Immigration Board Says You Can Be Deported For Copyright Infringement

from the moral-turpitude dept

While we still wait to see if Kim Dotcom can be taken against his will from another country into the US for "copyright infringement" claims, apparently the DOJ has also decided that it can work the other way. The Justice Department's Board of Immigration Appeals has said that people can be deported for copyright infringement. Apparently the law (the Immigration and Nationality Act) says that non-citizens can be deported if they commit crimes "involving moral turpitude" but had never weighed in on whether or not copyright infringement counted. But now they have:

On Friday, leaning heavily on precedent that previously declared criminal trademark infringement a CMT, the board said criminal copyright violations “must also be a crime involving moral turpitude.”

“Like the use of a spurious trademark ... respondent’s copyright infringement also involves significant societal harm,” BIA member Hugh Mullane wrote in Friday’s ruling. “Congress has made clear that copyright infringement enforcement is an important priority and that the risks and costs associated with intellectual property crime are significant.”

To be fair, this was a case of criminal copyright infringement, and not civil copyright infringement -- and the board noted that because criminal copyright infringement requires the showing of "willfulness," it suffices for the "moral turpitude" question. The person in question, Raul Zaragoza-Vaquero, had been arrested for selling 800 copied CDs to an RIAA investigator. He received 33 months in prison and had to pay $36,000... and was then told he had to leave the country.

The fact that it's only for criminal copyright infringement is certainly better than it being for any copyright infringement, but we've seen some bizarre attempts to turn what clearly should be civil copyright infringement cases into criminal ones (the Kim Dotcom case being but one example).

Filed Under: copyright, deportation, doj, infringement, moral turpitude

Ted Cruz Campaign Infringed On Copyright, But Will Probably Be Treated With Kid Gloves Just Because

from the class-war dept

Fresh off the news that Mike Huckabee finally settled the copyright infringement suit over his use of a Survivor song at his Kim Davis rally, we have now learned that the campaign for Ted Cruz has apparently also had an issue with properly licensing music for its campaign. There's a degree or two of separation here to be aware of, with the Cruz campaign having hired an ad agency to handle its digital advertising, and with that ad agency apparently flouting the licensing rules of the music it acquired with pretty stunning abandon. Still, while accusations of infringement by musicians against politicians so rarely are simple cases of infringement, instead fraught with politics, this one, as Eric Goldman notes, appears to be pretty straightfoward.

Senator Ted Cruz’s presidential campaign allegedly hit the copyright infringement bullseye. (All of the following facts are allegations from the complaint, but the defendants’ motion to dismiss doesn’t challenge any of them). The Cruz campaign’s ad agency, Madison McQueen, downloaded two songs from Audiosocket, which I would categorize as a stock music agency. The songs are “Lens” by Sarah Schachner and “Fear of Complacency” by Brad Couture. In each case, the ad agency agreed to Audiosocket’s standard Small Business License Agreement, which prohibited any use “for political purposes” and included a $25k liquidated damages clause. Audiosocket attached unique IDs to its downloads that fingers the ad agency as the downloader of these songs.

Despite the license restrictions, the campaign used both songs in promotional material. Lens was used in the “Victories” video (apparently offline), viewed 78,000 times on YouTube. After the campaign was told that its use was unauthorized, the campaign nevertheless broadcast the video 86 times on Fox Business News (if criminal copyright infringement were being prosecuted, which it won’t be because the DOJ would never go after a sitting Senator for such things, would this fact provide the necessary willfulness?). Fear of Complacency was used in the “Best to Come” video, viewed 12,000 times on YouTube.

