RIAA: We Must Take A Shoot First, Ask Questions Later Approach To Censorship

from the really,-mitch? dept

Whaddaya know. Mitch Glazier (the man who tried to keep artists from regaining their own copyrights), the number two guy at the RIAA, has decided to speak out against the OPEN bill -- the alternative to SOPA/PIPA that has been proposed by Senator Ron Wyden and Rep. Darrell Issa. We've discussed some concerns about this alternative, but it's much, much better than the horror that is SOPA/PIPA. But Glazier's specific reasoning for being against OPEN really is quite stunning and shows the RIAA mentality on this is: any bill must be about censor first, ask questions later.

Specifically, he uses the example of the ongoing ITC case filed against Apple & RIM by Kodak to explain why OPEN is no good. His particular concern is the length of time it's taking the ITC to rule on the case:

The U.S. International Trade Commission (ITC) recently reported that it will delay ruling on an important patent infringement claim brought by well-known camera company Kodak against smartphone makers Apple and Research In Motion (RIM).  The case, originally filed in January 2010, now anticipates a ruling in September 2012. The delay now means that the ITC will have taken 33 months to decide on a high-stakes and time-sensitive issue.  So this is the “expedited” process SOPA opponents are embracing as an alternative in the proposed OPEN bill?

This is both disingenuous and obnoxious at the same time. First of all, as Glazier must know, but apparently is too intellectually dishonest to admit, a patent case involves some very different issues, involving some pretty specific efforts around figuring out exactly what a patent really covers. You don't have to deal with "claim construction" in a copyright case. But in a patent dispute -- in a federal court or at the ITC -- there's a big, long, complicated claim construction process to determine the actual boundaries of what's covered in a patent. Then there's the process (somewhat complicated) of figuring out if the products in question actually do infringe on the patent.

Copyright is different than patents. And while there does need to be a careful analysis of whether or not a copyright is infringed, the process is very different than with patents, and can absolutely be expedited, if need be.

Why in the world would we shift enforcement against these sites from the Department of Justice and others who are well-versed in these issues to the ITC, which focuses on patents and clearly does not operate on the short time frame necessary to be effective? In addition, the remedy traditionally offered by the ITC – an exclusion order to prevent foreign criminals from accessing the US market – is precluded under the OPEN Act.

Oh really? This would be the same "well-versed" experts at the DOJ who have been censoring multiple websites on no legal basis for over a year? The same "well-versed" experts at the DOJ who finally had to give back Dajaz1.com after an entire year in which it refused any and all due process?

I'm sorry, but I think there's more than enough evidence that the DOJ isn't that "well-versed" in these issues, and that when it acts in a "short time frame" it makes significant and serious mistakes. Similarly, where was that vaunted "short time frame" when it came time to admit that it totally screwed up and seized and censored a blog without legal basis? It took Dajaz1 over a year to get its domain name back, despite no legal action being taken against it. Multiple other sites are still being held. So, forgive me for questioning (1) if the DOJ is really that well-versed, (2) really should be operating on such a "short time frame" or (3) really does operate on such a "short time frame" when it comes to admitting it screwed up. And, the story of Dajaz1 seems like a pretty damn perfect example of why "an exclusion order" is a dangerous remedy. When you screw it up, you make a serious mess of things.

Realistically, what Glazier is making clear here, is that the RIAA wants a "censor first, ask questions later" approach to any site it doesn't like, no matter how legal it might actually be. That's scary. As the Dajaz1 case pretty clearly demonstrated, the damage such an approach creates is something we should all be against. Look, censoring a website is not something that should be done lightly. If we're going to have such a remedy in the law, it should be a slow process that takes time to review to make sure mistakes aren't made. Unfortunately, the current law and the laws that the RIAA wants appear to take the opposite approach: censor first, then take your damn sweet time in ever reviewing those censor orders.

