MPAA Issues Overly Broad Takedown Of Little Used Reddit Film Community; Creates Much Bigger Reddit Film Community

from the do-they-have-any-streisand-movies-available? dept

Oh that wacky MPAA. Earlier this week, TorrentFreak noted that the MPAA issued a massively overbroad DMCA takedown to Google, asking it to remove an entire subreddit from its search results. The subreddit in question was r/FullLengthFilms, which really wasn't that popular. It's not difficult to guess why the MPAA wanted this community gone, though it is a bit odd that the MPAA thinks that just because it finds one link to a potentially infringing movie that it thinks an entire subreddit should disappear down the search engine memory hole. If that's the criteria, a lot of the internet would go missing. Google didn't take it out of its search results, but the resulting publicity from the bogus takedown attempt... suddenly made r/FullLengthFilms a hell of a lot more popular. One of the mods for the subreddit points out that he'd long considered it to be a dead subreddit, but now it was suddenly booming again. There are a bunch of new subscribers, plenty of new mods and a bunch of new films -- and, yes, many of them are perfectly legal and authorized. I wonder if there are any movies that star Barbra Streisand linked from the subreddit...

Filed Under: dmca takedown, full length films, streisand effect, subreddit
Companies: google, mpaa, reddit

Cinemark Tosses Elderly Woman Out Of Theater, Claiming She Was Filming A Movie With Her Phone

from the punchline:-she-wasn't dept

The MPAA has been pushing its strict take all prisoners approach to force movie theaters into pissing off nearly all movie goers by wildly accusing anyone with a mobile phone of destroying the entire US economy. Or something like that. We've already seen theaters call in Homeland Security when a guy so much as dared to wear his Google Glass during a movie. And now, the latest story of MPAA-driven excess, as revealed by TorrentFreak, involves Cinemark ejecting an elderly woman because she had an old "brick, slider-type" mobile phone, which her husband handed to her as he had to leave. There is also a theory that someone else in the theater saw her theater-provided closed captioning device and assumed that it was a recording device. Either way, the lady (who is not a fluent English speaker, and had trouble understanding the commotion) was ejected from the theater, even though theater employees realized she was not recording the movie.

Phew! Another pirate stymied!

Filed Under: copyright, enforcement, movie theaters
Companies: cinemark, mpaa

Revolving Door: MPAA Hires Chief USTR Negotiator Behind ACTA And TPP's IP Chapter

from the a-big-pat-on-the-back dept

For the past five years or so, the USTR's chief intellectual property negotiator has been Stan McCoy. McCoy has long positioned himself as an intellectual property maximalist, repeating talking points from lobbyists regularly, while condescending to anyone who questions the legitimacy of those claims. McCoy famously was the chief negotiator behind the US's disastrous (and mostly failed) attempt to push ACTA through, as well as the lead on the TPP's intellectual property chapter -- a chapter so bad it may help sink the TPP agreement. In fact, previous reports have noted that McCoy's bullying and aggression in trying to push through the TPP were angering others in the negotiations. McCoy also has a long history of mocking public interest advocates, while praising maximalists for similar tactics. From a report a few years ago concerning a hearing that McCoy chaired:

The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.

Given all that, it should be no surprise at all that McCoy, the failed strategist behind ACTA and the TPP's IP provisions... has received his reward and pat on the back from the industry: a shiny new job at the MPAA. As Tim Lee notes in that link, this is just the latest in the never-ending revolving door between maximalist lobbying groups and the USTR:

Last year I wrote that at least a dozen former senior USTR officials have moved to industry groups that favor stronger protections. McCoy's hire makes it a baker's dozen. Previous hires include including Greg Frazier, who (according to his LinkedIn page) spent 8 years as the executive vice president of the Motion Picture Association of America after a stint at USTR. Other former USTR officials took jobs at drug and medical device companies.

McCoy's old job, assistant USTR for intellectual property and innovation, made him the Obama administration's highest-ranking trade negotiator on patent and copyright issues. Jamie Love, director of the public interest organization Knowledge Ecology International, notes that this isn't the first time USTR's top intellectual property official has gone on to take a lobbying job. McCoy's predecessor, Victoria Espinel, is now the head of the software industry group BSA.

Espinel's predecessor at BSA was Robert Holleyman, the man Obama just nominated to a senior post at USTR. While at BSA, Holleyman supported the controversial Stop Online Piracy Act, which would have created an official internet blacklist to aid in anti-piracy efforts. (He backtracked a few weeks later after an uproar in the technology community.

