MPAA: EFF Just Jealous It Doesn't Control Copyright Office Like Hollywood Does

from the regulatory-capture dept

Earlier this week we wrote about the revelation, via a FOIA request by the EFF, that the Copyright Office consulted heavily with Hollywood (the MPAA directly, and a variety of movie studios) before weighing in on the FCC's set top box competition proposal. As we noted, the Copyright Office's discussion on the issue involved completely misrepresenting copyright law to pretend that an agreement between to industries (content studios & TV companies) could contractually wipe out fair use for end users. That's... just wrong. The FCC's proposal had absolutely nothing to do with copyright. It was just about letting authorized (paying) customers access content that was already authorized through other devices. What the FOIA request revealed was that the Copyright Office not only had many, many, many meetings with Hollywood, but that it actually prioritized those meetings over ones with the FCC -- and lied to the FCC to say that key Copyright Office personnel were not available the very same week they were meeting with the MPAA, in order to push back the meeting with the FCC.

It was a pretty big deal, given the Copyright Office's reputation for acting as a taxpayer-funded lobbying arm for Hollywood. Of course, the MPAA is now mocking the EFF over this story, with a blog post by Neil Fried, one of the top lobbyist's for the MPAA, and someone who features prominently in the conversations with the Copyright Office revealed by the FOIA request. The crux of Fried's post is that there's no news in the revelations, and that the Copyright Office met with the MPAA because the MPAA asked to meet with it.

The bottom line is that the Copyright Office did not approach stakeholders, selectively or otherwise. It spoke with any and all comers who asked for the opportunity. It then examined the issues and met its statutory obligation to advise federal agencies and Congress on the law. Any EFF suggestion to the contrary is entirely false.

Of 310 pages EFF has “uncovered” in a Copyright Office FOIA request, 232 are transmittals of FCC filings, congressional letters, and other documents from all sides that were already public. The remaining 78 are almost all snowballing email chains to schedule meetings and calls—also from parties on all sides, including the FCC itself and device maker TiVo.

That's... fairly misleading. It's true that there are those pages of email chains trying to schedule meetings, but the vast majority of those are from the MPAA or other Hollywood representatives. And those meetings are clearly eagerly being scheduled by the Copyright Office prior to meeting with the FCC to help shape the Copyright Office's response. The MPAA conveniently leaves out the Copyright Office's meeting with the FCC being pushed off so that the Office can meet with the MPAA first (and even telling the FCC that a key member of the Copyright Office is not available the same week she's meeting with the MPAA). Also, the "TiVo" meeting wasn't even on "the other side" of the debate, really, as the letter there notes that TiVo "will be advocating a simpler solution" compared to what the FCC proposed. It's also noteworthy that this meeting occurred on August 2nd of this year. That was the first time TiVo met with the Copyright Office, but by then the Copyright Office's position was set, as its response was delivered the very next day. The MPAA, on the other hand, first met with the Copyright Office back in early April and met a few times after that as well. So to say that the meetings were on the same level is clearly not true.

The documents reflect what we know to be true. The Copyright Office did not “jump into this fight,” as EFF asserts. Rather, it studiously avoided being brought into the debate until: 1) Chairman Wheeler asked for its analysis, and 2) Members of Congress requested it share that analysis so everyone, not just the FCC, could benefit from its expertise.

Right. About that. That's not true either. As the FOIA documents reveal, then head of the Copyright Office Maria Pallante apparently went directly to Congress and requested that it make a formal request to the Copyright Office to send an opinion on the FCC's proposal. It appears that Fried either missed or ignored this bit of the FOIA request in which a staffer for Rep. Ted Deutch contacts the Copyright Office asking for input on what Deutch should put into the letter requesting the Copyright Office weigh in, and explicitly noting that the reason it was doing so was because they had been told that Pallante wanted them to make that request. That, uh, certainly doesn't look like "avoiding being brought into the debate" until after Congress requested it. It looks like the head of the Copyright Office going directly to Congress and concocting an excuse to publicly weigh in on the debate against the FCC. As a side note, there is plenty of talk that a big part of the reason why Librarian of Congress Carla Hayden was annoyed with Maria Pallante was her penchant for going directly to members of Congress with her own views concerning the Copyright Office, and this seems like just another example of that). Update: As pointed out in the comments, this potentially leaves out some context, in that the emails also show officials in the Copyright Office being surprised about the claim that Pallante wants Congress to weigh in an email (not from Pallante) saying that they're already coordinating with the FCC, which could be interepreted as asking not to have Congess make the request. Of course, that doesn't answer how Deutsch got the information that Pallante wanted him to make a formal request.

Finally, Fried basically mocks the EFF, suggesting that it's just upset that it didn't think to lobby the Copyright Office as aggressively as Hollywood did:

Like anyone else, the EFF could have just as easily made its own inquiries, rather than issue a hyperbolic blog complaining about the entirely legitimate practice of a government agency communicating with a range of parties.

