stories filed under: "evidence"
Challenging BPI's Claims That IP Addresses Alone Are Accepted By Courts As Proof Of Infringement
from the lies-the-recording-industry-tells dept
BPI, the equivalent of the RIAA in the UK, is apparently insisting that the evidence it uses to accuse file sharers of infringement is "of an extremely high standard." Of course, the "evidence" is an IP address, which anyone with a basic understanding of technology knows is, by itself, not indicative of much. You could combine that with other evidence to have a bit more useful info, but IP addresses are hardly the sort of "extremely high standard" of evidence you would think they are from the BPI's claims. So, the folks at the Open Rights Group are asking BPI to back up their claims that the evidence is of such a high standard and that UK courts have accepted this evidence, asking a simple yes or no question:Has any UK court ever treated an IP address as being sufficient by itself to identify a defendant as a copyright infringer in a contested copyright infringement claim decided after a trial of an action?This is because -- in typical recording industry misleading fashion -- BPI uses weasel words in its claims, saying
It is the same quality of evidence that was provided in more than one hundred cases to the High Court in litigation against end users and which was accepted by the court in each case. Most of these cases resulted in settlements, and all of those on which judgment was given found in the BPI's favourHmm, citing settlements is useless because a "settlement" is not a ruling on the merits, and therefore does not prove that an IP address is quality evidence. And while judgments are made on the merits, saying that such evidence was used in successful cases is not the same thing as saying an IP address, in and of itself, is sufficient to prove infringement. Apparently, ORG asked BPI to clarify this well over a month ago, and still has not received an answer. Shocking.
Filed Under: evidence, ip addresses, uk
Companies: bpi
Because One Paywall Sorta Worked Very Briefly Many Years Ago, Free Is A Joke
from the interesting-theories dept
Pickle Monger points us to this hilarious and uninformed piece by Sean Coughlan, at the BBC, which talks up the brilliance of paywalls and mocks the "digital hippies" who believe in free. Amusing, of course, that he's writing this for a free online publication. Damn digital hippy. Coughlan uses a single anecdote to prove paywalls work. Apparently, back in 1997, he worked for Rupert Murdoch and a digital group that, very briefly, offered a fee-based service for The Times (which is now going under its new paywall). And some people paid. That's about all the details we get. There's no indication of how many people paid. There's no indication of how much they paid. There's no indication of how much the service cost to run. There's no indication of what the competitive landscape was at the time. But because a few people sent in checks (ok, it was the UK, so "cheques"), paywalls are a brilliant success, and those damn digital hippies (you know, the ones who understand basic economics like supply and demand and marginal cost and price) ruined it all.To support his position, he found an equally uninformed journalism (not economics) professor named Tim Luckhurst, who used to be an editor at a newspaper:
"It was an entirely irrational decision. We were wrong," says Tim Luckhurst, now professor of journalism at the University of Kent and former editor of the Scotsman. He is referring to the struggle to replace subscription revenue with that created by advertising. "It was a huge mistake. But we were all guilty of believing in the myth," he says.Except, of course, as has been pointed out time and time again, subscription revenue has never paid for content. It's hasn't even covered the cost of materials and delivery in your average newspaper. The content has always been paid for by advertising, and you increase your advertising by increasing your viewership. The real mistake by newspapers wasn't that they didn't put up a paywall at the beginning, but that they didn't do much to actually engage their community. They just took their static newspapers and moved them online. But they didn't realize that they had always been in the business of selling the attention of their local community to advertisers. The problem was that in the online world, that local community had other options, and newspapers failed to do much to keep them.
This is one aspect that I expect we'll explore at the Techdirt Saves* Journalism event -- not just business models and what works, but actually engaging your community (and that means more than just putting up a comment form).
