High Prices, Lack Of Availability Driving Lots Of Infringement

from the well,-duh dept

As we've seen before, if you make authorized content available in a convenient and useful manner, it can really help minimize infringement. Of course, if you don't make it available, or if you price it wrong, it just makes the problem worse. A new report out of the UK took a look at the availability and price online of some top films and found that the movie industry isn't doing a very good job, likely leading to much greater infringement.

DVDs are available for just shy of 100% of the films. But a wealth of British cultural history is simply not available through legal providers. Only 43% of the top 50 British films can be bought or rented online. Similarly, only 58% of the BAFTA Best Film award winners since 1960 have been made available.

The situation looks worse if iTunes is discounted. Excluding iTunes, only 27% of the BAFTA award winners are available, with 29% of the best British films. Only 6% of the best 50 British films are on Film4 OD or Virgin Media, with 14% available through a LoveFilm subscription and 4% through pay per view on LoveFilm.

The industry wants so badly to blame infringement for many of its structural problems. But, perhaps if it just focused on making the content available in a convenient fashion at a reasonable price, they'd realize that it really was just a business model issue all along and had nothing to do with "piracy."

Filed Under: availability, infringement, prices

Mass Infringement Lawyer Complains About Too Many People Challenging His Lawsuits

from the costing-money dept

Last week TorrentFreak had a post about a filing in one of many porn-related mass infringement lawsuits by a lawyer representing K-Beech. TorrentFreak's post focused on the fact that the lawyer, James White, admitted that it was dropping certain types of people from its lawsuits, such as undercover cops, military personnel and politicians. That certainly reflects the double standard we've seen elsewhere.

But other parts of the same filing may be even more interesting. Xbiz picked up on the part where White whines about all the defendants he sued filing identical "kit" motions in response to getting sued... because it's too expensive for White to respond to each one. Most of these are motions to sever, noting that it was improper to join so many totally and completely unrelated defendants into a single case. So far, most of the courts presented with such cases have agreed to dump most of the defendants as unrelated, but White makes it out like this is some crazy concept because the defendants dare to file boilerplate/copy-and-paste documents:

Most of these motions, however, are filed by pro se litigants and cut and pasted from BitTorrent defense kits or otherwise copied...

[....] These motions are expensive to defend against. Indeed, many such motions intentionally raise issues that have absolutely nothing to do with the subject matter before the court or matter which no court has ever held justify the motion. Consequently, Plaintiff has to spend substantial resources arguing against irrelevancies and abstractions.

It kind of makes you wonder how anyone doing what White is doing could file such a thing with a straight face. His entire legal campaign depends on making his legal efforts "expensive to defend against," to try to pressure people into settling up rather than fighting. In fact, White seems to try to twist this abuse of the court system to force settlement in his own favor, claiming that the court should want more settlements, and thus it should encourage random joinder, because it makes White's costs lower, meaning he can allow lower settlement deals:

Increasing the costs associated with this litigation by forcing Plaintiffs to file individual suits would only increase the settlement demands and make settlements less probable.

If I understand this logic properly, it suggests that the courts should prefer more mass shakedown lawsuits, because it'll mean more settlements rather than court. But, of course, that leaves out the idea that many of the defendants might just be innocent.

Filed Under: copyright, infringement, joinder, lawsuits

That Didn't Take Long: Amazon Sued For Patent Infringement For New Kindle Fire Tablet

from the up-in-flames dept

The general rule continues to prove itself true: do anything interesting in the tech world, and you will get sued for patent infringement. Just weeks after Amazon announced its new Kindle Fire tablet, the company has been sued for patent infringement by well-known patent troll Smartphone Technologies, a subsidiary of patent trolling giant Acacia. Just a few months ago we noted that Smartphone Technologies/Acacia was buying up more smartphone related patents, as it looks to seriously cash in on anyone actually doing anything in the space.

The patents in question:

• 6,956,562: Method for controlling a handheld computer by entering commands onto a displayed feature of the handheld computer (originally a PalmSource patent)
• 6,466,236: System and method for displaying and manipulating multiple calendars on a personal digital assistant (originally a Palm Inc. patent)
• 6,950,645: Power-conserving intuitive device discovery technique in a bluetooth environment (originally a PalmSource patent)
• 7,506,064: Handheld computer system that attempts to establish an alternative network link upon failing to establish a requested network link (another PalmSource patent).
• RE40,459: Method and apparatus for communicating information over low bandwidth communications networks (and, yet again, PalmSource)

So Palm may be dead and buried inside HP... but at least we know its patent legacy lives on in making products people want more expensive and less able to come to market.

