Article 13 Was Purposefully Designed To Be Awful For The Internet; EU Moves Forward With It Anyway

from the just-admit-it dept

As was widely expected, even if it's unfortunately, on Friday evening the EU Council voted to move forward with the latest draft of the EU Copyright Directive, including the truly awful "compromise" version of Article 13 hacked out by the Germans and the French. This happened despite the fact that there's basically no one left who supports this version of Article 13. The public is widely against it. The internet companies are against it. And, perhaps surprisingly, even the legacy copyright companies -- who pushed so hard for this -- are still angry about the result, which they insist is too lenient on the internet.

I've been left scratching my head over why the copyright holders are still pushing for more here. To be clear, the version that the EU Council approved last week would fundamentally change the internet in a massive way. It would, effectively, make it nearly impossible for any website to ever host any user-generated content. In nearly all cases it would require expensive and problematic upload filters. In the few "exceptions" to that, it would still require a massive amount of concessions from internet platforms to avoid liability.

However, the reality here is simple: Article 13 (and, to a lesser extent, Article 11 with its snippet tax) is purposely designed to be awful. The supporters of these efforts keep insisting that it's not going to harm the internet at all, and that it's just about "closing the value gap" or "making the playing field even" or other nonsense along those lines. They insist that it won't create any harm to user-generated content platforms, or to legitimate, non-infringing works. Given that we've already seen how these kinds of systems work in practice, everyone knows that's a laughably false proposition.

However, a bit of truth came out a few weeks back, when Axel Voss, the MEP pushing this Directive forward, put out a "Q and A" page attempting to defend both Articles 11 and 13. We walked through that page sentence by sentence to debunk it, but I kept thinking about why the EU and Axel Voss would push such utter nonsense. Normally, politicians at least try to put forth a flimsy attempt at pretending they're based in reality. But not here.

However, in rereading the "answers" to the questions in the document, the whole thing makes sense under one, and only one, condition: if Articles 11 and 13 are purposefully designed to be internet-destroyingly awful, then the belief is that it will force internet platforms to negotiate some sort of "global licensing" deal. Professor AnneMarie Bridy made this point last month, in noting the following:

But, as you read through Articles 11 and 13 and Voss's "answers" and the comments from the legacy copyright players, it all "makes sense" if you believe the entire point of these bills is not to set up a system whereby the internet companies are installing actual filters and blocking infringing works. Rather, they only make sense if the goal is to make things so goddamn awful for the internet companies that they pay the legacy copyright holders not to sue them. Indeed, the Q&A comes the closest to saying exactly this:

Large online platforms and news aggregators will have more reason than currently is the case to strike fair remuneration (licensing) agreements with artists and media houses who would have identified themselves beforehand as the owners of a piece of work. A platform or news aggregator will be further incentivised to strike such agreements because, in the absence of them, it would be directly liable if it hosts a piece of work with an unpaid licence fee. The current legislation offers more wiggle room for platforms to absolve themselves from this liability.

As we pointed out last time, this is utter nonsense, as nothing in the draft actually sets this up. But it does make sense if the entire point of the bill is to be so onerous as to be impossible -- creating a shotgun situation in which the platforms feel the need to pay off the copyright holders not to sue them (jokingly referred to here as "licensing agreements.") This is why the copyright holders are so upset about any form of safe harbor or any way in which platforms might avoid massive, crippling liability. Because if there's a path to abide by the law, then there will be less incentive to pay off Hollywood not to sue. It goes on:

The draft directive will not be the source of censorship. By increasing legal liability, the draft directive will increase pressure on internet platforms/news aggregators to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship.

Again, this makes no sense, as the entire point of the draft directive is increased censorship... unless every internet platform pays off Hollywood to leave them alone.

And, again, as Prof. Bridy rightly points out above, all of this only makes sense in the context where there is a fairly small number of rightsholders and an even smaller number of internet platforms, who can gather together and hash out "don't sue us" deals (i.e., "licenses" < -- sarcastic quotes implied). And, again, that only works if the actual provisions of Articles 11 and 13 are so laughably stupid, so ridiculously onerous, so painfully destructive, that the internet platforms are left with no choice (well, that, or shut down, which many would likely have to do).

And thus, it would be better for all involved if Hollywood, the big news publishers, and the record labels just admit this upfront. The entire point of Articles 11 and 13 are that they are awful and destructive to the internet. It is a form of regulatory extortion. "Pay us, or we destroy your internet." At least admitting that would be intellectually honest.

