No, Triton Media's Settlement Does Not Mean Anything For Google

from the settlements-are-not-precedential dept

Earlier this year, we noted the decision by Disney and Warner Bros., to sue Triton Media, an advertising firm, for supposedly working with various sites that (the studios claimed) facilitated copyright infringement. A big part of the argument was that Triton was working specifically with such sites, knowing what they did and was therefore somehow liable. Yet, as we noted, this seemed like it was massively separate from the actual infringement. Many of the sites in question were merely links sites, so any actual infringement was happening with users on very different servers, so it seemed crazy to blame the company that was selling ads.

Yet, last month, when we wrote about how Triton decided to settle up for $400k, this hardly meant, as The Hollywood Reporter claimed, that this was a "win." There were many reasons why Triton might settle (including that it's cheaper than fighting), and such a settlement isn't precedential on anyone else. But (of course), in typically misleading fashion, the MPAA put out a press release claiming that it had "obtained a judgment," against Triton.

Now, here's what's sneaky. There are various ways to "settle" a case, and one is a "consent judgment." That's just a settlement worked out by the two parties, rather than the judge issuing an actual decision on the case. As part of that, there is a consent judgment issued by the court, but it's what the parties agreed upon, rather than what you normally think of as a court ruling, where the judge is deciding the result. Yet, the MPAA spun it as the studios winning a ruling where the judge had to weigh the merits of each side and came up with this result. That is incredibly misleading... but it seemed to have the desired effect.

For example, music industry lawyer Chris Castle, who never misses a chance to attack Google, no matter how weak or laughable (or wrong) the argument might be, posted to his blog about the decision, comparing it to Google, and suggesting that Google might be next. I left a comment for Castle noting that, as a lawyer, surely he was aware of what a consent judgment was, but (surprise, surprise) Castle refuses to post any comments from me (the same thing happened earlier this year when I repeatedly sent him comments noting blatant factual errors in posts). And, with that in the bag, Andrew Orlowski over at The Register decided to write his standard misleading drivel, claiming that the "ruling" sent a "chill through Google." Except, again, it's not actually a ruling in the traditional sense, but a settlement between the parties. Somehow, that doesn't make it into the article at all. And then others, who aren't as directly biased, picked up on it as well. Kit Eaton, over at Fast Company, picked up on Orlowski's article, and wrote an article suggesting "Google could be next."

Well, sure, Google "could" be next, but the scenarios are entirely different, and what Google does is quite different than Triton. But, more importantly, this "ruling" has no bearing on Google because it's not a precedential ruling, but just a settlement between the parties. And, it's unlikely that Google would just settle such a lawsuit, but would fight it. Of course, the studios and the MPAA know all of this. I'm not sure if Castle, Orlowski and Eaton know (or care) about all of this, but at least with Castle and Orlowski, it appears that they played this up for maximum FUD, as is their standard operating procedures.

Update: Apparently there are two different companies named Triton Media, and the one that wasn't sued doesn't like to be associated with the one that was sued (understandable). So the one that was sued and settled is Triton Media, out of Scottsdale, Arizona. Not Triton Media Group, which is based in Sherman Oaks, California.

Filed Under: advertising, liability
Companies: disney, google, mpaa, triton media, warner bros.

MPAA Calls Censorship Of Websites 'Forward Looking'

from the i-think-it's-the-opposite dept

Ah, the word choices of the MPAA. The organization that once claimed the VCR was the "Boston Strangler" of the movie industry is now out there trying to get three strikes and censorship laws passed to protect their business model, and referring to these backwards looking protectionist policies as "forward looking." That's what MPAA boss Bob Pisano called the idea, found in the COICA proposal to censor web sites the MPAA doesn't like. Of course, if this had been in effect when the VCR first came out, there would be no VCR.

