Tenenbaum To Supreme Court: Let's Get This Constitutional Debate On Statutory Rates For Copyright Infringement Rolling

from the or-the-trolls-win dept

You may recall that, in the case of Joel Tenenbaum -- who is in a legal battle with some major lbels for file sharing -- a jury awarded the labels $675,000 for the sharing of just a few songs. The judge, Nancy Gertner, pointed out that this seemed unconstitutionally excessive and reduced the award to $67,500 -- knocking 90% off the jury's award. The appeals court in the case reinstated the original $675,000 on procedural grounds. It said that Judge Gertner jumped the gun in leaping to the constitutional question, rather than using remittitur, as had been done in the Jammie Thomas case. Remittitur would allow the RIAA to have the case happen all over again with a new jury. In the Jammie Thomas case there have already been three trials.

Tenenbaum, led by famed lawyer/law professor Charles Nesson, challenged the appeals court on all of this, but had that quickly rejected. As we noted at the time, Nesson seemed to (as he's done in the past) argue points unrelated to the specific legal questions at issue. This seemed like a bad way to go about things in a court of law, even if it may help in the court of public opinion.

The latest is that Tenenbaum/Nesson have filed to raise the issue with the Supreme Court. At least the argument here is a bit more focused on the requirement for remittitur, with Tenenbaum's team arguing that the statutory damages for non-commercial use is clearly a major Constitutional issue, and by forcing it through the remittitur process, all the courts are doing is pressuring people like Tenenbaum to settle, rather than ever allowing it to be judged on constitutionality. And that has consequences -- namely in enabling copyright trolls to shake people down, without ever allowing them to challenge the constitutionality of massive statutory damages.

I actually think this is a much more persuasive argument than I've seen from Team Tenenbaum in the past, but it seems unlikely that the Supreme Court will actually take the case on. I hope I'm wrong (and then, if I am wrong on that, I hope I'm wrong in my guess as to how it will come out, because this version of the Supreme Court doesn't appear to understand the issues around copyright law). Either way, we should find out soon enough.

I do think it's interesting that Nesson is using the copyright troll issue as part of the argument. Eventually, this or an issue like it will get to the Supreme Court, and hopefully the Justices realize just how damaging such practices can be:

They use the asymmetric cost of litigation to make defense by the individual economically irrational.

This Court should do everything it can to remedy this misuse of process. Its effects are not ended because the RIAA has ceased suing individuals. Others are using the legal structure and litigation tactics they have put in place.4 The weight of federal litigation is not a tool appropriately used to suppress legal challenge. The absence of cases pending in the federal courts highlights the problem: a deeply misshapen judicial architecture has been set in place. Without review, it is unfixable. The suppression of ability to challenge a process that is repeatedly producing appalling results, not circuit splits, is exactly why this case is worthy of this Court's present attention.

It's an interesting argument to get around the lack of a circuit split (conflicting rulings in different circuits, which is one of the key reasons why the Supreme Court agrees to hear certain cases). However, I just don't think the Court will think it's a big enough deal to jump on it, perhaps figuring that it can bounce back up eventually. Of course, that only underlines the point: for that to happen, it means years more of Tenenbaum's time wasted with this case. That seems unfortunate.

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The Sky Continues To Rise: EU Gross Box Office Returns And EU Film Production Both Hit Record Highs In 2011

from the embarrassingly-successful dept

Even though just about every objective statistic suggests otherwise, the copyright industries still take turns bemoaning the terrible toll that piracy is supposedly taking on their markets. So it's good to come across some official figures that suggest the contrary, particularly because in this case they come from the European Audiovisual Observatory—not a market research company, but a public service body. Here are the latest numbers for the European film industry:

2011 was a year of stabilisation at the European box office as the marked upward trend of GBO [gross box office] of the past two years slowed down significantly, resulting nevertheless in an overall year-on-year increase. Based on provisional data the European Audiovisual Observatory estimates that EU gross box office returns increased marginally by 0.7% from EUR 6.37 billion [$8.14 billion] to EUR 6.4 billion [$8.18 billion], still the highest level on record. Cinema attendance remained stable with an estimated 962 million tickets sold.

Note that this is no mere one-off -- the report speaks of a "marked upward trend" of the previous two years that has slowed down significantly, but is still there, leading to what it terms "the highest level on record". That's about box office sales, but maybe the European film industry itself is suffering under the onslaught of popular US movies? It seems not:

2011 saw European films claiming back market share which they had lost to US 3D blockbusters in 2009 and 2010. Based on provisional figures, estimated market share for European films in the EU climbed from 25.2% to 28.5% in 2011, back to the ‘pre-3D’ levels of 2007 and 2008. Market share for US films on the other hand fell from 68.5% to an estimated 61.4%. This would be lowest level since 2001.