Still, given that, wouldn't it be better for Axel Voss and others to just do what clearly is intended here and write a law that is a lot more honest and just says "Google and Facebook need to pay &euro:X amount to satisfy these flopping legacy industries that failed to innovate." At least that would be much more direct and honest. But, alas, it appears that's wishful thinking. Instead, the EU Parliament will now gather with the EU Council and EU Commission for a new round of "trilogue" negotiations, where everyone will pretend that there's some good reason for this set of regulations, when even the key rationale in support of the effort is that following the law will be so painful and so destructive that the internet platforms will pay off copyright holders to avoid having to comply.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu council, licensing
Companies: facebook, google

ChooseCo Inks Lucrative Deal With Amazon, Possibly Thanks To Netflix's 'Bandersnatch'

from the biting-the-hand dept

When we discussed Chooseco, the company behind the Choose Your Own Adventure series of books from decades past, and its lawsuit against Netflix for having content that allowed watchers to choose paths within the narrative, we focused mostly on how silly the lawsuit was purely from a merit standpoint. The trademark suit rested mostly on a throwaway reference or homage made by a character in the Netflix work, and the claim that Chooseco has licensed its name in the past but lost the opportunity to do so for this work. None of that makes the public at all likely to be confused into thinking that Bandersnatch was somehow a Chooseco product, nor does such a reference somehow cause the work to be trademark infringement.

But there's another angle in all of this. The homage made in Bandersnatch was truly an homage, meaning that it called to mind for many of a certain age the fondness we had for these Choose Your Own Adventure books. Despite the films dark themes, the reference itself is a positive one. And, frankly, it probably caused many to think about the series of books for the first time in a long time, making it something of an advertisement for Chooseco's products.

And that buzz surrounding Bandersnatch certainly coincidentally occurred alongside the more recent announcement that Chooseco has agreed to partner with Amazon to produce Choose Your Own Adventures for the Alexa.

You may remember ChooseCo from its lawsuit with Netflix over the Black Mirror episode. The company claims that Netflix never acquired the proper license to use the “Choose Your Own Adventure” trademark.

But clearly, ChooseCo still aims to benefit from the attention, and from Netflix’s ability to make this storytelling gimmick popular with a younger generation of tech-savvy consumers.

In collaboration with Amazon’s  Audible division, the two companies are together releasing an Alexa skill (properly licensed) that will bring ChooseCo’s Choose Your Own Adventure stories to life on Alexa-powered devices, like Echo smart speakers, which are controlled through voice commands.

Should Chooseco actually have thanked Netflix for its nod in Bandersnatch rather than suing over it? I'm not sure, but it doesn't seem unlikely that the huge amount of buzz surrounding the film contributed to, if not created, the Amazon opportunity for Chooseco.

And that's often the point when we talk about intellectual property lawsuits. There are often other ways to look at what is being sued over, with the relinquishing of a bit of control actually resulting in free promotion, free advertising, and the kind of word of mouth buzz that simply can't be bought as part of a media campaign. It would be immensely interesting to be on the inside at Chooseco, in order to get a sense of the sequence of events in which all of this occurred.

Regardless, it seems Chooseco at least had the option of choosing to be less litigious.

Filed Under: bandersnatch, choose your own adventure, licensing, publicity, trademark
Companies: amazon, chooseco, netflix

EU Copyright Directive Has Been Made Even More Stupid, And Some Are Still Trying To Make It Even Worse

from the yet-it-moves-forward dept

So yesterday, we noted that Article 13 was back on thanks to an apparent "compromise" between the French and the Germans as to whether or not small internet platforms would be exempted from Article 13. France was pushing for no exemption and that the same rules apply to everyone, while Germany demanded some protections for smaller companies (those making less than €20 million per year). We knew, according to the reports coming out of Brussels, that France had won, but now the details have come out and it's worse than we thought.

The new plan does have an "exception" for small companies, but it is so ridiculous as to be non-existent. To qualify, a company has to be:

• Less than 3 years old
• Have less than €10 million in revenue
• Have less than 5 million uniques per month

As Julia Reda points out, this basically means almost no platform will qualify for the exemption (and it gets worse from there, but hang on):

Upload filters required

• Discussion boards on commercial sites, such as the Ars Technica or Heise.de forums (older than 3 years)
• Patreon, a platform with the sole purpose of helping authors get paid (fails to meet any of the three criteria)
• Niche social networks like GetReeled, a platform for anglers (well below 5 million users, but older than 3 years)
• Small European competitors to larger US brands like Wykop, a Polish news sharing platform similar to Reddit (well below €10 million turnover, but may reach 5 million visitors and is older than 3 years)

