Whenever we talk about things like retroactive copyright term extension, we frequently see comments from even the regular copyright system supporters among the readership here insisting that they, too, feel copyright is too long and extending it further makes little sense. In fact, it often seems difficult to find anyone willing to publicly support copyright term extension... and yet, it seems to keep happening. We were just discussing how Denmark had suddenly changed its position on copyright extension on the issue of neighboring rights, which are a particularly pernicious interpretation of copyright law.
Either way, it looks like Denmark's sudden caving (after quite a bit of lobbying from the entertainment industry) is quickly snowballing into the EU Commission moving forward with copyright term extension across Europe. Multiple economic studies have shown that such extensions do not benefit society. In fact, they rarely benefit the content creators who are paraded out as the reason for such extensions. Instead, the majority of the money goes to a few gatekeeper companies who hold a bunch of old copyrights. It's pretty sad that the EU would so blatantly take content out of the public domain and give it to a few legacy companies.
There is no ethically honest argument in favor of retroactive copyright extension. The point of copyright is to present incentives for the creation of new works. It's a form of an agreement with the public: the public grants the content creator a limited monopoly for a certain period of years, and in exchange, the public gets the work which will then fall into the public domain once that monopoly expires. Extending copyright retroactively makes no sense unless you are distorting the purpose of copyright law. After all, the "deal" was clearly enough at the time of creation to incent the creator to create. Changing the terms of the deal retroactively later is a way to unilaterally change the deal with the opposing party: the public.
Now, the argument most commonly used in favor of retroactive copyright extension is an argument of welfare: that poor starving musicians need this money to survive. Of course, there are two key problems with this. The first is that copyright is not a welfare program. If we want to create a welfare program for musicians, then let the government be upfront and create a specifically funded welfare program for old musicians. But, it would need to defend why it's doing that for old musicians as opposed to old "everyone else."
The bigger problem, however, is that copyright extension almost never actually helps those poor starving old musicians. Anyone who's actually looked into this has seen that the vast majority of that cash goes directly to the major record labels. And if you think they're going to start writing checks to those poor old musicians, you haven't paid much attention to how those record labels handle their accounting.
Either way, this fight comes up every time copyrights are about to expire, and there's been a big push across Europe to extend certain copyrights that are starting to expire. The EU Parliament apparently pushed for extending sound recording rights from 50 years to 70 years, but thanks to significant protests and complaints against this, the EU Commission hadn't moved forward on it. One of the countries holding out was Denmark. However, Slashdot points us to the news that Denmark has had a sudden and unexplained change of heart... and is now happy to support retroactive copyright extension. Not surprisingly, the reasons being given by the Danish culture minister are the classic welfare ones.
"I attach great importance to the musicians have strong rights. In government, we have carefully considered the matter and finds that a term of 70 years would be a sensible approach. Musicians should not experience losing rights to their recordings, while they are still active. We will therefore work towards an extension of protection that will strengthen the musicians and record companies' rights. "
"Carefully considered the matter"? Yeah, right. Notice that no actual justification is given for this other than the idea that musicians should never lose their rights. So, does that mean Denmark now supports permanent copyright? Why "70 years"? Where's the evidence that's the proper number? Don't expect answers, you won't find them. Economists who have studied the matter come up with optimal lengths much shorter than even the current 50 years that was perfectly acceptable for those musicians originally.
Of course, with Denmark switching sides, there are concerns that the current folks in power will quickly push through the proposal across Europe, and without any reasoned debate or considerations of the economic and cultural costs of retroactive extension, it will have happened yet again.
One of the complaints that many have made concerning various file sharing lawsuits is how rightsholders too often rely on highly questionable or weak evidence. Over in Denmark, where efforts against file sharing by record labels and the IFPI have been aggressive, the Supreme Court has now deemed weak evidence insufficient for such cases. The case involved a guy who was accused of sharing 13,000 tracks. The court eventually decided he should pay $1,900 -- significantly less than what the record labels requested. The main reason for the lower dollar amount was the limited quality of the evidence by the "anti-piracy" group Antipiratgruppen:
APG used techniques which scraped the index of the files said to be being made available by the defendant and then linked them back to his IP address, a method which has been acceptable in the past. But while the Court accepted that some sharing had occurred due to the defendant’s confession, it wasn’t satisfied that the index was an accurate representation of the files physically present on the defendant’s computer.
