Bogus DMCA Notices Nearly Delete Cyberlocker From Google

from the what-happens-when-you-let-others-mess-with-search-results dept

The legacy players in the entertainment industry, led by the MPAA and the RIAA have been trying to get the right to edit search results on various search engines for years, under the bogus belief that if people didn't get search results linking them to infringing files, they'd suddenly start spending more money on entertainment. As we've explained in detail, it's not nearly as easy as some people think to simply demote "bad" sites will promoting "good" sites. Even with a long list of reasons why such a plan won't work, Google (alone among the search engines) has actually been trying to implement something along these lines. And, exactly as we've warned, caving to the demands of the legacy entertainment industry never works. For them, it's never enough, as they'll continue to whine and complain until search engines have magically brought us back to 1982.

And there are real dangers when you effectively let third parties "edit" or "shape" Google's results as they see fit. TorrentFreak recently highlighted a good example of this, as the cyberlocker RapidGator discovered that it's basically been almost entirely delisted from Google because of DMCA notices. RapidGator already blocks Google from indexing the files hosted on its site -- so even if some users of the service post infringing files, they wouldn't have appeared in Google anyway. As the article notes, copyright holders apparently sent Google DMCA takedowns on links that weren't even in Google's index in the first place. But, more importantly, the pages that were in Google's index were clearly non-infringing, including things like the site's front page or details about the site and the services it offers.

The end result is that Google has taken RapidGator almost entirely out of the Google index. As the company states, the same thing could easily happen to a more high profile or "mainstream" cyberlocker like Dropbox. Just get enough DMCA notices -- legitimate or not -- and thanks to pressure from the entertainment industry, the "results" pages on Google get effectively edited by the legacy entertainment industry. I wonder how long it will take until other industries demand similar rights....

Filed Under: copyright, cyberlocker, dmca, search results, takedowns
Companies: google, mpaa, rapidgator, riaa

MPAA 'Settles' Another 'Victory' Against Hotfile For $80 Million That No Artists Will Ever See

from the chalk-another-one-up dept

Following about a month and a half after the MPAA got IsoHunt to "settle" for $110 million (and to shut down), the anti-innovation lobbyists can now cheer about getting a similar "settlement" out of Hotfile, this time for $80 million which will never be paid (and certainly, no actual artists will see any of it). Hotfile had already lost the key ruling in court, which will now effectively place massive liability on any digital storage locker online. The MPAA will put out its press releases and bogus statements about how this will show other sites that they can't "get away with" enabling infringement, even as a dozen similar sites will pop up overseas where they'll be even less concerned with what the MPAA has to say. There seems to be no point in this, other than the MPAA shutting down the kind of innovations that consumers clearly have shown that they want. It makes no sense. The MPAA thinks that this will scare off other similar sites, but in their decades of "fighting piracy," that has never happened. Each one of these victories leads to... more such sites appearing, though in ways that are harder to shut down, less respect for the legacy Hollywood studios, and a general feeling that Hollywood refuses to adapt and compete. It's a braindead strategy that never made sense. I don't see how it's a victory for anyone. It won't decrease the amount of infringement. It won't stop cyberlockers. It won't help consumers. It won't help movie makers. It won't do anything, other than letting the MPAA declare victory.

Filed Under: cloud computing, cyberlocker, storage
Companies: hotfile, mpaa

Surprise: MPAA Told It Can't Use Terms 'Piracy,' 'Theft' Or 'Stealing' During Hotfile Trial

from the a-bit-of-good-news dept

I knew that Hotfile had been pushing for this, but I'm somewhat happily surprised to see Judge Kathleen Williams of the US district court in Southern Florida grant Hotfile's motion to bar the MPAA from using "pejorative terms" in its copyright infringement case against the company. Among the words that the movie studios cannot use in describing Hotfile's activity: "piracy," "theft" and "stealing." We've been pointing out for many years how the industry has been using these kinds of misleading terms to influence pretty much everyone to their side, even though the terms are not even remotely accurate. Hotfile had reasonably argued that such terms could negatively influence the jury:

In the present case, there is no evidence that the Defendants (or Hotfile’s founders) are ‘pirates’ or ‘thieves,’ nor is there evidence that they were ‘stealing’ or engaged in ‘piracy’ or ‘theft.’ Even if the Defendants had been found to have directly infringed on the Plaintiffs’ copyrights, such derogatory terms would add nothing to the Plaintiffs’ case, but would serve to improperly inflame the jury.

