MPAA Knows It Doesn't Understand SOPA-Style Site Blocking, But Has Decided It's The Answer

from the really,-guys? dept

While I still think the biggest story to come out of the Sony hacks is the fact that the MPAA had a plan to fund investigations of Google by public officials to get negotiating leverage over the company, a lot of other interesting tidbits have been revealed as well, including the fact that the MPAA still really, really believes in the idea of site blocking. It has listed it as a "high priority" item that was discussed in a recent anti-piracy strategy meeting bringing together the top lawyers from most of the major Hollywood studios: As the TorrentFreak article above notes, the MPAA laid out a four prong approach to force site-blocking on the US. The Verge recently posted an MPAA email that described at least some of the strategy as well:

We have traditionally thought of site blocking in the US as a DMCA 512(j) issue. In some ways, that is too narrow and we plan to expand our scope of inquiry on two levels. First, DMCA 512(j), by its terms, necessarily creates an adversarial relationship with the target ISP (and more generally with the ISP community). We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement. This may open up avenues for cooperative arrangements with ISPs. Second, we start from the premise that site blocking is a means to an end (the end being effective measures by ISPs to prevent infringement through notorious pirate sites). There may be other equally effective measures ISPs can take, and that they might be more willing to take voluntarily. Our intention is to work with our own retained experts and Comcast (and MPAA’s Technology group) to identify and study these other possibilities, as well as US site blocking technical issues.

The MPAA is right that 512(j) is likely a dead end. In fact, a legal analysis done by the MPAA's lawyers at Jenner & Block (the MPAA's preferred legal hatchet men) details why. The "All Writs Act" approach is nutty, and would lead to significant push back from a variety of parties (we just recently noted that the DOJ has been trying to use the All Writs Act to get companies to help decrypt encrypted phones). There would undoubtedly be a big legal fight over any such attempt. Other plans, like using the ITC or the Communications Act would also run into problems.

In fact, The Verge also just published some internal legal analysis from Jenner & Block explaining why the ITC route is really risky and unlikely to work, whether targeting transit ISPs (Level3, Cogent, etc...) or access ISPs (Verizon, Comcast, AT&T, etc...). Amusingly, the "alternative" to SOPA that was pushed out by some anti-SOPA folks in Congress actually would have made the ITC route more feasible, but the MPAA was among its loudest critics. And yet now suddenly it's exploring the ITC path? Ha!

Either way, the most insane part of all of this is the fact that, nearly three years after SOPA, the MPAA more or less admits in an email that it hasn't really analyzed the technological impact of site blocking (which was a key component of SOPA) and feels like maybe it should get on it. From the email sent by MPAA General Counsel Steven Fabrizio:

Technical Analyses. Very little systematic work has been completed to understand the technical issues related to site blocking in the US and/or alternative measures IPSs might adopt. We will identify and retain a consulting technical expert to work with us to study these issues. In this context, we will explore which options might lead ISPs to cooperate with us.

Talk about putting the anti-piracy cart before the internet horse...

Meanwhile, the MPAA -- recognizing the shit storm created by SOPA -- has made sure that all of its site blocking efforts are to remain as quiet as possible (oops):

Be cautious about communications on site-blocking—continue building a record of success where possible, but avoid over-communicating and drawing negative attention.... Where site-blocking is actively under consideration, make available research (1) that site-blocking works and (2) that it does not break the Internet (lack of "side effects"). [Do this] in closed-door meetings with policymakers and stakeholders, [but] not necessarily publicized to a wider audience.

Yes, make sure people think site blocking "works" even though the MPAA doesn't have the requisite technical knowledge to understand it. So, in the interest of open source research, I'm going to help the MPAA out a bit and explain to them why site blocking is stupid and massively counterproductive. I mean, they could just look at what's happened in the past few weeks since The Pirate Bay went down, leading tons of other sites to pop up and (as reported in Variety -- normally a keen source of spinning in favor of the studios) the actual impact on infringement online was basically nil.

But, let's take this a step further. Let's say... for example, that the MPAA succeeded in having certain "evil" sites blocked. Thankfully, at about the same time as these meetings were going on, the MPAA also gave Congress a list of the sites it considered "notorious." Let's take one -- how about torrentz.eu -- and do a basic Google Search showing what results would come up if Goliath Google were forced not to link to the site (which is slightly different from site blocking, but the MPAA is also talking about similar efforts to get full domains "removed" from Google as an alternative to site blocking -- and the end results would be pretty much the same thing). Take a look: If you can't see it, it's basically a bunch of links to pages listing out where you can go instead of that particular site. In short, site blocking is stupid. It won't actually cut down on any infringing activity, and it's easily gotten around, whether by VPNs or just by doing a rather basic search. Now, of course, the MPAA and its friends would likely still blame Google for this state of affairs, but I'm curious how the MPAA contends that Google should return results on such a site if it's been blocked or removed from search? How could it possibly also block out links to sites that list alternatives? Or is part of the plan to expand the censorship all the way down the pile so that any site that even mentions sites that the MPAA declares "notorious" also need to be blocked? Because if that's the case, they're going to run into a pretty massive First Amendment question before long.

