This was, of course, a huge viral sensation a few years ago. It currently has over 34 million views. South Park parodied it all the way back in April of 2008, with the following:
Now, there are a few oddities about the whole thing. First, it's not clear why they waited over two and a half years to sue. That's got to work against them. Also, apparently, Viacom did license the song. The singer/songwriter (if you can call it that), Samwell, is not a part of the lawsuit. Brownmark were just the folks who made the video, and they're saying that their copyright was infringed also. In fact, if you watch the original video, you'll see that they've even added a popup telling people that Samwell isn't suing South Park, and in the description they state:
SAMWELL IS NOT SUING SOUTH PARK.
Brownmark Films is NOT Samwell. It is a music video production company.
Samwell is not involved, so please try to be nicer to him!
The whole "please try to be nicer to him" thing is kind of strange, and suggests that Brownmark knows what a ridiculous lawsuit this is. Separately, Viacom has responded by pointing out that parody is protected and is not copyright infringement. Obviously, the whole thing seems a little silly, and feels partly like it might be a publicity stunt by the two guys at Brownmark.
However, there is one other interesting note. In the press release announcing the lawsuit, Brownmark points out that there's a certain irony in the fact that Viacom was "copying" content from YouTube at the same time it was suing YouTube for posting copies of Viacom content:
In a time when corporations like Viacom are actively pursuing billion dollar judgements against video distribution sites such as YouTube, it is unreasonable for those same corporations to treat the Internet as a bottomless well from which it can endlessly draw content without permission, payment, or even acknowledgment of the original artists. Brownmark Films is taking a stand against these corporations’ continued reliance on double-standards, a decision made all the more difficult by Brownmark Films' respect for South Park and its brand of humor.
All that said, this lawsuit seems like it will go nowhere extremely fast. The video is clearly a parody video, and I can't see how the videomakers have any chance of convincing a court otherwise.
With the Hadopi three strikes program in France kicking into full speed, it may be worth jumping halfway around the world to South Korea, which put in place a very strict copyright law last year, that included the ability to kick people offline for accusations (not convictions) of file sharing. It's worth noting, of course, that the reason South Korea put in place such a draconian copyright law was due to serious diplomatic pressure from the US as a part of a supposed "free trade" agreement between the two countries. It's also worth pointing out that the trade agreement between South Korea and the US was, according to many, the basis for the initial draft of ACTA (though, obviously, it's changed a lot since then).
So, now that the law has been in place for over a year, what's been happening in South Korea? Well, it turns out that people are getting kicked offline for accusations of filing sharing -- but worryingly, it appears they're being kicked off with one strike, not three. Glyn Moody points us to a report on the data behind what's going on in South Korea.
Now, it's important to understand the specifics of the law there. There are two ways a user can have his or her account suspended. The first is if the Minister of Culture orders the ISP to suspend the user. However, this can only come after the user has been warned three times (hence: three strikes). However, there's also a separate way, which is that the Copyright Commission can "recommend" that ISPs warn someone, block or delete materials believed to be infringing or suspend accounts. Deleting or suspending doesn't require any prior notice or warnings or anything. Basically, the Commission says "we recommend you censor this content and/or suspend this user" and the ISPs then have a choice to make. Guess what they do? That's right, they obey. Nearly every time. Out of over 65,000 "recommendations" by the Commission, ISPs have only declined to follow the recommendation 40 times -- 20 times in sending out warnings and 20 times in deleting content. It's never declined to follow a recommendation to suspend an account.
Below is the full chart of data concerning the Copyright Committee's recommendations, and what was done about them:
Hopefully, it's clear what's going on. Basically, the Commission has sent out a lot of warnings, and blocked/deleted a ton of content. A total of 31 users have had their accounts suspended -- again, with no indication that there was any number of warnings or pre-notice at all. Separately, the blog post in question does note that the other method (the actual three strikes way, involving the Culture Minister) has sent out a much smaller 275 warnings and 41 orders to delete content, but none to suspend accounts.
Reader Alan points us to an interview with an executive from Atari, where he talks about a new program to work with file sharing sites, even as they make unauthorized copies available:
With the GO affiliate program, you're intending to work with sites that host illegitimate versions of Atari games - it's rare to see a company engaging with, rather than fighting, unlicensed distribution.
Truth be told, why in the world would I ever want to go after my fans? These are people who absolutely love our classic old arcade games. I joke about the fact that it seems like every computer science student, after their first year of programming class, goes off and writes a copy of Asteroids or Missile Command or Battlezone. The web is filthy with those.