The MPAA tried to argue that these were commonly used, but apparently the judge realized that using these misleading words really would be unfair. Hopefully other courts follow suit.

Filed Under: copyright, infringement, juries, pejorative, piracy, stealing, theft
Companies: hotfile, mpaa

Copyright Lobbyists And The $1 Trillion Fallacy

from the even-if-we-take-the-bogus-stats-at-face-value dept

Well, here we go again. Earlier this week, the IIPA (a sort of uber copyright maximalist lobbying group, made up of other copyright maximalist lobbying groups, including the MPAA, RIAA, BSA, AAP, NMPA, ESA and IFTA) released a new report on the economic impact of "the Copyright Industries." This report comes out every few years, written by the copyright maximalists' favorite economist, Stephen Siwek, who is well known for both these reports and another set of reports in which he tries to calculate "losses" due to infringement using the most ridiculous and misleading methodology imaginable. This report is slightly different. There's not much in the way of direct methodology: he's basically lumping together a bunch of industries as "core copyright" industries, and presenting some stats around them. There are also the "partial copyright" industries, which are kind of laughable, since it includes things like "furniture."

The report is incredibly misleading (and is being used in a misleading way), but we'll get to that. Instead, let's start out by taking the report at face value, and assuming that it is accurate. The claim that the backers of the report (including NBCUniversal, which funded it) are latching onto is the big round number: the claim that:

for the first time, the contribution of the core copyright indus- tries of the U.S. economy surpassed one trillion dollars in 2012

One Trillion! Big number. So big that the IIPA was even able to get the head of the Copyright Office, Maria Pallante, to highlight it in her presentation that coincided with the launch of the report. She apparently put that number on a single powerpoint slide and asked people to remember that number.

As we'll describe, that number doesn't actually say what Pallante and others are pretending it says, but even if it did... doesn't it suggest that the industries are doing fine? Even as infringement has continued to be a major issue, and there are new ways to share content around the globe, the data in the report suggests that the "core copyright industries" have continued to grow and thrive at a very consistent pace -- completely contrasting the supposed doom and gloom these same folks tell us about how piracy is supposedly killing these industries.

Instead, the report shows a steady increase in revenue within these industries, a steady increase in employment and a steady increase in the salaries of those employed in those industries -- in which they make more than people in many other industries. Basically, every chart in the report suggests that the "core copyright industries" are thriving, especially compared to the wider economy. Take, for example, the compensation chart: And yet, during those same years, we were being told, repeatedly, that those industries were dying, that jobs were going away and that we needed much stricter new copyright laws. This chart seems to debunk all of that.

But... of course, that's not how the IIPA and its supporters are spinning this report. Instead, they're using it to argue that "the core copyright industries" are "so important" to the US economy that they need to new laws and protection:

"This study represents a milestone," said Steven J. Metalitz, counsel to the IIPA. "In order to preserve and enhance jobs, exports and economic contributions, it is critical that we have strong legal protections for U.S. creativity and innovation in the U.S. and abroad."

[....] "This report makes it crystal clear that workers in the creative industries make a huge contribution to America's economy," said Matt Loeb, international president of the International Alliance of Theatrical Stage Employees, which represents crew members on movies and TV shows. "It also underscores the urgent need to do more to build, strengthen and protect employment in this dynamic part of our nation's economy."

But... neither of those claims follows from the numbers presented. If these people knew anything about basic economics, they'd know that protectionism doesn't help grow markets -- it constrains them. The way you "strengthen" employment in these markets is by allowing competition and innovation to flow, which is the exact opposite of the legal regime they're pushing for. Of course, everyone knows what this is really about. The report is supplied by a few legacy players in this space, the ones threatened by innovation and upstarts. It's being pushed by the gatekeepers who don't want to compete. They don't want there to be more competition and innovation, because that tends to allow artists and creators to go direct -- and not to have to rely on gatekeepers, who take an 85% cut of all revenue.

Even worse, the report is incredibly misleading -- in effect allowing Siwek, the IIPA, Maria Pallante and other copyright maximalists to blatantly use the success of others who did not rely at all on copyright to support their notions that we need more copyright. That's because of a basic fact that is totally ignored in the report: just because you produce "copyright" covered content, it does not mean that you needed copyright to do so, or that you require copyright laws to do so. Instead, the report and its supporters are falsely claiming that every bit of revenue from the "core copyright industries" is because of strict copyright law. That's provably false. Hell, technically, the revenue that this very site that you're reading now produces is almost certainly included in that "$1 trillion." We're very much a part of the "core copyright industries." And yet we don't rely on copyright. At all. In fact, we dedicate all of our content to the public domain.