The problem -- as always -- is that the MPAA still thinks that the public is stupid, and that if they can successfully "block" sites that people will stop looking for alternatives. The reality is that the way to get people to stop looking for unauthorized alternatives is to make better authorized alternatives -- but that's clearly still not a priority for the MPAA. And that's a real shame.

And none of this even touches on the problems with false positives (something that's already happened a bunch) or how site blocking might seriously screw up certain security setups, like DNSSEC (something the MPAA was clearly warned about during the SOPA fight, but which it still seems to deny is a real problem). In fact, during a recent secret "Site Blocking" meeting by the MPAA, it still appears to mock the idea that site blocking would break the internet by messing up DNSSEC. That's because the MPAA still doesn't seem to fundamentally understand the issues at play. If they actually talked to some real engineers at ISPs, maybe they'd learn that this whole infatuation is misguided and won't work.

In short, the MPAA sees site blocking as a priority because it doesn't understand the first thing about site blocking and why it would fail -- and that's speaking legally, technically and using just basic common sense. So why is the MPAA so focused on that, rather than actually innovating and adapting? This is what happens when you put a bunch of litigators, rather than innovators, in charge.

Filed Under: all writs act, circumvention, dns, dnssec, itc, site blocking, sopa, steven fabrizio, whole domain removal
Companies: mpaa

Leaked Emails Reveal MPAA Plans To Pay Elected Officials To Attack Google

from the holy-fuck dept

Okay, it's no secret that the MPAA hates Google. It doesn't take a psychology expert to figure that out. But in the last few days, some of the leaks from the Sony Pictures hack have revealed the depths of that hatred, raising serious questions about how the MPAA abuses the legal process in corrupt and dangerous ways. The most serious charge -- unfortunately completely buried by this report at The Verge -- is that it appears the MPAA and the major Hollywood studios directly funded various state Attorneys General in their efforts to attack and shame Google. Think about that for a second.

There's a lot of background here that's important (beyond just the MPAA really hates Google). First, as you know, the MPAA has certainly not given up on its SOPA desire to get certain websites completely blocked. The leaked emails reveal a lot more about that (which we'll get to). Second, a year ago, the MPAA hired a pitbull of an anti-piracy lawyer in naming Steve Fabrizio its General Counsel. Fabrizio has spent the last decade and a half or so deeply involved in litigating a bunch of anti-piracy battles at both the RIAA and the MPAA/RIAA's favorite big law firm, Jenner & Block. This is not a guy you hire if you're looking to innovate. This is a guy you hire if you want to get into knock-down, dirty legal fights.

Third, there is the role of state Attorneys General. A recent NY Times article detailed how lobbyists have figured out ways to effectively "lobby" state Attorneys General to do their bidding. Frequently, this is around getting the state AGs to drop investigations (and potential lawsuits) against companies. The article is somewhat eye-opening, as it's hard to distinguish much of what's discussed from straight up bribery. There is talk of lavish events, travel and dinners all paid for by corporate lobbyists for state AGs, often followed soon after with dropped, or reduced investigations. In one case, an AG told staff not to start an investigation into a public company without first getting his approval. Campaign funding is a big part of it as well, as these lobbyists dump lots of money into AG campaigns. And it's no secret that the state Attorney General position is often seen as a stepping stone to a Governorship or US Senate job.

We've discussed in the past that state Attorneys General are often the biggest grandstanders, as their main goal in certain investigations seems to be about generating headlines for themselves, rather than any real legal basis. More than four years ago, we wrote about Topix CEO Chris Tolles' experience being hounded by state Attorneys' General so they could get a bunch of headlines out of something in which everyone admitted Topix wasn't actually doing anything illegal. Along those lines, we've noted that popular tech companies have increasingly been a target for state AGs -- because they're almost sure to generate headlines. We've also noted that state AGs have been pushing for changes to federal laws, like Section 230 of the CDA, to allow them to further go after big tech companies for things like actions of their users.

Not surprisingly, Google has been a popular target for some state AGs. In the past, we've written about state Attorneys General from Nebraska and Oklahoma blaming Google for videos made by users, and about Texas' Attorney General going after Google for supposed antitrust violations (based on the same claims that the FTC later dropped entirely). But the state Attorney General with the biggest chip on his shoulder for Google has absolutely been Mississippi Attorney General Jim Hood, who seemed to think that it was Google's fault that he could find counterfeit goods via search. A few months later, he was back blaming Google for infringement online as well.

This was no accident. What's come out of the Sony Pictures Leak is not just that the MPAA was buddying up to state Attorneys General, but that the MPAA was funding some of this activity and actively supporting the investigation. The leaked emails reveal that rather than seeing that NY Times article about corporate/AG corruption as a warning sign, the MPAA viewed it as a playbook. But not for preventing investigations but for encouraging and funding them. This appears to go way beyond that NY Times article. This isn't campaign donations or inviting AGs to speak at lavish events and paying for the travel. This is flat out paying AGs to investigate Google (even on issues unrelated to copyright infringement) and then promising to get extra press attention to those articles.