And, yes, it would also likely apply to our comments as well. We don't make €10 million per year, nor do we have 5 million monthly uniques... but we are way older than 3 years old. Even for the tiny number of companies who do qualify for the exception, the text of the directive still demands that they make "best efforts" to license the works. In other words, the whole thing sets up a shotgun negotiation where any platform will be required to license all content, which means that license holders can set any rate they want, and if you don't license, they can accuse you of violating the law. This is madness:

On top of that, even the smallest and newest platforms, which do meet all three criteria, must still demonstrate they have undertaken “best efforts” to obtain licenses from rightholders such as record labels, book publishers and stock photo databases for anything their users might possibly post or upload – an impossible task. In practice, all sites and apps where users may share content will likely be forced to accept any license a rightholder offers them, no matter how bad the terms, and no matter whether they actually want that rightholder’s copyrighted material to be available on their platform, to avoid the massive legal risk of coming in conflict with Article 13.

Hey, and it gets even worse. Whereas in the older draft, it at least required copyright holders to tell platforms what was infringing, that's now been removed:

If you can't see that, it shows that the draft of the text has removed the notice requirement for copyright holders to alert platforms to any infringing material, directly removing the phrase "for which the rightsholders have provided the service providers with the relevant and necessary information or submitted a notice..." In other words, copyright holders don't even have to alert the platforms any more -- and platforms might still be deemed liable for any infringing content appearing on their platform. Even if they don't know about it. Which is insane.

Later on, the draft also removes a phrase that requires the copyright holders to work with the platforms, because that's apparently too much of a burden for the copyright holders:

I do wonder if this will get Hollywood and the legacy recording industries back on board.

However, here's the incredible bit. Despite Article 13 now being demonstrably even more ridiculous, the MEP in charge of pushing it forward, Axel Voss, is complaining that it's not idiotic enough yet. In response to this draft from the EU Council (which is expected to be approved on Friday), Voss stated:

“What France and Germany have agreed is a new safe harbor for small platforms, able to exist beyond what we already have today. It’s something we can’t accept,” Axel Voss said at a conference in the European Parliament.

Are you fucking kidding me? He's saying even that tiny, useless safe harbor that will apply to basically no one is too much?

Voss and the entertainment industry are going for broke here. They recognize this is their last best chance to really fundamentally change the internet. It is an attempt to completely wreck its intended purpose as a communications medium and turn it into a broadcast medium of licensed content controlled by gatekeepers (the legacy companies who used to control movies, music, news and books). Don't let them get away with this. Tell the EU Parliament that this is completely and totally unacceptable. EU Parliamentary elections are coming up in a few months, and any MEP should be told over and over and over again that voting to destroy the internet in this way means that they no longer deserve their job in the EU Parliament.

Filed Under: article 11, article 13, axel voss, censorship, copyright, eu, eu copyright directive, eu council, eu parliament, intermediary liability, licensing, safe harbors, upload filters

Infamous Pinkerton Detectives Claim Red Dead Redemption's Use Of Historically Accurate Pinkertons Is Trademark Infringement

from the seeing-red dept

Take 2 Interactive is no stranger to fighting bogus complaints about "infringement" concerning how it represents characters in its various games. Most of these fights have been over its flagship franchise, the Grand Theft Auto series, where the developer often enjoys poking fun at pop culture and society through settings and characters that are an amalgam of several stereotyped individuals. This has resulted in entitled celebrities and property owners attempting to sue over trademark and publicity rights in the past, with Take 2 typically coming out victorious by pointing out that its work is that of parody and covered by fair use.

This is now happening with a different game but the basic story remains the same. In this case we have the added insanity of a rather infamous company trying to profit off of its infamous history. Pinkerton Consulting & Investigations sent a cease and desist notice to Take 2 after Red Dead Redemption 2 was released due to the game including characters who were a part of the company during ye olde olden times. In response, Take 2 filed suit.

Pinkerton sent Take-Two Interactive a cease-and-desist letter over the characters of Andrew Milton and Edgar Ross, a pair of Pinkerton agents and major antagonists in the game. Now, Take-Two is suing to have the characters declared fair use, arguing that they’re part of Red Dead Redemption 2’s detailed historical setting.

