Ding Dong: Silly Six Strikes Copyright Infringement Scheme Is Dead

from the about-time dept

The pointless "six strikes" plan -- a hilarious "voluntary agreement" between some big ISPs and the MPAA & RIAA is no more. It's dead. It never should have lived, and of course, the MPAA is now blaming everyone but itself for the failure -- and we'll get to that. But first, some background.

As you may remember, back in 2011, after significant direct pressure from the White House, many of the big ISPs and the MPAA & RIAA came to a (ha ha) "voluntary" agreement on a six strikes program to deal with "repeat infringers." There was a lot of history behind this, which we won't rehash, but the shorter version is that, for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they're caught infringing three times, that would magically make piracy go away. They got a "three strikes" law passed in a few countries, starting with France. It was a complete disaster, as basically everyone who wasn't from the MPAA and RIAA predicted.

In the US, it became clear that there wasn't the political appetite to push through a three strikes law, so instead parts of the government, starting with the White House, started putting tremendous pressure on ISPs to work out a deal. The negotiations took a very, very long time. There were lots of rumors about them and then radio silence -- until the "six strikes" deal was announced. The "compromise" was that (1) it was six strikes instead of three and (2) after six strikes... nothing happened. The key aspect of the three strikes plans the legacy entertainment industry had pushed was that you lose your internet connection. But the ISPs, rightfully, considered that a complete dealbreaker and basically refused any deal with a cut off.

Of course, just months after the agreement was reached, the whole SOPA/PIPA thing happened, and ISPs realized that they probably could have pushed back even harder and not agreed to a crummy deal. The implementation of the plan was delayed repeatedly, and it was believed that some of the ISPs wanted to renegotiate post-SOPA.

The plan finally went into effect, and just as lots of people predicted, it had no real impact. Just as everywhere else where this plan went into effect, people who really wanted to find infringing works continued to do so. They just found ways of avoiding being spotted. It certainly didn't magically make people want to go out and buy stuff. The organization that was set up to manage the six strikes program, the Center for Copyright Information (CCI) bravely put on its best Baghdad Bob beret and insisted that the plan was working great -- even as leaked documents showed that Hollywood knew from early on that the plan was a dud.

And now it's dead:

Major internet providers are ending a four-year-old system in which consumers received “copyright alerts” when they viewed peer-to-peer pirated content.

The ISPs, studios, and record labels did not extend a pact that implemented the voluntary program, viewed as a way to fight piracy without the need for congressional legislation. When it debuted in 2013, it was viewed as a major new initiative to fight piracy, with Internet users subject to repeated notices if they continued to access infringing content.

But, true to form, the MPAA wants to point the finger at everyone but itself for its own failures to stop treating fans as criminals:

Although no reason was given for ending the program, the MPAA, in a statement from its general counsel, indicated frustration at the inability to stop repeat infringers.

“These repeat infringers are the ones who drive ongoing and problematic P2P piracy,” Steven Fabrizio, executive vice president and global general counsel at the MPAA, said in a statement. “In fact, an estimated 981 million movies and TV shows were downloaded in the U.S. last year using P2P. ”

Left out of this, of course, is the fact that the movie studios had the best year ever last year in terms of US box office revenue. And that more and more people are happy to pay for services like Netflix, even as the studios have been basically pulling tons of movies from those legal services.

We've been saying it for nearly two decades, but piracy is not the problem. Not listening to your customers is the problem. The MPAA is so focused on punishment it never recognizes that the carrot works better than the stick (which never actually works).

Of course, the MPAA still isn't getting this lesson. It's doubling down, which is why the BMG v. Cox case is so important to watch. Even before the six strikes plan went into effect, the legacy entertainment industry admitted that the real goal was to force ISPs to disconnect users. They planned to lump the six strikes plan in with a total misinterpretation of the DMCA to incorrectly argue that the DMCA actually requires ISPs to kick users off their service.

This reading is plainly wrong from what was in the DMCA and the negotiations around the DMCA. The law does require a policy to terminate "repeat infringers" but that was for online services (like a YouTube or a blog hosting company) and not for access providers. Unfortunately, in the Cox case, the judge seemed to get hung up on some unfortunate emails and a bizarre lack of understanding about how important an internet connection is for many people today, and ruled that ISPs do have to kick people off the internet.

That case is now on appeal, and basically all of the usual suspects (on each side) have been filing amicus briefs to push the 4th Circuit one way or the other. But a decision on that should be coming in the not too distant future, and that's going to be super important. If BMG's win is upheld, then it may be seen as a requirement for ISPs to not just put in place their own three- to six-strikes type plan, but that it would need to kick people off the internet based on such accusations (not convictions) of infringement.

And none of that will make people buy a product they don't want.