Filed Under: infringement, kindle, patents
Companies: acacia, amazon, palm, smartphone technologies

One Of The Most Successful NY Startups... Is Dedicated To Infringing Activities (According To The Entertainment Industry)

from the but-of-course dept

A few months back, we wrote about the bizarre situation in which advertising giant, GroupM, had put together a list of "pirate sites" on which they would not allow their advertising to appear. From what we've heard, GroupM relied heavily on its entertainment industry clients, including Warner Bros., Paramount and Summit Entertainment on the movie side, and Universal Music on the music side. Universal Music was a key player in compiling the list, which is why a bunch of hip hop blogs it wanted power over ended up on the list (along with other non-infringers like the Internet Archive, Vimeo, SoundCloud and personal websites of Universal's own artists.

As we noted in the article, one of the sites listed as a "pirate" site was the site Complex.com, which is a rapidly growing popular "lifestyle" site, focused on young men. What I didn't realize was just how big and successful the site is. Business Insider recently ranked Complex as one of the most valuable NY startups, pinning its value around $140 million. It also has two of the most respected VC firms around backing it: Accel and Austin Ventures. This is not a fly-by-night operation.

And this is a big issue. We keep hearing from supporters of PROTECT IP that people shouldn't worry about it and similar legal attempts taking down legitimate businesses, because it's only designed to go after sites that are dedicated to infringing activities. But as this shows, according to folks in the legacy entertainment world, successful new media companies, like Complex, can be harmed by falsely accusing them of being "dedicated to infringing activities," and seeking to get advertisers or payment processors blocked from the site.

This is why so many tech entrepreneurs are so worried about legal changes like PROTECT IP. We've seen how the old industry likes to accuse anyone who does anything new or interesting of merely being "pirates," and using that to harm them. Why should we then allow Congress to pass new laws that will only come back to haunt the successful new generation of startups that are growing, creating jobs and actually innovating?

Filed Under: copyright, infringement, protect ip
Companies: complex media, groupm, universal music

Gaming Company Sees Massive User & Revenue Growth Because Of Piracy

from the pirates-unite dept

There is a very strong divergence in the games industry. On one hand we have developers and publishers who look at piracy as a cancer that needs to be cut out and on the other we have those who look at it as an opportunity. We illustrated this point recently with a mock debate between Ubisoft and Valve. Edge brings news of yet another player in the games industry who has joined with Valve in treating pirates as underserved customers rather than thieves.

John Goodale, Unity's general manager of Asia, told Edge that Unity has seen a 258.7% growth in revenue in Asia over the last year. He puts much of this growth down to piracy of the Unity3D development platform.

How can it possibly make money from people "stealing" its products? It does so by selling additional content to the users whether legit or not.

It's not talked about often, but we have a product called Asset Server that allows large teams to share assets more effectively, and according to the sales reports that I get we sell far more Asset Server in Asia than we do in the west.

As far as I can tell, Unity is looking at those who pirate its software in much the same way it looks at those who download the free version of the software, as customers. Goodale explains the flexibility he has been given in reaching out to the Asian market is the primary driver of this success:

Throughout my 25 years of doing business in Asia, I've seen very few companies be so dedicated to that region, or give me the flexibility and tools that I need to be successful. And as a result, I am just having way too much fun!

I really hope this line of thinking grows and penetrates the games industry even deeper. It is something I have argued and debated multiple times on games industry news sites and blogs. There are many people who feel the same way and many more who are dead set on treating piracy as a criminal offense. I don't blame them for the way the feel as it is their livelihood at stake. Yet, I can't understand their desire to hold onto an ideal that in the long run will fail -- especially when there are so many examples, like this one, of a company discovering it can make more money by adapting, rather than by trying to stop infringement.

Filed Under: asia, copyright, embrace, infringement
Companies: unity

MPAA Calls MPAA Intellectually Dishonest For Claiming That Infringement Is Inevitable

from the talking-points dept

We've been having some fun with the MPAA's extraordinary cluelessness lately. It started with MPAA communications person Alex Swartsel bizarrely and unfairly attacking GigaOm's Janko Roettger for daring to point out that an economic downturn (combined with dumb moves by the movie industry) might lead to greater file sharing. Swartsel, a spokesperson for the MPAA, went ballistic, claiming that such a statement was intellectually dishonest and somehow condoned the practice as socially acceptable. Here's the key paragraph from Swartsel and the MPAA:

We doubt many people will subscribe to the kind of intellectual dishonesty that suggests that it’s fine – or really, that it’s inevitable – to steal as a way of saving. But it’s troubling that by suggesting that stolen content available on rogue sites and elsewhere is just another substitute good, Roettgers is tacitly arguing that content theft is legitimate and socially acceptable. Truth is, it’s neither.

