Appeals Court Makes A Mess Of Copyright Law Concerning ISPs And Safe Harbors

from the this-makes-no-sense dept

We've been following the BMG v. Cox lawsuit from the very beginning, through all its very odd twists and turns, including having a judge in the district court, Liam O'Grady, who made it quite clear that he didn't much care about the internet, and didn't see why it was a problem if people lost their internet access completely based on merely a few allegations of copyright infringement. The 4th Circuit appeals court has now overturned the lower court ruling and sent the case back to the district court for a do-over. While the initial decision was awful (as we discuss below), this new ruling makes a huge mess out of copyright law and will have serious, dangerous, and long-lasting consequences for the internet as a whole.

If you don't recall, the case involved BMG suing Cox Communications, though much of the case really hinged on the actions of another company, Rightscorp, who has been trying (and mostly failing) to build a business model around a form of mild copyright trolling. Rather than the aggressive "sue 'em and settle," strategy employed by others, Rightscorp would send DMCA takedowns to ISPs, with a settlement offer, and hope that the ISPs would pass those notices on to subscribers accused of infringing.

Cox Communications -- a decently large broadband provider -- made it quite clear to Rightscorp that it did not intend to be a part of its business model, and refused to pass on the settlement letters. Rightscorp started flooding Cox with notices... to the point that Cox decided to effectively just trash all inbound messages from Rightscorp as spam. After all this happened, Rightscorp signed BMG as a client, and then sued Cox, claiming the ISP had violated the DMCA by not kicking users off. What came out during the trial was that Cox basically had a "thirteen strike" policy (some of the earlier strikes involved stopping internet access until you read something and clicked something -- or requiring the user to call in to Cox).

What is rarely noted, of course, is that Cox was basically one of the only ISPs to actually have any termination policy for people who used their connections for copyright infringement. Most ISPs (and most copyright lawyers not working for legacy industry interests) believed that the DMCA's requirement for a "repeat infringer policy" was not directed at access providers, but at content hosts, where the issues are much clearer. However, BMG claimed here that Cox violated the DMCA's requirement for a repeat infringer policy -- and the court agreed. Cox was, partly, undone by some pretty bad behavior behind the scenes, that seemed to tar it as a "bad actor" and obscure the underlying copyright issues. Even more ridiculous was that Judge O'Grady later argued that Cox should pay the other side's legal fees, because even bringing up the idea that it was protected by safe harbors was "objectively unreasonable." That, itself, was crazy, since tons of copyright experts actually think Cox was correct.

On appeal there were two key issues raised by Cox. The main issue was to argue that O'Grady was incorrect and that the DMCA safe harbors covered Cox. The second pertained to the specific jury instructions given to the jurors in the case. The new ruling unfortunately upholds the ruling that Cox is not covered by the DMCA's safe harbors, but does say that the instructions given to the jury were incorrect. Of course, it then proceeds to make a huge muddle of what copyright law says in the process. But we'll get to that.

The Impact on Safe Harbors

Let's start with the safe harbors part of the ruling, which is what most people are focusing on. As the court notes, Cox (correctly, in my view), pointed out that even if it was subject to a repeat infringer policy, that should cover actual infringers, not just those accused of infringing. After all, it's not like there aren't tons upon tons of examples of false copyright infringement accusations making the rounds, and that's doubly true when it comes to trolling operations. If the rule is that people can lose all access to the internet based solely on unproven accusations of infringement, that seems like a huge problem. But, here, the court says that it's the correct way to read the statute:

Cox contends that because the repeat infringer provision uses the term “infringer” without modifiers such as “alleged” or “claimed” that appear elsewhere in the DMCA, “infringer” must mean “adjudicated infringer.” But the DMCA’s use of phrases like “alleged infringer” in other portions of the statute indicates only that the term “infringer” alone must mean something different than “alleged infringer,” otherwise, the word “alleged” would be superfluous. Using the ordinary meaning of “infringer,” however, fully accords with this principle: someone who actually infringes a copyright differs from someone who has merely allegedly infringed a copyright, because an allegation could be false. The need to differentiate the terms “infringer” and “alleged infringer” thus does not mandate Cox’s proposed definition.

Moreover, other provisions of the Copyright Act use the term “infringer” (and similar terms) to refer to all who engage in infringing activity, not just the narrow subset of those who have been so adjudicated by a court. For example, § 501(a), which creates a civil cause of action for copyright owners, states that “[a]nyone who violates any of the exclusive rights of the copyright owner” provided for in the statute “is an infringer of the copyright or right of the author.” 17 U.S.C. § 501(a) (emphasis added).

Similarly, the DMCA itself provides that ISPs who store copyrighted material are generally not liable for removing “material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.” Id. § 512(g)(1) (emphases added). This provision expressly distinguishes among three categories of activity: activity merely “claimed to be infringing,” actual “infringing activity” (as is apparent from “facts or circumstances”), and activity “ultimately determined to be infringing.” The distinction between “infringing activity” and activity “ultimately determined to be infringing” in § 512(g) shelters ISPs from being liable for taking down material that is “infringing,” even if no court “ultimately determine[s]” that it is infringing — because, for example, the copyright holder simply does not file a lawsuit against the person who uploaded the infringing material. As this provision illustrates, Congress knew how to expressly refer to adjudicated infringement, but did not do so in the repeat infringer provision.