And it goes beyond that. A significant portion of the revenue they're discussing actually comes from computer software: But that's an industry where there's tremendous support for changing copyright laws so that there's less protection and more sharing. The growth of the open source movement, and the fact that it powers so much of what we do today, is hardly an argument for stricter protectionism and ratcheting up copyright laws. But, by lumping them all in as "core copyright industries" and then pretending that means you need strict copyright laws to create that content, Siwek, his funders and their friends get to actually use the innovations and business models that show why stricter copyright may be a bad idea... to argue for stricter copyright law.

It's not just blatantly dishonest, it's co-opting the economic activity that disproves their argument to pretend it supports their argument. That Maria Pallante would quote that number and support it suggests serious problems in how the Copyright Office views things today. This kind of report has no business being taken seriously, let alone being used in any policy arguments at all. But, if it is, at the very least, people should point out that, if taken at face value, it pretty clearly shows that the copyright maximalists have been flat out lying about their industries struggling, and how they need things like SOPA, TPP and other legal changes.

Filed Under: copyright, copyright industry, copyright maximalism, core copyright, economic impact, fallacies, stephen siwek, steve metalitz
Companies: bsa, iipa, mpaa, nmpa, riaa

USTR Insists Secret, MPAA-Backed TPP Is 'Most Transparent Trade Negotiation In History'... From Hollywood Studio

from the does-anyone-believe-this-crap? dept

Honestly, it's somewhat difficult to believe that someone who works in the USTR didn't recognize that it was a bad idea to have their new boss, Michael Froman, who was once called one of the most "egregious examples" of the "revolving door" between companies and government, head out to visit two of the largest Hollywood studios just days after the IP chapter of the secretive TPP agreement was leaked, showing that it was basically Hollywood's wishlist of copyright crap. It's even more difficult to believe, given all that and given that Froman decided to go hang out with some friendly folks in Hollywood anyway, that someone at the USTR didn't think maybe, just maybe, Froman should avoid giving an interview in which he'd be asked about the leaked chapter.

But, it happened. Of course, the interview was with Variety, so maybe they figured that only Hollywood people would read it, and that the rest of the world would never catch on to the fact that Froman is either totally clueless or a blatant liar about the TPP. However, he did give an interview, while "touring Paramount's backlot" in which he said a bunch of nutty things. Here's my favorite:

He also called the talks over the trade pact “the most transparent trade negotiation in history,” noting that they have held more than 1,000 briefings on Capitol Hill, have enlisted 600 advisers for input from various groups and have invited stakeholders to address negotiators from all 12 countries, among other efforts.

Let's just say, this is pure bullshit. Extreme bullshit. Honestly, even Variety (which, as you might imagine, tends to toe the Hollywood line) seems to suggest that this claim isn't actually true. And, of course, considering that the USTR is infamously secretive, being "the most transparent in history" doesn't mean you were actually transparent at all. And, in this case, the fact that he's claiming it's "the most transparent in history" days after a chapter that no one in the public has seen during nearly four years of negotiations had to be leaked should highlight the level of bullshit that Froman is spewing.

He seems to have pulled this "most transparent" bullshit from his predecessor, Ron Kirk, who used to claim the same thing. Both are fundamentally trying to mislead. We've said it before, and we'll say it again, listening to lots of people, while not revealing what you're doing, is not transparency. It's listening. Listening may be better than not listening, but it's completely different than "transparency." Let me make this even clearer:

• Listening: People ---- information -----> USTR
• Transparency: USTR --- information ----> The Public

What Froman described above is about listening. They get "advice" from various stakeholders. That's not transparency. That's listening. So long as no one gets to see what crap they're negotiating "on our behalf," there's no transparency. At all. The only time this negotiation had any transparency was when Wikileaks finally released the IP chapter which the USTR should have and could have done years ago.

The other bit of bullshit in the interview was his misleading response to the claim by some that TPP is like SOPA. Now, I should be clear that we've avoided making that comparison, because there is a different set of issues here. And Froman used those differences to try to discredit all criticism of TPP:

“For example, as I understand it, I wasn’t around for it, (the Stop Online Piracy Act) was about blocking rogue Internet sites from accessing the Internet from the United States. There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that,” he said.

