Supreme Court Says Of Course You Need To Register Your Copyright Before You Can Sue; Copyright Trolls & Hollywood Freak Out

from the oh,-poor-souls dept

17 USC 411(a) (part of US Copyright law) states the following:

...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

This is pretty clear. It also becomes important in a surprising number of situations and cases, including quite a few we've discussed just recently, such as the various copyright lawsuits over dances in Fortnite, where it appears that none of the "dances" were actually registered with the Copyright Office. Copyright trolls, also, are somewhat notorious for threatening lawsuits over works without any copyright registration at all.

So it's a bit bizarre that the Supreme Court even needed to weigh in on this, but there was a bit of technical confusion between a bunch of circuits as to whether or not you could sue as soon as you submitted a registration application, or if you had to wait until the Copyright Office issues the actual certificate of registration. While getting a registered copyright is mostly (though not entirely) a rubber stamp process by the Copyright Office, it still takes about six to seven months right now, though the Copyright Office has been upgrading its technology (after some earlier hiccups under the previous regime), and insists that before long the timing will be one of weeks, rather than months.

In a unanimous ruling, surprisingly written by Justice Ginsburg, the court ruled that the law is pretty clear and you have to wait until registration is complete and the certificate has been issued by the Copyright Office. It comes down to the Justices just reading what the law actually says and saying "um, that's pretty clear." Indeed, the ruling basically says the wording of the law wouldn't make any sense if it meant you just had to submit the application to be able to sue:

If application alone sufficed to “ma[ke]” registration, §411(a)’s second sentence—allowing suit upon refusal of registration—would be superfluous. What utility would that allowance have if a copyright claimant could sue for infringement immediately after applying for registration without awaiting the Register’s decision on her application? Proponents of the application approach urge that §411(a)’s second sentence serves merely to require a copyright claimant to serve “notice [of an infringement suit] . . . on the Register.” See Brief for Petitioner 29–32. This reading, however, requires the implausible assumption that Congress gave “registration” different meanings in consecutive, related sentences within a single statutory provision. In §411(a)’s first sentence, “registration” would mean the claimant’s act of filing an application, while in the section’s second sentence, “registration” would entail the Register’s review of an application. We resist this improbable construction.

As for the claims that by requiring a copyright holder to wait infringement can go on for a while, the Court points out that the law still lets them go after all that past infringement after getting the registration:

If infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as well as the infringer’s profits. §504. She must simply apply for registration and receive the Copyright Office’s decision on her application before instituting suit. Once the Register grants or refuses registration, the copyright owner may also seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringer to destroy infringing materials.

The court also takes a dim view on the idea that it takes too long to get the registration, and this could impact the statute of limitations on suing (three years):

Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act’s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Brief for Petitioner 41. Fourth Estate’s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register’s decision, even for infringement that began before submission of an application

Furthermore, Ginsburg notes that even if it's taking the Copyright Office a long time, that's an issue for Congress to deal with rather than the courts:

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. See GAO, Improving Productivity in Copyright Registration 3 (GAO–AFMD–83–13 1982); Registration Processing Times. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.

The surprising aspect of this is that Ginsburg wrote the decision. Historically, Justice Ginsburg has never seen a copyright case where she wouldn't support the more Hollywood-friendly interpretation. Whether you agree with Ginsburg on other issues or not, she's generally... awful on copyright with the infamous Eldred ruling being a key example (if you want to read a good half-book long rant about just how badly Ginsburg messed up nearly every aspect of the Eldred ruling, I highly recommend the book No Law, which has some choice words for that particular decision).

Still, this decision was a pretty straightforward reading of the statute, and in some ways builds on the basis that Ginsburg set forth in Eldred, in which she more or less says "hey, Congress can do what Congress wants regarding copyright." And here, Congress has said you need to register to sue.

What's amusing, though, is that this fairly minor step has Hollwyood and its friends completely flipping out about how much more difficult it's going to be to stop piracy. But this makes no sense. Once a work is out there, it's out there. It's not like being able to sue a few months earlier is going to stop works from leaking or being available. And suing is usually not the most efficient way to stop the spread of something anyway (the DMCA takedown process still works...).

Of course, those who should really be worried are the copyright trolls who got kind of complacent about these things over the past few years. As Fight Copyright Trolls first noticed, prolific copyright trolling operation Malibu Media, has already been hit with an Order to Show Cause in response to this case for suing over works where no registration had been made:

It is hereby ORDERED that Plaintiff show cause in writing by March 12, 2019, why its complaint should not be dismissed for failure to state a claim upon which relief can be granted — specifically, for failure to allege that registration or preregistration of the copyright claims at issue had “been made” prior to the filing of this action. 17 U.S.C. § 411(a); see Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 2019 WL 1005829 (U.S. Mar. 4, 2019). If Plaintiff fails to show good cause, or does not file anything by that date, the Court may dismiss this action without further notice to Plaintiff.