Here's the Verge's summary of a key email (which the Verge doesn't even seem to realize why it's so damning):

May 8, 2014: Fabrizio to group. "We’ve had success to date in motivating the AGs; however as they approach the CID phase, the AGs will need greater levels of legal support." He outlines two options, ranging from $585,000 to $1.175 million, which includes legal support for AGs (through Jenner) and optional investigation and analysis of ("ammunition / evidence against") Goliath. Both options include at least $85,000 for communication (e.g. "Respond to / rebut Goliath's public advocacy, amplify negative Goliath news, [and] seed media stories based on investigation and AG actions.").

"Goliath" is the MPAA's rather transparent "codename" for Google. CID stands for a "civil investigative demand" -- which is a form of an administrative subpoena, demanding information from a company, related to an investigation.

What seems to come out from these emails is that the MPAA, in coordination with the major Hollywood studios, agreed to willfully pay tons of money indirectly to state AGs (and Hood in particular) to get them to investigate Google (using the time and labor of the MPAA's favorite law firm -- and the one that Fabrizio just left). That goes way beyond anything discussed in that NY Times articles, and certainly smacks of serious illegality. It's difficult to see how this isn't bribing a public official to attack a company they dislike.

Not only that, but it shows that the MPAA and the studios were aware of Hood's plans well before they happened, suggesting that he or his office has been coordinating with Hollywood on their plans and that the specific CIDs are actually written by the MPAA's lawyers themselves:

A report from the previous February suggests that the Goliath group drafted civil investigative demands (similar to a subpoena) to be issued by the attorneys general. "Some subset of AGs (3-5, but Hood alone if necessary) should move toward issuing CIDs before mid-May," the email says.

And, more recent emails (from just in October) show that they know that another CID is apparently coming and that the MPAA intends to use that CID for negotiating leverage against Google. This follows a claim that Google was pissed off at the MPAA for mocking its recent search algorithm changes to further push down sites that may link to infringing materials (it's not like we didn't warn everyone that the MPAA wouldn't be satisfied with Google's changes). Either way, the MPAA's Fabrizio brushes off concerns that Google has, telling the studios not to worry, that Google should be more willing to talk after Hood sends out his next CID:

After a dispute over Google’s most recent anti-piracy measures in October, Fabrizio suggested further action may be yet to come. "We believe Google is overreacting — and dramatically so. Their reaction seems tactical (or childish)," the email reads. "Following the issuance of the CID [civil investigative demand] by [Mississippi attorney general Jim] Hood (which may create yet another uproar by Google), we may be in a position for more serious discussions with Google."

While the Verge report is focused on the "sexy" topic of the MPAA having an "anti-Google' (er... "Goliath") working group, the real story here is that it appears that this infatuation with taking down Google has extended to funding state politicians in their investigations and attacks on Google, even when it's on totally unrelated issues (the initial CID was about counterfeit drugs -- which is an issue that the MPAA likes to mock Google over by totally misrepresenting some actual, but historical, bad behavior).

And beyond that, the MPAA is showing that part of its plan is to fund "media stories based on" the Attorneys General investigations. Remember, so much AG activity these days is driven by what's going to get them into the headlines. Setting aside nearly $100,000 from the MPAA to get a state AG some headlines for an investigation paid for by the MPAA, using administrative subpoenas written by the MPAA... all designed to attack a company they don't like (which actually has done pretty much exactly what they'd been asking for in downranking sites that lead to infringing works), is really stunning.

I get that it's natural to dislike a company or organization that has undermined your business model. It happens. But there are different ways to respond to it. One is to innovate and compete. Another is to use the legal process to throw hurdles in their path. This is the distinction between "market entrepreneurs" and "political entrepreneurs" that Andy Kessler has described. What the MPAA appears to have done in the last few months, however, certainly suggests that the organization, with the help of the major studios, went beyond just lobbying and political pressure, to actually funding elected officials to try to attack a company they didn't like. And, at the very least, this also has to raise serious questions about Mississippi Attorney General Jim Hood and who he takes orders from. Is he really "protecting" the people of Mississippi? Or is he focused on gobbling up Hollywood's money and promotion?

Filed Under: corruption, emails, hack, jim hood, lobbying, state attorneys general, steve fabrizio
Companies: google, mpaa, sony

Actors Unions Come Out In Support Of Separate Actors Copyright To Support Innocence Of Muslims Actress

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

We've been covering the Garcia v. Google case for a while. What started out as a crazy case that pretty much everyone assumed was destined to go nowhere got weird in a hurry earlier this year when Judge Alex Kozinski upended decades of settled copyright law by deciding that an actor or actress might have a separate copyright interest in his or her performance in a film. The case involved Cindy Lee Garcia, an actress who was pretty clearly duped into performing in a video which became known as "Innocence of Muslims," a 13-minute film (which was called a trailer, though it's unclear if a full movie was ever actually planned or exists) that became quite controversial (and was, probably incorrectly, blamed for violence in the Middle East). Garcia was reasonably upset about her role in the film, and sought to have the entire thing pulled offline. She tried a few different ideas before settling on copyright, which made no sense at all, because actors and actresses are not considered to have a copyright in their own performance (remember, the copyright is in the "fixing" of the work).