Another of McCoy's predecessors as USTR's top IP official is Joe Papovich, who later spent seven years as a lobbyist for the recording industry.

As Lee notes, the revolving door between maximalist lobbying organizations and the USTR goes round and round, with USTR officials joining the lobbyist organizations and then going back to the USTR. It's a clear case of regulatory capture by the industry. None of those folks go on to public interest or civil society groups, nor does the USTR ever seem interested in hiring those people. It's entirely a one-sided effort to help out the biggest lobbying interests. Work for a few years pushing through policies that favor those companies, and then get "rewarded" with a nice, high-paying job for those very same lobbyists, and no one ever seems to point out the obvious corruption in the entire process.

As Lee notes, as easy as it is to ascribe comic-book levels of ill-intent here, that's unlikely. McCoy and others genuinely believe what they're doing is the right thing. But the end results are clear:

I doubt public servants like McCoy consciously pursue dubious policies in an effort to curry favor with future employers. McCoy's press representative hasn't responded to my interview request, but I assume McCoy sincerely believes the Hollywood-friendly policies he advocated at USTR were in the interests of the nation.

But the revolving door between USTR and industry groups creates a strong but subtle pressure on USTR's culture. Like many government agencies, USTR regularly turns to outside experts to help it sort through complex trade issues. Naturally, they turn to people they trust: their former colleagues — or even former bosses — who now work at trade organizations with plenty of resources to devote to understanding the minutia of trade policy.

And it's even worse than that, frankly. Because, when you combine that revolving door, with the proposals seen in ACTA, TPP and elsewhere, it undermines the public trust in all of this. People see it and naturally assume corruption, even if the intent is pure. In other words, even if we give McCoy and others the benefit of the doubt, the very fact that he spent 5 years pushing entirely for the MPAA's policies, while brushing off any and all claims from the MPAA's critics, and then took a job at the MPAA, confirms in the minds of many people that the USTR has no interest in representing the public good. And that perception (regardless if the underlying intent is real or not) corrodes public trust in the federal government, and the USTR in particular.

Filed Under: acta, copyright, maximalists, patents, revolving door, stan mccoy, tpp, ustr
Companies: mpaa

Why Didn't The MPAA Weigh In On Garcia v. Google?

from the couldn't-bring-themselves-to-support-google? dept

We already mentioned the amicus brief we submitted about the risks concerning intermediary liability (authored by lawyer Cathy Gellis) in the Garcia v. Google case. In it, we noted that the 9th Circuit had set up a page where all such filings are listed and that we planned to write about some of the other briefs. Of course Eric Goldman beat me to it, discussing all of the various amicus briefs and what they focus on. In short, though:

• Public Citizen's brief, submitted a while ago, focuses on whether or not an injunction against Google is appropriate, and explains why it is not.
• An excellent brief from EFF, ACLU, Public Knowledge, CDT, New Media Rights, American Library Association and the Association of Research Libraries covers a lot of ground in under 2,500 words, highlighting the "novel" nature of the copyright claim and its "dangerous implications." It also highlights how the focus on the potential harms to Garcia are not copyright-related harms. Finally, it notes that the gag order Kozinski ordered was unconstitutional.
• A bunch of news organizations, including the LA Times, the Washington Post, NPR, Scripps, Advance Publications, the California Newspaper Association, RCFP, First Amendment Coalition and DMLP, submitted a brief on both the First Amendment issues raised by the ruling, and how it might lead to news organizations being blocked from publishing newsworthy content.
• A separate brief from California broadcasters focused on the oddity of Kozinski's interpretation of copyright law, and how that will "create confusion."
• Another fantastic brief comes from a variety of tech companies, including Twitter, Automattic, Kickstarter, Facebook, Yahoo, Tumblr, eBay, Adobe, IAC, Gawker and Pinterest. It highlights how the injunction goes way beyond what the law allows, placing (again, as we noted in our brief) tremendous liability on intermediaries, such as requiring them to block all future uploads. It also challenges the gag order that was originally placed on Google as setting a very dangerous precedent.
• Then we have the academics. A brief from internet law professors (written by Eric Goldman and Venkat Balasubramani, but signed by many more) covers the intermediary liability issue (like ours did) and highlights how this appears to be Garcia trying to use copyright as an end-run around Section 230.
• Then there's a brief from IP law professors (written by Christopher Newman, Chris Sprigman and Julie Ahrens but signed by many more) focusing on the core ridiculousness of the claim that Garcia has a legitimate copyright interest in her performance. As they note: "the panel opinion in this case makes new law with corrosive implications for these foundational principles of copyright law."
• Netflix weighed in to point out that this creates a "new species of copyright" and would give "an effective veto right to any performer."
• Finally, a bunch of independent filmmakers, including the International Documentary Association, Film Independent, Morgan Spurlock and Fredrik Gertten, all submitted a brief about the "chaos" this will cause for filmmakers.