Pinkerton Consulting & Investigations (now a subsidiary of security firm Securitas AB) delivered its cease-and-desist order in December, roughly two months after Red Dead Redemption 2’s release. It commended game development studio Rockstar’s “clear affection” for Pinkerton, but claimed it was trading on the “goodwill” associated with the company’s trademarks, creating a false impression that the game was made by or connected with Pinkerton. The order demands that Take-Two pay either a lump sum or ongoing royalties. But Take-Two contends that Red Dead Redemption 2 — which the lawsuit describes as a “gripping Wild West adventure” and “essentially an interactive film” — is protected by the First Amendment.

Okay, so a lot to get into here. First and foremost, including Pinkerton in a story about the old west absolutely is an obvious aim at being historically accurate. I didn't realize it until reading this story, but the Pinkerton operation around today is the same Pinkerton organization that has a sordid history working with both government and industry specifically to infiltrate, investigate, and ultimately stop the spread of labor unions, while encouraging strikebreaking. The infamous Pinkerton agency goes all the way back to the 1800s and was somewhat notorious for its tactics. The company also was very much involved in investigating and tracking down notorious outlaws such as Jesse James, Butch Cassidy, and the Sundance Kid. All of this, of course, makes their appearance in an old west outlaw game perfectly reasonable fodder.

Take 2 notes all of this in its declaratory judgment suit, along with mentioning all of the other cultural media that includes references to Pinkerton in stories about the old west.

Take-Two notes that the Pinkerton National Detective Agency is referenced in plenty of other Western fiction, and that the agency played a major role in real 19th- and early 20th-century American history. (It was not, however, the inspiration for the Weezer album Pinkerton.) Among other places, Pinkerton agents appear in the 2000s-era TV series Deadwood; the 1980 film The Long Riders; and the 2010 game BioShock Infinite, where the protagonist is a former Pinkerton agent.

Yet, when it comes to the wildly successful game Take 2 released, Pinkerton suddenly wants to lean on trademark law as a way to profit over a historical reality. This is absurd on many levels, including that the use by Take 2 -- much like with its GTA series -- is obviously fair use. On top of that, Pinkerton's claim in its C&D that the public is going to somehow be confused into thinking that Red Dead is the product of, affiliated with, or approved by Pinkerton is laughable at best. I would posit that most people playing the game likely won't know that Pinkerton is a real company, whereas those that do will see it as the inclusion of historical characters that are prevalent throughout the game.

In response to the lawsuit, the Pinkerton folks claim that part of their complaint is that this is a historically inaccurate picture of the Pinkertons, and that it's harming their good will. Given the existing reputation of the Pinkertons from back in the day, it's difficult to see how there is much good will to harm here in the first place, and litigating the reputation of the Pinkertons from the 1800s in the old west doesn't seem like a productive use of anyone's time.

We'll see how the court decides this, but it's quite difficult to imagine works of art having to license history in the way Pinkerton has suggested Take 2 should.

Filed Under: fair use, history, licensing, nominative fair use, pinkertons, red dead redemption 2, trademark
Companies: pinkerton, pinkerton consulting and investigations, rockstar games, securitas ab, take 2 interactive

Everybody Loses After Metal Band And Photographer Get Pissy Over Photographer's Copyright Threat

from the all-this-for-100-euro? dept

In many, if not most, of the copyright disputes we cover here, the stance we take is not typically a purely legal one. Often times, we make mention that one party or another is legally allowed to take the actions it has, but we note that those protectionist actions aren't the most optimal course to have taken. Perhaps the best example of this can be found in a dispute that arose between metal band Arch Enemy and a photographer it had allowed to take concert photos for them.

The backstory here goes like this. Arch Enemy has worked with J. Salmeron, a photographer and attorney, to take photos of the band's concerts. Salmeron then posted those photos to his Instagram account, after which they were reposted both by the band's fans and members of the band themselves. All of that was done without issue. One of the band's merchandise partners, however, used one of the photos of the lead singer to promote the band's merchandise on social media accounts. Finding out about this, Salmeron contacted the company and asked for a 100 euro "licensing fee" in the form of a payment to his choice of charity.

At this point, the issue could have been resolved without any fuss, but things quickly got out of hand. Thunderball Clothing wasn’t planning to pay and reached out to the band, accusing the photographer of making threats. The band and the singer sided with the clothing company and sponsor, arguing that a payment is not required. Apparently, the band’s management is under the impression that the band, fans, and sponsors can use the work of photographers free of charge. In return, they get exposure.

“I would like to ask why you are sending discontent emails to people sharing the photo of Alissa? Alissa’s sponsors and fan clubs are authorized to share photos of her. Thunderball Clothing is a sponsor of Alissa and Arch Enemy,” they replied. “Generally speaking, photographers appreciate having their work shown as much as possible and we are thankful for the great photos concert photographers provide,” the band’s management added.