The MPAA has had a couple of decades to stop attacking its biggest fans as criminals and to actually focus on providing them what they want. And it keeps on failing to just focus on that. Instead, it keeps overreacting to piracy and getting infatuated with the idea that it must break the internet. The death of the official six strikes plan was inevitable. It was a dumb plan from the start. But the real issue here is what will happen in court. Will the court uphold a dangerous plan that will lead to innocent people being kicked completely off the internet? Or will it recognize that maybe, just maybe, Hollywood's focus on control shouldn't ruin people's lives?

Filed Under: copyright, dmca, dmca 512, isps, six strikes, three strikes, voluntary agreements
Companies: bmg, cci, cox, mpaa, riaa

Perfect 10 Loses Once Again, Sets More Good Copyright Precedent

from the the-weird-gift-that-keeps-on-giving dept

As we've noted, sorta-porn company Perfect 10 really is the gift that keeps on giving. The company claims that it's in the porn business, but in one of the many, many lawsuits it has filed, it was suggested that the company is little more than a pure copyright troll, just looking for companies to sue. This was in a filing made by one of the companies Perfect 10 sued back in 2010:

Perfect 10 is a copyright troll that does not operate a real business and instead seeks to foster the spread of infringing copies of works that it owns over the Internet in order to entrap and shakedown websites and services where copies of its images may randomly end up.

Perfect 10 does not have the employees or attributes of a legitimate business. Today, Perfect 10 is essentially a paralegal service masquerading as a porn company. It is run by its founder, Norm Zada, out of his Beverly Hills home with the help of full and part time employees who are paid primarily to troll the Internet looking for (but not removing) allegedly infringing copies of Perfect 10 images for use in existing or potential future litigation and to draft declarations and other papers.

One of the core elements of a Perfect 10 copyright trolling operation is that it rarely sends legitimate DMCA notices. Sometimes it just sends screenshots of images and basically says "take this down" without ever pointing to the actual location of the content. That's yet another reason why many have argued it's little more than a troll. Someone truly looking to protect its own content would actually follow the DMCA and tell service providers where the content was hosted, rather than tap dancing around such questions... and then filing lawsuits. I'm sure that some who Perfect 10 threatens just settle, but when cases go to court, Perfect 10 not only loses, but loses in impressive fashion, setting all sorts of useful and valuable precedents around the DMCA and how service providers should respond to takedowns. Among the useful cases:

• Perfect 10 v. Google
• Perfect 10 v. CCBill
• Perfect 10 v. Amazon
• Perfect 10 v. Visa

And, then, in 2014, Perfect 10 lost yet again, this time to Usenet provider Giganews. The case there was so egregious that in 2015, Perfect 10 was ordered to pay $5.6 million in legal fees to Giganews for filing such a bogus claim.

Perfect 10 appealed (of course) and the 9th Circuit has now given us yet another smackdown of Perfect 10, affirming the lower court decision, and saying that Perfect 10's theories about Usenet infringement are pretty crazy. One key point in the ruling, that Perfect 10 tried to argue, was that in light of the bizarre (and still nonsensical) Supreme Court Aereo ("looks like a duck") test, Giganews should be found to have been a direct infringer due to its interpretation of "volitional conduct." Specifically, Perfect 10 seemed to argue that Aereo wiped away the need to show "volitional conduct" by the parties accused of infringing. The court isn't buying it:

Contrary to Perfect 10’s contention, this requirement of causation remains an element of a direct infringement claim. In Fox Broadcasting, we explained that “[i]nfringement of the reproduction right requires copying by the defendant, which comprises a requirement that the defendant cause the copying.” ... In using this language, we indicated that causation is an element of a direct infringement claim.

Furthermore, the court points out that Perfect 10's interpretation of Aereo is just wrong:

The volitional-conduct requirement is consistent with the Aereo majority opinion, in which the Supreme Court held that Aereo, a service that streamed broadcast television programming to subscribers over the Internet, “perform[ed] publicly” as defined by the Transmit Clause.... First, the Aereo Court did not expressly address the volitional-conduct requirement for direct liability under the Copyright Act, nor did it directly dispute or comment on Justice Scalia’s explanation of the doctrine. Thus, as one court in the Central District of California subsequently opined, because “[t]he volitional conduct doctrine is a significant and long-standing rule, adopted by all Courts of Appeal to have considered it, . . . it would be folly to presume that Aereo categorically jettisoned it by implication.”

From there, the court makes quick work of each one of Perfect 10's claims, pointing out how each one appears to be divorced from the reality of the law. Perfect 10 seems to be one of the perfectly ridiculous plaintiffs. A key part of this case, for example, is that Giganews regularly pointed out that in order to remove postings from its Usenet servers, it needs the proper Message-ID and, in the rare cases where Perfect 10 passed those along, they were quickly removed. But most of the time, Perfect 10 refused to actually pass along Message-IDs, and seemed to indicate Giganews should still block those images:

we hold that there were no simple measures available that Giganews failed to take to remove Perfect 10’s works from its servers. Giganews presented sufficient evidence that Perfect 10’s proposed method for locating infringing messages was onerous and unreasonably complicated. Indeed, Giganews spent more than 20 hours processing 565 Message-IDs from Perfect 10 because they were not machine-readable. Giganews calculates that Perfect 10’s method would therefore require 354,000 hours of manual work for every 10 million Message- IDs – the number of Message-IDs that Giganews receives every month. Moreover, the record is clear that when Giganews did receive machine-readable Message-IDs, it immediately processed them and subsequently removed the messages from its servers.