But "blocking rogue websites" isn't what's making people make the comparison between TPP and SOPA. It's two things: (1) a backroom deal negotiated in secret with no input from the public which (2) includes basically a wishlist from Hollywood. The fact that the two wishlists are not identical is not really the point, but it's the point Froman chose to focus on, because he's trying to mislead the public.

Froman continues to demonstrate that he has no business in the role he's in:

“Our goal through these trade negotiations is to make sure we are raising the standard of protection around the world, for artists and the people who support them,” he said.

Except that's not supposed to be the goal at all, and the fact that he thinks it is makes him clearly unqualified for his job. Remember that the TPP is supposed to be about free trade, yet here he is admitting that his actual agenda is increasing protectionism. Second, as anyone who knows anything about intellectual property knows, "raising the standard of protection" has been shown repeatedly to be rather harmful to creators and the public. And, again, the entire purpose of copyright law is supposed to be about promoting progress for the public. It would appear that Froman doesn't know this. And yet he's in charge of negotiating this thing? Really?

This is the reason why transparency matters. Because when you take someone who doesn't understand intellectual property at all, such as Froman, and tell him to negotiate a trade agreement in which the only people he shares the negotiating text with are maximalists, all he hears is how they have to "raise" standards, even as most of the world has realized that the "standards" are already way too high and tremendously damaging to the economy and innovation.

Either way, this whole situation is incredible. You have the USTR, just days after the secret treaty that was written with the help of Hollywood's lobbyists is leaked out, declaring that it's the most transparent in history despite the fact that, if he had his way, none of the public would have seen it, and saying so while touring Hollywood studios. The USTR is either extremely confident that no one cares about trade agreements, or a large segment of the staff there is profoundly clueless. Or maybe it's both.

SOPA was taken down because it was a backroom deal and a Hollywood wishlist, without respect for the public. ACTA went down for the same reason. If Froman doesn't want the same thing to happen to TPP, he might want to learn a thing or two about intellectual property and what transparency means. Because as of right now, he appears to be setting himself up to be roadkill for another internet uprising.

Filed Under: acta, michael froman, sopa, tpp, transparency, ustr
Companies: disney, mpaa, paramount

The MPAA's Plan To Piss Off Young Moviegoers And Make Them Less Interested In Going To Theaters

from the do-these-guys-never-think-anything-through? dept

Given how important teenagers and those in their 20s are to the movie industry, you'd think one day they'd learn to stop being complete assholes to that demographic. For example, you'd think that they'd realize that young folks today really, really like their smartphones, and one of the main things they do with those smartphones is snap pictures or videos of just about anything and everything and share it with their friends via whichever platform they prefer, be it SnapChat, WhatsApp, Instagram, Vine, Facebook, Twitter or whatever else they might be using. It's just what they do -- and they seem to be doing it more and more often. Yet, the MPAA wants to make sure that if kids do this, theaters should call the police to have them arrested as quickly as possible.

The thing is, the MPAA should know that this is a recipe for disaster. In 2007, Jhannet Sejas went to see Transformers, and filmed 20-seconds to send to her brother to get him excited to go see the movie. The result? Police were called, she was arrested and threatened with jailtime. She was eventually pressured into pleading guilty to avoid jailtime. Samantha Tumpach wasn't quite so lucky. She, along with her sister and her friends, went out to the movies in 2009 to celebrate her sister's birthday. Since they were all having fun, she decided to film some of the group while they were watching the movie. Once again, police were called and she was arrested and spent two nights in jail. After widespread public outcry, prosecutors dropped the charges.

Given those high profile cases, combined with the fact that smartphones have become more ubiquitous, and the pastime of taking photos and videos has become ever more popular, you'd think that maybe, just maybe, someone at the MPAA would think to teach theater owners to be a bit more lenient about the kid just taking a photo or filming a couple seconds of a video. But that's not how the MPAA operates. Its goal in life seems to be to think up ways of how it must have been wronged, and its weird and stupid obsession with movies captured by people filming in the theaters is really quite ridiculous.

The MPAA has now released its latest "best practices" for theaters, and it's basically exactly what you should do if you want to piss off the demographic of folks who actually go to theaters. You can see the whole thing here if you want to see exactly what not to do.

And the MPAA is Obnoxious The MPAA recommends theaters institute a "zero tolerance" policy, which appears to mean calling in the police if anyone so much as raises a smartphone. Here are a few snippets:

The MPAA recommends that theaters adopt a Zero Tolerance policy that prohibits the video or audio recording and the taking of photographs of any portion of a movie.