Of course, Hollywood is having record year each year at the box office, so it certainly is hard to see how file sharing is "killing" the movie industry at the box office. The MPAA and its supporters, no doubt, will say but that's not the market to look at. It's the DVD market that is being stifled by file sharing. Yet, last we checked, with smart business models, the DVD market is doing quite well with services from Netflix and Redbox that focus on providing convenience (a nice scarcity). Besides, considering how hard the MPAA worked to try to kill off the VCR in the first place, isn't it a bit ridiculous to now claim that the government needs to somehow artificially "protect" recorded video sales?

If there's one thing that the MPAA has consistently proven, it's that it has absolutely no clue what "forward looking" policies actually are, and most of its ideas appear to be quite the opposite.

Filed Under: bob pisano, censorship, forward looking
Companies: mpaa

Surprise, Surprise: MPAA In Favor Of Current ACTA Text Before Anyone's Supposed To Have Seen It

from the how's-that-work-now? dept

As we've been discussing, the last round of ACTA negotiations all but finalized the document, and now word is spreading that the full text will be released before the end of the week (I've been hearing Wednesday). There are still a few points where the negotiating parties disagree (and there's even disagreement about how "big" the disagreement is). However, for the most part, the document is close to finalized.

That said, Jamie Love points out that the MPAA has already released a statement endorsing the outcome of the latest round of negotiations (pdf). Now this raises a bunch of important questions. Considering that the document is still secret, either the USTR has already provided the MPAA with a copy of the document before letting everyone else know -- or the MPAA is simply assuming what ACTA says. Neither possibility says much good about either the USTR or the MPAA, but neither is all that surprising either.

As for what is making the rounds in rumors concerning what's going on, it does sound like parties caved on some of the more controversial topics. Apparently patents have been removed from the border controls section, but may still sneak in elsewhere. So-called "private acts of infringement" are thankfully excluded from ACTA, though that's been talked about for a while. Instead, the document claims to be focused only on "commercial-scale" infringement. But, take heed of the definitions, as "commercial-scale" can be a moving target, so watch the definition to make sure it can't include a kid who's filled his iPod with a lot of MP3s.

Negotiators are claiming that third party liability has been removed from the document, and that three strikes has never been in the document. Again, this will require careful scrutiny. While "three strikes" was never directly in the document, at one point it did "suggest" three strikes as a way to avoid third party liability -- and offered no other suggestions, meaning that almost everyone would interpret three strikes to be mandatory. So, while it might be good if third party liability has been removed, the devil is very much going to be in the details.

It certainly sounds like some of the worst of this bill -- the points that many people raised earlier -- may have been removed thanks to the vigilant efforts of folks concerned about the scope of the agreement. That's a good thing -- though, you can bet ACTA supporters will claim this shows that the concerns of everyone was clearly "overblown." That's clearly not true at all. Many of these things very much were in earlier versions and drafts, and their removal is almost certainly the direct result of public outcry (despite attempts by negotiators to keep much of the proposals secret).

So, while the MPAA is cheering on an agreement it isn't supposed to have seen yet, we'll wait to see the final document "officially" before making final judgment. Given the actions of those involved so far, I certainly wouldn't be surprised to see the text written in ways so that people can claims certain aspects aren't in the document, while leaving loopholes and interpretations such that they really are. We shall see later this week...

Filed Under: acta, ustr
Companies: mpaa

MPAA Wants To Know If ACTA Can Be Used To Block Wikileaks?

from the huh? dept

The folks over at Open Acta Mexico sent over their report on an open information meeting at the Ministry of the Economy in Mexico about ACTA last week. There were two oddities that they called attention to. The first is that there was an MPAA representative at the meeting, who apparently asked whether or not ACTA could be used to block access to "damaging" sites like Wikileaks. As the Open Acta Mexico people asked, what does Wikileaks have to do with movies? It seems like an interesting question, though, and I'm assuming that the MPAA is using Wikileaks as an example of a site they deem "dangerous" to get the idea across, so that later when they designate other sites (say... The Pirate Bay....) as dangerous, they can use this to make the case it should be blocked. Nice to see the MPAA is so blatant about using copyright for censorship...

