Total Wipes Decides The Word 'Download' Means Infringement, Issues DMCA Takedown Loaded With Non-Infringing URLs

from the and-the-answer-is-'none.'-none-more-stupid. dept

Germany-based Total Wipes -- infringement cop to the stars (who don't care how idiotic their representation makes them appear) -- is still pursuing its unstated motto of "Quantität über Qualität." Why send targeted requests when you can just dump a bunch of unrelated URLs into a DMCA takedown request and let Google sort it all out?

TorrentFreak reports that Total Wipes is at it again, actively pursuing a lifetime achievement award in asinine takedown requests. It starts out by mistakenly effing with the EFF, generally not considered to be a good idea when you can't be bothered to uphold your end of the DMCA's sworn statement.

‘Protecting’ an album called “Cigarettes” on Mona Records, Total Wipes sent Google a notice containing not a single infringing link. Unbelievably one of the URLs targeted an article on how to use PGP on the Mac. It was published by none other than the EFF.

You'll notice that 'protecting' is surrounded by scare quotes, as should be anything Total Wipes "pursues" with its misfiring shotgun of a "business model." This particular takedown request appears to have achieved maximum stupidity with its 55 swings of the URL, none of which make contact. But it gets so much worse.

Going after alleged pirates of the album “In To The Wild – Vol.7″ on Aborigeno Music, Total Wipes offer their pièce de résistance, the veritable jewel in their crown. The notice, which covers 95 URLs, targets no music whatsoever. Instead it tries to ruin the Internet by targeting the download pages of some of the most famous online companies around.

We've seen various rights holders' self-appointed spokesmen attempt to portray the word "free" as synonymous with "infringement." Here, Total Wipes does the same, only with the word "download." Here are but a few of the 95 URLs "targeted" by Total Wipes' anti-piracy "software."

http://www.oovoo.com/download
http://www.icq.com/download/
https://access.redhat.com/downloads
http://nmap.org/download.html
http://www.foxitsoftware.com/downloads/
http://calibre-ebook.com/download
http://www.pdfforge.org/pdfcreator/download
http://www.getpaint.net/download.html
http://www.skype.com/en/download-skype/skype-for-computer/
https://java.com/download
http://www.openoffice.org/download/
http://www.gimp.org/downloads/
http://www.ubuntu.com/download/desktop
https://www.python.org/downloads/
http://dev.mysql.com/downloads/mysql/
http://notepad-plus-plus.org/download/
http://www.joomla.org/download.html
http://www.7-zip.org/download.html
http://www.raspberrypi.org/downloads/
http://unity3d.com/unity/download
http://httpd.apache.org/download.cgi
https://www.malwarebytes.org/mwb-download/
http://www.libreoffice.org/download
http://nodejs.org/download/
https://www.whatsapp.com/download/
https://evernote.com/download/
http://free.avg.com/free-antivirus-download
https://www.torproject.org/download/download-easy.html.en
https://www.gnu.org/software/octave/download.html
http://www.dosbox.com/download.php?main=1
http://rubyinstaller.org/downloads/
https://www.gnupg.org/download/
https://filezilla-project.org/download.php?type=client
https://www.dropbox.com/downloading
http://www.rarlab.com/download.htm
http://www.opera.com/download

A look at Total Wipes' "profile" at Google's Transparency Report shows the company has an appalling hit rate. It may actually have paying clients, but they're barely being served. If Google wasn't compelled to treat every incoming request as legitimate, in order to avoid further condemnation and/or potential Congressional action, it would have booted this farcical "music group" long ago.

Pretty much everything Total Wipes says about its anti-piracy "service" is either laughable or provably false.

Our carefully own created script uses the info you provide to deeply scan a vast range of IP networks, search engines, social sites, and other infringing locations for illegal instances of your content. Following a large group of data, our internal spider's scripts identify all links as valid or not, beginning the removal process. A consistently action of removing illegal instances of your content from all platforms drives higher sales.

If you manage to work your way past the broken, secondhand English, you're left with things like these:

"carefully… created script"

Really?

