First up, John Scalzi put up a "Whatever" blod entry expanding on a story from Metafilter about Cudo. Cudo is an Australian bargain seller, which is offering an AUD 99 package for an e-reader complete with a CD-ROM full of books to load onto it. Great, except they probably don't own the rights to distribute those e-books. We're not talking about public domain works, here. These include hundreds of titles that Scalzi (President of the SF Writers of America) recognizes as belonging to active SFWA members. Seriously, this is "200-proof stupidity" to use Scalzi's phrase for it.
On the flip side was have Techdirt reporting on how important Google search results related to SOPA/PIPA reporting had been blocked out due to a bogus takedown notice. Although the post has been reinstated, it appears that the notice was a targeted action by a company named Armovore whose sole purpose is to send out notices on behalf of others. Given the target of the notice, the timing, and the complete lack of relevance to the claimed infringement, it's hard not to see this as a grotesque attempt to block people from reading things that Armovore's Cartel masters don't want them to read. When a government does it, that's censorship. When private companies do it... can we bring a case for fraud and civil damages at least?
There are a whole raft of problems here, not least of which is the hidden nature of things. Techdirt had no idea its content was being blocked - they only found out by accident. I'd bet that the vast majority of authors whose books are on Cudo's CD have no idea about it either. The second problem seems to be that nobody is applying any thought to these processes. How hard is it to ask "do we have the rights to these books?" or "do you own that copyright your'e claiming is being violated?"
It seems to me that the process is broken and people are not following the laws-as-written. How about we focus on fixing what's on the books and in operation already before we go passing more new laws and further restrictions?
It seems that various scientific and technical publishers are raising objections to the USPTO using their publications for prior-art searching. The PDF lays out the Office's position and policies around fair use. It's actually somewhat complicated but the document does a good job of describing things: In some cases, the Office has subscriptions and other forms of paid access. In others it's making use of public sources, or submissions by applicants. In some cases, the Office is providing copies of this material to applicants as part of office actions such as patent rejections or re-examinations, both of which may rely heavily on prior art such as scientific/technical publication.
The Office claims, I think with good justification, that even in cases where it is providing personal copies of non-licensed literature to applicants it is doing so under a protective umbrella of Fair Use. The PDF lays out the Fair Use justification for these practices and notes other steps the Office has taken to protect copyrights, such as not placing non-licensed material online where it could be arbitrarily copied.
Finally, the Office claims (again, I think with good reason) that it requires applicants to be responsible for copyright protection of materials that they submit to the Office and if applicants make copies or distribute materials that the Office supplied them as part of an action, then it's the applicants who bear the responsibility for this (possibly illegal) copying.
What I can't figure out is why this is an issue in the first place? Isn't one of the biggest problems we have with patents today the craptastic lack of prior art on submissions? Isn't it in everyone's best interest to use the available sci/tech literature to make the best possible prior art decisions? If there was some kind of print-on-demand feature for all sci/tech literature inside the Office I could understand the concern, but who exactly is up in arms over what seems to me to be perfectly normal uses of publications?
Or is it just that Fair Use has gotten so badly thrashed in the past couple decades that people sort of conveniently forget it even exists in statute?
I mean, seriously, we're in roughly the 12th or so year of the Copyright Wars and this is not even vaguely news. I should go back in the Copyfight archives and dig up my old postings like the first time the RIAA used the cops (L.A. at that time) or the first time I noted that the Cartel had taken over DOJ more or less wholesale. But I can't be arsed to do it - the song remains the same year in and year out and I'm tired of it.
Still, props to Techdirt for its extensive and meticulous documentation of this latest manifestation of the disaster.
Having discovered how the porn industry is like the Cartel, we now visit the equally vital question of why a news organization would claim copyright in images taken by monkeys. No, I'm not making this up. I can't make up stuff this good.
The real participants in this affair are the blog Techdirt, the award-winning nature photographer David Slater, and Caters News which claims to be the authorized syndicator for Mr. Slater's photographic work. However, the work in question here is a set of pictures that were taken by monkeys, who happened upon a camera that Slater had accidentally left in their reach.
Techdirt initially asked the question of who might own copyright in these photographs, and published a couple of the images about a week ago. It's a cute and funny story, and nobody thinks much more of it apparently. That is, until the day before yesterday, when Techdirt receives (and publishes) a letter from Caters in which it claims to be the syndicator, claims that Techdirt is using photographs to which it doesn't hold copyright, and demands that they be taken down. But what about fair use, counters the blog?
It would seem - and the blog entry is pretty lengthy and extensive on this point - that Caters either has never heard of the concept or doesn't want to admit that it exists. Techdirt seems to be of the opinion that no copyright exists, which I think is wrong for reasons I'll explain in a moment, but they also have gone to a pretty decent length to check with lawyers and are on solid ground for using the images. In fact, a couple of the images can be seen with Caters' ghosting on it, so it's not like TD are claiming originality in these images. They're just pointing at them and saying "hey, here's an interesting story."
