Mississippi Attorney General Jim Hood Insists His Emails With The MPAA Are Super Secret

from the how's-that-working-for-you? dept

Last we had checked in on the ongoing legal wrangling between Google and Mississippi Attorney General Jim Hood, a court had ruled pretty strongly against Hood, accusing him of acting in "bad faith," for "the purpose of harassing" Google in violation of its First Amendment rights. Checking back in on the case to see what's been going on, it appears that things have continued to get more and more heated. A little while after that ruling slamming Hood, Wingate ordered Hood to provide a bunch of information to Google as part of the discovery process for the case -- including, bizarrely, responses to Techdirt's FOIA request, which we had declined to continue after Hood's office demanded over $2,000 and made it clear that they still likely wouldn't give us anything. However, Judge Wingate thought that Hood's office should turn that info over to Google:

Any documents already gathered in connection with the Techdirt Mississippi Public Records Act request that are responsive to Google’s requests.

But, more importantly, Judge Wingate ordered Hood to turn over the documents that the MPAA/movie studios and their lawyers at Jenner & Block had written for Hood, as well as emails with the MPAA's government affairs boss, Vans Stevenson:

Any draft subpoenas provided to the Attorney General by the third parties identified in Google’s request.

Attorney General Hood’s November 13, 2013 email to Vans Stevenson, and any replies or responses thereto;

Attorney General Hood’s August 28, 2014 letter to the Attorneys General in all 50 states regarding setting up a working group;

Less than two weeks after that, Google told the court that Hood was refusing to turn over a bunch of that stuff, claiming that it was "privileged" material:

The Attorney General has withheld most of the documents called for by the Court’s order. But there is no valid basis to assert privilege. Most of the documents in question were prepared by third parties lobbying the Attorney General to take action against Google. Neither the attorney-client privilege nor the work product doctrine permits public officials to shield such interactions from scrutiny. The privilege log provided by the Attorney General confirms that there is no basis to withhold the documents.

According to Google's filing:

On April 15, the Attorney General served his responses and objections for the five priority document categories, along with a privilege log and 65 pages of heavily redacted documents.... He produced no documents at all within the fifth category specified by the Court, later explaining that while documents had been “identified” in relation to the Techdirt Mississippi Public Records Act request, none had been “gathered.” He also refused to produce much of the responsive material in his possession, claiming that the documents are protected by the attorney-client privilege, the work product doctrine, the common interest doctrine, or some combination thereof.

And, Google points out that the idea that Hood has attorney-client privilege over this material makes no sense, as he does not have such a relationship with the people in question:

It also concedes that the Attorney General does not know who drafted many of the withheld documents and instead states, “on information and belief,” that they “were prepared by or at the direction of” one of two or three named lawyers in private practice, at the law firms Jenner & Block LLP (“Jenner”), Orrick, Herrington & Sutcliffe LLP (“Orrick”), and SNR Denton US LLP (“Denton”).... The Attorney General confirmed that he had no attorney-client relationship with these firms. Published accounts indicate that, in connection with lobbying activities, Orrick represents Microsoft and Jenner represents the MPAA.

There's a lot more in that filing that absolutely destroys the arguments that Hood is making as to how these documents, prepared by the MPAA's lawyers, could possibly be privileged material, blocked from discovery.

A week later, Hood responded to Google's filing seemingly spending about half of the space simply reiterating one of his misguided rants about how evil Google must be -- none of which seems even remotely relevant to the question at hand, concerning whether or not Hood needs to produce these documents, including the emails from the MPAA and its lawyers, as they plotted to use Hood in their plan to take down Google, a company they don't like. After that, it basically just repeats "attorney-client privilege" and "work product" as frequently as possible, insisting that revealing any of this to Google would completely undermine all that is good and holy by revealing to Google what Hood and his staff were thinking. That, of course, leaves out the fact that it wasn't what Hood was thinking, but rather what the MPAA -- an organization that has made it clear it wants to harm Google -- was thinking in terms of how it could use Hood's office to that end.

Allowing Google access to these documents and communications would reveal the nature of the Attorney General’s mental impressions and strategy regarding future litigation against Google.

Or, you know, the MPAA's "mental impressions and strategy" which apparently include funding/hiring one of Hood's closest friends (who Hood himself then hired to help with the subpoenas to Google), Mike Moore (the previous Attorney General who helped get Hood elected). The whole reason why the judge ordered Hood to turn this over was to find out about those "impressions and strategy," as Judge Wingate believed that those "impressions and strategy" show a "bad faith" plan to attack Google in violation of the First Amendment. Hiding behind a bogus attorney-client privilege claim (when Hood has no such relationship here) is incredibly weak.

Finally, earlier this month, Google responded again and laid out the situation in a fairly straightforward manner:

The Attorney General served the 79-page subpoena at the heart of this case after sustained lobbying from the MPAA. The Court has found that Google is likely to succeed on the merits of its claims, including its claim that the Attorney General conducted his investigation in bad faith. The Attorney General is now trying to throw a veil of secrecy over his interactions with the MPAA and other lobbyists during his investigation, refusing to produce the draft subpoenas the lobbyists wrote, and the multiple policy memos (with titles like “Google must change its behavior”) that the lobbyists sent him. He asserts, for example, that documents created by the MPAA’s lawyers are somehow his work product, and thus beyond the scope of discovery absent a showing of substantial need, simply because he read them. That is flatly wrong. The work product doctrine exists to shield from discovery an attorney’s thoughts and impressions developed in preparation for litigation. It does not protect a trade association’s communications with a government official, aimed at inducing the official to pressure a business rival.

It further explains how all those chants of "attorney-client privilege" and "work product" make no sense at all:

The draft subpoenas, CIDs, and white papers do not constitute the work product of the Attorney General because they were not created by his counsel or agent, but instead by private third-parties seeking to influence his official conduct.

