Would Google Be Liable Under The Pirate Bay Ruling?

from the answer-is-hazy dept

Michael Carrier, a law professor specializing in intellectual property law, was kind enough to let us know about a paper he recently wrote analyzing the Swedish court's ruling in The Pirate Bay Case, and seeing how the reasoning set forth might apply to two other services: Grokster and Google. Grokster, of course, was a key player in a similar US lawsuit, that eventually resulted in the service shutting down. While many believe that the Supreme Court said Grokster was illegal, in reality, the ruling on the case only found that Grokster could be liable as a third party. Grokster itself settled before the lower court could rule on the issue, though co-defendant Streamcast was eventually found liable.

Carrier's analysis suggests that the Swedish ruling over The Pirate Bay did not go into nearly enough detail on why it made its ruling. Many of the explanations are quite vague, and could be broadly applied to other services. The most interesting part of the paper looks at how Google would fare under the same conditions -- and it finds that while Google has some distinct differences from The Pirate Bay, one could read the ruling in such a way that it absolutely would apply to Google as well -- which has troubling implications. At the very least, it suggests that the Swedish court did not fully understand the technology or the implications of such a ruling, and was more influenced by the fact that it seemed like The Pirate Bay must be bad, and therefore decided to support that in the ruling. But without carefully highlighting why The Pirate Bay is different than Google, the ruling is too vague and potentially dangerous.

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Music Publisher Suddenly Claims 80s Australian Pop Hit Infringed On 1930s Kids Tune

from the i-come-from-a-kookaburra-down-under dept

Mick was the first of a few folks who sent in this story about how an Australian music publishing firm, Larrikin Music, is suddenly accusing the Australian band, Men At Work, of "ripping off" a 1930s popular Austrlian children's song, "Kookaburra" with their hit song "Down Under." Why did it take so long? Well, Larrikin only gained the copyright in 2000, but that's still 9 years of nothing. Apparently, they only noticed the similarities when an Australian quiz show brought it up -- which certainly raises questions about any "harm" done by this (if there was any actual copying). Once again, like similar stories (such as the Coldplay/Satriani/Creaky Boards/Cat Stevens battle), it's difficult to see why this even matters. Even if the songs are similar, it's not as if one makes the other any less valuable. If anything, it's only served to drive more attention to the similar songs. This is nothing more than a music publishing company desperate for cash grasping at straws to demand cash from others who have been more successful.

Anyway, for comparison's sake, here's a group of kids singing Kookaburra:

And here's the song Down Under: Can anyone tell the difference?

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Yet Another Copyright Lobbying Group Caught Infringing

from the always-seems-to-happen... dept

These days, it's nearly impossible not to infringe on copyright in one way or another during your regular day -- but it's always amusing when big-time copyright supporters are caught infringing (and it seems to happen quite frequently). The latest is musicFIRST, the lobbying group funded (potentially illegally) by the recording industry, which has been pushing a campaign claiming that radio is piracy and demanding that radio stations pay even more royalties than they already do.

But, of course, when it comes to licensing or paying royalties itself... well, you know... that's a different story.

Billboard has noticed that MusicFIRST appears to have quoted the entire lyrics to the Beatles song "We Can Work It Out" in a mocking press release it put out earlier in the week -- but failed to get the necessary license. Now, of course, many of us believe that quoting lyrics like that is perfectly reasonable fair use. But... the recording industry (you know, the folks behind MusicFIRST) doesn't believe that, which is why they've shut down plenty of people for posting lyrics on the web and even thrown people in jail for posting lyrics on the web.

But, when they do it? It's fine? Funny how that works...