There's also the question of "inducement" -- the Supreme Court-invented legal concept that sunk Grokster a little over a decade ago. Once again, there's nothing in what Giganews that comes even remotely close to inducing infringement:

Based on the record, no reasonable juror could conclude Giganews distributed its product “with the object of promoting its use to infringe copyright.”...

Perfect 10 points to entirely inconclusive evidence of any such objective to infringe copyrights. For example, Perfect 10 identifies Giganews’s advertising materials, which state that its product “has built-in MP3 and File Locators that search all Giganews newsgroups for music, pictures, and movies without having to download millions of messages.” Perfect 10 also points to a web page where a Giganews advertisement appears next to text written by another entity, which states that Giganews “provide[s] an uncensored news feed with up to 20 ssl encrypted connection and over 460 days worth of retention. That is over a years [sic] worth of access to downloadable music, movies and games.” However, neither of these advertisements nor any other evidence in the record indicates that Giganews itself promoted its product “with the object” of infringing copyright.

Perfect 10 further argues that Giganews has the object of promoting infringement because it: (1) “offers 25,000 terabytes of copyrighted materials . . . without permission,” (2) “continues to commercially exploit the content of known repeat infringers,” and (3) “advertises that it does not keep track of subscriber downloads, effectively encouraging infringement.” Even if true, none of this conduct suggests that Giganews clearly expressed an intent to promote infringement or took “affirmative steps . . . to foster infringement.”

The court also rejects the "vicarious" liability wackiness that Perfect 10 argues, noting that Perfect 10's theory seems to violate the very basic concept of who has standing in court:

Here, Perfect 10 argues for a rule that would allow a court to hold Giganews liable under a theory of vicarious liability by showing only that Giganews benefits financially from the infringement of another’s works, regardless of whether Giganews received any financial benefit from the specific infringement alleged. Such a rule would allow cases to be built on the rights of owners and the actions of users not before the court. At the very least, Perfect 10’s proposed rule is in significant tension with Article III’s standing requirement. At most, Perfect 10’s view runs counter to the requirement that there be a “causal connection between the injury and the conduct complained of[.]”

Finally, the court upheld the fee award for legal fees from Perfect 10, meaning that it may now be on the hook for many millions of dollars for bringing such a ridiculous lawsuit in the first place. Perfect 10 may, of course, ask the Supreme Court to hear a further appeal, but that seems unlikely to go anywhere. And, in the meantime, we've got another useful precedent sent by a wacky Perfect 10 case.

Filed Under: copyright, dmca, dmca 512, safe harbors, takedowns, volitional conduct
Companies: giganews, perfect 10

Ark: Survival Mod That Replaces Dinos With Pokemon DMCA'd, Possibly By Another Rival Modding Group

from the strategic-censorship dept

This story is a rather fast-moving, so let's dig in. Ark: Survival is a survival game in which you hunt dinosaurs. Being a PC game, there is a fairly healthy modding community working with the game to expand it, make slight alterations to it, and even inject other instances of pop culture into it. Case in point is the Pokemon Evolved mod, which replaces the dinos that are to be hunted with, you guessed it, pokemon. As you probably also have already guessed, the mod was hit with a DMCA notice and was briefly taken out of the Steam Workshop.

You would be forgiven at this point if you immediately assumed that it was the folks at either Nintendo or The Pokemon Company, both of which have been noticed policing the Pokemon IP aggressively. It was therefore head scratching that much of the reporting was peppered with caution over assigning blame for the DMCA, such as was the case in the original PC Gamer post linked above.

We're not sure yet who issued the DMCA notice—we've inquired and will let you know when we hear back, but it could definitely spell trouble for the mod, especially since modder 'Mystic Academy' admits the models and animations used in the mod were imported directly from Pokémon X/Y rather than recreated from scratch. The modder only made changes to ensure the models worked in-game.

Anyone familiar with how the Pokemon property has been protected in the past no doubt saw these caveats as superfluous hand-wringing. Turns out they were not, however. The developer of the mod, Mystic Academy, began making a great deal of noise about the DMCA actually coming from a rival modding group that was also releasing a mod for the game to inject Pokemon into it. That accusation appears to now be the accepted reality, with the DMCA being rescinded...

The DMCA notice has apparently been lifted, and no longer appears on the mod's page in the Steam Workshop.

...and Mystic Academy having a bit of fun at the accused DMCAer, a modder going by "Cheese", who does indeed have a rival mod called ARKmon WIP.