Now, much of that is true. Photographers do get exposure through channels like this. Exposure for their work generally and, in the music space, exposure to other musical acts to use their services. On the other hand, it really isn't up to the band whether or not to authorize their partners' use of these photographs which are, unless otherwise stated in a contract somewhere, covered by copyright for the photographer. It also is the case that Salmeron's request wasn't exactly unreasonable in terms of the amount or the recipient. This, in other words, is pretty tame stuff in the world of copyright infringement. So... both sides of this equation have valid stances. And, one would imagine, something should have been easily worked out given that.

Unfortunately, it seems every side decided to go full nuclear.

After some messages back and forth, the photo was eventually removed, but the band also made it very clear that Salmeron is no longer welcome at any future gigs.

“By the way, we are sure you don’t mind that you are not welcome anymore to take pictures of Arch Enemy performances in the future, at festivals or solo performances,” the reply read. “I have copied in the label reps and booking agent who will inform promoters – no band wants to have photographers on site who later send such threatening correspondence to monetize on their images.”

And then the responses from many of the band's fans, many of whom do photography work, was to hurl snark at the band and suggest that its stance on copyright for the photographer be applied to the band's work as well. A whole bunch of people tweeted at the band, suggesting that instead of buying their latest album, they would just download it and that the band should consider that free exposure for themselves. Now, that analogy doesn't really hold, of course, but the point is clear.

And so basically everyone loses here. The band has pissed fans. The photographer isn't on the Arch Enemy beat any longer. The merch company had to take the photo down. And, again, all this over 100 euro? Come on.

Filed Under: arch enemy, concerts, copyright, fans, infringement, j. salmeron, licensing

Did France Just Make It Effectively Impossible To Use Twitter?

from the stop-it,-europe dept

Europe really seems to have it in for the internet these days -- from the GDPR to antitrust actions to the Copyright Directive to the Right to be Forgotten, almost every legal issue popping up in Europe is coming out terribly for innovation and the public's ability to communicate freely with one another. The latest may seem a bit more narrowly focused, but it could be super important. As described on the always wonderful IPKat blog, the Paris Tribunal heard a complaint brought against Twitter by the French Consumers' Association challenging the validity of Twitter's terms of service for a whole long list of reasons.

But just to keep this more focused we'll discuss the part that matters to us: the copyright license. We've discussed the "copyright license" terms (that basically every online platform has somewhere in the terms) a few times in the past -- mainly because every so often someone totally misreads or misunderstands it and a huge, viral, and totally misleading freakout occurs. That's because basically any service that hosts user content has some basic term that effectively says "when you're posting something to our site, you are granting us a perpetual license to host it on this and future iterations of our site, and that extends to other sites where our stuff might appear." That's the plain language version of it, but some people act as if it's an outrage that a platform is claiming that it can have such a broad license to include the content on future sites or with partners. Many -- incorrectly -- claim that this means that the sites are planning to "sell" your content to third parties. That's not the case. The clause really just allows for things like "embedding" where the same content will appear on other sites, and that alone shouldn't be seen as an infringement. So you're licensing the content for such uses.

But, some people still find this offensive... and apparently that includes the Paris Tribunal. Twitter's terms attempt to explain this situation pretty clearly:

You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same.

The French Consumers Union (Union Federale des Consummateurs -- or UFC) finds this to be somehow misleading, saying that the whole beginning telling users they retain their rights is misleading, given the rest of the explanation saying that you're granting a (non-exclusive) right for Twitter to then make use of it. This is a very confused reading. Again, the necessity of the license is so that you can post something to Twitter without Twitter then having to worry you're going to sue them over the thing that you yourself posted. UFC also complained that the license was somehow "too broad."

And the Tribunal bought these arguments:

"The aforementioned clause which grants to the service provider the right to use, for free, any content generated by the user, including content which may be protected by authors’ rights, without specifying in enough detail the content concerned, the nature of the rights transferred and the nature of the commercial uses agreed upon, infringes the provisions of Articles L 131-1, L 131-2 and L 131-3 of the Intellectual Property Code"

Specifically, the tribunal is basically saying that every copyright license has to be written out specifically around that content, and specify what the content is and what it will be used for:

the IPC, Article L 1341-1 prohibits the assignment or licensing of future works: “Total transfer of future works shall be null and void”. The IPC also requires that transfers of rights (assignments or licences) be recorded in writing and be very specific as to their content. It is a legal requirement that each right being ‘transferred’ (i.e. assigned or licensed) be separately mentioned in the contract and that the scope, purpose, place and duration of the exploitation for each of these rights be clearly defined in the agreement for the provision to be valid (see, IPC Article L 131-3). In other words, vague blanket assignments of present or future works are null and void in France.