When the original ruling came out, we noted it was a rare case where both Google and the MPAA might actually agree on a copyright issue, but it was not to be. The MPAA has completely sat out this ordeal, preferring to let others handle it. We've heard from multiple sources that the MPAA decided not to get involved because they didn't want to make any statements that could be seen as challenging WIPO's Beijing Treaty from a couple of years ago that tried to establish a new "audiovisual right" for actors, related to copyright.

Of course, while the MPAA is sitting it out, it appears that actors are not. Instead, they've actually decided to side with Garcia now that the 9th Circuit has finally decided to rehear the case, with a full (en banc) slate of judges. A bunch of amicus briefs have been filed (including one by us), in support of the fairly basic points that (1) no, actors don't have their own copyright in their performances and (2) blaming intermediaries is both against Congress' intentions and a very, very bad idea.

However, the single amicus brief on the other side, in support of Garcia comes from a variety of actors unions, led by the Screen Actors Guild and Actors Equity, claiming that Garcia's version is dead on. It's interesting to note that included in the brief is also the American Federation of Musicians, suggesting that a ruling on this matter could go well beyond just actors. Still, the actors' brief here pulls off an amusing balancing act of claiming that of course an actor can and should have a separate copyright interest, but that issue will almost never come up (other than, say, the present case).

The question at issue here is whether an actor’s performance in a motion picture can be an original work of authorship and, if so, whether the actor can hold a copyright, separate from the copyright in the whole motion picture. For the reasons described herein, the answer to both questions is yes, although the occasions on which this arises will be extraordinarily rare and completely outside the custom and practice of the audiovisual industry of the United States and many other countries.

The basic argument is that actors add a lot of their own creativity to a role. No one denies this. But they then take it further in arguing that originality automatically should lead to copyrightability. That's the nonsensical part. For example, the following paragraph makes no sense at all:

If an actor did not add sufficient originality to a performance, which actor a studio hired simply would not matter. The Academy Awards, Golden Globes, and Emmy acting categories and the Screen Actors Guild Awards would have no relevance. But it is indisputable that is not true; clearly actors are valued for their performance and the originality they bring to their respective roles. The actor imbues the lines with original expression that conveys emotion and brings the character to life.

No one denies that actors can add originality to a performance. But originality alone does not mean something is covered by copyright.

Separately, the actors' brief argues that Garcia's work was substantial enough to be covered by copyright, but again, the reasoning is suspect. They challenge the idea that her 5 seconds on screen is too short to be covered by copyright, because the filmmaker recorded a lot more. But that makes no sense, because the copyright claim is in the recording that Garcia wants taken down, not on everything he possibly recorded.

Google and its supporters argue, in part, that Garcia’s performance comprises approximately five (5) seconds of a larger motion picture and, therefore, is not worthy of protection. However, this ignores the fact that her entire performance was substantially longer, edited by Nakoula into what has been called a “trailer” for a larger motion picture. According to Garcia’s Complaint, her performance was spread over five (5) full and one partial script pages. First Amended Complaint, Exhibit A. A general rule of thumb provides that each script page represents approximately one (1) minute of screen time.... Additionally, Ms. Garcia worked for three and one-half days, indicative of more than five seconds of footage. Declaration of Cindy Lee Garcia.... Accordingly, while Nakoula may have used only a few seconds of Garcia’s performance, the full performance may not have been so de minimis as to be unprotected.

But, uh, the claim is only on the part that is shown online, because that's the basis for the takedown request. All of the rest of her performance is totally irrelevant here, because that's not what's claimed to be infringing. The only issue here was the clip on YouTube, which included merely 5 seconds of Garcia's time.

Finally, the actors insist that this issue will rarely come up in other circumstances because most "real" videos are made by sophisticated parties (i.e., MPAA studios) who contractually stamp out the possibility of something like this. Except, of course, more and more video works are not made in this manner. But the actors brush it off, claiming that all those other things, the piffle on YouTube and in reality TV doesn't matter because, tsk tsk, that stuff can't possibly be creative enough for copyright:

We appreciate that Google and some amici may be concerned that user generated content (“UGC”), documentaries, reality shows, game shows and news programs may not consistently adhere to well-established customs and practices of the audiovisual industry. However, programming that relies heavily on unscripted interviews and similar contributions will not be impacted by acknowledging copyrights in performers’ creative contributions because such contributions will typically lack the requisite “modicum” of creativity required to be considered an “original work of authorship.”

Got that? Short works, of 5 seconds or less absolutely are creative works deserving of copyright... unless they're "user generated content or reality TV. Notice the actors' biases seeping in? "Professional actors" deserve copyright, and forget everyone else.