The same documents do not constitute the work product of private counsel because their clients (the MPAA, Microsoft, and others) were not anticipating litigation as a party. And any protection was waived when the documents were provided to the Attorney General to encourage an attack.

The letter to attorneys general is not work product because the unredacted portion of the document makes clear its primary purpose was to form a working group to induce Google to change its policies, not to prepare for litigation. And the common interest doctrine does not include unsolicited invitations to join such an effort.

Oh, and the Google filing also highlights the fact that both the MPAA and Hood appeared to employ Mike Moore separately to work on this same project, and this also further undermines the attempts to keep these communications a secret:

The record also suggests that any privilege was waived by the Mike Moore Law Firm’s parallel representation of the Attorney General and a private lobbying group, as well as Mr. Moore’s repeated disclosures of confidential information to outside interests.

This back and forth is kind of fascinating. The Judge has already made it quite clear that he's not buying Hood's story, and it seems pretty obvious from the Sony leaks and deeper reporting from the NY Times last year, that Hood's fishing expedition was based almost entirely on the MPAA's big plan to hamstring Google just because the MPAA really, really doesn't like Google. That Hood would use his office as a state Attorney General to assist in such an action does not speak very well of Hood. That he's now scrambling to hide the details of his relationship with the MPAA only serves to call more attention to that relationship.

Filed Under: attorney client privilege, discovery, first amendment, jim hood, mississippi, section 230
Companies: google, mpaa

EU Study Confirms: Hollywood's Site Blocking Campaign Is A Total Failure

from the well,-duh dept

If you go all the way back to when the RIAA shut down Napster, you may recall that within just a short while, Gnutella launched, providing a more distributed system that became the core of a number of file sharing programs, which ended up growing much, much larger than Napster. It's the classic hydra situation: you cut off one head, and eight more (or even more than that) come back in return. It's a message that has been obvious since the days of Napster... and yet it's one that the legacy entertainment industry and its friendly politicians still can't seem to grasp. It's why we've always said that the industry would have been so much better off looking for ways to embrace and work with the leading providers in the space, rather than shutting them down.

But, clearly, they don't get it. As the Sony email leaks showed, "site blocking" is still considered a top priority for Hollywood, even though it doesn't take a genius to realize that it doesn't work.

Now we can add some more evidence: the European Commission itself decided to do a study looking at what happened after the website kino.to was shut down, and shows that it was a complete failure if the industry was looking to stop people from consuming unauthorized videos. As we've seen before with other site blocking efforts and over-enforcement, there is a very brief impact in decreasing access to infringing works, and a very, very small increase in sending traffic to licensed offerings -- but that only lasts until alternatives come along, usually within weeks.

The overall impact on stopping access to unauthorized videos? Basically none whatsoever. And, by scattering users out to a variety of new sites, it made it even harder for the industry to track what people were doing. In the case of Kino.to, it took all of four weeks for people to find new places to go:

The results from our empirical analysis show that the shutdown of kino.to led to a significant but short-lived decrease in the usage of unlicensed video streaming websites. Unsurprisingly, this effect is particularly large for individuals who were using kino.to previous to its shutdown, with decreases of more than 30% in overall piracy consumption during the four weeks directly following the intervention. We nevertheless observe that consumption of pirated content increases again following the fourth week after the shutdown. This increase is driven both by substitution towards existing alternative unlicensed platforms and by the entry of new platforms following the shutdown.

You can see how this works pretty easily in the following graph. Yes, there's a very brief decline in unauthorized streaming, but then it goes right back to about the same level... and appears to be generally climbing upward: As for helping convince the users to suddenly start paying for content? A tiny, tiny effect that also does not seem to last:

Second, we find limited substitution into consumption of licensed offline video content, proxied by visits to specific types of websites. Our results show that consumers do not increase their visits to websites of movie theaters or to DVD-related Amazon webpages. However, we find a small increase in clicks to licensed online video services (such as Maxdome, Lovefilm, and iTunes) after the shutdown, providing evidence that the intervention was successful in converting part of kino.to's users toward legitimate video consumption. Perhaps more importantly, we also find that heavy kino.to users disproportionately increase their visits to websites of licensed video services. This substitution was nevertheless undermined by the existence of alternative unlicensed streaming websites, which allowed consumers to rapidly transfer their consumption of copyright infringing videos from kino.to to other platforms. In particular, we document a large increase in clicks to the second-most popular platform - movie2k.to - directly after kino.to disappears. Only five weeks after the intervention, we also observe the entry of a new platform - kinoX.to - which manages to quickly appropriate a significant share of the unlicensed video streaming market at the expense of movie2k.to and the other smaller platforms. These results reflect both the high elasticity of supply to the shutdown, and the fact that consumers face little difficulty in switching from one platform to another.

And, the end result is the basic hydra effect, where the audience fragments:

Third, we assess how the shutdown affected the overall structure of the market for unlicensed video streaming. While the market was largely dominated by kino.to before its seizure, the intervention triggered an increase in competition between alternative platforms, ultimately resulting in a much more fragmented market. After the shutdown, the market was evenly split between movie2k.to (the second largest player at the time of the shutown), kinoX.to (kino.to's substitute), and a remainder of 12 websites which cumulatively account for one third of the market. We also observe that concentration of demand decreases after the shutdown, and that consumers diversify their unlicensed movie consumption more as opposed to concentrating it on a single platform.

Again, you can see the impact of this hydra effect right here: Some may argue that this is the intended impact, and that if these sites have a smaller audience it makes them less sustainable, though there's little evidence to support that.

It seems that a much clearer message from this study is what many of us have been saying all along: taking down sites does not change what people want. And if the industry itself is failing to serve the public and music and movie fans in a compelling and convenient manner, then other providers will come in and do it instead, whether or not it's legal. And that's where the audience will go. The more the industry fights against this, the harder it becomes for the legacy industry to figure out ways to work with the leading providers to build a legitimate service. Instead, it just pisses off people and sends them further and further away. That can't be good for business.