It's typical for these types of complaints to be layered in nuance and interpretation, with a dash of one side or the other misunderstanding how licensing, copyright, and the rights that surround public performances work. This does not appear to be one of those cases, as the agreement Madison McQueen agreed to is fairly straightforward and specifically forbids the exact use for which the music was incorporated. As Goldman notes, whereas most campaigns would simply apologize and pay to have all of this go away, the Cruz campaign instead offered up a motion to dismiss. That motion didn't rebut any of the allegations. Instead, Cruz's lawyers argued that the musicians had only applied for copyright registrations and had yet to have that process completed, that it's unclear how many times it should be said that the campaign infringed on the copyrights for the songs, that Audiosocket can't stack its copyright complaint alongside its breach of contract complaint, and that all of this is a moot point because -- not making this up -- Cruz lost and gave up on his candidacy.

The court, predictably, denied every argument in the campaign's motion to dismiss. Which means it's settlement time.

Now that the plaintiffs survived the motion to dismiss, I’d expect the parties to revisit a settlement. The sticking point may be computing damages, especially the liquidated damages where the parties may disagree about how many times the license was breached. If Audiosocket accepts $25k per song, it should take $50k or less to buy them out–easily doable (especially if he still has $9M cash on hand). Audiosocket says it’s not claiming each of the 90k+ streams count as individual breaches (which would lead to over $2B of liquidated damages), but I’m not sure what their compromise position will be, so it’s hard to guess how far apart they really are.

To me, the most interesting unresolved question is how this lawsuit and failed motion to dismiss will change any of Sen. Cruz’s positions about copyright law. I’m not familiar with his IP platform, but he now has a first-hand brush with copyright infringement that ought to make him more empathetic towards other well-meaning and honest Americans who find themselves unwittingly staring down the barrel of a copyright infringement shotgun. Unfortunately, if past politicians’ response to being accused of IP infringement is any guide, the chances of Sen. Cruz becoming a champion of user rights are remote.

The more interesting question to my mind is exactly how all of this would play out if Senator Ted Cruz was instead local mailman Ted Cruz, without the legal team and political cache that he enjoys to back him up? We talk a great deal around here about citizens who are engulfed in questionable copyright actions, yet here is a Senator who will be able to pay some sum of money that he has at his ready to make all of this go away.

You would hope that this would lead to some kind of empathy in the halls of government, but naaaaaaah.

Filed Under: ads, copyright, infringement, ted cruz
Companies: audiosocket, madison mcqueen

Ford Dealership Swipes Game Image For Ad, Thinks It's Kosher Because It Came From A DMCA Compliant Site

from the mmmmm-no dept

A brief review of the many, many posts we've done here about the DMCA and its notice and takedown platform will reveal to even the casual reader that the whole thing is rife with complications, abuse, and inconsistencies. It can be a difficult realm to navigate, but there are times when an entity's claims of ignorance just don't ring true.

Which brings us to one independent Ford dealership that decided to simply yoink an image from a relatively new video game and use it to advertise automobiles.

A Boston-area Ford dealership is dealing with some internet blowback this afternoon after folks realized that the car-seller had swiped artwork from the indie game Firewatch to promote the “Ford Freedom” sales event.

The Consumerist link then provides a side by side comparison of the image from the game and the ad that the Ford dealership put out. As you will see, there wasn't even the barest attempt made to obscure the original image in any way.

So, yeah, they pretty much took an image from the game and slapped some copy on the front and pushed it out to potential car-buyers. That's pretty much as infringe-y as copyright infringement gets. And the use of the image is even somewhat ironic, given that Firewatch is a game that tasks you with traversing the wilderness entirely on foot and this is an ad for a car dealership.

The media began contacting Ford once folks on Twitter alerted the makers of the game to what the dealership had done. Ford washed its hands of the whole thing, stating that the dealership acted as an independent entity. The dealership, when contacted, pushed the calls off onto the dealership's advertising department. The advertising department just flat hung up on some inquirers, before emailing out its, um, "explanation."

The ad exec then wrote back to say clarify that “We always use DMCA compliant sites when getting images,” referring to the Digital Millennium Copyright Act. The ad guy claimed that the Firewatch image was obtained from a DMCA-compliant digital “wallpaper” site, but he seems to be confused about complying with the DMCA actually means.