Again, the obvious implications of this are... insane. It means that you can potentially get people completely kicked off the internet with a series of knowingly false accusations of copyright infringement. How could anyone justify that as a reasonable policy?

The court insists that the legislative history supports this... but the only way it does is if you torture the legislative history and ignore what it says. Here's what the court says:

The legislative history of the repeat infringer provision supports this conclusion. Both the House Commerce and Senate Judiciary Committee Reports explained that “those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.” H.R. Rep. No. 105-551, pt. 2, at 61 (1998); S. Rep. No. 105-190, at 52 (1998). This passage makes clear that if persons “abuse their access to the Internet through disrespect for the intellectual property rights of others”—that is, if they infringe copyrights — they should face a “realistic threat of losing” their Internet access.

But, again, based on the ruling here, this still applies even if the accusations are totally false and no infringement occurred. The court seems to ignore the word "abuse" in this statement and doesn't even bother to consider that there may be abuse on the other side -- in the form of copyright trolling against non-infringers (or simply trying to harm or silence the speech of a non-infringer).

Next up, the court has to determine whether or not Cox's repeat infringer policy was "reasonable." This, itself, is a minefield. The law provides no guidance beyond that to qualify for the safe harbor the provider has to have "adopted and reasonably implemented... a policy that provides for the termination in appropriate circumstances of subscribers... who are repeat infringers." That seems to leave an awful lot of discretion to the provider -- which the court admits... before determining that it doesn't think Cox's policy was reasonably implemented. And this is where a few bad actions by Cox employees comes back to haunt the company:

Here, Cox formally adopted a repeat infringer “policy,” but, both before and after September 2012, made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy.

The words of Cox’s own employees confirm this conclusion. In a 2009 email, Jason Zabek, the executive managing the Abuse Group, a team tasked with addressing subscribers’ violations of Cox’s policies, explained to his team that “if a customer is terminated for DMCA, you are able to reactivate them,” and that “[a]fter you reactivate them the DMCA ‘counter’ restarts.” The email continued, “This is to be an unwritten semi-policy.” Zabek also advised a customer service representative asking whether she could reactivate a terminated subscriber that “[i]f it is for DMCA you can go ahead and reactivate.” Zabek explained to another representative: “Once the customer has been terminated for DMCA, we have fulfilled the obligation of the DMCA safe harbor and can start over.” He elaborated that this would allow Cox to “collect a few extra weeks of payments for their account. ;-).” Another email summarized Cox’s practice more succinctly: “DMCA = reactivate.” As a result of this practice, from the beginning of the litigated time period until September 2012, Cox never terminated a subscriber for infringement without reactivating them.

One would hope that this part of the ruling would at least, somewhat, protect other ISPs that don't send stupid emails like that. But, you never know.

The Messed Up Jury Instructions

To fully follow the issues here, we have to take a quick tour to key copyright cases of years past. In the Betamax Case, Hollywood sued the makers of VCR devices (okay, okay, Betamax devices) for selling a product that its customers used to infringe. In 1984, the Supreme Court said that was crazy, and since the VCR had "substanitial non-infringing uses," it was legal to sell it, even if it was used to infringe. Almost 20 years later, the Supreme Court chopped away at this standard a bit in the unfortunate (and still wrong) Grokster case, that said even if the tool had substantial non-infringing uses, if the company "induced" infringement, then it could still be liable. But there had to be fairly strong evidence of actual inducement by the company -- in Grokster, the company more or less encouraged people to infringe.

Cox asked the court to use the Betamax standard in the jury instructions, saying that it's not contributory copyright infringement if there are substantial non-infringing uses -- but the lower court rejected that, and this court does too, pointing to Grokster (but not actually groking what the Grokster court said). But a second complaint about the jury instructions does win the support of the appeals court. Cox, rightly, argued that the jury instruction telling jurors that the standard for contributory infringement was if the company "knew or should have known of such infringing activity." The big problem here is the "should have known" part. That is not the law. It's not in the law. It's not supported by court decisions and has been rejected by numerous court decisions. And, here, the court finally gives Cox a break and says that those jury instructions went too far. "Should have known" is a negligence standard -- it suggests even if you didn't know, you were negligent in not knowing, and therefor still liable. But copyright law demands actual knowledge. And thus, the original ruling is thrown out and sent back to the court.

But... even with the jury verdict being tossed, this discussion is... weird. And troubling. Remember, the Grokster standard is about "inducement" which involved a level of intent on the part of the service provider. That's about taking specific actions to encourage the use for infringement. But, the court here keeps slipping into a separate question of "knowledge." The knowledge question and the inducement/intent question are two separate questions. But it's not clear that the court even realizes that. It keeps going back and forth between questions about inducement and questions about actual knowledge, to the point that it almost appears the court thinks these are the same things. But knowledge alone is not enough to prove a party induced others to infringe on a copyright.

See the following discussion:

First, Grokster’s recitation of the standard—that “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement” — is on its face difficult to reconcile with a negligence standard. See 545 U.S. at 930 (emphasis added). In addition, it would have been unnecessary for the Court to discuss in detail the situations in which intent may be presumed, and those situations, like Sony, in which it may not, if liability did not require intent at all, but merely required negligence....