The best result for a decade, then. Now, that's all very well, but might still be the result of a few anomalous European blockbusters that have distorted the figures. According to the European Audiovisual Observatory, that's not the case:

EU production levels continued to grow to 1,285 feature films in 2011, 59 films more than in 2010 and a new record high.

In other words, in 2011, Europe note only saw record box office receipts at cinemas, but also record indigenous film production. It's a little hard to see how anyone could try to spin that as another "piracy is destroying the European film industry, we must bring in tougher copyright infringement laws" story, but I'm sure the usual suspects will try their darnedest.

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

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Thank Twitter For Standing Up For User Rights

from the they-earned-it dept

We recently wrote about Twitter's decision to stand up for a user in court, fighting against a court ruling that said that a user has no proprietary interest in their own tweets and info, such that those users cannot contest a government attempt to subpoena information from Twitter. This is not the first time that Twitter has aggressively stood up for its users' rights against government excess -- in a world where that's quite rare. When the government comes calling, most companies roll right over. In response to this, the folks over at Fight for the Future have put together a petition page, asking people to sign up to thank Twitter. If they get 50,000 people to sign, they'll present Twitter with a medal for defending the internet (these medals are awesome).

Given that internet petitions are often done in protest of something or against something, I really like this idea of effectively getting people to sign on for something positive and celebrate a company that does its best to protect the interests of its users. If you agree, head on over and sign up to thank Twitter.

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DailyDirt: What Do You Remember?

from the urls-we-dig-up dept

Everybody at one time or another wishes they had a better memory. There are some techniques and memory exercises to help improve the way people memorize lists, but some things are just more memorable than others. Some research is starting to delve into why we remember some things but not others, and here are just a few interesting links that you might want to write down.

• An analysis of IMDB's memorable movie quotes could help figure out what makes well-written dialogue so catchy. Not surprisingly, the most popular catchphrases have unusual combinations of words and often express some pearls of wisdom. "Do. Or Do not. There is no try." [url]
• USA Memory Champ Ron White shows off how he memorizes the order of a deck of shuffled playing cards -- creating a unique sentence for each card that helps him remember how every card relates to its neighbors. He uses a spatial memory technique called method of loci, but it probably doesn't work for everyone (especially people who get lost a lot). [url]
• Children remember more than adults think they do, but nobody remembers their second birthday party. A study on the memories of Disney World revealed that 3 year old kids remembered a lot about the happiest place on Earth (even 18 months after visiting). [url]
• To discover more interesting articles on the human mind, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

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Darell Issa Puts Old Leaked TPP IP Text Up For Discussion

from the why-isn't-ron-kirk-doing-this? dept

We've written a few times now about Rep. Darrell Issa, and the Madison platform his office has set up to allow for crowdsourcing opinion on legislation and other government documents. He originally used it for his OPEN Act, but then later posted the text of ACTA as well. His latest move is to post the leaked text of the US's negotiating position on TPP. This is the same text that leaked out last year. It would be nice if the USTR did something like this itself with the latest text, but that's not how USTR Ron Kirk works. To him "transparency" is only sharing the text with big industry special interests, and declaring it a matter of "national security" if anyone else wants to see it.

Issa recognizes how this is dangerous to a functioning democracy, when our federal government is negotiating deals in back rooms, despite the fact they will have a massive impact on the public:

“At a time when the American people and Internet users all around the world are rightfully wary of any closed-door negotiations that could adversely impact their ability to freely and openly access the Internet, the Obama Administration continues to pursue a secretive, closed-door negotiating process for the Trans Pacific Partnership,” Issa said. “I have decided to publish the intellectual property rights chapter of TPP in Madison so that the public can provide input to those negotiating this agreement, and to push this Administration - and the federal government as a whole - to be open, transparent and inclusive when it comes to international intellectual property rights agreements that have potentially serious consequences for the Internet community.”

Again, it's great that he's added this text to the Madison platform, but it's disappointing that it's still the old leaked version, rather than anything more up to date. The version he posted is now 15 months old, and there have been a bunch of additional negotiations since then. Still, it's good to see others in the federal government trying to encourage discussion on this agreement, even if the USTR continues to hide in secrecy (unless you're a big corporate lobbyist, of course).