A big part of the problem here -- as highlighted in the IPKat article -- is that France's law apparently doesn't distinguish between assignments of copyrights and licenses. That's... bonkers. The requirements above make a lot more sense when talking about assignments (transferring the actual copyright to someone). But they make zero sense when it comes to mere licensing (basically permission to make use of the work). But, if France is saying that every license must be treated like a full copyright transfer requiring specific contracts, well, there goes all social media and user generated content in France.

To put it mildly, this is crazy. It's taking permission culture to new insane levels. It certainly appears that under this ruling, in order to tweet in France, you need to sign a new agreement for each tweet with Twitter before you can post, in which you describe the content of the tweet itself and Twitter promises only very narrow uses. That's... insane. How can you possibly operate any site that allows for any user-generated input under such a standard?

This is what happens when you have judicial bodies who clearly don't understand how the internet works. Requiring a new specified agreement to license each individual tweet is fundamentally at odds with how the internet works as a communications mechanism. Conceivably, this could serve to show the ridiculousness of copyright itself -- that it forces such preposterous outcomes -- but remember that no other country seems to interpret terms of service this way. Anyway, it's unclear what Twitter is going to do about this, but it certainly seems like it may be risky to continue even operating in France with such a standard in play.

Filed Under: boilerplate, copyright, copyright assignment, licensing, paris tribunal, terms of service
Companies: twitter

CBS Bullies Fan Star Trek Project To Shut Down Despite Creators' Pleas For Instructions On Being Legit

from the engage-the-lawyers dept

Lawsuits and intellectual property disputes revolving around the Star Trek franchise are legion. This is largely due to just how massive and popular the franchise has been over the past decades and into the present. Still, we've seen all kinds of examples of how either the disputes are frivolous or silly, or cases in which IP owners had so many options open to them other than bullying and suing but chose to ignore those alternative routes.

That brings us to Stage 9, a non-commercial labor of love put together by fans of Star Trek: The Next Generation. Stage 9 is the virtual recreation of TNG's Enterprise starship that allows fans of the series to explore the beloved vessel and immerse themselves in the chief setting of the series. Stage 9 has been built over the past two years by creators that have taken great pains to state that the project was not affiliated or licensed with CBS or Paramount and that they weren't doing this to make money, only to artistically demonstrate their fandom.

As you've probably already guessed, all that was for nothing as CBS sent them a cease and desist letter anyway.

“This letter was a cease-and-desist order,” Scragnog explains. “Over the next 13 days we did everything we possibly could to open up a dialog with CBS. The member of the CBS legal team that issued the order went on holiday for a week immediately after sending the letter through, which slowed things down considerably.”

Part of the team's strategy at that point was to remind everyone it could at CBS of the words of John Van Citters, CBS VP for Product Development. Back in 2016, shortly before this project started, Van Citters publicly remarked that the Star Trek franchise owes its success to the fans and the community that creates so much fan-work around the Trek universe. He went so far as to plead with fans to get involved, specifically stating that fans creating fanworks are "not going to hear from us. They're not going to get a phone call, they're not going to get an email. They're not going to get anything that's going to ruin their day... like they've done something wrong."

Those seem to be in direct contradiction to the very real letter that very much ruined the day of the team behind Stage 9. And so the team reached out to Van Citters directly to see if he could get involved and help. Van Citters failed to even respond, and when CBS' lawyer finally got back from vacation, it was stated that nobody would be working with these fans to make their project legit, it all just had to go away.

“We were hoping, perhaps naively, that the elements of Stage 9 that CBS did not approve of would be highlighted to us, so we could be sure to remove these elements from the project and create something that met with, if not their approval, then at least their acceptance,” Scragnog explains.

To keep the project alive, the team were prepared to make any changes ordered by CBS. Sadly, CBS said that the project could not continue in any form, no matter what changes were made. They provided no further details and, as noted by Eurogamer, did not indicate how Stage 9 had violated the fan art guidelines previously published by CBS and Paramount.

And so the story of a two year fan-project that would have at worst brought some joy to a bunch of Star Trek fans and, at best, would serve as free marketing material for the show, has come to the most unfortunate of endings. Thanks to mealy mouthed executives who can't be bothered to either back up their own altruistic statements or engage with fans of their property, two years of work simply gets tossed in the trash.