Now, the DMCA process is supposed to be utilized by rights-holders to protect their own intellectual property. DMCA notices initiated with service providers typically (always?) include language such as the following example from Vimeo:

A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

The "penalty of perjury" portion sounds great, warning against issuing DMCA notices over intellectual property not owned by the issuer, except the provision is so rarely enforced as to render it mere legal smegma. Too often the DMCA process is abused in this way, acting as a weapon against rivals rather than a tool for copyright enforcement. That this can be done at all should signal a significant flaw in the process, one in need of correcting.

Of course, the next update in this story may end being that Nintendo or The Pokemon Company render this drama moot by issuing their own DMCA notices to takedown both mods, which would be disappointing but not surprising. Still, this serves as a useful highlight of a flaw in the system that renders DMCA as a potential tool for censorship rather than protection.

Filed Under: ark: survival, censorship, copyright, dmca, mods, pokemon

Game Developer Tried Threatening Game Reviewer And Posting Fake Steam Reviews To Be Successful; It Didn't Work

from the bye-bye dept

You may recall the rather short saga of video game studio Digital Homicide. That studio attempted to find success with a strange formula: sue game reviewers over negative reviews, sue Steam accounts for likewise negative reviews, find its game suddenly delisted from Steam entirely, and then declare itself dead. Not exactly the end that Digital Homicide was hoping for, certainly. One would have hoped that its story would serve as a warning to other game studios. And perhaps to some extent it has, as another game developer, Matan Cohen, ever so slightly altered the formula in probably the worst way possible.

It still starts off with abusing the DMCA process to take down negative reviews and threatening the reviewer with legal action, of course. In this case, we once again find Jim Sterling, the same reviewer threatened by Digital Homicide, being the victim of a game developer's abuse. After having first filed a DMCA claim on Sterling's review of the game Art of Stealth, Cohen then allegedly went on a legal threat binge against Sterling.

These kinds of threats never work, but behaving as though you were specifically attempting to follow the playbook of a now-dead game studio, even mimicking its targets in the game review community, seems like a terrible business strategy. But, as I said, Cohen does indeed deviate from the Digital Homicide playbook at this point. Cohen has by all accounts not attempted to sue Steam users for what have likewise been fairly negative reviews on his game's Steam page.

Instead, he appears to have decided to simply make up a bunch of Steam accounts and have them post fake reviews for his game instead. It was apparently blatant enough that Steam investigated and decided to push the button on the nuclear option and remove the game from Steam entirely.

We (Valve) have identified unacceptable behavior involving multiple Steam accounts controlled by the developer of this game, Matan Cohen. The developer appears to have created multiple Steam accounts to post a positive review for their own game. This is a clear violation of our review policy and something we take very seriously.

For these reasons, we are ending our business relationship with Matan Cohen and removing this game from sale. If you have previously purchased this game, it will remain accessible in your Steam library.

When, oh when, will content makers realize that making war on negative reviews of their works is a losing proposition. The focus needs to be on making great content and connecting with people, not wielding legal threats as a cudgel. And, for the love of the universe, attempting to fake positive coverage can only serve to torpedo your career.

Filed Under: art of stealth, censorship, copyright, dmca, fake reviews, jim sterling, reviews, threats, video games
Companies: valve

Another Convicted Felon Tries To Use The DMCA Process To Erase DOJ Press Releases About His Criminal Acts

from the also:-PATENTS! dept

Looks like another convicted felon is abusing the DMCA process in hopes of cleansing the web of his misdeeds. Chad Hatten of Houston, Texas, was arrested on multiple counts related to ID theft and access device fraud. Hatten stole credit card numbers to buy gift cards to resell at a discount. He was indicted in 2005 and sentenced to 66 months in prison in 2006.

Now that Hatten is (presumably) no longer behind bars, he's been doing a little DIY SEO work. His first attempts to get the DOJ's press releases delisted by Google occurred in 2012, which would line up with the termination of his sentence.

In his first two attempts -- both filed under "music" -- it appears a third-party link removal service failed to achieve Hatten's objectives.

These links are lsited as blocked , when using the URL removal tool, yet continue to appear in search results.

The link targeted was the DOJ's press release announcing Hatten's indictment. His second 2012 DMCA targets the announcement of his conviction.

The links targeted in 2012 have since rotted away, which perhaps explains the six-year gap between Hatten's removal efforts. The targeted releases have since resurfaced with new URLs. So has Chad Hatten. This time he's brought... someone else's patents? And warnings of impending violence.

protected work. Additionally, the high page rank of this result places lives at stake. Please at least manually lower this result. Someone could die as a result of this appearing so high.

More detail on the DOJ's deadly press releases can be found in yet another Hatten takedown attempt -- one that also includes someone else's patents as the supposed "original work" being infringed.

If anyone actually reads this, this link is 12 years old, and is ruining my life. It is placing my safety at risk. Please either remove this, or manually lower the page rank. I could die as a result of this link.

If it's difficult to discern why a publicly-posted press release might be viewed as potentially deadly, it's even more difficult to comprehend the inclusion of someone else's patents in the DMCA takedown notice. And yet, that's what Houston's Chad Hatten has done. He's dragged along someone else he found in his frantic vanity searches in hopes that their intellectual property will somehow push his bogus takedowns past Google's spot checkers.