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In Which I Debate A Media Mogul Who Insists It's Crazy To Give Content Away For Free

from the more-opportunity-for-me dept

Last week, I went on PBS Mediashift's podcast to debate media mogul Steven Brill about the power of paywalls. Brill runs Press+, one of the first companies that built a business around setting up paywalls for publications. They focus on NYT/FT-like "metered" paywalls, where you get some content for free, but if you hit a certain number of pages, you're locked out unless you pay. Brill, whose company had to sell out to a much larger player recently (suggesting it's not as successful as he makes it out to be), insists during the episode that there is no way to make money giving away journalism content for free, and insists that advertising is no way to make money. You can hear our debate starting at around 18:45 on the podcast:

There was a lot more that could have been said if we'd had the time, but I found a number of his arguments bizarre. The internet represents a huge opportunity to grow and expand a business -- yet he's celebrating the fact that the sites who agree to put up the giant padlock he's selling are "only" losing a little bit of their traffic? This is the time to be investing in and growing traffic, because as soon as free competitors come along, and people realize they don't need to pay any more, what will these sites have left? They'll have less traffic, less advertising and less subscription revenue. That's no way to invest in the future.

Separately, there was a nonsensical story about a journalism student who might get hired for a publication, but if that publication gives away its content for free, she can't pay her rent any more. I have no time for arguments like that. If she got hired, she has a salary. If a publication is giving away content for free that doesn't mean it makes no money or has no business model. Arguments like that suggest someone who has no real argument.

I am sure that the publications -- mostly regional newspapers -- that are using Press + are successful in slowing the rate of churn. Some paper subscribers probably agree to do a bundled package for the time being, getting paper and digital access. But it's not a long term solution. Perhaps for people of Brill's generation, it makes sense, but I don't know many people under 40 who subscribe to a local newspaper any more. There's more and more info available for free online. And there are growing opportunities to provide more such info.

Advertising is a tough way to make a living, but no one says it's the only way to make money online. There are lots of creative ways to make money online that don't involve pissing off your userbase and limiting what they can do. When you do that, you make the content that much less valuable, and that's no way to run a business.

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Dutch Judge's Anti-Piracy Activities Draw Accusations Of Corruption In Pirate Bay Censorship

from the conflicts-of-interest dept

We were a bit surprised last week to hear that a court in the Netherlands had ruled that the Dutch Pirate Party had to censor itself, when it came to explaining to people how to use proxies to get around The Pirate Bay block. At some point such censorship needs to be seen as a fundamental violation of human rights. If you are going to block a website, that's one thing. But blocking a political party from demonstrating the ridiculousness of such a block by ordering them not to talk about it? You're just asking for trouble.

However, we should have remembered that we've seen this kind of thing in the past in the Netherlands. A couple years ago, a court blocked the usenet community site FTD. FTD did not host any infringing content. It did not offer torrents of any infringing content. It was simply a community offering that some people used to post information on where you could find infringement. And for that, it was blocked. And yet... some people noticed at the time that the judge in that case taught "anti-piracy" classes, where the person running the events was the lawyer representing the entertainment industry in that same case.

Guess what? Turns out the judge in this case was that exact same judge, leading Pirate Party founder Rick Falkvinge to accuse him of beiing "not only corrupt, but textbook corrupt." Don't they have conflict of interest rules in the Netherlands?

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TV Network Execs Contemplate Going To Court To Say Skipping Commercials Is Illegal

from the that-won't-go-over-well dept

Late last week Charlie Ergen and the folks at Dish Networks presented the TV networks with a bit of a conundrum. You see, the company decided to actually give consumers what they want: setting up a special DVR system, called Auto Hop, that would let viewers not just automatically DVR the entire primetime lineup of all the major networks with the single push of a button -- but also to automatically skip commercials when watching the playback, as long as it wasn't the same day the shows aired. This is something that consumers clearly want -- which Dish execs were pretty upfront about:

“Viewers love to skip commercials,” Vivek Khemka, vice president of DISH Product Management, said in a statement

But, of course, who is a consumer in this market gets complicated pretty fast. The TV networks, of course, make a fair bit of money from advertising on these shows, and they're not happy about any idea that means people might skip commercials. Those of you who have been around for a bit may recall a few relevant stories. First, there was Jamie Kellner, the former chair of Turner Broadcast Systems, who once claimed that walking away from your TV while commercials aired was a form of theft. Then, of course, there was the famous ReplayTV case. If you don't recall, ReplayTV was an early competitor to TiVo, and in many regards a better product. Among its features, it took an already considered legal feature from VCRs called "commercial skip" and added it to DVRs. The industry sued, in large part because of this feature, which they considered to be breaking the law.

