Desperation Of SOPA/PIPA Supporters On Display At CES

from the are-they-serious? dept

Yesterday, at the Innovation Policy Summit at CES, I attended the panel about SOPA/PIPA. The who, what, where and when is mostly covered via that link, but I wanted to focus on the comments of the one SOPA/PIPA supporter on the panel: Sandra Aistars, from the Copyright Alliance. I have to admit that I was pretty surprised by some of her statements, mainly because she didn't actually seem to understand what was being debated at different points in the conversation, and any time people asked an even remotely nuanced question, she fell back on broad talking points.

Ironically, her favorite talking point, which she repeated every time she was challenged on just about anything, was to accuse everyone else of empty rhetoric and hyperbole about the bill. Except... everyone else on the panel was talking specifics, backed up by fact, while her claims didn't even pass the laugh test and seemed like pure rhetoric. She kept insisting that Lamar Smith's "manager's amendment" had fixed all the problems (which is funny, since it sounds like we're about to get a "manager's amendment" to the manager's amendment).

There were two specific claims that needed to be addressed, though, because they're totally divorced from reality (which is all too common from SOPA/PIPA supporters). The first was in response to a question from Andrew Bridges about specifically which sites Sandra thinks SOPA/PIPA need to be gone after. After all, we keep hearing that the bill is needed to go after "foreign" rogue websites that can't be gotten at by today's law. But, as we've noted, sites like The Pirate Bay, Rapidshare and Megaupload all use .coms or .orgs... which are exempt from SOPA/PIPA. Furthermore, Bridges pointed out that US companies have already filed lawsuits against Rapidshare, Megaupload, Kazaa and many other "foreign" players... and have brought many of them to US courts (in fact, Rapidshare was declared legal, which throws a wrench in the whole "rogue sites" thing).

Amazingly, Aistars insisted that those were exactly the sites they were targeting! Yes, the same sites that can and are being sued under existing US law and which are immune from SOPA/PIPA. It makes you wonder if she even knows what's in the bill, or how the bill defines "foreign" sites.

The second stunning claim was in response to a series of quite reasonable questions about why backers of the bill feel the need to conflate things like counterfeit drugs with music downloads, despite them being totally different. Multiple people asked why not craft specific bills to deal with each thing. The usual response to this kind of question is to claim that they're "both the same kind of violation," which is not accurate at all (as we'll explain in a moment). But Aistars took that to the next level, claiming that it was the same sites who were doing both things. To which all we can say is: which sites are involved in both selling fake pills and offering music/movie downloads? Someone on Twitter suggested that I had obviously missed "thepirateviagrabay." So, there's that.

But, really, as pretty much everyone else in the room seemed to understand, the two situations are extremely different. Trademark/counterfeiting laws are about consumer protection against people being fooled by "fake" products with real brands on them. They involve sites that are selling physical goods in exchange for money, where actual product needs to be shipped. Cyberlockers, torrent trackers, search engines and the like -- whether you agree with what they do or not -- have nothing to do with any of that. All of them provide a service for people to upload/download content (some infringing, some not). They're not "selling" the infringing works and they're not "tricking" people into believing a fake product is a real one. The circumstances are entirely different.

Of course, as someone else on the panel noted, we all know that the trademark holders (some of whom support SOPA/PIPA) are not driving the legislation. It's totally being driven by the MPAA/RIAA. The only real reason to lump the two very different things together is so that supporters of efforts to crack down on services that enable some infringement can pretend that there's real "harm." You see it all the time (and Aistars did this as well). Any time people bring up harm, you talk about fake drugs or counterfeit products. But any time people talk about the size of the "problem" they focus on how much traffic goes to cyberlockers. The two things are very different, but by conflating them, they can pretend the problem is both "dangerous to consumers" and "big." But the only way to do that is to ignore the fact that the part that's dangerous to consumers is actually a very small issue, and the part that's big isn't clearly harmful to consumers.

