Earlier this month, we noted that the record labels were already stretching The Pirate Bay ruling to use it to go after web hosting firms who clearly were far separated from the actions of their clients. And, of course, the ruling itself is both being disputed, due to conflicts of interest, and also being appealed. But, it appears that the record labels are so freaked out by how badly the ruling has backfired on the industry that they're trying to do anything to regain what they think (incorrectly) is the moral victory. Among the web hosting firms they're approaching is the one that provides bandwidth to The Pirate Bay, and the music labels are demanding it to stop. Also, the labels are demanding more money. This is notable because for all the problems with the original ruling, it didn't do two things: order the site shut down or provide any guidelines regarding future infringement. So, now it appears that the labels are simply taking that matter into their own hands and interpreting the ruling beyond what it actually said. At some point, will they actually realize that everything they do here is just making things worse for themselves?
As Swedish officials are looking into charges that the judge in The Pirate Bay trial was biased, there's now some concern that the person in charge of figuring out whether he was biased... might be biased as well. Apparently, he serves on a board with the main lawyers who argued the case for the entertainment industry (and two of their main assistants). Of course, in legal circles you do end up getting to know others in the field, but as brokep from The Pirate Bay notes: "Not any of OUR lawyers are on that board. But two of the opponents lawyers in the same board." Considering that officials should be trying to make it clear that there's no bias, it seems like they should pick someone who has no direct ties to the attorneys involved in the case. Brokep also has some fun in noting that it was simple to find this info on Google, and he's surprised that no one else had done such a simple search yet.
I was quite surprised last week to find out that Google has changed its rules on trademarks and AdWords in many countries around the world. In the past, it had limited the use of trademarks both in the ads and (more importantly) as keyword triggers. In the US it had allowed trademarks as keyword triggers (in most cases), but in other countries, where the laws and the courts more heavily favored trademark holders, the company had been much more strict.
Now, I think Google is absolutely right to take this stance, as I don't see why it should be a problem at all to advertise on trademarked keywords, so long as the ads aren't confusing to the users. Trademark is not about ultimate control over the mark, but has always been designed for the sake of consumer protection, to avoid having someone buying Bob's Cola thinking it's Coca-Cola. It was never designed to give total control to one company and allow them to prevent anyone else from making use of the trademark. Yet, over the years, trademark law has drifted further and further from those origins, and today many people falsely believe that it's just like a patent or a copyright.
And, of course, even if you grant the (false) premise that trademarked terms shouldn't be used as keywords to trigger advertising, it's doubly ridiculous that Google should be liable. Google is just the platform provider, and if there needs to be any liability, then it should be on the advertiser, not Google itself.
So while I'm quite happy that Google is taking this stance, I'm really surprised (and somewhat confused) as to why it's doing so. It will almost certainly lead to a lot of expensive lawsuits around the globe -- and given how some other countries interpret trademark law these days, Google stands a decent chance of losing in some of those locations. Even in the US, the issue still comes up quite often... and, in fact, just as this change was being announced, a class action lawsuit was filed against the company in the US over the issue. Hopefully this case goes nowhere fast, because it seems to be repeating all the mistakes of earlier cases, misunderstanding the purpose of trademarks and falsely blaming Google rather than the actual advertisers. However, it's noteworthy in that it's the first class action suit of this nature, rather than just a single company. That means there will likely be more such suits on the way... and we'll start to see them internationally as well, thanks to the policy change.
In a NY Times article about both the change and the lawsuit, a representative from Google is quoted as saying:
"I think that there will be trademark owners that do not like this policy," said Terri Chen, senior trademark counsel at Google. "But trademark law allows for that. It is a pretty well-established principle in the offline world and in the online world."