Yes, well, the EFF is a small non-profit. The MPAA is a giant machine of Hollywood with offices blocks away from the White House. Guess who has better access and resources to bug the hell out of the Copyright Office and get it to side (once again) with misleading claims about copyright law?

Besides, when your argument boils down to "sure, the Copyright Office is a captured agency, and if you don't like it, go capture your own agency..." it's not exactly a ringing endorsement for functional policymaking.

Filed Under: copyright office, fcc, lobbying, maria pallante, neil fried, power, regulatory capture
Companies: eff, mpaa

The Reason The Copyright Office Misrepresented Copyright Law To The FCC: Hollywood Told It To

from the so-now-we-know dept

There was some oddity over the summer, when the Copyright Office flat out misrepresented copyright law to Congress and the FCC with regard to the impact on copyright of the FCC's (now dead) proposal to create competition among set top box providers. As we've explained over and over again, there were no copyright implications with the FCC's proposal. All it said was that if an authorized user wanted to access authorized content via a third party device, that authorized user should be able to do so. And yet, the Copyright Office, incorrectly, seemed to make up an entirely new exclusivity in copyright law (one that would outlaw DVRs) that basically said not only could a content provider license content to a cable TV provider, but it could also limit the devices on which end users could view that content.

Simply put: that's wrong. That's not how copyright law works, and we've known that since the Supreme Court's ruling in the Betamax case decades ago.

But why would the Copyright Office so misrepresent copyright law? That was the perplexing part. Even with a bunch of copyright professors explaining how wrong the Copyright Office was, the Office still went ahead with its letter. Of course, as with so many policy issues, it really seemed like the Copyright Office was just acting like a lobbying arm of Hollywood.

And that's because it was.

The EFF filed a FOIA request on the Copyright Office's emails and meetings concerning the set top box issue, and -- surprise surprise -- they basically coordinated directly with the MPAA and related lobbyists. The most stunning part? When both the MPAA and the FCC asked to meet with the Copyright Office about this, the Copyright Office quickly scheduled a meeting with... the MPAA. And pushed off the FCC meeting. And they lied to the FCC in the process. Then Copyright Office General Counsel Jacqueline Charlesworth's assistant told the FCC that she was not available to meet... on the very same week that she met with the MPAA over this issue. As EFF notes:

After the FCC announced its intention to break up the set-top box monopoly in February of this year, MPAA quickly called on the Copyright Office to meet on the matter. The documents indicate that the first meeting the Copyright Office held on the set-top box issue was not with the FCC but rather the MPAA. Although both the FCC and MPAA reached out to the Copyright Office in late March, Copyright Office officials met with MPAA on April 11 while postponing and meeting with the FCC a week later. Throughout the spring and summer of this year, the Copyright Office alternated between meetings with the FCC, MPAA, and other major content companies such as Comcast and Viacom. On May 31, just hours after holding a conference call with MPAA, the general counsel of Copyright Office emailed her counterpart at the FCC saying “the proposed rule may in fact implicate some rather serious copyright concerns.”

There was also a bizarre situation, in which a copyright maximalist Congressional Rep reached out to the Copyright Office, claiming that he'd heard from (recently fired) Copyright Office boss, Maria Pallante, basically asking him to officially request the Copyright Office's opinion on the FCC's plans. Others at the Copyright Office -- including Charlesworth -- note that they had been working under the impressiong that the Copyright Office was not seeking an official request from Congress to weigh in. The whole thing is quite bizarre.

But the really telling thing is that the Copyright Office basically spent all its time hearing from one side -- the MPAA and assorted studios, who disliked this idea not for any copyright reasons, but because they just wanted more control -- and totally ignored any other viewpoint (and certainly did not seek it out).

It seems that despite holding itself out as a neutral expert agency on copyright matters, the Copyright Office regularly engaged in discussions with only one set of parties as it formed its opinion. Not once did the agency reach out to the copyright scholars who explained to the FCC that no copyright interests were harmed by the set-top box proposal. Nor did the agency rethink its position when these same parties made clear that what they want is for the FCC to create new legal rights for them that have nothing to do with copyright law. The Copyright Office did eventually meet with a group of companies who are seeking to build competitive set-top boxes that consumers can buy, but that meeting happened on August 2, just one day before the Office issued its public statement. And that statement gives short shrift to the technology companies’ concerns.

When the U.S. Copyright Office waded into the debate, it could have brought an end to the misleading hand-wringing over copyright. Instead, it did the opposite by echoing the MPAA and cable companies, claiming that if cable operators were required to allow customers to use the devices of their choice to view the programs they pay for, the studios’ copyrights would somehow be violated. They even went so far as to say the current copyright law landscape is insufficient and therefore the FCC must do more to protect rightsholders.