Looking to patent law, as the Supreme Court did in Sony and Grokster, further counsels against a negligence standard. The Supreme Court has long held that contributory patent infringement requires knowledge of direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964). And in 2011, the Court held that willful blindness satisfies this knowledge requirement, but recklessness (“one who merely knows of a substantial and unjustified risk of . . . wrongdoing”) and negligence (“one who should have known of a similar risk but, in fact, did not”) do not. Global-Tech, 563 U.S. at 769–71. The Court reaffirmed this holding in 2015, stating that contributory patent infringement “requires proof the defendant knew the acts were infringing,” and that Global-Tech “was clear in rejecting any lesser mental state as the standard.” Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1928 (2015). The Court expressly rejected the possibility “that a person, or entity, could be liable even though he did not know the acts were infringing.” Id. Thus, in the patent context, it is clear that contributory infringement cannot be based on a finding that a defendant “should have known” of infringement.

In both Grokster and Sony, the Supreme Court adopted now-codified patent law doctrines— the staple article doctrine and the inducement rule. The Court did so because of “the historic kinship between patent law and copyright law,” Sony, 464 U.S. at 439–42, and the similar need in both contexts to impose liability on “culpable expression and conduct” without “discouraging the development of technologies with lawful and unlawful potential,” Grokster, 545 U.S. at 936–37. We are persuaded that the Global-Tech rule developed in the patent law context, which held that contributory liability can be based on willful blindness but not on recklessness or negligence, is a sensible one in the copyright context. It appropriately targets culpable conduct without unduly burdening technological development.

Note that the first paragraph is about inducement, which has specific characteristics, and the latter two are about "knowledge." But knowledge isn't what proves the intent for inducement. So... even as it's right to kick this back to the lower court, it feels like the 4th Circuit got twisted up by its own reasoning.

Then there's the issue of what the court means when it talks about "specific instances of knowledge." See this paragraph:

Selling a product with both lawful and unlawful uses suggests an intent to cause infringement only if the seller knows of specific instances of infringement, but not if the seller only generally knows of infringement. See Ludvarts, 710 F.3d at 1072 (holding that contributory copyright infringement “requires more than a generalized knowledge . . . of the possibility of infringement”; it requires “specific knowledge of infringement”). A seller who only generally knows of infringement is aware that “some of [his] products will be misused” — but critically, not which products will be misused.

This same issue came up in the Viacom v. YouTube case, in which it was found that YouTube wasn't infringing just because it had "general knowledge" that it was hosting some infringing content. It could only be liable if it had actual knowledge of infringing content and then failed to take it down. But... how the hell do you apply that standard here? You can see how it would apply to YouTube, where YouTube can go and see the file still hosted on its servers after being notified that it's infringing and then check to see that it is, indeed, the same material as the copyright holder claims. For an ISP, however, where the data is in motion, as opposed to at rest, all you have to go on are these often erroneous notifications from Rightscorp claiming infringement. But by the time an ISP like Cox would look at it... the transmission would be complete. So how can Cox have "actual knowledge" of infringement -- absent a court ruling that the activity was infringing (bringing us all the way back around to the first point made above)?

Either way, this case is hardly over yet, as there's still another trial to now go through. But, as it stands, it's making a big mess out of copyright law. And that's not good.

Filed Under: actual knowledge, copyright, dmca, dmca 512, inducement, infringement, jury instructions, knowledge, safe harbors, termination policy
Companies: bmg, cox, rightscorp

Moonton Responds To Copyright Infringement Suit From Riot Games By Threatening The Press With Lawsuits

from the great-strategy,-yo dept

While we often talk about oversteps regarding copyright protectionism and lawsuits in these here pages, it's not as though there aren't understandable disputes that exist. Likewise, while we often detail bad actions by aggressors on copyright issues, it's not as though those on the defending side of that coin are always virtuous in the way they handle the dispute. The issue of game and mobile application cloning serves as a good ecosystem to show plenty of examples of both, with the latest dust-up between Riot Games and Shanghai Moonton Technology offering a specific look at how a party on the defense from a copyright claim can get everything wrong.

First, some background. Riot Games recently filed a lawsuit against Moonton for copyright infringement over three Moonton games: Mobile Legends 5V5 MOBA, Mobile Legends: Bang Bang, and Magic Rush: Heroes. A cursory look at the evidence Riot Games offered up in the filing sure makes it look like Moonton was simply cloning League of Legends, from title screen to in-game design.

And there's a lot more images you can compare in the link. The point is that nobody is going to look at this lawsuit and think Riot Games is crazy for filing it. There is enough cloning going on here to make even the most sympathetic pause. By now you're probably wondering why this post is appearing on Techdirt at all, as we don't make a habit of posting about seemingly legitimate intellectual property lawsuits.

Well, you're reading this because we certainly do write posts about companies that attempt to lash out at the press and threaten them with lawsuits for covering them critically. And that's exactly what Moonton decided to do in the face of the lawsuit.

In case you can't see the embed, that reads:

Official Statement: Recently some media have published negative and unreal reports against Mobile Legends. Here is the statement of Moonton.

Mobile Legends is a MOBA game that is developed by Moonton independently, and its copyright has already been registered and protected in multiple countries all over the world. Moonton has independent intellectual property rights.

Mobile Legends and all the users will not be affected by these unreal reports and we will keep providing the best gameplay experience to players all over the world.