Filed Under: censorship, copyright, free speech, itc, mitch glazier, open
Companies: riaa

Senator Wyden Demands Answers About Feds' Seizure Of Dajaz1

from the you-thought-it-was-going-away? dept

If the feds thought that they could seize the Dajaz1.com blog, hold it for a year in secret, then return it and pretend nothing really happened... it appears they may be in for a bit of a surprise. Senator Ron Wyden has begun his investigation into the matter, sending detailed requests for information from Attorney General Eric Holder, ICE director John Morton and White House IP Czar Victoria Espinel. You can see the three letters embedded below. There are a lot of questions to each of them, with a big focus on who they were talking to about the seizures (e.g., the RIAA) and what they were saying. They also ask questions about the legal basis for the seizures and even the training and procedures involved. I'll certainly be interested to see the replies when they come in...

Filed Under: constitution, doj, domain seizures, due process, eric holder, fifth amendment, first amendment, free speech, ice, john morton, operation in our sites, prior restraint, ron wyden, victoria espinel
Companies: dajaz1, riaa

RIAA's Response To Infringement Via Its IP Address... Is To Note Someone Else Did It

from the where-have-we-heard-that-before? dept

Oh this one just gets better and better. Remember how the YouHaveDownloaded system was used to pinpoint infringement done via an RIAA IP address (among other interesting places)? Well, now the RIAA is using the "someone else did it" defense. According to CNET:

RIAA spokesman Jonathan Lamy had an explanation for that that implies that a third-party vendor was responsible for the downloads. "Those partial IP addresses are similar to block addresses assigned to RIAA. However, those addresses are used by a third party vendor to serve up our public Web site," he said. "As I said earlier, they are not used by RIAA staff to access the Internet."

However, as TorrentFreak points out in response, Lamy is lying (shocker). Those addresses are not "similar" to RIAA addresses, they belong to the RIAA.

Now, of course, it's possible some other vendor was using them, but this seems rather ironic, coming from the RIAA, who has insisted for years that IP addresses are sufficient to accurately determine who is responsible for infringement. Apparently it works for everyone... but the RIAA.

Filed Under: evidence, ip addresses
Companies: riaa

Do We Really Want To Hand Over Control Of The Internet To A Group That Sued A Dead Grandmother

from the just-saying dept

Via Julian Sanchez, we get the best-titled story we've seen yet concerning SOPA. Written by Kevin Fogarty at ITWorld, it reads:

Best idea of 2011: Give control of Internet content to group that sued a dead grandmother

It's a must read, highlighting the insanity of SOPA -- while also being pretty funny:

Supporters aren't willing to talk compromise, claim not clamping down on speech as well as piracy will "crush" artists and other creators of content, and appear, with good evidence, to be doing the bidding of SOPA's financial backers, who no interest in the public good and a bottomless reservoir of shameless self-interest they believe is more important than the liberties protected by the First, Fourth and Fifth Amendments.

On the positive side, that's not even a third of the Bill of Rights, so accusations that SOPA supporters are willing to crush the Constitution to line their own pockets are clearly exaggerated by at least seven Rights.

Elsewhere, it describes, quite accurately, that this is about control and misplaced blame:

The RIAA and the intent of SOPA itself stems from an irrational rage that the world has changed and unquestioned belief that the change is the fault of the industry's customers, who should be made to pay for the self-inflicted misfortunes of the record industry....

So…how do you feel about giving the same people the power to command that agents of federal law enforcement agencies give up on drug runners, kidnappers, terrorists and spies in order to shut down web sites and confiscate domains for simply being accused of having offended members of a group willing to sue a dead grandmother and grill a 10-year-old girl to discover who from outside the house was spoofing her address in order to download a song 10-year-old girls don't listen to, at an hour they're not generally awake?

We're seeing more and more widespread recognition of what a joke SOPA and PIPA are... but with it, we're hearing people believe that the bill is so crazy that there's no way it can pass. Unfortunately, nothing is further from the truth. Inside the beltway, where common sense goes to die, the thinking remains that these bills have a pretty easy path to becoming law. And that's what should scare you most of all.

