As Expected, MPAA's Filter For IsoHunt Blocks Plenty Of Legit Content, Even As MPAA Whines It's Not Good Enough

from the because-filtering-is-stupid dept

The MPAA has been engaged in an ongoing legal battle with torrent search engine IsoHunt, where a court ordered IsoHunt to wave a magic wand and block all infringement based on an MPAA list of what has to be blocked. This is pretty stupid for a variety of reasons. Hell, back in the Napster case over a decade ago, the judge made a similar requirement only to learn that filters suck for this kind of thing. There are two reasons for this: (1) they don't do a very good job blocking infringing content, and (2) they always block legitimate content. While those two things may sound contradictory, they're not. When such blocks go into place, people who really want to share unauthorized content quickly work out ways around the filters, whether it's some sort of shorthand that avoids the filters or with some other simple to decipher system. Yet, for content that wants to be found, there's no need for such basic obfuscation, and then the legit content gets blocked. In fact, last year we wrote about legitimate content being blocked.

And it's still happening today. Even as the MPAA is claiming that IsoHunt has constructed its filter to still let people infringe, there are reports coming out about how ridiculously broad and stupid the filter is, such that plenty of legitimate and authorized content is getting caught and blocked. It appears, for reasons that make no sense, the MPAA has more or less made IsoHunt set up blanket blocks on certain terms, no matter how generic:

This week artist Elliot Wallace found out that the music he shares with a Creative Commons license is blocked for U.S. visitors. Those who try to download his two track album “The Spirit Truth” will see the following error message.

“Torrent has been censored, as required by US court.”

Needless to say, Wallace doesn’t want his music to be blocked. However, one of his tracks is titled “In the Kingdom of the Undead” which contains “The Kingdom,” a combination of words which the MPAA deems infringing.

TorrentFreak goes on to note that this single filter item of "the kingdom" has resulted in a whole bunch of authorized content getting blocked:

For example, legitimate torrents blocked by “The Kingdom” phrase include an album with Reggaeton music, a selection of sermons preached at the North Main Church of Christ and a live concert from Uncle Earl. All these files are also hosted on the Internet Archive and can be shared freely.

And that's just a single phrase. There are many others, some of which the article highlights.

Meanwhile, I'm curious if anyone actually thinks this is making someone do such a search and then go give money to an MPAA-associated studio? I find that doubtful.

Filed Under: copyright, filter
Companies: isohunt, mpaa

MPAA & RIAA Return To Blaming Google For Their Own Inability To Innovate

from the not-this-again dept

Remember how back after SOPA ended, the MPAA's Chris Dodd kept going on and on about how he was going to take a more conciliatory and partnership-based approach to the tech industry (which he mistakenly seems to believe is defined by "Google")? Apparently that's out the window. Today both the MPAA and the RIAA have launched a one-two punch on Google, which is clearly designed to do one thing: get Google to start censoring its search results so that it no longer returns what people are looking for, but instead returns what the MPAA and RIAA think should be the right search results. The fundamental problem, of course, is that the MPAA and RIAA both seem to think that Google is supposed to deliver the answers they want the public to see, when everyone else recognizes Google's role is to return the results its users are searching for.

The "one-two punch" consists of the MPAA releasing a study that blames Google for piracy, followed by the RIAA testifying before Congress that everyone else is bending over backwards to help stop piracy, but Google is failing to do enough. Let's cover these in two separate posts. This one will focus on the MPAA's joke of a study which does everything it can to pin the blame for piracy on Google, but fails pretty spectacularly as you dig into the details. Amusingly, even the MPAA's own "talking points" on the study (which a friendly bird in Congress passed along) more or less admit that the study is incredibly weak.

The key number, which the MPAA does its best to bury is that search engines "influenced" only 20% of the times when consumers accessed infringing content. This is only slightly higher than the results of our own study, and it shows that the impact of search on infringement is fairly minimal. Of course, rather than focus on that, the MPAA trumpets a different number: claiming that "74% of consumers surveyed cited using a search engine as a discovery or navigation tool in their initial viewing sessions on sites with infringing content."