An agency that listens only to the views of some industry groups without seeking out additional opinions cannot be a reliably neutral expert for Congress or the FCC. We hope that the FCC will weigh the Copyright Office’s comments appropriately, and resist efforts to derail the agency's work to end the set-top box monopoly.

If you read through the document the differences here are quite stark. There are many, many meetings with Hollywood, and many of the emails are jokey and informal (my favorite is when long term NBC Universal lobbyist Alec French tries to joke around with Jacqueline Charlesworth by calling her Jacqui, and then realizes he may have insulted her). The emails for the small group of set top box companies are much more detailed and formal. This is yet another example of how the Copyright Office is captured by Hollywood.

Filed Under: competition, copyright, copyright office, fcc, hollywood, jacqueline charlesworth, lobbying, maria pallante, set top boxes
Companies: mpaa

MPAA Applauds Derailment of FCC Cable Box Competition Plan Because, Uh, Jobs!

from the overlords-of-nonsense dept

Last week we noted how the FCC had to scrap its plan to bring competition to the cable box after an unprecedented PR and disinformation campaign by the cable and entertainment industries. In short, using consultants, think tanks, payrolled politicians, a soundwall of misleading editorials and even the US Copyright Office, the cable industry was able to convince many in the press, public and even at the FCC that the plan would have ripped the planet off its very orbital access, violated copyright, eroded consumer privacy, and even harmed diversity programming.

In reality, the cable sector's opposition was about two things: $21 billion in captive box rental revenues, and a fear of a loss of control. Being an expert in the latter, the MPAA of course was quick to issue a statement applauding the "delay" in the FCC's proceeding:

"The MPAA is pleased that the FCC is taking more time, and we hope they use it to ensure any set-top box proposal remains consistent with copyright policy and avoids harming creators,” said MPAA Chairman and CEO Senator Chris Dodd, who emphasized that his organization, along with “virtually the entire creative community” is “standing up for copyright and the rights of creators."

Except again, the cable box plan has nothing to do with copyright. The rules would have simply required cable companies pass on their existing programming (and all DRM) to third party hardware vendors, resulting in more competition in cable boxes and ultimately more open and cheaper boxes. Because that might just give consumers a little more control, the MPAA joined the hissy fit parade of inaccurate implausibilities. And to justify trying to keep the cable box locked down and shitty, the best the MPAA can apparently do is reiterate some nonsensical talking points about jobs:

"We support the FCC’s goal of promoting set-top box competition, but we continue to urge the Commission to forge a path that does not undermine the creative economy,” Dodd continued. “Copyright employs more than 5.5 million U.S. workers and generates over $1 trillion in economic value – incentivizing innovation and investment in creative works enjoyed by millions around the world."

Except the FCC's proposal wouldn't hurt jobs in the slightest. Under the FCC's plan, customers still would pay for cable, they'd just have more flexibility in how that programming is consumed. And if anything, you'd see more jobs as the cable hardware itself was opened to multiple hardware competitors and streaming vendors looking to make headway in the space. But just like their previous whining session on this subject, the MPAA can't just admit it's terrified of evolution and consumer empowerment, so it apparently has to conflate "copyright" with a loss of control.

Meanwhile, while many media outlets continue to insist this plan is simply on hold, there's really only two likely outcomes moving forward thanks to cable lobbyists, the US Copyright Office, and folks like the MPAA: either the plan gets scrapped entirely, or the end result winds up being so watered down as to be utterly useless.

Filed Under: competition, copyright, fcc, set top boxes, stb
Companies: mpaa

Law Professor Mark Lemley: Hollywood Is Simply Wrong About FCC's Set Top Box Plan

from the not-a-copyright-issue dept

We've been discussing for a while now about how the MPAA, with the help of the Copyright Office, has been propping up the complete myth that the FCC's plan to create more competition in the cable set top box space involves violating the copyrights of studios. It's a complete myth. The cable industry has been leading the charge here, mainly because it makes billions of dollars by charging people to "rent" its crappy boxes. But it found a strong ally in copyright maximalists who have repeatedly misrepresented the proposal. As we noted, the Copyright Office put out a report that flat out lied about what the FCC's proposal entailed and about how copyright itself works (arguing that contracts between two third parties could somehow eliminate the fair use rights of private citizens). And, incredibly, the basic argument being put forth by copyright maximalists, if taken to its logical conclusion, would mean that VCRs and DVRs are illegal too.

That's not how copyright law actually works -- but the message has caught on, and the FCC has already been forced to weaken its proposal -- and the industry is still bitching about it.