Given that, it seems like it would make a hell of a lot more sense for the industry to focus on providing what people want rather than wasting so much time, effort and money into trying to shut down the sites they don't like.

Filed Under: copyright, eu, eu commission, hollywood, hydra, site blocking, streaming
Companies: kino.to, kinox.to, movie2k.to, mpaa

Hollywood Studios Call Six Strikes A 'Sham,' Cue Plans For Something Much Worse

from the deep-well-of-dysfunction dept

When the entertainment and broadband industries' "six strikes" anti-piracy regime first launched a few years ago, most people (outside of Hollywood) realized it wouldn't work for a number of reasons. One, data has pretty consistently shown that such graduated response anti-piracy systems -- whether three "strikes" or six -- don't work, and in fact may actually make things worse. Two, even partner ISP execs I spoke to ahead of the program's launch made it clear they knew the program wouldn't do much, with most infringers simply hiding their behavior behind proxy servers of VPNs.

Publicly, the firm created to run the program (the Center for Copyright Information) has frequently tried to claim the program is a smashing success, often using unreliable, contradictory evidence to try and suggest pushing ISPs into the role of content nannies was a wonderful idea. But privately, Hollywood and the MPAA have acknowledged the program isn't doing much, though they're quick to argue that this is only because it hasn't yet been "brought up to scale."

Amusingly, some of the very same Hollywood voices that pushed so hard for six strikes and ignored warnings that it wouldn't work, are now calling the program an abject failure. The Internet Security Task Force, a coalition of smaller studios, which counts copyright troll Voltage Pictures among its members, has come out swinging this week against six strikes in a press release, calling the program a "sham":

"We’ve always known the Copyright Alert System was ineffective, as it allows people to steal six movies from us before they get an educational leaflet. But now we have the data to prove that it’s a sham," Gill comments. "On our film ‘Expendables 3,’ which has been illegally viewed more than 60 million times, the CAS only allowed 0.3% of our infringement notices through to their customers. The other 99.7% of the time, the notices went in the trash,” he adds."

One, ISTF doesn't appear to know how the program Hollywood pushed for actually works, since users receive an "educational leaflet" the first time they're found to infringe. Steps two through six then include "mitigation measures" that may involve having your connection throttled or finding your broadband access temporarily suspended until you've clearly acknowledged you've been naughty. Users then have the honor of paying a $35 fee if they'd like to fight the accusation. After the sixth strike nothing happens, and nobody tracks offenders between ISPs, something Hollywood is surely eager to "remedy" with program updates.

ISTF notes that the five major ISPs participating in six strikes (AT&T U-verse, Cablevision, Comcast, Time Warner Cable and Verizon FiOS), saw a 4.54% increase in infringements during the fourth quarter of last year. Two non-participating ISPs, Charter and Cox (the latter of which is being sued by BMG for allegedly ignoring piracy), saw a 25.47% decrease in infringements during that same period. Assuming you can trust Hollywood math here (never a wise bet), the ISTF claims this is proof of the fact that ISPs aren't taking piracy seriously:

"These alarming numbers show that the CAS is little more than talking point utilized to suggest these five ISPs are doing something to combat piracy when in actuality, their customers are free to continue pirating content with absolutely no consequences," said ISTF member Nicolas Chartier, CEO of Voltage. "As for its laughable six strikes policy, would any American retailer wait for someone to rob them six times before handing them an educational leaflet? Of course not, they call the cops the first time around."

Of course if non-participating ISPs are seeing infringement drop massively while participating ISPs are seeing a slight rise, that would seem to suggest that graduated response programs actually make things worse, which is what data Hollywood ignored said in the first place. The ISTF's solution for the States is to implement an uglier version of Canada's Copyright Modernization Act, which gives ISPs safe harbor only if they agree to pass on all infringement notices. While the Canadian law caps damages, it hasn't done much to thwart copyright trolls, who appear to just be making up for the income reduction by shaking down Canadian users on greater scale.

While these smaller studios are solely focused on greasing the rails for their "settlement-o-matic" shake downs, it's only a matter of time before the MPAA and the larger studios start pushing for "improvements" to six strikes as well, whether that's an organization that tracks offenders between ISPs, or a frontal assault on VPNs and proxy services. And that's just it, these studios consistently whine about the need for aggressive enforcement policies that have been proven not to work, and when they fail the answer isn't adaptation of the business models to the modern age, it's an expansion of already-bad ideas that clearly aren't working. It's a bottomless well of dysfunction. Unfortunately for Hollywood, any expansion of six strikes is going to have a steeper uphill climb in the post SOPA era, which may hinder the program from mutating into something truly monstrous.

Filed Under: cas, copyright, copyright alert system, copyright trolling, hollywood, infringement, isps, six strikes, studios
Companies: cci, internet security task force, istf, mpaa, voltage pictures

Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All

from the almost-every-point-is-wrong dept

Last summer, when President Obama finally got around to nominating a new IP Czar (technically the "Intellectual Property Enforcement Coordinator" or IPEC), Danny Marti, we were at least moderately hopeful that he didn't come out of the usual copyright maximalist/Hollywood/legacy industry camp. Instead, much of his work had been on the trademark front, and thus we'd hoped that maybe his focus would be more limited to issues around counterfeiting (which are also overblown in terms of actual concern -- but which have less of a free speech concern). After months of Congressional stalling, Marti was finally officially given the job a few weeks ago. And one of the first things he did was go give a speech at a "Creativity Conference" put on by the MPAA and Microsoft (yes, really), in which he appeared to repeat a bunch of horribly misleading, to downright wrong, talking points. In short, as a first impression, Marti is a disaster. Take a look: After kicking off with a weak joke about his job title, he starts right in with the misleading talking points.