Filed Under: ces, pipa, protect ip, rogue sites, sandra aistars, sopa

If SOPA's Main Target Is The Pirate Bay, It's Worth Pointing Out That ThePirateBay.org Is Immune From SOPA

from the just-saying... dept

In looking over Eric Goldman's excellent "linkwrap" of a bunch of recent SOPA/PIPA stories, it pointed me to a News.com article from last month, about how SOPA was really about going after one single site: The Pirate Bay. I've actually heard this repeatedly -- and from folks heavily involved with the bill itself. The whole point of the bill is to try to take down The Pirate Bay. Now, we can argue back and forth about how pointless that is... but there's something else that seems important:

As written, nothing in SOPA can touch ThePirateBay's main website, ThePirateBay.org

That's because the current version of the bill excludes any .com or .org. from being a target (though, they can be required to take action against other sites). This has caused some confusion, mainly because of the changes between the original version of SOPA and the "manager's amendment," which is the current version of the bill. The manager's amendment makes you jump through some hoops to understand this, but the key point is that a "U.S.-directed site" is defined to be a "foreign internet site" in the bill (in the original SOPA, a U.S.-directed site could be any site). Then, a foreign domain name is listed as not a "domestic domain" (keep hopping!), which itself is defined as "a domain name that is registered or assigned by a domain name registrar, domain name registry or other domain name registration authority that is located within a judicial district of the United States."

This means that all .com or .org domains are domestic, since they're assigned by a registry that is located within the US (for those confused, a domain registry is a company like VeriSign that runs the master database of all domains under a single top level domain). The thinking here is that (as ICE and the Justice Department have claimed) any website that has a TLD that is controlled by an American company can be dealt with via existing laws, such as the one that ICE uses to seize websites. .com is run by VeriSign, which is based in the US. And .org is run by the Public Interest Registry, which is also based in the US (Virginia, specifically).

That means that thepiratebay.org -- the main website for The Pirate Bay... is actually immune from the two key parts of SOPA (sections 102 and 103, since both clearly state that they only cover "U.S.-directed sites").

So, based on the law as written... The Pirate Bay is immune from SOPA (though, potentially not from ICE just seizing the domain). It's worth noting the same is true of both RapidShare and Megaupload -- two other sites frequently cited by the MPAA and the US Chamber of Commerce as the types of awful, evil sites that these bills are targeted to take down. In fact, remember that "53 billion visits to rogue websites" claim that the US Chamber of Commerce loves to repeat? Nearly half of that is from RapidShare and Megavideo/Megaupload. And yet, those sites are clearly excluded from SOPA based on the definitions. So why would they still be trotting them out as examples?

Filed Under: domains, domestic sites, rogue sites, sweden
Companies: the pirate bay

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

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

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

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

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

Company Claims Its Software Can Magically Identify 'Rogue Sites'

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

A company called RogueFinder is claiming that it has automated the process for finding rogue sites:

The basic idea is to draw links between seemingly unconnected “rogue” web sites, e.g. web sites selling counterfeit goods. According to the RogueFinder web site, its software takes minutes to do what it takes forensics teams months to achieve.

It uses data from registries, registrars, web hosts, servers, and ISPs as well as inspecting the sites’ “invisible source code”.

Sounds useful for playing parlor tricks. Not so sure for a system involved in blocking protected speech. As we've discussed time and time again, one of the issues in all of this is that determining what is and what is not infringing is not an easy task. At all. It takes a human being who can actually analyze the situation and how it falls under copyright law -- including exploring specific exemptions. It's time that we got rid of the myth that there's any significant way to magically identify what's infringing and what's not.