Thankfully, we're finally starting to see some copyright experts speak up about just how wrong Hollywood and the Copyright Office are on this. Mark Lemley, by far the most cited intellectual property professor (who is also a practicing lawyer), has written up a piece for the Hill that rips to shreds the idea that the FCC's plan somehow would implicate Hollywood's copyrights. As he notes, they're totally overstating what copyright allows:

The MPAA’s argument that studios have the right to control the device on which you view your content reflects a fundamental misunderstanding of copyright law. Copyright gives its owner the right to control the making of copies and public performances of a work. But it does not give them control over any use of a work. That’s no accident. Once the copyright owner has been paid once for a particular copy, its control over that copy ends. That’s why I can lend a book to friends, or sell my used record collection outright.

True, there are some things I can ‘t do even with a copy of a movie or song I own. I can’t upload it on a file-sharing site, for instance, and I can’t play it on the radio. But that’s because doing those things either makes a new copy or makes a new, public performance of the work.

The studios have already been paid for the movies shown on a cable or satellite service. Indeed, they’ve been paid specifically for the right to publicly perform the work by transmitting it to my (and everyone else’s) home.

And here, copyright law says something very important to copyright owners: that’s all you get. Once the cable companies have paid the MPAA for the right to deliver their movie into my home, the MPAA loses control over how I choose to watch their movie in the privacy of my own home. I can record it on a DVR and watch it whenever I want. I can watch it on a big-screen TV or a small one, with the sound on or off, in one sitting or many, while fast-forwarding through parts I don’t like or rewinding to rewatch parts I do. I can watch it again and again. Most important, I can watch it on any device I want, including my computer, my iPad, or my phone.

And, while the MPAA and its supporters keep calling the FCC proposal a "compulsory license," Lemley points out that it's not a compulsory license that lets you record a TV program to your VCR or DVR, and neither is this:

That isn’t a “compulsory license” of copyrights; it’s a limit on the scope of those rights. That limit exists even if copyright owners try to declare that it doesn’t. This is the law. It has always been the law. Every effort by copyright owners to control how I watch a show in my own home has ended in failure.

Unfortunately, this blatantly false attack by Hollywood and the Copyright Office on the FCC's plan has been effective. It seems unlikely that the plan will go through, and what's troubling about it is that it's all based on flat-out falsehoods by Hollywood, the Copyright Office and its supporters.

Filed Under: competition, copyright, copyright office, fcc, mark lemley, set top box, set top boxes
Companies: mpaa

MPAA Freaks Out In Response To FCC's Revised Set Top Box Plan

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

So Karl has already pointed out the ridiculousness of Comcast complaining about the new FCC set top box proposal -- a proposal that is basically identical to the one that Comcast itself had proposed in response to the FCC's original, more comprehensive set top box proposal. And a bunch of other organizations have rushed out statements slamming the FCC proposal as well, despite their previous support for an "app-based" solution.

And now the MPAA has stepped into this mess with a hilariously misleading, to downright false, claim that this revised proposal still violates copyright law:

If Chairman Wheeler's revised proposal is as it has been described to MPAA members and others in meetings, it still amounts to a compulsory copyright license that the FCC does not have authority to grant. The MPAA does not support compulsory licenses, has never supported compulsory licenses, and we cannot do so here. Whether through a licensing body subject to FCC review or otherwise, the FCC must not encroach upon copyright holders' discretion in how they exercise or license the exclusive rights Congress granted them in section 106 of the Copyright Act, or jeopardize the security of their content, as the Copyright Office explained in its expert analysis."

Except, of course, there's nothing in there that's a copyright issue at all (just as there was nothing in the original proposal). The new proposal doesn't impact copyright licensing at all. Just read it. It only requires that TV providers offer apps that are fully controlled by the provider, enabling subscribers to then access licensed content. There is no infringement here. There is no compulsory license. The TV providers still have the same license they've always had with the content providers. The end users still have the same contract they've always had with the TV providers. The only difference is that end users might not have to rent expensive boxes any more, and now the TV providers will make apps available to those subscribers, which can work on various boxes to access the same licensed content.

The complaint here is really about the loss of control for the cable providers and the ability to shake down the public in renting boxes. The MPAA's ridiculous complaint seems to be that it doesn't like the content being made available on new devices without some sort of additional payment. But that's not the law, and it's certainly not copyright law. For years, we've known that it's legal to use other devices to access content -- the VCR and DVRs have both been declared legal. The MPAA's complaint here is basically that it doesn't like the fact that those court cases have gone against it, and it's trying to pretend they did not.

There is no additional licensing that needs to be done to record TV or movies via a VCR or DVR, just as there is no additional licensing necessary here to make apps available on other devices. The licensed providers aren't doing anything different -- and the content is not going to any unauthorized party. This is just the MPAA (and others) flipping out because they hate the idea that they're losing any amount of control.