Theater managers should immediately alert law enforcement authorities whenever they suspect prohibited activity is taking place. Do not assume that a cell phone or digital camera is being used to take still photographs and not a full-length video recording. Let the proper authorities determine what laws may have been violated and what enforcement action should be taken.

Theater management should determine whether a theater employee or any other competent authority is empowered to confiscate recording devices, interrupt or interfere with the camcording, and/or ask the patron to leave the auditorium.

Even better, the MPAA reminds theaters that they should tell employees about their "TAKE ACTION! REWARD," in which employees who capture an evil pirate in action get a whopping $500. In order to get the award, one of the requirements is "immediate notification to the police." The theaters have to have posters, like the one above, on display if they want their employees to get the cash, so expect to see that kind of crap in theaters everywhere. And expect that employees seeking to cash in on that TAKE ACTION! REWARD to be calling the cops all the freaking time, because some kid raises his iPhone to take a quick picture of his buddies or something cool on screen.

Could the MPAA really be so out of touch and so completely oblivious that they think this is a good idea? Do they not employ anyone who has spent any time around teens and folks in their 20s? Do they honestly think that most police officers don't have better things to do than rush to the local theater every 15 minutes because some employee is trying to get his $500 and the way to do that is to turn in the kids having fun and trying to share the experience (not the movie itself)? And, most importantly, does no one at the MPAA think that maybe, just maybe, turning theater employees into complete assholes will make fewer people want to go see movies?

Of course they don't. That's because the MPAA is made up of lawyers, like this guy, who are obsessed with one thing, and one thing only: "evil pirates who must be stopped." It really seems like when the movie industry does well, it's in spite of the MPAA. What a disastrous organization, working against the industry's actual interests.

Filed Under: anti-piracy, best practices, camcording, mpaa, theaters
Companies: mpaa

MPAA Keeps Wanting To 'Educate' Others, But Why Does It Never Learn Anything Itself?

from the simple-questions dept

Over the past few decades, one thing that's been fairly consistent coming from the legacy entertainment industry is this incredible blind faith in the claim that "if only the public were more educated about copyright law, piracy would go away." This mantra never goes away. This was the stated rationale behind the RIAA's many thousands of lawsuits against individuals. It's been the stated rationale behind programs like six strikes and Hadopi. And it's the reason behind a series of ridiculous school propaganda programs, the latest of which (which doesn't appear much different from past versions) is being rightfully mocked.

Of course, as we've noted over and over again, there is almost no indication at all the "problem" the industry faces is an education problem. Instead, it appears to be a problem of their own making, in that they refuse to recognize what the public is demanding, and thus are failing to deliver the product properly. Furthermore, this focus on "education" has never been shown to work. Past attempts to educate school kids resulted in kids rolling their eyes and verbally mocking such obvious propaganda. Furthermore, historical attempts at "educating" people not to copy have never worked. And that's because it's never actually been an education problem. Sure, many in the public may not be fully educated on the ins and outs of copyright law. But, that's generally not why they're engaging in unauthorized access to content. They're doing it because they want to see/hear/read/run/play the content, and often that's the most convenient way.

This incredible disconnect by the MPAA is exceptionally clear in the actions the MPAA was taking in its legal fight against IsoHunt, right before the two sides agreed to a silly $110 million settlement that will never be paid. Right before that settlement, TorrentFreak had a great article mainly discussing the MPAA's nearly apoplectic desire to avoid letting the jury hear anything about (the lack of) actual damages arising from IsoHunt. It was an interesting story, though not quite as sensationalistic as the original article suggests. The MPAA is actually legally correct in arguing that one of the key points for having statutory damages is so that the copyright holder doesn't have to go through the process of determining actual damages. I (and many others) have serious problems with the whole concept of statutory damages for this very reason -- because it seems absurd to order incredibly high damages when no actual harm was done -- but that is what the current law is.

That said, I think the story is more interesting because of a few other points. First, the MPAA totally misrepresented the law and what IsoHunt was arguing. The MPAA was correct in noting the nature of statutory damages, but took it out of context concerning that lawsuit. The MPAA would have been correct if IsoHunt was using the effort to research actual damages to try to get out from paying any damages. But it was not. IsoHunt had already lost that part of the lawsuit, and it was clear that the company was going to have to pay something. The question was how much.

