Friday’s Endnotes – 04/20/12

April 20, 2012 · · 2 comments

Last week, I noted the server problems this site was having. They extended into this week, making the site slow to load or unresponsive, but things seem to be back to normal now. Sorry for the inconvenience!

Kirtsaeng v. John Wiley & Sons — This week, the Supreme Court agreed to hear a case involving copyright’s first sale doctrine and grey market goods. SCOTUSBlog has more info on the case; also check out Andrew Berger’s analysis of the 2nd Circuit’s decision on that case when it was released last August.

Hulu Plus subscriptions hits 2 million, accelerates revenue — The online TV site continues to quietly chug ahead, with over two million paid subscribers. And if you haven’t already, check out the Hulu exclusive series Battleground, a very smart, well-scripted mockumentary that takes a behind the scenes look at a political campaign (available on regular Hulu, not just Hulu Plus).

The internet wants to be open, but some internets are more open than others — Google’s Sergey Brin had some interesting things to say this week. Dominic Young takes a look at Brin’s remarks in the Guardian where he complains about having to follow the law like the rest of us chumps, and how Google’s inability to crawl Facebook and Apple threatens innovation. “Is is really true that because data in apps is not crawlable it is ‘lost’?” asks Young. ”I use apps all the time, and the data appears to be available to me.”

I Am the Girl with the Dragon Tattoo and Other Copycats Litter Amazon— The author of “I am the Girl with the Dragon Tattoo” published 10,000 books on Amazon, according to this article. “What’s worse is that Amazon has actually been helping these books come into fruition. All of the copycat books that Fortune found were made through CreateSpace, a division of Amazon that allows authors to create and self-publish their books.”

Supporting copyright is not the same as opposing freedom of speech — Helienne Lindvall reports on her participation in a debate over the ACTA. “I understand why many people would sign an online petition against Acta if they’ve been told it’s a threat to freedom of speech and privacy. I would have done the same if I hadn’t read through the actual agreement. And if I didn’t think counterfeit trade in any way impacted on me, it would be even easier to for me to say no without bothering to read it. Maybe that is why so many of the opponents of Acta have never seen a proposal for copyright enforcement that they wouldn’t say no to. But what we’re doing is the cultural equivalent of overfishing the lake.”

RapidShare Publishes Anti-Piracy Manifesto for Cyberlockers — The Swiss cyberlocker took a positive step this week by releasing a paper on “Responsible Practices for Cloud Storage Services.” The paper suggests several steps that cyberlockers can take to actively promote legitimate uses and discourage illegitimate uses of their services, “balancing the needs for safe, reliable, and private storage and communications with respect for intellectual property and the public interest inreasonable enforcement.”

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Megaupload and the DMCA

January 25, 2012 · · 15 comments

Last week’s indictment and arrest of Megaupload and seven of its execs added a strong dose of drama to an already dramatic couple of days in the copyright arena.

The US Department of Justice calls this “among the largest criminal copyright cases ever brought by the United States,” though I wouldn’t be surprised if it is actually the largest such case — I’m not aware of any larger criminal actions.1 No doubt the proceedings will be followed closely by many over the next few months.

Already, the arrest has had a sharp effect online, with other cyberlockers scaling back or shutting down altogether.

While the federal government’s action against Megaupload — which had been in the works since March 2010 (months before ICE even began its Operation In Our Sites) — will obviously have many ramifications for the future of copyright law online, I wanted to focus specifically on one of the legal issues that may be implicated in the case.

Does the DMCA apply to criminal infringement?

Perhaps the most novel legal issue that may arise during the Megaupload proceedings is whether the DMCA safe harbors provide the defendants with any defense.

As an initial matter, it seems to be an open question whether the DMCA safe harbors are available to any criminal defendant. The U.S. appears to adopt the view that they aren’t.2

The indictment notes without further explanation that “Internet providers gain a safe harbor under the DMCA from civil copyright infringement suits in the United States if they meet certain criteria [emphasis added],” although it subsequently offers reasons why the Megaupload defendants wouldn’t qualify for the defense anyway.

The language of the statute plausibly supports this view. Though it references only “infringement of copyright” — which could include both criminal and civil infringement — it merely shields service providers from “liab[ility] for monetary relief, or [in some circumstances] injunctive or other equitable relief.” This is civil lawsuit language — criminal defendants are punished with fines, not liable for monetary relief.

In addition, criminal liability would seem to preclude safe harbor protection solely as a matter of common sense. Criminal copyright infringement requires willful infringement. The DMCA safe harbor only protects service providers from liability for passive infringement. If the evidence shows that a defendant was willfully infringing copyrighted works beyond a reasonable doubt, it doesn’t seem possible that that same defendant could ever meet the requirements for safe harbor protection under the statute.