Filed Under: competition, copyright, fcc, set top box
Companies: mpaa

IsoHunt Settles The Last Of Its Lawsuits, Laughably Agrees To 'Pay' Recording Industry $66 Million

from the i'm-sure-musicians-will-see-nothing dept

You may recall that almost three years ago, the BitTorrent search engine IsoHunt agreed to shut down and to "pay" Hollywood studios $110 million. The number was a joke, because IsoHunt and its creator didn't have $110 million. It's just that the legacy copyright players always like to end these lawsuits with a giant headline grabbing number, while they've quietly agreed to accept very little, if any, actual money (and whatever money they do receive is not then distributed to any artists). The Sony email hack a few years back revealed that the industry does this frequently in closing out its lawsuits against search engines. IsoHunt was more or less forced into that settlement after the MPAA misled the court about IsoHunt's actions. But the court bought it, and the IsoHunt court rulings have created some really unfortunate precedents. It's the case that the legacy players always point to, because it's the only case to find that a search engine platform has "red flag knowledge" of copyright infringement without having specific knowledge of infringing files.

The case against Hollywood, however, wasn't the only case IsoHunt was fighting. It also was fighting the recording industry up in Canada in a case that began with IsoHunt filing for declaratory judgment that it didn't infringe in Canada, all the way back in 2008. The Canadian Recording Industry Association (CRIA), then sued back -- but did everything it could to keep the case out of the news because it was also fighting for new copyright laws in Canada... and part of its argument was that the existing Canadian copyright laws were inadequate to go after IsoHunt and similar sites.

Either way, despite the site itself shutting down and "paying" (ha ha) $110 million to Hollywood, the combined cases in Canada kept inching forward. A few days ago, IsoHunt founder Gary Fung announced that those cases have now been settled as well (found via TorrentFreak) with Fung agreeing to "pay" another $66 million he doesn't have. The settlement agreement is a fun read.

Fung's post on the topic has a bit of sarcasm:

And I want to congratulate both Hollywood and CRIA on their victories, in letting me off with fines of $110m and $66m, respectively. Thank you! Here’s to progress, and me leaving my life of innovative hobby to… something else?

He also declares victory in that he was never forced to give up any info on any IsoHunt users throughout all of this.

Either way, as with any other of these "victories" I'm still curious if either the recording or movie industries thinks these shut downs have actually caused anyone to go back to buying more of their products, or if people have just moved on to other ways of getting this kind of content?

Fung, meanwhile, also announced that he's working on a new product, which sounds like an attempt at using AI to get better search results to answer questions. He's given it the code-name AAG, which stands for the "App to Automate Googling." That suggests that he may receive a cease and desist from Google over trademark before too long. Hopefully, he still has the contact info for his lawyers...

Filed Under: canada, copyright, gary fung, red flag knowledge, settlement
Companies: cria, isohunt, mpaa

MPAA Front Group, Pretending To Represent Consumer Interests, Slams CloudFlare For Not Censoring The Internet

from the that's-not-how-it-works dept

So you may have seen reports last week charging CloudFlare and some other tech companies with "aiding" internet malware pushers. The "report," called "Enabling Malware" was announced in a press release last week from the Digital Citizens Alliance -- a group that describes itself as representing consumer interests online:

Digital Citizens is a consumer-oriented coalition focused on educating the public and policy makers on the threats that consumers face on the internet and the importance for internet stakeholders – individuals, government and industry - to make the Web a safer place.

And while the story wasn't picked up that widely, a few news sources did pick it up and repeated the false claim that DCA is a consumer advocacy group. TorrentFreak, FedScoop and Can-India also picked up the story, and all simply repeated DCA's claim to represent the interests of "digital citizens."

But that leaves out the reality: DCA is a group mostly funded by Hollywood, but also with support from the pharmaceutical industry, to systematically attack the internet and internet companies, for failing to censor the internet and block the sites and services that Hollywood and Big Pharma dislike. DCA has been instrumental in pushing false narratives about all the "evil" things online -- "counterfeit fire detectors! fake drugs!" -- in order to push policy makers to institute new laws to censor the internet. DCA buries this basic fact in its own description, merely noting that it "counts among its supporters... the health, pharmaceutical and creative industries."

The organization was formed in late 2012, partly as a response to the MPAA's big loss around SOPA. Recognizing that it needed to change tactics, the MPAA basically helped get DCA off the ground to push scare stories about horrible internet companies enabling "bad things" online, and how new laws and policies had to be created to stop those evil internet companies. Much of this was merely speculation for a while, based on the fact that every DCA report seemed to wrongly blame internet companies for other people using those tools to do bad things online. However, it became explicit thanks to the Sony Hack, which revealed that a key part of the MPAA's anti-Google plan, dubbed Project Goliath, involved having the DCA pay Mississippi's former Attorney General Mike Moore (who mentored its current AG, Jim Hood), to lobby Jim Hood to attack Google.