"internal spider's scripts identify all links as valid or not"

Well, obviously not. Unless "valid" simply means "live," rather than "infringing."

"removing illegal instances of your content… drives higher sales"

If someone could just introduce a little bit of evidence to back up this frequent assertion, that would be great. Providing legal alternatives that are reasonably priced and easy to use drives sales better than stumbling around the internet on your "own created spider," asking Google to remove multiple instances of non-infringement. Artists who have willingly associated with Total Wipes' inadvertent argument for harsher bogus takedown sanctions aren't doing themselves any favors. In their names, Total Wipes is repeatedly driving its anti-piracy clown car up to Google's door and unloading takedown after takedown loaded with more misses than hits.

Filed Under: copyright, dmca, downloads, takedowns
Companies: total wipes

Free Our Paywalled Court Documents: The Aaron Swartz Memorial PACER Cup Contest Announced

from the go-carl-go dept

Yesterday was the two year anniversary of Aaron Swartz's unfortunate suicide. Today, Carl Malamud, the leading champion of freeing up public documents and laws, has announced a National Day of PACER Protest, to be held on May 1st, with the "winner" (explained below) to get the Aaron Swartz Memorial PACER Cup. Malamud's discussion of this is pretty long, but well worth reading. If you don't recall, Malamud and Swartz have spoken out against PACER in the past many times (as have we). PACER, of course, is the horrific, antiquated paywall system by which the federal courts lock up tons of public documents and only make them available at 10 cents per page (with some exceptions). We rack up hefty PACER bills here at Techdirt all the time.

PACER, itself, is of dubious legality. The law that established PACER says that the fees collected can only be used for the system itself, yet the system is so profitable that the money flows back into other areas of the judicial system, and the Administrative Office of the US Courts doesn't want to give up on its cash cow. The system itself is painful to use -- slow with a horrible interface -- before we even get to the ridiculousness of 10 cents per page. A few years back, the courts tested letting certain libraries have free access to PACER, leading Aaron Swartz to stop by one of the libraries and set up a system to download a bunch of these documents. The Administrative Office called the FBI on him, though (of course) he hadn't actually broken any laws so he wasn't charged with anything. This also resulted in the "pilot program" being cut off and the libraries losing their free access.

Still the documents he did get out became the initial seed for the RECAP collection, available at the Internet Archive, which any PACER user can now add to using RECAP the law, a simple browser add-on that automatically uploads documents you view on PACER to the Internet Archive's collection.

Malamud describes a three-pronged strategy to knock down that PACER paywall, which he dubs the "red, white and blue" teams. The red team involves filing lawsuits challenging PACER's legality. The blue team, which Malamud will undertake himself, involves asking a bunch of courts for an exemption to PACER for some research that he's working on (and has been for some time, involving privacy issues related to PACER).

It's the white team approach that involves everyone else. One part of it is asking people to send notes to their local judges, just to inform them how totally screwed up PACER is (since many judges may not realize how much of a pain it is to the public). But the bigger part is that Malamud has proposed May 1st as a day when he wants lots and lots of people to use PACER accounts to download documents (and RECAP them). Here's where an important "caveat" in the $0.10 per page comes into play. If you rack up less than $15 of downloads in a quarter, PACER waives your fees. So Malamud is hoping that lots of people will sign up for PACER accounts and use May 1 to download cases right up to that line, so you won't have to pay.

On May 1, what if a lot of people all downloaded $15/worth of documents and perhaps even set a record day for amount of PACER usage?

Using your $15/quarter in “free” is an easy activity. You need to get a PACER account, then you need to get the RECAP extension for either Firefox or Chrome. Do this in the first quarter so you can casually and at your leisure make sure your setup is working. That way you know you’ll be set to go on May Day....