Nice to see some courts recognizing that just having an IP address is not enough evidence on its own.
If you've been to a gym lately, you've probably seen how "spinning" classes have become quite popular these days. When I first heard of them, I couldn't figure out why they called them "spinning," rather than just "stationary bike" classes, but now I know: apparently "spinning" is a trademarked term, held by a company called Mad Dogg Athletics, and the company is gaining a reputation for trying to enforce that trademark around the globe. If you look at the USPTO, the company appears to have a ton of different trademarks on "spinning," covering not just exercise classes, but also sports drinks, lotions and creams, nutritional supplements and computer software. It looks like the original spinning trademark was filed for back in 1992 -- so it's entirely possible that this company really did come up with the term and popularize it.
However, it seems that many people now feel that the term really has become generic, and I'd have to agree. I've known about "spinning classes" for ages, but never had any idea it was associated with any particular company -- until now. And that's only because an anonymous reader sent in this story of how Mad Dogg has had lawyers threatening gyms in Denmark (Google translation of the original Danish). The Danish gyms seem pretty upset by this, arguing that "spinning" has become a common generic word, and no one associates it with Mad Dogg at all. It also appears that nearly all of the gyms contacted have simply decided to call their stationary bike classes something else, rather than give in and pay a licensing fee just to call a spinning class a spinning class.
Now that most of the ACTA negotiations are complete, you would think that governments would recognize the problems of trying to negotiate big deals that impact internet users in secret without involving the users themselves. No such luck. Apparently, over in Denmark, the government, the entertainment industry and ISPs have been secretly negotiating a 3-strikes plan for Danes, with an agreed upon press blackout, where none of the participants will speak to the press. They're pretty upfront as to why not:
After experiencing difficulty, Comon was told by Committee members that they had "promised to keep working secretly in order not to create too much fuss" and "could never agree on some recommendations if there was too much public debate about its work."
Yes, you see, we couldn't actually come to agreement if the people this will actually impact the most are allowed to chime in and point out why they don't like their rights being taken away. It's probably worth reminding folks at this point that Denmark was one of the players in the ACTA negotiations who was vehemently against transparency. Apparently, that's carried over into domestic discussions as well.
Oh boy! Where to start on this one. Normally, when you have a commercial on TV, you would like it to go viral so more people see it. We've certainly seen some companies use this to their advantage. But what if the actors in those commercials don't want it to go viral? What if they happen to be (or hope to be) upstanding professionals, and the commercial involves them participating in frat-boyish fun, such as playing beer pong, which they hoped would only be seen in a tiny country on the other side of the globe? Well, that seems to be exactly what happened to a pair of unfortunate (but quite talented) beer pong players, who have now sued the producers of "The World's Funniest Commercials," TBS and Carlsberg beer.
You see, Scott Tipton and Christopher Kolb are really good at beer pong. So good, that Carlsberg hired them (and a few others) to perform in this commercial:
However, one of the guys was in law school at the time, and didn't want his future career prospects diminished by his beer pong prowess. Why? Because, as the complaint explains, "the plaintiffs' difficult trick-shots indicate substantial experience playing Beer-Pong, i.e., substantial experience drinking substantial quantities of beer -- a less than desirable image...." (emphasis in the original). He also did not want his (apparently beer pong ignorant) parents and grandparents to know of his amazing skills at the "most remarkable trick-shot, ricocheting the ping-pong ball four times off of uneven, angled surfaces, and into the beer cup with back-spin, after which both Tipton and Kolb celebrate exuberantly" (emphasis in the original). Because of this, he made sure that the agreement had geographic restrictions, such that it only showed in Denmark. The other guy was an actor, who claims he agreed to a "below standard" rate, knowing that the commercial was only for the Danish market.
But, of course, the video got some attention, and the producers of The World's Funniest Commercials decided to include it in their show (with Carlsberg's blessing) which aired in the US on TBS. Even worse, the producers used a clip from the commercial in their own commercial for the show. The guys then try to make the case that the TBS promo was the key reason why people watched the show, and their clip in the promo was the key part, and thus, they deserve 50% of all of TBS's advertising from the show. Good luck with that.