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DC Bar Association Claims Lawyer Rating Site Infringes Its Copyright

from the oh-come-on dept

There's been no shortage of stories about misplaced anger (and sometimes lawsuits) filed against all kinds of rating sites lately, and the latest situation is equally questionable. Against Monopoly points us to the news that the Washington DC Bar Association has sent a cease-and-desist letter to lawyer-rating site, Avvo, claiming that Avvo's use of information on the DC Bar's website violates copyright and privacy rights. It would be great if some lawyers chimed in, but I have a hard time seeing either claim making any sense. On the copyright side, the information appears to mostly be factual information, which isn't covered by copyright. On the privacy side (and local privacy laws do differ), if the information is public information, it's difficult again to explain how anyone's privacy is being violated. It seems like yet another attempt by folks who just don't like being rated to try to come up with something (anything!) to shut the site down, rather than figuring out ways to work with the provider and improve their own quality.

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Can A Link, By Itself, Be Copyright Infringement?

from the someone-please-explain dept

A report in Billboard Magazine mentions that the IFPI and the MPA (the global versions of the RIAA and the MPAA respectively) have successfully been able to get ISPs in Mexico to take down 35 blogs which they say contributed to music and movie piracy. Specifically, they charge that the blogs had thousands of "infringing links." Of course, that leads to a rather obvious question: what the hell is an "infringing link"? Is it a link to infringing content? If so, then Google and pretty much any search engine is equally guilty. Simply linking to something, by itself, is not and should not be considered infringement.

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AP Demands Money For Iconic Obama Poster Image

from the asking-for-a-fight dept

Just last week, we wrote about the question of whether or not the iconic image used on Obama posters that was created by street artist Shepard Fairey was copyright infringement. For a while, no one (including Fairey) could figure out what photo was the basis for the image. But a photojournalist tracked it down, and discovered it was by a photojournalist named Mannie Garcia, who was doing work for the Associated Press at the time. Garcia didn't mind at all, but as we noted in our post, the AP might take a different view on things, since it's so aggressive with copyright. However, even we thought the AP wouldn't be so stupid as to actually demand payment for the use of the image... but we were wrong.

Yes, the Associated Press is now claiming that the use of its image is copyright infringement and is demanding payment. Of course, it's probably worth pointing out that, until a week and a half ago, the AP had no idea that the poster was made using one of its images. If that's not a transformative (i.e., allowed) use of the image, it's difficult to say what is. Given the posturing on both sides, it doesn't look like Fairey (who's smartly being represented by Stanford's Fair Use Project) is going to back down. Hopefully, the Associated Press is finally taught what fair use means. It could use the education.

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Copyright Infringement And Obama's Iconic Campaign Poster

from the life-in-an-age-of-copyright dept

In one of my meetings last week in Washington DC, during a discussion on copyright, someone mentioned (in an offhand manner) that I should look into the copyright questions surrounding the rather iconic Barack Obama campaign poster that, by now, you've probably all seen:

However, as many (though not all) people know, this poster was not created by the campaign, but a street artist named Shepard Fairey, who admitted that he just grabbed a photo of Obama from Google Images in order to create the photo, but had no idea who had actually taken the photo. Thus, as was pointed out to me, technically, all of those posters were almost certainly violating someone's copyright. It was an interesting question, but before I even had a chance to look into it, one of our readers, Mark Rosedale, sent in a story about exactly this question. Apparently, after some research, a photo journalist from Philadelphia named Tom Gralish had tracked down the original photograph -- complete with a copyright credit to freelance photographer Mannie Garcia, who was apparently on assignment from the Associated Press in 2006 when he took the following photo: The good news, of course, is that, in a follow up, Garcia seems perfectly happy that his photo was used, and not at all upset: "I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work." In fact, he admits he did not even realize that his own photo was the inspiration, though, he says "it always seemed so familiar." He does admit: "I wouldn't mind getting a signed litho or something from the artist to put up on my wall."

Still, there may be some unresolved questions here. Considering that the work was done for hire by the Associated Press, it's possible that the AP might actually own the copyright on the photo -- and we've already seen that the AP has, at times, had a somewhat twisted view of copyright, especially when it comes to fair use. And, of course, with the Obama administration filling the Justice Department with big copyright supporters, perhaps the DoJ should begin investigating such infringement...