Again, while I agree, I find Google's somewhat cavalier attitude towards the lawsuits that are certainly on the way surprising. It's not just that trademark owners won't like the policy. Many of them are going to sue -- and trademark law around the world (unfortunately) is not as "well-established" as Chen seems to make out. All in all, it seems a bit surprising that Google would go out of its way to attract new lawsuits. Could it be that the company is back to fighting certain lawsuits for principle? This was something the company had done years ago, but had largely abandoned of late. Or is there some other reason? Some might argue that it's a pure money grab, as this will allow more (and potentially more lucrative) advertising to run on the site, but the cost of lawsuits and the uncertainty of those lawsuits could be quite expensive.
While the recording industry made the fateful (and self-destructive) decision years back to start suing file sharers directly, the movie industry, for the most part has avoided going down that path (in part after witnessing how badly it failed for the RIAA). The movie industry has been quite active in trying to shut down file sharing systems and sites, but for the most part has avoided accusing home consumers of infringement. It appears that may be changing in Germany. Michael Scott alerts us to the news that a major German movie studio has started sending out threat letters to 500 people (out of a list of 10,000) that it believes shared some of its movies. The letter demands $1,000 per infringing work, or promises a lawsuit. What's unclear is how this list was created, and how accurate (or inaccurate it is). Demanding $1,000 from people without any real proof that they did anything illegal certainly seems to come quite close to the classic definition of extortion. We've see how some have used similar shakedown letters for profit, and it makes you wonder why they're allowed at all.
Back in December, the RIAA claimed that it had discontinued its strategy of filing lawsuits against individual file sharers. Specifically, the RIAA's letter to Congress stated "we discontinued initiating new lawsuits in August." While we've pointed out in the past that this is wholly untrue, some Hollywood lawyers took us to task, claiming the RIAA never said anything of the sort (even as RIAA lobbyists have been pushing that exact story to the press over and over again). It seems the entertainment industry wants to have it both ways. They want to claim they gave up the lawsuits when it suits them as a publicity stunt, but when you corner them, they want to claim that they never said they'd stop filing lawsuits. So, the lawsuits keep coming. As Ray Beckerman has noted, there are still new lawsuits being filed on a regular basis. Once again, the RIAA's original claim appears to have been nothing more than a PR stunt to get newspapers to claim the group had given up on its backwards legal strategy, when the truth is quite different.
Steve Jobs definitely invited it in hyping up the fact that the iPhone was covered by 200 patents, but it seems like every other week or so, we hear about yet another firm suing Apple for violating its patents with the iPhone. Apple has been sued over the iPhone over and over and over and over and over again. And now it's happened yet again. People talk about how every high tech product today is likely to violated hundreds, if not thousands, of patents, and the iPhone seems to be on its way to proving that point. At some point, doesn't someone realize how this highlights how much patents hinder innovation? It's the tragedy of the anti-commons, where any innovation today seems to require paying hundreds to thousands of tollbooths. It drives up the cost of innovation, almost always consisting of situations where the patent in question was not relied on for the newer innovation at all. It's a flat-out negative cost to society, which is the exact opposite of what the patent system is supposed to encourage.
The record labels' animosity towards Seeqpod has never made much sense. Seeqpod is a basic search engine that seeks out music files online. Some of these files are, undoubtedly, unauthorized copies, but Seeqpod has always been focused on streaming the music rather than letting you download the tracks. Seeqpod, itself, has no way of knowing whether the tracks are illegal or not, just as a search on Google using "filetype:mp3" doesn't distinguish between illegal and legal files. Yet, of course, the major record labels have decided that there can be no innovation without the record labels owning a piece of it, and so both Warner Music and EMI (two labels, by the way that have been the loudest in insisting that they've changed and are no longer anti-innovation) sued Seeqpod for daring to run a search engine.
And, now, thanks to mounting legal bills, the company has filed for Chapter 11 bankruptcy protection, and is cutting off some developers who were using its API. It seems like yet another example of the major record labels stamping out innovation through lawsuits. Of course, others will rise in their place (most likely in foreign countries where it's harder for the labels to sue). But, it's pretty sad that the labels have been so successful in using questionable lawsuits to make sure that no one can innovate without their stamp of approval.