Summarizing my job, in the spirit of this conference, I think it's fair to say that the IPEC Office is the Executive branch's "creative conscience."

First of all... what? The role is enforcement, which has nothing whatsoever to do with actual creativity. In the past, with Marti's predecessor, Victoria Espinel, we often wondered why there was an "enforcement coordinator" at all, since the job title itself was so one-sided. If anything, if we were to go by the Constitutional rationale for copyright and patents, the role should be one in which it looks to see how best to "promote the progress of science and the useful arts." And enforcement is often not the best way to do that. In fact, as we've spent years demonstrating, enforcement can often harm the progress of the science and the useful arts. So it's interesting to see Marti suggest that his role is about being a "creative conscience." For a second, I thought that maybe this meant he'd actually consider what was best for creativity -- meaning all creators, not just the few who were lucky enough to be selected by the large legacy gatekeepers. But, no, as you'll quickly learn, by "creative conscience" he actually means "protector of a few legacy gatekeepers who often screw over actual creators."

Part of my job is to make sure that the administration keeps the impact on creativity top of mind when it adopts policies, makes decisions, and takes action.

Again, that's good if we're talking about actual creativity and all creators. But... he's not.

I'm also responsible for helping marshal the federal government's resources to help combat violations of intellectual property. Put simply, my office is dedicated to the protection of the American intellectual property system that helps drive our national economy.

And there we go, right off the tracks. He is focused on protecting the existing system -- even when it is shown to harm creativity, free expression and innovation. That's a problem. Maybe he didn't really mean that? Nope, he means it:

Let there be no mistake and no misunderstanding. Intellectual property is an integral part of the US economy. We're speaking of the spark of genius and the ideas behind transformative inventions, the artistry that goes into books, music and film. The trade secrets that preserve a company's market edge. Or the brands that distinguish our companies and their goods and services.

Already, he's making the cardinal sin of talking about intellectual property that we were just discussing: conflating the "property" piece with the underlying aspect of it. The spark of genius is not intellectual property. The ideas are not intellectual property. The artistry is not intellectual property. The brands are not intellectual property. The specific copyright, patents and trademarks may be property-like entities, but those are not the same thing as the underlying content, inventions or brands. As we noted in our piece about confusing those things, when you do that, your policy suggestions are going to be really, really bad. And you're going to make really silly statements like Marti does next:

Intellectual property helps create marketplaces that help drive economies, domestically and internationally. For example, the "core copyright industries" -- those whose primary purpose is to create, produce, distribute, or exhibit copyrighted materials -- added more than $1 trillion to gross domestic product and created and supported millions of jobs.

That's not true. We've gone through these numbers in the past, and shown how they're simply misleading and no one should be using them to make a serious point. They very broadly define the "core copyright industries" such that any industry that gets copyrights is determined to exist only because of copyright law. And that includes software firms that thrive on giving away services for free and that don't actually rely on their copyrights for anything. Besides, if you want to compare apples to apples, the IIPA who does the study that Marti is relying on, has shown that the "core copyright industry" isn't contributing nearly as much to the economy or economic growth as the internet economy is, and the internet economy is frequently held back by bad copyright laws.

Intellectual property-based industries are among the U.S.'s strongest exporters.

Well, sure, that's true if you argue that any company with a brand is an "intellectual property-based business," but that kind of thinking takes you down the path of arguing that grocery stores are an intellectual property miracle that only exist thanks to trademark law. And that's plainly ridiculous.

Overall, IP industries accounted for over 60% -- Six Zero -- of US exports.

Yes, but no one actually believes any of that is because of intellectual property laws, unless you conflate those laws with the underlying things, like brands.

The recorded music, motion picture, television and video, and software publishing businesses, for example, contributed to sales in foreign markets exceeding $156 billion dollars.

And how much of that is because of copyright law -- and how much of it is because it's content that people find valuable enough to purchase? Marti just ignores the distinction and lumps it all in because of copyright. Also, note, for someone who claims he's focused entirely on being the "creative conscience," his actual focus appears to be almost entirely on the commercial side of the creative ledger.

That is why it's so important to understand and protect IP, to foster legitimate trade, and to open foreign markets to US creative content.

That last one is a "I work for the President and need to give my shout out to the TPP and TTIP agreements" talking point. But, really, what did he say before that shows why it's "so important to understand and protect IP"? Frankly, I don't see anything. He talked a lot about big numbers, but nowhere did he show why strong intellectual property laws made those things possible. And nowhere did he consider that, maybe (just maybe) weaker IP laws may have actually enabled larger markets, or more creativity. That kind of thinking doesn't even enter the equation, which is kind of odd if you're positioning yourself as the "creative conscience."

Does he consider how strong copyright is being used to ban books, steal money from artists, shut down innovative services for creators and expose critics? Does he consider how strong patent laws are being used to stifle innovation and make the technology that creators use much more expensive? What kind of "creative conscience" is he?

Does he mention the importance of fair use in enabling creativity? Is he at all concerned about the lack of fair use in these trade agreements that supposedly will "open foreign markets" while stifling free expression?

Without understanding these things, for him to just automatically leap to the claim that we have to "protect" the existing system, it's difficult to take Marti seriously. He appears to be repeating talking points with no understanding at all of the underlying nuances.

The timing of today's event is fitting. Sunday is World Intellectual Property Day -- a global celebration of the role of intellectual property, of innovation, of creativity, in our daily lives.

Is it? Really? No, "World Intellectual Property Day" is a celebration of the legacy gatekeepers that take the copyrights of actual creative people, and push for expanding those laws with no thoughts towards the actual impact on creativity. And the creativity "in our daily lives" is frequently done without the use of intellectual property laws -- and, all too frequently, conflicts with those laws.