IsoHunt was arguing, quite reasonably and well within the law, that in helping the jury determine where in the wider range of statutory damages the award should end up, it would be helpful to look at actual damages. That's perfectly reasonable. As it stands, a jury can award between $750 and $150,000 per infringement. All IsoHunt was arguing is that some showing of actual damages is reasonable for the jury to learn about to determine where in that rather large range the award should fall. That's both within the law and reasonable.

But much more insane and questionable was the MPAA's conduct in trying to pile on many more infringements after the fact. The case itself revolved around a claim of infringement of 44 different movie files, which IsoHunt was found guilty of "inducing." We have serious issues with the idea that a third-party software provider should be found guilty for the actions of its users, but, given that the court has already decided this, the range of statutory damages should clearly be based on those 44 files. Instead, however, at the very last minute, the MPAA added 3,903 more files to the list (3,190 of which are TV shows instead of movies) and said the statutory damages should be calculated on each of those files. That jacked up even the minimum statutory award from $33,000 to $2.96 million. And moved the maximum up from $6.6 million to $592 million. At that rate, $110 million looks like a "bargain."

But -- and this is the important part -- at no point has anyone, including the MPAA, proved in a court that IsoHunt "induced" the infringement of all of those files. In fact, as IsoHunt notes, they barely had any time to process the details of those files. In July, the MPAA suddenly announced that it was adding a bunch of files that weren't reviewed during the trial stage. It then refused to tell IsoHunt what those files were until September 16, when it provided it with a massive list of 4,145 files, barely giving IsoHunt any time at all to review all of those claims to see if they were legit. Furthermore, IsoHunt pointed out that, just in looking through the list and grabbing random samples, it found numerous examples where "the claimed infringement does not match the claimed work."

It should seem obvious that it's a massive abuse of basic due process to try someone over a specific legal infraction, and then only after the fact, at the point where damages are assessed, to magically add in thousands of more alleged infringements, which were never actually reviewed during the trial. And that's especially true in copyright cases, where different files may have different fact patterns and different defenses.

So why is the MPAA doing this? Even the judge in the case is befuddled, but the MPAA has its reason: education.

Even the judge was confused why the MPAA wanted to pile on so many extra files when it was clear that it wouldn't make a difference. The transcript reveals the whole "we want to learn them internet folks" mentality coming from the MPAA's lawyers:

THE COURT: What do you estimate to be the resources of [Defendants]? . . . What do you suspect?

PLAINTIFF’S COUNSEL: Based on our estimate, Your Honor, we believe a couple to a few million dollars would exhaust Mr. Fung's or defendants' ability to pay...

PLAINTIFF’S COUNSEL: A couple to a few million dollars would exhaust defendants' --

THE COURT: Does that mean, like $2 million --

PLAINTIFF’S COUNSEL: Two million dollars to $4 million, $5 million at the most.

THE COURT: So why are you making such a fetish about 2,000 or 3,000 or 10,000 or 100 copyrights?

MR. FABRIZIO: Your Honor, the purpose of statutory damages is not only to seek compensation from the defendants, extraordinarily important purpose is to create -- send a message to other would-be infringers like defendants, and there are thousands of them.... THE COURT: But if you strip him of all his assets -- and you're suggesting that a much lesser number of copyrights would accomplish -- copyright infringements would accomplish that, where is the deterrence by telling the world that you took someone's resources away because of illegal conduct entirely or 50 times over?

But this is how the legacy entertainment industry guys think -- and it (once again) shows how out-of-touch and clueless they are. In the past, they've made this same argument in trying to justify the massive awards courts ordered against Jammie Thomas-Rasset and Joel Tenenbaum. The highly compensated lawyers think that awards of many millions of dollars (or over $100 million against companies like IsoHunt and Limewire) help "educate" people away from such things by scaring them.

But what they don't realize is that this strategy almost certainly backfires badly every single time. That's because the money is too high. To average people making average amounts of money (i.e., not the lawyers the RIAA and MPAA hires, nor the execs from either of those organizations), millions of dollars is not a large number that is scary. It's an inconceivable abstract concept. It's so insane to actually feel unrealistic. It has no deterrent factor, because it's incomprehensible. Your average person doing some random file sharing recognizes that having to pay over a million dollars for such actions is so patently ridiculous that it doesn't even register as being something to be afraid of. It's not realistic.