Deduplication and the DMCA

Regardless, the indictment alleges that even if the DMCA safe harbors are available to criminal defendants, the Megaupload defendants failed to satisfy the conditions for eligibility.

Among other things, Megaupload used deduplication, a common technical process used by online services to reduce the amount of storage needed for data. In Capitol Records v. MP3Tunes, Capitol argued that a similar process made the defendant liable for public performances of sound recordings, but the Southern District Court of New York disagreed, calling it a “standard data compression algorithm that eliminates redundant digital data” that didn’t give rise to liability.

It was a small win for MP3Tunes, however, since the court held that its failure to remove the actual files stored on its service when it received a DMCA takedown notice, rather than just links to the files, disqualified it from safe harbor protection.

The indictment alleges that Megaupload operated much the same way. When a user uploads a file already present on the system, “the system provides a new and unique URL link to the new user that is pointed to the original file already present on the server. If there is more than one URL link to a file, then any attempt by the copyright holder to terminate access to the file using the Abuse Tool or other DMCA takedown request will fail because the additional access links will continue to be available.”

If the Eastern District of Virginia follows the same reasoning as the MP3Tunes court, this doesn’t necessarily mean Megaupload is ultimately liable, but it would mean that it wouldn’t be protected by the DMCA.

I don’t know for certain how big a role the DMCA safe harbor will play in the case; only time will tell. But I’ll definitely be keeping a close eye on the legal developments of what promises to be a watershed moment in copyright history.

Footnotes

  1. The closest seems to be Operation Safehaven in 2003. [↩]
  2. The U.S. is not alone in adopting this view. See, for example, Eric Goldman, A Road to No Warez, 82 Or. L. Rev. 369, 425 (2003), “In the DMCA, Congress putatively provided some facilitators a safe harbor from civil liability for user-caused infringement [emphasis added].” [↩]
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Friday’s Endnotes – 12/09/11

December 09, 2011 · · 27 comments

OPEN Act (OPA) draft language released — The big news in the US this week was the public release of draft legislation for an alternative to SOPA and PROTECT IP. Thoughts? I’ll have a post on the language next week, most likely.

The Mystery Man Behind Megaupload Piracy Fight — As I understand it, Megaupload would not be covered by OPA’s provisions. Kim Schmitz’s marble bathtubs and yachts are safe.

PIPA/SOPA: Responding to Critics and Finding a Path Forward — Daniel Castro of the Information Technology & Innovation Foundation addresses criticisms of rogue sites legislation, paying special attention to technological criticisms of the site blocking provisions of those bills. Highly recommended.

What I Know… Explaining Piracy’s Profit Pyramid — Independent filmmaker Ellen Seidler provides this illustrated guide to how cyberlockers and linking sites profit off misappropriating the work of others. “The only way today’s crop of cyberlockers can be forced to institute similar content ID systems is if their current business model becomes unsustainable.  For that to happen, like Youtube,  they too will need to face the threat of litigation and/or the long arm of the law.   At this point, that puts the ball squarely back in the lap of Congress.”

Internet Piracy: Will SOPA Change the Web as We Know it? — Excellent podcast from KCRW focused on SOPA, with guests from both sides of the debate.

Get To Know a New York City Street Musician: Union Square Edition — Interesting interviews with several street musicians about what it’s like to perform in public spaces.

Workspace: Christine Boylan — I love reading about individuals describing their creative process. Here, screenwriter John August interviews Christine Boylan, a writer and television producer who has worked on Leverage and currently co-produces Castle.

How An All-Christmas-Music Format Doubles Radio Ratings — I did not know this, but apparently the all-Christmas-music-all-the-time format that many radio stations have already switched to is ratings gold.

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Friday’s Endnotes – 09/30/11

September 30, 2011 · · Comments Off

Make money online by selling pirated content? These sites do — File lockers and linking sites on their own are difficult to hold liable for the rampant infringement they facilitate. But together? “The combination of these two types of sites is like a one-two punch resulting in a knockout. They are both essential for one another to function in such a profitable manner, and man, oh, man, do they ever make a lot of money doing what they do.”

Gone Elvis Production Diary, Part 2 — The Copyright Alliance has been following indie filmmaker David Newhoff as he works on his latest project. In this part, they talk primarily about funding and costs. “So, without paying any fees for labor, equipment, or locations, my 30-minute short cost a little more than $8,000 to get in the can. And that was a four-day shoot with a very small cast and crew. If gone Elvis makes money and I want to repay those who worked on it, I’ll have about a $30,000 check to write. So, the next time you hear ‘feature film made for $5,000,’ take it with a healthy dollop of salt — and tequila!”