Filed Under: monitoring, rogue sites

A Bunch Of RIAA Label Artists Endorse MegaUpload... As RIAA Insists It's A 'Rogue' Site

from the how's-that-working-out-for-you? dept

Supporters of PROTECT IP and SOPA are continuing to insist that they need to take down these horrible "rogue sites" to protect the artists, who they insist are being robbed blind by the sites. The US Chamber of Commerce keeps trotting out stats about how much traffic these sites get. Yet, as we noted recently, a huge percentage of the traffic that bill supporters keep insisting is "rogue" is from the sites MegaUpload and MegaVideo. So, it seems noteworthy, as TorrentFreak has revealed, that a large group of the biggest RIAA music stars have all performed on a song/video endorsing MegaUpload and how useful it is: Among the stars taking part: P Diddy, Will.i.am, Alicia Keys, Kanye West, Snoop Dogg, Chris Brown, The Game, Mary J Blige , Kim Kardashian, Floyd Mayweather and Jamie Foxx.

“When I got to send files across the globe, I use Megaupload,” declares Will.i.am, an artist signed to labels owned by RIAA-members Warner and Universal.

“When I’m sending my hits out I use Megaupload, ‘cos it’s fast. I can receive hits and I can send ‘em out,” declares P Diddy, an artist signed to Interscope, a label owned by Universal.

Kanye West, signed to Universal-owned Def Jam, likes to use Megaupload “…because it’s the fastest and safest way to send files – period.”

Alicia Keys, who is signed to Sony-owned RCA, says she uses Megaupload “….because I know that I can get my music safely and quickly -and you know that I’m serious about my music.”

Snoop Dogg, signed to EMI-owned Priority, uses it “…because it keeps the kids off the street,” and The Game (Universal) says that even his lawyers know he uses it, “…and I got plenty of them.”

And yet the RIAA, the MPAA and the US Chamber of Commerce are still insisting that MegaUpload is "rogue" and must be shut down? How's that work now?

TorrentFreak's article also reveals some other info about MegaUpload's plans -- some of which may be pretty controversial in other areas. For example, they want to get people to use a product called Megakey, which basically gives them access to "premium" services for free... but in exchange for having ads you see on other sites replaced by ads sourced from Mega. That's a lawsuit of a different nature waiting to happen. Replacing ads on other sites has resulted in lawsuits in the past. The details of how that actually work would be interesting, but I don't see how it doesn't end up tied up in court at some point.

Filed Under: cyberlockers, diddy, kanye west, pipa, protect ip, rogue sites, sopa, will.i.am
Companies: megaupload, riaa

Data Shows: Removing 'Rogue Sites' From Search Won't Make Much Of A Difference

from the stop-blaming-google dept

The legacy entertainment industry absolutely loves to blame Google for its problems. As I've noted in the past, it's mostly a correlation-not-causation error. That is, they see their own difficulty in adapting and sinking revenues (mainly at the record labels) and they see Google making a ton of money -- and they conclude that the two things are related, and that Google must be to blame. That's why they keep demanding that Google "take action" against the so-called "rogue sites." It seemed like a reasonable question, then, to see just how much traffic Google actually sends to these sites. Thankfully Compete tracks a lot of this kind of data... and the MPAA recently handed us a list of "rogue sites" to look at.

Pulling up the data on traffic sources for every site listed there shows that taking the big search engines out of the equation would barely matter. Across all 19 sites listed, 85% DOES NOT come from search (Google, Yahoo and Bing). Specifically, across all of those sites, the big three search engines deliver a whopping 15.2% of the traffic to those sites. Google sends about 11.5% of the traffic. Remove search links... and those sites will see a slight dip -- at best.

Of course, not all of these sites are equal, so we decided to look more closely at the favorite bogeyman of the legacy entertainment industry: The Pirate Bay. To hear the industry tell the story, if Google just blocked The Pirate Bay from its results, traffic would dry up. The evidence there suggests that the entertainment industry doesn't have the facts on their side (do they ever?). Google search drives slightly less than 22% of The Pirate Bay's traffic. Considering how many sites rely on Google for traffic, this is well below average. Add in Yahoo Search and Bing, and we're still talking about less than 28% of TPB's traffic actually coming from search.