This is the so-called "original URL" listed in Hatten's request:

http://google.com/patents/WO2016007659A1?cl=no

While there may be those engaged in credit card theft who dabble in chemistry from time to time, it's highly doubtful the convicted Chad Hatten is also the inventor Chad Hatten, employed by Illinois-based energy company, Coskata Inc. It's also doubtful Chad Hatten the DMCA abuser could explain the following in layman's terms:

Processes for controlling the concentration of co-produced oxygenated organics in anaerobic fermentation broths for the bioconversion of syngas to product oxygenated organic compound

And, even if it was Hatten's (the convict's) patent, a DMCA notice has nothing to do with patents and would never be able to stop this sort of infringement no matter how many URLs it delisted.

But wait! There's (one) more!

Hatten also engages in the more expected form of DMCA abuse: fraudulently claiming information he wants delisted is actually his own creation. Targeted by this DMCA notice is a PDF of Hatten's unsuccessful appeal of his conviction, as rejected by the Third Circuit Court of Appeals.

According to Hatten's DMCA, the federal appeals court decision is "my writing." Proof of Hatten's "creation" supposedly can be found at joemoore.com (listed as "Original URL"), a URL which automatically redirects to Joe Moore's IMDb page… as it has since 2013. (The first few years of that URL's history are very different from its current incarnation as a promotional redirect for a second unit director. [But SFW.])

None of this represents how the system is supposed to work. But all of it demonstrates how easy it is to abuse. Google tends to vet DMCA notices pretty well, but it's unclear if other search engines are as attentive. Of course, to many people Google represents The Internet, so hitting up Google with bogus takedown notices is the only stop they'll ever make. Chad Hatten's attempts have fallen short of his DIY right-to-be-forgotten goal, but there's plenty of evidence out there that the DCMA process works just well enough (in terms of abuse) that it's always worth a try.

Filed Under: censorship, chad hatten, copyright, dmca, doj, press release, takedowns
Companies: google

RIAA Still Pushing Its Bogus Message Of A 'Value Gap' And 'Fair Compensation'

from the can-we-review-some-history dept

The RIAA is not exactly known for being the most honest of organizations out there, but in an interview given by the organization's General Counsel, Steve Marks, the level of blatant dishonesty is taken to incredible new levels. I'm going to take just one paragraph and break down what a load of total bullshit it is, and hopefully it will demonstrate, yet again, why the RIAA should never be taken seriously in its claims. It's the final question in a short interview with the Hollywood Reporter, and the question is at the top:

What changes do you foresee in the landscape of music law over the next five years?

Issues like the “value gap” and obligations of intermediaries will continue to dominate the legal landscape. Ideally, the Byzantine legal structure today would give way to a system where creators are fairly compensated and competitors are on equal footing. Those who have an interest in music could come together to figure out solutions. While litigation can be an important tool, it often takes a long time and the results are unclear. Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.

Let's take this bit by bit.

Issues like the "value gap"....

The "value gap" is a completely made up concept by the RIAA and friends, arguing that internet platforms aren't paying the record labels (not the artists) enough. It's based on a series of out and out lies, including the simply false claim that artists make more from vinyl record sales than from online streaming.

The "value gap" is the RIAA cherry picking misleading numbers to argue that internet platforms aren't paying them enough. Note that they don't make any effort to improve what they're doing -- they're just demanding more money from platforms... just because.

And, really, that's the same issue with the rest of that sentence:

... obligations of intermediaries will continue to dominate the legal landscape.

"Obligations of intermediaries." That's legal speak for "we want everyone else to act as our private police force, and they should automatically block infringing material or we should be able to sue them for billions of dollars." Never mind the fact that the industry can't even keep track of its own copyrights, and has been known to sue over authorized works or that the RIAA itself has a history of falsely claiming infringement on works that were actually authorized -- even in cases that resulted in the bogus takedown of a site that was sent promotional works to post. And yet it expects "intermediaries" (read: Google) to magically know which works are authorized and which are not -- and to face billions of dollars in possible judgments if it guesses wrong.

Ideally, the Byzantine legal structure today...

The reason copyright's legal structure today is so "Byzantine" is because of lobbying by the RIAA and its friends at the MPAA. Every time a new technology comes along, the RIAA flips out and demands a patchwork of add-ons to copyright law to protect its gatekeeper powers, allowing it to extract monopoly rents.

Of course, the "Byzantine legal structure" Marks is whining about here is actually the very one that the RIAA itself lobbies heavily for with the DMCA's 512 notice-and-takedown provisions. The RIAA wanted a way to censor the internet via copyright law, and the DMCA was the trick. The fact that the RIAA no longer likes the deal that it fought for is just a bad joke.

And, let's not even get into the "Byzantine" structure of RIAA label contracts designed to keep artists from actually getting paid... Or, wait, let's dig right into that following the next bit of insanity from Marks.