Anything that causes more problems for copyright trolls has to be a good thing.

Filed Under: applications, copyright, copyright office, copyright registration, copyright trolls, litgiation, registration, ruth bader ginsburg, supreme court
Companies: fourth estate, wall-street.com

Tim Berners-Lee Moves Forward With His Big Plan To Fix The Web By Bringing Back Its Original Decentralized Promise

from the good-to-see dept

Here we go. For years I've been talking about how we really need to move the web to a world of protocols instead of platforms. The key concept is that so much of the web has been taken over by internet giants who have built data silos. There are all sorts of problems with this. For one, when those platforms are where the majority of people get their information, it makes them into the arbiters of truth when that should make us quite uncomfortable. Second, it creates a privacy nightmare where hugely valuable data stores are single points of failure for all your data (even when those platforms have strong security, just having so much data held by one source is dangerous). Finally, it really takes us far, far away from the true promise of cloud computing, which was supposed to be a situation where we separated out the data and the application layers and could point multiple applications at the same data. Instead, we got silos where you're relying on a single provider to host both the data and the application (which also raises privacy concerns).

Despite some people raising these issues for quite some time, there hasn't been much public discussion of them until just recently (in large part, I believe, driven by the growing worries about how the big platforms have become so powerful). A few companies here or there have been trying to move us towards a world of protocols instead of platforms, and one key project to watch is coming from the inventor of the web himself, Tim Berners-Lee. He had announced his project Solid a while back: an attempt to separate out the data layer, allowing end users to control that data and have much more control over what applications could access it. I've been excited about the project, but just last week I commented to someone that it wasn't clear how much progress had actually been made.

Then, last Friday, Berners-Lee announced that he's doubling down on the project, to the point that he's taken a sabbatical from MIT and reduced his involvement with the W3C to focus on a new company to be built around Solid called inrupt. inrupt's new CEO also has a blog post about this, which admittedly comes off as a bit odd. It seems to suggest that the reason to form inrupt was not necessarily that Solid has made a lot of forward progress, but rather than it needs money, and the only way to get some is to set up a company:

Solid as an open-source project had been facing the normal challenges: vying for attention and lacking the necessary resources to realize its true potential. The solution was to establish a company that could bring resources, process and appropriate skills to make the promise of Solid a reality. There are plenty of examples of a commercial entity serving as the catalyst for an open-source project, to bolster the community with the energy and infrastructure of a commercial venture.

And so we started planning inrupt - a company to do just that. Inrupt’s mission is to ensure that Solid becomes widely adopted by developers, businesses, and eventually … everyone; that it becomes part of the fabric of the web. Tim, as our CTO, has committed his time and talent to the company, and I am delighted to be its chief executive. We also have an exceptional investor as part of the team.

I'm certainly hopeful that something significant comes of this, as it truly is an opportunity to move the internet into that kind of more distributed, less centralized/silo'd world that shows off the true power of the web. I have heard some grousing among some people that this is just Tim Berners-Lee just rebranding the concept of the Semantic Web that he started pushing nearly two decades ago, without any real traction. And, of course, there have been plenty of other attempts over the decades to build these kinds of systems. As it stands right now, there are a few other projects that are getting some traction, including the more distributed social platform Mastodon or some of the ideas that have come out of IndieWeb.

That said, we may finally be entering an era where both users and companies alike are recognizing the benefits of a more distributed web and the downsides of a more centralized one. So it really does feel like there's an opportunity to embrace these concepts, and it's good to see the founder of the world wide web ramping up his efforts on this. If it produces real, workable solutions, that would obviously be fantastic, but at the very least if it gets more people just thinking about these concepts, that would also be useful. So, this should be seen as big news for anyone concerned about the powers of the largest internet companies (especially if you're skeptical about government trying to step in to deal with those companies when they don't know what they're doing). While the details and implementation will matter quite a bit, it's exciting to see more movement towards a world in which the data layer is not just separated out, but where end users will be able to fully control that layer themselves, and potentially choose which apps can access what (and for how long). It certainly opens up a real opportunity to bring back the early promise of a truly decentralized web... and that would be a web built on protocols rather than centralized, silo'd platforms.

Filed Under: applications, control, data, decentralization, distributed web, protocols, silos, solid, tim berners-lee
Companies: inrupt

The Google Docs Lockout Fiasco & The Failed Promise Of The Cloud

from the this-is-not-the-cloud-we're-looking-for dept

While it wasn't always called "the cloud" people have been talking about and predicting the future of remote computing for the past few decades (and, sure, I know that in the early days of mainframes and terminals, that's how things worked, but I'm talking about in the modern internet era). And some argue that we've now finally reached the true age of the cloud. After all, tons of people can survive with most of their documents really stored in the cloud. Indeed, for many people, they have little use for much storage on their own computers (and, sure, I know some of you will get snooty and talk about how crazy that is, but the simple fact is that many people are not like you and don't need much in the way of local storage).