Meanwhile, for some media and competitors who have spread the unreal information and rumors against us, we reserve the right to protect ourselves and pursue legal actions.

Vague threats against the press for reporting on the lawsuit is simply not a good look. It also serves to put this into Streisand Effect territory, with much more coverage on the lawsuit due to Moonton's response than would otherwise have existed. References to "unreal information" and "rumors" seem particularly silly, given that there is a very real and concrete lawsuit currently filed against the company, one which the press is certainly going to report on, whether Moonton likes it or not.

So, feel free to debate the validity of Riot's lawsuit all you want, but this is a terrible response from Moonton.

Filed Under: copyright, free speech, infringement, league of legends, mobile legends, threats
Companies: moonton, riot games

Copyright Madness: Blurred Lines Mess Means Artists Now Afraid To Name Their Inspirations

from the cultural-losses dept

The ways in which the disastrous Blurred Lines verdict represents a complete mess for the music ecosystem are fairly legion, from chilling artistic creation for fear of unintended infringement to the absurdity of giving estates of long-dead artists license to stifle the release of new art that would benefit our culture as a whole. The awful ripple effects of the lawsuit don't end there and it's useful to keep in mind that the jury awarded the $7.3 million verdict to the Marvin Gaye estate acknowledged that there was no willful infringement on the part of Blurred Lines creators Robin Thicke and Pharrell Williams. Put another way, the jury latched onto the duo's perceived and, in the case of Pharrell, stated inspiration by Gaye's contributions to music and decided that inspiration was copyright infringement. For anyone with even a cursory understanding of how music is made and creativity sparked, this was crazy.

So crazy, in fact, that as the world waits for the appeal, it seems that some musicians and their management groups have decided that nobody ought to talk about who inspired whom publicly.

Now though, music experts have told the Victoria Derbyshire programme that artists are being advised not to mention publicly who has inspired them. This is because of a high-profile copyright infringement case in which US jurors ruled that Robin Thicke and Pharrell Williams, on their song Blurred Lines, had copied Marvin Gaye's Got To Give It Up.

According to forensic musicologist Peter Oxendale "everyone's concerned that inspiration can [now be interpreted as] a catalyst for infringement.

"All of these companies are worried that if a track is referenced on another at all, there may be a claim being brought," he explains.

If you've ever wondered what a chilling effect looks like in its chilly, chilly flesh, this is it. Since time immemorial, it has been common practice in the music industry to laud praise on one's inspirations and heroes in the music world, with no narrow eyes cast at those inspired by the greats from the past. When Bruno Mars created Uptown Funk, everyone who listened to it knew the era and genre the music was inspired by. Hell, the first time I heard that song, it made me immediately go back and listen to Morris Day and the Time, for instance. That's how music and culture works... and it's great for music and culture. Homages such as Uptown Funk or Blurred Lines, with their nods to music's past and to the great artists that built that past, are undoubtedly what keeps those past artists relevant. But now, in the wake of a terrible jury award for what everyone seems to agree wasn't even willful infringement, we get to witness copyright killing that part of the culture. Instead, apparently everyone will simply pretend publicly that all art is created in a vacuum of influence, devoid of homage and bereft of cultural context.

And the labels aren't just stopping there. There are some reports that the labels want artists to secretly disclose their influences contractually as a way to do a risk analysis on future copyright lawsuits.

Mr Oxendale says some artists are now having the requirement to name their influences written into contracts by their record labels - although he would not specify names.

"Many of the companies that I work with ask the producers and the artists to declare all of the tracks that may have been used as inspiration for their new tracks," he says.

He also confirmed that he is being sent new music to check the possibility of future copyright infringement claims.

No serious person could possibly claim this is good for music, for artists, or for our shared musical culture. And if we agree on that, then we agree that this ruling represents a perversion of copyright from its intended purpose, which is to foster more culture and creation. Much in the way certain industries absolutely hate ambiguity in their markets, so too does the music industry on matters such as these.

Nevertheless, Simon Dixon - one of the lawyers for Ed Sheeran, Sir Elton John and the Rolling Stones - says the judgement has made some people in the industry nervous.

"[The court case] wouldn't have been decided the same way over here [in the UK]," he explains. "So as a result, everyone felt they knew what the law was, they knew what the parameters were. And when you know what the laws are and the rules are you get comfortable. This injects an element of grey into the picture. So as a result people are less certain now about what they can and can't do. And as a result, everybody feels a bit nervous."

Any person who would want to state that this nervousness has no effect on artistic output would make that claim to the peril of their credibility. It has to have an impact and that impact cannot possibly be positive. If ever there were a case of copyright being used against its own purpose, this certainly must be that case. It also serves nicely as a canary in the coal mine for what our permission culture might ultimately do on our wider culture as a whole.

Filed Under: blurred lines, chilling effects, copyright, creatitivity, infringement, inspiration

Copyright Troll's Tech 'Experts' Can Apparently Detect Infringement Before It Happens

from the welcome-to-pre-crime,-amateur-edition dept

When you sue Does en masses for copyright infringement with no more evidence than an IP address, you're going to run into problems. Those who aren't intimidated by baseless federal court filings fight back. The problem with every troll is they're completely unequipped to handle actual litigation.

