Six Strikes Is Just 'Soft SOPA'

from the more-futility-and-stupidity dept

The nationwide Six Strikes Copyright Alert System continues to roll out with many of the details still shrouded in secrecy. The few aspects of the system that can be guaranteed are negative: open WiFi could become a thing of the past and non-infringers are likely to be swept up in the CAS net.

Then there's the problematic system itself, one that places the burden of proof entirely on the end user. In addition, the punishment (in some cases, the loss of internet service) seems to greatly outweigh the crime. As Andrew Bridges points out in his interview with ReadWrite, the ridiculousness of this punishment becomes apparent when you move the discussion out of the copyright arena.

Say you send out one of those mailers for a subscription to Time Magazine. And you check the box that says bill me later. Let's say that they start sending you Time Magazine, and after 2 or 3 issues they send you the bill, and you never pay. But in the meantime you have 6 or 8 issues before they cut you off for not paying. My proposal is let's adopt Six Strikes and knock somebody off the postal system. You don't pay for it, you don't get to use the postal service any longer. Or let's say somebody blows through a toll plaza 6 times, does that mean you don't ever use the highways anymore?

Now, some might argue that this is no different than, say, revoking a driver's license after certain number of DUIs. I'd argue it's closer to punishing a boiler-room scammer with loss of telephone privileges. It's one thing to limit one specific activity (driving/driving drunk) as a deterrent. (After all, the person with multiple DUIs can still walk places, use public transportation and drink to his heart's content.) It's quite another to block off an entire form of communication simply because the infringement was committed via an internet connection.

This urge to sever infringers from their internet connections (or slow the connection to nearly-unusable speeds) stems from the copyright industries' paranoia about all things internet-related. One needs look no further than the MPAA's knee jerk reaction to Google's plan to provide 1gb up/down internet to Kansas City. From its limited viewpoint, the only thing anyone does with a fast internet connection is commit high speed infringement.

This paranoia goes hand-in-hand with the industries' general panic over every new technology that threatens their control over distribution.

The function of copyright law as it has evolved is indeed to disrupt innovation and to disrupt new technologies that threaten the interest of copyright holders. Frankly all copyright legislation has been in reaction to new technologies that are developed. And copyright law has sought as its purpose, interfering with, limiting, pampering and indeed disrupting innovation of technology, business plans, even disruption of consumer choice.

Bridges refers to the Six Strikes plan as "Soft SOPA." Even though SOPA itself was killed off, certain aspects still remain and are being incorporated into other legislation and "voluntary" initiatives like the Copyright Alert System.

Even though SOPA failed, SOPA is now in some respects the law of the land. Because we now have Soft SOPA. We have the government putting pressure on advertising networks and putting pressure on payment processors, unofficially, to take the same measures that SOPA was going to require them to [do]. But now it's a sort of 'if you know what's good for you, could you pretty please, wink-wink' method.

There are payment processors notifying companies that they are no longer willing to process payments for them. It's happening. It happened with three of my clients... [W]e have advertisers blacklisting certain sites, and telling sites. 'We're not going to place advertising on your site because people tell us you're not a good site.' So that's happening. And it's being done as "Oh it's just a private decision."

In the long run, it appears the RIAA, MPAA and various others have still managed to push their agenda through. The only difference is the lack of an official government mandate. Instead, we're seeing something a bit shadier -- SOPA's directives presented as "cooperation" between the copyright industry and private companies.

This is still business as usual for the industry and their support system within the US government. As was pointed out here (both before and after SOPA's defeat), the legal authority to shut down foreign sites the RIAA/MPAA sought when pushing this bill seemed redundant. ICE and the DOJ were already shuttering foreign sites without the aid of this supposedly essential anti-piracy legislation.

What's happening now is a continuation of that process. The content industries already have the DOJ/ICE working for them. Now, they're hoping that a blend of "voluntary" alert systems and heavy-handed "suggestions" will finish the job. And whoever gets mangled in the machinery is simply the price of "doing business." After all, it won't affect anyone but the sites and users knocked offline.

Filed Under: andrew bridges, cas, six strikes, soft sopa, sopa

RIAA Tries To Downplay Its Role In The Feds' Unjustifiable Censorship Of Dajaz1

from the that's-prompt? dept

Last week, we had the story about the unsealing of the court records in the Dajaz1.com case. That revealed that the main reason why the feds (almost certainly illegally) held onto the domain name for over a year was that ICE had asked the RIAA for the evidence it needed (i.e., that Dajaz1 actually infringed -- criminally -- on its members' copyrights), and the RIAA had taken its sweet time responding.

