Viacom, 'Decimated By Piracy,' But Its CEO Got The Biggest Raise Of Any Exec Anywhere

from the just-saying... dept

We keep hearing about how "piracy" and the internet are somehow "destroying" the old legacy content players, but the evidence for that seems lacking.... especially in Hollywood. We already saw how Warner Bros. was cheering on its record-setting quarter, while complaining about how it just can't compete with piracy. And now we've got reader Don, passing along the news that Viacom chief Philippe P. Dauman topped the charts for the exec with the biggest pay raise in 2010. His total pay was $84.5 million last year -- a 148.6% raise on his previous year's take home. Yes, that's a $50 million raise. Admittedly, much of that comes from stock options, but still. Not bad for a company being "decimated" by kids in their basements on the internet, huh? Maybe Viacom was just so sure that it was going to win its $1 billion lawsuit against YouTube that it decided to pre-reward Dauman.

Filed Under: entertainment industry, philippe dauman, piracy
Companies: viacom

Content Industry Insists E-PARASITE Won't Rewrite DMCA, But Co-Author Of The Bill Admits That's The Plan

from the rewriting-the-dmca dept

Defenders of E-PARASITE/SOPA have been going out of their way not just to mischaracterize the arguments against the bill, but now they've reached the point of outright lying. The American Bar Association has an email list for its "IP Section," and recently there was a bit of a debate over E-PARASITE/SOPA, in which the myriad problems and dangers of the bill were put forth. Not one to let an opportunity go by to mislead, Viacom's VP of Intellectual Property and Content Protection, Stanley Pierre-Louis, decided to defend the bill. I'll have more to say about his various points later, but on one key point, he seems to not only be wrong, but at odds with one of the guys who supposedly "wrote" the bill. That is, Pierre-Louis responded to the charges that E-PARASITE is a backdoor to rewriting the important DMCA safe harbors by stating:

The criticism below views SOPA as a “back door” means “with which to bludgeon” innocent site operators by expanding the scope of secondary liability claims and diminishing DMCA protections. Of course, this view largely ignores that SOPA explicitly states that its provisions must not be read to expand or diminish either. And, it doesn’t. The fact that SOPA does not permit sites to take "deliberate actions to avoid confirming a high probability" of infringement merely restates the law as it stands today. There is no rule that permits “willful blindness” of obvious wrongdoing under U.S. law, and nothing in the DMCA or any other statute has been deemed to hold otherwise.

Of course, this is one of the more nefarious tricks pulled by the authors of the bill. In a few different places, right before they totally decimate existing and established law, they put in a little thing that says, "nothing in here changes existing law...," even as the plain text shows that it does.

But, in this case, why don't we go to the source: Rep. Bob Goodlatte, supposed co-author of the bill, and the chair of the IP subcommittee in the House. When asked about criticism of the bill by Gautham Nagesh at The Hill, Goodlatte flat out admitted that the intention is to take away the DMCA's safe harbors:

"I think it is unrealistic to think we're going to continue to rely on the DMCA notice-and-takedown provision," Goodlatte said.

"Anybody who is involved in providing services on the Internet would be expected to do some things."

So, who do we trust? A Viacom exec with a history of trying to stretch, twist and break the DMCA (see: YouTube) by pretending that it requires actions it does not, or the supposed co-author of the bill, whose statements will certainly be used in a court of law down the road. And, if Goodlatte is admitting his intention was to change the DMCA with the bill, why did the bill even include that false claim that nothing in it changes the DMCA?

Filed Under: bob goodlatte, copyright, dmca, e-parasite, liability, secondary liability, sopa, stanley pierre-louis
Companies: viacom

CreativeAmerica: When Major Hollywood Studios Set Up Bogus 'Grassroots' Campaigns

from the don't-make-me-laugh dept

For a little over a week now, we've been receiving emails from various actors and musicians, telling us that they've been getting emails from various entertainment industry giants, telling them to join a new "grassroots" coalition called CreativeAmerica, whose main purpose is to advocate for passing the PROTECT IP censorship bill. The whole thing is clearly an astroturf campaign. It was registered via domains-by-proxy to hide who really bought the domain name. It highlights the video that was secretly created and owned by NBC Universal. It includes the totally false claim that "there's no such thing as a free movie."