Now, instead of arming up a cadre of lawyers the smart thing to do is say, "Look, you're fans of our games, let us give you the legitimate version of the game," and then bring those affiliates into the fold by saying, "We'll actually share revenue with you." They've been running that less than optimal, if not [coughs] a little dodgy, version of Asteroids or Missile Command, so why not just run the original one, share in the revenue and still have the same appeal to the fans they want to draw to their site? And we've got the library of all our other great games that we can bring to them as well.
Now some of those quotes struck me as interesting, because as you may recall, Atari was actually one of the earliest believers in "arming up a cadre of lawyers" and having them send out pre-settlement notices. It was one of the customers of Davenport Lyons, which was the predecessor of ACS:Law in the practice, and it only backed away, when it realized how much negative publicity it was receiving for threatening people if they didn't pay up.
So it's great to see the company looking to be a lot more embracing of ways to work with sites, and recognize that these are fans, not people to be attacked, but we shouldn't forget that it initially approached the space very differently.
A bunch of folks on all sides of the copyright debate have been submitting the recent post from the blog Copyhype (by a recent law school grad named Terry Hart) about the whole "infringement vs. theft" debate in terms of what to call it when someone's copyright is infringed. Hart is very careful and specific, but in the end tends to lean towards it being perfectly acceptable in many instances to refer to infringement as theft:
It's technically correct that "copyright infringement" and "theft" have distinct legal meanings, but so what? The idea that the legal distinction between the two terms forecloses any colloquial comparison is invalid. "Theft" in the legal sense has always meant something far narrower than "theft" in the everyday sense. In early English common law, for example, the crime of theft only included the taking of another's property by force or by stealth. It didn't include the taking of property by deception or trick, and it also didn't include the taking of property by someone in whom the property was entrusted. While today we would have no problem saying a delivery truck driver engaged in "theft" if he kept a package instead of delivering it, earlier courts had to jump through several hoops before reaching the same conclusion.
He goes on to knock those who quote the Supreme Court opinion in Dowling v. US, where Justice Blackmun makes it clear that infringement and theft are two different things. Hart claims that people who quote Dowling are quoting Blackmun out of context, while also noting Justice Breyer's concurring opinion in the Grokster case that says "deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft."
His overall argument, however, is that there's nothing wrong with calling copyright infringement theft, because beyond the legal definition, it accurately shows how people feel about having works infringed, and that's useful to the debate on these issues:
The debate over the labels we give to copyright is interesting in an academic sense but largely meaningless in the real world. Creators often use words like "theft" to reflect how they feel about acts of infringement. Shifting the focus from the colloquial meaning of the word to the legal meaning accomplishes little more than arguing for the sake of argument, while misusing language from case law only forecloses a fuller understanding of the law.
I agree, in part, but mostly disagree with Hart's conclusion here. I agree that arguing back and forth over which Supreme Court justice said what is somewhat meaningless. However, I disagree strongly that this becomes argument for the sake of argument. Whether we are speaking legally or economically or about the impact on any individual or organization, "theft" and "infringement" are two separate and different things. This is important. If you are seeking to understand what is happening and how to respond to it, calling it "theft" immediately shuts the door on a variety of important points. It closes off a path to understanding both what's happening and how one might best deal with it. I find that incredibly dangerous from the perspective of a content creator. Calling infringement theft or not isn't just a semantic argument from people who like to argue. It's about actually understanding what's going on, and that's simply not possible when you put up a wall to understanding.
So, yes, arguing over what justice said what in which Supreme Court ruling may not enlighten anyone, but looking at the actual details of what's going on, and making sure that you do not falsely lump two very different concepts into one in such a way as to preclude actual understanding, is no mere semantic argument. It's about actually understanding the issues in a way that can move people forward. Calling it theft is wrong. And not because some Supreme Court justice said so, but because it's wrong at an absolute level. You can call an apple and orange because of how it makes you feel, but that doesn't make it correct, and hinders your ability to understand the differences between apples and oranges.