And of that search traffic, what are people searching for? Well, most are searching for some variation on "the pirate bay." We looked at all of the search traffic to TPB for the past three months. The top 16 search terms that send traffic to TPB are some variation on the site's name. These are the top eight search terms, for example:

1. pirate bay
2. the pirate bay
3. piratebay
4. thepiratebay
5. tpb
6. piratebay.org
7. pirates bay
8. thepiratebay.org

In other words, people getting to TPB from Google already know exactly what they're looking for. It's actually pretty rare for people to just randomly search on an artist's name, and have Google send them off to The Pirate Bay. In fact, going through the top 100 search terms that take people to The Pirate Bay, less than 30% appear to be direct searches for infringing material -- and only two of those don't involve the material in question and a word that shows the person is clearly looking for infringing material (mostly "torrent", but sometimes "serial number" or something like that). Meaning that only 2 of the top 100 searches that drive people to The Pirate Bay actually involve people just searching for content without making it clear that they're looking for either TPB or a torrent file specifically. Those two searches? "Drake take care download" and "r kelly sex tape."

Take Care, of course, is Drake's high profile new album -- the same one that Drake made clear he didn't mind if people listened to the leaked versions online -- effectively sanctioning people to search for the downloads. It's also been a highly successful album on the sales front, anyway -- selling over 600,000 copies in its debut week. Doesn't sound like Drake is really suffering because of this search. As for the R. Kelly tape... well... let's just not go there.

Still, the point is pretty clear: Google and the other search engines don't really drive that much traffic to TPB (or other so-called "rogue sites"), and an awful lot of the traffic they do drive... is people searching for TPB itself (meaning they're just using Google as a shortcut, rather than to "discover" infringing works). And, when Google does drive people to specific content, it's usually because the person is already looking for what's almost certain to be an unauthorized version. Thus, the picture the industry paints of people doing innocent searches for authorized content, and somehow being waylaid by Google pointing them to TPB just isn't seen in the data. At all.

Force Google, Yahoo and Bing to "block" links to TPB and it will have almost no impact on traffic to TPB. It may annoy some people who use Google for navigation (rather than discovery), but it won't stop them from going to TPB, since that's clearly what they want. The drive to force Google to either block or "warn" people about these links seems entirely pointless based on the data. So, once again, the data suggests that the industry is in hysterics based on reasons not supported by the data. The effort to make search engines block links would be a total and complete waste of time.

Filed Under: hype, rogue sites, search, traffic
Companies: google, microsoft, the pirate bay, yahoo

A Step By Step Debunking Of US Chamber Of Commerce's Dishonest Stats About 'Rogue Sites'

from the let's-go-through-this dept

The issues of SOPA/PROTECT IP and censoring the internet are slowly creeping into more mainstream news sources. PBS Newshour hosted a brief debate, mostly focused on the recent domain seizures. The debate was between Steven Tepp, the former Copyright Office official, who jumped ship to the world's largest lobbying organization, the US Chamber of Commerce (who, along with the MPAA has been leading the charge in getting SOPA and PROTECT IP approved) and Larry Downes, author and consultant, whose excellent work on both the domain seizures and SOPA/PIPA we've mentioned repeatedly. Unfortunately, as you might expect in 10 minutes, it's hard for anyone to get into much depth. I think Downes made a key point early on in noting that these domain seizures are almost entirely "symbolic," since the sites themselves aren't seized.

But what I really wanted to focus on was how Tepp misleads with statistics. This is a specialty of the US Chamber of Commerce, and Tepp plays exactly to expectations here. First, you can watch the full 9 minute video, if you'd like: And let's call out the specific examples of how Tepp misleads with stats:

"The scope of the problem is unbelievably huge. Rogue websites -- those dedicated to the theft of American intellectual property, our creative and innovative products -- get over 53 billion visits every year. That's 9 visits for every human being on the face of the earth. And they've been estimated to do at least $135 billion in harm to legitimate businesses. The products they sell are made in completely unregulated facilities, and can often be, not only shoddy, but harmful to consumers' health."