The actors also brush aside any concern that new takedown requests from actors will burden tech companies, because apparently, if Google can handle it, so can the rest of the tech industry.

On the technology side, Google responds to tens of millions of copyright takedown requests on a monthly basis and has deployed a sophisticated, automated system to detect and take down infringing material from YouTube. While the number of takedown requests directed to its YouTube service is not publicly available, Google does report figures related to its other services. For example, in the past 30 days ending December 5, 2014, Google’s search engine received and responded to nearly 36 million take-down notices; the company has received and responded to as many as 11 million take-down requests in one week for its search engine.

Yeah, that's Google. Think of the startups that can't process that kind of takedown request volume. The actors do not think about that at all. Hopefully, the court sees through these weak arguments next week when it hears the case.

Filed Under: actors, alex kozinski, cindy garcia, cindy lee garcia, copyright, innocence of muslims
Companies: google, mpaa, sag, sag-aftra

IFC Center Rejects MPAA's 'R' Rating On Snowden Documentary, Says It Should Be 'Essential Viewing'

from the informed-citizenry dept

Many people still have no idea that the MPAA "rating system" for movies is a totally voluntary system. Any official system like that would be unconstitutional as a violation of the First Amendment (which is why a legal attempt to rate video games got killed by the Supreme Court). It's pretty rare for theaters to ignore MPAA ratings -- though it does very rarely happen. Back in 2012, we noted that AMC theaters defied the MPAA by letting students see the documentary Bully, even though the MPAA wanted to rate it as "R" (which restricts anyone 17 and under from seeing the film without an adult).

Now, IFC Center (a major independent theater in New York) has decided to defy the MPAA's ridiculous rating system again -- for the documentary on Ed Snowden by Laura Poitras, Citizenfour. Tommy Collison on Twitter drew our attention to this after posting a photograph of the sign posted to the window of the theater: IFC has a bit more detail on its own website, noting that the theater believes that the MPAA is wrong in how it chose to rate both Citizenfour and the Richard Linklater film Boyhood, saying that it "feels that both films are appropriate viewing for mature adolescents" and will let them in accordingly.

The absolute ridiculousness of the MPAA's rating system is well documented. It's done in secret, using standards that make no sense, and are often broken for no clear reason. More than a couple of curses will get you an "R" even though plenty of sexual content is fine. If you giggle about marijuana? That's an R rating. The members of the rating board aren't known, and even though the MPAA insists they match a certain profile, investigations have shown that the MPAA frequently breaks its own rules for members of the panel. The ratings board regularly screws over indie filmmakers. If you really want to know how ridiculous the system is, just watch the documentary, This Film Is Not Yet Rated, which was in fact given a rating by the MPAA: an NC-17 rating, normally reserved for things like porn (which, yes, is in the film, but only to show what types of content get an NC-17 rating).

It's great to see at least some theaters standing up to this sort of ridiculousness -- and hopefully more will follow suit.

Filed Under: boyhood, citizenfour, ed snowden, laura poitras, movie ratings, ratings, richard linklater, voluntary
Companies: ifc, mpaa

MPAA And Movie Theaters Issue A Complete Ban On Google Glass, Because They 'Have A Long History Of Welcoming Tech Advances'

from the welcoming?-we-meant-hating dept

There are days when you wonder what life must be like as a PR person for the MPAA. I mean, it must take an extraordinary amount of either cognitive dissonance or will power to avoid bursting out laughing at writing the opening sentence like the following in an announcement about how the MPAA and the National Association of Theater Owners (NATO) are colluding to ban technologies like Google Glass:

The National Association of Theatre Owners (NATO) and the Motion Picture Association of America (MPAA) have a long history of welcoming technological advances and recognize the strong consumer interest in smart phones and wearable “intelligent” devices. As part of our continued efforts to ensure movies are not recorded in theaters, however, we maintain a zero-tolerance policy toward using any recording device while movies are being shown. As has been our long-standing policy, all phones must be silenced and other recording devices, including wearable devices, must be turned off and put away at show time. Individuals who fail or refuse to put the recording devices away may be asked to leave. If theater managers have indications that illegal recording activity is taking place, they will alert law enforcement authorities when appropriate, who will determine what further action should be taken.

This is the same MPAA that tried to sue the VCR out of existence. This is the same MPAA has tried to block things like "day and date" releases so that movies might be released to home viewers more conveniently. This is the same MPAA that sued a variety of file sharing properties out of existence. This is the same MPAA that was the main backer of SOPA, a copyright bill that would have significantly hindered security on the internet. This is the same MPAA whose prominent member, Viacom, engaged in a years-long legal fight with YouTube. Yeah, it has a history of "welcoming technological advances"? I don't think so.

This particular policy is not too surprising. After all, the company did summon Homeland Security to interrogate a guy for deciding to wear his Google Glass (while it was turned off) during a movie. For groups so welcoming to new technology, they don't seem to recognize that Google Glass has terrible resolution and battery life and would be a really dumb choice for someone to use to record a movie (not the least of which is because when the video is recording there's a bright LED light shining from the device, making it easy to spot).