The last one is especially powerful and worth reading. But those final two -- from Netflix and those indie filmmakers -- actually highlight a glaring omission: Where is the MPAA? As we noted when the original ruling came out, it was so bad and so ridiculous that it ought to have actually united Google and the MPAA on a single copyright issue. Because if it stands, both will suffer greatly.

And yet, so far, the MPAA appears to be sitting this one out. Eric Goldman, in his post, speculated as to possible reasons, none of which look good for the MPAA:

Noticeably absent from the amicus brief roster are the big entertainment companies, such as the major movie studios and the record labels. Given that this case involves video production, something Google/YouTube don’t know much about, where are the real experts on this topic? One possibility is that they are hubristic enough to believe that they run such a tight legal ship that they will never run into problems with the court’s holding. Another possibility is that they are spiteful enough to delight in Google’s misery, even if the rule ultimately hurts them too (i.e., the enemy of my enemy is my friend). Yet another possibility is that they are happy to free-ride on Google’s efforts, getting all the benefit of Google fixing the law without any of the financial or reputational costs of siding against Garcia or supporting a deceitful rogue film producer. Whatever the reason, I can’t say that I favorably regard their decision to stand on the sidelines as the Ninth Circuit is trying to wreck their industry.

It is quite a glaring absence.

Filed Under: amicus briefs, cindy garcia, cindy lee garcia, copyright, filmmakers, section 230
Companies: mpaa

Hollywood Has Been Pressuring Australian Attorney General To Pressure ISPs Into Being Copyright Cops

from the because-of-course-they-are dept

For years, we followed the important iiNet case in Australia. Hollywood studios, which ran a group called AFACT in Australia, wanted to "set an example" of why ISPs should be liable for copyright infringement done on their networks, and deliberately chose iiNet to sue, believing the ISP was too small to mount a serious challenge. Instead, iiNet fought back strongly, making really strong points about how ridiculous it was to pin the blame on an ISP. The result was a complete victory for iiNet. It won at the district court, at the appeals court and finally at Australia's high court.

Of course, Hollywood (AFACT is Australian-in-name-only -- a Wikileaks State Department cable revealed it to be an operation wholly controlled by the MPAA in Hollywood) continued to freak out, leading the Australian government to hold "stakeholder" meetings between the entertainment industry and the ISPs (note: no public representatives, even though they're the real stakeholders), to try to broker an agreement to make ISPs act as copyright cops. Of course, because Hollywood's position is inherently ridiculous, the ISPs noted that it was like negotiating with a brick wall, and talks soon broke down. The ISPs made it clear that it was silly to blame them when Hollywood itself was to blame by not making works available.

But, of course, Hollywood never stops. AFACT rebranded as the Australian Screen Association, and apparently has been very busy pumping new Australian Attorney General George Brandis full of misleading information and pure propaganda. We recently noted that Brandis was supporting website blocking and three strikes like programs, despite them failing elsewhere. And, he's also come out against fair use, because, fuck the public, Hollywood is upset.

Josh Taylor over at ZDnet used the Freedom of Information Act to get emails from between Neil Gane -- the "contractor" who ran AFACT and now the Australian Screen Association -- and Brandis, showing an ongoing campaign in which Gane continued to push Brandis with a series of one-sided misleading emails about how anti-consumer programs in other countries were the way forward:

In nine emails from Gane to the Attorney-General's department secretary, Roger Wilkins, and first assistant secretary in the civil law division, Matt Minogue, sent between the election and this year, obtained by ZDNet under Freedom of Information, Gane appears to be providing education notices of his own to the department, offering insights into how copyright infringement is being dealt with in other countries.

In one email pointing out Canada's moves, he notes that the Canadian government was not buying into the notion that ISPs should be compensated for having to warn customers for downloading infringing content.

There are a number of other emails, including a few that regular Techdirt readers may find especially amusing, including one mocking the "vocal minority" who were complaining that draconian copyright enforcement on things like Game of Thrones downloading might have serious unintended consequences. Update: The "vocal minority" has responded.