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Google Taking Down Private Videos For Copyright Infringement?

from the that-doesn't-seem-right dept

Sure, with a $1 billion lawsuit hanging over its head concerning copyright issues on YouTube (even if Google is confident that it's on the right side of the law), you might understand why Google would be a bit aggressive in its ramped up efforts to police content hosted on YouTube. However, should that aggressive effort apply to videos that aren't public? Chris O'Donnell had posted a personal Christmas video of his family to YouTube using a couple of popular songs as background music -- but he set the video to private, rather than public, and only sent it to a few family friends. A grand total of 3 or 4 people had seen the video. Yet, the video is now gone, as Google sent a notice saying that its automated content checker believed the video contained "unauthorized content."

There's clearly no way that the copyright holders in question would have complained about the video, as there was no way for them to see it. This wasn't a public display or public performance of the content at all, and there may be some questions about fair use -- which, as a court recently reminded folks, needs to be taken into account before DMCA takedowns are sent). Of course, technically there's no DMCA takedown here -- as Google was just doing some self-policing, but it seems like a pretty good question as to why the company is policing private videos that aren't for public consumption.

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UK Looks To Increase Penalties For Commercial Online Copyright Infringement 10X

from the wrong-direction dept

When the "Gowers Report" on copyright first came out in the UK, we pointed out that it had a lot of bad ideas included. The one good point was that copyright length shouldn't be extended any more. So, now that the UK is planning to ignore that one good suggestion, it's moving forward with plans to implement the bad suggestions in the report -- such as increasing the fines for online copyright infringement by 10x. To be fair, this is focused just on "commercial-scale" copying where someone is profiting from the infringement. But, given how the recording industry works, how long until they look for ways to expand that definition or increase the fines for "personal copying" to keep them "more aligned" with the fines for commercial copying?

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Has Congress Backdoored In 'Attempted Copyright Infringement' As A Crime?

from the uh-oh... dept

Last year, when Alberto Gonzales was under pressure from Congress, he suddenly started spending a lot of time talking about stricter copyright laws. Perhaps it gave him a distraction from repeating "I do not recall" all day in front of Congress. His proposal was basically a laundry list of the entertainment industry's desired changes to copyright law, including making "attempted infringement" a crime. Despite the fact that copyright law is pretty clear that an actual violation needs to happen first, this would shift the standard so that if you just attempted to infringe, you could be found guilty of the full infringement itself. While Gonzales' efforts went nowhere, William Patry is pointing out that Congress may have backdoored in this "attempted" clause late last year through the Orwellianly-titled Criminal Code Modernization and Simplification Act. In that act, it notes that: "Unless otherwise provided by law, whoever attempts to commit an offense shall be punished as is provided for the completed offense." When it comes to copyright law in the bill, no exception is provided. Patry points to the recent story of the guy sent to jail for just clicking a link to give you a suggestion of where this new law will allow complaints to go. It's not a pretty picture.

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Supreme Court Tells Perfect 10 It Can't Blame Payment Processors For Copyright Infringement

from the let-me-explain-to-you-the-concept-of-safe-harbor dept

Perfect 10 was an "adult" magazine publisher who had trouble adjusting to the massive change in the market called "the internet," and has since gone on a rampage suing just about everyone for copyright infringement -- though, amusingly, it almost never seems to target those actually responsible for copyright infringement. The issue is that people took scans of images from Perfect 10's magazines and put them online. That is, without a doubt, copyright infringement. No one denies that. But there's no money in suing individual random people, so Perfect 10 went after those with money, starting with Google. Why Google? Well, because Google's image search results would show thumbnails of the images it found (though, of course, Google had no way of knowing they were infringing). Courts have ruled that simply showing a thumbnail in a search result is not infringement, so Perfect 10 contorted to make the case even more confusing, by saying it was the combination of the thumbnails and the fact that many of the sites hosting the scanned images showed Google Ads that was the problem. Luckily, after a lower court agreed with Perfect 10, the appeals court overturned the ruling. Despite this, Perfect 10 has gone on to sue others, including Microsoft with nearly identical charges to the Google case.