Now, the place where I disagree with them is whether or not a copyright exists and if so whose copyright is it. Let's start with an agreement that the monkeys that took the original photographs don't own any copyright, by virtue of copyright being granted to persons. I don't even want to touch on the question of what "moral rights" they might have in Europe - let's stick to US/Berne-style laws.
The problem is that the image presented on the Web isn't the image taken by the monkeys. It's a derivative work. As someone who spends way-too-many-goddamned-hours in Photoshop I can tell you that the process of turning a RAW into the PNG or whatever format gets published involves both mechanical and creative processes. Color correction, light balance, and image cropping are easy examples of places where a photographer applies creativity, skill, and knowledge to get a final output. I'm still no lawyer, but as I understand copyright if I take non-copyrighted source material and apply creative processes to get a new derivative work, I can own copyright in the result.
I don't think there's much debate about "West Side Story" being a retelling of "Romeo and Juliet", nor do I think there's a lot of debate about whether or not WSS is a copyrighted work. I think the exact same logic applies to these photos. Calling them "pictures taken by monkeys" makes for an amusing headline or two but it doesn't match up with reality.
Allegedly, computers at those IP addresses - 1,300 in two Florida counties alone and the EFF estimates as many as 150,000 nationwide - downloaded porn films. The question of whether the computers' owners or the people named in the lawsuits did that, or even knew it was being done, is left as an exercise for the courtroom. Except most people won't get that far
As with the Cartel's jihad, the goal of this campaign is a simple shake-down - get people to pay up (USD 1500 per settlement) rather than fight. As with the Cartel's jihad there are the obviously wrong targets - the old granny, the providers of free wireless, etc. But that's not going to stop this jihad either.
The fact that you'd have to go into court and talk about your porn-viewing habits (or lack thereof) just adds a layer of delicious embarrassment to the whole deal. Corynne McSherry of the EFF gets a quote in the story, but it's up to another lawyer to call a spade a spade. Lory Lybeck calls it:
A perfectly designed extortion scheme
If that name seems a bit familiar to you, it may be because she was in the news back in 2008 - yes, you guessed it - defending people victimized by the RIAA's campaign and proposing a class-action lawsuit against the Cartel.
NYSE sent a letter to TPM claiming that the photograph accompanying that original TPM story violated NYSE Group's "Registered Trademarks." This is... um, hogwash I think is the polite term. First of all, a trademark isn't a copyright. To violate a trademark is to create confusion about the mark and anyone who thinks the TPM story was published or endorsed or paid for by NYSE is on crack. The use of the photo with that story isn't going to confuse anyone about what NYSE does, another purpose of a trademark.
This is pure legal FUD, and shame on NYSE's lawyers for it. (h/t to Volokh Conspiracy for the original pointer.)
(Full disclosure: I work for a company in the financial industry; as such I'm prohibited from trading in certain instruments related to the financial industry. The company I work for does send lots of order flow to NYSE and we have products and corporate agreements in conjunction with them. I've even partied on the NYSE trading floor, once. If any of that constitutes conflict of interest, well now you know about it too.)
Well, um, no. TorrentFreak's post-mortem on the shutdowns indicates that most were back on the net in a few minutes under new domain names. Sometimes it was a simple as changing a .com domain name to a .info or other TLD.
Of course the MPAA and government tout these as "successes" which leads to two possible conclusions. One is that they're just too stupid to understand how the domain naming system works; two is that they're just willfully misleading (that'd be "lying") to the public. Take your pick, and keep this in mind next time you see someone claiming that the COICA bill is a good idea.
Back in June of last year, the Cartel appeared to think that getting a huge jury award against Jammie Thomas (now Thomas-Rasset) wasn't necessarily a great thing. They were willing to take USD 25,000 in order to get Judge Michael Davis to vacate his judgment that the original award was "monstrous and shocking".
So far Thomas-Rasset has refused all settlement offers (to my admitted surprise) and the case has yet to reach a higher court level where the overarching constitutional and precedential matters would be considered. The issues raised in 2009 are still hanging out there.
Steven Musil reports for CNET that the latest award, of 1.5 million will also be appealed. It will be interesting to see if the Cartel continue to make settlement offers of pennies (or hundredths of pennies) on the dollar, in order to avoid arguing the case before higher courts.
Actually that probably should be addressed to Ralph Lauren's lawyers, but in theory they're acting on behalf of the company, so we get to mock R.L., Inc.
The whole thing started with a photoshop disaster, reproduced here so you can see what we're talking about. The wholescale massacre of peoples' images for advertising purposes is well documented. You can go to YouTube and find a hundred videos showing Photoshop "makeovers" - one of the best is the "Dove evolution". But the gist is that anytime you see a model (almost always female) in a magazine, on a billboard, or any other advertising medium, she's been styled, made up, and then digitally altered so as to bear very little resemblance to how she actually looks. There are interesting Copyfight issues here about what is an original and what is a derivative work in this chain of illusion, but that's not what we're here to talk about.