Very confused, because obtaining an image from a site that complies with the DMCA doesn't suddenly make those images royalty-free, free to use in commerce, or even non-infringing themselves. All it means is that the site would comply with the notice and takedown procedure once alerted to an infringing work on its site. If no notice happens, the takedown might not happen either, which doesn't in any way render the image non-infringing.

The fact that we don't hear of this kind of thing happening more often is likely an indication that the actual rules within the DMCA and how copyrighted images can and can't be used in commercial ad copy is within the lexicon of most companies' advertising departments. This particular Ford dealership might want to give HR a call and get the ball rolling on some staff turnover.

Filed Under: car dealership, copyright, dmca, images, infringement

EU-Funded Study On The Cost Of Copyright Infringement Dismisses Key Real-World Factor As 'Outside Its Scope'

from the fantasy-economics dept

One of the less well-known outposts of the European Commission is the EUIPO Observatory. Here’s how it describes its objectives:

Provide evidence-based contributions and data to enable EU policymakers to shape effective IP enforcement policies and to support innovation and creativity

Provide data, tools and databases to support the fight against IP infringement

Provide knowledge and learning programmes for IP and enforcement authorities as well as for businesses and IP practitioners

Develop initiatives to help innovators, creators and businesses (especially SMEs) protect their IP rights

Design campaigns to raise awareness of the value of IP and the negative consequences of IP infringement

You may notice a certain one-sidedness there: this is all about infringement and enforcement, with nothing about whether the current copyright laws are part of the problem, or whether they are even fit for the digital age. Given that bias, the subject of the Observatory's latest report will come as no great surprise: "The economic cost of IPR infringement in the recorded music industry." Here are the main results:

In 2014, the recorded music industry lost approximately €170 million of sales revenue in the EU as a consequence of the consumption of recorded music from illegal sources. This total corresponds to 5.2% of the sector's revenues from physical and digital sales. These lost sales are estimated to result in direct employment losses of 829 jobs.

If the knock-on effects on other industries and on government revenue are added, when both direct and indirect effects are considered, infringement of IPR in this sector causes approximately €336 million of lost sales to the EU economy, which in turn leads to employment losses of 2,155 jobs and a loss of €63 million in government revenue.

I predict we'll be seeing these numbers a lot in the future, because the music industry will be quick to seize on them as "objective" figures that are above suspicion, unlike industry-sponsored analyses. But of course, things are not always what they seem, and it's worth reading the full report in order to find out what is really going on here. Nearly half of the 48-page is taken up with appendices outlining the forecasting model used to calculate those "lost sales." The mathematics there is pretty enough, but ultimately undermined by the following admission made earlier in the report:

It is important to note that the lost sales estimated in this report represent hypothetical additional revenue that the recorded music sector would have earned, had infringement not taken place. It is not an estimate of the value of the illegally acquired music recordings; nor is it an estimate of the substitution effect -- that is, the question of the extent to which the illegally consumed music would have been bought from legal sources had piracy not been possible, which is outside the scope of this study.

Thus it is taken as axiomatic that every lost sale would have converted to a real sale if a magic wand had been waved, and piracy had become impossible. No justification is offered for this huge assumption, and that's not surprising, since it doesn't exist: in the real world only a fraction of those "lost sales" would ever be converted to actual sales. So even if we accept the modelling in the appendices is correct, the figures that result must be reduced by some factor to take account of this. It's hard to say what that factor is, but it affects all the headline figures -- the 5.2%, the 2,155 jobs, and the €63 million in government revenue. Actually, things are even worse than they seem, because the study doesn't explore the possibility that online sharing boosts sales, rather than reduces them. It only mentions that crucial issue right at the end, where it says:

The question of whether piracy reduces sales of recorded music has been the subject of many studies, sometimes with contradictory results. Some authors have claimed that piracy actually increases sales by allowing consumers to sample music they would not otherwise have considered purchasing. However, a recent literature survey by Danaher et. al. (2016) shows that out of 25 studies reviewed, 22 found that piracy reduced the revenue of the legal industry. Thus, the results of the present study are in line with the prevailing consensus, albeit utilising a completely different methodology.