... give way to a system where creators are fairly compensated...

Wait. The RIAA is asking for "creators" to be "fairly compensated"? Hahahahahahaha. Oh, that's a good one. This is the same RIAA who has worked incredibly hard to screw over artists time and time again to make sure they are not fairly compensated? The same RIAA whose member labels create contracts where artists routinely note that they made $0 in royalties, because the label contracts make it so impossible to recoup the advance that when you ask for an "accounting" of how much money an album has made, the labels just make shit up to avoid paying.

These would also be the very same RIAA member labels who take the vast majority of the revenue from new platforms, leaving just a pittance for artists -- and then whine that it's the platforms not giving them a fair deal. The very same labels that make sure that artists get close to nothing of any money coming in to the label. And, yes, the very same labels who for years pretended that digital music was classified as the same as a CD sale -- with much lower royalty rates than "licensed" music, leading numerous artists to sue just to get what they were clearly owed. The very same labels that many artists have had to sue, just to get a proper accounting of what is owed.

So, I'm sorry, but what a load of bullshit for the RIAA, of all organizations, to claim that it's fighting for "fair compensation" for artists. The RIAA has a decades-long history of screwing over actual artists at basically every opportunity.

... competitors are on equal footing...

Another completely ridiculous claim. The "equal footing" that the RIAA is talking about here is forcing online platforms to all conform to one particular business model -- a totally unsustainable one where an insane percentage of revenue all flows back to the labels (not the artists) despite the fact that the labels fought these platforms and did absolutely nothing to help make them a success. The whole "equal footing" or "level playing field" is really just the RIAA demanding a particular business model and saying that any innovation in business models (even if they're better for actual artists) should not be allowed, unless the RIAA gives its okay. It's basically the "we don't want any innovation" stance.

Those who have an interest in music could come together to figure out solutions.

This is hilarious. For decades, the RIAA has been the major obstructionist party here. It was the internet industry that dragged the RIAA kicking and screaming into the 21st century while people like Marks focused on suing music fans. To now claim that he just wants to "come together to figure out solutions" is laughable. The only "solutions" the RIAA wants are ones where it does none of the work, and it gets all of the money.

While litigation can be an important tool, it often takes a long time and the results are unclear.

Translation: we sued a bunch of fans and that made everyone hate us. Also, we sued a bunch of platforms and lost badly because the law isn't actually what we want it to be.

Solutions between business and industry partners can clear a path through thorny legal issues. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem.

This is just a repeat of the opening line, basically. It's the RIAA saying that the internet industry needs to solve all of its problems, and what it means is that the recording industry doesn't want to budge an inch, doesn't want to do anything, and just wants the internet companies to give tons of money to the labels and to wave a magic wand and make piracy disappear.

Filed Under: copyright, dmca, dmca 512, fair compensation, intermediary liability, safe harbors, steve marks, value gap
Companies: riaa

Universal Studios Misses A Chance To Be Awesome And Instead Tries To DMCA Leak Of Unfinished 'Mummy' Trailer

from the sigh dept

Universal Pictures, it will not surprise you, has a long history of being overtly protectionist on anything to do with its intellectual property. This has led to stories both funny and infuriating. The studio's legal team, for instance, once asked Google to delist 127.0.0.1 for piracy, with that IP address essentially serving to denote the machine currently in operation. It's "home", in other words. On the other side, Universal's lawyers sent out licensing bills to fans its marketing team had asked to pimp one of its movies for free.

Universal keeps a tight grip in an attempt to control everything to do with its products, in other words. But when the internet is involved, such attempts at control can go horribly, horribly wrong. Such is the case with the recent leak of an unfinished trailer for the upcoming film The Mummy.

Yesterday morning very few people knew that a new version of The Mummy will be on the big screen next summer. That changed quickly when an unfinished trailer of the film was accidentally put online by IMAX’s YouTube account. As it turns out, the trailer where Tom Cruise is screaming without sound effects is quite an entertaining watch. Soon, the mistake was reposted all over the Internet, where it triggered a meme fest. Great promotion for the film, one would think, but the bosses at Universal Pictures weren’t smiling.

Let me make this more clear: this trailer, and memes incorporating it, were everywhere these past couple of days. And, to a lesser extent, they still are out there. Not with any sort of approval by Universal, of course, whose lawyers have been firing off DMCA notices to take down the trailer wherever they can find it.

On Twitter alone, several people had their postings removed over copyright infringement claims. According to the movie studio, the “leaked” trailer is not for the public’s eyes.

“The uploaded trailer was a leaked version without sound fx. This was accidentally released online but is not intended to be available for public viewing. We have removed it from YouTube, but it is still populating on Twitter,” they write.

Indeed it is, and it's not difficult to understand why. On the one hand, the trailer without sound effects and music is truly hilarious and entertaining. In fact, one wonders if any polished and completed trailer could garner so much attention as this unfinished one. On the other hand, it's quite interesting to get a glimpse at what the unpolished footage looks like, and to understand how much a musical score and sound work add to the experience. Whichever angle you come at it from, it's fun.