Meanwhile, Brandis -- who has also been vehemently defending the NSA -- recently took a trip to the US, in part to explore issues around copyright. Did he meet with copyright scholars or other experts on these issues? Nope. Instead, he met with the director of the Center for Copyright Information, who runs the US's "six strikes" program. Brandis seems to have made up his mind, after being pushed on it by the MPAA, and with no respect at all to facts or reality.

All in all, Brandis appears to be only listening to one exceptionally biased party, even as a very long and thorough review process by the Australian Law Reform Commission (ALRC) found that fair use was important, and that copyright reform needed to be modernized to pay attention to the important rights and uses of the public. But apparently, that all gets thrown out the window because a Hollywood spokesperson has a direct email line to the Attorney General.

Filed Under: alrc, australia, copyright, fair use, george brandis, hollywood, lobbying, neil gane, three strikes
Companies: afact, australian screen association, iinet, mpaa

RIAA Files A Near Word For Word Copy Of MPAA Lawsuit Against Megaupload

from the because-that's-not-infringement dept

Earlier this week the MPAA filed a very questionable lawsuit against Megaupload, recognizing that the statute of limitations would run out in a few months. And just days later, the RIAA has followed suit with a nearly identical filing. While they're done by two different law firms, the similarities between the lawsuits are uncanny -- including the numerous defective (to dangerous) attempts to reinterpret copyright way beyond what the law actually says. We already covered why most of these theories are defective, but let's look at some similarities between the filings. I mean, honestly, if the RIAA and MPAA weren't so close, and if it were possible to claim copyright on legal filings (as some do assert), you'd think that the MPAA attorneys might have a claim on the RIAA's attorneys for copying their work. One wonders how much the RIAA's lawyers charged to basically rearranged some words in the MPAA's filing.

Let's start at the beginning. Here's how the MPAA describes what Megaupload does:

Megaupload amassed the millions of popular content files that it hosted on its servers and offered to the public for download by openly encouraging and paying users to upload these files. Any Internet user who went to the Megaupload website could upload a computer file, whether or not the user registered as a member. When the upload was completed, Megaupload reproduced the file on at least one computer server it controlled and provided the user with a Uniform Resource Locator ("URL")"link" beginning with "megaupload.com." The uploader could then propagate the link broadly over the Internet, so that anyone interested in downloading or otherwise accessing a copy ofthe file could easily find it on Megaupload's servers.

Any user who had the URL link could access and download the associated content from Megaupload's servers. By "clicking" the URL link (or copying it into any web browser), the user was taken to a "download page" on the Megaupload website that allowed the user to download a copy of the file from a computer server controlled by defendants.

And the RIAA's version:

Beginning in late 2005 and continuing at least to January 2012 when Defendants were indicted, Megaupload amassed the millions of popular content files that it hosted on its servers and offered to the public for download by openly encouraging users to upload these files. Until mid-2011, Megaupload went so far as to actually pay its users to do this. Any Internet users who went to the Megaupload website could upload content files, regardless of whether the users registered as members. Upon completion of the uploads, Megaupload reproduced each file on at least one computer server it controlled and provided the users with a Uniform Resource Locator ("URL") "link" beginning with "megaupload.com" for each uploaded file. The uploading users could then propagate the links broadly over the Internet, so that anyone interested in downloading or otherwise accessing copies of the files could easily find them on Megaupload’s servers.

Users in possession of the Megaupload URL links could access and download the associated content from Megaupload's servers. By "clicking" the URL links (or copying them into any web browser), users were taken to a "download page" on the Megaupload website that allowed users to download the content, including Plaintiffs’ recorded music, from computer servers controlled by Defendants.

Yeah. That's pretty damn similar, including numerous identical phrases. Someone's copying something. Okay, how about the lack of a search (which, as we noted previously, is ridiculous, since Napster got in trouble for having a search, and now everyone's saying that not having a search is just as damning). Here's the MPAA:

To conceal the scope of infringennent occurring on the Megaupload website, defendants did not provide users with a searchable index of files available for download from the Megaupload website (although defendants themselves had access to such an index). Instead, defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including plaintiffs' copyrighted works. Such linking sites made infringing content broadly and easily accessible to users by maintaining an index of links to content files organized by category and/or alphabetically by titles of the copyrighted work; some such linking sites also offered search boxes where users could enter queries quickly to find the content they wanted. Many of these linking sites were blatant pirate sites, hosting thousands of links to infringing material. Any visitor could quickly see the widespread availability on many linking sites of links to infringing content on Megaupload. Defendants knew of this open infringement on pirate linking sites and closely tracked the traffic from those sites to Megaupload. Furthermore, defendants provided financial incentives for premium users to post links to these sites through the Uploader Rewards program.