However, the methodology adopted by the report may be skewing the results by removing perhaps the most "advanced" digital market -- Sweden, the home of Spotify -- from the modelling because it is viewed as an outlier. And as for that 2016 study by Danaher et al., here are some of the 22 datasets showing that piracy "reduced the revenue of the legal industry":

1994-98 IFPI worldwide CD sales data and physical piracy rates

1998-2002 worldwide CD sales, IPSOS survey data for piracy downloads

1997-2002 country-level data on music sales and broadband usage.

1990-2004 consumer spending on cassette tapes, LPs, and CDs.

It seems unlikely that the analog world of cassette tapes and LPs tell us very much about what young people are doing online with digital files today. Of course, there's more recent data in the list, for example, this set:

2008-2011 iTunes music sales in France and other European countries

Which apparently showed the HADOPI anti-piracy law "caused iTunes music sales to increase by 22-25% [in France] relative to changes in the control group [countries]." Except that it didn't, as Techdirt noted at the time.

This quick run-through of the cited datasets is not meant to be a rigorous rebuttal, but it does indicate the superficial nature of the new report's analysis, which accepts uncritically the Danaher paper, instead of exploring properly the really important question of whether piracy drives or depresses sales. Coupled with a failure to consider substitution effects, that renders the EUIPO report's results of little value. What makes things worse is that the music industry will doubtless use them anyway to foist its copyright maximalist agenda on policymakers, who may mistakenly assume the Observatory's work can be relied upon.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, infringement, lost sales, studies

Game Critic Keeps YouTube Vids Ad-Free By Creating ContentID Feeding Frenzy

from the sharks-in-the-water dept

You should know by now that YouTube's ContentID system is a horrible mess. This system, which allows purported intellectual property owners to claim other people's uploads as containing their content, and then allowing those purported owners to either take the videos down or monetize them for themselves, is so rife with abuse, trolls, and mistakes that it's a wonder anyone at any point thought this was an idea that could work. Lost in all of this bowing towards intellectual property owners has bred some creative methods for getting around ContentID abuse, but it's still a problem. A problem particularly challenging in the video game reviews space on YouTube, where entirely too many game studios think that using ContentID to flag game reviews is a practice worth repeating.

But one game reviewer, Jim Sterling, decided to test out a way to keep his videos advertising-free. The method? Include all kinds of previously flagged content in his new videos from different IP owners and set them all into a ContentID war with one another.

Earlier this week, game critic Jim Sterling uploaded an episode of his Jimquisition series, where he skewers the recently released Wii U game Star Fox Zero. The entire episode is worth a watch based on Sterling's well-reasoned arguments. But the thing that really sets it apart is a revelation near the end of the video, where Sterling explains why he makes such ample use of footage that is completely unrelated to what he actually discusses throughout the video.

"You may have noticed this week's video had footage from Metal Gear Solid V, Grand Theft Auto V, and Beyond: Two Souls in it," Sterling said. "Now, there's a reason for that. The reason is Nintendo. Because I'm talking about a Nintendo game this week, I've used Nintendo game footage, and that means Nintendo will attempt to monetize this video even though the point of the Jimquisition is to be ad-free, thanks to your lovely help on Patreon."

But by including game footage that had been previously flagged through ContentID by other studios, particularly studios known to not try to monetize game reviews, he created a ContentID race between the different studios. The result?

"I can confirm it works," Jim Sterling said over email. "It's worked several times before. WMG tried to monetize the video for the Erasure music, but couldn't because Nintendo and Take-Two had set their ContentID in this particular case to Not Monetized."