And it was a massive opportunity for Universal Pictures to join in on the fun, be awesome and human, and enjoy all of the massive and free publicity its unreleased movie was suddenly getting. Sure, the trailer is goofy without the production values the completed product will enjoy. But so what? Everyone understands that. And everyone realizes that the studio had no intention of the public seeing this version of the trailer. But now that it's out, Universal should be doing everything it can to supercharge the viral nature of all of this free publicity and bending some good will from the public. Instead, they are trying to shut the whole thing down.

Which, of course, isn't working.

As a result, many copies that were posted on Twitter, YouTube and elsewhere are no longer working. However, there is so much interest in the trailer that Universal can’t really keep up. For every video that’s pulled offline, several others appear elsewhere. It seems virtually impossible at this point to put the genie back in the bottle. In fact, the trailer has become a fertile breeding ground for memes, with people adding their own soundtrack or using Tom Cruise’s scream as the modern-day Wilhelm scream to pimp other videos.

And this sort of thing will only be furthered now that reports are out about Universal's attempt to unring the bell. So, the lawyers will accomplish nothing other than to create animosity where there was once only interest. Great job all around.

Filed Under: dmca, special effects, takedowns, the mummy, trailer
Companies: universal pictures

DMCA Process Abused To Nuke Post About Researcher Who Faked Data On Federally-Funded Study

from the 'DM'-stands-for-'Dick-Move' dept

Wonderful. It's another one of those anomalies that happens all the time: copyright as censor.

This time, the person abusing copyright protection tools to shut someone up is a disgraced researcher (Kaushik Deb) who received a three-year federal funding ban for "intentionally, knowingly, and recklessly" fabricating data in a research paper created with tax dollars.

Retraction Watch was informed by its hosting service that it had received a DMCA notice targeting the post. The tactic used here is one we've seen before: copy-pasting and backdating of posts to make it appear as though the targeted site is the one engaging in copyright infringement.

On Wednesday, our host, Bluehost, forwarded us another false copyright claim — aka a Digital Millennium Copyright Act (DMCA) takedown notice — by someone calling himself “Jiya Khan” and claiming to be based in Delhi, India. (Well, specifically, in “Rohini,sector-12,” which would mean that he or she is based at one of two petrol stations.)

Khan insisted under penalty of perjury that a December 2014 post of ours — which we have now temporarily removed from public view (more on that in a moment) — violated his or her copyright.

What actually happened, in an eerie echo of the 2013 case, is that Khan copied and pasted our December 9 post onto his or her site, then backdated it to December 5 to make it look older than ours, so that he or she could make a false copyright claim. (That, among other things, is a bit of a problem for Khan; the Federal Register notice that the post is about — and to which it manages not to link — wasn’t published until December 9.)

The bogus backdated Blogspot blog contains several other copy-pasted posts, suggesting "Jiya Khan" is just a fake name fronting for a sketchy reputation management service. Presumably, bogus DMCA notices have been issued to target the mixture of critical articles and negative reviews splashed across the blog's pages. It's not exactly a surefire way to rid the net of criticism, but it's cheap and easy and works just often enough it's worth trying. We saw this with disgraced real estate lawyer Sean Gjerde, and gripe sites have seen it happen with just about everyone else.

For the time being, the Retraction Watch post is down. The Federal Register's recounting of the incident and its sanctioning of Dr. Kaushik Deb is still live, and there are multiple snapshots of Retraction Watch's post on Kaushik Deb's data-faking hosted at the Internet Archive.

Retraction Watch is challenging the DMCA takedown notice. Presumably, the post will be live again in the near future. Then again, "Jiya Khan" may continue to insist he created Retraction Watch's post, which means Bluehost won't be able to do much more than keep the post down until all permutations of the DMCA process have been played out.

But that's how easy it is to make fully-factual criticism disappear, even if only temporarily. And whoever's mismanaging Kaushik Deb's questionable reputation knows this. Even if there's provable perjury in the takedown request, who's going to actually be able to track down the real person behind the "Jiya Khan" facade, much less manage to hold them accountable for their abuse of the system?

Filed Under: censorship, dmca, kaushik deb, reputation management, research
Companies: bluehost, retraction watch

How The DMCA And The CFAA Are Preventing People From Saving Their Soon-To-Be-Broken Pebble Watches

from the bad-laws dept

I've made no secret of the fact that I think smartwatches are really wonderful, even as lots of people scoff at the concept (and sales have been disappointing across the board). The first device that clued me in to the possible power of the smartwatch was the original Pebble smartwatch, which I (and many, many others) backed on Kickstarter. I ended up backing their second Kickstarter campaign as well -- but was disappointed in the end product and ended up moving on to another smartwatch instead (the Moto 360, though now it looks like Motorola is dumping that business as well). I didn't end up backing Pebble's latest Kickstarter campaign, which turned out to be a good thing, because as you may have heard, the company announced last week that it had sold its assets to Fitbit, and no more work would be done on Pebble watches (and people who backed the latest project would eventually get refunds, but no watches).