Filed Under: copyright, enterprise, fans, infringement, inspiration, licensing, stage 9, star trek, tng
Companies: cbs, paramount

Apple Didn't Delete That Guys iTunes Movies, But What Happened Still Shows The Insanity Of Copyright

from the different-but-still-bad dept

Last week we, like many others, wrote about the story of Anders G da Silva, who had complained on Twitter about how Apple had disappeared three movies he had purchased, and its customer service seemed to do little more than offer him some rental credits. There was lots of discussion about the ridiculousness -- and potential deceptive practices -- of offering a "buy" button if you couldn't actually back up the "purchase" promise.

Some more details are coming out about the situation with da Silva, and some are arguing that everyone got the original story wrong and it was incorrect to blame Apple here. However, looking over the details, what actually happened may be slightly different, but it's still totally messed up. Apple didn't just stop offering the films. What happened was that da Silva moved from Australia to Canada, and apparently then wished to redownload the movies he had purchased. It was that region change that evidently caused the problem. Because copyright holders get ridiculously overprotective of regional licenses, Apple can only offer some content in some regions -- and it warns you that if you move you may not be able to re-download films that you "purchased" in another region (even though it promises you can hang onto anything you've already downloaded).

And, here the situation is slightly more confusing because Apple actually does offer the same three movies -- Cars, Cars 2 and The Grand Budapest Hotel -- in both Australia and Canada, but apparently they may not be the identical "versions" of the film, as they may be slightly altered depending on the region.

And while this may be marginally better than completely removing his "purchased" films, it's still absolutely ridiculous. The CNET article linked above is sympathetic to the idea that Apple has to go to extreme lengths such as these to prevent "region hopping," and says that da Silva is just an "edge case" that "fell into a licensing crack." But, again, that's nonsense. This is digital content that he "purchased" using a "buy" button. It shouldn't matter where he is at some later date. He should still get access to those original files. That's what a purchase means. The fact that this might possibly in some cases mean that (OH MY GOSH!) someone in Canada can access a movie released in Australia when they're actually in Canada, well, uh, that seems like an "edge case" that a movie studio and Apple should deal with, rather than screwing over legitimate purchasers.

But, alas, we're left with yet another example of the insanity driven by excessive copyright, in which copyright holders get so overly focused on the notion of "control" that they feel the need to control absolutely everything -- including making sure that no wayward Canadians might (GASP!) purchase and download a movie meant for Australians. It's this overwhelming, obsessive desire to "control" each and every use that messes with so many people's lives -- including da Silva's -- and makes sure that the public has almost no respect at all for copyright. Give up a little control, and let the edge cases go, and maybe people wouldn't be so quick to condemn copyright for removing their own rights so frequently.

Filed Under: copyright, downloads, drm, itunes, licensing, ownership, regional restrictions
Companies: apple

Guy In Charge Of Pushing Draconian EU Copyright Directive, Evasive About His Own Use Of Copyright Protected Images

from the do-as-I-say,-not-as-I-do? dept

There's one person who wields more power than anyone to shape the awful EU Copyright Directive: the MEP Axel Voss. He's the head of the main Legal Affairs Committee (JURI) that is steering the Directive through the European Parliament. Voss took over from the previous MEP leading JURI, Therese Comodini Cachia, after she decided to return to her native Malta as member of the national parliament. Her draft version of the Directive was certainly not perfect, but it did possess the virtue of being broadly acceptable to all sides of the debate. When Voss took over last year, the text took a dramatic turn for the worse thanks to the infamous "snippet tax" (Article 11 of the proposed Directive) and the "upload filter" (Article 13).

As Mike reported a couple of weeks ago, Voss offered a pretty poor defense of his proposals, showing little understanding of the Internet. But he made clear that he thinks respecting copyright law is really important. For example, he said he was particularly concerned that material is being placed online, where "there is no remuneration of the concerned author." Given that background, it will probably come as no surprise to Techdirt readers to learn that questions are now being asked whether Voss himself has paid creators for material that he has used on his social media accounts:

BuzzFeed News Germany ... looked at the posts from the past 24 months on Voss's social media channels. In the two years, BuzzFeed News has found at least 17 copyrighted images from at least eight different image agencies, including the German press agency dpa.

As good journalists, BuzzFeed News Germany naturally contacted Axel Voss to ask whether he had paid to use all these copyrighted images:

Since last Thursday, 5 July, BuzzFeed News Germany has asked Voss's office and his personal assistant a total of five times in writing and several times over the phone whether Axel Voss or his social media team has paid for the use of these copyrighted photos. Voss's staff responded evasively five times. Asked if the office could provide us with licensing evidence, the Voss office responded: "We do not provide invoices to uninvolved third parties."