And what, specifically, did Roettger say? Here's the exact quote:

The U.S. credit ratings downgrade, tumbling stocks and international instability have made not just financial analysts nervous this week. Consumers are also starting to wonder whether we’re about to enter another recession. Whenever that happens, people start to tighten their belts and cut unnecessary expenses — like paying for movies and TV shows. Add in the Netflix price hike as well as new authentication plans from broadcasters like Fox, and you’ve got yourself a perfect storm for piracy.

I don't see how that's condoning anything, really. But if Roettger is being intellectually dishonest and saying that it's fine, well, then that means that the MPAA is also intellectually dishonest and condones piracy. That's because, as TorrentFreak points out, just a couple years ago, former MPAA boss Dan Glickman said almost the exact same thing that Roettger said:

"This is a high priority issue," said Motion Picture Association of America head Dan Glickman, who expressed concern that the dire financial situation would make pirated movies more popular on the streets and online.

"If you look at the situation, the current economic crisis makes this problem much more serious than before," he told a forum.

So, if I'm reading all of this correctly -- and I pretty sure that I am -- according to the MPAA, the MPAA is being intellectually dishonest in suggesting that "it's fine -- or really, that it's inevitable -- to steal as a way of saving." Got it.

In the meantime, we're still waiting for the MPAA and Ms. Swartsel to issue an apology to Roettger, an excellent and fair reporter, who certainly doesn't deserve the MPAA's bizarre "blame the messenger and accuse him of supporting piracy" treatment.

Filed Under: alex swartsel, dan glickman, infringement, sophistry
Companies: mpaa

Patent Holders Trying To Drag 3rd Parties Into Patent Disputes

from the troll-expansion dept

If you thought bogus patent lawsuits were crazy now, just wait and see what might happen if a court rules the way two companies are arguing they should. The EFF has filed an amicus brief in two cases in which patent holders are arguing that they can drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers. For example, in one of the two cases, Akamai is claiming patent infringement, and the issue is one claim in the patent. All of the steps of that one claim are handled by a third party... except for "tagging," which is done by users. If Akamai's argument holds, then users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk, and without them even violating the vast majority of what's claimed in the patent.

While the patent holders are claiming that without this the patents would be unenforceable, the EFF filing reasonably argues that the problem is that the patents were drafted poorly, and patents should make clear that when they list out a series of steps, those steps are performed by a single party. The arguments by the patent holders would put almost everyone at risk of being directly liable for patent infringement without them realizing it. We see broad patent claims asserted against various internet companies all the time. Imagine if every user of those services could suddenly be sued for infringement as well, just because clicking on a button, adding a tag or whatever, helped "infringe" on the patent in question in combination with the service provider?

As the filing notes, there is simply no social benefit to imposing liability on such third party users. They're hardly in a position to stop the infringement (let alone even know that it's going on). All they're doing is using a service that is offered to them.

Not surprisingly, one of the companies making this argument, McKesson, is using copyright law to back this fundamentally new interpretation of patent law. Specifically, McKesson cites the Supreme Court's terrible Grokster decision on third party liability, and is trying to extend it to patent law. Of course, McKesson does not even properly cite Grokster, falsely claiming that Grokster claims "a defendant's decision to profit from infringement 'while declining to exercise a right to stop or limit it'" makes one liable. That's simply not the Grokster rule at all. Grokster set out a specific set of criteria under which a third party would be liable, but "declining to exercise a right to stop or limit" is not nearly enough.

Filed Under: infringement, patents, third parties
Companies: akamai, limelight, mckesson

If Even The Death Penalty Won't Stop Infringement... Perhaps A Different Approach Is Needed

from the enforcement-doesn't-work dept

We've argued for years that stricter enforcement doesn't stop "piracy," no matter how many times industry folks and politicians insist it otherwise. There's been some recent new empirical evidence that enforcement doesn't work, from the massive SSRC report, but still politicians and industry folks seem to think enforcement is the only way forward. Rick Falkvinge questions how far it needs to go before people realize enforcement won't stop copying when copying feels totally natural. He points to the situation a few centuries ago in France, where the king set up (and sold) monopolies on certain fabric patterns -- and when people kept copying the fabric patterns, they kept ratcheting up enforcement mechanisms until it was punishable by death. And out of that, sixteen thousand people ended up dying.

But at least copying went down, right? Nope. There was no noticeable change in the amount of copied fabrics:

Capital punishment didn’t even make a dent in the pirating of the fabrics. Despite the fact that some villages had been so ravaged that everybody knew somebody personally who had been executed by public torture, the copying continued unabated at the same level.

So why do politicians and industry folk still think that greater legal threats will make a difference?