It's like beating cancer by contracting herpes and having the herpes eat the cancer... or something like that. Look, I didn't go to medical school, alright? The loophole in the ContentID system is that it's not like all kinds of people can flag a video for monetization. It appears to be a first-to-flag-wins sort of scenario. So, just include some completely unrelated footage from a studio that is known to flag reviews as "Not Monetized" and the content remains ad-free.

It's clever, to be sure, but some of us long for the day when such workarounds aren't needed just to produce a simple video game review.

Filed Under: ads, competing claims, contentid, copyright, infringement, jim sterling, youtube
Companies: google, youtube

Nigerian Government Says Country Needs More Jail Time For Pirates And Control Over Content Of Creative Works

from the stupid-useful-pirates dept

The operating theory of incumbent industries is that piracy kills creativity. Try telling that to Nigeria.

From 2010:

The Economist has an article looking much more closely at the Nigerian movie industry, known as Nollywood, which produces an astounding 50 new movies every week. Now, some will immediately point out -- correctly -- that these are much lower budget than our traditional Hollywood picture, but apparently, many of the movies have pretty good plots and acting -- and they seem to be doing pretty well across all of Africa (not just Nigeria). In fact, the report notes that the infringement may be a big part of why Nigerian films are so successful:

"The merchants curse the pirates, but in a way they are a blessing. Pirate gangs were probably Nollywood's first exporters. They knew how to cross tricky borders and distribute goods across a disparate continent where vast tracts of land are inaccessible. Sometimes they filled empty bags with films when returning from an arms delivery. Often they used films to bribe bored guards at remote borders. The pirates created the pan-African market Mr Akudinobi now feeds."

2012:

Prior to the proliferation of Nollywood films, at least one commentator suggested that government takeover of the film industry would be the only means by which Nigeria could develop a film industry.

Notably, although many countries have sought to incentivize particular types of film production through direct government funding, subsidies, or film protection schemas involving film quotas, many of these industries have not been commercially viable in the absence of subsidies or other support schemes. In contrast, Nollywood has created significant volume of local video film content with virtually no government involvement or subsidies. The success of Nollywood may in many respects be attributable to a lack of government involvement and its decentralized nature, which has permitted Nollywood participants to be highly entrepreneurial, adaptive and innovative. Nollywood now may employ as many as 200,000 people directly with estimates of indirect employment as high as 1 million. The market-driven Nollywood approach is less costly than existing models of film production and distribution and may offer a new model for developing countries that wish to develop domestic film industries.

Years of history suggest rampant piracy is directly linked to the rise of the Nigerian film industry, a.k.a. "Nollywood." It's now 2016 and government officials and anti-piracy task force heads are still trying to deliver the same "piracy is killing the Nigerian film industry" arguments.

In Nigeria today, piracy hits all sectors of copyright industry, but the worst hit is the entertainment industry, hence one of the greatest challenges facing the Nigerian entertainment industry is piracy, which has robbed the industry of billions of naira (Nwogu 2014). Kanayo (2013) as cited in Alakam (2014) is agitated by the fact that pirates are feeding fat literarily and figuratively on creative works at the expense of the proposed beneficiaries of the work.

The government has wormed its way deep into intellectual property protections, despite having nearly nothing to do with the rise of Nollywood. This isn't a good thing. In the hands of the Nigerian government, the production of creative works is somehow tied to national security.

To show his support for the fight against piracy in Nigeria at the 28th annual international conference of the Society of Nigeria Theatre Artists (SONTA), held in collaboration with the National Institute for Cultural Orientation (NICO), with the theme ‘Repositioning Nollywood for the Promotion of Nigeria’s Cultural Diplomacy & National Security,’ designed to explore the linkages between Nollywood and cultural diplomacy as a tool for addressing the current security challenges, President Muhammadu Buhari vowed to clampdown on piracy in Nollywood industry by empowering relevant agencies, even as he described it as an albatross to both practitioners and government.

The language barrier makes a mess of the metaphors, but it's likely President Buhari is calling piracy an "albatross," rather than the "clampdown." Either way, he has -- along with the country's "Cultural Orientation" agency -- connected piracy to "security challenges." Worse, the government thinks it should be in the business of policing the creative works themselves.