Such a simple question -- had Voss paid for the images he used? -- and yet one that seemed so hard for the Voss team to answer, even with the single word "yes". The article (original in German) took screenshots of the images the BuzzFeed Germany journalists had found. That's just as well, because shortly afterwards, 12 of the 17 posts with copyrighted images had been deleted. The journalists contacted Axel Voss once more, and asked why they had disappeared (original in German). To which Axel Voss's office replied: anyone can add and remove posts, if they wish. Which is true, but fails to answer the question, yet again. However, Axel Voss's office did offer an additional "explanation":

according to the current legal situation (...), if the right-holder informs us that we have violated their rights, we remove the image in question according to the notice and takedown procedure of the e-commerce directive.

That is, Axel Voss, or his office, seems to believe it's fine to post copyrighted material online provided you take it down if someone complains. But that's not how it works at all. The EU notice and takedown procedure applies to the Internet services hosting material, not to the individual users of those services. The fact that the team of the senior MEP responsible for pushing the deeply-flawed Copyright Directive through the European Parliament is ignorant of the current laws is bad enough. That he may have posted copyrighted material without paying for it while claiming to be worried that creators aren't being remunerated for their work, is beyond ridiculous.

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Filed Under: article 13, axel voss, copyright, copyright directive, eu, eu copyright directive, eu parliament, infringement, licensing

Latest EU Copyright Plan Would Ban Copyright Holders From Using Creative Commons

from the because-that's-how-stupid-things-have-gotten dept

We recently noted that the latest version of the EU's copyright directive, being pushed by MEP Axel Voss (though the metadata showed that it actually came from the EU Commission), would bring back horrible censorial ideas like mandatory filtering. As we noted, such a plan would likely kill important sites like Github, which would have trouble functioning as a repository for sharing code if it had to block... sharing of code. But the plan keeps getting worse. As MEP Julia Reda recently explained, with each new version that Voss puts out, the end results are more and more ridiculous. Under the latest, it includes:

1. News sites should not be able to give out free licenses (an “inalienable right to remuneration”)
2. Press agencies should also be granted this right – effectively giving them control over the spreading of facts
3. Money publishers make from the law should be shared with journalists in some cases
4. There should be an exception for individuals who share news content for “legitimate private and non-commercial uses”
5. A newly added justification of the law is to supposedly fight fake news

Many of these ideas are similar to what Spain implemented back in 2014, as a form of a "link tax" with the goal of forcing Google to pay any publication that it sent traffic to (which, you know, sounds kind of backwards, especially given how much emphasis sites put on search engine optimization). In response to that, Google News pulled out of Spain entirely, and a study a year later found that the law ended up doing quite a lot of harm to Spanish publications -- especially smaller ones.

However, as Creative Commons noted in response to this latest proposal, the most ridiculous part of all of this is that it doesn't allow sites that want to share their content to do so:

This press publisher’s right (also commonly known as the “Link Tax”) already poses a significant threat to an informed and literate society. But Voss wants to amplify its worst features by asserting that press publishers will receive—whether they like it or not—an “inalienable right to obtain an [sic] fair and proportionate remuneration for such uses.” This means that publishers will be required to demand payment from news aggregators.

This inalienable right directly conflicts with publishers who wish to share freely and openly using Creative Commons licenses. As we’ve warned before, an unwaivable right to compensation would interfere with the operation of open licensing by reserving a special and separate economic right above and beyond the intention of some publishers. For example, the Spanish news site eldiario.es releases all of their content online for free under the Creative Commons Attribution-ShareAlike license. By doing so, they are granting to the public a worldwide, royalty-free license to use the work under certain terms. Other news publishers in Europe using CC licenses that could also find themselves swept up under this new provision include La Stampa, 20 Minutos, and openDemocracy.

Forcing publishers who use CC to accept additional inalienable rights to be remunerated violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish. The proposal would pose an existential threat to the over 1.3 billion CC-licensed works online, shared freely by hundreds of millions of creators from around the world.

Once again this appears to be copyright policy driven solely by the interests of a single party: big publishers who are annoyed at Google for aggregating news and are demanding payment. It doesn't take into account (1) whether or not this is necessary (2) whether or not this makes sense (3) what will be the impact on other aggregators (4) what will be the impact on tons of other publications and (5) what will be in the best interest of the public.

It's a pretty bad way to make policy, though it's all too common when it comes to copyright.

Filed Under: copyright, creative commons, eu, licensing