We've noted all sorts of privacy and health problems related to full body "naked" scanners -- but there's a separate but important question: do they actually work? There's been some evidence presented that they wouldn't have spotted a variety of recent terrorism attempts, but now German police have noted that the machines also have a ridiculously high false alarm rate:
The weekly, Welt am Sonntag, quoting a police report, said 35 percent of the 730,000 passengers checked by the scanners set off the alarm more than once despite being innocent.
The report said the machines were confused by several layers of clothing, boots, zip fasteners and even pleats, while in 10 percent of cases the passenger's posture set them off.
[....]
In the wake of the 10-month trial which began on September 27 last year, German federal police see no interest in carrying out any more tests with the scanners until new more effective models become available, Welt am Sonntag said.
I would argue that this is actually worse than useless, in that providing a significant number of false positives makes it much, much harder to spot the actual positives. It desensitizes agents to assume that any alarm is a false alarm.
While it appears that Apple is not having much luck in the US in claiming that Amazon violated its trademark by offering an App Store that sells (you guessed it!) apps, apparently it is having an impact in Germany. Copycense points us to the news that Amazon has sent a letter to developers in Germany telling them it can no longer accept any new apps for its app store due to this dispute:
Subject: Important Notice for Germany Based Developers
Dear Amazon Appstore Developer,
Thank you for your participation in the Amazon Appstore for Android. We wanted to notify you of a recent change to your Developer Portal account; for the time being, we are not accepting new app submissions from developers located in Germany. We have been forced to impose this restriction due to a legal action filed by Apple in Germany seeking to prevent us from using the term “appstore.” We believe Apple’s claim is without merit and are actively contesting it.
When you log into your Developer Portal account, you will notice that the options to add new apps have been removed. We hope to begin accepting new apps from German developers again soon and will notify you as soon as we are able to do so.
We appreciate your patience and your continued interest in the Amazon Appstore for Android.
Thank you,
Amazon Appstore Account Team
While I'm guessing this makes Apple happy, it really is showing the world what a bully the company is when it comes to developers. You can get away with that for some time, but when there are real alternatives...
After one or two (or more?) years of being blocked on German Youtube, the full-length noncommercial Sita Sings the Blues movie is once again viewable in Deutschland:
I assume this is because last week I posted this video, complaining about why my 100% legal and painstakingly and expensively licensed movie was blocked in Germany:
Apparently many Germans are none too pleased with GEMA themselves, as indicated by interesting comments here. Some industry shills weighed in as well, but it looks like popular sentiment is against them. The story was shared widely, including in Der Spiegel and the New York Times online editions.
It's not clear how an American YouTube user is supposed to contest takedowns in Germany. When I was in Berlin recently, it was suggested I find a German lawyer to take some sort of action. At the very least, I would need someone in Germany to contest the takedown on my behalf. I imagine that would have been a slow and possibly expensive process. Then I thought of making this video. Although it took some work (writing a statement -- yes I know it's an imperfect statement, I did the best I could with the knowledge I had -- shooting the video, recording the audio via a separate mic, transferring files, editing, compressing, etc.), it was less work than managing an international legal process. And it got results fast! Better still, it contributed to ongoing debates about GEMA and Intellectual Pooperty in general.
My thanks to everyone who helped spread the word about this, and especially people in Germany who checked the Sita Sings the Blues URL and confirmed when the movie was blocked, and when it was unblocked.
Nina Paley, who regularly writes for Techdirt (as well as plenty of other publications) passed along this video she put up about how her movie, Sita Sings the Blues is blocked by YouTube in Germany, thanks to GEMA, the music collection society in Germany.
Since I know a little bit about the ongoing fight between GEMA and YouTube in Germany, I asked Nina if it was okay to do a post, discussing some of the details. We've written about GEMA a few times before, and last year, I went to Berlin and interviewed YouTube's Patrick Walker on stage at PopKomm/All2gethernow, specifically discussing YouTube's ongoing fight with GEMA. The details are a little different than what Nina suggests in the video, though she's absolutely correct that this is very much GEMA's fault. Even though Nina has a paid-in-full license with the various music companies that say displaying/performing her movie for free in Germany is entirely legal, GEMA has taken a ridiculous hardline stance with regards to YouTube. It believes that YouTube needs to pay it ridiculous sums of money for every video on the site that includes any GEMA-licensed music.