So much misleading in one little paragraph. Lets start with the 53 billion claim. Guess what? It's from a US Chamber of Commerce-funded study by an anti-piracy monitoring company called MarkMonitor. And the details suggest serious problems with the study. First, the study itself was based on Alexa, widely considered the least accurate web traffic measuring tool out there. Second, the number of "visits" to any site is an especially meaningless number -- especially when trying to discuss the actual economic impact of such visits. Who cares how many visits there are if we don't know anything about what people do on those sites?

Third, a large percentage of those visits all come from three sites: RapidShare, Megavideo and Megaupload. These are three cyberlockers that the industry has declared as "rogue," but which have significant legitimate purposes. Rapidshare, in particular, has been repeatedly ruled to be perfectly legal, both in Europe and in the US. The company follows DMCA takedown rules and has plenty of legitimate uses. Including Rapidshare in these calculations makes the whole thing a joke. And none of those sites are involved in "selling" counterfeit goods that put US citizens in harm's way.

Fourth, that "estimated to do at least $135 billion in harm," is a totally made up number. The US Chamber of Commerce cites a different MarkMonitor report to support that. But it's not actually a report or a study or anything like that at all. Instead, it's promotional "white paper" (read: sales pitch) from MarkMonitor entitled "Seven Best Practices for Fighting Counterfeit Sales Online." That report does say that "criminals" setting up ecommerce storefronts "will likely cost legitimate businesses $135 billion in lost revenue this year." But it doesn't source that number. Notably, other statistics in the report are sourced. Which makes you realize that the $135 billion is basically made up. But Tepp doesn't mention that.

Fifth, he focuses on "the products they sell." This is the really slimy part, for which Tepp should be ashamed (if the man had any shame at all). The obvious implication of all of this is that when you tie together these disparate numbers -- you've got 53 billion visits to sites selling counterfeit goods that may be harmful to consumers. We've already pointed out that the 53 billion is bogus -- but it's even more bogus when combined with this final sentence. That's because that same MarkMonitor report that gave us the 53 billion, also notes that the traffic to sites selling counterfeit goods is a minuscule percentage of the 53 billion. Specifically, the same report says that the sites selling counterfeit goods receive merely 87 million per year... or 0.1642%. That's not 16.42%. Or even 1.642%. It's 0.1642% of the total. In other words, the sites actually selling counterfeits... seem pretty small.

Sixth: even that exaggerates the problem -- because even then you'd have to assume that every one of those sites involves selling counterfeits that are shoddy or harmful. But that's crazy. Most counterfeits are merely replica versions, that are passable. They're not harmful in any way. So now we're talking about significantly less than 0.1642% of the big scary 53 billion he's talking about. Basically, the 53 billion, besides being meaningless in general, has no connection to the rest of the claims about losses and harm to consumers. It's complete and utter bunk.

What you have here is that Tepp and others are taking a real, but tiny problem: mainly an exceptionally small number of counterfeit drugs, and then pretending that the "harm" is broad and applying it to sites already judged to be perfectly legal, because some people use them for copyright infringement. The reports he relies on actually show what a tiny problem this is, but tries to mask that by lumping a bunch of totally disparate things together, from the tiny percentage of fake drugs out there... to the already judged to be legal cyberlockers like Rapidshare.

Tepp's misleading bogosity doesn't stop there. He then goes on to claim that these sites "steal jobs." Um, how? But beyond the rhetoric, lets get back to the misleading numbers. Later on he states:

"Another study, earlier this year, showed that 19 million Americans have jobs that rely on 'IP-intensive industries.' This is a huge part of the American economy. 60% of US exports are from 'IP-intensive industries' and $7.7 trillion dollars are output from 'IP-intensive industries.'"