Even worse, Perfect 10 then tried to sue anyone who processed payments for the sites that hosted the infringing images, claiming that they were liable for copyright infringement as well. Of course, as is clearly stated in the law, and well supported in the case law, a service provider is not responsible for what its users do. Everyone knows this by now, but it didn't stop Perfect 10 who got slapped down in the lower courts, at the appeals court and now (finally) at the Supreme Court. Yes, the Supreme Court had to waste it's time deciding whether or not to take this case and wisely turned it down. At some point you would think that the folks at Perfect 10 would stop trying to sue everyone and start focusing on maybe changing its business model. Or is that too difficult?

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Make Some Software Better, Get Arrested For Copyright Infringement

from the the-spirit-of-innovation dept

If you look into the history of innovation, you realize that it's all built on the works of those who came before. The single biggest key to innovation is to try to do something better than what's already been done. There's a great book by Robert Friedel that highlights this called A Culture of Improvement. This is seen quite a lot in the software world, certainly. In fact, it's quite common for people to try to improve someone else's software, just to make it better. Take, for example, the massive success of Greasemonkey scripts to allow people to improve on others' websites. However, in this age of pervasive misunderstandings about the purpose of intellectual property laws, many people take offense to the idea that someone wants to improve their work, as we've seen in cases where people have tried to build better front-ends for confusingly designed websites. It gets even trickier when it comes to "improvements" that conflict with business models. There are still some people who think that Firefox's AdBlock extension is "stealing," for example. And, remember, that the folks behind Kazaa flipped out about Kazaa Lite, a version of their software, which stripped out all the spyware included with Kazaa. These all seem to fall under the heading of "felony interference with a business model" which is the concept formerly called "competition."

Now a similar case has appeared in China, but with more dire results. There's apparently a very popular instant messaging client called QQ, from a company named Tencent, that has a few annoying characteristics. A computer scientist in China created a modified version called Coral QQ that got rid of some of those problems, including adding some features that Tencent charges for. For doing so, the guy was recently arrested for intellectual property violations. The company has been fighting with him for years, previously having filed and won a copyright infringement case against him (for which he paid the fine). However, as his software kept getting more and more popular, rather than taking it as a message that perhaps the company should improve QQ and get rid of annoying features, Tencent instead filed charges with the police, who arrested the programmer. As the folks at Against Monopoly point out, this is yet another situation where the concept of intellectual property is being used to hold back innovation (and put someone in jail for improving a product).

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Is It Copyright Infringement To Skip Commercials?

from the please-explain dept

A little over a year ago, we wrote about a lawsuit where a bunch of media companies were suing Flying J, the operator of a number of truck stops. Apparently, Flying J had installed a neat little bit of technology that would recognize when commercials came on TV and replace them with its own ads (which Flying J had sold to advertisers who wanted to target truckers). As we said at the time, it actually makes perfectly good sense to show targeted ads to truck drives, and it wasn't entirely clear what argument the broadcasters could make. After all, commercial skipping is legal (even if the entertainment industry doesn't want to believe it). Unfortunately, a judge disagreed and has ruled against Flying J, saying that the act of skipping commercials is copyright infringement. Copyright expert William Patry can't figure out how that could logically make sense. After all, Flying J had paid for a license to show TV at its establishments. So that's legal. If it had just been showing TV without the ad insertion technology (called the segOne) then it would have been perfectly legal. You could even take the argument one step further and say that if Flying J employees turned off the TV whenever commercials were on (or, more realistically, changed the channel), it would still be perfectly legal. The only thing that seems to have somehow made this illegal is the introduction of the automated device, which doesn't even do anything to the broadcasters' content (which, again, has already been paid for). It's just blocking third party content, but that third party isn't a part of the case. So it's difficult to see how this is copyright infringement at all. Instead, it sounds a lot more like felony interference of a business model masquerading as copyright infringement.

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