Note the careful choice of words: "discovery or navigation tool." This fits with our own findings (linked above), which found that a very large percentage of the traffic to sites commonly associated with infringement are people simply using Google instead of the address bar. That is, when we looked at the data, here were the top eight search terms that sent traffic from Google to The Pirate Bay:

1. pirate bay
2. the pirate bay
3. piratebay
4. thepiratebay
5. tpb
6. piratebay.org
7. pirates bay
8. thepiratebay.org

Those are unlikely to be people really "searching" for TPB. Rather, it's just the lazy way of using Google as a "navigation" tool. If that failed, it's highly likely that most of those people would simply try again by using the actual URL. In fact, studies have shown that tons of people use searches as a navigation tool, rather than as a discovery tool. So, it seems unlikely that forcing, say, Google to return something other than TPB when people search on "pirate bay" is going to prevent infringement. It just leads people to go directly to TPB, rather than using the "short cut" of typing something faster.

Also, the 74% number came from a "survey," and we know how reliable those are, or how they can be heavily influenced by the wording of the question. Hard to take that number as anything particularly enlightening even though it's the one the MPAA is so focused on.

In the talking points the MPAA is passing around, it claims "Search engines bear a huge responsibility for introducing people to infringing content." But that's ridiculous. People know there's infringing content out there. They're not magically discovering it because of search engines. And then there's this:

Take Google's algorithm change as an example -- they held this up last summer as a step that would have meaningful impact and unfortunately we see in the data here that it hasn't.

Um, duh? That, of course, cuts against what the MPAA is arguing elsewhere in this very same release: that Google can have a meaningful impact. Except now they're admitting that it hasn't had an impact even when it did exactly what the MPAA asked it to do. The point should be clear to pretty much everyone: changing the search algo to favor Hollywood's preferred sites doesn't stop infringement, because people who want to infringe will find a way to do so. It's not that the search engine magically turns people into infringers. The MPAA, not having gotten the results it wants, just wants to do more algo changing, not recognizing that the end result is going to be the same. There's a word that describes doing the same thing and expecting different results.

Update: Matt Schruers digs deeper into the report and finds out that, indeed, 37% of the "searches" are "navigational" meaning it was just someone typing in the name of the site they wanted rather than doing a search. It also points out that the methodology is that if someone accesses infringing content within 20 minutes of doing a search, that access is blamed on the search. Dodgy methodology at best.

The report, titled “Understanding the Role of Search in Online Piracy”, asserts that 19.2% of visits to infringing content were “influenced” by a search engine (which MPAA rounds up to 20%, not down, because Hollywood accounting).

What does “influenced” mean?  It does not mean, apparently, that the user conducted a search and then clicked on a link presented in the search results.  According to the study’s methodology, such an approach would be too “narrow,” thus necessitating a “hybrid” approach that includes any instance where the user visits an infringing site within 20 minutes after conducting potentially incriminating searches.  Although the report itself makes no specific policy recommendations, MPAA personnel have complained [1], [2] to officials that search providers’ existing voluntary efforts are no replacement for government regulation.

Less prominently stated is that 37% of searches for infringing content involved a “navigational search.”  “Navigational searches” is a term of art (or a euphemism) for typing a domain name into the search bar instead of the navigational bar of the browser.  (Most Internet users have probably done this at one point or another, either by accident or out of laziness.)  This means that the study’s 19.2% figure disguises the fact that more than a third of the searches that precede a user accessing infringing content via (e.g.) MegaUpload were searches where the us

Filed Under: blame, liability, search engines, studies
Companies: google, mpaa, riaa

MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use

from the time-to-fix-the-law dept

Well, this is unfortunate. We've been covering a somewhat bizarre, petty legal squabble between two bloggers who have very different views about birthing methods, and who have a history of sniping at each other. Eventually the sniping went legal after one (Gina Crosley-Corcoran) posted a photo of herself giving the middle finger, telling the other (Amy Tuteur) to "take back to your blog and obsess over." Tuteur, in response, posted the image on her blog along with some choice words for Crosley-Corcoran. Crosley-Corcoran threatened a highly questionable copyright infringement claim over the reposting of the photo, then eventually did send equally questionable DMCA takedown notices to Tuteur's hosting companies (plural) leading Tuteur to feel the need to shift hosts a few times. Crosley-Corcoran publicly laughed at Tuteur's blog being taken down, and later stated (publicly) that she wanted to stifle Tuteur's speech by getting Tuteur to stop talking about her, and finally soliciting a "legal fund" to go after Tuteur, promising to continue to take down her blog wherever it was posted.