This one we've attacked head on before. The intellectually dishonest bit here is easy to spot. It's the reliance on "IP-intensive industries." Not IP. The "study," if you can call it that, involves the biggest maximalists teaming up to fund a report that defines "IP-intensive industries" extremely broadly and then pretends that everything that comes from such industries... is because of strong IP laws. That's ridiculous, because you know who's included in the "IP intensive industries"? Basically every tech company -- including all of those which are fighting against these crazy new laws.

Tepp is being intellectually dishonest in the extreme here, suggesting that the only reason that the broadly defined "IP-intensive industries" are so successful is because of IP law. But that's showed to be bogus quite simply. As CCIA has done for years, it uses the very same methodology to show that exceptions to IP contribute more to the economy than IP laws themselves. You can't except one report without accepting the other since the methodologies are identical. There are only two logical conclusions from this: (1) the suggestion that those jobs, exports and output numbers are due to IP are complete bunk or (2) Tepp and the US Chamber of Commerce really believe we should do away with IP completely, since his own favored methodology shows that the less IP laws we have, the greater the output. So which is it, Steve?

Either way, Tepp is being painfully intellectually dishonest throughout the entire interview, citing facts and figures that are misleading in the extreme, if not completely bogus. What's unfortunate is that none of the press that lets Tepp speak his mind ever calls him on these ridiculous claims.

Filed Under: bogus data, domain seizures, rogue sites, stats, steve tepp
Companies: us chamber of commerce

Viacom Exec: 'Everyone Knows A Rogue Site When They See One'… Except He Doesn't

from the are-they-serious? dept

There's apparently a bit of a debate within the American Bar Association over its position on SOPA/PROTECT IP. As you can imagine there are lawyers on all sides of the debate. However, some folks involved in the copyright and trademark legislation committees put forth a motion for the group to "support" the proposed laws, leading to some pretty strong push-back from a lot of lawyers (including those who were involved in crafting the DMCA's safe harbors, who see the attempt by SOPA to undermine all of that work as pretty nefarious). Some of those involved in the debates have been sharing some of the back and forth, and among the discussions is an absolutely stunning email from Michael Fricklas, the general counsel of Viacom, and the driving force behind that company's billion dollar lawsuit against YouTube. Think of that as you read the following statement:

In the field, it's pretty easy to tell if you're using a domain that is dedicated to infringing material. If you choose to speak there, I suppose your speech is at risk until you choose to move it elsewhere. I don't think there is a first amendment right to speak on a site that is engaged in pervasive copyright infringement (assuming that there are plenty of places to speak).

It's this single statement that, I think, encapsulates the key point of disagreement between those who support SOPA/PIPA and those who don't. Those on the "stronger enforcement" side always seem to assume a "you know it when you see it" definition of "dedicated to infringement." We hear this all the time when we talk about the possible unintended consequences of such laws or ICE's domain seizures or other attempts at greater, more draconian enforcement efforts. One group insists that "it's obvious" what's infringing and what's not. Sometimes they'll even point to a particular file, as if that "proves" that it's easy to tell what's infringing.

But reality isn't so simple. Let's take Fricklas and YouTube as an example, since he's so sure that "it's pretty easy to tell" when "you're using a domain that is dedicated to infringing material." After all, according to Fricklas' own lawsuit, YouTube qualifies. If SOPA were in place half a decade ago, Fricklas wouldn't have filed a lawsuit. He would have just declared YouTube as "dedicated to theft of U.S. property" under the definitions in the bill ("enabling" and "facilitating" infringement? check! did Youtube "avoid confirming a high probability of the use" of the site for infringement? perhaps. check!). Then he'd send notices that would have effectively killed YouTube, forbidding advertising or payment processors to do business with the site. While YouTube could counternotice, there's no requirement for ad providers or payment processors to ever take it back, and, in fact, the incentives are there for them to just avoid doing business with anyone accused.