Okay, and the RIAA version:

To conceal the scope of infringement occurring on the Megaupload website, Defendants did not provide users with a searchable index of files available for download from the site (although Defendants themselves had access to such an index). Instead, Defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including Plaintiffs' copyrighted works. Such linking sites made infringing content broadly and easily accessible to users by maintaining an index of links to content files organized by category and/or alphabetically by titles of the copyrighted work; some such linking sites also offered search boxes where users could enter queries quickly to find the content that they sought. Many of these linking sites were blatant pirate sites, hosting thousands of links to infringing material. Several of these linking sites exclusively offered Megaupload links. Any visitor could quickly see the widespread availability on many linking sites of links to infringing content on Megaupload. Defendants knew of this open infringement on pirate linking sites and closely tracked the traffic from those sites to Megaupload. Defendants also knowingly interacted with users of linking sites and have visited such sites themselves. Defendants also provided financial incentives for premium users to post links to these sites through the Uploader Rewards program.

Right. So those two paragraphs are identical, except the RIAA adds in two extra sentences about the linking sites. It goes on and on like this, with both filings clearly working off of either each other or the DOJ indictment, which they're copy/pasting into their own filing and fussing with a word or two here or there. Here's just one more example. Both filings claim that Megaupload can't be considered a "cloud storage" site because it would delete unpopular files. Here's the MPAA's version of this:

Contrary to some of defendants' public assertions, Megaupload was not designed to be a private data storage provider. Users without premium subscriptions were restricted not only in their downloading capabilities, but also in their ability to store files on the site. Any content they uploaded would be deleted if it was not also downloaded within a certain period of time -- after 21 days in the case of unregistered, anonymous users and after 90 days in the case of registered users who were not premium subscribers. Only premium subscribers (estimated to be 1% of users) could use Megaupload for long-term file storage.

And the RIAA's nearly identical text:

Megaupload was in no respect designed to be a private data storage provider. Users without premium subscriptions were restricted not only in their downloading capabilities, but also in their ability to store files on the site. Any content that users uploaded would be deleted if it was not also downloaded within a certain period of time--after 21 days in the case of unregistered, anonymous users, and after 90 days in the case of registered users who were not premium subscribers. Only premium subscribers (estimated to be one percent of users) could use Megaupload for long-term file storage.

Of course, Kim Dotcom has now refuted this claim, saying that content that was unpopular was not deleted from Megaupload.

However, even beyond that, I fail to see how having a service like this that deletes unpopular content suddenly disqualifies it from being a legitimate service. Lots of other legitimate services have similar terms. While it appears to have recently changed this, the popular image sharing site Imgur (which we use at Techdirt) used to have a very similar clause, saying that "images that are not viewed for 6 months may be removed. However, images with pro accounts can only be removed by you." That doesn't mean they were not a legitimate service.

Nor does it mean it's not a "cloud" service. Different cloud services serve different markets, and services like Megaupload (and Imgur) tend to be more focused on the immediate sharing of content (not necessarily infringing content). In fact, if you look back at the origins of Megaupload, it initially resembled services like the old "YouSendIt," which were focused on making it easier for people to move any file from one person to another. That's not encouraging infringement, it's encouraging being able to transport a digital file it's completely neutral to whether or not the content is or is not infringing.

Either way, the RIAA's lawsuit is a near carbon copy of the MPAA's, and is just as faulty in its reasoning. It's nothing more than a blatant pile on in the attempt to twist copyright laws to their liking.

Filed Under: copyright, kim dotcom, lawsuits
Companies: megaupload, mpaa, riaa

MPAA's Lawsuit Against Megaupload Is Yet Another Broadside Attack On The Internet

from the collateral-damage dept

Earlier this week, we wrote about the MPAA's announced plans to sue Megaupload in a civil lawsuit to pile on to the criminal charges the company is already facing. As we noted, there's no legitimate reason for such a lawsuit, given the criminal lawsuit already underway, other than as a way to try to get a favorable court ruling it can use against others. Having now read the full complaint against Megaupload, it's quite clear that this is exactly what the MPAA is doing. The lawsuit is incredibly dangerous for the internet, even if you think that Megaupload itself was a bad actor. Even the LA Times -- Hollywood's hometown paper -- has called out the lawsuit for how it may have negative consequences felt broadly across the internet.