This seemed like a clear case of abusing the DMCA to stifle speech, and we noted that it might be an important case in determining if the DMCA's 512(f) clause had any teeth. 512(f) is the clause that provides for damages if you file a bogus DMCA notice (technically if you make "material misrepresentation" in the notice). The key question: is sending a DMCA notice when the use is clearly fair use a "material misrepresentation." The EFF jumped in to help argue this point, freaking out the MPAA who insisted that having to consider fair use before filing an abusive, censorious DMCA takedown is crazy talk.

Unfortunately, it appears that the judge has now agreed with the MPAA that Congress probably didn't intend for DMCA filers to have to consider fair use, saying that if that was the intent, Congress should change the law. The argument made by the court is that the takedown process was designed to be "expeditious" and having to consider things like fair use make it too slow.

... in enacting the DMCA, Congress did not require that a notice-giver verify that he or she had explored an alleged infringer’s possible affirmative defenses prior to acting, only that she affirm a good faith belief that the copyrighted material is being used without her or her agent’s permission.... There is a reason for this. To have required more would have put the takedown procedure at odds with Congress’s express intent of creating an “expeditious[],” “rapid response” to “potential infringement” on the Internet.... Undoubtedly abuses will occur - as is the case with almost any system that permits legal self-help.... For these abuses Congress provided a remedy in section 512(f). If experience ultimately proves that the remedy is weighted too heavily in favor of copyright owners at the expense of those who seek to make “fair use” of another’s intellectual property, the resetting of the balance is for Congress and not a court to strike.

I think this is an incorrect reading of the law, since to file a DMCA notice you are making a statement that you believe the work is infringing, and as Section 107 of the Copyright Act clearly states, "the fair use of the copyrighted work... is not an infringement." So I don't see how you can truly claim that something is infringing without at least exploring whether it's fair use.

Still, if we accept the court's reading of this, it seems (to me, at least) to only further the argument that the DMCA takedown process is a clear violation of the First Amendment, because it now clearly allows for blatant censorship, with no remedy even if the process is abused to remove non-infringing speech, such as fair use.

Filed Under: 512f, amy tuteur, copyright, dmca, fair use, gina crosley-corcoran
Companies: mpaa

Syrian Electronic Army 'Hack' Of The NYTimes Was The Exact Remedy MPAA Demanded With SOPA

from the and-it-was-a-joke dept

There were many, many concerns related to SOPA and PIPA when they were proposed, but the absolute biggest was the use of DNS blocking as a "remedy" against sites where it was alleged that infringement was a primary purpose. Of course, as tons of technology experts points out, any form of DNS filtering or redirecting would be a security nightmare and would do almost nothing to actually stop infringement.

As you may have heard, this week the Syrian Electronic Army was effectively able to "take down" nytimes.com by engaging in a bit of DNS hacking, which was really nothing more than a DNS redirect. As Rob Pegoraro points out, this is the same basic remedy that the MPAA wanted so badly with SOPA. In fact, during the negotiations over SOPA (after it became clear that its companion bill in the Senate, PIPA, was stalled over the DNS blocking issue), this was the issue the MPAA refused to budge over: DNS blocking/redirects needed to be in SOPA. As Pegoraro writes, if SOPA had become law, we likely would have seen the law abused to take down sites just as the Syrian Electronic Army took down nytimes.com:

2011's Stop Online Piracy Act would have let copyright holders require Internet providers to use DNS redirection to block access to allegedly infringing sites. That authority would inevitably have been abused in social-engineering exploits--and we'd likely see a lot more outages like the NYT's.

At the same time, Ali Sternburg, over at the Disruptive Competition Project points out that this also shows just how laughably ineffective DNS blocking/redirecting would have been in SOPA (despite the MPAA's insistence that it was necessary), because it's so easy to get around and many, many people did. It may have been an inconvenience, but it was hardly the game changer the MPAA predicted.

If this sounds familiar to you, perhaps it’s because Domain Name System (DNS) blocking was part of the original draft of SOPA.  DNS blocking was suggested as a remedy to take entire allegedly infringing foreign websites down, but yesterday demonstrated that people can still navigate to sites through their IP address, even when domain name servers are offline.  This is consistent with a major critique of the DNS blocking during the SOPA debate: that it wouldn’t even work.  Some SOPA supporters had argued in response that “it would be a mistake to assume, as some of these network engineers have, that the average Internet user has the above-average technical skills necessary to do this.”  But yet, people did yesterday.*  If people want to access a website, they can figure it out pretty fast, and without needing any significant technological skills.