So, Viacom gets to kill YouTube, because in Fricklas' mind, it's "it's pretty easy to tell" that YouTube is "dedicated to infringing material." There's just one problem. Back here, in reality, determining what is and what is not dedicated to infringing material is not so easy. It's so confusing, in fact, that Fricklas and his team realized just before the case started, that some of the videos they were suing over, claiming they were infringing... were actually uploaded by Viacom directly. You see, it turns out that it's not so easy to tell. And, perhaps, Fricklas believes that Viacom shouldn't have rights to free speech on platforms like YouTube, as he implies in his statement, but the law doesn't quite work that way. And that's why Viacom was soundly trounced in its lawsuit against YouTube.

The best legal ruling I've seen that does a wonderful job explaining this comes from an Australian court, rather than a US court. In the iiNet case, the judge explained:

Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.

Copyright infringement is not a straight yes or no question. It involves "a very significant quantity of technical and legal detail." It's easy for people to declare that "it's obvious." But the reality is that it's very rarely obvious. That's why there are supposed to be full on adversarial hearings to determine this kind of thing so that, as in the iiNet trial, all sides can be heard, rather than imposing a sort of death penalty based solely upon a one-sided accusation. Because, all too frequently, we discover that the "obvious" infringement in the accusation turns out to be anything but obvious.

We've already seen it in the US numerous times with ICE's itchy trigger finger. Remember how ICE seized a blog based on claims by the RIAA that it was "dedicated to infringement." Unfortunately, the evidence showed that every song used as "proof" of such infringement, was actually sent by authorized representatives (and one came from an artist who had no connection to the RIAA at all -- not that it stopped the RIAA from declaring it infringing).

What seems "obvious" is rarely as "obvious" as it seems.

But it's this stunningly hubristic belief that it's "obvious" and that the nuances and details of copyright law aren't important, that drives folks like Fricklas to support laws with tremendous unintended consequences. No one denies that there's no legal protection for infringement. But, we want to make sure that when we stamp out infringement that's all we're stamping out. Tragically, having folks like Fricklas telling us that "it's obvious" as to what's infringing and what's not and suggesting that we can trust them to always get it right is not particularly compelling, given their dreadful track record on the subject to date.

Filed Under: copyright, michael fricklas, obviousness, protect ip, rogue sites, sopa
Companies: viacom, youtube

Go Daddy Supports E-PARASITE Legislation Even Though Its Own Site Is Dedicated To Theft Of Property Under Terms Of The Bill

from the find-a-new-gc,-folks dept

The supporters of the new E-PARASITE Act (the even worse version of the already dreadful PROTECT IP) have been pretty desperate trying to find any "tech" companies to support these bills. It's kind of amusing that the only ones they've been able to turn up so far have been some of the most hated companies around among techies. First, they had Monster Cable go to Congress in support of the bill, without even realizing that in Monster Cable's view, "sites dedicated to piracy" would include eBay, Craigslist, Sears and Costco, among others -- basically proving the point that the broad private right to action in the bill would be massively abused.

Their latest attempt to roll out a "tech company" supporting these bills is equally hated and equally laughable. I know that any time I mention GoDaddy in almost any context on this site, the anti-GoDaddy comments come flying fast and furious. So its reputation in tech circles is already suspect. And while in the past it was skeptical of E-PARASITE's predecessor, COICA, it appears that GoDaddy has been convinced to be the latest "tech company" to talk about why such laws are a good idea. The company's general counsel, Christine Jones, published a laughably misleading op-ed in the paywalled section of Politico. I won't bother quoting it directly, given that I don't want to be accused of circumventing DRM and face having my entire website shut down by an overzealous "notification" to my registrar under E-PARASITE (or merely an ICE seizure).

However, the really stunning thing is that Jones doesn't even seem to understand the bill that she's supporting. Specifically, she doesn't seem to recognize not just the compliance costs it puts on GoDaddy (or maybe she's hoping, as a large player, that GoDaddy is better to withstand the costs, while smaller competitors may go out of business -- but that's a particularly cynical viewpoint). She also doesn't seem to realize that under the bill's broad definitions GoDaddy itself is a "site dedicated to the theft of US property".