But, things are even worse for those who already do have (and still use) Pebble watches. In the announcement, the company admits that since Pebble watches rely on Pebble servers for certain features, the functionality of the watches may be reduced in the future:

Active Pebble watches will work normally for now. Functionality or service quality may be reduced down the road. We don’t expect to release regular software updates or new Pebble features. Our new mission will focus on bringing Pebble’s unique wearables expertise to future Fitbit products. We’re also working to reduce Pebble's reliance on cloud services, letting all Pebble models stay active long into the future.

Of course, as Cory Doctorow rightly notes, the real problem here is that thanks to stupid laws like the DMCA Section 1201 (barring circumvention of technological protection measures) and the CFAA (barring certain forms of "hacking"), users will have trouble fixing or saving their own watches. It's yet another case of not really owning what you thought you bought... thanks to DRM and bad laws.

The watches are among the many cloud-based Internet-of-Things products that are reliant on the ongoing maintenance of server infrastructure for normal functionality. This problem is exacerbated by the widespread IoT deployment of DRM to lock devices into manufacturer-controlled infrastructure -- thanks to laws like section 1201 of the Digital Millennium Copyright Act, developers who create software to replace cloud functions with alternative/self-hosted servers, or with local computing, face potential jail sentences and millions in fines. Add to that the Computer Fraud and Abuse Act, which has been used to threaten and even jail researchers who improved services but violated their terms of service to do so, and the IoT space is the land of the contingent, soon-to-be-bricked devices

As Cory notes, Pebble should allow their own users to hack their stuff, by releasing source code, schematics and more. Unfortunately, this is unlikely to happen. But it's yet another case of the law getting in the way of something you thought you owned.

Filed Under: cfaa, dmca, hacking, ownership, pebble watches, smartwatches
Companies: fitbit, pebble

Notice & Staydown In Action: HBO Didn't Even Need To Send Takedown Over Autistic Teen's Artwork

from the bursting-your-bubble dept

Things just got a little more weird in the case of the 13 year old British girl who had some art she created taken down from Redbubble's site because the artwork included the phrase "winter is coming." The girl's father responded to the takedown, questioning why HBO, owners of the trademark rights to the phrase in conjunction with the Game of Thrones franchise, would do this to an autistic teenager that wasn't even selling the art, only sharing it. As noted in our original post, the letter Redbubble sent the girl is a mess, lacking any firm reference to trademark or copyright and replacing it only with "IP/Publicity Rights." In addition, the whole letter is written like a forwarded DMCA notice, including offering the ability to counternotice through Redbubble's DMCA counternotice email address... but this would be a trademark issue, to which the DMCA doesn't apply. Lots of people, including the girl's father, assumed this takedown had been carried out at the request of HBO.

It looks like that wasn't the case. What the girl's father missed -- along with many of those reporting on the issue, including myself -- is that Redbubble's letter states that they did this because of HBO's history of issuing DMCA notices, not because it had actually done so in this case.

"We have removed the following content from Redbubble in response to past complaints from Home Box Office, Inc., the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy," it said.

So this wasn't "notice and takedown", it was "notice and staydown", where Redbubble policed HBO intellectual property on its site based on previous complaints. That's not required by law, of course, but it certainly is what many in Hollywood want to see as the standard. And this is a perfect case for why it's a terrible, terrible idea. Legitimate, non-infringing uses get caught up in the blanket takedowns issued by service providers that don't really have a clue as to what they're doing.

And in light of what actually happened, Redbubble's letter, and the way it appears to be disguised as a DMCA notice, is at best horrifically sloppy and at worst an attempt to shift the blame for its voluntary and proactive takedown of a teenage girl's artwork. For it's part, HBO doesn't seem to be happy about this.

"We love when fans are creative in their support of our programmes," the network said in a statement (via Entertainment Weekly). "These works live online in many incarnations, and in the past we have celebrated them by drawing attention to them.

"Many for-profit websites that sell products, such as Redbubble, take steps to avoid infringements as part of their standard operating procedure. To suggest a particular individual was targeted, or that HBO threatened legal action against her, is simply untrue."

Now, HBO's history of how it treats fans of Game of Thrones isn't universally positive, and it's worth noting again that the stated reason Redbubble did all of this is because of the network's heavy-handed history when it comes to matters just like this...but I have to think HBO is also pissed off at the way Redbubble's communication with the girl's father allowed him -- and the media -- to conclude this was all HBO's fault for issuing a DMCA takedown.

Regardless, good to know that Redbubble wants to be in the business of proactively policing its site in such a way that it results in the non-infringing artwork of a teenager gets taken down. The site is a notice and staydown site, on the record.

Filed Under: censorship, dmca, notice and staydown, notice and takedown, threats, trademark, winter is coming
Companies: hbo, redbubble