Of course, the expense of the lawsuit resulted in Replay's parent company SonicBlue declaring bankruptcy. It then sold off the remains to D&M, who tried relaunching a version of the product without all the cool features people liked, and it went nowhere. Eventually, DirecTV bought the remnants. However, the basic lawsuit died out with the bankruptcy. A bunch of ReplayTV users, led by Craig Newmark from Craigslist, actually tried to continue the case on their own, to have those features declared legal, but after the networks promised not to sue those users for using the features, the judge tossed the case.

Left unresolved, of course, is whether or not features like commercial skip are actually legal.

As some are pointing out, the TV networks may have missed a golden opportunity by not continuing the fight against Craig and the other users, since they wouldn't be able to afford the bigtime lawyers that Ergen and Dish can easily toss out here. So the TV networks basically have to make the decision if this is really a battle worth fighting.

It does seem clear that the anti-consumer folks who run the TV networks would certainly like to slap Dish around for this move:

"I think this is an attack on our eco-system," said NBC Broadcasting chairman Ted Harbert on a conference call Monday. "I'm not for it."

Isn't it just like NBC to think that a tool that the public actually finds useful is an "attack" on their ecosystem? At some point, in the way, way distant future, perhaps we'll live in an age where companies like NBC Universal recognize that, when things are more efficient and easier for consumers, it is a good thing, rather than something to freak out about and declare evil?

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FBI Explores The Implications Of Bitcoin

from the why-that's-so-2011 dept

Remember Bitcoin? The online cryptographic currency that got a lot of attention last year, but quickly faded? There was some political grandstanding against it, like when Senator Chuck Schumer declared that Bitcoin was a form of money laundering. And, now, the FBI is trying to understand Bitcoin, sending around a document warning that criminals might (*gasp*) use Bitcoin.

The report is pretty even-handed, actually. It notes that there's a reasonable likelihood that "malicious actors will exploit Bitcoin to launder money." However, it at least admits, noting that this is no different than cash, that users of Bitcoin "value the currency for many of the same reasons people trust Federal Reserve notes: they believe they can exchange the currency for goods, services or a national currency at a later date." It does highlight some "unique features" that make Bitcoin especially suited for illegal activity -- but most of those just seem to be examples of Bitcoin being used for questionable activity, rather than specific features of Bitcoin.

It also suggests that the FBI isn't that worried about the fact that some uses of Bitcoin can be anonymous -- noting (correctly) that it's not as anonymous as some people think, and good old fashioned detective work can often uncover the people:

Although Bitcoin does not have a centralized authority, the FBI assesses with medium confidence that law enforcement can discover more information about, and in some cases identify, malicious actors, if the actors convert their bitcoins into a fiat currency. Thirdparty bitcoin services may require customers to submit valid identification or bank information to complete transactions. Furthermore, any third-party service that qualifies as a money transmitter, and therefore a MSB, must register with the FinCEN and implement an anti-money laundering program.

All in all, I actually expected more hyperbole and fear mongering, but seeing as this was meant for internal use, rather than for political gain, it seems like the paper was pretty even-handed. Of course, none of that matters at all if no one is using Bitcoin any more...

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If You Meet A Censor, Ask Why They Haven't Become Moral Degenerates Themselves

from the simple-questions dept

Last year, we wrote about one of China's chief censors, the creator of the Great Firewall of China, who did an interview where he talked about how important censorship was to protect people -- while also noting that he, himself, had five VPN accounts to get around the Great Firewall... for research purpose only (he promised). I'm reminded of this while reading an interview with a Kuwaiti censor who seems quite proud of her role in keeping horrible content from being consumed by people in Kuwait -- while also talking about how much she gets to learn in reading all this content.

I found out about this interview from Adam Thierer, who has a simple question he thinks every censor should be asked:

But here’s where the reporter missed a golden opportunity to ask Dalal the one question that you must always ask a censor if you get to meet one: If the content you are censoring is so destructive to the human soul or psyche, how then is it that you are such a well-adjusted person? And Dalal certainly seems like a well-adjusted person. Although the reporter doesn’t tell us much about her personal life or circumstances, Dalal volunteers this much about herself and her fellow censors: “Many people consider the censor to be a fanatic and uneducated person, but this isn’t true. We are the most literate people as we have read much, almost every day. We receive a lot of information from different fields. We read books for children, religious books, political, philosophical, scientific ones and many others.” Well of course you do... because you are lucky enough to have access to all that content! But you are also taking steps to make sure the rest of your society doesn’t consume it on the theory that it would harm them or harm public morals in some fashion. But, again, how is it that you have not been utterly corrupted by it all, Ms. Dalal? After all, you get to consume all that impure, sacrilegious, and salacious stuff! Shouldn’t you be some kind of monster by now?