If you dig into the website to figure out who's really behind it, it claims that it's a "grassroots organization," but fails to name a single creative individual who was behind putting the group together. Instead, it lists out the following companies and organizations who really put the site together (amusingly, they even block you from cutting and pasting this part, so I just retyped it -- meaning I circumvented their DRM... come at me, entertainment industry):

CBS Corporation, NBC Universal, the Screen Actors Guild, Sony Pictures Entertainment, Twentieth Century Fox, Viacom, the Walt Disney Company and Warner Bros. Entertainment

Well, well. That's not a grassroots effort, folks. Now, the site also includes various unions, including the American Federation of Television and Radio Artists, the Directors Guild of America and the Screen Actors Guild and IATSE (stage hands, etc.). But these are the old school, out of touch unions that who have done little to nothing to help their members adapt to the times (often doing the opposite). Do we see any of the actually creative folks who have embraced new technologies, new methods of distribution and new business models? Nope.

In the meantime, how can the website seriously claim that it's a grassroots effort when it has every single major Hollywood Studio behind it. Do they think that people are stupid? And should we remind people that these are the same studios who have all sorts of scammy tricks for "Hollywood accounting" to make sure even the most successful films are never seen as profitable, allowing them to avoid paying royalties to the actual creative folks.

Next, if you dig into the website, they have a "send a letter to your elected officials" thing. And the real evidence that it's not a real grassroots effort? Just like other faux grassroots efforts, those agreeing to send the letter have no option to edit the letter. When groups like Demand Progress and EFF let you send letters about PROTECT IP, they let you edit them to your liking -- trusting people to express themselves.

But, this "Creative America" apparently does not trust its own members to be creative. The letter is 100% locked down. You can only send their text. Honestly, if a group supposedly representing creators won't even let its own members express themselves freely, you know that it's not actually about protecting "creative" America.

This is not a grassroots effort. This is not about protecting "Creative America." This is about protecting a few megacorporations who are scared of new innovations, afraid of their dwindling monopoly rents, and trying to force the rest of the world to go back to the way things used to be.

Filed Under: astroturf, creative america, grassroots, hollywood, protect ip, studios
Companies: cbs, disney, fox, nbc universal, news corp., sony, viacom

Studios Apparently Would Prefer Searches Only Turn Up Pirated Copies, Rather Than A Legit Option

from the do-they-not-think? dept

There have been some stories about how YouTube is preparing to work with a bunch of big movie studios to sell access to movies. It's been offering up some movies for a year or so, though it hasn't really caught on. The hope is that with big Hollywood pictures, people might care more. I'm not convinced it will be that big of a deal -- especially for folks who use Netflix -- but it's an easy enough thing to do. Except... apparently two of the major studios, Fox and Paramount, are balking at the deal, because they don't like that people can find unauthorized copies of their movies via Google's search functionality. This makes no sense. Basically they're saying they'd rather that when people search on their movies, that their only options are unauthorized versions, rather than having a legitimate version at the top of the list. This is not how you "compete" with unauthorized versions.

Filed Under: movies, piracy, searches, streaming, studios, youtube
Companies: fox, google, news corp., paramount, viacom, youtube

Time Warner Cable, Viacom Go To Court: Does TWC Need Permission To Let Paying Subscribers View Viacom Content On iPads?

from the battles-of-a-lifetime dept

We recently noted that the various TV broadcasters were quite upset that Time Warner Cable was trying to promote their content to subscribers. Seem strange? It is. TWC set up an app for subscribers of both its broadband and TV services, that would let those users watch the TV stations they already subscribed to via an iPad app only if they were accessing the content via their home WiFi. To simplify it, TWC was letting your iPad act as another TV in your house.

Now, normally, if someone sets up an additional TV, they don't have to pay the content providers yet again.

But this is the "internet," you see, where content companies think they should get paid every time something touches their content in a different manner. So they were upset and threatened to sue TWC. TWC caved a bit, and pulled some channels, but then put some others on the app. It's tough to keep up, since the app seems to change each day (which must be great for keeping customers happy). Rather than wait and see if the TV companies would sue, however, TWC has taken matters into its own hands and filed for a declaratory judgment that what it's doing is perfectly legal. Viacom quickly filed the complaint it had ready to go against TWC in response (both are embedded below).

TWC is trying to play down any idea that this is a "fight," saying that "this is not a hostile lawsuit," and that "we need an impartial third party to referee the situation and confirm that our interpretation is correct." Of course, they could have hired an arbitrator rather than burdening the federal court system... but... it's just our tax money. And Viacom, for its part, doesn't seem to be acting as if this is just a bit of a legal clarification among friends. Its response is pretty harsh, if highly misleading.

Viacom's argument seems to be based on the established legal theory of "but... but... everyone else is paying us for this sort of thing so TWC must have to pay for it." In the end, it comes down to a contractual dispute over what TWC's deal with Viacom says, but the whole thing is pretty ridiculous. TWC's offering is really limited, and all it's doing is making Viacom's content more valuable to subscribers. Viacom, in typical entertainment industry fashion, seems to think that everyone needs to pay it for making its content more valuable.

Filed Under: place shifting, tv
Companies: time warner cable, viacom

YouTube's Reply In Viacom Case Demolishes Each Of Viacom's Key Arguments

from the good-luck,-viacom dept

It surprised no one last year when Viacom appealed the complete smackdown it got from the district court in its lawsuit against YouTube. As I noted when the appeal was filed, Viacom's arguments made very little sense, and in YouTube's response (which apparently hasn't yet been filed, but will be shortly), it seems that the company does a nice job debunking each of Viacom's arguments. The key point in this has been focused on the whole "red flag" question, of whether or not the red flag parts of the DMCA meant that YouTube gave up its safe harbors, despite its proactive stance on taking down content when alerted to it being infringing. Viacom is trying to change the plain meaning of the statute into meaning that a service provider must proactively investigate and see if it can find infringing material. YouTube points out that this is not what the law says.

Congress crafted such a “high bar for finding ‘red flag’ knowledge” because it recognized that it is challenging for service providers to distinguish infringing from non-infringing material. UMG II, 665 F. Supp. 2d at 1111. No red flag exists, therefore, where circumstances leave uncertain whether the material is protected by copyright at all, or whether a particular use is licensed or, if unlicensed, a fair use. H.R. Rep. 105-551(II), at 57-58. A service provider has no “investigative duties” to make such determinations. CCBill, 488 F.3d at 1114. Indeed, “if investigation of ‘facts and circumstances’ is required to identify material as infringing, then those facts and circumstances are not ‘red flags.’” UMG II, 665 F. Supp. 2d at 1108.

There is no room here for an approach that would convert generalized information that unspecified infringement is occurring somewhere into red-flag knowledge. Red flags, instead, are necessarily specific: they indicate unmistakably that a given piece of material or a given activity using that material is infringing. And they create an obligation for the service provider to expeditiously remove that particular material. That does not render red-flag knowledge duplicative of actual knowledge. The red-flag provision does independent work, establishing that a service provider can lose DMCA protection by failing to remove a given item, even if the plaintiff cannot prove that the provider subjectively thought the item was infringing.

The filing also goes through many of the arguments we've seen before, including debunking the simply ridiculous claim from Viacom and its supporters that knowing that some people could use the service for infringing purposes means a loss of safe harbors. If that's the case, then there are no safe harbors. The filing also notes that, contrary to the "straw man" suggested by Viacom, saying that a service provider needs specific knowledge does not mean that the red flag provisions are meaningless. It just means that YouTube must have specific knowledge that the works were infringing, and the court reasonably established that YouTube did not have that with the clips that Viacom was complaining about (in part because even Viacom wasn't always sure which clips were infringing, and which it had uploaded itself).

The filing is pretty direct at points, not just in mentioning things like "straw men" arguments, but also in highlighting that Viacom's argument in one part "makes no sense." That claim was in reference to Viacom's weak attempt to claim that because YouTube very briefly had a feature to let users flag "infringing" works, but then took it away, that meant that YouTube had willful blindness. YouTube debunks that, pointing out that they wouldn't have even created the feature if it wanted to ignore infringement. The reason they got rid of the feature was because it didn't work, because users don't know if a work is infringing or authorized. At another point in the filing, YouTube more or less mocks Viacom's attempt to reinterpret the Grokster standard, quoting Viacom's language (which is quite different that the Supreme Court's) and says "whatever that means...."

The filing also reiterates the key point that highlights the pointlessness of Viacom's claims that YouTube must have known what was infringing: which is the extensive efforts by Viacom to upload its own stuff but make it look like it was infringing. Combined with this is the fact that Viacom allowed plenty of clips it found on YouTube to remain... even if they were infringing. As we pointed out last time, Viacom had a huge and ever-changing book of "rules" as to what got left up and what got taken down (i.e., what was authorized and what was not). YouTube did not have this book. Suggesting that YouTube should know what to take down here makes little sense.

As for the supposed "smoking gun" emails that supporters of Viacom's position always point to, beyond the fact that many were taken totally out of context, none of them show that YouTube knew of any Viacom content that was infringing.