That's because the lawsuit makes a whole bunch of claims about Megaupload that are perfectly reasonable activities for tons of user-generated content and/or cloud computing companies. But, because Hollywood has spent years demonizing Kim Dotcom as a movie-style villain a la "Dr. Evil", it seems to be hoping that the courts won't notice that it's basically making up what they want copyright law to be, rather than what it is.

First, it describes the fact that when you upload a file to Megaupload, the service would then give you a link that you could share. The MPAA paints this as if it's some nefarious scheme to encourage infringement. But it's actually how pretty much any cloud or user-generated content site works.

When the upload was completed, Megaupload reproduced the file on at least one computer server it controlled and provided the user with a Uniform Resource Locator ("URL") "link" beginning with "megaupload.com." The uploader could then propagate the link broadly over the Internet, so that anyone interested in downloading or otherwise accessing a copy of the file could easily find it on Megaupload's servers.

But, of course, Dropbox or YouTube do the same exact thing. Then, they call out the fact that Megaupload did not provide its own search engine, as if that's something nefarious:

To conceal the scope of infringennent occurring on the Megaupload website, defendants did not provide users with a searchable index of files available for download from the Megaupload website (although defendants themselves had access to such an index). Instead, defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including plaintiffs' copyrighted works.

Except, cloud storage companies from Dropbox to Box to Google Drive don't supply a searchable index of files available on their services either. And that's for a very good reason. Because they're not promoting their services as a place to go to search for infringing works. In fact, you just have to go back to the RIAA's lawsuit against Napster, to see where the exact opposite claim was made. In that case, the court found that Napster was, in part, liable because it had a search feature:

Napster is not an Internet service provider that acts as a mere conduit for the transfer of files.... Rather, it offers search and directory functions specifically designed to allow users to locate music, the majority of which is copyrighted.

Yet, now, the MPAA seems to be arguing that not having a search engine means you're trying to hide copyright infringement. Damned if you do, damned if you don't -- just how the RIAA and MPAA like it. If you have a search engine, you're enabling infringement, if you don't have a search engine, you're "concealing" infringement.

The MPAA also tries to paint other perfectly reasonable business model choices as nefarious. Offering premium paid-for services for faster downloads, or access to larger files, is painted as some evil plan to profit off of infringement. But it also makes perfect business sense for a company like Megaupload seeking to cover its bandwidth bills. Similarly, the famed "financial incentives for premium users" is treated as if this is actually paying people to post infringing works. But that makes little sense. It's actually an incentive to get people to post good content. It's the same reason that YouTube today pays top YouTubers who bring in lots of visitors. Is the MPAA really arguing that such an incentive program is illegal?

To ensure a vast and ever-growing supply of popular copyrighted content to which they could sell premium access, defendants paid users to upload popular content to Megaupload's servers. Defendants' Uploader Rewards program promised premium subscribers cash and other financial incentives if they uploaded popular works, primarily copyrighted works, to Megaupload's servers. The rewards program also encouraged users to publicly promote links to that content, so that the content would be widely downloaded.

Except, nothing in this program appeared to be about encouraging people to post infringing works. In fact, it would seem like a pretty stupid program for encouraging infringement, as Megaupload would likely be able to bring in a lot more attention and revenue for authorized legitimate content. Such a program, in actuality, appears to be the perfect way for artists to go direct to their fans, offering them ways to get the content for free, while still earning money. In fact, that's why artists like Busta Rhymes spoke out in favor of Megaupload after it was shut down. He pointed out that he could make a lot more money releasing his own music directly via Megaupload, than in going the old record label system.

Furthermore, since this lawsuit is from the movie studios, they list out a number of specific movies that they claim were on the site. However, Megaupload says that the uploader rewards program only applied to files smaller than 100MB, meaning it likely didn't apply to any films that were uploaded. Assuming that's accurate, the studios are going to have quite a difficult time proving that the rewards program induced infringement of movies.

On top of that, even if the program was used by some to make money from sharing infringing works, the program itself is clearly content neutral, and not about encouraging sharing of infringing works. For the MPAA to allege otherwise threatens all kinds of incentive programs on pretty much any user-generated content site.