Filed Under: copyright, dead grandmothers, pipa, protect ip, sopa
Companies: mpaa, riaa

RIAA Whines That Google Won't Let It Program Google's Search Algorithm

from the it-must-be-easy-when-you-see-the-world-that-way dept

There's been some discussion about the RIAA's ridiculous report card on Google's "progress" in dealing with infringement. Remember, a year ago, Google promised to take steps to appease the RIAA, even though it wasn't required to under the law. Both Ars Technica and TorrentFreak have good coverage of the ridiculousness of the report card, but I wanted to dive into a few of the specific claims, which just seem laughable. Let's start with the really ridiculous claim that Google isn't doing enough to remove search terms from "autocomplete." As we noted at the time of Google's announcement, this seemed silly and pointless. How would you figure out what words to choose? For example, 10 years ago, the industry would be upset about mp3 -- but now everyone sells unencrypted mp3s. And, indeed, the RIAA seems to believe that certain words that aren't illegal should be associated with infringement:

Autocomplete still suggests terms associated with piracy when a user is searching for a piece of music or a movie. For example, when “lady gaga mp3” is typed into the search bar, autocomplete directs a user to choose “lady gaga mp3 free” or “lady gaga mp3 download,”

Now that's interesting. I didn't realize that "free" and "download" were illegal terms. Especially since Lady Gaga and her manager have both expressed interest in giving away her music for free. It seems that the RIAA's real complaint is that the end result of the searches still points people to some sites that offer infringing works. But that's a totally different complaint. Google could censor the words "free" and "download" and within hours people involved in infringement would come up with alternative words.

The RIAA then goes totally off the rails, insisting that Google needs to pre-screen every mobile app for Android. Sure, Apple does this, but it's why there are so many complaints from iPhone developers. The whole point of Google's more open system is to allow more open innovation. We recognize that anything "open" is horrific to RIAA-types, but for those of us who recognize how innovation works, we'd prefer that Google continue to allow such innovation, rather than putting up a big wall just because the RIAA is too clueless to adapt. It's ridiculously presumptive for the RIAA to presume that it has the right to dictate a big part of Google's setup just to please the RIAA.

Finally, the RIAA whines that Google won't listen to its own suggestions for how Google's algorithm should work.

We don’t understand why Google can’t take delisting notices for a site into account in determining rankings if it uses this information in its other copyright policy activities.

Funny, but I also don't think that the RIAA listens to Google's suggestions on how their labels should sign bands. Why should the RIAA get to determine how Google's algorithm should work?

In the end, this whole thing is a ridiculously obnoxious attempt by the RIAA to pretend that Google "isn't doing enough" when the company already goes significantly beyond what is required under the law (and now generates significant income for the RIAA's labels through things like YouTube's monetization scheme).

Filed Under: copyright, dmca
Companies: google, riaa

USTR Puts Out Its 'Rogue Sites' List... Can't Even Find 20

from the and-for-this-we-need-to-change-the-internet? dept

One of the completely ignored questions in the larger debate over SOPA/PIPA is how big an issue this really is. How many of these dangerous "rogue sites" are there that need to be dealt with? When confronted on the issue, they usually say it's around 50 sites or so. So it seems rather bizarre that we'd want to change the entire legal and technical framework of the internet, along with putting massive compliance costs and liabilities on tech companies who create jobs... just for such a small number of sites. And... it's looking even more ridiculous than before. As you know, every year the USTR comes out with its silly and widely mocked Special 301 report, which takes industry complaints about who's infringing where, rewrites them (with no significant additional investigation) and puts a government seal on top of it. This week, they came out with the "out of cycle" naughty list of evil sites. Again, this involves just asking the big entertainment companies what sites and countries they don't like, and then writing up a report.

So, given a chance to highlight just how "big" a problem this is... all the industry could turn up was 19 specific sites that are rogue sites (well, here they're called "notorious"). To be fair, one of the 19 is "Allofmp3 clones" so that could encompass a few more sites. But, really, if the problem is just dealing with a small number of sites, is that really worth such a massive infrastructure change, since pretty much every technically clueful commentator has noted the massive cost on internet security of using these laws?