As you may remember, two years ago, when news of ACTA first started getting attention, one of the key initial worries was that it would include language involving border patrol/customs agents scanning computers and other devices for "infringing content." At the time, many people pointed out that border patrol folks simply are in no position to determine what is and what is not infringing copyrights. Just as Viacom falsely thinks that YouTube somehow can make a similar legal decision on the fly, determining whether or not something infringes on copyright is not that simple. Soon after that, people were reassured that such provisions would not be a part of ACTA. However, it appears that in the latest leaked draft, some countries are supporting language that puts that concept back into ACTA. At that link, Howard Knopf does an excellent job explaining why such determinations should not (and cannot reasonably) be made at the border:
A judgment call about whether a particular product is "legal" or not is very often far from clear. For example, running shoes or handbags may be made "illegally" on the same assembly lines as the "real" product "after hours" and be identical in all physical respects to the "real" product. How is the border official supposed to make the determination as to whether the goods are "legal" or not?
In the case of parallel imports (which by definition are perfectly legitimate and neither fake nor counterfeit), the factual and legal issues are extremely complex. The US Supreme Court is about to hear a case about whether perfectly legitimate Omega watches with a small copyrighted logo engraved on the back can be imported into the US by Costco. Some of the smartest lawyers and judges in the USA are bitterly divided over how this case should turn out. In Canada, we had the Kraft case involving Toblerone chocolate bars, which resulted in a victory for the parallel importer and a complex judgment from a very divided Supreme Court of Canada (I was counsel for the Retail Council of Canada, whose intervener's arguments prevailed in the result). There was, of course, immediate speculation about how to get around the judgment but the subsequent court cases of which I am aware have settled or, in the case in which I was involved, fizzled.
If the best lawyers and judges have to struggle intellectually about whether perfectly legitimate parallel import goods can be legally imported, are we ready to allow border guards with no legal education, and with no prior judicial oversight to make this initial determination and potentially tie up millions of dollars worth of merchandise for great lengths of time, forcing the importer to go to court to get the goods released?
Border officials will inevitably be "educated" and provided with information about suspect shipments by those who may have a vested interest in keeping out parallel imports and may even have an interest in causing serious inconvenience to a legitimate competitor.
The recent wrongful seizure of generic aids medicine in the Netherlands was vivid proof that empowering border officials to make difficult IP decisions can lead to serious and even potentially fatal consequences.
Somebody should pay for the economic losses resulting from wrongful seizures. Who will that be?
What remedies will there be for abuse or misuse of the "ex officio" system by competitors?
What if the result of a wrongful seizure of medicine results in harm to health and safety?
There are a few more that are Canada specific (since Knopf is in Canada, and Canada is supporting the provision). Somehow I doubt we'll see much of a serious discussion of these important points, should this provision actually make it into ACTA.
We've pointed out recently that porn producers seem to be rapidly jumping on the mass automated "pre-settlement" bandwagon, and it seems that's only increasing. More and more porn producers are filing mass lawsuits, demanding people accused of sharing all sorts of porn pay up or go to court. One of the latest targeted is the porn "classic," Debbie Does Dallas, for which 113 John Does have now been sued. Apparently, the lawyer involved is the same one who filed a bunch of these types of lawsuits a few months ago, Evan Stone. So apparently he's joined the ranks of lawyers who are pitching this kind of "service." Over in the UK, various politicians have been condemning these kinds of lawsuits, even calling them a scam. With thousands of these lawsuits being filed in the US now, will any US politician speak up and do something about this clear abuse of copyright law?
Last year, we wrote about the somewhat bizarre class action lawsuit filed against Scribd for copyright infringement. It was bizarre on multiple levels. First, the lawyers filing the lawsuit against Scribd were the same lawyers, Joe Sibley and Kiwi Camara, who had famously defended Jammie Thomas against copyright infringement claims. It seemed odd for them to flip to the other side. But, their actual case was even more ridiculous. It made blatantly false claims, such as that Scribd (and other "West Coast technology" firms") believed that "commercial copyright infringement is not illegal." Uh, yeah. But then it got even more bizarre. Despite claiming that Scribd didn't care about copyright infringement, the crux of the case was that its copyright filters infringed. Yes, part of the claim was that because Scribd uses a copy of the text within its filters, it's that copy that's illegal. Got that straight? The company is damned if they do and damned if they don't. If they don't filter, they're blamed for ignoring infringement. If they do filter, they're accused of infringing copyrights with the filter.
Either way, that case has now been dropped, officially due to a "settlement." However, the details provided suggest this was no real settlement. Scribd, in a statement, notes that Camara and Sibley not only failed to meet the basic deadlines related to the lawsuit, but they effectively walked away from this case:
Our lawyer, Brian Mendonca at Wilson Sonsini stated, "The fact that Scott walked away from this case without getting a dime proves that the DMCA offers real protection to sites like Scribd."
