Eric Holder Answers Question About Kim Dotcom Prosecution

from the blah-blah-blah dept

Attorney General Eric Holder was in New Zealand for a meeting of Attorneys General from the US, New Zealand, Canada, Australia and the UK. Radio New Zealand got to meet up with Holder and after asking him about the meeting proceeded to ask him about the Megaupload case (mp3), which the interviewer noted was of great interest to New Zealanders.

Holder, in his usual fashion, answers with generalities that don't actually answer the questions being asked. He gives his standard "intellectual property theft = bad!" speech:

Well I don't want to comment on a case that is pending. But I will say, more generally, that we are very concerned about the theft of intellectual property. It's something that we take very seriously, both in the United States, and I think our allies do as well. With regard that case, we've been cooperating with the New Zealand authorities. And I will just rely on the pleadings we have filed in court to talk about that.

First of all, we've pointed this out before, but you would think that the supreme "lawyer" for the government would know the damn law. There is no "intellectual property theft." That's a made up term by copyright maximalists. There is such a thing as copyright infringement, which is what he means. He should use the actual term. Otherwise it does make him look like a pawn of Hollywood.... Which leads right into the next question. The interviewer notes that Kim Dotcom has been saying that the case is all about the DOJ "heeding the beck and call of Hollywood moguls." Holder immediately responds:

Well, that's not true. I don't want to comment on that case other than to say that it was brought on the basis of the facts and the basis of the law and it's consistent with the enforcement priorities that this administration has had.

Well, yes, the enforcement priorities that have heavily been pushed for by Hollywood.

The interviewer notes the various screwups in the case, and Holder doesn't bite, saying that there's been good collaboration and they expect everything to turn out fine in the end. The next question is about how serious Holder is about pursuing extradition, and Holder makes it sound like no big deal:

We have made an extradition request. We have an existing treaty between the US and New Zealand that has been used a great many times throughout the years. And I don't see how any individual would not be subject to that treaty.

Uh.... that's a bullshit answer. Because the problem with the extradition issue is not whether or not Dotcom is subject to it, but whether or not the issues in the case are subject to it. The DOJ had to bolt on some questionable conspiracy claims to make this work, since mere copyright infringement is not an extraditable offense. Holder also responded to a question about New Zealand's attempt to spy more on citizens and residents by saying he doesn't see how that violates civil liberties. When questioned on that, he throws out some random statement about cooperation to stop terrorism, and again says that spying on people doesn't need to violate civil liberties.

Filed Under: copyright, copyright infringement, eric holder, extradition, kim dotcom, new zealand
Companies: megaupload

UK Supreme Court Says Unauthorized Browsing Of Copyright Material Online Is OK, But Asks European Court Of Justice Just In Case

from the are-we-there-yet? dept

The lawsuits brought against the media monitoring firm Meltwater in both the US and the UK have not turned out too well for the company so far. In the US, the district court handed down a summary judgment against Meltwater, while in the UK, two courts came to a particularly worrying conclusion: that simply viewing copyright material online without a license amounted to infringement.

Fortunately, this judgment was appealed to the UK Supreme Court, which has just published its ruling. The judges recognized that the central issue is whether the temporary copies held on a computer in its memory cache, which are necessary to view a document stored on the Web, are covered by a clause in UK and European law that exempts temporary copies from needing a license provided certain conditions are met. In the judges' view, copies held purely for browsing were indeed covered, provided they were not saved or printed out. Here's why that is crucial:

if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

That's obviously just common sense -- sadly, a rare commodity when it comes to copyright in the online world. However, the UK Supreme Court has asked the European Court of Justice to offer its own, definitive, ruling so as to settle the law for the whole of Europe. As the judge writing the verdict noted:

I recognise the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union.

Of course, the legal status of temporary copies is a crucial question elsewhere, too. For example, in her speech at Columbia University back in March, Copyright Register Maria Pallante spoke of "the confusion over incidental copies", which needed sorting out. More worryingly, one relatively recent leak of the TPP draft seemed to indicate that it would require all temporary copies to be regulated. The fact that we are still having this discussion about a technological necessity some twenty years after the Web was invented, shows just how out of touch with modern reality copyright law remains.

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Filed Under: browsing, copyright infringement, eucj, incidental copies, temporary copies, uk
Companies: ap, meltwater

RIAA: Google Isn't Trying Hard Enough To Make Piracy Disappear From The Internet

from the but-of-course dept

When Google first caved in to the legacy entertainment industry's demands to start modifying search results to downrank sites that received a lot of DMCA notices, we quickly warned that the RIAA and MPAA would never think that it was enough, and would continue to whine and complain. Yesterday, we pointed out that the RIAA was bitching and complaining about how many DMCA notices they could submit (which turned out to be a case of the RIAA failing to RTFM). But that was just the prelude for today, when the RIAA would release a "report card" on how Google's new filtering was going. Guess what? They're not happy, and apparently they won't be happy until Google magically makes all infringement disappear (*poof*).

Six months later, we have found no evidence that Google’s policy has had a demonstrable impact on demoting sites with large amounts of piracy. These sites consistently appear at the top of Google’s search results for popular songs or artists.

For everyone else in the world, if they're not satisfied with how the sites they favor rank in Google, they learn a little something about search engine optimization. But, noooooooo, not the RIAA. They think that it is a requirement that Google be tailored to them directly.

Well-known, authorized download sites, such as iTunes, Amazon and eMusic, only appeared in the top ten results for a little more than half of the searches. This means that a site for which Google has received thousands of copyright removal requests was almost 8 times more likely to show up in a search result than an authorized music download site. In other words, whatever Google has done to its search algorithms to change the ranking of infringing sites, it doesn't appear to be working.

Well, that's one interpretation. Another one (the right one) is that whatever the industry itself has done to raise the rankings of those sites by effectively competing in the marketplace "doesn't appear to be working." iTunes, in particular, is locked up in its own little walled garden with few people "linking in" (a big part of how Google determines relevance). Do people still use eMusic any more? The problem seems to be that those other sites just aren't where people look for stuff when they're searching Google for the music. That's not Google's fault.

Of course, what all this continues to demonstrate, beyond the fact that the RIAA will never, ever be satisfied until Google wipes out all infringement with the magic "piracyBgone" button, is that the RIAA still just doesn't understand search. The methodology here is suspect:

For this analysis we performed searches for [artist] [track] mp3 and [artist] [track] download over a period of several weeks starting December 3, 2012

First big mistake: the RIAA simply does not seem to know that Google does not deliver the same results to everyone. That change a while back. They try to tailor specific responses to specific users, based on what those users are searching for. So, if the RIAA is seeing those sites ranked higher, perhaps it says something about where the RIAA is commonly looking for stuff...

Also, here's the thing that the RIAA just doesn't seem to get. Google's entire business and algorithm are built, ground up, around the idea of understanding what people are looking for when they search, and then taking them to that place. The RIAA might not like it, but the simple fact is that when people are searching for [artist] [track] mp3 and [artist] [track] download, chances are they're not looking to buy, but to download for free. So that's what Google is showing them. That's not Google's fault. That's what the person is searching for. Even if Google magically did show them Apple, Amazon and Emusic as the top results for every [artist] [track] mp3 and [artist] [track] download, the people doing those searches wouldn't go there, because they're not looking to buy. If they did a search on "[artist] [track] buy" perhaps there would be different results.

If you actually compare apples to apples, and look at the kinds of sites that people are probably looking for, the RIAA's own "data" seems to suggest that Google is, in fact, demoting sites that receive a lot of takedowns. Note that in those last two categories, sites that have received more than 10,000 DMCA notices appear less frequently than those with closer to 1,000 DMCA notices. The other three categories are red herrings, because those aren't where people are looking for when they do searches on either [artist] [track] mp3 or [artist] [track] download.

Basically, this just reinforces two (completely unsurprising points):

1. The RIAA will never, ever be satisfied, no matter what Google does. Which again, reinforces the idea that it was probably a bad idea to even cave in in the first place.
2. The RIAA still doesn't understand how search works, nor does it seem to have any interest in learning. It doesn't understand that every single other website in the world has to work hard to lift themselves up in Google's search rankings. They don't get to specifically call out sites they don't like and automatically force Google to lower their rankings. The RIAA gets a massive headstart on every other site in the world... and they still haven't figured out how to take advantage of this.

Of course, it's not just the RIAA. Musically points out that the RIAA's complaints are only the latest in a long line. The MPAA and BPI have already made similar complaints. And they'll continue to complain, because it gives them an excuse for not doing what they should be doing, which is helping the companies they represent adapt to the internet era. It's much easier to just blame a third party -- especially when doing so without understanding the very fundamentals of how a search engine works.

Filed Under: copyright infringement, demotions, filtering, piracy, search
Companies: google, riaa

Is Malibu Media About To Become The Righthaven Of Porn Trolls?

from the drop-the-bomb dept

Last month we wrote about an interesting case in which a judge effectively called the bluff of Malibu Media, a copyright trolling operation that has filed 365 lawsuits, targeting about 6,000 people. And, of course, it's never taken a single one to an actual trial, because that does not appear to be the goal. Instead, it's all about getting people to settle, and it sounds like Malibu has been successful on that front. In the case we mentioned last month, the judge made it clear that he wanted Malibu Media to actually go through a trial, and highlighted four defendants who had claimed innocence, and wanted to use those as a "bellwether" trial, to effectively test Malibu's theories. The judge, Michael Baylson, was pretty clear that he would not be happy if Malibu Media tried to squeeze out of the case.

At the beginning of the month, Malibu filed its "amended complaint" against the "John Does" in question, which gave up on some of the arguments in the original complaint and instead focused on direct infringement claims -- while also expanding the number of works infringed.

Yesterday, the Does hit back. It's interesting to note that they've signed up Marc Randazza (along with Jordan Rushie) to help them, as Randazza has both been on the other side of some porn copyright trolling cases and was also the lawyer largely responsible for bringing down the famed copyright trolling operation Righthaven. His work with porn studios to take part in similar cases has resulted in some worries of ulterior motives in taking on John Does in other cases, though that seems to be a bit paranoid.

Either way, the Does hit back hard. They're throwing the kitchen sink at Malibu Media. Among other things, they're claiming that the decision to expand the case to other possible infringements is ridiculous since the defendants use dynamic IP addresses, and Malibu is basing the other infringements on the same IP, but a totally different date or time. Also: the defendants claim that Malibu initially argued that all of the Does needed to be lumped together in a single lawsuit because they represented a "swarm" and as such had to be tried together. Except, in the amended complaint, they move away from that completely (no surprise, since the judge carved out just these few defendants). However, the defendants point out the inconsistency:

When considering litigating the “swarm theory,” Malibu was faced with the prospect of dozens of defendants, joined in their common defense against the plaintiff, with an initial seeder who very well may have had a license to publish the works to BitTorrent or elsewhere. When push came to shove, Malibu decided to dismiss more than eighty percent of the defendants it initially sued, despite its prior claims that the cases were brought against unified “swarms.” Malibu apparently thought better of the swarm theory, and decided to reduce the number of defendants. However, Malibu cannot properly abandon its foundational theory and still leave the case against Doe 13 intact. The swarm theory of liability relies upon a “swarm” of defendants and renders these now-dropped defendants indispensable to the action. Without even an allegation against the initial seeder, we have no idea whether Malibu itself seeded the relevant files. As Malibu does freely distribute the relevant films, it is entirely possible, if not most likely, that the initial seeder had permission to distribute the files via BitTorrent. If he or she did not, it is entirely likely that a participant in the swarm, from whom Doe 13 received the file, may have had such permission. Malibu’s omissions speak loudly in favor of dismissal. Unless Malibu re-joins these previous defendants, including the initial seeder, the Court must dismiss the action against Doe 13, who is by Malibu’s own theory incapable of according Plaintiff full and complete relief.

That paragraph has footnotes to point out that the company Malibu was using to obtain IP addresses, IPP (formerly Guardaley -- remember them?) is accused of actually seeding the files in the first place, which would suggest the copies were authorized. Of course, it's worth noting that Randazza, when on the other side of these cases, has used the swarm argument in the past.

Either way, that's just the warmup for the problems with the amended complaint. There's also a few other problems -- such as that it doesn't appear that Malibu legitimately owned the copyright in question. Oops. First, there's the fact that the filmmaker argued that the key film was a "work for hire" made for Malibu. Except, Malibu only came into existence in early 2011 and the movie was made years earlier. Malibu claimed this was an oversight in the registration process and then sought to register the copyrights properly just recently. However, again there are problems, as the assignment from the filmmaker failed to assign the specific rights under Section 106 of the Copyright Act, which are what you need if you want to sue. This was the critical defect in the Righthaven cases, in that they pretended to assign those rights, but it was in name only since the original copyright holder really retained all the key rights provided under Section 106. Furthermore, the defendants argue that the assignment statement does not really qualify as an assignment, and is, at best, a license.

In this case, the Assignment contains no provision of any exclusive rights from Field to Malibu Media. The assignment is silent as to what, if any, rights Field has within the films. Rather than transferring any discernible exclusive rights under Section 106 to Malibu Media, Mr. Field has executed what is essentially a quit-claim deed to Malibu Media, giving Plaintiff a jumble of unidentified rights (or perhaps none at all) that, on the face of the assignment, do not include the rights required to sustain an infringement action: exclusive rights under Section 106. Absent any indication that Field possessed full, undivided interest in the copyrighted works or exclusive rights therein, there is no basis on the face of the assignment for finding that Malibu Media acquired any exclusive rights and nothing in the assignment addresses past infringement.

Then they point out that even if the assignment is proper, it still doesn't help Malibu, because it is not clear when the assignment was made. And, under the law, while you can transfer the right to sue (along with other exclusive rights) for past infringements, that needs to be expressly stated in the assignment. That's not the case here.

Then there are other issues concerning the "swarm" argument. The defendants point out that if they were being sued as part of a swarm, the total awards across all the defendants can't surpass the maximum statutory rate. Yet with a bunch of defendants having settled, it's possible that Malibu has already been "made whole."

Malibu has already recovered significant funds in connection with the infringements alleged in the Amended Complaint. Prejudice against Does #6 and #19 before this action was set for a bellwether. (Dkt. Nos. 16 and 17). Presumably, this was because Malibu received adequate settlements from these defendants. In fact, Malibu may have received doubly-adequate settlements from them – in which case Malibu is now triple-dipping by seeking damages that have already been satisfied by third parties Malibu intentionally kept out of this litigation.

Because the swarm is global in scope, and the Plaintiff has likely already been made whole by other undisclosed swarm members, nothing short of full disclosure and setoff would allow Doe #13 to evaluate Plaintiff’s ability to bring this action that it repeatedly claims to be based on the uploading and downloading the exact same file. Since the Plaintiff seeks statutory damages, if the Plaintiff has already collected the statutory maximum for this work from other defendants, then the Plaintiff must stop visiting the well. Malibu filed Notices of Voluntarily Dismissal with

Thought they were done? Not yet. They also claim that Malibu is abusing subpoena powers outside of what was alleged in the complaint. In the amended filing, Malibu notes that its "partner" in identifying infringement, IPP, passed along the info that at least one of the Does has been accused by another IPP customer of infringement as well. As the defendants point out, that's completely irrelevant to the case at hand:

Nucorp, Ltd. is not a party to this action or any other action against Doe #13, and this allegation is scandalous and impertinent. Furthermore, set forth in more detail below, adding allegation also violated two court orders forbidding Malibu from abusing its subpoena power for purposes outside of what was alleged in the Complaint. Accordingly, Paragraph 53 and Exhibit “F” of the Amended Complaint should be struck .

In one of the other Motions to Dismiss, questions are also raised about whether or not Malibu has the proper and necessary licenses to do business in Pennsylvania where the lawsuit was filed.

There's more, but you get the idea. It certainly looks like some are trying to give Malibu the Righthaven treatment. And we all remember how that went...

Filed Under: copyright, copyright infringement, copyright trolls, marc randazza, swarm
Companies: malibu media, righthaven

Google Caves To Hollywood Pressure: Will Now Punish Sites That Get Lots Of 'Valid' DMCA Notices

from the whose-master? dept

For quite some time the RIAA and MPAA have been going on and on about how Google can just "fix" its search results by either removing or punishing sites that are deemed as "pirate" sites. We've explained why this is not as easy as the entertainment industry thinks it is, but it appears that the pressure has gotten to Google... and they've just announced that they will, in fact, be punishing sites that they deem as bad players, based on the data they have of how many "valid copyright removal notices" a site gets:

We aim to provide a great experience for our users and have developed over 200 signals to ensure our search algorithms deliver the best possible results. Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify.

Since we re-booted our copyright removals over two years ago, we’ve been given much more data by copyright owners about infringing content online. In fact, we’re now receiving and processing more copyright removal notices every day than we did in all of 2009—more than 4.3 million URLs in the last 30 days alone. We will now be using this data as a signal in our search rankings.

The company notes that it's just one signal of many and that they will only demote the results, but not remove those sites from the index. In fact, they point out, correctly, that "Only copyright holders know if something is authorized, and only courts can decide if a copyright has been infringed; Google cannot determine whether a particular webpage does or does not violate copyright law."

As I understand it, the plan is that for people who search for, say, "watch dark knight rises free online," Google will try to push results that are likely to be unauthorized down the list, and try to have more "authorized" results higher up in the list (though, with a search query like the one above, there may not be any "authorized results" that provide what the person is searching for).

It's that last point where this gets to be troubling. Part of the reason people are searching for such things is that there isn't an easy and legitimate way to get that content. The best result would be for Hollywood to get its act together, realize that its whole windowing procedure is a disaster from the consumers' perspective, and provide more of what consumers want. Instead, the end result is going to be that people do these searches and just get equally frustrated. I don't see how that's good for Hollywood or for Google.

My other concern is that things things that later turn out to be quite legitimate and massive opportunities for authorized and legitimate content, are quite frequently demonized as tools of piracy early on. Imagine an equivalent of this announcement today in the early days of the VCR, when the MPAA insisted that it was evil and infringing. Imagine if when you went into a store to buy a VCR, the store instead pointed you to the movie theater down the road. That might be what Hollywood thought it wanted, but the end result would have been a much smaller home movie market -- not a market that ended up being bigger than the box office market just a few years after Hollywood insisted it was illegal.

Same thing with the first MP3 players. The RIAA sued the Diamond Rio as being a tool for infringement. Imagine if when you went to buy an MP3 player, stores decided to instead tell you you should buy some cassette tapes instead. It enforces an older way of doing business, rather than a new way.

And this applies online as well. Obviously, there's still an ongoing lawsuit against YouTube for copyright infringement, and YouTube certainly gets a ton of "valid copyright removal notices." Would Google demote search results to YouTube based on this? In the past, Google has punished the search results for other parts of its own business, for violating its rules, so it's entirely possible that YouTube results could get demoted under this system -- though I would imagine that Google believes that the many other "signals" it uses to determine legitimacy would minimize the likelihood of this being an issue.

But... that might not apply to a new up and coming site. Take, for example, the cases of Veoh and MP3Tunes. What both of those companies did was deemed legal by the courts, but both companies went bankrupt due to massive legal fees from being sued by the legacy entertainment industry. Imagine if, on top of that, Google also demoted the results from those sites at the same time. Already, Google is facing antitrust scrutiny for what some companies claim was a policy that demoted Google search results to their pages. While I think those claims are pretty bogus, is Google just opening itself up to a similar antitrust attack on that point?

I recognize that Google has a tricky balancing act here -- trying to keep the entertainment industry off its back, and the governmental pressure that comes with that, while still providing the "best" search results for its users. And I'm sure that Google has tried to use an approach that minimizes the concerns I raise above. But we've already seen, quite clearly, how Google's automated systems often fail when it comes to copyright issues, and the risk for both abuse and bad results seems quite high. At the very least, it's going to bear very close scrutiny to see how Google handles legitimate sites, who get swept up in claims of infringement when they're actually providing legitimate services.

Filed Under: abuse, copyright infringement, dmca notices, innovation, rankings, risks, search results
Companies: google, mpaa, riaa

Perfect 10 Case Against Google Dismissed (With Prejudice) After Court Asks Perfect 10 To Open Its Books

from the a-perfect-0 dept

In the same week that Perfect 10 sued Tumblr for alleged copyright infringement, it effectively lost one of its other key lawsuits: agreeing to a dismissal, with prejudice, in its quixotic case against Google that had so far resulted in a string of losses (and useful precedents). Part of the stipulated settlement is that Perfect 10 will never again sue Google over such claims in the past (going forward is another story).

As the TorrentFreak article linked above notes, Perfect 10 was so desperate to find some sort of evidence to use against Google, it offered $25,000 to anyone who could provide evidence that Google "aided or condoned copyright infringement." Considering how often we see people (especially in our own comments) insist that Google does this all the time, it sure seems like when it was time to present evidence no one could come up with a damn thing. And that's not surprising, because if you know anything about anything, you'd know that Google is actually pretty aggressive against infringement (sometimes over-aggressive) -- and contrary to the claims of people who seem to know nothing about online advertising, there's little money made in any advertising around infringement anyway.

What's more interesting is that, as TorrentFreak notes again, this sudden agreement to dismiss the case with prejudice comes after the court had ordered that Perfect 10 open up its books and "provide full insight into all internal communications regarding the court case." Given the accusations concerning Perfect 10's business practices (i.e., supposedly relying on such lawsuits as its business model), perhaps they felt it was better to keep that stuff from being revealed publicly.

Filed Under: copyright infringement, settlement
Companies: google, perfect 10

New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability

from the good-job dept

One of the key cases in the Righthaven saga is the case against the Democratic Underground. While it seemed to take a backseat to the Hoehn case, the Democratic Underground case was one of Righthaven's first big overreaches, and was rather important for revealing that the copyright transfer between Stephens Media's Las Vegas Review Journal and Righthaven was a complete sham. On Friday there was another ruling in that case that actually makes two very important points that could be quite helpful in other cases (even if this is only at the district court level). As put forth in the ruling (pdf and embedded below):

THE COURT HEREBY DECLARES AS FOLLOWS:

1. That Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting until after this suit was filed. See Religious Tech. Ctr. v. Netcom On-line Commnc’n Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (direct copyright infringement requires “some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”); see also CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) and Cartoon Network LP v. CSC Holdings, Inc,, 536 F.3d 121 (2d Cir. 2008).

2. That the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. § 107, and that the fair use doctrine provides a complete defense to the claim of copyright infringement from which this suit arose. Judgment on the Counterclaim is accordingly entered in favor of Democratic Underground and against Counter Defendant Stephens Media, LLC.

That first one is the really important one. Righthaven relied heavily on the fact that it could sue sites that had not officially designated a DMCA agent, arguing that if you don't do that, you don't get any of the DMCA safe harbor protections. While you absolutely should designate an agent if you run a blog and allow any commenting on your site, I've always suspected that if it went to court, a site that did not designate an agent wouldn't automatically be liable for postings of its users. That's because it's just common sense that liability should be on the person doing the posting, not the tool used to do so -- even if the owners of the tool didn't designate a DMCA agent.

And that's basically what part 1 of the ruling above states. Even without a designated DMCA agent, the court found that the Democratic Underground site was not liable for direct infringement, because there was no element of "volition or causation" by the site itself. This is pretty important, and hopefully other sites that are sued without having designated an agent will similarly push back on claims that this automatically makes them liable. Good to see common sense applied here.

The second point is also important, noting that a five sentence excerpt of a longer article, with a link back to that article, is fair use. Considering how many newspapers have been trying to claim otherwise, it's nice to see this stated in black and white yet again.

Kudos to Judge Roger Hunt for a simple and to-the-point affirmation of common sense against Righthaven.

Filed Under: copyright infringement, democratic underground, las vegas review journal
Companies: righthaven

Spanish Court Reverses Course: Says Linking To Infringing Material Is A Crime

from the political-maneuvering dept

We've noted over and over again that Spanish courts have quite reasonably interpreted Spain's copyright law to mean that a site that just links to infringing content is not liable for the infringement. This makes a lot of sense. You should not blame a third party for the actions of its users. Yet the entertainment industry has made these rulings out to be an absolutely horrible miscarriage of justice, and have -- with the support of the US government -- pushed hard for draconian new copyright laws within the country. While public outcry (and leaked State Dept. cables showing that the US was really behind it) helped derail the effort the first time around, supporters are still trying to push it through.

However, while the existing law stands, it's a bit surprising to see that one Spanish court has gone completely in the other direction and found the operators of a couple sites to be guilty of criminal copyright infringement, for which they may face a year in jail, in addition to fines. The lawyer for one of the guys suggests that this ruling is a result of politics, not the law. It's hard not to think that way given how it appears to fly in the face of most other decisions in Spain. I would imagine that there's still going to be an appeal in the case before it's really settled.

Filed Under: copyright infringement, crime, international politics, linking, spain

Would Twitter Be Liable For Links To Infringing Material?

from the questions,-questions,-questions dept

One of the issues that bothers many folks who pay attention to copyright issues is the growing belief by many copyright supporters that simply posting a link to copyright infringing material could itself be considered infringement. From a technical standpoint, this makes little sense. As you copyright geeks should know, US copyright law grants some specific "exclusive rights" to copyright holders in Section 106: to reproduce, to prepare derivative works, to distribute, to perform and to display (with some added specifics based on what kind of work it is). Still, I'm at a loss to figure out what linking to a work does? It's not reproducing the work. It's not preparing a derivative work. It's not distributing the work. It's not performing or displaying the work. So what part of copyright law does linking violate?