That's because among the definitions of a site that's "dedicated to the theft of US property" is this: if the site "is marketed by its operator... for use in offering goods or services in a manner that engages in, enables, or facilitates... the sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act or section 2320 of title 18, United States Code." In other words, if you operate a site that enables or facilitates the sale of goods that bear a counterfeit mark... you're dedicated to theft of US property. So, let's take a quick wander over to GoDaddy... and, just for fun, let's see what happens if we try to register the domain Rolex.com. Rolex.com is obviously taken, but... oh wait... what's this... GoDaddy is recommending that I might want to register these other domains that are perfect for infringing sites. Ok. What about gucci.com? Oh look... more of the same: And, how about Autodesk, which has been an aggressive mover against anything that "infringes" on its intellectual property. Yup. It certainly looks like GoDaddy isn't just enabling the sale of goods that bear a counterfeit mark... but it's actively encouraging it. I think a very credible case could be made that, under this bill, GoDaddy is "dedicated to theft of U.S. property."

Yes, GoDaddy's own general counsel is supporting a law that could be used to kill GoDaddy and force it offline. Makes you wonder if she even read the bill. GoDaddy might want reconsider its support of this law until it finds a lawyer who actually understands what the law says.

Filed Under: christine jones, e-parasite, rogue sites
Companies: godaddy

Monster Cable Claims EBay, Craigslist, Costco & Sears Are 'Rogue Sites'

from the total-failure dept

When we talk about how dangerous PROTECT IP is as a censorship bill, we're often told that we shouldn't worry so much, because it's only targeted at "rogue sites" and thus wouldn't impact any legitimate sites. We're told there's nothing about rogue sites that is worth defending. And yet, as we've seen with the list of "pirate" sites that GroupM put together with help from the music and movie industries, their definition of a "pirate" site is expansive in the extreme. It included the Internet Archive, Vimeo, Soundcloud and a ton of blogs and news sites, including the famed Vibe magazine.

And don't think it gets any different when you hop over to the trademark/counterfeit side of the debate. In Tim's post about Monster Cable lobbying in favor of PROTECT IP, as an aside at the end, he notes that on Monster Cable's own list of "rogue sites," eBay and Craigslist top the list. And it doesn't stop there. Retailing giant Costco is on the list. As is Sears. Also some Backpages sites are listed as well (Backpages is a Craigslist-like classifieds system). There's also FatWallet, which is one of the most popular "deal" listings sites out there. There's also PriceGrabber and ComputerShopper -- popular legitimate sites for comparison shopping and computer purchases. These are not "rogue sites." These are legitimate companies that Monster Cable appears to have a vendetta against, because they allow for or promote the resale of perfectly legitimate secondhand goods.

In other words, for all the misleading whining from Monster about how it needs PROTECT IP to stop "rogue sites," you can see from Monster's own definition of what it considers a rogue site, that it would like to use such things to stomp out legitimate secondhand sales. Now, you can argue over whether or not these sites would pass following a judge's scrutiny under PROTECT IP, but we've seen judges rubber stamp similarly questionable claims against blogs in the past as being "rogue sites."

If you look at both the GroupM and the Monster lists, one thing becomes clear: these companies are defining any site they can't control as being a "rogue site." This isn't about stopping "piracy." It's about using the law to stomp out channels that they can't control. This is a key point that becomes obvious if you spend any time looking at the details of this law. It's not about protecting "IP." It's about protecting old business models that were based on absolute control of the channel. The complaints of the Universal Musics and Monster Cables of the world isn't really about counterfeits and piracy, but about the fact that they no longer have absolute control.

And they're just using "piracy" as the wool to pull over Congress' eyes to pass a law that tries to give them back control over the channel... by declaring tons of perfectly legitimate sites "rogue sites."

Filed Under: competition, control, protect ip, rogue sites
Companies: costco, craigslist, ebay, monster cable, sears