Pumping out lawsuit after lawsuit stretches the resources of most copyright trolls. Often they look to outside consultants and experts with malleable morals to pitch in on the tech side of things. David A. Lowe, a Seattle-based copyright litigator hoping to help studios somehow turn box office losers like "Elf-Man" and "London Has Fallen" belatedly turn a profit, has apparently farmed out expert witness work to Guardaley. Guardaley, somewhat infamously, is also the secret sauce behind an awful lot of copyright trolling, including for notorious troll Malibu Media -- either under its own name or using one of its many shell companies.

This does not mean Guardaley offers competent work in exchange for a cut of the profits. But Guardaley's "experts" are willing to sign almost any statement put in front of them, as is evidenced by Fight Copyright Troll's latest post. According to the letter [PDF] sent by a troll victim's lawyer (J. Christopher Lynch of Lee & Hayes, PLLC), the experts employed by Criminal Productions (represented by Lowe) apparently can detect infringing activity that has yet to take place.

In investigating for Mr. Bethke, again we looked for overlap between alleged observations of Mr. Macek and Mr. Arheidt. And again, we found overlap in declarations filed in D CO with declarations filed in WD WA. For example, in the Criminal Productions WD WA Case No. 2:16- cv-1016, Mr. Arheidt’s declaration covers “observations” from June 25 through June 27. By contrast, in the Criminal Productions D CO Case No. 1:16-cv-1761, Mr. Macek’s declaration covers “observations” from June 25 through June 28. Both declarations cover the same “hash number” of the movie, i.e. the same soak. This overlap seems impossible if we stick with the fictions of the Complaint and Motion for Expedited Discovery that the declarant “observed” the defendant “infringing.”

We looked carefully and discovered another anomaly our Courts should question. Mr. Macek’s declaration from that D CO case 1:16-cv-01761 (ECF # 4-1) is dated June 14th (maybe June 16th) – but BEFORE the date of the accompanying “observations” that ran from June 25 through June 28.

How can a witness sign a declaration that he observed something BEFORE it happened? Criminal Productions submitted four such Declarations of Mr. Macek that were executed BEFORE the dates of the accompanying typed up list of observations that Mr. Macek swore that he made. Unless Daniel Macek is also Marty McFly, it is impossible to execute a declaration claiming to observe something that has yet to happen.

The letter contains pictures of four obviously copy-pasted signatures from Macek from four different lawsuits, all covering the same date range. But whoever was rubber-stamping Macek's signature didn't pay attention to the dates of the supposed infringement "observation."

Lynch's letter goes on to state he intends to move for discovery to give the court a better idea of how Lowe's cohorts in trolling actually operate: experts in letterhead only signing assertions they have no evidence for in multiple court jurisdictions. He's also willing to fully explore Criminal Productions' trolling history, which is littered with bogus subpoenas obtained with the assistance of false declarations and nonexistent witnesses.

Of course, this won't be happening. Having been caught in its own web of bullshit, Criminal Productions has voluntarily dismissed [PDF] a number of defendants from this suit (albeit without prejudice). Of course, the dismissal motion says nothing about its experts' ability to spot infringing activity before it even happens.

The Internet Service Provider was unable to provide subscriber identification information in response to the subpoena issued pursuant to the Court’s Order Granting Expedited Discovery or Plaintiff has otherwise been unable to identify or locate the responsible party via the subscriber identification provided by the Internet Service Provider. Accordingly, pursuant to Rule 41(a)(1)(A)(i), Plaintiff hereby dismisses its claims against the noted Doe Defendant(s) without prejudice.

That's three out of eight defendants dismissed. The other five just need to make the same assertions and Criminal Productions -- apparently taking its name very literally -- will drop the rest.

Filed Under: copyright, copyright trolling, daniel macek, david lowe, declaration, elf-man, infringement, london has fallen
Companies: guardaley

Texas Court Orders Sports Streaming Sites To Be Blocked In Anticipation Of Piracy

from the pre-crime dept

A few years ago, we wrote about HBO and Showtime's somewhat novel decision to file a lawsuit against two sports streaming sites for copyright infringement that both claimed would happen... in the future. The lawsuit was filled with understandably novel language, but the fact remained that this was something akin to pre-crime enforcement, best demonstrated in the film Minority Report. One of the chief axioms of American law is that a crime must have occurred for punishment to be doled out. Injunctions are a departure from that, but actually suing for infringement when that infringement hadn't happened yet and, indeed, when the content to be infringed didn't even yet exist, seemed like a departure from the way the law works.

But perhaps this is a practice we'll see expanded, as it seems to be happening again. This time, a federal court in Texas has issued an injunction ordering ISPs to proactively block a group of streaming sites ahead of the Premier League cricket tournament.

This is also the path Indian media outfit Times Content Limited (TCL) decided to go down. The company operates the cricket channel Willow TV and owns the US broadcasting rights to the Indian Premier League cricket tournament, which is currently ongoing. Two weeks ago the company sued several sports streaming sites including smartcric.com and crickethdlive.com. These sites allow users to watch cricket games for free over the Internet, without permission. To stop this from taking place, the Indian company requested a broad injunction, which the court granted last week.

The preliminary injunction (pdf) orders various third party providers to stop working with these sites effective immediately to prevent future copyright infringements. This also applies to any new domain names or websites the operators may launch.