Next, the MPAA complains that when they sent takedowns to Megaupload, it only removed the specific URL they sent, and not all copies of the content. But, uh, that's all that the law requires. As the court in the YouTube/Viacom case ruled, under the DMCA, the service provider needs to be made aware of specific locations where infringing content is. They can't just be given a single URL and told to "block all copies of that." Nor would such a request be reasonable either, as infringement depends on context, not content. In the YouTube/Viacom case, Viacom initially sued over files that its own employees had uploaded, meaning they were licensed -- yet it argued those were infringing. You run into the same problem here in that the MPAA is arguing that if you know that a particular file is infringing, all similar content must be removed. But the law does not say that. Though, clearly, the MPAA is seeking to change the interpretation of the law.

Next, the MPAA argues that because Megaupload could have used filtering tools to prevent new uploads of works previously claimed as infringing, and did not do so, that proves it's liable. However, that's completely bogus. Many, many, many copyright cases have all said over and over again that nothing in the DMCA creates a duty for service to proactively filter new uploads. In fact, the industry itself admits that this is true, because they're currently asking Congress to change the law to make this a new legal requirement. Yet, in the Megaupload complaint, they pretend it is already the law:

Megaupload could also have implemented various readily available and effective technological solutions (including, without limitation, automated filtering using digital fingerprinting-based content-identification technology) to identify and prevent infringement of copyrighted content. Megaupload chose not to do so.

But there is no legal reason why it had to do so. In fact, considering that others have spent tens to hundreds of millions of dollars on such systems, there are perfectly good business reasons not to have spent such money. Here, the MPAA is using this lawsuit to try to get a court to suggest there's a legal duty to filter. This would have a huge negative impact on startups who couldn't afford the tens of millions of dollars entry fee.

You can argue that Megaupload was widely used for infringement. You can even argue that Megaupload management were awful people who didn't care that much about copyright. But if you read this lawsuit objectively, you have to admit that it is a straight up attack on the basic principles of cloud computing and user-generated content, while seeking to change settled law and reinterpret the DMCA in a way the MPAA fantasizes it should be, rather than the way the law is today. That's incredible dangerous.

It's no surprise that they're doing this against Megaupload, a company based halfway around the globe, with all its assets seized, and which is fighting a massive criminal complaint at the same time. That will, obviously, lead to limited resources to fight this civil suit, making it easier for the MPAA to sneak through dangerous changes to the law, via potential court rulings. These are changes that it's been unable to get written into the law for the past few years, so now it's using the courts to try to do its dirty work.

No matter what you think of Megaupload, this is a very dangerous lawsuit.

Filed Under: cloud computing, copyright, movies, user generated content
Companies: megaupload, mpaa

Hollywood Piles On: MPAA Sues Megupload, Even Though They Already Got The Feds To Kill It

from the because-money dept

In news that will come as little surprise to just about anyone, the MPAA has announced that it is piling on and suing Megaupload and Kim Dotcom for copyright infringement, in an action separate from the criminal charges he currently faces. Two years ago, the MPAA had indicated it was likely to do this when it asked for some data to be retained for such a purpose. Also, a few months ago, the DOJ (secretly) got an order from the court (without letting Megaupload know) that allowed it to share information with the MPAA so that the MPAA could file its own civil suit against Megaupload.

So you had to know that a lawsuit was coming -- and it had to come soonish, given the three year statute of limitations on infringement claims. The MPAA's press statement simply parrots the DOJ's highly questionable assertions:

“When Megaupload.com was shut down in 2012 by U.S. law enforcement, it was by all estimates the largest and most active infringing website targeting creative content in the world,” said MPAA global general counsel Steven Fabrizio. “Infringing content on Megaupload.com and its affiliates was available in at least 20 languages, targeting a broad global audience. According to the government’s indictment, the site reported more than $175 million in criminal proceeds and cost U.S. copyright owners more than half a billion dollars.”

The MPAA is using its favorite law firm for these kinds of cases, Jenner & Block. Of course, there's a (pretty strong) argument that if the MPAA was so upset by Megaupload, it should have filed this lawsuit years ago, rather than convincing the DOJ to twist and turn things to pretend that it was a criminal issue. Megaupload has a pretty strong defense to a civil suit in pointing out how the DMCA works and the fact that the company complied with DMCA takedowns. But, now, with Megauploads' assets frozen, Kim Dotcom separately having to fight extradition charges and the criminal charges, it just makes it that much more difficult to also fight the civil case -- which is exactly how the MPAA likes it.