This year's theme is "Get Up, Stand Up. For Music" invoking Bob Marley and Peter Tosh's tune, to illustrate how song can serve as a call to action.... Bob Marley's song serves as an endearing, international anthem for human rights. Let us tap into this spirit, this call to action, to speak up for artistic communities, the world over.

Right. Like, remember that time that Bob Marley's family tried to reclaim the copyrights to two of his albums, including "Burnin'" where "Get Up, Stand Up" first was released? And remember how Universal Music fought that and won, so that Universal Music got to keep the copyright, as opposed to the Marley family? Thank goodness Universal still holds the copyright, or perhaps they would have had to pay Marley's family for the right to use that theme for this year's "World Intellectual Property Day," right?

Yes, ladies and gentlemen, Danny Marti is the US's "creative conscience"... for the giant multinational corporations against the actual creative folks out there. And, really, whose brilliant idea was it to use Jamaican music as a call for stronger IP laws -- when anyone even remotely familiar with the history of popular Jamaican music, knows that it involved rampant copying and remixing of others' songs, no concern about copyright at all (until foreign record labels jumped in and started divvying up the pie) and near endless creativity from that ability to remix and try new things. That's not exactly a ringing endorsement for stronger copyright laws.

And, again, if we're speaking up for "artistic communities, the world over," how about those who are being blocked from creating new works due to overbearing copyright laws? How about those who are being sued for having a song that has a similar feel to another song? Do they count?

Let us stand up for art. Let us stand up for the artist. Let us stand up to respect the artist's right to make a living off of his or her artistic labor.

Yes, unless you're Bob Marley's family. Then let us stand up for Universal Music's right to go to court to block the Marley family from that right! Or, unless you're a remix artist creating wonderful new songs by building on the works of the past.

Also, where in the constitution does it say that anyone has a "right to make a living off of his or her artistic labor?" I have many friends who "labor" quite hard in making music, but don't make livings from it. Should I send them to Marti to solve that? Will he "marshal the federal government" to make sure they make a living?

Because this is another nefarious myth. You have no "right" to make a living from your labor. People might just not value it enough to pay for it. Or you might not be offering it in a format that people will pay. What about my friends who were journalists over at GigaOm, which recently went out of business? They were creating many written words, and laboring very hard at it. But the company went out of business. But if we believe they have "a right to make a living" from their creative labor, shouldn't they be guaranteed a living? Everyone knows that's crazy. So why do we repeat the myth when it comes to music? Most musicians -- in fact, nearly every musician -- has never "made a living" off of their music. Only a very few have. And it's not because they had a "right" to make a living.

And let us stand up to forcefully reject those who believe that the theft of one's creative output is somehow acceptable. It is not.

Of course, we're back to the misleading use of "theft." Do we consider what UMG did to Bob Marley's estate "theft"? Someone should ask Marti. Does he consider Pharrell and Robin Thicke writing a song with a similar "feel" to a Marvin Gaye song as "theft"? Does he consider a woman posting a 30-second video of her child dancing to a Prince song "theft"? Does he consider artists like Kutiman as theft? Does he consider artists like Led Zeppelin and Bob Dylan -- many of whose greatest works where near note-for-note replicas of others' songs -- engaged in theft?

Because any honest discussion of creativity and intellectual property laws has to be able to take into account all of these situations, and the word "theft" doesn't really cut it -- which is also why that's not what the law says. You'd think that the guy whose role is to help enforce the law would understand that copying a song isn't "theft." It's worrisome that he does not.

When we speak of the role of creativity in our lives, we're also speaking about human expression, building communities. The sharing of stories -- whether through print, music or film -- brings people together, fosters discussion, builds bridges and helps create common identity.

Of course, if that "discussion" or "common identity" strays too far, such as in creating a derivative work, that may be seen as infringement (or in Marti's world "theft") and thus he will "marshal the forces of the federal government" to bring you down. All in an effort to protect the glorious markets of the creative conscience.

Our digital lives have only helped to accelerate these discussions, bringing people together and bringing their stories closer.

And, because of that, the US government has been actively shutting down websites where those discussions happen and pushing for laws to throw the operators of the websites in jail.

And in order to further that, we must strive to build not only an open internet, but a safe, secure and stable one.

In other words, not really an open internet. But one that is limited and controlled by multinational gatekeepers. Either way... I feel that we're rapidly approaching the administration's favorite buzzword. I know it's coming, I just know it... and...

One way the administration is seeking to do just that is by fostering multistakeholder processes in which all participants in the ecosystem -- government, the private sector, and civil society -- can play a role in encouraging positive internet behavior and marginalizing anti-social and, indeed, criminal behavior.

Multistakeholder! Bingo! What do I win? Oh, someone now arguing that rather than encouraging freedom of expression and an open internet, we should try to look for ways to stamp out "anti-social behavior" online. Hmm. Anti-social behavior? Wouldn't that bar songs like "Get Up, Stand Up" that could be seen as "anti-social" in encouraging the public to stand up for their own rights when they are being taken away from them by their government? Rights like freedom of expression?

Protecting and advancing a community starts with action by its members. We need to stand up for what is good and reject what is unfair.

I think freedom of expression is good. I think shutting down websites that were blogging about music is unfair. I think that supporting programs for site blocking, that take down free speech, is unfair. I think a system that prioritizes the ability of large multinationals to block innovation is "unfair." Yet, these all seem to be things that IPEC supports.

Stakeholder responsibility will create an environment conducive to creativity.

Let me translate this for you: "Search engines should start censoring sites that the MPAA dubs "unfair" because they challenge the MPAA's business model."

It will benefit those who make a living producing creative works.

Unless, like Dan Bull (who makes his living producing creative works), you relied on sites like Megaupload to distribute those works and the US government shut it down.

It will benefit those who enjoy those works.

Unless you no longer have access to them, thanks to US courts censoring them.

Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. This bears repeating. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity.