Buhari regretted that excessive exposure to foreign films have led to moral decadence and the erosion of cultural values, especially among the youths, and expressed optimism that through the industry these lost cultural values would be restored.

So, not only does the government want to prop up the major players in the industry (who produce the smallest percentage of creative works), but it wants to make sure anything created lines up with its perception of itself. With this, Buhari can add censorship to the government's anti-piracy efforts.

As for the efforts themselves, they appear to be limited to the stuff that hasn't worked previously, but harder.

The minister of Information and Culture, Alhaji Lai Mohammed described piracy as a ”monstrous disincentive” to the movie industry and indeed the entire arts and entertainment industry, suggesting that a longer jail term with no option of fine for convicted offenders and the establishment of a dedicated national task force on piracy could help curb the scourge.

That should make people "respect" copyright more. Put 'em in jail for violating ethereal rights. Or for contributing to terrorism. Or for making the government look bad. It's all pretty much interchangeable as far as the government -- and the backers of the government's plan -- are concerned. Stiffer penalties have done little to curb piracy elsewhere in the world and are frequently a PR nightmare when imposed. Piracy spread Nollywood's influence throughout the world and allowed its films to be viewed by residents of other repressive nations whose governments have maintained local control of creative content.

The minority represented here is hoping to control not only the distribution, but the content, of future creative works. Piracy may be the talking point, but government expansion and increased protectionism are the ultimate goals.

Filed Under: copyright, infringement, nigeria, nollywood

Time Warner, Defenders Of Copyright, Forced To Pay Up For Copyright Infringement

from the live-by-the-copyright,-die-by-the-copyright dept

You can almost set your watch that any company or group that comes out vehemently in favor of restrictive copyright protection under the guise of protecting artists will be found to be in violation of copyrights and acting in a manner demonstrating clearly that zero care is given to the well-being of artists. The most recent example of this is Time Warner. Recall in the past that the massive media company has regularly sued music startup groups, pimped the six-strikes agreement with Hollywood, worked with Rightscorp to milk money out of accused infringers, and back a ways waged a war unpopular with its signed musical artists against YouTube. This, all done by Time Warner in the name of advocating for artists and creators, was done even as we learned just to what lengths Warner Music has gone to make sure it paid artists as little as possible.

But paying artists "little" is better than paying artists "none," I suppose, which is exactly what Time Warner has been found to have done in playing artists' music entirely without permission at the company's Spanish amusement park.

Time Warner, the owner of Warner Bros, which is known for being prolific in its battle against copyright infringement, is now in trouble in Spain for using the music of local artists in its theme park for six years without ever paying a licence fee. The Supreme Court of Spain has ordered the Parque Warner Madrid resort theme park (co-owned by Time Warner and Parques Reunidos) to pay €321,450 ($358,651, £250,539) in damages for playing the music of Spanish artists on loudspeakers to park visitors between 2002 to 2008. As the tunes were played in public areas across the park, including attractions, restaurants, retail outlets and transportation, the court ruled that the park had not gained permission from the artists and producers affected.

The thing about claiming to take a moral stand is that such a stand requires consistency. Framing its advocacy of copyright as benevolence to artists makes the blatant use without permission of musicians in its theme park appear more dastardly than, say, a fan of a band that uploads a music video to YouTube. That this went on for six years creates a legal setting in which it strains credulity to believe that the company was completely oblivious to these goings on.

But let's say you wanted to give Time Warner the benefit of the doubt here. Maybe this was all done by a manager of the park unbeknownst to company higher-ups. Were that to be the case, and given what staunch supporters of artists being compensated that the company claims to be, you'd have to imagine that Time Warner would have graciously recognized its error and made sure artists were compensated for it. Hahaha, no.