That doesn't sound like a project of organizations just interested in "digital safety." It sounds like a project designed to attack internet companies. And, thus, it should be no surprise that every time DCA's name pops up, it's attacking internet companies. It was the organization that put out a report getting a variety of state Attorneys General (sense a pattern here?) to attack YouTube, because some criminals posted videos on YouTube. Rather than recognizing that this is a way to gather evidence and go after actual criminals, DCA decided that YouTube should be blamed for not taking those videos down fast enough. It was also the organization that put out a laughable report declaring the cloud storage site Mega a "haven" for piracy, where the methodology made no sense. Mega encrypts its content, but DCA and its researchers didn't seem to understand that, so they simply found a few links inbound to infringing works, and extrapolated out that a huge percentage of files on Mega were infringing.

DCA's boss, Tom Galvin, magically was chosen to present to the National Association of Attorneys General back in 2013, just months after the organization was founded, and in timing that (coincidentally, I'm sure) lines up almost exactly with the MPAA's decision (as revealed in the Sony emails) to focus on state Attorneys General to attack Google. DCA's Twitter feed regularly retweets the MPAA and various other front groups set up by the legacy copyright industries, such as the Copyright Alliance.

In short, the Digital Citizens Alliance is not an alliance of "digital citizens" at all. It's a front group set up by the MPAA and some big pharmaceutical companies to pressure policy makers into getting internet companies to censor the internet. Don't buy it.

Filed Under: censorship, internet, piracy
Companies: cloudflare, dca, digital citizens alliance, google, mpaa, youtube

Kickass Torrents Gets The Megaupload Treatment: Site Seized, Owner Arrested And Charged With Criminal Infringement

from the because-of-course dept

So just as the US government itself is accused of being engaged in massive copyright infringement itself, the Justice Department proudly announces that it has charged the owner of Kickass Torrents with criminal copyright infringement claims. The site has also been seized and the owner, Artem Vaulin, has been arrested in Poland. As with the original Kim Dotcom/Megaupload indictment, the full criminal complaint against Vaulin is worth reading.

As with the case against Dotcom/Megaupload, the DOJ seems to ignore the fact that there is no such thing as secondary liability in criminal infringement. That's a big concern. Even though Kickass Torrents does not host the actual infringing files at all, the complaint argues that Vaulin is still legally responsible for others doing so. But that's not actually how criminal copyright infringement works. The complaint barely even shows how Vaulin could be liable for the infringement conducted via Kickass Torrents.

But, of course, that doesn't matter because the guy at Homeland Security Investigations (formerly: ICE: Immigrations & Customs Enforcement) just spoke to the MPAA and the MPAA said that Kickass Torrents had no permission to link to their content. Yes, link.

As part of the investigation, I have communicated with representatives of the Motion Picture Association of America (MPAA) regarding this investigation. The representatives provided me with information the MPAA had developed about KAT, among other websites. The representatives stated that the MPAA closely monitors KAT and that a significant portion of the movies available on KAT are protected by copyright. The representatives also specified that the MPAA has not granted permission to KAT to index, link, frame, transmit, retransmit, provide access to, or otherwise aid or assist those who distribute and reproduce infringing copies of copyrighted motion picture or television content of MPAA members.

Here's the thing: most of those things listed above are not rights granted by the copyright act. The copyright act is pretty specifically limited to a few rights, including reproduction and distribution. But, again, note the games played in the complaint: "index, link, frame, transmit, retransmit, provide access to" don't directly infringe on the stated copyright exclusive rights (yes, there are some cases where some of the above may infringe on some of the exclusive rights, but it's not particularly cut and dry). So instead, the government tosses in this "otherwise aid or assist those who distribute and reproduce infringing copies of copyrighted motion picture or television content."

So, you see, once again, the government is creating a form of secondary liability for copyright infringement that does not exist in the law. That's a problem. Because that's not how criminal copyright law works. At all.

Furthermore, the complaint goes on about how KAT, as it calls Kickass Torrents, rejected DMCA takedown notices for a variety of reasons, but leaves out the fact that KAT is not an American company and is not under the jurisdiction of US laws. So I'm not entirely clear why US copyright laws apply here. The best they can do is note that they found a few servers that were apparently in Chicago.

The complaint spends lots of time on the fact that KAT makes a fair bit of money from advertising revenue. But, again, I'm not entirely clear how that's relevant to the claim of criminal copyright infringement. The implicit argument is clearly "people go to KAT to get infringing content, the site makes advertising from all that traffic, thus the revenue is ill-gotten gains." But... again that relies on the idea that KAT itself is engaged in criminal behavior. Creating a popular tool for finding content -- some of which may be infringing -- and then making money from advertising, are separate things. It seems wrong to make this weird if->then conditional assumption that just because the site made lots of money it was infringing.