My hope is that groups will gather together and focus on a single district or circuit court. Law schools are a natural, it wouldn’t be hard to get a couple hundred law students at a school to all go after their local district. But, this doesn’t have to be limited to lawyers! For example, there’s a wonderful group called DC Legal Hackers which was started by Alan deLevie, Rebecca Wiliams, Jameson Dempsey, and other talented public-spirited people in Washington. Likewise, Chicago has an extremely active civic community and active groups such as the Smart Chicago Collaborative, founded by Daniel X. O’Neil. My hope is that some of these groups might get involved as well! (This memo is the first they will have heard of this, so I don't presume to task them with work, but only hope they will consider participation.)

In order to support the concepts of groups working together, I have made a small grant to the Free Law Project to add a simple “group name” field to your RECAP Extension preferences. They will furnish me a report on May Day showing each file and group name, so I can tally a total by district.

In other words, you can sign up for a "team" and Malamud will see which team helps free the most documents. And for the winner:

In order to stimulate a little friendly competition, we will monitor the RECAP logs on May 1 and for the group that uploads the most data for a single court we will award the Aaron Swartz Memorial PACER Cup, a handsome artifact suitable for display in your law school or civic venue trophy case. The next year, if PACER is still behind a paywall, we will rerun the competition and the new winner will get the cup. If and when the PACER paywall gets dropped, the last one holding the cup gets to keep it. We have commissioned Point.B Studio, who worked very closely with Aaron on projects for a decade, to design and implement the PACER Cup.

We strongly recommend taking part in this, though we also recommend that you sign up for PACER now, because it takes a bit of time. Make sure you have the hang of it now, in the first quarter (for less than $15 worth) before May 1st, so you're ready. Then get the RECAP extension for your preferred browser.

Oh, and feel free to put down "Techdirt" as your "group name" if you can't find a more worthy team to join...

Filed Under: aaron swartz, carl malamud, documents, downloads, pacer, paywall, public domain

FBI Wants To Know If Applicants Have Been Downloading Unauthorized Content

from the limiting-the-supply dept

Earlier this year, FBI Director James Comey suggested that the FBI might consider backing off its policy of refusing to hire anyone who has used marijuana in order to find competent computer folks who can deal with online crimes. After some backlash (and some support) for those statements, Comey quickly backed down, claiming it was all just a joke.

Now, TorrentFreak has revealed that beyond pot smoking disqualifying you, so might your history of downloading some music and movies. This came up at a Sacramento State Career Center information session held by the FBI, where the FBI made it clear that your downloading practices matter to the agency.

“If you’re doing that, stop doing it.” Dupree said.

He explained how the FBI will ask people during interviews how many songs, movies and books they have downloaded because the FBI considers it to be stealing.

During the first two phases of interviews, everything is recorded and then turned into a report. This report is then passed along to a polygraph technician to be used during the applicant's exam, which consists of a 55-page questionnaire. If an applicant is caught lying, they can no longer apply for an FBI agent position.

“If you are accepted to intern at FBI and fail the polygraph you can no longer apply to FBI again.” Dupre said.

From the sound of that, your history might not fully disqualify you, but it may come up again later in the process. TorrentFreak, though, found a post from a few years ago on a job board, where someone says that his downloading past kept him from being hired by the FBI.

It's interesting to note that TorrentFreak also turned up an article saying that downloading unauthorized content does not disqualify you from the CIA. The difference here actually makes some sense -- since the FBI actually does handle some cases involving copyright (though, that still seems ridiculous). Either way, if the FBI is barring people who use pot and who have infringed on copyrights, they're going to find themselves with an increasingly limited supply of computer experts for its computer crimes division.

Filed Under: cia, copyright, downloads, fbi, lie detector

EU's Advocate-General Says Dutch Allowing Unauthorized Downloads Is Incompatible With European Copyright Law

from the that's-awkward dept

Back in 2012, Ben Zevenbergen wrote a long piece exploring a complicated Dutch case that had been referred to the Court of Justice of the European Union, the EU's highest court. It concerned the home-copying exception of European copyright legislation, and hinged on the question of whether the Dutch collecting society could charge for the "losses" that result from people downloading both authorized and unauthorized uploads. That distinction needs to be made, since in the Netherlands downloading copyright material is permitted, but uploading it is not. Manufacturers of blank media claimed that they should only have to pay a lower copyright levy that covered just the downloads of legally-uploaded materials.