Filed Under: evidence, journalism, paywalls
Google WiFi Data Caught In Legal Limbo
from the can't-destroy,-can't-share,-can't-have dept
As governments around the world continue to go overboard in their condemnations of Google's (admittedly bad) collection of open WiFi data via its Street View cars, much more interesting than the political grandstanding is the legal limbo mess that the collected data has been placed into. After realizing that it had accidentally collected this data, Google announced that it would stop collecting and begin deleting the data it collected (Update: more specifically, it said it wanted to delete the data, but would discuss with regulators before doing so). But that raised alarm bells from some, who worried that doing so would be deleting evidence for a possible lawsuit against Google. Then, governments started demanding that Google share the data with regulators, so they could determine how serious a privacy breach this really was. However, Google is noting that sharing the data would be a violation of privacy rights in many countries, pissing off regulators who put those privacy laws in place in the first place.So... Google can't collect this data, but it can't delete the data it accidentally collected. Regulators want to see the data to see if it's okay for Google to delete it, but they can't see it, because that would violate privacy regulations. But, regulators feel they need to see it, to see if Google violated privacy regulations. So, basically everyone's stuck in a state of limbo.
Filed Under: data, evidence, privacy, street view
Companies: google
Report From The Field: ACTA Negotiations Not Going Well
from the about-time dept
Well, there's a bit of good news coming out concerning ACTA negotiations: apparently, all this public scrutiny is causing some problems for the negotiators. Jamie Love points us to an analysis by David Hammerstein, based on talking to a number of people involved in or close to the negotiations, and came up with some key points, including that "the negotiations are not going that well and many issues are still wide open. It is doubtful they could wrap up soon" and that "there is a significant problem in making US and EU legislation compatible on a number of issues." Apparently, because of the way the US defines fair use and "commercial scale," the EU negotiators are trying to leave in vague language that doesn't sit well with others. He also notes that there's some confusion about what the EU Parliament's recent vote against ACTA means for the negotiation.Then there are three key points at the end:
They get very uncomfortable when asked about the possible use of the legitimacy of Acta in authoritarian countries.As well they should. This is a point that we've raised repeatedly, noting not just the similarities between the methods used for censorship in authoritarian countries and ACTA, but also in the way that those countries will almost certainly use ACTA to justify their own censorship.
They have no answer to concrete questions on the "innovation chill" that could be caused in many businesses by introducing criminal sanctions and other enforcement measures.This is what happens when you craft rules designed to benefit legacy companies within an industry, without understanding the broader impact on the market. That the negotiators "have no answer" to this question only confirms that these rules were not created with the goal of improving the overall welfare of citizens, but to protect certain companies. And that point is only highlighted even more by the final point:
No social or economic impact studies seem to be undertaken in the EU on Acta.Of course not. That's because, as per usual with intellectual property rules, these ideas are faith-based, rather than evidence based.
Filed Under: acta, evidence, negotiations
Response To The White House's Request For Feedback On IP Enforcement
from the promote-that-progress dept
Last month, we noted that the White House's "Intellectual Property Enforcement Coordinator," Victoria Espinel, better known as the IP Czar -- a position just created by 2008's ProIP bill -- had reached out to us and a bunch of other websites that discuss issues surrounding intellectual property and alerted us to the request for public input on the White House's IP enforcement strategy. Below is the email that I am sending in response. If you would like to send your own email, please note that they're due today, Wednesday, March 24th by 5pm (ET, I assume). If you notice, there are some similarities between this letter and the one I filed with the USTR on the Special 301 report. There seemed like no reason to reinvent the wheel, when I was happy with how parts of that first letter turned out:Re: Comments on the Joint Strategic Plan
Victoria Espinel
Intellectual Property Enforcement Coordinator
Office of Management and Budget
Executive Office of the President
Filed via email
Dear Ms. Espinel:
I write to you today as a long-time content creator, who makes a living off of my ability to continue to create content and receive remuneration for that activity. And yet, I am concerned about the state of US copyright law, and the fact that it does not serve my interests or the interests of the vast majority of content creators today. Despite being a professional content creator, I have purposely chosen not to make use of copyright law, because the way it is structured today actually hinders my own ability to profit from my content creation.