No one is suggesting that Kickass Torrents was not regularly used by individuals to infringe on copyrights. It was. A lot. And you can argue how horrible that is and how it was killing Hollywood and all that -- but the specifics here do matter. The same arguments were made about the VCR for years. After all, the MPAA insisted that it was used exclusively to infringe on content for years until they finally realized that it was a good idea to release content for the home video market. And, again, the US government isn't allowed to make up criminal liability concepts that aren't actually in the law. They, and their supporters, of course will now argue that it's not about secondary liability, but about "aiding and abetting." But that argument doesn't fly either. The standards for aiding and abetting are much more involved -- and would require that the actual infringement be criminal. But that won't fly, because the individuals downloading via Kickass Torrents weren't violating criminal copyright law themselves.

In other words, the DOJ is trying to argue that helping a bunch of people engaged in civil copyright infringement magically turns into criminal aiding and abetting. But that's not how the law works.

Meanwhile, the DOJ's press release on this is filled with all the usual insane bluster:

"Copyright infringement exacts a large toll, a very human one, on the artists and businesses whose livelihood hinges on their creative inventions," said U.S. Attorney Fardon. "Vaulin allegedly used the Internet to cause enormous harm to those artists. Our Cybercrimes unit at the U.S. Attorney’s Office in Chicago will continue to work with our law enforcement partners around the globe to identify, investigate and prosecute those who attempt to illegally profit from the innovation of others."

Funny. Is he also going to charge the US Navy for its massive copyright infringement? Or is that not the kind of copyright infringement harm Fardon goes after?

"Vaulin is charged with running today’s most visited illegal file-sharing website, responsible for unlawfully distributing well over $1 billion of copyrighted materials," said Assistant Attorney General Caldwell. "In an effort to evade law enforcement, Vaulin allegedly relied on servers located in countries around the world and moved his domains due to repeated seizures and civil lawsuits. His arrest in Poland, however, demonstrates again that cybercriminals can run, but they cannot hide from justice."

The $1 billion of copyrighted materials is a nice touch, but again represents merely the estimated cover price, not any actual losses to the industry. Not that the DOJ wants to admit that. But the next guy is even worse, no longer just claiming that over $1 billion was distributed, but directly stating that Vaulin stole $1 billion.

"Artem Vaulin was allegedly running a worldwide digital piracy website that stole more than $1 billion in profits from the U.S. entertainment industry," said Executive Associate Director Edge. "Protecting legitimate commerce is one of HSI’s highest priorities. With the cooperation of our law enforcement partners, we will continue to aggressively bring to justice those who enrich themselves by stealing the creative work of U.S. artists."

Aren't law enforcement people supposed to actually know the law? There was no stealing. There may have been copyright infringement using the tool that Vaulin built, but that's not stealing.

"Investigating cyber-enabled schemes is a top priority for CI," said Chief Weber. "Websites such as the one seized today brazenly facilitate all kinds of illegal commerce. Criminal Investigation is committed to thoroughly investigating financial crimes, regardless of the medium. We will continue to work with our law enforcement partners to unravel this and other complex financial transactions and money laundering schemes where individuals attempt to conceal the true source of their income and use the Internet to mask their true identity."

Illegal commerce? It was basically a search engine for free content. What illegal commerce happened there?

Yes, yes, lots of infringement happened via the site. No one denies that. But having law enforcement folks stand up and make clueless statements like this suggest they don't even understand what Kickass Torrents did, and they just want to puff themselves up and look good for Hollywood.

Meanwhile: does anyone really believe that this move will cause anyone who used KAT to suddenly go back to purchasing movies?

Filed Under: aiding and abetting, artem vaulin, copyright, criminal copyright infringement, dhs, doj, hsi, ice, secondary liability
Companies: kickass torrents, mpaa

Treaty For The Blind Comes Into Force... But US Refuses To Ratify Because Publishers Association Hates Any User Rights

from the shameful dept

For many, many, many, many years, we've followed the rather crazy trials and tribulations of trying to get an international treaty signed to make it easier for the blind to access copyright-covered works (basically requiring countries to allow visually-impaired accessible versions to be reproduced and distributed). This is a treaty that people have tried to get in place for years and years and years, and it was blocked again and again -- often by legacy copyright industries who flat out refuse to support any kind of agreement that could be seen as strengthening user rights, which they see (ridiculously, and incorrectly) as chipping away at copyright. Amazingly, despite a last minute push by the MPAA and the Association of American Publishers, an agreement was reached and signed in 2013, called the Marrakesh Agreement. As we noted at the time, we fully expected the legacy copyright industries to refocus their efforts on blocking ratification in the US, and that's exactly what's happened.