Really, this is perfect for the MPAA. There's no reason at all for this lawsuit. Megaupload is about as dead as can be -- and, in fact, much of the data has been deleted already thanks to the DOJ's actions. But at this late stage of the game, the MPAA can pile on, likely get some sort of court victory and will then crow about how it fights copyright infringement hard. And those lawyers at Jenner & Block will certainly be paid nicely.

Of course, what none of this will do is help the MPAA or the studios actually deliver more good content in a format people want. That's too much work.

Filed Under: civil copyright, copyright, criminal copyright, doj, kim dotcom
Companies: megaupload, mpaa

Hollywood Hires New Person To Make Same Old Mistakes In Fighting Against The Future

from the good-luck-with-that dept

A few weeks ago, a friend sent over a link to a website called CreativeFutures -- a Hollywood-created organization to (of course) push for anti-piracy efforts. What was really weird about it was that it seemed almost identical to a different such organization, called Creative America, which the same studios had used as a center piece in pushing SOPA, but which had gone quiet. The NY Times, however, has cleared up the mystery. Apparently, CreativeFutures is Creative America, with a new name and a new leader... who seems to be pulling out the same bad playbook on how to deal with innovative technologies that have changed the market for video. Here's a tip: any time you see someone insisting that "the answer" to dealing with widespread infringement is "more education," you know that you're dealing with someone who is either ignorant, or not particularly serious concerning the issue. And yet, here is CreativeFutures new boss, who the NY Times describes as "sassy," Ruth Vitale:

One idea — though now it is no more than that — is to build alliances with educational nonprofit groups that might enforce the notion that stealing an artist’s work online is just like lifting from a classmate’s desk.

“It’s as simple as this: One kid does a painting, and another kid comes up and puts his name on it,” Ms. Vitale said.

For decades, the industry has kept insisting that all people really needed was a bit of "education" and they would magically start shoveling money back down the same payment channels they used to. But, of course, that's never worked. Because it's never been an education issue. It's always been a service problem, in that the industry fails to make works available in a convenient way that consumers want. Yes, the industry has gotten better at this over the years, but they still make it way, way too difficult, and that's why there's infringement.

Second, of course, is if the education is focused on having someone else put a name on your work, well, that's plagiarism, not copyright infringement -- and there's a pretty big distinction there. And, here's the thing: people understand that difference inherently. Pretending that they don't -- as Ms. Vitale seems to do here -- is acting as if the general public is stupid. Pedantically talking down to the very public you want to support you, telling them they need to be educated, and then "educating" them with bullshit misleading analogies that have nothing to do with the actual situation and totally misdiagnose the issue... is not exactly a well thought-out strategy.

Perhaps, instead of throwing money away on bogus groups like the re-christened CreativeFutures, the movie industry would be better off, you know, letting innovators build better services instead of ones that are totally hamstrung and locked up in ways that are annoying and inconvenient to the public. But, if there's one thing we've learned in decades of watching the MPAA and RIAA do the wrong thing it's that, when given the choice between treating consumers as idiots and actually listening to them, they'll always choose the path where they treat customers as idiots.

Filed Under: copyright, education, hollywood, ruth vitale
Companies: creative america, creative futures, mpaa

Piracy Continues Killing The Movie Business To New Record Highs

from the yet-again dept

So, earlier this week, the MPAA came out with its annual report that shows that once again, its box office take hit new record highs. This same thing happens basically every year, so we almost didn't cover it at all this year. It's kind of old news. But people keep submitting it, and so we'll oblige, but mainly for the chance to repeat BoingBoing's awesome title on its story over this: Motion picture industry continues to stagger under piracy with mere record-breaking income. You can read the MPAA's full PDF right here, though for reasons that make no sense at all, they will block you from reading the PDF if you have javascript or cookies disabled. For a PDF? Really guys? There is no reason at all that anyone ever needs cookies or javascript to read a PDF file.

The report further notes that ticket prices have continued to rise pretty consistently over the past decade from a $6.21 average price in 2004 to $8.13 last year. For an industry supposedly being destroyed, you'd think they wouldn't be able to get away with raising prices... but, apparently (as we've been pointing out for nearly two decades) going to the movies is a different experience than downloading a film and people are paying for that experience.

And, yes, just to cut off the line of criticism: this only applies to theatrical revenue, and not home viewership. But that's somewhat a red herring, given that, if left to the movie industry, there basically would be no home video market to speak of at all.

Filed Under: box office, movies, records, tickets
Companies: mpaa