Thierer goes on to posit that the "Third-Person Effect Hypothesis" explains the issue. It says that "people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others," while assuming, however, that they are somewhat immune to those effects. It's an interesting post, and that question should be used whenever anyone has the pleasure of meeting (or better yet, interviewing) an official government censor.

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Who Needs SOPA When Courts Will Pretend SOPA Already Exists?

from the seems-unfortunate dept

Back in November, we wrote about one of a series of cases we had seen where trademark holders were going to court with a list of domain names that they insisted were selling counterfeit goods and getting the courts to issue injunctions that appeared to be quite similar to what SOPA would have allowed had it passed. That is, basically upon request, a trademark holder was able to get domain registrars to kill domain names, while forcing search engines and social networks to put in place blockades barring such sites from being listed. It appears that more trademark holders are taking notice. Jeff Roberts has the story of (regular IP extremist) Louis Vuitton trying the same thing.

Basically, it lists out a bunch of websites that may or may not be involved in the sale of infringing works. Most, if not all of them, are foreign run. However, it is seeking a full injunction against those sites, not just to get them to stop selling any counterfeit goods, but to get the domains themselves turned off, and to block search engines from being able to find them:

Entry of an order requiring the Subject Domain Names, and any other domain names being used by Defendants to engage in the business of marketing, offering to sell and/or selling goods bearing counterfeits and infringements of the Louis Vuitton Marks to be disabled and/or immediately transferred by Defendants, their Registrars and/or the Registries to Louis Vuitton’s control so they may no longer be used for illegal purposes.

Entry of an Order that, upon Louis Vuitton’s request, the top level domain (TLD) Registries for the Subject Domain Names and their administrators place the Subject Domain Names on Registry Hold status, thus removing them from the TLD zone files maintained by the Registries which link the Subject Domain Names to the IP addresses where the associated websites are hosted.

Entry of an Order that, upon Louis Vuitton’s request, those in privity with Defendants and those with notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars and domain-name registries or their administrators that are provided with notice of the injunction, cease facilitating access to any or all domain names and websites through which Defendants engage in the sale of counterfeit and infringing goods using the Louis Vuitton Marks.

Entry of an order that, upon Louis Vuitton’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the Registrars and the top level domain Registries or their administrators responsible for the Subject Domain Names transfer, change the Registrar of Record, and/or disable the Subject Domain Names as directed by the Court.

As we noted back in the fall, there are all sorts of problems with these kinds of rulings (assuming that the South Florida court in this case follows the lead of previous courts). First of all, it's not clear under what authority the courts can issue such broad injunctions. Second, there are serious jurisdictional questions. But the biggest issue of all is that the court seems to be requiring non-parties to the litigation to take pretty drastic action: requiring search engines and domain registrars to effectively kill sites with little in the way of review or recourse. Now, it's likely that most -- or perhaps all -- of the sites in question are selling counterfeit goods. But how long do you think it will be until others use these cases as precedent for taking down all sorts of sites -- even those that are perfectly legitimate?

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Fearmongering About Cyberwar And Cybersecurity Is Working: American Public Very, Very Afraid

from the for-no-clear-reason dept

Well, it looks like all the fearmongering about hackers shutting down electrical grids and making planes fall from the sky is working. No matter that there's no evidence of any actual risk, or that the only real issue is if anyone is stupid enough to actually connect such critical infrastructure to the internet (the proper response to which is: take it off the internet), fear is spreading. Of course, this is mostly due to the work of a neat combination of ex-politicians/now lobbyists working for defense contractors who stand to make a ton of money from the panic -- enabled by politicians who seem to have no shame in telling scary bedtime stories that have no basis in reality.

But it's all working. And, by working, I mean scaring the public unnecessarily. As reported by Wired, a new survey from Unisys finds that Americans are more worried about cybersecurity threats than terrorism, and they seem pretty worried about those threats. When asked about which security issues were the highest priority, survey respondents noted:

1. Protecting government computer systems against hackers and criminals (74 percent)
2. Protecting our electric power grid, water utilities and transportation systems against computer or terrorist attacks (73 percent)
3. Homeland security issues such as terrorism (68 percent)

Of course, it's likely that the vast majority of the American public has absolutely no idea what the actual risk is of any of these things happening. But they are familiar with computers, and there's been a lot of talk about cybersecurity lately, so "ooooooh, scary!" Now, here's where the mainstream press could come in and point out the lack of evidence for any real or significant cybersecurity threat and help people realize that they might be best off focusing their attention elsewhere. But talking about planes falling from the sky is much more fun.