Based on this, I would like to address three key points in response to your request for comment on the strategic plan for IP enforcement:Promoting Progress
- Any efforts at enforcement should be judged on the actual evidence, rather than faith-based claims of "harm" where no harm may exist.
- The actual evidence suggests that less enforcement may actually increase economic and cultural progress -- and thus, any government run enforcement plan should tread carefully.
- There is an important difference between harm to certain companies that don't want to adapt to a changing market, and harm to an overall industry -- and we too often confuse the two.
The central tenet of copyright law has been, "To promote the Progress of Science and useful Arts," and the mechanism for this is both copyright and patents, or more specifically, "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Unfortunately, over the years, all too often we've lost sight of the beginning of that sentence, in the assumption that any increase in those "exclusive rights" must surely "promote the progress." And, yet, as we have expanded and stretched copyright law time and time again -- and almost never contracted it -- no one ever seems to ask for any actual evidence that stronger and lengthier copyright law leads to promoting more progress.
This is not a new concern. Thomas Macaulay famously argued in 1841 that we ought to be careful to only extend and expand copyright upon evidence that such an extension or expansion would, in fact, lead to greater incentives to create. Yet, to this day, our public policy has been to take it on faith that stricter copyright laws lead to greater incentives to create -- despite the lack of evidence to support this position. In fact, the evidence has suggested that as technology has decreased the ability of copyright holders to enforce copyright, the incentives to create have only increased. And this is not just the ability to create as an amateur, but the ability to create and earn money as a professional.
A Look at the Evidence
A recent paper by economists Felix Oberholzer-Gee and Koleman Strumpf demonstrated this in rather great detail, highlighting that even as new technologies have undermined classical copyright law, there remains little evidence that this change has undermined the incentives to create. In fact, the research collected in that paper and other papers (such as the research by economist Will Page of PRS for Music in the UK) suggests that more people are creating new works of music today than ever before in history. The same is true of movies, an industry that has seen the number of annual releases double in the last five years alone and box office results continue to increase to record numbers.
Given this, it is unfortunate that your request for comment on enforcement strategies focuses solely on one half of the equation: "the harm." Looking at the actual evidence on the economics of intellectual property, it suggests that there are also benefits to reduced intellectual property enforcement -- and, in fact, those benefits may outweigh the costs. A bigger concern should be that overly aggressive expansion of intellectual property enforcement will actually cut off important forms of expression along with cultural and economic progress. The Oberholzer-Gee and Strumpf paper is quite detailed in reviewing the facts, concluding that "weaker copyright protection, it seems, has benefited society." They do this analysis both economically and from the viewpoint of output. More content than ever before is being produced and distributed, and the vast majority is being done outside the boundaries of traditional copyright law. At the same time, the amount of money being made by the various industries involved in these endeavors has continued to rise.
Even the music industry -- often seen as being the most hard hit -- is actually doing better than it has done in the past. This is because the breakdown of traditional scarcities in the market has fueled important and valuable new business models. The greater efficiencies of the system mean that consumers are actually getting more value, and are actually paying more than in the past. In economic terms, the shift in the market, sometimes associated with intellectual property infringement, has actually driven much greater complementary revenue streams. This argument may seem counterintuitive at first, but it is not as surprising when you recognize that modern technology, often by enabling further infringement, has also made the creation, distribution, promotion and consumption of such content significantly more efficient. Trying to block the infringement through greater enforcement via the law does not come without costs. It can serve to significantly burden those other areas as well, leading to decreased output and decreased economic activity.
The real issue is not harm to society or to the economy as a whole. Oberholzer-Gee and Strumpf's report shows that the overall music market has grown, such that in 2007 it was actually 66% larger than in 1997 in terms of revenue. This is not an industry in trouble. The problem is that one segment of the entertainment industry has seen harm: those firms that have relied heavily on copyright protections for their business models. However, as we have seen, the wider industry has already successfully been putting in place alternative business models.
Given that, it would be a dangerous mistake to increase enforcement policies, or to put in place new rules that may stifle these new opportunities and new models, as they are growing. I recognize the concerns of those in companies that have not been able to successfully adapt, but we should not be setting policy to rescue or support specific companies -- especially as the overall industry is thriving and consumers are benefiting greatly.