Why 2011 Is the Year Digital Music Broke, by the Numbers — Billboard’s Glen Peoples notes several reasons: digital sales are up substantially from last year, streaming services like Pandora and Spotify have had good years, music startups like Turntable.fm have shown early promise.

The Sims Social Facebook game promotes questionable blogging ethics — You can get 5 points if you “Steal pictures from other websites to make your blog look professional.” Wait, what?

Students shouldn’t download music illegally— Another great article from the younger generation. Like previous articles from the Harvard Crimson and the Arbiter Online, The Rocky Mountain Collegian, the student newspaper of Colorado State University, points out that there’s nothing hip about stealing music. “Now you might think you are taking money from powerful record companies, which take advantage of artists –– and this is kind of true. “Think about a young band that just got signed by a record label. If all of the band’s fans steal the album and its record sales tank, what incentive does the company have to keep a contract with the band? Do yourself a favor, support bands (especially local ones). Support the failing music industry. Support our failing economy, and don’t steal music.”

A2IM Call To Action:  Write Congress, Help Get PROTECT IP Passed — The American Association of Independent Music calls on independent musicians and labels to add their voices of support for rogue sites legislation.

7 Things I Wish I Knew about Content Theft 10 Years Ago — PlagiarismToday’s Jonathan Bailey shares the lessons he’s learned over the past decade from blogging and consulting with others to detect and stop online content theft. Very good info.

Copyright Office Rulemaking on Designation of DMCA Agents — The US Copyright Office is seeking comments to upgrade its system for keeping track of registered DMCA agents. It is specifically looking to migrate from its current paper system to an online system; it is also looking for input on how to make the system more up-to-date and efficient.

Will Google Submit “The Power of Google Adsense” to Voluntary Oversight? — Probably not, but they should, writes Chris Castle. “Not because of the moral hazard—because of the criminal hazard.  This is the group that failed seven different sting operations by the Department of Justice.  This is the group that does business with rogue sites and suckles pirates around the world.”

This Week in Law — Every Friday at 2pm, host Denise Howell talks with special guests on news and developments in the world of law and tech (the shows are archived for later viewing as well). I will be one of those guests next week, October 7th. Tune in to see why I have the perfect voice for blogging.

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Friday’s Endnotes – 09/23/11

September 23, 2011 · · 1 comment

Free speech shouldn’t be a shield for online thieves — Mike McCurry and Mark McKinnon, co-chairmen of Arts+Labs, pen this must read editorial about free speech and copyright. “We are not lukewarm First Amendment advocates. One of us went to jail to protect freedom of the press and the other routinely had to defend this freedom to belligerent skeptics on the White House staff.  But we believe it is a misuse of the First Amendment to shield rogue websites whose main purpose is distributing illegal copies of intellectual property.”

Chamber leads push for copyright enforcement bill — The US Chamber of Commerce spearheaded a coalition of 359 businesses and organizations in support of rogue sites legislation, sending a letter to US Congress members on Thursday. In other news, Sen. Ron Wyden continues his curious remarks that this bill will damage “innovation.”

Free as in speech… — Rob Levine points to a recent interview he did with Scottish novelist Ewan Morrison where he discusses some of the interesting political questions surrounding copyright, technology, and free culture. He highlights some of the “intellectual inconsistencies” in copyright critics’ positions — he only scratches the surface though, as you can easily find other examples of these types of inconsistencies.

Portland, Oregon Reports Jobs Boost — Portland is currently home to several television and film productions, including one of my faves, TNT’s Leverage. Portland mayor Sam Adams recently published a letter to local residents detailing the economic impact filming has on the city: for example, “In 2009, the Portland metropolitan region alone saw $52 million in direct spending through local film productions, totaling a $102 million economic impact for the year.”

95% of BitTorrent files infringe copyrights according to AFACT — A new report from the Australian Federation Against Copyright Theft is consistent with other reports in showing that nearly all BitTorrent files are unauthorized copies of films, television shows, and music.

File-sharing protest bomb threat video lands teenager in court — An 18 year-old New Zealander finds himself in trouble with the law after his threats in connection with the country’s recent graduated response legislation. Talk about your disproportionate responses.

Policing the digital storage landscape — Should provisions to address the rampant infringement taking place on cyberlockers be added to rogue sites legislation currently being considered by Congress? Content providers and the US Copyright Office think so.