Now, there are a couple of things to stipulate here. The websites in question appear to be common sports streaming sites that regularly infringe on the copyright of others. The injunction also suggests that Willow TV has attempted to communicate with the sites many times and has not received much in the way of a response. Whatever you think about copyright and sports streaming sites, it's not like Willow TV has no reason to complain here.

Still, when one paints a picture of justice on a legal system canvas, it's not simply about what picture you paint but how you paint it that's important. After all, precedence is a thing, as are the norms of how the law is carried out. The injunction's inclusion of language like the following seems to set us all on a dark path to prior restraint of speech.

...all service providers whose services will enable or facilitate Defendants' anticipated infringement are ordered to suspend all services with respect to [ the offending websites]...

Again, whatever you might think of sports streaming sites such as the defendant sites, opening the door to broad injunctions on the basis of future infringement seems like a mistake. It's a door that will almost certainly be barged through by copyright holders all over the place and is fertile soil for wanton abuse. The injunction goes to great lengths to acknowledge its order is based on all kinds of past infringing activities by the websites in question, but there is no clear standard for how much infringement must take place prior to a court being able to take down what is ultimately speech pre-emptively in anticipation of infringement in this way.

We must hope this practice is not expanded, or you can expect to see the collateral damage stories begin to appear.

Filed Under: anticipation of infringement, copyright, infringement, pre-crime, sports, streaming, streaming sites
Companies: tcl, willow tv

Bill Gates And Other Major Investors Put $52.6 Million Into Site Sharing Unauthorized Copies Of Academic Papers

from the so-how-is-that-different-from-sci-hub? dept

As we've noted, the main reason the Sci-Hub site is so popular with academics is not because it is free -- researchers generally have free access to papers anyway -- but because it is so easy to use. Among other things, it provides a centralized store of a huge number of papers -- 58 million at the time of writing -- that can be downloaded with a single click. But an interesting post on the Green Tea and Velociraptors blog points out Sci-Hub's holdings are beaten by the total number of papers available on the ResearchGate site, which has 12 million members:

The platform boasts that 2.5 million published outputs are uploaded by its users every month, equivalent to around the total number of published scholarly research articles each year. The site claims to have around 100 million published articles, which is very impressive seeing as only around 20-25 million have ever been published Open Access [OA].

The same post points out that many of those 100 million articles seem to be unauthorized copies:

Based on a random sample of English language articles drawn from ResearchGate, the study [published last month] showed that 201 (51.3%) out of 392 non-OA articles infringed the copyright and were non-compliant with publishers' policy. While this sample size was small, there is no reason to think that the same cannot be said if we scale up to consider the entire corpus of articles shared on RG. This means that around half, or approximately 50 million, research papers on RG are most likely illegally hosted.

If that analysis is correct, it would seem that ResearchGate holds roughly as many unauthorized copies of academic papers as Sci-Hub. Despite that fact, ResearchGate has just revealed that back in November 2015, it received investments totalling $52.6 million from some rather starry names, including that famous hater of pirates, Bill Gates:

Wellcome Trust, Goldman Sachs Investment Partners, and Four Rivers Group with participation from Ashton Kutcher, Groupe Arnault, Xavier Niel, and existing investors Bill Gates, Tenaya Capital, Benchmark, and Founders Fund.

ResearchGate says it is the responsibility of the uploader to make sure that they have the necessary rights to post material to the site:

As we do not have any information about rights you may hold, or any license terms or other restrictions which might apply to such content, we necessarily rely on you to understand your rights and act accordingly. For this reason, we request that you fully investigate and confirm that you have sufficient rights to post particular content to ResearchGate before you post such content. As a general matter, if you are an author publishing in a journal, you may be allowed to publish certain versions of your article, but not others, and privately share certain content with others. However, many journals restrict publication of final versions and impose limitations on private sharing.

As that notes, authors are typically only allowed to post certain versions of their papers -- usually early ones. But most researchers don't bother with that detail, and simply upload the final version to ResearchGate, which is probably why the recent analysis mentioned by the Tea and Velociraptors blog found so many unauthorized copies. Along with laziness, or ignorance of the niceties here, another factor driving this phenomenon may be that academics are aware that much of their work has been paid for by the public, and therefore feel the definitive results should be disseminated as widely as possible.

Still, the contrast between ResearchGate, which has received major investments from some rather big names, and Sci-Hub, which is currently being pursued in the courts by Elsevier, is stark, given that their respective holdings turn out to be so similar. It's another indication that the academic publishing system is broken, and that copyright is an irrelevance as far as millions of researchers are concerned.

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Filed Under: academic papers, bill gates, copyright, infringement, investment, research
Companies: researchgate

First Look At UK Piracy Alert System: Mostly Benign, Except ISPs Are Requesting Filesharing Software Be Removed By Clients

from the why? dept

Earlier in the year, the public learned ISPs in the UK were partnering with the entertainment industries to send out "educational notices" to internet users suspected of copyright infringement. Having seen this type of "education" take many forms in the past, from silly to threatening, we have since waited to see what form this iteration would take. Well, TorrentFreak got in touch with someone who was notified through the system, and it appears this version is relatively benign.