So it's somewhat ineffective for blocking (though, very effective for drawing much more attention to what you want blocked). It was a dumb idea by the technologically illiterate folks at the MPAA to suggest a form of DNS hacking as any kind of remedy to copyright infringement, and the NY Times redirect hack just made that even clearer.

Filed Under: dns redirect, hacking, sopa, syrian electronic army
Companies: mpaa, ny times

Bad News: Court Says Cyberlocker & Its Owner Can Be Liable For Copyright Infringement

from the secondary-liability:-watch-out dept

While the full ruling won't be out for a few weeks, a Florida court has made a horrifically dangerous ruling, saying that cyberlocker Hotfile can be liable for copyright infringement. We've been covering the Hotfile case from the beginning, and find this to be fairly surprising. The details of the MPAA's original lawsuit were astoundingly weak, based on bad inferences and innuendo, which would destroy concepts of protection against secondary liability and completely undermine the safe harbors of the DMCA. The fact that the MPAA misrepresented how Hotfile was used only made things worse. On top of that, it sounds like the judge has said that the guy who owned Hotfile, Anton Titov, is also personally liable.

The specific details of the ruling will be important, because it's very important to see on what basis Judge Kathleen Williams found as she did, but the risk of massive harm to innovation and the safe harbor protections under the DMCA is very, very real. Stupidly, the MPAA is cheering on this decision, despite the fact it will likely create chilling effects that will harm the kind of innovation the movie industry needs the most these days.

I know that some people will, undoubtedly, argue that Hotfile was used for a lot of infringement -- and there's evidence to suggest that's true. But, copyright owners have always had a remedy there: go after the actual infringers. Putting liability on the cyberlocker itself now puts just about any online cloud provider at risk of getting sued. Dropbox, Box.net, Flickr, YouTube, Google and many others need to pay close attention to what comes out of this case, because pinning liability on a third party storage company will make it much more expensive for any such service to be in business. This is sad, and stupidly counterproductive for the MPAA, because what it should be doing these days is embracing services that help fans access the kind of content they want when they want it. Instead, they're actively trying to shut down innovations via copyright law.

I'm sure we'll have a more thorough analysis of the full details of the ruling once they're out.

Filed Under: anton titov, copyright, cyberlocker, dmca, dmca safe harbors, kathleen williams, safe harbors, secondary liability
Companies: hotfile, mpaa

More On IP Arrow: Takedown Company's Boss Owes MPAA $15 Million And Clients Apparently Fine With Filing Bogus DMCA Notices

from the not-surprised,-but-still-disappointed dept

A few more details have been revealed about IP Arrow, the anti-piracy company whose DMCA notices were filled with links to content not owned by the companies it represents, including links to some rather dubious porn titles.

First off, it's hardly a company. IP Arrow is simply an "offshoot" of Morganelli Group LLC, the new home for its non-porn clients, as was pointed out by a commenter over at Torrentfreak.

This new-kid-on-the-block, hired-gun copyright enforcer named "IP arrow" appears to be a sock-puppet shell company owned by Joe Morganelli (Morganelli Group LLC)

Note that their client lists are virtually identical.

It looks like Joe Morganelli has transferred Lynda, Lionsgate, and Zuffa (UFC) to this new label "IP Arrow" while pornography is still carried under the old label "Morganelli Group".

The stats over at Google's Transparency Report bear this out. The last DMCA notice issued for Zuffa, Lynda.com or Lionsgate by Morganelli was on August 1st. Since that point, every DMCA notice issued has been for one company: LFP Video Group LLC. LFP stands for Larry Flynt Productions. IP Arrow's work for Lynda.com, Zuffa and Lionsgate begins on August 5th.

Unlike the shoddy work done for Lynda.com, Zuffa and Lionsgate, Morganelli's work on behalf of the porn publisher seems to be subject to some actual vetting. You can see the difference in the number of URLs taken down. Despite issuing takedowns for LFP at the same frequency as the other three clients, LFP notices have asked for the removal of far fewer URLs.


Even under the previous name, Morganelli's work for his "mainstream" clients was uniformly terrible. Whatever automated program Morganelli's deploying appears to simply sweep up URLs and dump them into a form. It doesn't seem to be able to differentiate sidebar or related search links from the actual URLs linking to infringing copies.

Lynda.com, Zuffa and Lionsgate seem perfectly OK with IP Arrow (and Morganelli) sending out DMCA notices claiming ownership of other companies' content. I contacted all three but only heard back from one: Lynda.com.