The other oddity in the meeting was that apparently the ACTA negotiator who was there leading the meeting, Gilda Gonzalez Camarena, claimed that the negotiators met every day with the relevant Senate commission to keep them updated on ACTA negotiations. Yet, Open Acta Mexico notes that the Senate recently requested a full debrief on ACTA negotiators later this month. If they're getting briefings every day, why do they need a debrief?

Filed Under: acta, copyright
Companies: mpaa, wikileaks

Denial Of Service Attacks On RIAA & MPAA Are A Really Dumb Idea

from the come-on dept

There's an entertainment industry lawyer who once used his blog to suggest that I had an "army of hackers" at my disposal that I would order to send a denial of service attack against anyone I disagreed with. I thought that was pretty funny in how ridiculous a claim it was. Beyond the fact that I can barely get my dog to follow my instructions (and I feed her!), let alone anyone who reads this site, I think that denial of service attacks are a pretty dumb idea. It does nothing but piss off people and doesn't make any real point at all. So it's really disappointing to hear that the /b/ folks at 4chan decided to use this weekend to DDoS the MPAA and then the RIAA. The thing with /b/ is that even at their most crude and immature, they're usually creative in their attacks. There's nothing at all creative about taking down the MPAA and the RIAA -- and all it does is serve to reinforce their misguided prejudices that it's just a bunch unruly kids who dislike them. On top of that, it gives them more ammo to position themselves as being persecuted by a small minority. It's a dumb move that looks bad and does a lot more harm than good from a group that should know better.

Filed Under: /b/, 4chan, ddos
Companies: mpaa, riaa

Four Years In, How Successful Has Hollywood's Attack On The Pirate Bay Been?

from the not-very... dept

TorrentFreak alerts us to the news that May 31st was the four year anniversary of the raid that took down The Pirate Bay. So it seems worth checking in to see how well that went. As you may recall, right after the raid happened (very much because of MPAA pressure), the MPAA put out a statement, insisting that this raid was a huge victory for the MPAA:

"The actions today taken in Sweden serve as a reminder to pirates all over the world that there are no safe harbors for Internet copyright thieves," said Dan Glickman, Chairman & CEO of the MPAA. "Intellectual property theft is a problem for film industries all over the world and we are glad that the local government in Sweden has helped stop The Pirate Bay from continuing to enable rampant copyright theft on the Internet."

Of course, Glickman was overstating things just a bit. The raid did not stop The Pirate Bay from continuing anything. In fact, the raid merely took the site down for a couple days, but the publicity from the raid massively increased visitors to the site. I have to admit that, at the time of the raid, I'd never heard of The Pirate Bay myself. Since then, of course, there have been multiple attempts to take the site down, all of which have failed. The latest of which resulted in the Swedish Pirate Party taking on hosting duties for the site.

And, of course, there's the infamous lawsuit. While it did result in guilty verdicts against four people associated with the site, it hasn't stopped the site from operating at all, and recent attempts to collect money from the defendants in the lawsuit have mostly turned up nothing. While it's a bit disturbing that the entertainment industry was able to hand the fines over to debt collectors while the case is still on appeal, those debt collectors have only been able to seize $30,000 of the over $6 million owed -- and all of it's from Carl Lundstrom, who was only loosely associated with the site in the first place.

It really does make you wonder why the MPAA and the RIAA have bothered with all of this. It hasn't even remotely slowed file sharing down. In fact, their actions have helped advertise The Pirate Bay worldwide and made those running it into celebrities. And, even if they eventually do shut down the site, a dozen others will quickly step up to take its place. At some point, you have to wonder when they will realize it's time to figure out ways to focus on building a better business model rather than trying to do the impossible and deny what technology allows.