But, as I've said before, and will say again, I think by letting companies like Google and Amazon control "the cloud" we've actually missed out the real possible benefit of the cloud. The version that I had always pictured separated out the storage layer from the service layer. I've made this point in the past concerning online cloud music services (which are now pretty obsolete due to streaming services) where I'd prefer the ability to store all of my (legal) MP3s in one spot, and then point a music playing service at those files. Instead, every cloud music service required you to upload local tracks to servers somewhere, and you'd have to do it all over again if you switched. This is obvious lock-in for those services, but it's a pain for end users, and diminishes the possibilities for more innovative services.

The same is true in other areas as well. And I'm reminded of this due to a bug in Google Docs that hit some people earlier this week. When people went to access their docs, they were told they were locked out due to a "terms of service violation." This turned out not to be true (Google just fucked up in a way that "incorrectly flagged a small percentage of Google Docs as abusive, which caused those documents to be automatically blocked"). And, while this was a stupid mistake (that legitimately freaked out a bunch of people who rely on Google docs), it again highlights the problem.

Google Docs is a fantastic and useful service. But it would be a hell of a lot better if the service layer and the storage layer were separated. In the bad old days when I used Microsoft Word, I wouldn't want that app shutting down because it thought someone wrote an "abusive" letter. Why should that even be an option in Google Docs? And why should Google run both the service and the storage part? Why can't I store the doc somewhere else, and just point Google Docs to that storage, such that I can still get the same service, but Google has no right to deny me access to the documents I make?

Again, I understand the business logic behind this (lock-in!) and even some of the legal logic behind this (for example, in my music example, I'm sure that some would argue that a service playing from an accessible data store of (even legal) MP3s would infringe). But, out of all that, it feels like we've really missed out on the true promise of the cloud, in which we separate out the services from the data, and allow more and varied services to compete, without also claiming ownership and having the ability to block access to the data. This SNAFU with Google Docs only serves as another reminder of how problematic this can be.

Filed Under: applications, cloud, data, google docs, locked out, services, terms of service
Companies: google

The CIA Says Many Of Its Applicants Have Ties To Terrorist Organizations -- And That's Just The Ones The Vetting Process Catches

from the look!-an-actual-'insider-threat!'-I'll-get-my-camera! dept

Update: We've adjusted this post after realizing that the initial points were based on a misread. It's not 20% of all applicants, but rather 20% of a subset that were flagged. Apologies for any confusion.

Among the many things exposed by the leak of the intelligence agencies' "black budget" was this interesting factoid.

The CIA found that among a subset of job seekers whose backgrounds raised questions, roughly one out of every five had “significant terrorist and/or hostile intelligence connections,” according to the document, which was provided to The Washington Post by former National Security Agency contractor Edward Snowden.

The groups cited most often were Hamas, Hezbollah, and al-Qaeda and its affiliates, but the nature of the connections was not described in the document.

The NSA has recently announced its plan to investigate its contractors and perhaps cut loose 90% of its sysadmins as a result of one sysadmin walking out the door with thousands of highly classified documents. The government as a whole is also tackling its "insider threats," although its methods and definitions leave a lot to be desired, considering it seems to be more targeted at rooting out whistleblowers than actual threats.

But what's really interesting about this statement from the CIA is not so much how many applicants with ties to terrorists are looking for intelligence work. Every intelligence agency will have its fair share of spies and moles angling for a spot on the inside. No, the more interesting question would be: how many are already working for the CIA?

As we covered back in July, the process for vetting intelligence agency employees is severely broken, with contractors being caught interviewing dead people and, in the case of one enthusiastic but seriously useless employee, falsifying one out of three background checks -- 1,600 in total over a three-year period.

If the vetting process has serious (and systemic) problems, it's very likely that a few potential terrorists have already made their way inside. If so, then the insider threat "problem" is now an actual problem, and while the government instructs its employees to pursue people who just don't seem to be "team players," employees who could do real damage to the agencies -- and know how to keep their heads down -- remain free from scrutiny.

Filed Under: applications, cia, terrorists

Up Next, The Subaru App Store

from the click-click-vroom dept

Mobile-phone makers and operators are falling over themselves trying to launch their own application storefronts following the success of Apple's iPhone App Store. But they're not the only ones: Hughes Telematics, which makes in-car communications and computing systems, says the next generation of its technology, scheduled for release in 2010, will let people install apps in their cars. Ideas being kicked around now include a carbon-footprint calculator and remote-starting and monitoring software. There are lots of interesting possibilities here, but there's one stumbling block: most cars don't come with any ability to connect to the internet, making distribution difficult and limiting the apps' utility. Solving that issue would be huge, and open up a enormous opportunity for all sorts of new apps and features: streaming audio, traffic information, in-car music downloads and so on. Just as other platforms like mobile phones and computers have benefited from the addition of mobile data connectivity, so too will cars.