On the 19th, I spoke briefly with David Glaubke, Director of Corporate Communications for Lynda.com. He asked what I thought was going on and I told him that it looked like IP Arrow was running a rather lousy bot/crawler and not vetting the results before firing off DMCA notices -- notices that are sworn statements that the company named owns the content listed. And, presumably, Lynda.com was paying IP Arrow to issue false statements in its name.

He assured me that his CTO and IT team were looking into the issue and that he would get back to me with any further comments or statements.

This statement, emailed to me a day after our phone conversation, appears to be Lynda.com's final word on the subject.

lynda.com retains the services of IP Arrow as a part of the company's on-going anti-piracy program to mitigate the illegal download of our intellectual property on torrent sites. On our behalf, IP Arrow issues batch DMCA takedown notifications for links to directories containing our content. Those links often contain keywords designed to drive traffic to adult or illegal material in directories that happen to also contain lynda.com videos. Many of the URLs highlighted in this TechDirt story, implied to be targets of erroneous takedowns, at one time contained our files but no longer do.

That may all be true, but plenty of other anti-piracy companies run automated services and yet, their takedown notices aren't primarily composed of links to content that isn't theirs to take down. Not only that, but Morganelli, who apparently runs IP Arrow, seems to have very little trouble compiling vastly more accurate takedowns for LFP Video.

Why would a content owner be satisfied with service like this? Hopefully, Lynda.com and IP Arrow's other clients aren't being charged per URL. The way IP Arrow's service "works" pretty much guarantees the takedown notices will be completely useless by the time they're processed. This hardly seems like an efficient way to fight piracy.

Then there's this to consider, from the same Torrentfreak commenter.

So why did he do this? [split off Lionsgate, Lynda.com and Zuffa to IP Arrow]

Maybe because Hollywood still remembers Joe Morganelli as the guy they sued nearly a decade ago for running one of the internet's biggest warez sites, and are reluctant to give that copyright criminal any more of their money until he pays up on that multi-million dollar judgment he was slapped with but never paid.

Former pirate goes into the piracy-fighting business, all the while owing the MPAA $15 million. His previous Usenet experience explains his expertise in combating piracy there but, once out of his comfort zone, he seems to be flailing. Here's what he had to say about his Usenet work.

“What my team does is monitor usenet 24/7 using a Bayesian Classifier. We also verify everything 100% to ensure we are making the proper removal requests for the UFC and our other clients,” Joe Morganelli of Morganelli Group LLC told TorrentFreak.

Apparently, this verification process doesn't carry over to his work outside of Usenet. Even if the URLs listed contained links to his clients' content at the time of "discovery," they no longer do at the point the DMCA notice is processed. It's a lazy, stupid way to rack up hundreds of "hits," which IP Arrow can then point to as "evidence" of its thorough work. Let's not forget, one of the takedowns even asked that the search results for the term "rar" be removed.

It's something that's been noted before and seems to still occur with some frequency -- some companies feel piracy is too much of a problem to ignore, but not enough of a problem to put in the hands of someone competent. The only thing this half-assed approach guarantees is that these companies aren't getting what they paid for.

Filed Under: bogus takedowns, copyright, dmca, joe morganelli, takedowns
Companies: ip arrow, lynda.com, mpaa, ufc, zuffa

Google, Microsoft And Other Ad Networks Agree To 'Best Practices' To Stop Ads From Appearing On 'Pirate' Sites

from the the-details-matter dept

This has been rumored for ages, and the White House has certainly been pushing for this almost non-stop for years, but in a similar vein to the ISPs and the RIAA/MPAA coming to a "voluntary agreement" to implement a six strikes policy, the major online ad networks, led by the Internet Advertising Bureau (IAB) along with Google, Microsoft, Yahoo and AOL (and, yes, with the White House) have come to an agreement to stop their ads from appearing on "rogue" sites that are engaged in copyright infringement or selling counterfeit goods via a series of "best practices." The agreement says that the various ad networks who are participating will strive to keep their ads off of sites "that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses."

I have some concerns about this, as I'll discuss below, but on the whole it appears that there's actually some good to come out of this. First off, it's worth noting that all of these guys already have terms of service that bar the use of their ads on sites that primarily engage in such things. While various tech industry haters still tend to believe otherwise, the tech industry has been pretty good at keeping their ads directly away from such sites for years. The ads that tend to get on those sites come from tiny third party ad networks that no one has heard of. In fact, some of the "evidence" against Megaupload was that from very early on, Google kicked it out of its ad program.