Ben Sisario, over at the NY Times, has an article noting the official RIAA statement on the matter. Both Ben and the RIAA itself were kind enough to send me the full RIAA statement:

"We referred this particular site to ICE for investigation because of its long history engaging in the unauthorized distribution of copyright content prior to its commercial release. ICE conducted its own independent investigation of the site and ICE along with the Justice Department concluded that there was a basis for seizing the domain name. Rights holders and the RIAA were requested to assist law enforcement and made every attempt to do so in a complete and prompt manner. As we stated previously, we were disappointed with the decision to not seek forfeiture but we respect that this is a judgment that properly lies with the government."

For what it's worth, I also asked the RIAA if it could provide me the date on which it actually responded to ICE's questions, and I was told, politely, that the RIAA had "nothing further to add for now."

Beyond that, however, the RIAA's statement is ridiculous. First, it admits that it was the one who told ICE to seize this domain -- as had been suspected all along, but now has been admitted. At the very least, this raises significant questions about the all-too-close relationship between the federal government and the RIAA. The RIAA claims that "ICE conducted its own independent investigation," but that's clearly untrue. In both the original affidavit and the unsealed documents last week, ICE makes it clear that it relied heavily on the RIAA's statements. As we noted soon after the affidavit came out, ICE's "investigation" consisted of downloading four songs and asking Carlos Linares, the VP of Anti-Piracy Legal Affairs for the RIAA, if they were infringing. He said yes, and that was good enough for ICE to move forward with the seizure. Of course, as we pointed out, on one of the songs, Linares had no right to speak for the artist, since it wasn't even an RIAA artist. On the other songs, it appeared that the RIAA did not check with the labels' own promotions people who had sent the tracks.

That said, the really ridiculous claim here is that the RIAA helped in a "complete and prompt manner." If that were true, then 10 months after the domain was seized, ICE wouldn't be whining to a judge that it needed to censor the blog for another two months because the RIAA wasn't responding or providing the necessary evidence. It's hard to square the RIAA's statements with the government's.

Dajaz1's lawyer, Andrew P. Bridges, however, had a few things to add, and responded, in detail, about how ICE's original claim to being able to seize the domain in the first place was clearly against what the law allows:

The owner of Dajaz1.com appreciates the fact that the United States Government, on studying the matter further with all the information the RIAA could furnish, determined that there was in fact no probable cause to seek a forfeiture of the domain it had seized and held for a year.

That exoneration, however, did not remedy the harms caused by a full year of censorship and secret proceedings — a form of “digital Guantanamo” — that knocked out an important and popular blog devoted to hip hop music and has nearly killed it.

The original seizure was unjustified. The delay was unjustified. The secrecy in extensions of the forfeiture deadlines was unjustified.

Five details are notable here.

First, the seizure occurred pursuant to language the PRO-IP Act authorizing seizures of property used in connection with the making of, or trafficking in, “articles” in violation of copyright law. In that context, “articles” are physical items. The law does not authorize seizure of domains that link to other sites. So from the beginning this seizure was entirely legally unjustified, no matter what the allegations about infringement.

SEC. 2323. FORFEITURE, DESTRUCTION, AND RESTITUTION.
(a) CIVIL FORFEITURE.-
(1) PROPERTY SUBJECT TO FORFEITURE.-The following property is subject to forfeiture to the United States Government:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

Second, seizing a blog for linking to four songs, even allegedly infringing ones, is equivalent to seizing the printing press of the New York Times because the newspaper, in its concert calendar, refers readers to four concerts where the promoters of those concerts have failed to pay ASCAP for the performance licenses.

Third, RIAA’s grand and sweeping attacks on dajaz1.com suggest that RIAA’s powers of demonization far exceed its ability to substantiate its malicious statements with specific and credible facts.

Fourth , when I explained that the blog publisher had received music from the industry itself, a government attorney replied that authorization was an “affirmative defense” that need not be taken into account by the government in carrying out the seizure. That was stunning.

Fifth, when discussing the secret extensions with the U.S. Attorney’s office in Los Angeles, I repeatedly asked the government attorney to inform the court that my client opposed any further extensions and asked for an opportunity to be heard. Not once did the government reveal those requests or positions to the court. The government should be embarrassed for keeping that information from the court.