Of course, they're coming out with this policy after basically Google Glass has become a dead product. It didn't catch on, and it's not clear that Google is even taking it that seriously any more. There are others attempting similar things, but, really, at this point the MPAA seems to be barring a technology that was never a serious threat in the first place for no good reason. Because it's so "welcoming" of new technologies.

Next time, MPAA PR person, why not just be honest for a change. Here's the announcement translated for accuracy:

The National Association of Theatre Owners (NATO) and the Motion Picture Association of America (MPAA) have a long history of trying to stop any even remotely innovative new consumer technology that challenges our existing business models. As part of our completely wasteful and pointless effort to stop file sharing of movies, we have a zero-tolerance policy that makes us look clueless and out of date, by doing things like having young people arrested for capturing a few seconds of a movie as part of a birthday celebration. As part of this long standing "screw the customer for no good reason" policy, all devices that might possibly record just seconds of a movie in terrible quality must be shut off. Frankly, if we could, we'd force everyone to dump them in a bin before going into the theater, but even we think you'd probably revolt at that step. Individuals who have basic common sense will be asked to leave and everyone will be reminded that maybe, just maybe, instead of paying $12 for a movie in a crappy theater, they'd be better off at home, futzing around on the internet. But, don't worry, we're looking for ways to make that illegal too.

Filed Under: film recording, google glass, movie theaters, movies, wearables, zero tolerance
Companies: mpaa, nato

MPAA Tries To Ignore The Fact That The Study It Paid For Reveals Very Few Top Films Are Available On Netflix

from the missing-the-point dept

One of the key points that many people have been making for decades is that copyright infringement likely wouldn't be such a big problem if they actually made works more available in convenient and reasonable ways. This was never an excuse for infringement, but an explanation and a suggestion on ways to minimize the amount of infringement happening. For the past few years, the big legacy copyright holders have been trying to spin things, claiming that they've made stuff "available," and since there's still "infringement" they obviously need new laws to better "protect" their works. They're basically claiming that because the works are now available in some format, the whole "availability" argument is debunked. Except, of course, they're ignoring the full equation. It's not just about making it available, but making it convenient and reasonably available. Instead, the MPAA frequently touts annoying and inconvenient offerings no one uses, claiming disingenuously that this proves the availability argument is untrue.

The latest is that NBC Universal (the driving force behind many MPAA efforts) has commissioned a study from KPMG on the availability of film and TV titles. The clever folks at KPMG have hidden the important factors in the aggregate stats, looking at a big list of 34 services, and saying that as long as a film or TV title are available on one of them, it's "available." But this conveniently buries the more important stat, dug out by TorrentFreak, that the study actually shows over 80% of top film titles are not available on Netflix, which is, by far, the most popular streaming movie service.

Rather than admit this, of course, the MPAA instead has decided to trumpet its friends' misleading coverage of the misleading report (pretty sure nearly everyone in its list has received money from the MPAA). Many of the MPAA's friends insist, incorrectly, that the report shows that these films are widely available, rather than admit the truth -- which is that they're narrowly available, often in inconvenient ways, separated from how people want to watch (and pay for!) those films.

It would be nice if the MPAA were legitimately interested in reducing infringement by improving innovation and allowing more services to flourish. But it has yet to show any honest intentions on that front, preferring bogus and misleading reports like this one.

Filed Under: accessibility, conveniences, copyright, movies, streaming
Companies: kpmg, mpaa, nbc universal, netflix

Revolving Door: Main Architect Of PIPA (Senate Version Of SOPA) Now... Lobbying For The MPAA

from the just-swings-around-and-around-and-around dept

A couple of years ago, we wrote about an interview with disgraced lobbyist Jack Abramoff, in which he explained one of his most effective strategies in getting legislation in his favor. The key trick: find key staffers working for elected officials and tell them they had a job waiting for them whenever they wanted it. Here was the key bit:

And he would ask them: "When do you want to start?" If they said "two years," he knew that the guy was already working for him, but on the inside. As he says "I really hired him that day," even though he went on for two more years working as a chief-of-staff to someone in Congress.

Just yesterday, we wrote about Rep. Howard Berman -- famous for his support of ever expanding copyright law -- who has now been hired to lobby for the MPAA. Berman, the former Congressman, is obviously the headline piece. But, along with that news came some further news that didn't get as much attention -- which is that in hiring the firm that Berman works for, Covington & Burling, the MPAA didn't just hire Berman, but also Aaron Cooper, who was Senator Patrick Leahy's chief intellectual property staffer, and the main guy behind the PROTECT IP Act (PIPA), the Senate's version of SOPA.

The MPAA, of course, was the main driving lobbying force (along with the US Chamber of Commerce) to get SOPA/PIPA approved. And here we are, just a couple of years later, and the Congressional staffer who was the main internal architect of that bill is... now officially paid by the MPAA. The old "revolving door" continues to swing round and round. Jack Abramoff would be proud.