Another sign that this agreement probably isn't that bad: the MPAA has already put out a statement about how they hate it, saying that it's not enough. Chris Dodd specifically argues that nothing is going to be enough until everyone else does the copyright holders' job for them, and proactively polices the internet. The fact that no one but the copyright holder can know for certain if something is infringing is not even allowed to enter the discussion in the corrupt minds of the MPAA.

In this case, it appears that this new agreement involves something of a more formalized notice and (possible) takedown system. Copyright holders can submit a complaint to each ad network (individually, not to some central authority), and then the ad network gets to decide how it handles the notice -- but, under the best practices, they will strive to keep their ads from appearing on such sites. Since this is just a voluntary agreement, unlike, say, the DMCA, there's no automatic liability shifting in refusing to pull the ads -- and the agreement makes it clear that the best practices themselves do not establish liability, nor do they create a duty to proactively monitor (though, I could see how copyright holders might later try to raise that issue).

The good thing about this program is that it appears those who worked on it clearly recognize that certain copyright holders may be a little over eager in claiming certain sites are "pirate" sites when they might not be. So the program is designed to be more transparent and to include the clear ability for a site to appeal such a decision and get the ad networks to reconsider. In some ways, this is a step forward from the way it was before, in which Google or others might just kick you out of the program with almost no communication and absolutely no right of appeal. In fact, Google is somewhat infamous for its big white monolithic response to kicking people out of its ad network: basically just telling them "you've violated our terms" with no explanation, no way to find out more, and no way to appeal. Adding an actual appeals process is a step up.

That said, there are still two key concerns here. The first is that even with an appeals process and various safeguards, it's quite likely that legitimate sites that have significant non-infringing purposes will still get caught up in this. We've seen too many false takedowns, false attacks and the like for that not to happen. And even with an appeals process, losing your entire ad network for a period of time can completely sink a small business (and, any site making money on these kinds of ad networks is, by definition, a small business -- because none of these ad networks pay out very much to individual sites).

The second concern is a bigger one: which is that if you look at the history of some of the most important innovations that have helped the content industry grow, they almost always start out as what those content industries deemed "principally dedicated to infringing activity." In the early days of radio, cable TV, VCRs, DVRs, mp3 players, YouTube, etc... they were all attacked as being hotbeds of infringement. Yet, as they grew in popularity, business models developed that helped the content industry tremendously. As I've pointed out in the past, it was only four years after Jack Valenti declared that the VCR was the "Boston Strangler" of the movie business that the home video business surpassed the box office in revenue for Hollywood. Yet, if we allow a system where the copyright holders are able to simply starve these new businesses completely before they've had a chance to develop and mature, I worry that we miss the next VCR, the next DVR, the next mp3 player, the next YouTube -- and whatever tool that comes next that allows content creators to do an even better job connecting with fans, creating new works, distributing new works, promoting those works and eventually monetizing those works.

It's easy to simply try to label all new upstarts as "evil" and kill them off, but history has shown that's generally not a very good idea. The reason those upstarts are successful is not that they enable infringement, but rather that they enable something new and useful that people want and like. The real opportunity is in figuring out ways for content creators to use that to their advantage -- and I fear that programs like this make it easier to simply snuff them out too early.

That said, if there needs to be such a program, this one appears to be the least destructive approach. It doesn't create liability or a proactive duty to police the internet. It allows the networks to make the final call on what do with complaints. It gives the accused sites the ability to appeal whatever decisions are made. Either way, I would imagine that the MPAA and the RIAA already have their incredibly long lists of sites ready and are submitting them everywhere they can... and within a few weeks we'll watch them issue statements about how the new program isn't working and how more needs to be done.