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Very Few Companies Fight Back Against Patriot Act Gag Orders

from the sad-to-hear dept

A few years ago, when we wrote about Nicholas Merrill's successful fight to reveal that his ISP had been gagged by a "national security letter" (NSL) from the FBI, we noted that "For every Nicholas Merrill, you can bet that thousands of others just gave in and didn't put up a fight -- even if the requests were bogus." It appears that was absolutely true.

Wired reports that, in the past few years, since the FBI was told it needed to at least tell companies they could challenge the gag order on NSLs, only four challenges have been issued on over 50,000 NSLs. In two of the four cases, the FBI backed down and let the company notify the individual. As Wired notes, it had asked the FBI the same question a couple months ago, and the FBI claimed (incorrectly) that "there are no stats" and suggested that no one had challenged it other than Merrill.

Remember, NSLs are requests from the government (along with a gag order), but they are not subpoenas nor do they have any real oversight. Yet the FBI gets to issue tens of thousands of them, asking companies for information -- and imposing a strict gag order on them -- and most companies just roll over and do it.

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US Government Gets 10% Royalty On 'Passion Of The Christ' Prequel In Plea Deal With Mexican Drug Smuggler

from the say-what-now? dept

This story is just bizarre. Sinkdeep alerted us to the details, which seem to make a better story for a movie than the script at the heart of this story. Let's start from the beginning. You've got Benedict Fitzgerald, who wrote the screenplay for The Passion of the Christ, the controversial Mel Gibson movie that made over $600 million. Fitzgerald apparently wrote a "prequel" script to that movie, called Mary, Mother of Christ. However, at some point, Fitzgerald ran into some money trouble, and in defaulting on a $340,000 business loan from a company called Macri, he ended up giving the script to Macri's owner, Arturo Madrigal. Okay, so now Madrigal has the script... but not for long.

Jorge Vazquez Sanchez, a smuggler for Mexican drug cartel, apparently hatched a plan to extort the script out of Madrigal. This was done by having some "associates" kidnap Madrigal's brother, in Mexico. In exchange for his release, Madrigal agreed to hand over the rights to the script. Vazquez, script in hand, somehow then sold the screenplay to a Hollywood production company now known as Aloe Entertainment (then known as Proud Mary Entertainment) for close to $1 million with a 10% royalty on any profits from the movie. From there, Aloe was able to get the wheels moving on a full on production, with famed pastor Joel Osteen acting as exec producer. Filming was expected to happen later this year.

Throwing a bit of a wrench into all of this is that the US government came down on Vazquez for his various illegal activities, leading him to cop a plea deal in which he gave the US government the 10% royalty rights in the screenplay. He also had to plead guilty for money laundering and extortion. But in giving the feds his cut of the profits, he may have decreased his jail time from 40 years down to 7.

Of course, the story doesn't end there. Apparently, minutes after officially making the plea in court (while still in court), Madrigal slapped Vazquez with a lawsuit of his own, saying that Vazquez had no right to sell the screenplay to Aloe in the first place, and he wants the rights to the script returned. Indeed, it would seem that the script and the deal are ill-gotten gains.

What's really bizarre here is the feds role in all of this. First of all, why would it ever want a cut of the profits in a Hollywood movie? Second, wouldn't it realize that the movie rights were obtained through illegal means -- and shouldn't it then have been the responsibility of the feds to return the rights to the script back to Madrigal? Either way, it seems pretty bizarre that the Justice Department appears to have given this guy a deal for a much lower jail sentence in exchange for some profits from a Hollywood movie the US attorneys had to know the guy had no right to.

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UK ISPs Are Already Planning To Offer Porn Filters -- So Who Needs New Legislation?

from the isn't-this-how-it's-supposed-to-work? dept

Last week Techdirt wrote about the possible introduction of an "opt-in" license to view porn online in the UK. As we noted then, there is nothing to stop parents from installing their own filters to block access to certain kinds of Web sites now. But it seems that soon, they won't even have to do that:

There’s a report in today’s Sunday Times that ISP TalkTalk is planning to offer an "adult" filter to all its customers. The "HomeSafe" system will, according to the report, block websites that are considered unsuitable for the under-18s. That isn’t just porn, but also includes self-harm, drugs and violence. Other major consumer ISPs, such as BT, are working on their own systems but don’t have them ready yet.