Filed Under: copyright, death penalty, france, infringement, nature

More Game Developers Realizing 'Piracy' Isn't Necessarily A Bad Thing

from the depends-on-what-you-do-about-it dept

We've written in the past about Minecraft's developer, Notch (Markus Persson), and how he's been quite vocal in arguing that game developers are making a huge mistake in worrying about "piracy" and he's still making bucketloads of money by treating his fans right and giving them reasons to buy. It appears that some other video game developers are recognizing the same basic truth. HothMonster was the first of a few of you to send in the story of "Team Meat," developers of Super Meat Boy and The Binding of Isaac. It appears that the two guys behind Team Meat are pretty clear that they're happy when their games get pirated. In fact, they hope they get "pirated" more, because, in the end, it seems to lead to them getting more money. As one of the guys, Edmund McMillen notes:

"If the game gets pirated heavily, if it's a good game that people really like, they're going to either buy it eventually or they're going to tell other people about it. Either way it's just going to come back to a sale."

He later noted his disappointment in it not being seen higher on the charts on The Pirate Bay:

"When Meat Boy came out on PC and torrents started going up on Pirate Bay, I would check, I had a friend of mine who said, 'congratulations, I just saw your game in the top 50 on Pirate Bay for games,' and I checked and we were 30th and I was depressed because it wasn't higher, because that's a measure of success."

There's also a fun rant in there about the "old way" of thinking:

"The dinosaurs of marketing are really upset by piracy. They think it's literally stealing... They're old. That's really the reason. They're old and their ideas are old. They don't understand where we are now. They don't understand the mentality of people who are pirating things. They see them as thieves, the same people who go and shoplift. I don't f*@#ing shoplift but I have pirated sh@%-loads of stuff. Like it's just not the same, it's not the same thing at all."

There are more quotes along those lines. While I like the attitude, they do still seem to take something of a "give it away and pray" attitude. I would think that there could be more effective ways to monetize what they've done beyond that, but I'm sure their general attitude wins fans... and at least makes lots of folks willing to test out their games to see what they're like.

Filed Under: copyright, developers, games, infringement, marketing, piracy

Why People Pay More For Access To Infringing Content

from the the-way-they-want-it dept

It's kind of funny to see the entertainment industry make totally contradictory statements about cyberlockers and usenet access providers in talking about infringement. On the one hand, they complain about how it's "impossible to compete with free" because "pirates just want everything for free." But, at the same time, they whine about how cyberlockers and usenet services often charge people for access, thus making them commercial enterprises who (according to the industry) "profit from piracy." But those two things seem somewhat contradictory. If people who engage in unauthorized file sharing only want stuff for free, then why do they pay these providers to get access? And if it's impossible to compete with free, then why does it look like these services have successfully done so? Correspondingly, why doesn't the industry open up its own competitors?

All of this comes to mind as Glyn Moody points us to an "open letter" that Mark Goodge wrote to UK Culture Minister Ed Vaizey, in response to Vaizey's statement that the blocking of access to Newzbin2 wasn't a big deal, because users should simply go to services that offer "legal access to movie downloads at reasonable prices."

However, as Goodge points out, he knows people who pay more for access to Usenet than it would cost to pay for a competing legitimate offering. And the reason is because their infringing activity has nothing to do with just "wanting everything for free," but wanting more convenience, more selection and fewer restrictions:

The reason people will pay for Usenet+Newzbin is that they want to be able to obtain movies in a format that suits them, not a format which suits the provider. They want to be able to download them and watch them whenever they want, not have to be online in order to stream them (assuming, of course, they’ve got enough bandwidth to stream movies anyway). They want a download service that gives them the same ownership and flexibility as buying DVDs. And they want to be able to obtain the movies they want to see without artificial geographic restrictions.

So, apart from the fact that it simply isn’t true that services such as Lovefilm are a suitable solution, it’s pretty clear that there’s a whole untapped market here for legitimate online purchase of movies via download. People are willing to pay, and willing to pay a fair amount -- provided that what they get in return is what they want.

At the moment, the only people making any money out of this market are those involved in infringement. As long as the movie industry maintains its outdated business practices and carries on treating its (potential) customers as the enemy, that’s how it will stay. Blocking Newzbin may result in a short-term drop in the number of people getting movies via Usenet, but it won’t lead to an increase in people getting them via legitimate means until there are suitable alternatives which provide the same level of convenience and functionality.

Contrary to popular belief, most people who “pirate” movies are not doing it for financial reasons. They’re doing it simply because nobody is offering them a product that they want to buy.

In other words, they're happy to pay... if only the industry would offer it to them in the manner that customers want. This isn't a surprise. For years, studies have pointed out that those who infringe really tend to be unserved consumers, who aren't getting the offerings in the form that they most want it. Smart companies realize that this is a form of (free) market research, and look for ways to better satisfy their customer base.

Tragically, the entertainment industry instead looks to politicians and the courts to block consumers from doing what they want, and then pretend it's for consumers' own good.

Filed Under: access, content, convenience, infringement
Companies: newzbin