Filed Under: rogue sites, special 301, ustr
Companies: mpaa, riaa

Major Labels, RIAA, Homeland Security All Spotted 'Pirating' Works

from the telling dept

Early last week we noted that, using the tool, YouHaveDownloaded, some folks in the Netherlands noticed that the local music collection society appeared to be engaging in infringement. You knew that wasn't where things would end. Soon after that, people spotted infringement emanating from NBC Universal, Sony Pictures and Fox Entertainment -- three of the biggest supporters of ever more draconian copyright law. And, of course, that was just the beginning. The RIAA and Homeland Security have now also been identified. And, no, in most of these cases, it's clearly not just for research purposes or to find infringers. The RIAA, for example, could probably get away with downloading music... but the first five seasons of the TV show, Dexter? That's tougher to believe. The folks at Gizmodo have calculated just how much the RIAA's likely infringement here should cost, using the RIAA's own metric of the maximum statutory rates of $150,000 per infringement... and figured the RIAA owes about $9 million. Somehow I doubt we'll see the RIAA pay up any time soon.

Filed Under: copyright, dhs, infringement, pipa, protect ip, sopa, you have downloaded
Companies: fox entertainment, nbc universal, riaa, sony pictures

UMG, MegaUpload Case Gets Even Stranger; Will.i.am Says He Didn't Authorize A Takedown

from the so-what's-going-on dept

Things keep getting stranger with the legal dispute over the whole Megaupload song. As you may remember, Megaupload hired a bunch of celebrities to say nice things about Megaupload, which the company turned into a song and video. Universal Music flipped its lid and issued a takedown, claiming that there was a performance from singer Gin Wigmore, which they held the copyright on. MegaUpload then sued Universal Music. At the same time, singer will.i.am's lawyer claimed that will.i.am sent a takedown also, saying that the singer had never agreed to the project.

Almost none of this made sense. We'd heard from various sources that Wigmore doesn't even appear in the video at all and had nothing to do with the song. Furthermore, the will.i.am stuff was really confusing. First of all, if he hadn't agreed to this, why did he say things about how wonderful MegaUpload is on video? He must have agreed to do that. Second, even if he didn't agree to it, at best there's a contractual claim there and/or a publicity rights claim. There's simply no copyright claim. His words are not his to copyright, as they're not fixed in any medium. Whoever made the video would hold the copyright -- which, in this case, is MegaUpload. Even more ridiculous was the notion, floated by some in our comments, that will.i.am's contract with Universal grants them automatic copyright, which is why UMG could issue a takedown. Again, this makes no sense for a variety of reasons. First, the same reason as above, without the works being fixed, there's no copyright in those words for will.i.am to assign to Universal. Second, UMG can't claim copyright on everything someone says. Third, even if this preposterous claim was true, will.i.am still would have no right to send a takedown, because he wouldn't own the copyright either. UMG would.

MegaUpload, has now hit back. It notes that Gin Wigmore does not appear in the song, did not write the song, and has absolutely nothing to do with the song. The company had apparently spoken to her about participating, but eventually went with Macy Gray instead. So the claim that this is under UMG copyright because of Wigmore doesn't appear to be true. Furthermore, MegaUpload provided the contract signed by will.i.am (embedded below), allowing them to make use of his words... the company's boss claims that will.i.am personally insists that he did not authorize a takedown. That raises questions about whether or not will.i.am's lawyer was confused or if he was just acting on his own.

"On December 12, 2011, I spoke directly with will.i.am about this issue, and he personally advised me that he absolutely had not authorized the submission of any takedown notice on his behalf."

In the meantime, it looks like the judge is skeptical. Judge Claudia Wilken has given UMG until the end of the day to respond and explain the takedown...

Either way, this is going to remain quite the fascinating case to watch.