This entire episode shows that neither the government nor the recording industry deserves any additional powers with new so-called “antipiracy” legislation, especially in the context where copyright law has been expanded and new anti-piracy remedies have been crafted ***16 times*** since 1982. This episode shows that the copyright establishment and the government are very much the “rogues” that deserve to be reined in.

That's a pretty meaty response, especially given the weak statement from the RIAA. All five of those points could be worthy of separate posts, delving into the details. For now, however, I'll just focus on two of the points. First, the fact that the government thinks that the use of authorized works is merely a defense to accusations of copyright infringement suggests a DOJ that is out of control with power, and completely out of touch with both the basics of the First Amendment and the Copyright clause, both of which would disagree with the government's statements here. There are already civil cases on the books, stating that claims need to take into account legitimate uses of the work before filing suit. However, in this case, it's even worse, because we're talking about a criminal issue, where (1) the presumption of innocence is supposed to be in effect and (2) for criminal infringement the behavior must be willful. As such, the fact that the tracks were authorized is not a defense, it's a key part of the question of willfulness. The government must consider that information prior to shutting down a site.

The second point is Bridge's comment about the RIAA's "power of demonization" and failure to actually deliver. This is a really important point, because it demonstrates just how much ICE and parts of the DOJ appear to be captured by this private entity with a history of hysterical overreactions. If the feds were truly independent, none of this would have happened. Instead, the feds appear to have relied heavily on what quickly became clear were... well, let's just say "misguided" claims by the RIAA. We detailed how misguided the claims were just weeks after the seizure. From the evidence shown so far, it appears that rather than admit that it screwed up, ICE and the DOJ simply went running to the RIAA again, asking for more help in getting them out of the mess they had caused. And the RIAA couldn't deliver.

It's truly amazing that ICE and the RIAA still can't even admit how wrong they were here, let alone give an apology to Dajaz1.com. I guess that would be tantamount to admitting just how badly they violated the site's free expression and due process rights.

Filed Under: andrew bridges, censorship, dajaz1, domain seizure, ice, riaa

IP Lawyer Explains Why Uploading Files May Not Be Distribution For Copyright

from the forget-making-available... dept

While there's been a big ongoing discussion in various courtrooms concerning the question of whether or not making unauthorized files available for download is copyright infringement, there's another interpretation of copyright law that many copyright scholars agree with -- but which the RIAA and the MPAA would certainly prefer you not hear. I'm at the San Francisco MusicTech Summit and on an early (and not particularly well attended) session in the morning, intellectual property lawyer Andrew Bridges made a fascinating argument: that if you follow the actual text of existing US copyright law, uploading unauthorized content does not infringe the distribution rights of copyright. This goes even beyond the whole "making available" question, by saying even the uploading doesn't violate the law directly.

The reasoning requires a very literal reading of the law. Section 106 of copyright law lists out the specific "exclusive rights" granted under copyright law to copyright holders, including things like reproduction rights, performance rights and distribution rights. The text of the distribution right is: "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;" From this reading, one might conclude that uploading a file is a "copy." But if you go to Section 101, which holds the definitions for the law, it states (quite clearly):

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.

Note the emphasis on material objects. As such, you can read the law, as written, to conclude that passing around the song itself, which is not a material object, is not actually an infringement of the distribution right under the current law.

Now, before people get too excited about this, in a later panel this question was raised again, to the EFF's Fred von Lohmann. He agreed that this appeared to be a literal reading of copyright law -- and that just about every copyright scholar he's spoken to agrees -- but that every time he's argued it in court, the court has disagreed or ignored it. He says he'll continue to make the argument, but that it has not been effective. Also, as Bridges noted in making the original statement, just because the distribution right isn't infringed, doesn't mean there aren't other issues. For example, whoever downloaded the file downloaded it to a material object (the hard drive) probably violates the first exclusive right, the "reproduction" right. And, thus, an argument could be made that the person who uploaded the file contributed to the violation of the reproduction right. However, based on this argument, it does seem clear that uploading a file is not, technically, a violation of the distribution right under copyright law -- not that the courts recognize that. Of course, if the courts ever did recognize this fact, you could bet that within a matter of days, a Congressional Representative would introduce an amendment to copyright law to change the definition of "copy" to include content not tied to a material good.

Filed Under: andrew bridges, copyright, distribution, eff, fred von lohmann, making available