In May 2010, Madrid's Commercial Court Number 7 ruled in favour of the copyright holders, and on appeal the Provincial Court of Madrid also found in favour of AGEDI and AIE. Parque Warner continued to argue against the decision because it said that it should not have to pay a yearly rate for the music if the park was only open from March to November, eventually appealing to the Supreme Court.

Unfortunately for Parque Warner, the Supreme Court sided with the artists and rejected Parque Warner's claim that the compensation amount had been miscalculated, demanding that the park fairly compensate the artists and producers for using the music without authorisation in an "intense and continuous" manner.

Even after admitting to the infringement, Time Warner wanted to haggle over just how much to pay for it based on the hours it deigned to keep at its amusement park. Not exactly the warm hug to musical artists that one would expect from these paladins of musicians' rights.

But, as I've said before, live by the copyright, die by the copyright.

Filed Under: copyright, infringement, spain
Companies: time warner

It's 2016 And The EU Is Just Now Getting Ready To Decide If Hyperlinking Is Legal

from the because-wtf dept

Earlier this week, we wrote about a legislative attempt in France to outlaw hyperlinking without a license (really), but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU? As is described in great detail over at the Disruptive Competition Project blog, just this week the Court of Justice of the EU heard a case concerning whether or not linking is legal. We wrote about this case last year, but the court has finally heard the case, with an Advocate General recommendation in early April, and a final ruling in the summer. There was a similar earlier case, the Svensson case, which the EU Court of Justice got right, but there's some concern about this new case.

In Svensson, the CJEU concluded that a link is a communication within the meaning of “communication to the public.” But it let the defendant off the hook on the theory that the communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Simply put, the court reasoned that once the copyright holder makes the work available on the web without technical restrictions (i.e., no paywall), then posting a link to the material doesn’t communicate it to any audience that wasn’t already intended by the copyright holder. Thus, it’s fine to link to something publicly posted online, provided it was posted with the copyright holder’s authorization. No further licensing is required. So, common sense prevailed and crisis averted, right? Not so fast.

Svensson left a crucial question unanswered, and perhaps that question is already clear: What about a link to something that the copyright holder didn’t authorize? For example, what if you post a link on social media to a Buzzfeed article where one of the images that appears in the story wasn’t properly licensed from a photographer, or you link to a leaked document? And where does that leave search engines and other information location tools, which can’t very well determine whether every image, video clip, or article on the websites to which they link has been authorized by the relevant copyright holders before providing you a search result?

This is the question that is before the CJEU in tomorrow’s GS Media case. The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them.

But, of course, if the ruling says that such links are infringing, it could create a huge mess. Any link to unauthorized work could be deemed, by itself, to be infringing. And, the rule would apply to any link accessible in Europe, meaning it would impact people around the globe.

If the CJEU rules that every web user, in Europe and beyond, is expected to verify the copyright status of every item on a page before linking to that page, it could effectively destroy the web as we know it today. Would you have to repeatedly check back on the sites you link to, in case the content on the site you linked to has changed? Would you need to confirm that their licenses are all paid in full? Would you also have to verify the copyright status of links on the pages that you’re linking to? If any of this were the case, social media, search, blogs, comment sections, online journalism could be faced with unmanageable legal liability.

Hopefully, the EU Court of Justice recognizes the ridiculousness that would result from such a ruling, but until this summer, we just won't know.

Filed Under: cjeu, copyright, eu, european court of justice, hyperlinks, infringement, links, svensson
Companies: geen stijl, playboy, sanoma

Portuguese 'Anti-Piracy' Site Blocking Used Against US Video Game Developer

from the because-reasons dept

One of the reasons why many people are opposed to various "site blocking" laws, is that inevitably such things get abused. And while the US successfully stopped SOPA's site blocking plan, plenty of other countries went ahead and implemented something similar -- including, apparently, Portugal. Yet, earlier today, reports came out that the Portuguese site-blocking system was now blocking the website of an American video game development shop called Carbon Games. Now, it does appear that someone just screwed up here. It's not happening on all Portuguese connections, but it did happen on multiple ISPs according to the initial report on Reddit. Also, it seems they only blocked the version of the website where the URL starts with "www." Get rid of that and people could access the website without a problem -- again adding to the likelihood of a general screwup. Oh yeah, also, it looks like if you use any other DNS provider, such as Google's DNS, you'd avoid the blocks (another reason why blocking at the DNS level is kind of stupid).