Filed Under: aaron cooper, howard berman, lobbying, pipa, protect ip, revolving door, senate judiciary committee, sopa
Companies: covington & burling, mpaa

Former 'Representative From Disney' Howard Berman Makes It Official: Starts Lobbying For Hollywood

from the hollywood-howard-gets-his-payday dept

For years, Hollywood's biggest player in Congress when it came to copyright policy was Rep. Howard Berman. He was often referred to as the Representative from Disney for his willingness to always push for more expansive copyright policies. While he was sometimes called the Rep from Hollywood, I believe his actual district was "adjacent to" Hollywood, though it "included parts of" Hollywood as well. Either way, in 2012, thanks to redistricting, Berman went up against another longterm LA Representative, Brad Sherman, and lost. Berman quickly became a lobbyist, and now it's come out that he's officially lobbying for the MPAA on "issues related to intellectual property protection" because of course he is. Not much else to say about this other than it's yet another example of the revolving door and the nature of back-scratching that happens in DC.

Filed Under: congress, howard berman, lobbying, revolving door
Companies: mpaa

MPAA Stretches DMCA To Breaking Point With Questionable Take Down Request For Popcorn Time Repositories

from the stretch-stretch-stretching-the-law dept

Torrentfreak has a story about how the MPAA has pulled various Popcorn Time repositories off of Github via a fairly incredible takedown notice. As you likely know, Popcorn Time is the open source project that some anonymous programmers put together a while back, which puts an apparently amazingly user-friendly interface on a program allowing users to watch all kinds of video online. Of course, many of the videos available via Popcorn Time are not online as authorized versions, but rather unauthorized versions, meaning that the use of Popcorn Time to watch those videos is often infringing someone's copyright. I've never used Popcorn Time, but I've heard from a few people who say it's so good that they find it much more convenient and easy to use than things like Netflix.

The original developers gave up the project after it got lots of attention (both the good and bad kinds), but as an open source project, others have picked it up. The MPAA has basically been playing a big game of whac-a-mole every time a new group picks up the Popcorn Time code. Frequently, those targeted by the MPAA have been scared off and abandoned whatever version they were working on, but there were always more to step in and try again. However, this latest strategy goes a bit further: going to Github to take down the repositories. Reading the MPAA's actual letter is worthwhile. It's a borderline DMCA notice, because they probably realize they can't file a true DMCA notice here, because they have no copyright over the code, which would be required for a DMCA takedown notice. Instead, it seems to be acting like a DMCA notice to try to either trick GitHub into taking down the works anyway, or to hope that it can just convince GitHub to side with them. At worst, it could be argued that the MPAA is reinterpreting the DMCA to try to make it an even more dangerous weapon to flat out censor technology rather than infringement.

Dear GitHub Inc:

The Motion Picture Association of America, Inc. (“MPAA”) represents each of the major motion picture studios in the United States, specifically, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc., Walt Disney Studios Motion Pictures, and their respective affiliates (collectively, the “MPAA Member Studios”), which own or control exclusive rights under copyright in and to a vast number of motion pictures and television shows worldwide.

We are writing to notify you of, and request your assistance in addressing the extensive copyright infringement of motion pictures and television shows that is occurring by virtue of the operation and further development of the GitHub projects Popcorn Time, and Time4Popcorn (the “Projects”).

See the "notify you of, and request your assistance in addressing the extensive copyright infringement of motion pictures and television shows..." It's not a direct takedown notice. Rather it's requesting assistance. That same sort of language continues throughout:

Attached as Exhibit A is a series of screenshots taken from within the applications of each Project that includes images of copyrighted works available through the Projects. The representative titles shown in Exhibit A consist of only some of the motion pictures and television programs that are owned or controlled by the MPAA Member Studios and that are being infringed via the Projects. Exhibit A is provided as a representative sample of the infringements being committed as a result of the operation of the Projects and to demonstrate the readily apparent nature of the massive infringement occurring via the Projects. The list is not intended to suggest that the identified infringements are the only ones occurring via the Projects. Having been informed, through the representative examples, of the nature and scope of infringements occurring through the Projects, we hope that you will act appropriately to address all infringement by the Projects, not merely the identified representative examples.

Exhibit A, moreover, merely provides concrete examples of what is obvious from even a cursory review of the Projects. The Projects blatantly infringe the MPAA Member Studios’ copyrights and countless other copyrights. Indeed, copyright infringement is so prevalent within the Projects that infringement plainly is their predominant use and purpose.

Of course, all of that same content is equally available in any browser, but I don't see the MPAA asking Github to remove repositories of regular every day web browsers. From there, the MPAA sort of makes it a DMCA takedown notice with the following paragraph:

By this notification, we are asking for your immediate assistance in stopping your users’ unauthorized activity. Specifically, we request that you remove or disable access to the infringing Projects’ repositories and all related forks in accordance with either 17 U.S.C. § 512(c)(3)(A)(ii) (DMCA “representative list” provision), 17 U.S.C. § 512(i)(1)(A) (DMCA “repeat infringer” provision), and/or GitHub’s Terms of Service, which prohibits use of your facilities for copyright infringement, see https://help.github.com/articles/github-terms-of-service. Moreover, the Projects in question host software that is distributed and used to infringe on the MPAA Member Studios’ copyrights. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913, 940 n.13 (2005) (“the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe”).