This is precisely how the market is supposed to work: if there is demand for something that is not currently on offer, then businesses will develop new products to meet that demand.

What’s interesting about today’s report, though, is that a spokesman from TalkTalk is quoted as saying that offering filters to new customers has increased customer retention. It seems that their customers do want them, and are more likely to stay with TalkTalk if they’ve got them.

That means that rather than incurring costs for imposing censorship on everyone unless they opt out, as the UK government may require, ISPs could instead make money through reduced churn by giving customers something they want.

As the author of the article quoted above, Mark Goodge, points out:

It also gives the lie to two other common claims made by pro-compulsion campaigners: that ISPs are irresponsible and parents don’t care, and the only solution to both of those is legislation. In reality, a lot of parents do care about what their children are accessing on the Internet, and will choose to use a system which does screen out the worst of it if that option is available. And ISPs are responsive to consumer demand, so they’re choosing to offer that to their customers.

It's particularly ironic that it should be the UK's Conservative Party that is contemplating this move. It generally prides itself on promoting business and minimizing government interference in people's lives; here, it is doing the exact opposite.

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

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Chile Threatens To Drop Out Of TPP Negotiations Due To Ridiculous US Demands About IP

from the backlash dept

You may remember that some officials in Chile recently began wondering what benefit they would get from agreeing to be a part of TPP. It seems that view is going even further. There was just another negotiating round and it appears (as we've expected, but don't know for sure because the US negotiators, led by Ron Kirk refuse to be even remotely transparent) that the US's strong position on IP is scaring off Chile. A high level government official is now saying that the country is considering pulling out of the TPP negotiations unless the US "significantly moderates its intellectual property demands." The article suggests that Chile is willing to move forward with much of the rest of the agreement, but the ridiculous USTR position on IP is giving it reason to be concerned.

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They're Not 'Orphan Works', They're 'Hostage Works'

from the time-to-liberate-them dept

Words matter -- just think of the number of times flame wars have broken out in Techdirt's comments over whether you can "steal" music or films. But one phrase that nobody really questions is "orphan work". And yet, as Lydia Pallas Loren points out in a brilliant paper, this is a loaded term with a very particular agenda:

In the metaphor of the romantic author, the works he creates are his children, born of his labor and genius. He is given rights to control, and thus protect, his children. Calling works for which the copyright owner cannot be located "orphans" pulls on that metaphor and triggers the concerns any humane person would have toward abandoned children. These orphans have suffered the tragic loss of their parent. These are works whose parents have been lost or killed. We reflexively begin to believe that orphan works need the kind of protection that society provides to abandoned children.

Although that orphan metaphor sounds innocent enough, Loren believes that it is one of the reasons why it has proved so difficult to pass orphan works legislation:

The perceived evils of the world are multifold and include Dickensian images: bleak orphanages, barren workhouses, and street gangs assembled by Artful Dodger of Oliver Twist, where the unfortunate children are put to work for commercial entities exploiting whatever commercial life is present in the child. These orphan exploiters fail to invest in or care for the children properly, underfeed them, and yet usurp the work-value of the orphan child. This implied narrative of the potential abuse of orphans has impeded the passage of orphan works legislation.

It's a brilliant explanation, and leads Loren to suggest an alternative, provocative metaphor: not "orphan works", but "hostage works":

When viewed as a "hostage work problem" it becomes clear that these works do not need foster parents or protection against inappropriate exploitation -- the end result of an orphan metaphor. Nor do these works need new owners -- the end result of a metaphor of abandoned or neglected property. What these works need are "special forces" that can free them from the constraints placed on them by the combination of the regulatory effects of copyright and the lack of a locatable owner who can grant permission to avoid the consequences of the regulation.

Pursuing that metaphor, she suggests that "special forces" who liberate those hostages should be granted immunity from legal action by any owners of those works that eventually turn up, provided the former meet two criteria:

First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. Why negligence is the right standard and what might constitute negligence is explored more fully below. Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.

That's clever, because it ensures that the "special forces" who liberate the hostage works can't simply imprison them again, but must set them free in the form of open access copies.

It's a wonderful solution employing a thought-provoking metaphor, and I urge you to read the full paper. It provides a full exploration of the legal details of how it might work -- if only people could look beyond the misleading perspective of "orphan works", and see them as "hostage works" instead.