For detailed methodology on how the music industry has been thriving, you can read the Oberholzer-Gee and Strumpf report at the following URL http://www.hbs.edu/research/pdf/09-132.pdf. Further support for similar results in more focused areas comes from Will Page, the chief economist for PRS for Music, looking at the UK market for music, which is also growing: http://bit.ly/ukX9Y.
Policy Implications
These studies, along with numerous others, point to important facts about how industries can adapt, even in the face of technologically-weakened copyright, without the need for greater enforcement. But they also raise an important point: before our policy on copyright is made without actual evidence, it is important to allow the market to function to see if it can adapt appropriately. This often creates disruption, but we should not assume that a disruption within some companies within an industry means that the entire industry is imperiled.
Given all of this, it would be unfortunate to rush into any form of greater enforcement without evidence that it is actually needed.
From a specific policy perspective, then, the Joint Strategic Plan should set out a process for actually judging the real economic impact of stronger enforcement, rather than starting from the assumption that greater enforcement is necessarily good. It should not only look at the claimed "harm," but the flip side as well, the vast "benefits." It should step back from the question of "how do we increase enforcement" to ask whether stronger enforcement actually does serve to "promote the progress." For 300 years, since the Statute of Anne in the UK, copyright has been mostly a faith-based initiative. There is an opportunity now to bring actual evidence into the decision making process. I look forward to seeing how IPEC proceeds in making sure that any efforts in enforcement are based on actual evidence and tied back to that key requirement: "to promote the progress of science and the useful arts."
Sincerely,
Michael Masnick
Filed Under: copyright, evidence, ip enforcement
Judges Allowed To Use Google To 'Confirm Intuition' In Cases
from the well,-there's-that dept
One of the more controversial posts we've had recently concerned the discussion about whether or not jurors should be allowed to use the internet to do research related to a case they are hearing. It seems like most folks here were very much against it, though I think it's something worth exploring in more detail. But, let's take this question a few steps across the courtroom. What about judges? In a recent appeals court ruling, it was found that it's okay for a judge to use Google to "confirm his intuition."The case involved a bank robber, and a question over whether or not he violated the terms of his release by (you guessed it) robbing another bank. There was a question over what the robber wore that resulted in the Googling:
Chin reviewed several pieces of evidence, including a bank surveillance video showing a robber who wore a yellow rain hat. A yellow rain hat was found in the garage of [Anthony] Bari's landlord.While that single point seems to favor the suspect, in providing some bit of reasonable doubt that the yellow rain hat alone proves who it was, the judge, Denny Chin, felt that there was enough overall evidence, and sentenced the guy to three years in jail. However, because of that Google search, Bari appealed, saying this violated federal rules of evidence. However, the appeals court had no problem with it:
Noting similarities between the hats, Chin at a hearing said he resorted to Google Inc's search engine for help. "We did a Google search," and "one can Google yellow rain hats and find lots of different yellow rain hats," he said.
In its decision, the appeals court said most federal evidence rules "do not apply with their full force" in proceedings to revoke supervised releases.I'm curious to see if the same people, who were horrified at my suggestion that Google searches for juries might not be such a horrible thing, feel the same way in the case of a judge. Because one of the key points raised in the discussion here was that "rules of evidence" were concrete and could never be messed with -- and even suggesting that the concept might be due for an update was pure blasphemy. Yet, here it seems that an appeals court recognizes that modern technology may change how rules of evidence can work.
Using this "relaxed" standard, it endorsed Chin's effort to confirm his "common sense supposition" that more than one yellow rain hat is available for sale.
But it went further, saying improved broadband speeds and Internet search engines cut the cost of confirming intuitions.
The court said that 20 years ago. "a trial judge may have needed to travel to a local department store to survey the rain hats on offer.
"Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search," it added. "As the cost of confirming one's intuition decreases, we would expect to see more judges doing just that."