Filed Under: ad networks, appeals process, copyright, copyright infringement, counterfeiting, notice and takedown, piracy, white house
Companies: aol, google, iab, microsoft, mpaa, yahoo

Marrakech Treaty For The Blind Signed; MPAA Unable To Kill It

from the could-it-be? dept

It took decades to get this done, but it appears that a copyright treaty for the blind has been signed in Marrakech, and despite a full court press from the MPAA to further water down the agreement, it appears the final version is closer to what the various public interest and blind groups wanted. Apparently, US and EU negotiators were not thrilled with the outcome, but couldn't fight it any more. The full text hasn't been released yet, but from all the commentary out of Marrakech, it sounds like the MPAA failed to poison this treaty. I'm sure we'll have more on this later, but two things to discuss out of this:

1. Contrary to the claims of the USTR about how it would be crazy to negotiate agreements like ACTA, TPP or TAFTA with openness on the drafts being considered, this agreement was negotiated with transparency and (mostly) openness. Once again, we see that the USTR is full of it with its lack of transparency.
2. There is still a ratification question. Expect the MPAA efforts to now shift to blocking the US from actually ratifying the treaty, which is rather important, since the key part of the treaty is letting creative works for the blind enter into various countries, but most of the books would likely originate from the US....

Filed Under: blind, copyright, fair use, marrakech, ratification, three step
Companies: mpaa

MPAA's Actions, Emails Show That They're Doing Everything Possible To Screw Over The Blind

from the how-can-they-deny-it? dept

Back in April, we pointed out that the MPAA was working overtime to screw over the blind in the negotiations for a WIPO treaty to make it easier for the blind and those with vision impairment to access works for the blind. They'd already succeeded in screwing over the deaf by getting them excluded from the treaty, despite it initially being for both. Over the past two months, however, the MPAA tried to go on a charm offensive going on and on about how much they really, really liked blind people and wanted to help get a treaty passed, even somehow getting the National Federation for the Blind to throw their own members under the bus by issuing a joint statement claiming to support the treaty.

However, over the past week, the reports coming out of the treaty negotiations in Marrakesh have been consistent about one thing: the MPAA's influence over the US negotiators has been immense, and the US negotiators have been the single source blocking the completion of the treaty by arguing to gut the entire treaty, making it next to useless. They've fought against fair use. They've fought against exceptions to copyright. It's gotten so bad that even the mainstream press has picked up on the MPAA's direct assault on the blind. The Washington Post has an article all about the MPAA's attempts to block and change the treaty such that it is effectively useless.

But the treaty, years in the making, could be in jeopardy because of unresolved differences between advocates for the blind and the Motion Picture Association of America, which says the accord could undermine protections important for filmmakers, publishers and other major industries.

Of course, you might wonder why the MPAA is so concerned about a treaty for the blind, which is mostly focused on written materials, since that shouldn't impact the MPAA very much. The answer is what we've said for years: copyright maximalists will fight against any treaty that recognizes the rights of people to push back against maximalism through things like fair use. And the MPAA isn't even coy about this:

“What happens here could affect other future treaties,” said Chris Marcich, who is in charge of dealing with the negotiations for the MPAA and its international wing, the Motion Picture Association.

Yes, how dare the public have their rights supported during treaty negotiations about what they can do with works they own. Horrors.

The article also highlights that the MPAA was instrumental in getting the negotiators to drop more expansive fair use rights of the public included, insisting instead on only allowing the "three step test" from the Berne Convention included. As we've discussed in the past the three step test is merely one way in which a country can protect the public's rights to limitations and exceptions in copyright law, but maximalists like to claim it's the only way, because if you read it in the strictest sense, it severely limits fair use, because a use fails the "three step test" if it "unreasonably prejudices the legitimate interests of the rights holder." In other words, if the rights holder doesn't like it, no fair use for you. Amazingly, even this test is now not enough for the MPAA:

But the MPAA says the protections afforded by the three-step test are still too weak and wants them to be more effective. Moreover, Hollywood is strongly resisting language in the draft that mirrors the concept of “fair use,” long embodied in U.S. copyright law. Fair use says that copyright material can be used without permission in certain circumstances, such as for nonprofit educational purposes.

Related to all of this, KEI has received, via a Freedom of Information Act (FOIA) request, all emails between MPAA lobbyists and the negotiators from the USPTO (who are handling much of the negotiation). It's worth noting, by the way, that the key person at the USPTO (and the person addressed in many of these emails) is Shire Perlmutter, currently the Chief Policy Officer and Director for International Affairs at the USPTO, but prior to that was the Executive VP of IFPI (the international version of of the RIAA) and before that, was VP and Associate General Counsel for Intellectual Property Policy at Time Warner... a member of the MPAA when it owned Warner Bros.