No, instead I want to talk about how stupid a corporate lawyer can be. You see, that image there on the right? That's a Photoshop disaster. The retouching techniques have been taken so far that the person has ended up looking like a cartoon. If you search the blogosphere for "lollipop head" and "ralph lauren" you'll get a wad of scathing commentary on just how badly the image has been distorted. In fact the image was up on the "Photoshop disasters" blog for a while until they got a DMCA takedown notice and they or their ISP caved to it. (Interestingly, the top photoshop disaster currently shown is almost exactly the same disaster done to Brad Pitt, whose head and shoulders are grotesquely out of proportion to his hips and legs in the Edwin Jeans ad.)
Then a DMCA notice landed on boingboing's ISP. Dear lawyers, don't do that. Because not only will you not get your stuff taken down by doing that, you'll get mercilessly mocked. Which you roundly deserve. Copyfight salutes Boingboing's ISP for ignoring this threat and proffers a hat-tip to Cory for reminding us that sometimes humor is the best defense.
The Jammie Thomas retrial was expected (at least by people on the reasonable side of the fence) to produce some kind of verdict that would indicate the general public's (as represented by the jury) disdain for asking someone to pay $222,000 for sharing 24 songs. To be fair, she probably wasn't the one who shared the songs, but they were shared from her computer. So she's held responsible. And now, facing a $1.9 million judgment, she's in an even worse position. Clearly the jury of her peers didn't share the common online opinion, which lends credence to the Cartel's claims that the general public support their position. As the Cartel's lawyers have noted, they did not ask for a specific penalty in their suit - it was the jury that came up with the damages number.
Another widely discussed theory, discussed in depth by Greg Sandoval for CNET, is that Jammie Thomas could protect herself from any payment by filing for bankruptcy. This theory rests on a recent Ninth Circuit decision that held there are different standards for civil and bankruptcy cases. In a civil case, such as this one, the standard for finding against the defendant is that the act had to be "willful" - essentially the RIAA have shown that the file-sharing was not an accident. However, in bankruptcy court they would be required to show that the act was "willful and malicious" in order to prevent the debt from being wiped away.
My opinion is that they'll settle for some token amount. I can't imagine either side wanting this fight drawn out further in the courts or in the press. They are, as several pundits have pointed out, fighting about the past. And I'm guessing both sides would much rather put that past behind them.
Why is this funny? Well, the reports (plural, three of them) that had to be withdrawn were supposed to be giving the Ottawa government advice on how to update Canadian copyright laws. So, yes, the Board copied its copyright reports. But wait, it gets better. Who did they copy from? Apparently, they copied from a Cartel lobby group, the International Intellectual Property Alliance.
It's entirely possible that Canada's laws could use an update. And it's further possible that the Conference Board has some good ideas for updates. But this kind of intellectual black eye isn't helping anything other than my schadenfreude quotient. Maybe this will serve as an object lesson for them.
It was never clear to me how Google planned to capture any of the customer's data from general use of Chrome in the first place. One thing that is pretty clear is that Google will store auto-suggest and search-box info, along with the originating IP address. I'm sure Google has its own business purposes for this, but to me it looks like a prime target for bad guys in black hats and bad guys with legal discovery motions, all of whom would love to get their hands on peoples' search histories.
In essence, Google has applied the same EULA that it uses for Gmail to everything you put into the Chrome browser. What, you never read the gmail EULA? You do realize it gives Google copyrights in your email, right? Yeah, it does.
Anyway, here's the relevant clause from the Chrome EULA:
11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
So, technically, you still keep the copyrights for things you create in the Chrome browser - like, say, blog entries. But you give up to Google the right to redistribute that content, including using it for commercial purposes.
That's potentially very bad. Should Google ever choose to make use of those rights it could cause problems ranging from simple embarrassment to loss of serious value. For example, I work at a company that makes Web-based tools for securities traders. If someone runs our tools in a Chrome browser, does that mean Google owns (or thinks it has any rights to) my customers' financial data? Should I be telling my customers not to run Chrome? Does this principle apply to anyone who ever does any home banking in the Chrome browser?
This condition seems completely unnecessary for a browser. I can't find any similar language in the Firefox EULA. The Internet Explorer EULA has language some people object to in terms of disabling and potential interference, but it doesn't seem to contain any terms claiming ownership of content. WTF, Google?
Could it be? Say it with me. That'd be... The Cartel.
OK, so I'm not about to start a new career as a singer-songwriter. Which is probably good since I'd probably be foolish enough to give away my own recordings of my own performances for free and if I used BitTorrent for that then I could be the one getting DoSed.
But that's in the hypothetical future. Here in the real present, it's a company called Revision 3. This company uses BitTorrent to distribute its own high-quality digital shows. This past weekend they were subjected to a SYN-flood attack that brought down their servers. The flood was specifically aimed at the port they use for their torrent tracking server.