Of course, this isn't the only lawsuit against Scribd. And, it looks like in a different case, Williams v. Scribd, a judge is letting that case move forward. As Eric Goldman notes in the link, the company apparently "ran into a judge who appears to be a stickler about letting unmeritorious cases survive to summary judgment" rather than dismissing them outright. It sounds like the judge may be willing to grant summary judgment in favor of Scribd, but didn't want to dismiss that case outright. And so, we have to wait before getting another ruling showing that the DMCA protects third parties from liability if they respond to DMCA complaints.
We recently wrote about a video that suggested that a Viacom web property, Spike.com, was doing to Jonathan Coulton what Viacom was claiming YouTube/Google had done to it. As we noted in the post, the video played a bit fast and loose with the facts, so we were a bit skeptical of the whole thing. It later turned out that a Viacom exec pointed out to Coulton that, many years ago, he had (in passing) authorized the use of the video on iFilm, as part of an effort to get the video on VH1. Of course, he's also now realizing that due to the non-commercial use clauses of many of the Flickr images he used in the video (which is about Flickr), that he probably didn't have the right to put it on a commercial site.
This is the point where Viacom supporters do the happy dance and claim that this proves how wrong everyone was to jump on this story.
Except... not so fast. This little vignette actually supports YouTube's position a hell of a lot more than Viacom's. It shows just how complex and messy these issues can be -- such that there's no real way for some third party to judge whether or not it's infringing without knowing the details. Even the content creators themselves -- whether Coulton or Viacom -- often seem to get confused over the matter. And yet Viacom thinks that Google can hire 30,000 lawyers skilled in copyright law to review the 24 hours of video uploaded every minute on the site? When even the content creators themselves don't know?
Even if you could hire 30,000 experts in copyright law and fair use to analyze each and every video uploaded, it still wouldn't work out. In this case, Coulton gave the approval for the video, but even he's now realizing (years later) that the images in the video were restricted and shouldn't have been allowed on a commercial site. But he was trying to get the video on a "viral videos" program on VH1. VH1 is a commercial property too, right? So wouldn't that have been just as infringing? Or would that be fair use?
The whole point is that it's not at all easy to figure out these things. As a court in Australia recently noted, the determination of infringement is not a black or white thing:
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.... users infringe copyright....
That's a key point in all of these discussions. Companies like Viacom like to claim that Google can easily figure out what is and what is not infringing, but there's no magic bullet or magic wand to do that. There's no way to know whether the content is properly licensed, or being uploaded by someone who has all the rights. There's no easy way to know if a court would find a work to be infringing or fair use. And dumping that decision-making onus on a third party service provider makes little sense no matter how you look at it. If there's an issue, it's between the copyright holders and the uploaders of the content. Bringing in a third party and demanding they police such things without the knowledge to do so simply makes no sense, and clearly is not what Congress intended with copyright law.
Michael Scott points us to a writeup by lawyer Will Cross (who apparently is now at the library school at Duke) which kicks off by looking at how retiring Supreme Court Justice John Paul Stevens really had a huge impact on the future of the internet, by writing the majority opinion in the hugely influential Sony Betamax case, which highlighted important exceptions to copyright law. Cross then also points to Stevens' decision striking down much of the Communications Decency Act as being unconstitutional for seeking to restrict expression online only to "what is fit for children." However, the post then goes bit by bit through what's happened since then, and shows how the Sony Betamax decision has been trimmed further and further back, to the point that the basic principles set forth by Stevens in both cases are increasingly unrecognizable:
This response to file sharing has taken a significant toll on the efficiency of the legal system and has bent the law badly out of shape. As Eric Goldman's blog, cited above, notes, "there is 'normal' copyright law and then 'P2P file sharing' copyright law, and it's a mistake to think those two legal doctrines are closely related." Content owners have repeatedly pushed for extreme, or simply non-legal, readings of copyright and fair use, most famously in the Lenz case dealing with bogus takedown notices (and a dancing baby) and the recent Jammie Thomas case dealing with excessive statutory damages. They are also attempting to rewrite the already draconian DMCA, an irony matched only by the sublime absurdity of content owners suing one another over pirated anti-piracy technology.