As is usual in cases sent to the Court of Justice, the EU's Advocate-General (AG) gives an opinion first. Although not binding, that opinion is usually indicative, and rarely ignored. Here's what the Advocate General P. Cruz Villalón has said in this case, as reported by the Future of Copyright site:

The AG notes that the reasoning of the Dutch government has its origin in the fact that the Dutch law tolerates that unauthorized work or material is downloaded from illegal sources and only uploads can be curbed. "Thus the Kingdom of the Netherlands supports indirectly but inevitably, the mass distribution of products resulting from an illegal exploitation of protected works and materials", which, according to Villalon, cannot be regarded as normal. "The trivialization of downloading content that circulates online without proper authorization […] undermines the normal exploitation". This practice is not compatible with the basic idea of EU copyright law, in which it is established that copyright holders are entitled to fair compensation, said Villalón. Furthermore, the AG is of the opinion that current levy rates on empty media carriers are too low to generate a fair compensation.

On that basis, he advised the court to hold that copyright levies should not be allowed on unauthorized downloads. That's a win for the blank media manufacturers, but the Advocate-General's comments about the Dutch approach to filesharing being incompatible with EU copyright law will be problematic for the Netherlands if the Court of Justice agrees.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, downloads, eu, eu court of justice, netherlands

Australian Recording Industry Continues To Fight The Technology That Is Saving It

from the death-wish dept

There have been many posts on Techdirt about the copyright industry's hatred for new technologies that eventually turned out to be important sources of additional revenue -- the VCR being perhaps the most famous example. Here's a splendid column from Adam Turner in the Sydney Morning Herald about the same thing happening again in Australia.

As he points out, last year Australia saw a 4% growth in music sales, which outpaced the rest of the world, whose much lower 0.3% growth we discussed recently. In other words, if anything, the Australian recording companies should be celebrating the present and optimistic about the future. Instead, they are once more frightened by some technological developments that will in fact help them: an upgrade to the country's Internet infrastructure. Here's how Turner puts it:

As the National Broadband Network [NBN] rolls out across the country, it's going to make music and video downloads more accessible to all Australians. It's time for the music industry to learn the lessons of the past decade and seize the initiative. But it seems you can't teach old gucci-clad dogs new tricks.

"If more action isn't taken by the government and ISPs to curb piracy levels the NBN could have disastrous results for the local industry," according to a major report from the International Federation of the Phonographic Industry. "All Australian content industries" will suffer if pirates are allowed to run rampant on the NBN, added Dan Rosen -- CEO of Australian Recording Industry Association.

It's really extraordinary that even in the face of figures that suggest digital sales are taking off, the recording industry is still demanding harsher measures against people who share unauthorized copies of files online, as if that ever worked -- or ever could work. For, as Turner rightly says:

Ramping up the war on its customers won't see people start buying more music. It's a war the music industry can't win, but it seems determined to die trying.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: australia, business models, downloads, high speed broadband, technology

Game Of Thrones Director: I'm 100% Opposed To The Piracy I Just Said Helps My Show Survive

from the getting-it dept

You know, sometimes content creators can be really confusing. Take Game Of Thrones director David Petrarca, for instance. Remember early last year when we mentioned that the show was on track to become the most pirated television show of 2012? And how the success of the show might actually be a result of piracy, rather than its cause?

Well, ChurchHatesTucker writes in to tell us that Petrarca recently opined that piracy is at least partially responsible for the success of the show, providing an avenue through which more people talk about it and comment on it within greater society.

Panel mediator Rosemary Neill noted Game of Thrones was the most pirated show of 2012 and that 10 per cent of the downloads came from Australia. But Petrarca shrugged and said the illegal downloads did not matter because such shows thrived on "cultural buzz" and capitalised on the social commentary they generated.

"That's how they survive," he told the crowd gathered at the University of Western Australia.

Yes, in addition to allowing late-comers to catch up on episodes in preparation for new seasons, piracy helps keep the show in the societal bloodstream, keeps the buzz going, and generally creates more excitement and awareness of the product as a whole. If HBO could manage to provide a more innovative method for delivering the show to those that want it, likely the boon could be even greater. Still, Petrarca noted that HBO is doing well with their subscriber base.

He said HBO alone had 26 million subscribers in the US and 60 million worldwide, which meant there was plenty of money filtering in and allowing the channel to produce high quality content despite any illegal downloading.

While this all sounds reasonable, I wouldn't want to be accused of not presenting the other side of the argument on whether or not piracy helps or hurts this sort of media. So, here to present a rebuttal to David Petrarca... is David Petrarca. He recently had a Twitter exchange with our own Glyn Moody, including these highlights.

I am 100% against illegal downloading. I said that downloading creates buzz but def am NOT in support of illegal downloads. The issue is a distribution system that gets content to viewers legally in a timely manner. People want to pay if made available.

While it should be noted that he certainly isn't being belligerent here, and he in fact notes that if a great distribution option is available fans will pay for content, it's difficult to square the first part of this statement with what he said in the article. Remember, he was specifically responding to a question about piracy (not authorized downloads) and then responded that it helped create social buzz for shows like his and "that's how they survive." But he is "NOT in support of illegal downloads?" I think I understand this to mean that he simply thinks the ideal solution is the kind of distribution platform that would drive nearly everyone away from piracy, by providing widely available, authorized downloads, and with that I'd agree. Still, in the absence of that great system, which HBO certainly doesn't offer, why staunchly state that you're 100% against piracy when you've already said it's helped you survive? I assume that Petrarca likes surviving, but perhaps I'm wrong?

Or, perhaps, the sudden attention that the original story was getting created pressure for him to walk back those statements. Glyn was not the only one that Petrarca reached out to with identical statements: Perhaps it's possible that, like many in the entertainment industry, Petrarca recognized that infringing copies were, in fact, good for his show, but that actually saying that leads to backlash from within. We've asked Petrarca whether or not he heard from anyone at HBO regarding his original comments, and will update this post accordingly should we hear back.

Filed Under: david petrarca, downloads, game of thrones, hbo, piracy, retractions

EMI Was Actively Giving Away MP3s It Accused Michael Roberston Of Downloading Illegally

from the oops dept

You may recall EMI / Capitol Records ongoing lawsuit against MP3Tunes and its founder/CEO Michael Robertson. The initial ruling in that case went almost entirely against EMI, with one small exception that we'll get to soon. EMI asked the court to reconsider the ruling, claiming that it had made some mistakes, but the court slammed EMI for some questionable behavior, including taking a number of quotes completely out of context as an attempt to mislead the court. The latest on that case is that following the appeals court ruling in the YouTube/Viacom case that sent that case back to the lower court, EMI pretended that the ruling changed everything and required a new ruling. The two sides are currently filing motions back and forth over that, with MP3Tunes pointing out that nothing in that ruling actually changes anything, and EMI claiming otherwise. Given the narrow aspects of the Viacom ruling, I think that EMI is still unlikely to get very far. Still, it's fairly amazing how much time, money and effort it has spent on this case, even as the company itself got into serious trouble and was sold off in, effectively, a fire sale.

Which then brings us to the other aspect of the case. The one area in which EMI "prevailed" in the original case was in the part they filed against Robertson personally. The court had ruled on summary judgment that Robertson was liable directly for 47 songs that he had personally "sideloaded" into MP3Tunes. However, even that part of the case was strange. Initially, EMI had claimed that it had never, ever, ever authorized any MP3s to be given out for free for promotional purposes. In response, Robertson crowdsourced examples of over 1,400 cases where EMI was clearly giving away MP3s for free. However, the court still ruled that he was liable.

