Good News/Bad News In Brazil: Effort To Legalize Mashups... But Google Liable For User Actions

from the ah,-brazil dept

Wed, Nov 11th 2009 6:14am — Mike Masnick

These two submissions came in one after the other, both having to do with Brazil, so I decided to just mix them together into a single post. Of course, it's a bit of a good news/bad news sorta thing. Let's start with the "bad news." Reader Stuart Waterman alerts us to the news that Google, owner of Orkut (the social network that is amazingly popular in Brazil for reasons still unclear) has been ordered to pay Formula 1 racer Rubens Barrichello $500,000 because there were fake profiles of him on Orkut. If this were the US, the case would have been tossed out on Section 230 grounds (noting that the service provider is not liable for the actions of users -- even though the users may be liable). But the Brazilian court apparently said that Google is, in fact, liable because it manages the site. If you're a service provider in Brazil, you just got a reason to lock down any sort of user-generated offering. Of course, this has happened before to some extent. Remember that a Brazilian court once tried to get YouTube shut down entirely due to an uploaded video that someone didn't like.

On to the good news. Carl alerts us to the news that Brazil is considering a new copyright law that would legalize mashups and private copies. It would also allow the reproduction of out of print works. Of course, this is just the proposed bill, and you can expect that the entertainment industry is about to send in the lobbyist army to fix things up quickly. On the whole, though, Brazil has been quite good about recognizing the downsides to overaggressive copyright law. In fact, Gilberto Gil, a grammy-award winning musician and Brazil's former minister of culture, released his music under a Creative Commons license, and has regularly spoken out against abuses of intellectual property law. And, of course, we've seen stories about how forms of Brazilian music have thrived by taking advantage of the easy promotion and distribution allowed by file sharing. It would be nice if the country's laws were updated to reflect that.

Now, if only they could also change the laws to stop blaming service providers for the actions of users, then Brazil would get it all right this time.

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Filed Under: brazil, copyright, liability, mashups

10 Comments

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Designerfx (profile), 11 Nov 2009 @ 6:18am

technobrega
brazil has had a very vibrant community that already recognizes the freedoms that should already be allowed.

Look up the technobrega (depending on spelling, tecno brega) brazillian community, where people remix other people's music daily and sell it on the street cheap. Many articles have covered this in the past.
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Mike Masnick (profile), 11 Nov 2009 @ 6:45am

Re: technobrega
Yeah, that's what the link towards the end about "thrived by taking advantage" is about....
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Designerfx (profile), 11 Nov 2009 @ 7:10am

Re: Re: technobrega
yeah yeah I know, just putting it in the comments for those who don't usually click that far :)
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ECA (profile), 11 Nov 2009 @ 8:15am

If it is made to happen.
THEN I want TV channels responsible for commercials.
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The Groove Tiger (profile), 11 Nov 2009 @ 8:34am

"...we've seen stories about how forms of Brazilian music have thrived by taking advantage of the easy promotion and distribution allowed by file sharing."

Suuure, I bet that only works for grammy-award winning musicians that are also former Ministers of Culture with... alliterative names. Thing.
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Anonymous Coward, 11 Nov 2009 @ 8:48am

When something like this happens
I usually figure the end goal is precisely the closing of avenues to user-generated content. You can't stifle speech directly without raising mass ire, but you can try to come at it from a side angle by making service providers voluntarily choose not to offer service to the country's people through these kinds of manoeuvres. Passive-aggression provides a nice fluffy cushion of plausible deniability.
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The Groove Tiger (profile), 11 Nov 2009 @ 9:13am

Re: If it is made to happen.
Well, TV channels have the advantage that they put the commercials themselves. It's not like they give you an user and password and tell you "upload your ad here and our automatic software will play it later". Doing that in a social network or twitter or whatever would be impossible, since every single post would be pending approval by Google before going online.

Making Google responsible is akin to making the real-estate companies responsible if some crime is commited by someone that purchased a house from them.
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Luciana, 11 Nov 2009 @ 9:45pm

Brazil has broken patents before
In 2007 Brazil broke the patent of an HIV drug produced by Merck. The reasoning was that the drug was too expensive and some countries were buying it cheaper than the price it was sold to Brazil. Maybe we will see the part 2 of this movie now.

Another case in point: Just go to the beach in Brazil and you will certainly see people pushing carts crowded with pirate CDs and DVDs. They play the music very loud and sell their stuff very cheap. They do not even try to hide or make an effort to go unseen. It is against the law, yes, but it is tolerated and has become ubiquitous.

I am curious to watch the next chapters of this "novela".
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Luciana, 11 Nov 2009 @ 9:46pm

Brazil has broken patents before
In 2007 Brazil broke the patent of an HIV drug produced by Merck. The reasoning was that the drug was too expensive and some countries were buying it cheaper than the price it was sold to Brazil. Maybe we will see the part 2 of this movie now.

Another case in point: Just go to the beach in Brazil and you will certainly see people pushing carts crowded with pirate CDs and DVDs. They play the music very loud and sell their stuff very cheap. They do not even try to hide or make an effort to go unseen. It is against the law, yes, but it is tolerated and has become ubiquitous.

I am curious to watch the next chapters of this "novela".
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Leo Martins (profile), 15 Nov 2009 @ 7:49am

The law is most welcome, but I still can't see the openness
As for the bad news, we also have the cases where religious leaders and politicians go after social networks and newspapers (links in pt_BR).
As for the good news, the devil is in the details. The passage from the original article (pt_BR)
O MinC admite que a oficialização da cópia privada prevê uma remuneração compensatória aos detentores do direito autoral, que ainda deverá ser discutida e instituída por meio de uma lei específica.
can be roughly translated as
The Ministry of Culture admits that the officialization of the private copy entails a compensatory remuneration to the copyright holders, which should be discussed and implemented through a specific Act.
which is not impressive since it's common for the Brazilian laws to postpone the details to further laws. Notice that they first mentioned "decriminalization" of the private copy, which means that even having a copy of legally bought material is still illegal, before this "officialization" law comes into effect.
And it seems to me (I'm not a lawyer) that the "artistic mashups" are just the implementation of a fair use clause. My general impression is that this law, even if fully implemented, do not present any innovation but simply keeps up with international laws. To cover the ridiculous flaws of the current one.
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