Other collection societies around the world have made agreements with YouTube, and worked out reasonable royalty rates for performances. Except GEMA. If I remember correctly, GEMA may be the only major remaining collection society which has not worked out a royalty rate with YouTube, and instead has been fighting a battle in German courts against YouTube. Because of that, and because of some clearly ridiculous court rulings, which suggest that YouTube (rather than its users) are liable for any infringement on the site, YouTube is blocking all videos that it comes across that include GEMA music.
Thus, I believe that the reason Sita Sings the Blues has been taken down is not, as Nina suggests, because of a direct takedown notice by GEMA (though, that's possible), but more likely because of YouTube needing to avoid liability from crazy German court rulings and GEMA's overinflated belief in what a "reasonable" royalty rate would be. Now, notice the key part here: the artist in this case wants the video to be online. Nina is pissed off that it's offline. She's paid quite a bit of money to the various music publishing entities to have the rights to show the movie worldwide, and the one blocking that is GEMA.
This is not an uncommon occurrence in Germany, unfortunately. Because of the way the laws work in Germany, those who have deals with GEMA effectively give up all of their own rights on such things. When I was in Germany, I spoke with multiple artists who were freaking out because they couldn't give away their own music, because GEMA didn't allow it. Aritst would show me their official webpage, without free music, and then their "secret, unofficial" web page with the music they wanted people to download. GEMA, which seems to be run by people entirely out of touch with how music works today, simply insists that no one can give away music for free... because then GEMA doesn't get to collect money. Furthermore, for those who try to get around GEMA and used alternative licenses, GEMA has been known to ignore such licenses, and insist that people still need to abide by GEMA's rules.
This is not a healthy situation. You basically have an out of touch bureaucracy that thinks it gets to set all the rules, even if they don't match the reality in the marketplace. Because of that, artists are suffering. And the fact that YouTube is blocking Sita..., despite it being fully licensed and perfectly legal in Germany, should really wake some people up to the fact that GEMA is not helping artists at all. It's stifling them massively.
There have been various stories in the press about people using Facebook to set up small parties, in which they accidentally make the invite public. Hilarity ensues as thousands RSVP and attend. One of the big stories where this happened involved a German girl and, apparently, German politicians don't like this at all. They're now debating a plan to outlaw such things:
“If, in advance of an announced Facebook party, there are concrete indications of a danger to the participants or third parties, then it is the duty of the local authorities to ban the party.”
But, even worse, one politician, who supports the ban, also claimed that kids be required to get "internet driving licenses" that "would explain the dangers of Facebook." That seems a bit extreme. Thankfully some politicians recognize this:
“The simple fact that excesses happen on the sidelines of such events does not justify a general ban,” Wolfgang Bosbach, the chairman of the domestic affairs committee in parliament, told the daily Kolner Stadt Anzeiger, according to Spiegel. “There are also riots on the sidelines of football games and demonstrations but that does not mean that we should completely ban them.”
Is it so hard to admit that sometimes kids get involved in silly pranks and they don't require massive legal changes?
A bunch of folks have been sending in the various reports concerning how German industry association ECO claims that ISPs in that country are currently handing over names of 300,000 users per month based on accusations (not proof) that their IP addresses are involved in unauthorized file sharing. In response, the various copyright holders, or their agents, are using the info for a massive shakedown of those users, sending them letters and demanding cash:
Rights holders have long pursued countless German file sharers with legal means, often going after tens of thousands of users at a time. Initially, this was done through ordinary lawsuits, but revisions to local copyright law now make it possible to simply get court approval for requests to ISPs to unveil a subscriber's identity. Content owners then send threatening letters to alleged infringers, asking them to pay anywhere between €300 to €1200 ($430 to $1720 USD) per unlawfully-shared file.