You don't "educate" people with such high numbers. It's only the money-obsessed RIAA and MPAA that think the higher the number, the scarier the message, and the more effective the education. The reality is quite different. It just makes people respect those organizations less, and find the entire legal effort completely surreal and detached from reality. The RIAA and MPAA have gotten these types of awards before, and it has had no real impact. People continue to access unauthorized content, and new platforms and services (often harder to track down) pop up every single time one of these sites gets shut down.

The MPAA thinks that it has to keep ratcheting up the "education" by seeking ever more ridiculous numbers, but at what point do they realize this doesn't work and has never worked? When the "punishment" seems perfectly absurd to anyone with common sense, and tactics like piling on thousands of extra infringements not mentioned in the trial raise significant questions of due process and fairness, all the MPAA is doing is making sure that people have less respect and less interest in actually paying attention to the details of copyright law, because the MPAA (along with the RIAA) has worked so damn hard to "educate" the world that the punishments associated with copyright law make absolutely no sense.

Filed Under: copyright, education, gary fung, piling on, takedowns
Companies: isohunt, mpaa

As MPAA Insists TV Piracy Is So Harmful, Breaking Bad Creator Explains How Piracy Helped

from the but-of-course dept

At this point, it's amazing how tone deaf the MPAA remains about the impact of people downloading TV shows. Just a few days ago, the MPAA posted a silly blog post arguing that people getting copies of The Walking Dead from unauthorized sources demonstrated how "content theft is a complex problem... that needs to be taken seriously." Except, a day or so later, the creator of AMC's other super popular show (now concluded) Breaking Bad, Vince Gilligan, explained how piracy really helped the show build its base and become so popular:

"[It] led to a lot of people watching the series who otherwise would not have."

Of course, at this point, this shouldn't be surprising. Folks behind Game of Thrones have more or less said the same thing. Of course, they also try to hedge their claims. Gilligan, for example, followed up his statement above with the following:

"The downside is a lot of folks who worked on the show would have made more money, myself included, if all those downloads had been legal."

Except, that's wrong. Or, rather, it's fantasy-world. If people hadn't pirated it, Breaking Bad would have had a much smaller audience, and likely a much shorter run. Recent interviews with the writing staff suggested they expected the show to be cancelled many times throughout the run. If it wasn't getting more and more viewers, it seems likely that it would have been canceled much earlier, and Gilligan's reputation and brand wouldn't be as wonderful as it is currently. It seems quite likely that it would have resulted in him making less money both from Breaking Bad itself and from future projects, where he'll now be able to command a much larger paycheck, given this success.

The MPAA is right that it's "complex," but the constant drumbeat that it's a problem that needs to be fixed seems to ignore the reality that those who have embraced much more widespread distribution and the benefits it provides, have found that it's not necessarily a problem at all. It's only a problem for those who fail to capitalize on it (and, we should note, that "failing to capitalize on new opportunities" is sort of a trademark of the MPAA).

Filed Under: attention, breaking bad, piracy, the walking dead, vince gilligan
Companies: amc, mpaa

IsoHunt Agrees To Shut Down And 'Pay' $110 Million

from the which-will-never-get-paid dept

Just this morning I'd been putting together a long and involved post highlighting how some of the MPAA's actions in the IsoHunt case raised serious questions about their overall strategy, but I now need to go back and revise and update that post as the news has come down that IsoHunt and the MPAA have "settled" the case with IsoHunt agreeing to "pay" $110 million and shut down. Of course, IsoHunt won't pay $110 million. In court recently, even the MPAA's lawyers admitted that IsoHunt would be dead if the court awarded as little as $2 million. But, the MPAA wants that bogus $110 million number to throw around, just as they wanted to toss around the $105 million that Limewire settled for a couple years ago.

Of course, even if IsoHunt did pay that kind of money, how much would go to artists?

Unfortunately, there were many, many problems with the IsoHunt case in the first place. It was a clear case of bad facts making bad law -- or what Eric Goldman has referred to as the difference between real law and file sharing rule. It's clear, for example, that there was a tremendous amount of infringement done via IsoHunt. But there are serious questions about whether or not the liability for that should fall on IsoHunt as a torrent search engine. IsoHunt remains really the only significant case where the court has accepted Hollywood's bizarre interpretation of "red flag knowledge" in copyright infringement. And, really, that's why the MPAA wanted so damn badly to get this case finished without an appeal.