We are providing this notice based on our good faith belief that the use of motion pictures and television programs owned by the MPAA Member Studios in the manner occurring via the Projects is not authorized by the copyright owners, their agents, or the law. The information in this notification is accurate and, under penalty of perjury, we are authorized to act on behalf of the MPAA Member Studios, which own or control exclusive rights under copyright that are being infringed in the manner described herein. This letter is without prejudice to the rights and remedies of the MPAA Member Studios and their affiliates, all of which are expressly reserved.

So, yes, there they do cite the DMCA, and try to make it seem like a DMCA notice, but it's not clear they can really legitimately make those claims. Again, they're not claiming that there's any direct infringement going on here, which is really necessary. Instead, they're trying to stretch the DMCA to mean that a third party hosting company could be forced to take down a third party bit of software that might be used (or even is often used) to infringe. That's... a stretch. It's basically implying that GitHub itself might face liability by adding a tertiary level of liability to the Popcorn Time app under the Grokster inducement theory. It's a unique interpretation of the law, which some are already pointing out would make a fascinating law school question.

In short, the MPAA is effectively implying that rather than using the DMCA to take down infringement, it might be able to use the DMCA to take down projects that might be used to infringe. That's a big stretch, but expect to see more of that.

Of course, it's doubtful that any of that would actually do anything to, you know, slow down the continued growth and development of Popcorn Time, but the MPAA is never above continually trying to stretch copyright law to do its bidding. That it could spend some more time understanding why so many people like the Popcorn Time app and figuring out ways to help create better overall experiences for end users apparently never occurs to the lawyers at the MPAA.

Filed Under: dmca, intermediary liability, liability, popcorn time, takedown
Companies: github, mpaa

How The Copyright Wars Have Harmed Privacy And A Free Press

from the direct-sharing-files-is-hard dept

Parker Higgins has a great opinion piece over at Wired, which is ostensibly about the recent release of OnionShare, a tool for sharing large documents directly and securely between two individuals, but which looks deeper into the question of why we're in 2014 and sharing such large files directly without intermediaries is such a challenge. And, as Higgins notes, a big part of that goes right back to... the copyright wars.

Groups like the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and others that make up the copyright lobby have actively campaigned against the kinds of tools that address these aims.

OnionShare creates direct connections between users, making it an example of peer-to-peer network architecture. The copyright lobby’s got a long history with peer-to-peer: at least since Napster emerged a decade and a half ago, corporate copyright holders have endeavored to destroy examples of the tech. We live today with the disastrous results.

After 15 years of being attacked, villainized, and litigated over, peer-to-peer programs and protocols have become a hard sell for investment and development. And as centralized products have gotten a lion’s share of the attention, their usability and market share have increased as well.

The simple fact is that the fight to protect one business model (out of many possible business models) for the entertainment industry, has clearly had a pretty big negative impact on the development of new tools and services that would lead to greater privacy and security (and a more functioning free press):

The qualities that the copyright lobby dislike about peer-to-peer are precisely the ones that make it a powerful choice for defenders of press freedom and personal privacy. Namely, peer-to-peer offers no convenient mechanism for centralized surveillance or censorship. By design, there’s usually no middleman that can easily record metadata about transfers—who uploaded and downloaded what, when, and from where—or block those transfers.

So, if you're concerned about how much metadata the NSA is scooping up from online services, you have the MPAA and RIAA and its legal fights partially to blame for that. In demonizing distributed, private peer-to-peer applications and protocols, we've been driven increasingly to more centralized offerings. As Higgins further highlights, the third party doctrine, giving less privacy to information held by third parties, makes this situation even worse.

The distinction is further reflected in the U.S. legal system, which often offers data that goes through a third party reduced protection. That premise, the “third party doctrine,” is badly out-of-date, and produces counter-intuitive results in an era where the location of data storage is otherwise abstracted away. Already one Supreme Court Justice, Sonia Sotomayor, has called for reconsidering it. But as long as the third party doctrine exists, architectures like peer-to-peer that allow for direct communication, broadly speaking, provide more privacy protection against invasive government requests.

In short, you have the government wanting to get more access to information, and it can do that on centralized systems -- and combine that with the RIAA/MPAAs of the world fighting to either outlaw or diminish investment in more decentralized systems, and you have a recipe for easy mass surveillance. A decentralized world is important for the internet to work correctly, but we've been increasingly pushed away from that.

The good news is that with all the discussions of surveillance lately, a renewed push is being made for more decentralized systems. The success of decentralized cryptocurrencies like Bitcoin is also helping things along the way. And there are a large number of other projects that are each trying to tackle different aspects of more centralized systems. Hopefully, they won't be deterred by litigation spats focused on just preserving a particular business model as well.

Filed Under: copyright, file sharing, free press, onionshare, peer to peer, person to person, privacy, technology
Companies: mpaa, riaa