Basically, this is like ACS:Law or US Copyright Group on a much larger scale -- without ever involving any actual proof or conviction. Apparently, the rights holders in Germany are thrilled with this situation, since it's making them a lot of money. But, can it really last? This entire "business model" appears to be based on the idea of shaking down your biggest fans, and making them hate you for it. It's hard to see how that's a "growth" model, and the inevitable backlash is going to be fierce.
Last year, when I was in Berlin for Berlin Music Week and various associated events like All2getherNow and Popkomm, one thing that struck me was how industry-centric the German music world is -- and how the artists themselves are feeling stifled. It amazed me how many German musicians told me of how ridiculous it was that they weren't allowed to offer up their own music for free on their own websites, thanks to the rules that collective licensing agency GEMA setup. A few even showed me their official websites, with no music, and their "unofficial" websites, which had streams and downloads, which they couldn't admit to without running into trouble from GEMA.
This is what the recording industry is driving for elsewhere. A scenario where the only beneficiaries are the gatekeepers, and the consumers and the artists themselves are made to feel like interlopers. It may work for a short period of time, but I have trouble believing that such models are sustainable at all, in the long term. We're seeing more and more success stories from artists and forward-thinking labels who are happy to embrace what the technology allows and embrace what fans want. It seems like a bad idea for the entire German industry to be moving in the exact opposite direction.
Early this morning, news started breaking that the German police had seized the German Pirate Party's servers. The timing was interesting, in that it happened just two days before an election, which certainly seems questionable. The details, so far, suggest that the action wasn't against the party, but due to a French complaint, because Anonymous was using the Etherpad installation on the server, PiratenPad, to communicate and plan. If you're unfamiliar with Etherpad, it's a pretty popular online collaboration tool. I've used it for other things, including preparing notes for conferences. It's ridiculous overkill to seize an entire server because of the way some people were using Etherpad. It makes no sense, and shows (once again) how law enforcement seems to overreact to things they just don't understand.
Various governments have tried to claim that it's no big deal to get your location data from mobile phone providers -- with US law enforcement suggesting such information shouldn't even require a warrant at times. But it's interesting to see just how much that kind of data can reveal about someone. Shane Richmond points us to an absolutely fascinating visualization put together by the German newspaper Die Zeit. Apparently German politician Malte Spitz sued Deutsche Telekom to get access to his own location and phone data (the kind of thing that governments request all the time) and then handed it over to Zeit, who put together a stunning visualization of six months of Spitz's life. You can see where he is at all times, and Zeit cross referenced the information with other public information, including Twitter feeds, blog entries and other websites, to provide context and details as to Spitz's life. Somewhat eye-opening in how much information can be put together concerning your life with access to such phone data...
We've seen the various mass copyright infringement factories popping up all over the world, often using similar strategies: suing or threatening to sue thousands of individuals based solely on an IP address. The whole "business model" is based not on traditional copyright infringement statutory awards, but on convincing people to pay up beforehand to avoid being sued. The model feels quite similar to what's normally considered extortion ("pay up or we harm you"). Someone recently sent us a copy of what's alleged to be a contract being used by a German law firm, Schutt, Waetke Rechtsanwalte, which has been involved in such mass threats for many years. You can find references online going back to at least 2005 of this law firm sending out such pre-settlement letters to thousands of Germans. I contacted the firm to see if they would confirm or deny the legitimacy of the contract, and they would not respond. So, perhaps take the details with a grain of salt, even though the firm has been connected to these sorts of pre-settlement jobs for a while.
What's interesting about this particular contract is that, not only does it display the specific terms of the deal, but it's quite upfront about the fact that they hand this project off to debt collectors to put the pressure on people who don't pay up -- even though there's no official "debt." This is incredibly underhanded. The details of the deal is that the "client" (copyright holder) gives power of attorney to Schutt, Waetke, which then works with a company called Excubitor, to find the works online. Once Excubitor finds works, they send the data to Schutt, Watke, which then works to identify them via ISPs. Once identified they're sent a letter in which a "settlement" is demanded "as payment of compensation and reimbursement of disbursements and attorneys' fees." Here, the contract is explicit:
The Attorneys will use the assistance of DEBT COLLECTION AGENCIES for processing, administration and handling of procedures.