Filed Under: entertainment industry, file sharing, pirate bay
Companies: mpaa, the pirate bay

Entertainment Industry Gets Politicians To Advertise File Sharing Sites

from the what-are-they-thinking? dept

Just a few weeks ago, the USTR put out its infamous Special 301 report that tries to shame countries that don't respect US intellectual property laws, but is put together using the rather scientific method of "what countries are the entertainment and pharmaceutical industries complaining about now?" to generate the list. Around the world -- and even in the US gov't -- the list is mostly seen as a joke. No one takes it seriously.

But, apparently one ridiculous list isn't enough. The RIAA and MPAA have convinced a group of US elected officials, who have dubbed themselves the "International Anti-Piracy Caucus" to put out a list of file sharing websites that it hates... and with it, an attempt to shame the companies where those websites are hosted. The timing on this is amusing, because, of course, just last week, you would have needed to put the US on the list, as LimeWire would have likely been seen as just as widely used for unauthorized file sharing as some of those sites.

But the larger point is that this list is effectively advertising these five sites as the best place to go to get unauthorized content:

China's Baidu, Canada's IsoHunt, Ukraine's Mp3fiesta, Germany's RapidShare, Luxembourg's RMX4U.com, and Sweden's The Pirate Bay.

You would think that, by now, the RIAA and MPAA would have recognized that every single time they've targeted a particular service for file sharing, the end result is to get that site significantly more publicity, so that its userbase increases rapidly. It happened when they sued Napster. It happened when they sued Grokster. It happened when they got the police to raid The Pirate Bay. It happened when they filed the lawsuit against IsoHunt. Putting out this list basically just pointed a bunch of people at these particular services as a good place to go to get access to content. Nice work by the caucus, who is made up of Reps. Adam Schiff and Bob Goodlatte along with Sens. Sheldon Whitehouse and Orrin Hatch.

And, of course, the RIAA put out a statement supporting this free advertising for those sites. Honestly, people keep telling me that the RIAA really knows what it's doing, but how can they possibly think that this is a good idea?

As a parallel, reader Hephaestus points out this historical bit:

"From 1559 to 1966 the catholic church had a list of prohibited books aptly named the Index Librorum Prohibitorum. One historical note about this list is that a very large number of the books on this list had an increase in sales and reading when they were placed on the list. The International Anti-Piracy Caucus seems to have not learned the simple historical lesson, To list or expose inappropriate subject matter shines a light on it and exposes it to a larger audience. This will undoubtedly lead to more people visiting this "list of notorious sites" quite the opposite of what they seem to be aiming for.

Nice work, RIAA and MPAA. You just boosted traffic to those sites.

Filed Under: advertising, anti-piracy caucus, file sharing
Companies: mpaa, riaa

Remember How Hollywood Promised Lots Of New Content If It Could Break Your TV/DVR? Yeah, That's Not Happening...

from the well-that-was-useful dept

With Hollywood getting the right to break your TV and DVR thanks to the FCC's granting of a waiver to let them use selectable output control to stop DVRs from recording certain movies, the MPAA insisted that this was a huge win for consumers. Why? Because it meant that the Hollywood studios would rush to put movies on TV earlier than ever before. Except... apparently, that's not actually the case. Despite the victory, no studios have stepped up to make use of the new ability to stop your DVR from recording, because they're scared about how the movie theaters will react to greater competition. Of course, the theaters are notoriously unwilling to allow any threat of actual competition from home viewership to encroach on their turf, even if it could actually help theaters.

But, uh, the whole argument that supposedly convinced the FCC to give the Hollywood studios this waiver was that they would make use of it to give consumers more access. Quoting from the FCC's decision:

This offering will allow the homebound, parents with young children, and others who simply want to stay in for the night to choose a new entertainment option that they may value highly....

[On] balance, grant of MPAA's waiver request will provide a benefit to those who have the appropriate equipment and would like to view movies in their homes in an early release window that outweighs the limited impact on consumers with legacy devices....