Filed Under: app store, applications, cars, iphone
Companies: apple, hughes telematics

Apple's Response To App Rejection Backlash? Ban Developers From Talking About It

from the digging-a-deeper-hole dept

As the backlash against Apple's arbitrary banning of apps it doesn't like (or which it feels competes) from the iPhone App Store continues, it appears that rather than come clean, Apple is going in the opposite direction. It's trying to impose its own monolithic tendency for silence on developers as well. That is, it's now imposing non-disclosure agreements on developer rejections -- telling them they cannot tell anyone that their apps have been rejected. Once again, Apple may discover that gagging developers on how Apple is screwing them probably isn't going to do much to endear those developers to the iPhone platform.

Filed Under: app store, applications, competition, iphone, nda, podcasting
Companies: apple

Apple Shuts Off Loophole For Podcaster App Developer; He Switches Over To Android

from the pissing-off-developers dept

We noted that Apple had recently started banning any kind of competitive app from the iPhone App Store, saying that various iPhone developers must be eagerly awaiting the launch of Google-powered Android phones. And, indeed, that seems to be the case for the developer of the Podcaster app, who has announced that he'll now develop the app for Android phones instead. The final straw, apparently, was Apple closing the workaround he was using to get the Podcasting app to users -- and doing so with no communication or explanation whatsoever. Apple may believe it can get away with treating developers this way when there's no serious competition in the marketplace, but they may discover that pissing off your developer community has pretty long-term negative consequences when that competition actually arrives.

Filed Under: android, app store, applications, competition, iphone, podcaster, useful
Companies: apple

Rejected From College Because Of Your Facebook Profile?

from the your-new-permanent-record dept

We've all seen the stories about potential dates or employers scanning your social network profiles to decide what they think of you, but what about your potential university? Slashdot points us to a study suggesting that 10% of universities now examine social network profiles as part of their efforts to evaluate applicants. And, in some of those cases, the profiles hurt candidates to the point of having admissions directors change their minds. Other universities claim that they don't think it's right to view such "personal" spaces, but you have to wonder if that view will change over time. Personally, I don't see anything wrong with universities doing this. They're used to just seeing a carefully controlled image of the student, and what's on their social networking sites may reveal a lot more useful info. However, it seems like students should at least be aware that this public display of information is being added to their "permanent record" for consideration at universities.

Filed Under: applications, college, social networks

Apple's Podcaster Block Backlash Getting Louder

from the not-so-good,-Apple dept

Apple is getting an awful lot of attention for blocking a podcasting app from the iPhone App Store because it competes with iTunes, and the more details come out, the worse it looks for Apple. In the original post on it, I had wondered, as an aside, if the app had useful functionality that Apple refused to provide -- and, indeed, that's the case. CNET is pointing out that the app is much more useful, since it lets you download podcasts directly to the iPhone -- something iTunes doesn't currently allow. Yet, Apple has no incentive to add this very useful feature, because it can just block out anyone who tries to do it for them. In the meantime, the developer of the app is forced to use a very limited workaround to offer the app to folks who want it (knowing that Apple could just come in and shut it down). Again, these moves are all well within Apple's right to do -- but it's going to piss off developers (and customers) if these sorts of activities keep up.

Filed Under: app store, applications, competition, iphone, podcaster, useful
Companies: apple

Apple Now Banning Potentially Competitive Apps From The iPhone

from the pissing-off-developers dept

Yet another day and yet another odd attempt by Apple to arbitrarily control what's in the App Store for the iPhone. A bunch of folks have submitted the news of a podcasting app that's been blocked because Apple claims it competes with iTunes. This should, of course, scare of iPhone developers even more than previous bans. After all, it means that should an app get particularly popular, Apple would most likely just create its own competing version and remove the popular app from the store.

While some are decrying this as being an abuse of power, Apple certainly has the right to do it. It's just not a particularly good long term strategy -- and likely to backfire badly. Pissing off your developers or making them worry isn't going to get very many good apps written going forward. Also, limiting competition is actually going to hurt Apple, because it no longer has anyone driving them to be better. What if this podcasting app had certain features that were really cool and useful -- and not available in iTunes? Right now, Apple has no incentive to include that functionality, thus making its own software worse.

In the meantime, you've got to imagine that a number of iPhone developers may be eagerly awaiting the launch of Google's Android platform which won't have such arbitrary restrictions.

Filed Under: app store, applications, competition, iphone, platforms, podcasting