I don't know enough about German law, but I do wonder how this can possibly be legal. How can you simply declare unilaterally someone has to pay you something and then immediately have a debt collection agency take up your cause? I don't see how there's any debt until either the individual has agreed to pay up or a court has ordered it. Involving debt collectors so early on seems highly questionable. Later on, the contract explains in more detail that anyone who doesn't pay in full, will automatically be handed over to a debt collector:
Under normal circumstances and in so far as not otherwise agreed on a case by case basis, all cases which do not entail a settlement of payments in full by th eparty who received the warning will be handed over to DEBT COLLECTION AGENCIES immediately after the expiry of the allotted payment period for further extra-judicial recovery (debt collection) and then to LO in the name and on behalf of the Client for the asertion of claims for payment in enforcement and recovery proceedings.
Again, I'm trying to understand how this can possibly be legal, but if some German legal experts can chime in and let us know if it's really legal to unilaterally declare someone owes you money, based on no agreement or contract, and then hand it off to a debt collector, that would be great.
As for the economics of this all, the settlement demands are for €700. However, it doesn't seem like a very good deal for the copyright holder. First of all, Schutt, Waetke demands an upfront fee of €161 (plus taxes) per individual case, which the law firm will apparently just take out of any settlement money received, rather than invoicing the client directly. I'm assuming this is to get around the issue, discussed about a year ago, about how some of the German law firms were breaking the law by doing some of these deals on a purely commission-based setup. On top of that, 27% (plus taxes) of any money recovered goes to Excubitor, the firm that's hunting down the infringing files online. On top of that, it says that the debt collection agencies get 20% (plus taxes). Then another 10% of payments are put into a "kitty" for the attorneys to use at their discretion for various costs, and an additional €1 goes to Excubitor for each name they identify. Apparently at the end of the contract, if there are no outstanding expenses, this money can go back to the client. The contract also notes that if the fees are insufficient to handle identification of users or of going to court, the client can be on the hook for that as well.
So, even if we ignore the "plus taxes," out of the €700 potentially received, €161 goes to the lawyers, €189 goes to Excubitor and €140 goes to the debt collectors. If my understanding of the contract is correct, that's €490 of the €700 already gone (and if you add in the "plus taxes," it's even more than that). If you then include the additional "kitty" costs, that's another €71. That appears to leave just €139 (minus taxes, so drop that number even lower) for the copyright holder. And that's only if they get a settlement. If they don't they're still out at least €161 based on what the contract seems to suggest.
So if this is accurate, then the copyright holders stand to make very little and could end up losing a significant amount if most recipients don't settle. Seems like an odd deal to make.
We've pointed out numerous problems with anti-circumvention rules, which make it infringement to break pretty much any attempt at circumventing any type of content protection measures (even if not to infringe on the copyright). Sometimes courts realize how silly this is, such as a ruling from a few years ago in Europe, which noted that it's silly to consider such anti-circumvention rules reasonable if the technical protection measures are not considered "effective." In other words, if your protection scheme is laughable, it's silly to make it infringement to get around it. Apparently not all the courts in Europe have gotten this message yet. An anonymous reader points us to a case from a few months back in Germany, in which the court said that deep linking to content that had ridiculously weak measures to block deep-linking is still infringing (that link is a not so great Google translation of the original German -- though, the submitter gave a more complete explanation).
In this case, the content involved online maps, and the "protection measures" were that to visit a page with an actual map, you had to have a sessionID, that you would get as you visited the website. If you went to a deeper page without a sessionID, you would be redirected to the front page. Of course, it's not hard to actually provide the user with a sessionID, which one site did upon linking to these maps, meaning that visitors went straight to the deep-linked page, rather than being redirected to the home page. This is basically how the internet works. While the lower court properly rejected the copyright infringement claim as being ridiculous since the technical protection measures were so laughable, the higher court appeared to ignore all precedent on this matter, and said that as long as the site owner made any attempt whatsoever to block such deep linking, getting around those measures could represent infringement.