How? This is a serious question, but I'd like someone to answer it, because history doesn't come even remotely close to supporting that claim as can be seen by Marti's next ridiculous statement:

The desire to tell stories to even wider audiences in even more vivid ways, has a long chain of technological innovation, creating new industries along the way. From printing, to radio, to film and television, and now, of course, the internet economy.

And each and every single one of those was decried initially by the legacy forces -- the gatekeepers who controlled the previous industries. The printing press was in a time before copyright, but obviously shook the very foundations of society by helping to break it out from Church control. The radio resulted in a massive legal fight as the record labels tried to kill it in its early days. The film industry moved to Hollywood to avoid enforcement of the patents of Thomas Edison, and often relied on copyrighting the innovations of others in the industry. When television came along, the film industry also freaked out and tried to hamper it -- especially innovations like the VCR. And, of course, the internet. We've had lawsuits against search engines, video platforms, MP3 players, book indexes and more. If we "respected" IP in the terms of the legacy gatekeepers, we'd have none of those innovations.

Look, I get it: Marti's very job description basically says that he needs to take on the role of propping up the interests of the legacy gatekeepers. But, at the very least, his predecessor, Victoria Espinel, seemed willing to recognize that there was a lot more to what was going on than the one-sided version of history presented by those gatekeepers. Espinel was at least open to the idea that too much IP could create more problems than good things. Marti shows no sign of this recognition, and seems so thoroughly bought into a single world view of intellectual property that he didn't even realize just how ridiculous it was for anyone in the "intellectual property" world to cite Bob Marley as a good example of supporting creators.

So go on, Marti, "Get Up, Stand Up!" but recognize that what you're standing up for, is not for the "creative conscience" or for creators themselves, but those who seek to be gatekeepers on that creativity.

Filed Under: copyrights, creative conscience, danny marti, intellectual property, ip czar, ipec, patents, protectionism, trademarks
Companies: microsoft, mpaa

Chris Dodd Implies US Gov't Should Go After Wikileaks For Publishing Leaked Sony Emails

from the that-pesky-first-amendment dept

Variety has a report on the talk that MPAA boss Chris Dodd gave at CinemaCon, in which he appears to at least imply that the federal government should go after Wikileaks for publishing an archive of the leaked emails from Sony Pictures:

He did condemn WikiLeaks’ decision last week to publish a searchable list of the Sony materials, calling it “terribly wrong” and serving “no public purpose.” Dodd noted that many of the emails are from low-level employees who have a right to privacy.

Dodd said that the U.S. government was in the best position to try to go after the website not the trade organization he runs. In the case of the WikiLeaks situation, he praised Sony officials for being “highly responsive” in communicating with the proper authorities.

This is the same Chris Dodd who (before he worked for the MPAA) once gave a rousing speech at Google (of all places) in which he urged them to take a stronger stand against censorship and not giving in to government demands to block content.

Tell the Chinese government that Google.cn will no longer censor information with Google's consent. And should the Chinese government not find that acceptable, then Google.cn would shut down its operations. I understand that you've already moved all of your search records out of China, to prevent them from being turned over to the Chinese government. But what better way to affirm Google's commitment to the free flow of information as a human right, than to send this message to a nation with the largest population in the world?

But now, when a site is revealing some rather newsworthy leaked emails from Sony, Chris Dodd (MPAA version) wants the US government to throw the book at them and try to censor them. In that Google speech, Dodd said:

One way we respond to change, in my view, is to stand up, and to stand up for our principles, which do not change.

Apparently, your principles do change when the MPAA pays you over $3 million per year. I'm sure Dodd sleeps well at night with that money as a cushion, but I do wonder how he reconciles the fact that he sold out his principles.

Filed Under: chris dodd, free speech, sony emails, sony hack
Companies: mpaa, sony, wikileaks

MPAA Strategized On How To 'Tell The Positive Side' Of Internet Censorship

from the incredible dept

Back in December, when the Sony emails first leaked, we wrote a detailed post about the bizarre views of the MPAA on site blocking, in that it was absolutely obsessed with putting site blocking in place while admitting it didn't understand the technical issues. That was based on the reporting done by some reporters who had seen a few of the emails. Now that Wikileaks has released the entire trove, we can discover some more details, like the fact that part of the MPAA's plan was to figure out how to create pro-censorship propaganda. It really is incredible, but that's a bulletpoint in an email from the MPAA's top lawyer, Steven Fabrizio, about part of the strategy at a "site blocking confab" the major studios held last fall:

Outreach to academics, think tanks and other third parties to foster the publication of research papers, white papers and other articles that tell the positive story of site blocking: e.g., it is commonplace around the world and working smoothly; it has not broken the internet; it is not incompatible with DNSSEC; it is effective; legitimate sites/content have not been blocked; etc.

Think about that for a second. The MPAA, which likes to declare itself one of the foremost defenders of free speech, was literally conspiring on how to create propaganda in favor of censorship, pointing to countries that already censor the web as "good examples" to follow. You'd think they would have learned from the time Bono tried to use China's censorship as an example of how to deal with copyright infringement what a ridiculous idea this is.

Filed Under: censorship, mpaa, positive side, propaganda, site blocking
Companies: mpaa

MPAA Pirated Clips From Google Commercials To Make Its Own MPAA Propaganda Videos

from the can't-make-this-stuff-up dept

And here's another one from the Sony archives, this time noticed by Parker Higgins. It involves an email thread between Sony TV's Chief Marketing Officer Sheraton Kalouria and the company's top intellectual property lawyer Leah Weil (with top TV exec Steve Mosko included in the cc: field). In the email, they're discussing a new "reputational initiative" by the MPAA. From other emails, it appears that the MPAA finally realized that its reputation was toxic, and figured that rather than, maybe, figuring out why that is, it would put together a marketing campaign to improve the public's view of the MPAA. Here were the four goals of the campaign:

• Fill the knowledge gap about our industry
• Change consumer perceptions
• Claim our rightful position as innovators
• Reframe our consumer message in a positive tone

I note that "stop suing our customers and biggest fans" and "stop trying to censor parts of the web or destroy innovations that challenge our business model" didn't make the list. That's too bad, as either of those steps might actually, you know, help improve the MPAA's reputation.