Hell, it took almost three years for the White House to finally send over the treaty to the Senate for ratification. That happened back in February, and they sent it together with another copyright-related treaty, the very troubling Beijing Treaty that creates an entirely new form of copyright for performers. So far, the Senate has moved on neither issue. However, to have the Marrakesh Treaty go into effect, it needed 20 countries to ratify it. And while the US has sat still, a few weeks ago, Canada became the 20th country to complete the ratification process. That means the agreement officially goes into effect on September 30th of this year. As the EFF noted:

That’s another significant step for a treaty that has already made some important breakthroughs as the first international treaty focused exclusively on the rights of users of copyrighted material. Typically, if user’s rights are considered at all, they’re relegated to a section on “limitations and exceptions” or even as non-binding introductory text. In the Marrakesh Agreement, they are front and center.

That post also noted that it should be a no brainer for the US to ratify this:

United States law is already compliant with Marrakesh, but the government has not yet ratified the agreement. To do so requires a two-thirds vote from the Senate, and then a formal ratification from the President. Even at a time when passing legislation has proven exceedingly difficult, the Marrakesh Agreement would be a relatively easy and uncontroversial way to demonstrate leadership internationally and help bring books to millions of blind, visually impaired, and print-disabled people around the world.

But why hasn't it happened? According to KEI, a group that fought hard for many years to get the agreement in place, the legacy copyright industries are working hard to block it in Congress:

The Obama Administration has asked the US Congress to ratify the treaty... but Congress has yet to act, in large part due to lobbying from the Association of American Publishers.... The AAP lobbied the Administration for changes in the U.S. ratification package, and now have asked the Congress for changes that they failed to obtain in the interagency review process. The U.S. ratification already represents compromises, including limitations of exports to countries that have ratified the treaty, a provision that currently excludes all of Africa and Europe. But the AAP continues to press for additional amendments to the ratification legislation.

This isn't a huge surprise, the AAP more or less admitted that they would refuse to support anything that established greater user rights, since that would be seen as an attack on "their rights." And, of course, the MPAA has also been working hard to block it, whining that this treaty could (gasp!) "affect other future treaties."

All of that is just shameful. This is a no-brainer situation. Helping the visually impaired get access to these works is something everyone should agree is a good thing. And yet, because they're so scared of user rights expanding in any way at all, the legacy industries have to block it.

Filed Under: blind, canada, copyright, marrakesh treaty, treaty for the blind, us, user rights, wipo
Companies: association of american publishers, mpaa

MPAA Boss: Actually Being Good To Consumers Would Be Horrible For Hollywood

from the how-is-this-person-in-charge? dept

MPAA boss Chris Dodd has apparently decided to take the fairly insane stance that what's good for the public is clearly bad for Hollywood. That's the only conclusion that can come from the news that he's actively campaigning against the EU ending geoblocking rules:

In a keynote address at the CineEurope convention this week, MPAA Chairman and CEO Chris Dodd described the unblocking goals as a threat to the movie industry. Encouraging participants to reach out to their representatives, Dodd described the concerns as “real, very real.”

“While the stated goals of these proposals are laudable – offering greater choice to European consumers and strengthening cultural diversity – in reality, these ideas could actually cause great harm to Europe’s film industries and its consumers,” Dodd said.

Opening up more markets and more users, while having less overall friction will be bad for the film industry? Only if it's run by complete idiots who don't know how to take advantage of a larger market. But, I guess that's the MPAA way!

Of course, it's not hard to understand what Dodd is really talking about. For years, Hollywood has been able to squeeze extra money out of a convoluted and corrupt manner of territorial licensing -- a system that may have made sense in a pre-modern world, but which hasn't made any sense at all in decades. But because the Hollywood studios abuse that system for profit, often making it impossible for people to see the content they want to see (and are willing to pay for), it doesn't want to change that system.

But, because it's Hollywood, they have a mythical fairy tale to try to make it all make sense:

“The European Union is made up of 28 different nations with different cultures, different languages, and different tastes. Forcing every film to be marketed and released the same way everywhere, at the same time, is a recipe for failure,” Dodd said.

“The ability of filmmakers and distributors to market and release their films where, how, and when they think best gives them the greatest chance to succeed,” he added.

Of course, this is the EU where (at least while the EU lasts... as may now suddenly be in doubt...) people are able to travel freely across borders. Which means that the country you live in may not be the country you grew up in, nor match the same cultural sensibilities. And, these days, it's entirely possible to market films through the internet to find their intended audiences. The idea that by getting rid of geoblocking you suddenly change any of the above points makes no sense. The films that are targeted in one geography can still be proactively marketed in those geographies -- it's just that they will also be available to people from those regions who now live elsewhere (again, making it accessible to a wider audience).

But, again, this is the MPAA that is so focused on locking things down and limiting consumers, it still doesn't realize that treating its customers badly is why the MPAA is so hated.

Filed Under: chris dodd, consumers, digital single market, geoblocking, hollywood, movies
Companies: mpaa