In the latest filing about that, Robertson hits back on a number of points, starting with the fact that the court ruled on summary judgment on the issue, even though EMI and Robertson had already agreed that the summary judgment part of the dispute wouldn't cover Robertson's personal liability. Because of that, he didn't present the full argument for why he shouldn't be liable, and thus he's asking that the court allow that part to go to trial in order to show that the evidence of his own infringement is lacking.

In order to support that, Robertson's filing demonstrates a few important things. First, it shows a bunch of evidence that EMI purposefully and deliberately marketed its music to various sites asking them to give away MP3s and even to share the music widely. Second, it shows that, despite being asked for this info during discovery, EMI did not provide it. Instead, Robertson got it later from other sources. This is a big no-no, and EMI may run into some issues for failing to hand over the required information during discovery. Still, what the filing shows is that EMI regularly and frequently hired companies to distribute MP3s for free, and encouraged them to be put up on various websites and shared widely. And this includes some of the songs that Robertson is accused of infringing and some of the sites he's accused of downloading the songs from.

Reading pages five through nine in the motion he filed demonstrates this over and over again, including in an email from an EMI Publishing employee, who not only is planning a promotional download but says part of the plan is to "encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site." Here's just a snippet of some of the examples Robertson turned up of EMI using free MP3s in marketing (which they did not properly disclose):

For example, Definitive Jux (an EMI label) entered into an agreement with viral marketing firm, Better Propaganda, which granted Better Propaganda the right "to use, copy, distribute, display and perform [a specified song] on and through the Internet and the World Wide Web..."). This song remains available on the Better Propaganda site. Plaintiffs did not produce this document....

Similarly, Astralwerks (another EMI label) engaged Toolshed, Inc. ("Toolshed"), a Viral marketing firm, to distribute sound recordings pursuant to a marketing program by which Toolshed would virally distribute free MP3 downloads through various blogs and Toolshed's own website. Importantly, Toolshed's webpage for downloads notes clearly that "All songs . . . are pre-licensed for use on your site. Simply browse, find music you like, and copy it to your page." .... Toolshed has done projects for numerous labels, including EMI labels Astralwerks, Capitol Records, Caroline Records and Definitive Jux Toolshed distributed free MP3s for numerous of Plaintiffs' artists -- including Air, Willy Mason, Bat for Lashes, Pacificl, Carbon/Silicon, The Perceptionists, and Amos Lee -- including one of the same artists that Robertson is accused of wrongfully sideloading.... Plaintiffs did not produce documents they exchanged with Toolshed relating to those projects.

One project by Toolshed is especially important: as emails (dated March 5, 2007) provided to Robertson from Toolshed indicate, Astralwerks paid Toolshed to get websites to give away MP3s for the new release of the album "Pocket Symphony" by Air, to be released on March 6, 2007.... Toolshed achieved coverage, including free downloads of a track and/or video placement, with numerous sites, including 3HiVe, Donewaiting, Kevchino, Music for Kids Who Can't Read Good, Muzzle of Bees, PopMatters, Sixeyes, Stereogum, Antville, and Kingbline..., some of the same sites and the same artist from which Robertson is accused of wrongfully downloading Plaintiffs' songs and which Plaintiffs have alleged are unauthorized sources of MP3's.... Plaintiffs did not produce such documents.

In many ways, this is reminiscent of the whole Dajaz1 situation, in which the lawyers are insisting that the distribution on various blogs is infringing, at the very same time that their marketing people are begging those same sites to offer up the songs as a promotion.

Separate from all of this, but in the same filing, Robertson hits back on the claims that the use of cover art in MP3Tunes infringed. The filing notes that MP3Tunes had licensed all the cover art from Amazon and that EMI never even bother to show that it held the copyright in the cover art. All they showed was that the company had copyrights in the songs, but that's different from the cover art (and made more complicated by the fact that the copyright in the cover art might belong to the artists who created the art, rather than EMI).

All in all, the filing reinforces what's already come out in the earlier rulings: which is that EMI seems to have an incredibly weak case here, but due to what appears to be a random infatuation with going after Robertson personally, is just throwing everything it can at him.

Filed Under: copyright, downloads, infringement, michael robertson, promotions