So, a large part of the basis of the FCC approval was that it would increase content availability to homes. But that's not happening. Does that mean the FCC will admit that the entire basis for the approval was wrong?

Oh, and my favorite part is how the MPAA is playing this. Acting MPAA boss Bob Pisano put out the following statement when the FCC's announcement was made on May 17th:

"This action is an important victory for consumers who will now have far greater access to see recent high definition movies in their homes. And it is a major step forward in the development of new business models by the motion picture industry to respond to growing consumer demand..." (emphasis added)

So, gee, what does Pisano have to say, just a few days later when it turns out that none of that is true?

When asked about the studios' plans late last week, Bob Pisano, the president of the Motion Picture Association of America, said, "I can't tell you that, because I don't know." To comply with antitrust law, he added, "we stay out of business-model decisions."

Uh huh. So, let me get this straight. He argued -- successfully -- to the FCC, that granting this waiver to break people's TVs and DVRs would certainly create new business models and allow much more content to be available earlier. But, when it comes to actually supporting that, he claims that the MPAA "stays out" of business model decisions? So, how could he possibly have promised such "new business models" to the FCC in the first place?

Filed Under: dvr, hollywood, movies, selectable output control, soc
Companies: mpaa

Kaleidescape Introduces Expensive And Almost Pointless Blu-ray Jukebox... And Hollywood Still Thinks It's Illegal

from the controlling-innovation dept

You may recall the legal fight over Kaleidescape. The company built a ridiculously expensive (tens of thousands of dollars) DVD jukebox that was clearly designed not for unauthorized file sharing, but for those with a huge disposable income to store their DVDs on the device so it was easier to watch or playback any DVD they owned (you couldn't transfer the movies off the device, so it was useless for further copying). Of course, as usually happens, Hollywood got upset, saying that this process of backing up your DVDs was illegal, using a twisted argument that the encryption on DVDs was broken by this system, and thus it's a violation of the DMCA. This is a massive problem with the DMCA's anti-circumvention clause, which says that even if the copy itself is legal, if it involves encryption, the process of making that (legal) copy, becomes illegal.

While Kaleidescape won in the lower court, the appeals court reversed, highlighting again how Hollywood (despite claims it would never use copyright law to block technology) uses the legal system to block technological innovation.

Kaleidescape has now come out with a new product that actually adds the ability to store Blu-ray discs as well -- which might be a surprise given last summer's ruling. However, in response to the ruling, Kaleidescape added one "feature" which it hopes will satisfy Hollywood lawyers: to play back a movie, you now have to put the original disc into the player. Yes, you read that right. This is a device designed to rip and store your DVDs -- and the only way you can play them back is to go ahead and put the actual DVD into the player to prove that you have it. In other words, it takes away the whole idea of the convenience behind the product.

And, guess what? Hollywood still isn't happy.

The AACS technology and licenses do not permit ripping of Blu-ray discs unless the copy has been authorized by the content owner, either by setting the Copy Control Information appropriately (and nearly all BD movies are set for “Copy Never”, just like DVDs), or by individual authorization through the Managed Copy process, which we anticipate rolling out at the end of this year or the beginning of 2011.

This is exactly what the law is not supposed to do. It's letting Hollywood set the terms of technological innovation, and blocking any concept of fair use or backup copies that are recognized as legal. It's giving Hollywood a veto on technology, and causing tech companies to jump through ridiculous hoops to disable obvious functionality, just because Hollywood doesn't like what it does.

Filed Under: copyright, drm, dvds, jukebox
Companies: kaleidescape, mpaa

FCC Gives Hollywood The Right To Break Your TV/DVR... Just 'Cause

from the nice-of-them dept

For a couple years now, the MPAA has been asking the FCC to break your TV/DVR, and let them effectively put a type of DRM (by enabling "Selectable Output Control" or SOC) on video content, such that you will not be able to access the content via third party devices, such as your DVR or your Slingbox. Effectively, they want to break the ability of your equipment to work. You wouldn't be able to legally record the movie that was playing on your TV. The MPAA's argument here makes absolutely no sense at all -- and when they're called on it, the doubletalk comes out.