Now, unfortunately, the MPAA can continue to point to the rulings in IsoHunt, including many of the more problematic claims around inducement liability and red flag knowledge, knowing that they can't be directly challenged in that case any more. You can understand why IsoHunt settled. The company had already lost the key fights, and it was going to get hit with a giant sum to pay no matter what -- clearly more than it could ever pay. So why go through the process of continuing the court fight, when a settlement just gets it over and done with? At that point, the quibble is just about what bogus number the MPAA gets to lead the press release with, and $110 million was apparently the winning ticket. It wouldn't have made a difference if it was $1.1 million or $1.1 billion, the result is basically the same.

Amusingly, Chris Dodd is out there claiming that this is some sort of victory for innovation:

"Today’s settlement is a major step forward in realizing the enormous potential of the Internet as a platform for legitimate commerce and innovation,” said former Sen. Chris Dodd, chairman and chief executive of the MPAA. “It also sends a strong message that those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions.”

Of course, it does nothing of the sort. If the shutting down of Napster, Grokster, Aimster and Limewire failed to make that point, why will IsoHunt's shutdown and unpayable fine make that point any stronger? Either way, I'll have a bit more on this case soon, once I've had a chance to rewrite that other post in light of this latest turn of events.

Filed Under: copyright, gary fung, inducement, red flag knowledge, settlement
Companies: columbia studios, isohunt, mpaa

MPAA Evidence In IsoHunt Case Doesn't Show What It Claims

from the nice-work-guys dept

The MPAA's lawsuit against IsoHunt is still going on, and the latest shenanigans from the movie studios (yet again) raise significant questions about the (lack of) care with which they handle these cases. They often seem to act as if it's so self-evident that any torrent search engine or cyberlocker is evil that they don't really have to be that careful in actually proving their case. The latest, found via TorrentFreak, is that the evidence the MPAA is using to try to prove direct infringement doesn't seem to show any infringement, because the evidence isn't what they claim it is. Beyond failing to provide the necessary documents in a timely manner for discovery, now that the MPAA has finally produced the evidence, it appears completely screwed up. IsoHunt wanted to look through the details of the claims of direct infringement to see whether or not the movie studios had uploaded the works themselves, or if any of the downloads were also from the studios. The MPAA delayed handing over such information and when it finally sent a hard drive along with a corresponding explanation, the details didn't match up.

Plaintiffs' BT_ID List identifies dot-torrent file 2224 as corresponding to Plaintiffs' work "Legends of the Fall."

Plaintiffs produced a copy of a dot-torrent file named "2224.torrent" on September 19, 2013. But opening the dot-torrent file "2224.torrent" in a BitTorrent client causes it to begin attempting to download a copy of a work entitled "Buddha Bar - Vol 4."

The target file of the 2224.torrent file could not be downloaded.

Plaintiffs' BT_ID List identifies dot-torrent file 3630 as corresponding to Plaintiffs' work "Seven Years in Tibet."

Plaintiffs produced a copy of a dot-torrent file named "3630.torrent" on September 19, 2013. But opening that dot-torrent file in a BitTorrent client causes it to begin attempting to download a copy of a work entitled "Transformers."

The target file of the 3630.torrent file could not be downloaded.

Plaintiffs' BT_ID List identifies dot-torrent file 16170 as corresponding to Plaintiffs' work "Lords of Dogtown."

On September 28, 2013, I launched the dot-torrent file "16170.torrent" using the BitTorrent client uTorrent, which downloaded eighteen files from the Internet. I reviewed each of the files and determined that none of them is the movie "Lords of Dogtown." Indeed, none of the files is a video file. Rather, the downloaded files comprise sixteen mp3 audio files, an m3u file (which when opened plays each of the sixteen audio files in sequence), a .sfv file (which I understand contains information to verify that files are uncorrupted), and a .nfo file that contains textual information about the audio files. Launching the 16170.torrent file using a BitTorrent client results in a download of audio files identical to the content files Plaintiffs actually produced on their hard drive on September 19, 2013.

There's more like that. IsoHunt's legal team points out that the MPAA has yet to actually produce any documents that are "sufficient to accurately identify their works," and that it will take a fair bit of time to actually look through all 2,000 torrent files and check whether the they actually lead to the works claimed -- an impossible task in the amount of time IsoHunt has to respond to all of this.

I know that the MPAA likes to assume these sites are clearly guilty with no chance of being proven innocent, but you'd think the least they could do is not muck up the actual evidence.

Filed Under: copyright, evidence
Companies: columbia, isohunt, mpaa