Copyright terrm success for artists and record companies — Dominic McGonigal explains the EU’s recent directive to increase the term of copyright protection on sound recordings from 50 to 70 years. “Without this change, [thousands of] musicians were facing reducing royalties each year as recordings go out of copyright. For record companies, this potentially increases the value of their back catalogue, allowing more investment in new artists.”

Call for papers: 2012 Cardozo Arts & Entertainment Law Journal Symposium — The working title of the symposium is “Examining and Overcoming Enforcement Issues in Copyright Law”: “The Symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas related to the protection of intellectual property in the Digital Age, from the perspective of enforcement, as well as self-policing and cooperative agreements. Topics might include examinations of the PROTECT IP Act of 2011, the America Invents Act, Content ID and similar technologies, and the recent cooperative agreement between ISPs and content owners.”

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Friday’s Endnotes – 09/02/11

September 02, 2011 · · 1 comment

Founders of The Pirate Bay launch new file sharing service — Displaying the kind of innovation that the dinosaurs of traditional industries lack, the inventive geniuses behind The Pirate Bay have launched an exciting new service. Called a “cyber-locker”, this revolutionary service allows users to actually store files on a web server. No more using hard drives like chumps! What’s next? Some kind of “engine” that lets you “search” through other web sites?

Fair-Weather Friends — Next week, Congress gets back to work, and one of the first things on their plate is the proposed PROTECT IP Act. The National Journal’s Sara Jerome notes, echoing a point made by Rob Levine in his upcoming book Free Ride, “tech giants such as Google, in part citing a need to protect free speech, have pledged to fight the transformative measure. Yet, in reality, the tech giants’ objections are economic, not ideological.” Highly recommended reading.

Terminating Music Copyright Licensing Agreements — Copyright termination has been in the news lately. Jess Robinson at the American University Intellectual Property Brief takes a look at what artists need for viable termination claims and what effects these terminations will have on the industry.

Property and Monopoly — Another great piece from Faza. The point he raises — how a copyright “monopoly” differs from the common meaning of “monopoly” — isn’t novel, but one worth repeating. As usual, the comments are as much worth reading as the article itself.

Getting it right with cyberlockers and safe harbours — James Gannon reports on the recent MP3Tunes decision. He uses it to draw lessons to keep in mind for Canada’s upcoming efforts to reform its copyright laws. “What this decision really demonstrates is the importance of having well-crafted, balanced copyright safe harbours for online intermediaries. Legally-savvy pirate website operators will always try to take advantage of any perceived loophole in copyright exemptions in attempt to shield themselves from liability.”

We have no budget for photos — Though I can imagine photographers hear this line more often, creative professionals in just about any field have probably heard some variation. Photographer Tony Sleep offers his brusque response to those who plead poverty or promise exposure in order to convince others to work for nothing.

Kirtsaeng asks for en banc review; let’s hope he gets it — Kirtsaeng, who recently lost his case in the 2nd Circuit, is asking the court to review the decision that held that the Copyright Act’s first sale doctrine doesn’t apply to goods manufactured abroad. Andrew Berger examines Kirtsaeng’s petition.

South Sudan: A little news on copyright and trade marks — Afro-IP has updates on the state of IP law in the world’s newest nation.

Proposed Indian Copyright Amendment — Nandita Saikia has been reporting on India’s efforts to amend its 1957 Copyright Act. A 2011 revision to the proposed 2010 amendment has recently been released; you can see more posts on the topic here.

Hulu Japan Launches With Movies, TV From CBS, Sony, Fox & More But No Ads — The TV and movie streaming service debuts in Japan with a slightly different service than US users are familiar with. Expect more expansion in the near future, as Hulu races with competitor Netflix to roll out around the world.

Scott Vener Q&A: Meet the Man Behind ‘Entourage’s’ Music — I’ve actually never seen an episode of Entourage, but this is an interesting (though short) interview of the show’s against-the-grain music supervisor.

Congestible Intellectual Property and Impure Public Goods — Copyright critics sometimes try to justify piracy by tossing around economic terms like “public goods” and “non-rivalrous”. This recent scholarly article by law professor David Barnes questions the conventional view that intellectual property is a public good, concluding that it is actually partially rivalrous and excludable. Barnes’s conclusions are focused primarily on this view’s implications for trademark law, but it’s worth a read for anyone interested in economic analysis of copyright law.

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Friday’s Endnotes – 07/21/11

July 22, 2011 · · 1 comment

An Oral History of Friday Night Lights (via Alex Epstein) — One of the best TV shows no one has seen wrapped up its fifth and final season last week. This oral history recounts the long odds the show faced and, despite this, how everyone remained true to its creative vision (minus the second season’s murder subplot). Great reading, as you hear not only from producers and actors, but also writers, camera operators, and others involved.