Filed Under: copyright, dmca, takedowns, video, will.i.am
Companies: megaupload, riaa, universal music

Megaupload Sues Universal Over Questionable Video Takedown, As Will.i.am Says He Sent Takedown Too

from the this-could-get-interesting dept

Following Megaupload's marketing campaign that involved getting a ton of big name stars (many signed to major record labels) to speak out in support of Megaupload (and then putting those quotes into a song), Universal Music Group started issuing questionable takedowns for the video. We've heard numerous theories as to why UMG might think it can do so, but none seem to hold up to much scrutiny. The music in question is not UMG's.

TorrentFreak reported that MegaUpload is preparing to sue Universal Music for the bogus takedowns, while THResq has the details. You can also see the actual lawsuit here (pdf or embedded below).

Universal is claiming that one of its artists, Gin Wigmore, had unauthorized work appear in the song, though it's unclear where or how. Megaupload continues to insist that it owns all of the music. Where it gets more bizarre is that apparently will.i.am, who appears in the video saying that he uses Megaupload to "send files across the globe" also sent his own takedown:

But we've also learned that Ken Hertz, attorney for Will.I.Am, also filed a takedown request last week with YouTube. What's going on here?

Hertz says that like many of the artists who appear in the video, his client had never consented to the "Megaupload Mega Song."

UMG echoes that sentiment. “This is an on-going dispute that surfaced several weeks ago with respect to the unauthorized use of a performance from one of our artists," a UMG spokesperson tells us. "We heard from a number of our other artists and their representatives who told us they’ve never consented to being portrayed in this video."

Now this is where things get interesting. If this is true, it certainly appears that Hertz is admitting to a bogus takedown. Even assuming that what he states is true -- that will.i.am did not give permission -- that's not a copyright claim. It would be a contractual issue. Furthermore, it seems like a pretty strange claim. It's pretty clear that will.i.am did, in fact, state that he uses Megaupload to send files across the globe. Megaupload insists it has clear contracts with all the artists in question, and I'm sure the details will come out as things move forward, but it still seems like Universal (and, now, will.i.am) have a lot of explaining to do.

And, of course, it seems really bizarre that UMG would think this was a prudent course of action, when the only thing it's really done is driven a hell of a lot more attention to Megaupload. Congrats, UMG, you just spent your efforts increasing the power of Megaupload's marketing campaign.

Filed Under: copyright, dmca, gin wigmore, takedowns, will.i.am
Companies: megaupload, riaa, universal music

Universal Music Issues Questionable Takedown On Megaupload Video That Featured Their Artists [Updated]

from the this-is-going-to-get-interesting dept

As a bunch of you have noticed, the video that we had a couple posts ago, involving a bunch of the RIAA's biggest artists singing or speaking along to a song endorsing MegaUpload (which the RIAA insists is a rogue site) has been... taken down due to a copyright claim from Universal Music. Here's a screenshot: We're hearing a few different stories as to what's going on, but some people are insistent that nothing in the video violates a UMG copyright. We will do an update or do a new post once there's more info, but (of course) trying to censor information online only seems to make it that much more popular. And it appears that the video is already showing up elsewhere. Either way, it's quite a story isn't it? RIAA and Universal Music insist that they're trying to shut down this site "for the artists." Then the artists speak up in support of the site... and Universal Music censors them using the same copyright law they're trying to expand...

Update: TorrentFreak has the response from MegaUpload:

“Those UMG criminals. They are sending illegitimate takedown notices for content they don’t own,” he told us. “Dirty tricks in an effort to stop our massively successful viral campaign.”

So did Universal have any right at all to issue YouTube with a takedown notice? Uncleared samples, anything?

“Mega owns everything in this video. And we have signed agreements with every featured artist for this campaign,” Kim told TorrentFreak.

“UMG did something illegal and unfair by reporting Mega’s content to be infringing. They had no right to do that. We reserve our rights to take legal action. But we like to give them the opportunity to apologize.”

“UMG is such a rogue label,” Kim added, wholly appreciating the irony.

The TorrentFreak has some quotes from some legal experts, pointing out that that is exactly why we don't need things like SOPA and PIPA which would go much further and allow significantly more collateral damage on such bogus takedowns.

Filed Under: artists, censorship, copyright, takedown
Companies: megaupload, riaa, universal music