Included in the documents is an incredible attack on fair use by the MPAA, sent in April of this year, just as the MPAA was insisting it wanted to help the blind, and at the same time that the MPAA's Ben Sheffner was, ridiculously, pretending that the MPAA was one of the world's biggest defenders of fair use. Yet, at the very same time, they were promoting a document that claimed the following about fair use:

As has been pointed out by various commentators, open-ended systems such as fair use under Sec. 107 US Copyright Act may raise issues with the three-step test, in particular the first and possibly third step.... Consequently, it is neither necessary nor would it be reasonable or desirable in view of the mentioned difficulties to include an express reference to fair use or fair dealing in the proposed instrument.

A specific reference to fair use or fair dealing could also be misleading for it could be understood as an invitation to implement the instrument in such a way, whether or not it sits well with the particular legal system of the Contracting Party in question. However, any wholesale introduction of a particular legal feature, be it fair use, fair dealing or a closed list, would be contrary to the intended effect of the discretion that Contracting Parties may exercise with regard to the way of implementing their treaty obligations....

At a time when the fair use doctrine is considered by many as a cure for all ills, this would clearly be the wrong sign....

Consequently, for all the foregoing reasons, the reference to specific ways of implementation such as fair use or fair dealing should be omitted from the proposed instrument.

These are the defenders of fair use? These are the folks who claim they're trying to help the blind? That's all a lie. And the quotes above are just a few. There are a lot more of that nature. The MPAA wants to screw over the blind out of a fear that people might realize that fair use and other rights of the public might just be more important than an artificial government monopoly system to inflate their bottom lines.

Later in the documents, you can see the cozy relationship between the key government players, Perlmutter and Justin Hughes (another well-known maximalist supporter, now in the government) and MPAA members and lobbyists. There's also a discussion about how three steps in Berne only applies to certain types of copyright rights (reproduction rights), but does not apply to other things like public performances, and how their wishes are to go even further and make sure the very limiting 3 steps applies to everything. It also shows that the US government, via Perlmutter and Hughes, helped propose back to the MPAA how they might achieve their goals in the agreement. In an email from Scott Martin at Paramount to Perlmutter:

I suggested to Justin the concept that I heard from both you and Karyn Temple Claggett: membership in the VIP Treaty be limited to countries that have ratified and implemented the WCT. Perhaps if there is resistance from non-ratifiers, the US/EU could then proposal a new Article Ebis that would apply only to countries which want to ratify the VIP Treaty but which have not yet ratified and implemented WCT.

Justin seemed intrigued by the idea and mused that perhaps the Japanese proposal for Article E could be expanded to cover this separate goal.

There are also cases where people, such as Time Warner employees, were sending language they wanted inserted directly to Hughes at his request. At one point, Hughes emails Bradley Silver at Time Warner with a simple request:

Could you just send me the whole language?

That was after Silver specifically asked Hughes to "tweak" the language in one section.

Basically, the documents make it abundantly clear that the MPAA is trying to keep fair use/fair dealing way out of the agreement, and then seeking to undermine things even further by putting in place an extreme version of the three step test -- a test that already goes way too far in limiting the public's rights to make use of works. It further shows that the MPAA's public stance that it's in support of a treaty for the blind is hogwash. It's in support of a treaty that strips away many of the rights for the blind.

Filed Under: berne convention, blind, fair dealing, fair use, justin hughes, shira perlmutter, three step test, treaty, visually impaired
Companies: mpaa, paramount, time warner

MPAA's Chris Dodd Will Be The Chair Of 'Free Speech Week'

from the stop-laughing dept

This seems a bit wacky. MPAA boss Chris Dodd has been named the chairperson of the "advisory council" for "free speech week" in 2013. Now, I'm assuming that most people have no clue what "Free Speech Week" is, but it's supposed to be a "celebration" promoting the First Amendment. That's why it strikes me as completely ridiculous that Dodd would be put in charge of it. While the MPAA was a major proponent of the First Amendment a few decades ago (back when there were efforts to try to censor movies -- which saw the MPAA stepping in to create a self-censorship regime known as the movie rating system), Chris Dodd's contribution to the MPAA has been to push SOPA, a bill whose main purpose was directly in contrast to the First Amendment and free speech by setting up a system for internet censorship. As Constitutional scholar Laurence Tribe pointed out at the time:

The notice-and-termination procedure of Section 103(a) runs afoul of the “prior restraint” doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property” – even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. The Supreme Court has made clear that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).

It seems rather ironic that someone who was the main person behind a bill designed to take away free speech rights would then be put in charge of "free speech week."

Filed Under: chris dodd, first amendment, free speech, free speech week, sopa
Companies: mpaa