PROTECT IP’s Groundhog Day — The RIAA notes how critics of PROTECT IP frequently recycle the same arguments they’ve used before in other situations. It points out that the dire predictions made years ago didn’t come true, but that hasn’t stopped the advancement of the same predictions for this legislation. To paraphrase Mr. Masnick, how many times will IP critics claim the sky is falling before people stop believing them?

US Copyright Alert System: What About Cyberlockers? — James Gannon asks whether the recently announced agreement between ISPs and copyright owners can be extended to alleviate the substantial infringement coming from cyberlocker sites and offers a couple recommendations.

More Bunk from the CCIA: What do Derek Jeter, Tom Adams and Ari Emanuel have in common? — They all work in a “fair use” industry, at least according to the Computer & Communications Industry Association. Chris Castle picks apart the joke of a study released by the CCIA, which is more interested in creating a false wedge between content creators and technology companies than providing actual research.

Artistic originals: we invest more than we think … — Art and Artifice looks at the UK’s Intellectual Property Office’s Economics, Research and Evidence team recently published report on estimates of investment in creative works in the UK. The report estimates that approximately £4.3 billion ($7.0 billion) was invested in creating new artistic works in the UK in 2008.

Independent Filmmaker Shares His Take on the Impact of Content Theft — Jason Stall, whose recent documentary Blood Into Wine follows Maynard James Keenan’s sojourn into winemaking, talks about the effect piracy has had on him. “If you can’t raise the money you did before, quality is going to go down, quantity is going to go down and you’ve crushed the creative process.”

PayPal works with police and industry to tackle copyright infringing websites — The IFPI announced that the popular online payment service has entered into an agreement that provides for stronger action against infringers. “Carl Scheible, PayPal UK’s managing director, commented, ‘Today’s announcement shows that PayPal is very serious about fighting music piracy. We’ve always banned PayPal’s use for the sale of content that infringes copyright, and the new system will make life even harder for illegal operators. Our partnership with the music industry helps rights holders make money from their own content while stopping the pirates in their tracks.’”

Jam Tomorrow — Another excellent piece from the Cynical Musician. For new musicians whose goal is to eventually get paid for their work (and this applies to other creative professionals), the focus should be on, well, getting paid for their work. “Exposure” and giving things away are a means, not the end.

Why TV Companies Couldn’t Care Less About Original Online Video — An informative post from Ashkan Karbasfrooshan, founder and CEO of WatchMojo, about investment in premium web-only content by traditional media companies. Karbasfrooshan’s conclusion is that while such content continues to grow in popularity, and provides opportunities for start-ups to make money from lean, efficiently produced content, it doesn’t yet make sense for traditional media companies to pour more money into creating their own new media content.

Sierra Leone Celebrates New Copyright Act — The African nation’s parliament recently passed a new Act to replace the 1965 Act. Upon passage, “throngs of celebrants used loud musical sets placed on top of vehicles, plus traditional musical instruments including the popular ‘Bubu’ instruments, to party all day long along major streets in Freetown.” Also from the Afro-IP blog this week, no IP changes yet for the newly-independent nation of South Sudan.

Jewel cases! Get your empty jewel cases here! — I’ve previously heard of this strategy being touted amongst certain communities as a way around the law when selling works that might be considered infringing. Basically, you say you’re “giving away” the CD or DVD and selling the packaging. The 1709 Blog reports that a man in Florida who was using such a strategy is now facing felony charges.

Jail? For downloading too many articles??? — Copyright Librarian offers an evenhanded, objective look at the Aaron Swartz story, straightening out many of the misconceptions.

Alexander v. Murdoch — TV’s Modern Family (big fan) survives a claim of copyright infringement claim from a scriptwriter who believed a treatment he wrote was copied to create the popular show. The court gives a substantial discussion about why there is no infringement, at times hewing close to snark:

Plaintiff also claims that both works have characters with “funny Jewish names,” specifically mentioning Plaintiff’s Ben Figiwitz and Modern Family‘s “Pepper Saltzman” and “Shell Turtlestein.” Magistrate Judge Francis noted that “[i]t is not obvious why the name Figiwitz is funny, whereas both of the names featured in Modern Family are plainly designed to be humerous.” Specifically, “Pepper Saltzman” is clearly a play on salt and pepper, and “Shell Turtlestein,” the name of Manny’s pet turtle clearly refers to the poet Shel Silverstein, and not a reference to the turtle’s religion (assuming that the turtle is, in fact, Jewish).

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