When Viacom filed its appeal, one of the Viacom supporters in our comments highlighted a part of Viacom's filing that focused on the Congressional record, suggesting that Congress meant to codify common law vicarious liability rules into the DMCA. However, YouTube's response points out what Viacom supporters would like to ignore: that the Congressional record being quoted was for a preliminary version of the DMCA, not the final one, and that Congress specifically decided not to follow through on those suggestions. Oops.

There's a lot more in the filing, but it systematically destroys each of Viacom's questionable claims. It won't come as a surprise to anyone that I find YouTube's arguments here persuasive, and Viacom's ridiculous. The district court saw it as well, and hopefully the Appeals Court will agree. That this is happening in the same circuit that decided the Tiffany/eBay case, which noted that eBay was protected from liability in trademark law -- where there aren't even the safe harbors that copyright law has -- would seem to bode well for YouTube. It suggests that YouTube's actions taking down content it knew was infringing clearly meet the standards necessary to be free from liability for videos uploaded by users. Either way, the filing is a fun read if you want to see a rather systematic takedown of Viacom's weak arguments.

Filed Under: copyright, dmca, red flags, youtube
Companies: google, viacom, youtube

Google Finally Gets Involved In Torrent Search Engine Lawsuit... But Just To Reject 'Red Flag' DMCA Violations

from the but-of-course dept

TorrentFreak is noting that Google has, perhaps for the first time, waded into any of the lawsuits concerning torrent search engines, filing an amicus brief in the ongoing IsoHunt appeal. In the past, other torrent search engines have been somewhat upset that Google has stayed quiet, noting that many of the arguments used against them could equally apply to Google. Google, of course, has stayed away because it goes to great lengths these days to avoid any appearance of "supporting piracy."

While TorrentFreak (and IsoHunt) seems surprised or disappointed by Google's actual amicus brief in the IsoHunt case, it's really not surprising. Google's participation here is entirely about the YouTube/Viacom lawsuit and appeal. What was really notable about the original IsoHunt ruling, was that it was the only real legal ruling that said that you could violate the DMCA even in absence of takedown notices. That is, it highlighted the idea of "red flag" awareness of infringement. This was the key issue in the YouTube/Viacom lawsuit. Google argues that as long as YouTube took down any content it received a takedown notice on, it was in compliance and protected by safe harbors. Viacom leaned heavily on the IsoHunt ruling, to claim that the DMCA doesn't just cover takedown notice responses, but also requires a response to "red flag" infringement.

However, Google knows that the IsoHunt ruling is basically the only legal precedent out there that reads the DMCA in this manner. So, from Google's perspective, dumping that reasoning is key. So its amicus brief still argues that IsoHunt is guilty of contributory infringement, a la the Grokster standard, but not because of red flag infringement. So, I don't find it that "unexpected" that Google got involved, or filed the brief that it did. It's focused entirely on its own lawsuit here, and hoping that the appeals court will take away the one serious case that Viacom has in its pocket for the YouTube appeal.

Filed Under: copyright, dmca, red flags, torrents
Companies: google, isohunt, mpaa, viacom, youtube

Evidence Suggests Major Film Studios Uploading Movie Clips To YouTube... Pretending To Be Pirated

from the but-of-course dept

One of the tidbits that came out of the YouTube/Viacom lawsuit was the fact that Viacom quite frequently would upload its own clips to YouTube, but did so trying to pretend they were pirated clips. In fact, they would send employees out of Viacom's offices to local printshops to upload the videos under childish sounding names, like "MMysticalGirl8, Demansr, tesderiw, GossipGirl40, Snackboard and Keithhn," to make people think they were pirated copies. Not surprisingly, it appears that Viacom was not alone in this tactic. Slashdot points us to an analysis that certainly suggests that pretty much all of the major film studios were doing the exact same thing. There are surprisingly long and clear clips of various movies, uploaded at times perfectly coinciding with major marketing campaigns, and sometimes they can even be connected (with some digging) to marketing firms. Sorta takes the sting out of the claims that YouTube clips are so damaging, doesn't it?

Filed Under: movies, studios, youtube
Companies: disney, viacom, warner bros.