The redacted sections are those that would identify the individual to whom it was sent, but you get an idea of the actual content in the notice. The links included in the notice are to the subscriber's ISP account, as well as one that takes you to the 'Get it Right Information Portal." It's at that portal that a subscriber will get more information on the suspected act of copyright infringement. While that information is fairly detailed, including such things as file sizes and types, the times and dates of the infringement, and the application used in the alleged infringement... the whole thing still relies on the faulty evidence of an IP address. That's problematic for reasons we've discussed to death here at Techdirt, but given the lack of any threatening language in any of this, it's still all fairly benign.

Which is why the individual TorrentFreak spoke with, who admits to committing the act in question, doesn't think the public will be all that impressed with this unsolicited "education."

“I don’t think [the warnings] will work, at least not on a big scale. Maybe they will educate some people who did it by mistake or did it just once but for someone like me there is no hope. But at least the campaign is not aggressive.”

The only thing in all of this that raised some eyebrows was that this notice came from Sky, the same ISP that has suggested that receivers of these notices will be forced to remove filesharing software to keep service from being interrupted.

“Your broadband service won’t be affected as a result of receiving this email alert,” Sky assures its subscribers, but it doesn’t stop there. “However, if you continue to share content illegally using your broadband connection, Sky will request that you take immediate steps to remove or disable any file sharing software that is being used to share copyrighted content illegally,” Sky writes.

So, putting all of this together makes this a little more troubling. ISPs will monitor your connection at the behest of private industry, will notify you that they're doing so, and only promise to serve you as their customer if you agree to remove software with all kinds of legitimate uses... and all of this is still based on the concept that an IP address is useful as an identifier for an infringer. When taken in total context, it's easy to see how this foot-in-the door, benign "education" could transition to ISPs mandating control of the public's software rollouts to get service. And that's not benign at all.

Filed Under: alerts, copyright, file sharing, file sharing software, infringement, uk

Funcom Responds Well To Mixup Over Denuvo DRM Resulting In Piracy Of Conan Exiles Game

from the good-guys dept

With the way the past couple of weeks have gone for Denuvo, the DRM that was supposed to end piracy but instead only ended the industry's brief resurgence in faith in DRM, you would be forgiven if you thought this was going to be yet another post about another Denuvo-protected game being cracked and released to the pirating masses. This isn't that kind of story. Instead, it's the story of game publisher Funcom accidentally stripping Denuvo out of the latest build of its early access game, Conan Exiles, and having that be released to the pirating masses.

In Conan Exiles' case, Denuvo Anti-Tamper was temporarily removed - and accidentally. An updated version of the game was suddenly without protection. Denuvo Anti-Tamper returned soon enough, via another update, but not quickly enough. Pirates pounced and the damage was done.

Remember, Conan Exiles isn't solely an online game, which tend to prevent piracy by requiring game versions to match that of the official servers. In Conan Exiles you can host your own worlds and play them alone or with others, or join their private worlds. In other words, a pirate can play the game.

I'm having trouble thinking up a way to construct a more frustrating experience for a game publisher. To have a game not susceptible to server check-ins, to have tried to infuse that game with DRM only to have it stripped in error and released, and to then have that game very much playable by the people you had specifically tried to prohibit via the DRM is like some kind of trifecta from hell for a game publisher. Remember, Nintendo lost its shit comnpletely when its free app was found to be "pirated." You're probably expecting Funcom to be cheesed off at equal or greater levels.

Except, at least from the company's first public statements on the matter, not so much.

"There is unfortunately not much we can do about those who choose to download and play unauthorised copies," Funcom said, "but we hope they make the jump to the official version so they can stay up to date with the latest patches and improvements. Being an Early Access title, there will be a lot of updates going forward!"

It's a nearly perfect response. First, the company admits that piracy is a thing that's going to happen. Then the company makes both a logical case for why fans of the pirated versions have a reason to buy an authorized copy, while maintaining a cool demeanor and enthusiasm that can only ingratiate the publisher to its fans, paying customers or otherwise. And keep in mind that it would be totally understandable if Funcom had a negative emotional response to all of this. But this way is better business.

It may be a little light on the connecting with fans part of the equation, but Funcom has focused on giving those who might pirate the game -- and like it! -- a reason to buy. Well done.

Filed Under: conan exiles, denuvo, drm, infringement, piracy, reality
Companies: funcom

Appeals Court Reminds Everyone: Patent Infringement Is Good For Competition

from the so-why-isn't-it-encouraged-more? dept

A legal dispute that goes back in some form or another to at least 2001 has resulted in the 5th Circuit Appeals court thankfully reminding people that patent infringement is actually good for competition. To say that the details and background of this case are confusing and convoluted would be... quite an understatement. If you want to read the background in the full ruling, go ahead, but I'd recommend bringing along a white board, a compass and a large Thermos of coffee. Let's just say that two companies that make different versions of retractable syringes, RTI and BD, have been less than happy with each other for many years, and there have been some lawsuits covering a variety of different theories for why RTI doesn't want BD selling safety syringes (or, if not stopping the company from doing that, compelling it to fork over lots of money to RTI). There have been patent claims, antitrust claims, unfair competition, false advertising and some more. It's... convoluted. While the court's background explanation is convoluted as anything, where things came down recently was that RTI argued that BD's patent infringement (which had already been ruled on by the court earlier in this neverending saga) was also a form of an antitrust violation. Even this part is confusing, because RTI has a few different reasons for why it argues BD is violating antitrust law, with only one of them being its infringement of RTI patents.