But the really amazing thing about the campaign? Apparently at least some of the video involved unauthroized copying of content from... Google. The same Google that the MPAA and studios had dubbed "Goliath" and who they were hell bent on destroying because of the misleading belief that Google helped people infringe on their copyrights. Here was Kalouria's email to Weil:

Also, I was somewhat horrified that their creative shop used footage from Google commercials in their “Swipe-o-matic”. I kid you not…some of those scenes of people being “moved” by movies are from a current Google campaign...!

Weil only responded with a single word:

Yikes!!!

Yes. If you've been following along with the home game, you know that the MPAA is really, really against copyright infringement (or at least that's what it would have you believe). And it believes that Google is the single-biggest problem in the copyright world these days. And yet, when it's time for the MPAA to put together some of its own propaganda to put some spit and polish on its down in the dumps reputation, what does it do? Make use of Google's footage and pretend that the people being "moved" are actually being moved by the MPAA's movies.

Apparently, infringing on the works of others is okay for the MPAA when it does it itself. And that's leaving out the extreme irony of using Google's ad footage as well. It's unclear if this MPAA film ever saw the light of day, but it would be fascinating to see if anyone has it...

Filed Under: copying, copyright, leah weil, reputation, sheraton kalouria, sony emails, sony hack
Companies: google, mpaa, sony

MPAA's Chris Dodd Tells Each Movie Studio To Donate $40k To Rep. Goodlatte's Election Campaign

from the look-at-that... dept

As you may recall, at the height of the SOPA fight fallout, MPAA boss Chris Dodd went on television and threatened to stop funding the politicians who didn't support the MPAA's copyright agenda:

"Those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake. Don't ask me to write a check for you when you think your job is at risk and then don't pay any attention to me when my job is at stake."

Given that statement, this little tidbit from the Sony email archives is interesting. It's Chris Dodd more or less demanding that all of the member studios donate $40,000 to Rep. Bob Goodlatte's re-election campaign. As you may know, Goodlatte is the head of the Judiciary Committee in the House of Representatives, and copyright falls under that committee. Even more to the point, despite the fact that there's an "Intellectual Property Subcommittee" (headed by Rep. Darrell Issa), Goodlatte has made it clear that copyright reform remains under his own personal mandate. In this email, Dodd notes that Goodlatte is coming to LA and there's a fundraiser -- and he asks each of the member studios to see if they can put together $40,000 for Goodlatte's campaign:

Subject: Goodlatte Victory Committee

As you know, for a number of months we have been discussing the political event that Chairman Goodlatte has asked our industry to host in Los Angeles. The event has now been scheduled for November 22. A copy of the invitation is attached. The Goodlatte staff is currently securing a location and I will send that information as soon as it is confirmed.

The event will be in support of the Joint Committee established by the Congressman called the “Goodlatte Victory Committee.” This event is important and in the best interests of our industry.

A number of you have had an opportunity to speak directly with the Chairman in the past few months, and I know you share my view that he is a good man and we are fortunate to have him at the helm of the House Judiciary Committee for the foreseeable future.

TIME IS OF THE ESSENCE and it is now incumbent upon us to work together to make this event a success. I need each of you to commit to attending the event and I would request that each studio raise $40,000 for the Victory Committee at this event.

So, please confirm that you plan to attend on the 22nd in Los Angeles, and that you will meet the per studio target of $40,000. It is incredibly important, in my view, that this event be a success and that we have a broad representation of studio executives in attendance. I will reach out to you later this week, but look forward to hearing from you in the meantime.

Best,

Chris

Now, to be clear, this sort of thing happens all the time. It's more a function of how money in politics works today. It wouldn't surprise me to find out that plenty of other companies in other industries do the same sort of thing -- though, generally speaking, it would be done by the companies themselves, not at the direction of a trade organization. Still, it's a bit of insight into how the process works that I figured some of you might find rather revealing.

Filed Under: bob goodlatte, chris dodd, congress, copyright, copyright reform, fundraising, hollywood, money in politics, political donations
Companies: mpaa

Chris Dodd's Email Reveals What MPAA Really Thinks Of Fair Use: 'Extremely Controversial'

from the oh-really-now? dept

Two years ago, we were among those who noted how odd it was to see the MPAA in court arguing in favor of fair use, since the MPAA tends to argue against fair use quite frequently. The legal geniuses at the MPAA felt hurt by our post and some of the other news coverage on the issue, and put out a blog post claiming that the MPAA and its members actually love fair use. According to that post, the MPAA's members "rely on the fair use doctrine every day" and the idea that it "opposes" fair use is "simply false, a notion that doesn't survive even a casual encounter with the facts."

Now, as you may have heard, Wikileaks has put the leaked Sony emails online for everyone to search through for themselves. I imagine that there will be a variety of new stories coming out of this trove of information, now that it's widely available, rather than limited to the small group who got the initial email dumps. In digging through the emails, one interesting one popped up. It's Chris Dodd revealing the MPAA's true view on "fair use" in an email to Michael Froman, the US Trade Rep in charge of negotiating agreements like the Trans Pacific Partnership (TPP) agreement and the Transatlantic Trade & Investment Partnership (TTIP).

You see, about a year ago, Froman gave a speech where he made a very brief mention of the importance of fair use, and how, for the first time, the USTR would be including fair use in agreements. Here's what Froman said:

And, for the first time in any trade agreement, we are asking our trading partners to secure robust balance in their copyright systems – an unprecedented move that draws directly on U.S. copyright exceptions and limitations, including fair use for important purposes such as scholarship, criticism, news commentary, teaching, and research.