The lawsuit itself involves California's popular publicity rights law (that we've been talking about a lot lately) as well as a variety of other claims. However, in an age when we're already pointing out that geographic restrictions are obsolete, does it seem even remotely reasonable that the commercial would never be seen outside of Denmark?
And yes, the legal complaint makes sure to explain just what beer pong is, in case the court is unfamiliar with the... um... sport:
Apparently the ruling hinged on a questionable bit of Danish copyright law that makes an ISP liable for the content sent by users, because "the ISP makes temporary copies of small fragments of the copyrighted work as IP packets pass their routers." Of course, if you read the law that way, that puts tremendous liability on any ISP. It seems wholly unreasonable to interpret the law that way -- and, in fact, some point out that this appears to go against EU law. The article also notes that the questionable clause in Danish copyright law that puts this burden on ISPs was written by a guy who (you guessed it) now works for the recording industry. Funny how that works.
We've talked about smart filmmakers learning to embrace file sharing to enlarge their audience and to improve their business model, but it appears that some filmmakers are getting the wrong kind of message. TorrentFreak has the story of how some filmmakers in Denmark, who had a total flop on their hands, pretended that the local Piratgruppen organization literally broke into the studio, stole (used correctly, for once) the film, and were threatening to put it online. Of course, the whole thing was completely made up in a weak attempt to get publicity. Little actually came of it until it was exposed as totally made up -- but it's a pretty serious issue. The studio was blatantly lying and accusing people of out-and-out criminal behavior, knowing that it was false. And this is in Denmark, where the local anti-piracy group has been quite aggressive in going after anyone for copyright infringement. Shameful.
One of the really amazing things in witnessing the reactions among various politicians to the ACTA negotiations is realizing how out of the loop they are as well. They're often just as angry that things are being done in the name of their country that they have no visibility into. Of course, this adds to the impression that this whole process is not about figuring out what's best for the people of each country, but an end run around the democratic lawmaking process, pushed mainly by big industries (led by the entertainment and pharmaceutical industries).
So, with last week's leak showing that Denmark was one of the countries that was most against transparency for ACTA negotiations, Danish free culture activists like Henrik Moltke have been speaking up, going on TV and questioning why Denmark is being the transparency roadblock. And it appears to be working.
"It is news to me that Denmark is so close to the negotiations. And it's pretty shocking that Denmark should have taken the position that you actually want to give priority to secrecy," said Morten Messerschmidt, a member of the European Parliament
Messerschmidt has gone on to say that he's going to demand that Denmark support a more transparent ACTA process, and it appears that some other Danish politicians are agreeing as well.
One of the biggest issues in discussing ACTA is the rampant secrecy behind the negotiations. We've heard calls from many different politicians to get rid of the secrecy and be more transparent, but we hadn't heard who was against the transparency (other than some industry lobbyists who, in theory, shouldn't have much say in this). The only statement came from the USTR, who claimed that countries would leave the negotiating table if the text were made public -- but wouldn't say who or why.
Well, now we know who. A leaked document highlights which countries are against transparency and the list includes Belgium, Portugal, Germany, Denmark, South Korea and Singapore. Many other countries -- headed by the UK -- have been in support of opening up the process and being more transarent. Among those in favor of transparency are the Netherlands, Sweden, Finland, Ireland, Hungary, Poland, Estonia, Austria, Canada, Australia and New Zealand. And then there's the US, who simply claims it's being transparent, but apparently refuses to take a stand on transparency in the negotiations (why should it -- when those negotiations themselves are secret). Apparently the real stickler for secrecy is Denmark, which perhaps isn't that surprising. While there are many Danish people who are fighting the copyfight, Denmark's "anti-piracy" organization has been among the most aggressive in suing pretty much anyone, and demanding all sorts of sites be shut down or blocked. Unfortunately, it sounds like they're now the main blockers in keeping the ACTA process secret.
But, of course, for all that attempted secrecy, the documents keep leaking, and they're definitely problematic. It seems like it's time for the supporters of transparency to stand up to Denmark and the others and tell them that if they don't want the process to be transparent, then they should walk away from the agreement. And, in the meantime, it's time for the USTR to stop pretending it's being transparent and to actually support real transparency in these negotiations.