Carbonite, one of a few players in the competitive online backup space, has now sued a vendor it used for hardware whose failure in 2007 led some of Carbonite's customers to lose their data. While you can understand why Carbonite is trying to sue this vendor, you have to wonder if it actually makes business sense. As some in the article note, it's not clear there's a real legal remedy here, and Carbonite may be doing this as a PR move, to make people realize that it wasn't responsible for the lost data. However, as someone who was recently on the market for such a solution, I'd say this lawsuit actually makes me think less of Carbonite. First, it reminds everyone that the company lost people's data. Second, it suggests that the company is unwilling to take responsibility for the loss. The people signing up to use Carbonite are trusting Carbonite to set things up in a way that their data won't get lost. They're not trusting Carbonite's suppliers. It's Carbonite that failed those customers, and simply trying to offload the blame does little to convince anyone that the company is setting things up in a way that will prevent this sort of thing from happening again, no matter who the tech supplier might be.
It's difficult to believe that anyone could look at the disastrous five years of the RIAA suing fans and think, "hey, we should do that too!" However, that appears to be exactly what some German book publishers have decided. Michael Scott points us to the news that the head of the German book publishers' assocation has announced plans to "sue thousands" and talked about how file sharing systems were the equivalent of organized crime. He's also demanding that ISPs implement a three strikes plan. Apparently, he hasn't discovered that file sharing of books, when done right, can help boost demand for book sales.
Harlan Ellison may be a well-respected writer, but he's got something of a history of threatening and/or suing anyone who he believes is unfairly profiting off of "his" works. You may recall a while back that he mistakenly sued AOL when he discovered that fans of his (not that he'd call them fans) had posted some of his writings to Usenet. Yes, to Usenet. Not to any AOL property, but to Usenet. However, since he'd discovered it via AOL, somehow they were to blame... so he sued. And a court quickly explained to Mr. Ellison the DMCA's safe harbors and the fact that Usenet isn't AOL. Ellison appealed... and, amazingly, AOL eventually settled just to make him go away, knowing that even though the courts would reject such cases under DMCA safe harbors (and common sense), it was cheaper to just pay up.
This wasn't just a one-off misunderstanding. Ellison has a long history of being economically and technologically illiterate about these sorts of things, as was made clear in this video that made the rounds a few years back:
In the video, he talks about how he doesn't take a piss without getting paid, and screams about Warner Bros. Studios asking if they can use a video interview he did in the DVD for Babylon 5, which he worked on -- and he demanded payment for it. When the woman pointed out that everyone else was doing it for free, he called them all assholes and then went on a rant about people doing stuff for free, talking about how he doesn't do anything for free. Apparently, he missed the fact that the video was already recorded, so it wouldn't be about any "work for free" because he wouldn't be doing any work. The work was already done. Also, depending on who shot the video, it's unlikely that WB actually needed to get his permission (or to pay him) to use the video, because he probably doesn't own the rights to it, but that's a separate point.
Either way, that's all prologue to the news that Ellison is suing yet again. This time, he's suing Paramount Pictures and the Writers Guild because he wrote an episode of Star Trek that aired in 1967, and Paramount hasn't paid him for certain Star Trek books that include elements from that show or other merchandise like a (not making this up) talking Christmas tree ornament. He's suing the Writers Guild because it apparently told him that he was nuts and they weren't going to take on Paramount over this issue (he's accusing the Guild of too narrowly interpreting its contract).
And, in classic Ellison fashion, his statement on the matter is all about the money:
It ain't about the 'principle,' friend, its (sic) about the MONEY! Pay Me! Am I doing this for other writers, for Mom (still dead), and apple pie? Hell no! I'm doing it for the 35-year-long disrespect and the money!
Given these antics and ridiculousness, you have to wonder just how many folks won't be hiring Ellison in the future, knowing he's likely to blow up and potentially sue them, as well. You also should wonder how much "money" he's missing out on from folks like me who will never buy any of his works. If it's "all about the money" perhaps someone who writes sci-fi like Ellison can think about the future a little bit, and how many opportunities he kills off by demanding every penny today at the expense of dollars tomorrow.