Anyway, the reason why I'm asking this now is that it appears that Twitter is suddenly getting swamped with DMCA takedown notices lately. I only discovered that after a recent TorrentFreak article about the top DMCA takedown senders as compiled by ChillingEffects.org. What struck me, in Wendy Seltzer's summary, was that she mentioned that the largest sources of DMCA takedowns are "Google, Yahoo, Digg, and most recently, Twitter."

The addition of Twitter struck me as odd. After all, how much copyright infringement can you do in 140 characters. Nearly two years ago, we had discussed the question of whether or not those "tweets" themselves could be copyrighted (which could lead to legal questions when people "retweet" your messages). We had trouble believing that fair use wouldn't apply to messages. Then, this past April, we had an interesting discussion after a guy named JP was upset that Twitter deleted a tweet of his that was merely a link to his own blog post, which discussed a new album that had leaked, and included (in the blog post, not on Twitter) a link to one song that was already widely being linked to on music blogs, including Pitchfork, as well as a link to Amazon where people could buy the album. The copyright holder had issued a DMCA takedown on the Twitter message, which we took to be an abuse of the DMCA process. Nothing in the tweet was infringing. Heck, you could argue that nothing on the blog post was infringing.

However, in looking down the list of DMCA notices to Twitter, the vast majority of them appear to be copyright holders complaining about tweets that link to their material hosted elsewhere. I did see one that involved a background image, which is a bit more understandable as a copyright issue, but I'm a bit troubled by the massive numbers of takedown messages solely on links. Why not just issue the takedowns on whoever is actually hosting the material? Targeting links just seems fraught with potential problems and it's still not at all clear to me that links, themselves, are really infringing.

Of course, it's likely that Twitter is removing the tweets in question in order to protect itself from liability. But I'm wondering if anyone actually thinks Twitter would be liable for copyright infringement if it didn't do that.

Filed Under: copyright infringement, dmca, dmca notices, links
Companies: twitter

Thank Copyright Infringers For Still Being Able To Hear Great Moments In World Series History

from the giants-win-the-pennant dept

If you're a baseball fan, you know that the World Series is going on right now, between the San Francisco Giants and the Texas Rangers (with the Giants looking damn good so far). On the night they won the League Championship Series to advance to the World Series, I was actually out walking my dog, listening to the game on the radio (it was a pretty nerve-wracking finish), and was actually a bit disappointed that radio announcer Jon Miller didn't pull out the obvious "The Giants win the pennant!" line, even though they had, in fact, won the pennant. As you hopefully know, that line was the famous call -- considered one of the greatest broadcasting moments in history -- back in 1951, when the (then) NY Giants' Bobby Thomson hit a homerun off the (then) Brooklyn Dodgers' Ralph Branca to secure the National League championship: Now, what you might not know is that the only reason we have that recording, is because someone recorded it at home. Reader Stephen points us to Joe Posnanski's absolutely awesome article on the best sports calls in history (which I'd actually read, but had missed this point), which notes that:

The man we all need to thank is someone named Larry Goldberg, a travel agent who had the good sense to ask his mother to tape Russ Hodges' call so he could listen to it after work. Because of Larry, we have the most joyous call in the history of sports to enjoy forever.

Yes, thanks to infringement, we have that moment in history.

And it's not the only one. Just about a month ago, the news came out that video tapes of the (previously lost) 1960 World Series had been found in the former wine cellar of Bing Crosby, who had been a part-owner of The Pirates. The final game of that series is considered one of the greatest games ever (well, less so if you're a Yankee fan...), but it had been lost... until last month. Crosby apparently couldn't bear to actually watch the game, he was so nervous (he went to Europe instead), but wanted to be able to watch it later, so he actually hired a film crew to record the official broadcast, and they were just recovered (actually, right outside of San Francisco...) last month.

So here we have two of the greatest moments in baseball that we only have the archive of the actual game recordings because of people technically infringing.

Filed Under: baseball, copyright infringement, world series