Nothing major. Nothing controversial. In fact, as we've pointed out, the actual text in the various leaks of the TPP show that while it is true that the USTR has, for the first time, mentioned concepts related to fair use, it has only done so in a manner that would limit how fair use could be implemented.

And that brings us to Dodd's email to Froman, in which he reveals that, contrary to the MPAA's "we love fair use" claim in its public blog post, the MPAA is actually quite fearful of fair use and the idea that it might spread outside of the US to other countries:

Dear Ambassador Froman:

I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements’ copyright provisions were unbalanced and that USTR has addressed this lack of balance by including “fair use” in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement.

As I know you are aware, the inclusion of “fair use” in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry.

It may be that people are reacting to the subsequent press releases by private groups following your remarks. I am certain these concerns have been elevated by indications from the US government that the ISP liability provisions in the TPP are going to be weakened. Nonetheless, this issue is of enough significance that I felt I must reach out to you directly prior to your departure for Singapore to register our deep concerns.

I am hopeful that I can report back to my members that that US trade policy has not changed, that USTR is committed to securing strong copyright provisions in the TPP. But, there is no question Wednesday’s speech is reverberating in the content community, and I would be remiss if I failed to raise these concerns to you personally. I would be very grateful if you would respond to these concerns at your earliest convenience. I realize you will be traveling, but this is a sense of urgency surrounding our concerns.

Regards,

Christopher J. Dodd
Motion Picture Association of America

So, the MPAA loves fair use... but the very idea that the USTR might include fair use in a trade agreement (as it had announced years earlier, and which it is doing in very limited -- and limiting -- ways) is "controversial and divisive"? All the way to the point that the MPAA is concerned about whether it can still support the effort? That does not sound like an organization that really does support fair use at all. In fact, it sounds like an organization that actively does "oppose" fair use, contrary to the claims in its blog post. Funny how the MPAA's public statements appear to completely disagree with what it says directly to politicians, huh?

Filed Under: balance, ben sheffner, chris dodd, copyright, fair use, michael froman, tpp, trade agreements
Companies: mpaa

MPAA Abusing DMCA Takedowns To Attempt A Poor Man's SOPA

from the good-luck-with-that dept

The old guard in Hollywood, so frightened of an internet they don't understand, tends to be rather transparently buffoonish in its strategies to try to break the internet. For a few years, the MPAA was totally focused on a "three strikes" strategy -- believing that if people were getting kicked off the internet, that it would lead them to stop file sharing and go back to paying large sums of money for bad movies. That plan failed miserably. The followup idea was even worse: known as full site blocking, the idea was to convince countries to pass laws that would force ISPs, search engines, domain registrars and others to completely block access not just to infringing content, but to entire sites that the legacy copyright industries deemed "bad."

This was always problematic on a few different levels. First, the entertainment industry has a rather horrible track record of declaring some new innovation "bad" and "illegal" when it shows up on the scene, only much later realizing that the "bad" or "illegal" thing is actually exactly what consumers are looking for. In the past, the industry has attacked radio, television, the VCR, the photocopier, the DVR, the MP3 player and YouTube (among many other things). Giving Hollywood a full on veto for any new technology, before it's had a chance to grow, thrive and show how useful it can be, seems like a great way to kill off innovation. Yet, that's what Hollywood wants. Second, the concept of site blocking itself is incompatible with some of the very fundamentals of the internet. It breaks DNS, it creates big security problems, and it has tremendous collateral damage (not that Hollywood gives a shit about that).

The original site blocking plan was to pass SOPA in the US, which had site blocking provisions. It was seen as a slam dunk easy win by Hollywood, until suddenly, it wasn't (thanks to the internet speaking up loudly). But, similar strategies have worked better in other countries, as courts have often ordered ISPs to block certain sites, often with little review and almost no due process. Yet, as we discovered thanks to the Sony Hack last year, the MPAA is still 100% focused on figuring out ways to implement full site blocking, even as its internal discussion admits it has no idea about the technological feasibility of it. Instead, it's pushing on a few different fronts, from trying to get states Attorneys General involved to abusing the process at the International Trade Commission to "block" sites "at the border."

However, it appears that the latest strategy is just to file a bunch of bogus DMCA takedown notices to Google on the top level domain, rather than on specific content. It's no secret that the MPAA has been asking Google to implement full site blocking for quite some time -- even though doing so wouldn't actually help (because instead of the sites, you'd just get people telling you how to get to those sites or you'd get even sketchier sites). TorrentFreak noticed that the MPAA issued a bunch of questionable DMCA notices on top level domains recently, nearly all of which Google rightly rejected. The law is pretty clear that you have to be identifying the specific work to be taken down, rather than just generally pointing to a site.

The MPAA knows this, which makes the sending of a bunch of top level domains... bizarre. (TorrentFreak also points out that the MPAA may have even sent its own mpaa.org domain in a DMCA notice, but there's a decent chance that that's just someone playing a prank). The decision to file such clearly bogus DMCA notices, from an organization that is so totally focused on site blocking and which has large groups of lawyers looking for every angle to bring in full site blocking... suggests that this isn't just the MPAA getting lazy. Instead, it may be part of a plan to try to set up a test case, in which the MPAA sues over getting Google to remove an entire domain, based solely on a takedown (or series of takedowns) on that top level domain. If so, that would be an astoundingly stupid ploy -- one that the MPAA would have a high likelihood of losing. But perhaps desperate times at the MPAA call for desperate measures. Of course, we're still wondering when the folks over at the MPAA will get desperate enough to focus on giving people what they want, rather than treating them all as criminals.

Filed Under: censorship, copyright, dmca, full site blocking, site blocking, sopa, takedowns, urls
Companies: google, mpaa