The MPAA's argument is that if it could block people from recording movies, they could release the movies on things like PPV before they release them on DVD, adding yet another window to the long list of windows that Hollywood uses. It's still not clear how more windows helps anyone but Hollywood, but they keep claiming this is some sort of consumer benefit. The thing is, their argument makes absolutely no sense at all when you look at the details. First of all, there was nothing whatsoever stopping them from releasing movies on PPV prior to the DVD release. Nothing. You don't need DRM to do it. In fact, some major studios already do this without breaking your TV in the process.

Of course, the MPAA's response is that it would never release movies this way without SOC, because then people would copy them and... um... piracy... oh mygod... Hollywood is dying. Or something like that. But that makes no sense. First, as noted, some studios already release movies this way. They don't need SOC. Second, the whole claim that this will lead to more unauthorized file sharing is a total red herring -- because all of the movies they're talking about were already in theaters -- and once a movie is in the theaters, it's already available widely on file sharing networks. There is no increase possible, because the content would already be widely available. On top of that, of course, as the GAO just noted, the MPAA's ridiculous claims of losses from "piracy" are totally bogus.

Given all that, it seemed ridiculous to think that the FCC would give in... but late last year the reports were that the FCC had already decided to give in to Hollywood, and today the FCC made it official (pdf): The FCC's reasoning is bizarrely troubling and blatantly wrong. First, it claims that the studios "are unlikely to offer the service absent the ability to activate SOC." But... as noted, some studios already do offer such a service. On top of that, why is it the FCC's job to give the MPAA yet another window? Windows are anti-consumer, not pro-consumer. But, the FCC claims it's good for the consumers, and the MPAA's victory announcement makes the same ridiculous claim:

"This action is an important victory for consumers who will now have far greater access to see recent high definition movies in their homes..."

That logic is backwards. Basically, Hollywood is saying that it held the public hostage until the FCC let it break your TVs, and because the FCC caved in and Hollywood will release the movies it easily could have released before, consumers win. When someone is taken hostage and the family pays up, that's not a "win" for the family. As Public Knowledge points out, this appears to be the FCC doing this just as a favor to Hollywood.

Of course, in typical Genachowski FCC fashion, this ruling tries to walk that line between each side, in that it didn't grant the MPAA's full waiver, but tries to limit it, by saying it can only be used on films before the DVDs are released or for 90 days on a particular film (whichever comes first). The FCC will also "revisit" the issue in two years -- even under threats from the MPAA that if the FCC could revisit this issue, that uncertainty would lead the studios to scamper away, run and hide and not offer this service out of fear that the FCC would take away their right to break your TV. The FCC thought that was silly. It's not clear why the FCC didn't believe the MPAA's threat not to invest if the ruling could be reviewed, but do believe the threat not to release movies on TV earlier without this ruling... but that's the way this particular FCC seems to function.

In the meantime, now that the FCC has opened this door, expect more efforts to expand it much wider. Already -- before it had even been approved -- there was talk among politicians that it should be expanded to cover sporting events as well -- because, you know, we can't have people DVR'ing a sporting event any more.

The really ridiculous thing about all of this is that it's taking away functionality from the vast majority of law-abiding TV viewers who bought their TVs and DVRs expecting -- reasonably and accurately -- that they'd be able to record whatever is on TV, because of an amorphous and unproven "threat" of "piracy" which is based on bogus numbers and totally irrelevant given that the movies in question will already be widely available on file sharing networks.

Filed Under: fcc, movies, ppv, selectable output control, soc, tv, vod
Companies: mpaa