Filed Under: evidence, google, intuition, judges
Companies: google
Editorial On Why The Patent System Should Be Abolished
from the in-the-mainstream-press,-no-less dept
We've certainly discussed the work of David Levine and Michele Boldrin plenty of times before -- and both were kind enough to participate in our CwF+RtB experiment earlier this year. If you haven't read their book, then you are missing out. Now, Levine and Boldrin have a new editorial up in the CSMonitor, explaining why they think the patent system should be abolished. If you've read their work, there's nothing surprising, but if you have not, it's a quick summary of the key points:As a matter of theory, intellectual property is a double-edged sword. On the one hand, giving a reward increases the incentive to innovate. On the other, allowing the monopolization of existing ideas taxes the creation of new ones, thereby decreasing the incentive to innovate. The bottom line: Contrary to widespread belief, economic theory does not provide support for the continuous extension of IP. The only answer to the question of whether IP serves the desired purpose must be empirical. Does it work in practice?No matter what your stance on this topic is, you have to admit it's impressive to see it getting attention in a mainstream publication like the CSMonitor.
A great deal of applied economic research has tried to answer this question. The short answer is that intellectual property does not increase innovation and creation. Extending IP rights may modestly boost the incentive for innovation, but this positive effect is wiped away by the negative effect of creating monopolies. There is simply no evidence that strengthening patent regimes increases innovation or economic productivity. In fact, some evidence shows that increased protection even decreases innovation. The main finding is that making it easier to get patents increases ... patenting!
Filed Under: david levine, evidence, incentives, michele boldrin, patent system, patents
More ACTA Leaks; Still Looking Really Bad
from the sneaky,-sneaky dept
Yet again, despite all the secrecy and bogus claims of "national security," the details behind what's being proposed in ACTA have leaked, and they don't look good at all. It's basically an attempt to force the worst of the DMCA on much of the rest of the world, with a few carefully chosen modifications. While there are lots of issues, it's worth noting the most basic of all, found in the first paragraph that contains the "general obligations" of participating countries. As Michael Geist details:These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.This is the sort of thing that you really have to watch out for in these types of agreements. The lobbyists for the entertainment industry are amazingly good at carefully selecting or omitting words that, to the casual observer, don't seem all that important. However, in the long-term, they can change the entire thrust of an agreement. By leaving out the requirement that enforcement be "fair, equitable and/or proportionate," it makes it much easier for the industry to push for more and more draconian enforcement measures under a typical game of leapfrog or "ratcheting," where they focus on getting one country that's agreed to ACTA to impose something draconian, and then insisting that everyone else has to follow through in the name of "harmonization." Be aware of these sorts of tricks as the Hollywood lawyers will waste little time in leaping forward with claims that these rules really aren't any different than what's already in place. Of course, if that were actually the case, they wouldn't be arguing so hard for these new rules. They know how to work the system.
The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an "inducement standard." The industry has been pushing for this for a while, and while it failed to get the INDUCE Act passed in the US, it effectively got close with the troubled ruling in the Grokster case, written by a Justice who clearly admitted to not understanding basic technology. The problem with any sort of inducement standard should be obvious (though, it seems like it's not to maximalists): you are creating a liability for someone based on the actions of others. That should always be seen as a bad idea. However, the entertainment industry loves it, because they would rather fight legal battles against a small number of file sharing services and sites, rather than the users of those service and sites.
Even worse, by "harmonizing" these sorts of things via international treaty, we are left in the same troubled position we are on other similar treaties like Berne and TRIPS, whereby countries are locked into very specific rules on how intellectual property must work, and are unable to make serious and meaningful changes, based on their own knowledge of what works best to encourage and promote progress. Having a very small body of folks, heavily influenced by industry lobbyists, decide exactly what copyright laws must be does not allow for experimentation and actual knowledge of how these sorts of changes impact creative output. They're designed to hide the damage done by bad copyright law, rather than figure out a way to fix it.
Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy
Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses
from the yeah,-that's-convincing dept
Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:Advertising Photographers of AmericaFunny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group
Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.
Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp., nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group