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What If There Was A Music Collection Society That Actually Understood That Free Isn't Always Bad?

from the well,-here's-a-shot dept

In the US we have three main music collection societies for performance rights (ASCAP, BMI and SESAC), and then SoundExchange for satellite/online streaming. However, many other countries just have a single collection society, with somewhat monopolistic tendencies. There have been efforts (mostly failed) to create more competition in Europe, mainly by encouraging the organizations to leave their local country and work across Europe. There have been precious few new entrants, however. At least one group is trying to change that -- and they're doing so by embracing the internet and the concepts of free culture. C3S, or the Cultural Commons Collecting Society is trying to enter the market in Europe in a much more culture-friendly manner:

C3S is a collaborative effort to found a new and ground-breaking European collecting society for musical creators to register their works outside of traditional schemes, released under free licences for commercial exploitation. More than just for works published under Creative Commons Licences, C3S is open for other free licences as well.

The new operation wants to encourage free distribution for non-commercial use, and a much more reasonable (and appealing) deal for both musicians and consumers. Just the fact that the organization has to make it clear that members are encouraged to make use of free licensing is an amazing step forward. Compare that to organizations like GEMA that have tried refusing to recognize Creative Commons licenses, and operations like ASCAP, who insist that Creative Commons is threat to musicians, rather than a useful tool. Who knows if C3S will go anywhere, but it's nice to see that it's at least being tried.

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DailyDirt: I'm Free... Free-Falling

from the urls-we-dig-up dept

There's been a bit of a resurgence in interest for manned spaceflight because the costs of launching vehicles to the edge of space aren't ludicrous anymore, just outrageously expensive. Despite the advances in rocket launching systems, there's always a chance that something could go wrong -- so ejecting escape pods at high altitudes seems like a good idea, right? Only a handful of people have even attempted to skydive from more than a few miles up. By the end of this year, though, a couple brave souls could set some skydiving records and pave the way for a new extreme sport.

• Felix Baumgartner is planning a free fall jump from an altitude of about 120,000 feet (~23 miles up). If it all works out, he'll break the sound barrier, traveling over 700 miles per hour. [url]
• Michel Fournier has attempted to skydive from about 25 miles up, but he seems to have run into a series of problems. Fournier is in his 60s, so he doesn't have too many more years left to cross this goal off his bucket list. [url]
• Air Force Captain Joseph Kittinger holds the current record for high altitude skydiving -- at 102,800 feet -- from a jump he made in 1960. The Cold War really encouraged some crazy stunts.... [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

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Harvard And MIT Back Open Education With $60 Million Online Learning Project

from the another-tipping-point? dept

News that Harvard University is the latest to join the growing revolt against the exorbitant pricing of academic journals caused something of a stir recently -- although it has been pointed out that its case would be stronger if it followed its own advice and made the Harvard Business Review open access, or at least cheaper.

But here's an area where Harvard, together with MIT, is being more pro-active in helping to make knowledge more widely available online:

EdX is a joint partnership between The Massachusetts Institute of Technology (MIT) and Harvard University to offer online learning to millions of people around the world. EdX will offer Harvard and MIT classes online for free. Through this partnership, the institutions aim to extend their collective reach to build a global community of online learners and to improve education for everyone.

EdX will build on both universities’ experience in offering online instructional content. The technological platform recently established by MITx, which will serve as the foundation for the new learning system, was designed to offer online versions of MIT courses featuring video lesson segments, embedded quizzes, immediate feedback, student-ranked questions and answers, online laboratories and student-paced learning. Certificates of mastery will be available for those who are motivated and able to demonstrate their knowledge of the course material.

MIT's MITx platform already offers some MIT courses online, and is open source:

EdX will release its learning platform as open-source software so it can be used by other universities and organizations that wish to host the platform themselves. Because the learning technology will be available as open-source software, other universities and individuals will be able to help edX improve and add features to the technology.

The hope is that other universities will join with Harvard and MIT to make EdX one of the primary platforms for online learning. Interestingly, it will also be used to research how people learn using digital technology -- and how it can be deployed more effectively:

MIT and Harvard will use the jointly operated edX platform to research how students learn and how technologies can facilitate effective teaching both on-campus and online. The edX platform will enable the study of which teaching methods and tools are most successful. The findings of this research will be used to inform how faculty use technology in their teaching, which will enhance the experience for students on campus and for the millions expected to take advantage of these new online offerings.

This looks like an important move for online learning, not least because of the scale of the financial support:

The initiative will be overseen by a not-for-profit organization based in Cambridge, Mass., to be owned and governed equally by the two universities. MIT and Harvard have committed to a combined $60 million ($30 million each) in institutional support, grants and philanthropy to launch the collaboration.

Those funds and the projects they will catalyze could boost efforts to make university courses more widely available, complementing the growing success of open access in opening up published materials.

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