Either way, even if it was just a "mistake," the fact that it happened at all should be a huge concern. When entire websites can be blocked without any real review or due process, it opens the door to much more serious and widespread censorship. It's again troubling how quickly many in the copyright realm ignore the nature of this slippery slope.

Filed Under: copyright, dns blocking, infringement, portugal, site blocking, sopa
Companies: carbon games

TPP's Forgotten Danger: Stronger Trade Secrets Protection, With Criminal Penalties For Infringement

from the quid-without-a-quo dept

Since the release of the TPP text back in November, commentators have naturally tended to concentrate on the bigger, more obvious problems -- things like the corporate sovereignty chapter, the extension of Big Pharma's monopolies to scientific data, and copyright provisions -- that Techdirt has been exploring for years. But there's one area that has received relatively little attention, perhaps because for most people it's an obscure topic that seems rather unimportant. It concerns the issue of trade secrets, which Techdirt wrote about in the context of TPP in October 2014. There, we concentrated on the risk that it would chill investigative reporting and corporate whistleblowing, but a new column in The Globe and Mail by Dan Breznitz, professor of Innovation Studies at the Munk School of Global Affairs at the University of Toronto, looks at the economic impact of TPP's trade secrets measures. First, he notes that copyright and patents are based on a social bargain:

The side that wishes to be granted a patent needs to disclose new and useful information to society at large, and in return we (the people) give it an exclusive right for a limited time, preventing others from using it without permission. In other words, we grant it a temporary monopoly.

But trade secrets are quite different:

[W]e (the people) give rights to prevent others from using any information without any disclosure and without any time limitation or otherwise -- as long as it remains undisclosed (in other words, secret). In so doing, we give a quid that covers potentially wide-ranging types of information, without receiving any quo in return.

Since society gets almost nothing out of this other bargain, the remedy available for the disclosure of secret business information is limited:

Currently, the remedy is available only against those who breached the contract or trust, but not against others who obtained the information. Once the information has been disclosed publicly, the person who disclosed it might be held liable, but everyone else is free to use it.

As Breznitz points out, TPP changes all that, offering a much wider scope for protection, and much more serious penalties for breaches of trade secrets:

Article 18.78 [of the TPP text] adopts a potentially very broad concept of a trade secret, a very wide range of activities that might constitute a breach and a very broad potential class of persons who might be liable. Worse, it also calls for criminalization. The potential risk for would-be entrepreneurs to start a business in anything that even remotely relates to their past job are now enormous.

In other words, like much everything else in TPP, the proposed changes work to the advantage of big, established companies -- and against the interests of start-ups and entrepreneurs:

The resulting chill [caused by TPP's trade secrets rules] in entrepreneurship alone would cost the U.S. and Canadian economies significantly higher orders of magnitude in terms of lost growth, jobs and welfare than any positive benefits that the TPP might bring. Even more disturbing, Articles 18.74 and 18.75 profoundly expand the enforcement measures, including significant provisional ex parte proceedings [with only one side present], and narrow the discretion of the courts. Those provisions apply to all intellectual property rights, including trade secrets. These extra-potent tools would be used not only where they are appropriate, but also where they aren’t -- such as to stifle competition and innovation.

That's a bold claim, but, if true, suggests that TPP could be an extremely bad deal for the US. At the very least, it deserves some serious research to investigate the issue. However, given the absurdly-truncated time span available for studying the TPP text, that research is unlikely to be conducted, which means that the US could end up entering blindly into an agreement whose net economic and social effects will be decidedly negative.

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Filed Under: infringement, tpp, trade secrets