The Companies Who Support Censoring The Internet

from the censorship-is-good-for-business dept

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc's to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don't like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn't want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here's the full list of companies that support censoring the internet, because they're too lazy to compete in the marketplace or innovate when that market changes:

• Nike - Beaverton, OR
• Achushnet - Fairhaven, MA
• Curb Music Publishing - Nashville, TN
• NBC Universal - New York, NY
• Viacom - New York, NY
• Callaway - Carlsbad, CA
• Cleveland Golf - Huntington Beach, CA
• Rosetta Stone - Arlington, VA
• Activision - Santa Monica, CA
• Adidas Group - Portland, OR
• Xerox - Norwalk, CT
• Hastings Entertainment, Inc. - Amarillo, TX
• Fortune Brands - Deerfield, IL
• Coty Inc. - New York, NY
• EDGE Entertainment Distribution - Streetsboro, OH
• Oakley, Inc. - Foothill Ranch, CA
• PING - Phoenix, AZ
• Louis Vuitton - New York, NY
• D'Addario and Company - Farmingdale, NY
• Monster Cable Products, Inc. - Brisbane, CA
• Tiffany and Co. - New York, NY
• Farouk Systems, Inc. - Houston, TX
• Beam Global - Deerfield, IL
• Chanel USA - New York, NY
• True Religion Apparel, Inc. - Vernon, CA
• Concord Music Group - Beverly Hills, CA
• Village Roadshow Pictures - Beverly Hills, CA
• National Basketball Association - New York, NY
• National Football League - New York, NY
• The Collegiate Licensing Company/IMG College - Atlanta, GA
• Anderson Merchandisers - Amarillo, TX
• Trans World Entertainment Corporation - Albany, NY
• Timberland - Stratham, NH
• Major League Baseball - New York, NY
• Lightening Entertainment/Mainline Releasing - Santa Monica, CA
• Sierra Pictures - Beverly Hills, CA
• Voltage Pictures LLC - Los Angeles, CA
• Worldwide Film Entertainment LLC - Westchester, CA
• Nu Image, Inc. - Los Angeles, CA
• Burberry Limited - New York, NY
• Big Machine Records - Nashville, TN
• The Little Film Company - Studio City, CA
• Columbia Sportswear Company - Portland, OR

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don't appreciate them seeking to censor the internet. If you haven't been following this story, and want to understand the details, we've discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We've also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they're companies not worth doing business with.

Filed Under: censorship, due process
Companies: activision, louis vuitton, monster cable, nbc universal, nike, tiffany, viacom

Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation

from the expanding-the-law dept

As you might imagine, I rarely agree with the American Intellectual Property Law Association (AIPLA) on its positions. While there are plenty of "IP" lawyers who I know well and talk to frequently -- many of whom seem to agree with my position on things -- it's no secret that the belief that "IP is all good" and "more IP is better" tends to be a bit more common among such practitioners than the views in the other direction. In fact, if you asked me, I would have just assumed that the AIPLA was 100% behind Viacom in its lawsuit against Youtube/Google. So, consider me quite surprised that the main part of the AIPLA's amicus brief in Viacom's appeal of the YouTube case is actually siding with YouTube and saying that Viacom's argument (as we've said) goes way too far.

Specifically, the AIPLA points out that Viacom's belief that "general knowledge" of infringing content should disqualify safe harbors makes little sense, and is clearly not Congress' intention, as seen from the DMCA itself and the Congressional record:

AIPLA urges this Court to affirm the district court's holding that more than a generalized knowledge of infringement is required to deprive an Internet service provider ("ISP") of the protection of the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"). The district court correctly held that the DMCA requires either "actual knowledge" of specific instances of infringement, or awareness of "facts or circumstances" from which specific instances of infringing activity are apparent. Whether based on actual knowledge or awareness of facts or circumstances, the level of knowledge that is sufficient to strip the ISP of its protection under Section 512 of the Copyright Act, as amended by the DMCA is knowledge of specific instances of infringement. The district court's holding is consistent with the legislative history of the DMCA and relevant case law. AIPLA urges this Court to reject Viacom’s broad attempt to deprive Internet service providers of the benefits of the safe harbor provisions of the DMCA based on generalized knowledge that infringing activity is occurring on a site.

The AIPLA brief highlights how the Congressional record clearly shows that both the House and Senate said that "defective" DMCA notices need not be followed, and there should be no liability for not following such a notice. Yet, if Viacom's argument is correct, then a defective DMCA notice would still serve as "general knowledge" of infringement or a "red flag" that would require further investigation. Yet, both houses of Congress specifically rejected that position -- and with it Viacom's main argument.

There are two other parts of the AIPLA's brief which actually suggest points that ask the court to push back on two elements of the district court's summary judgment ruling, but those are smaller points compared to the "main event" question of whether or not general knowledge or specific knowledge are needed to trigger takedowns. It's surprising, but nice to see the AIPLA come out in favor of the only interpretation that makes sense to many of us: you can't be expected to police content if you haven't actually learned that it is, in fact, infringing.

Filed Under: actual knowledge, copyright, dmca, red flags
Companies: aipla, google, viacom, youtube