Of course, if you're playing along with the home game, you should already be scratching your head. After all, patents themselves are monopolies. So, if anything, you'd think that any antitrust argument would be focused on the patent holder rather than the patent infringer. But, here, RTI is arguing that the patent infringement itself is a form of an antitrust violation, as it's part of BD's effort to foreclose competition. But... again, that makes no sense, and the appeals court rightly calls this out and notes that patent infringement doesn't block competition -- it actually increases competition:

Patent laws are designed to secure for patent holders a time-limited exclusive right to exploit their discoveries, but this is “not the kind of public purpose protected by the antitrust laws,” which seek to “protect the free flow of interstate commerce.”... That a patentee may anticompetitively extend its market power to products other than those covered by a patent, and thus violate the antitrust laws, is well settled... RTI, however, cites no case holding the converse: that antitrust liability may be founded in whole or in part upon patent infringement. By definition, patent infringement invades the patentee’s monopoly rights, causes competing products to enter the market, and thereby increases competition. RTI, in fact, persuaded another jury of exactly this procompetitive result when it proved patent infringement by BD’s 1mL Integra safety syringe. The judgment against BD, which was then forced to remove the competing product from the market, diminished competition but enforced RTI’s patent rights.

Of course, this doesn't mean that patent infringement is legal -- it's not. But at the very least, the court is shutting down the positively nutty argument that patent infringement might also be an antitrust issue, even though it increases competition rather than decreases it.

Filed Under: 5th circuit, antitrust, infringement, patents, safety syringes

Appeals Court Dumps Infringement Lawsuit Against EA After Plaintiff Fails To Produce Evidence

from the well,-I-have-lots-of-hearsay-and-conjecture... dept

The Ninth Circuit Court of Appeals has affirmed [PDF] the dismissal of a copyright infringement suit brought against Electronic Arts by Robin Antonick, a programmer who worked on the Apple II version of the game Madden back in the mid-80s.

Antonick was locked out of royalties for other versions of the game by the software company, but alleged Electronic Arts did nothing more than copy his code when porting it to other platforms -- creating a "derivative work" that he was supposedly entitled to collect royalties on. Antonick might have had a case. But while allegations are nice…

In 2011, Antonick brought this diversity action against EA, seeking contract damages in the form of unpaid royalties for Sega Madden and Super Nintendo Madden. [...] Antonick produced evidence that Park Place was rushed and inadequately staffed, and argued that it copied his code to meet the demanding deadline for the first Sega Madden. Antonick’s expert, Michael Barr, opined that Sega Madden was substantially similar to certain elements of Apple II Madden. In particular, Barr opined that the games had similar formations, plays, play numberings, and player ratings; a similar, disproportionately wide field; a similar eight-point directional system; and similar variable names, including variables that misspelled “scrimmage.”

…evidence is better.

But neither the source code for Apple II Madden—the “Work”— nor the source code of any allegedly infringing works were introduced into evidence. Nor were images of the games at issue introduced.

Not that evidence (or a lack thereof) apparently mattered to the jury. It found that EA had created a derivative work with its Sega version of Madden, but the court found (post-verdict) that Antonick had not produced any evidence clearly pointing to copyright infringement. Without that evidence, Antonick is out of luck when it comes to his contract/royalty claims.

Antonick tried to route around this obstacle by claiming EA had both the opportunity and the motive to copy his work. On top of that, he tried to pursue this as a "look and feel" case while still relying on the supposedly-copied code as the basis for his claims. The Ninth Circuit found these arguments -- and Antonick's witness -- unpersuasive.

[T]he lay testimony was about how the games appeared, not how they were coded—and Antonick does not assert a copyright interest in Apple II Madden’s audiovisual appearance, only in its coding.

Antonick argues that copying was shown by testimony of Michael Kawahara, an Apple II Madden assistant producer. When asked whether he recognized any of the plays in Sega Madden from Apple II Madden, Kawahara answered affirmatively, stating that “[it] was – well, since the interface was – well, it was the same as we used in the Apple II. It was very easy to look at all of the plays in the Genesis version and they looked identical . . . to the original Apple II version.” This comment, however, does not establish that the source code for the two games were substantially similar. Kawahara had no programming responsibilities for Apple II Madden; did not understand the Apple II Madden code; did not see the Sega Madden code; and admitted that he had no knowledge about differences in the games’ codes.

A statement entered into evidence by the plaintiff -- introduced to back up Antonick's claim about EA's motive/opportunity to copy the source code -- only made the case weaker.

Antonick also cites a statement by Richard Hilleman, an EA representative, that it was “possible” he had told an interviewer that “the Sega game took the system’s approach from Mr. Antonick’s game and just simply put a different aesthetic on top of it.”

This is an area that often trips up those deeply reliant on IP protections but surprisingly uninformed about what those protections actually cover. The Appeals Court straightens out this popular misconception.

But, an “approach” is an idea that cannot be copyrighted—only its expression in code is protectable—and Sega Madden could have used Apple II Madden’s “approach” to football video games without violating the copyright laws.

That's the minor failure of the suit -- mistaking ideas for expression. The ultimate failure is Antonick's inability to back up his assertions with actual evidence. Infringement claims with no evidence presented pushed Antonick into resorting to "look and feel" claims, which are notoriously difficult to turn into courtroom victories.

Filed Under: copyright, evidence, infringement, robin antonick
Companies: ea, electronic arts