This erosion in Justice Steven's principle of an open internet reached a new low with a California court's recent injunction against BitTorrent search engine IsoHunt requiring it to remove all links pointing to infringing files. This, of course flies in the face of Stevens' principle about non-infringing uses and requires IsoHunt to have the same infeasible knowledge and control over users as was struck down in Reno. If the Pirate Bay case is the equivalent of suing AT&T for an obscene caller's ramblings then this case is akin to requiring that Sprint disconnect anyone whose phone might be used for unlawful acts even before those acts have been identified as unlawful. It cannot be done and the only alternative is to shutter the technology completely or simply bend over backward to accommodate any and all measures litigious content owners may seek to employ.
When Cross puts all those stories together like that, you realize how much of the last few years has really been about the entertainment industry effectively dismantling the core concepts put forth by Stevens in the Betamax decision. A key component to what helped make the internet free to become the internet we know, love and use every day, is slowly getting chipped away by special interests who don't want to allow that freedom because it undermines their business models. When you put all of that together in one place and realize how much has already been eroded, it's downright frightening, and it makes you wonder what great new technology won't be built and won't be widely used because of these policies.
Well, here we go again with the difference between real copyright law and "file sharing copyright" law. Just as a court in the southern district of California has suggested that Rapidshare is not liable for infringing activities of its users, a court in the central district of California has come down hard on Isohunt, demanding the site wave a magic wand and delete all infringing links. Of course, since we don't live in fantasy land where that's possible, it basically means the site needs to be shut down. As with the original ruling against Isohunt, however, it appears the judge doesn't quite understand the technology at play, and ascribes to Isohunt functionality that it has nothing to do with. For example:
Second, given the way in which
Defendants' system works, when Defendants' end-users download one of
Plaintiffs' works, the end-users automatically and simultaneously
further distribute the work to innumerable others as a required part of
the download process; additionally, at the conclusion of the download,
Defendants' end-users obtain an unprotected digital copy of Plaintiffs'
work that those end-users can further distribute indefinitely at will.
But, uh, that's how BitTorrent works. Not IsoHunt. I don't quite see how it makes sense to blame IsoHunt -- which is basically a search engine -- for the activities done by its end users and the technology of BitTorrent. The court also takes it as fact that the availability of unauthorized free copies must harm the market, despite no evidence to back that up. It's faith-based rulings, based on Hollywood (on the heels of its best box office year ever) making claims with no facts, that the judge just accepted:
It is axiomatic
that the availability of free infringing copies of Plaintiffs' works
through Defendants' websites irreparably undermines the growing
legitimate market for consumers to purchase access to the same works.
But that's wrong. It may cause harm, but it's hardly irreparable. If the movie studios actually, you know, adapted to the changing market (as some are figuring out), they could actually do much better. Why does the judge suggest otherwise with no proof at all?
Finally, the court continues to live in the same fantasy land as the entertainment industry in thinking this injunction will actually slow down or prevent any file sharing:
Finally, the Court agrees that the public interest will be served
with a permanent injunction, since it will protect Plaintiffs'
copyrights against increased and unrestrained infringement.
Except, of course, it will do no such thing. Instead, those users will disperse to other sites, perhaps the same ones that the entertainment industry just helped advertise.
Finally, the actual injunction is incredibly broad and amounts to -- as mentioned -- demanding that IsoHunt and Gary Fung develop a magic wand to figure out if a link points to infringing material:
Defendants shall be
permanently enjoined from knowingly engaging in any of the following
activities in connection with the Isohunt System or any Comparable
System:
(a) hosting, indexing, linking to, or otherwise providing access
to any Dot-torrent or similar files that correspond, point or lead
to any of the Copyrighted Works;
(b) assisting with end-user reproductions or transmissions of any
of the Copyrighted Works through a tracker server, or any other
server or software that assists users in locating, identifying or
obtaining files from other users offering any of the Copyrighted
Works for transmission; or
(c) hosting or providing access to any of the Copyrighted Works.
This is not to say that Fung is blameless. Clearly, IsoHunt did some things that looked quite bad under the law. But that doesn't excuse some of this ruling, which seems to go to ridiculous levels, way beyond what copyright law allows. None of this is a surprise given the earlier ruling or the proposed injunction, which included much of the same troubling language (including the bogus "axiomatic" statement). This isn't to defend Fung or IsoHunt at all. But I do worry when judges get so hung up on how bad a site like IsoHunt must be that they make rulings that will cause trouble down the road for others. Below is the full ruling if you want to read through it:
