by Mike Masnick
Fri, Jan 28th 2011 4:09pm
by Mike Masnick
Thu, Jan 20th 2011 1:25pm
from the and-a-response dept
You really should visit and talk to some companies that are living this experience. There is no way to file a legal law suit in every instance someone is stealing my D'Addario Strings trademark. We are family owned business in the USA with sales of $150 million. Sounds big, and rich and all that!!! However last year we spent $750,000 on legal battles and got nowhere. We would be bankrupt trying to protect the 1000 jobs that we provide here in the USA. We are not General Motors, IBM or NIke. The scale is not there.I can definitely understand where D'Addario is coming from. It's the same position that many of these companies are coming from: they're afraid of the changing marketplace. And, yes, when you see counterfeit products in the market, it's understandable that you would get angry and accuse people of ripping you off. Finally, lawsuits are expensive and time-consuming. But, with all due respect to D'Addario, I think he's making an emotional response to a complex issue without realizing the full implications of the position that he's supporting.
If we were allowed legitimate access to the Chinese market and the Chinese were not counterfeiting our product we would be able to create 200 to 500 more jobs in the USA.
Don't paint everyone with a broad stroke of the brush. Telling the companies on the list to work harder is an insult. We work as hard as we possibly can already (its 5:30 AM where i am right now and dont stop working until 6:30 PM.
I have personally visited stores in four Chinese cities to see 7 out of 10 sets of my brand of strings are fake. The packaging is perfect, right down to the American flat and the words "Printed and Made in USA". The strings are shxt.
I wonder how that would make you feel if you started a brand name from nothing in 1974 and built it to the largest in the world only to watch people completely rip it off.
So your suggestioin to me is to work harder and sue everyone? I may as well close up or cash out and watch the 1000 jobs evaporate. Or better, maybe i should move the factory to China and destroy another 1000 US jobs?
Go on Alibaba.com and witness the hundreds of thousands of fake product listings. There is nothing on the site that is real or legitimate. At some point the government has to take some kind of police action. This is not just a civil matter, there are criminal (grand larceny) implications here.
I agree there should be due process before a site is shut down. I dont know what that process should be, but when threre is clear evidence submitted to a government agency that a site is selling fake merchandise the government should have some authority to put a URL on hold until they can defend themselves. Let the theives absorb the burden of defending themselves, don't expect the legitimate folks to foot the bill.
How is possible for the public to ask the legitimate manufacturers to bear the role of the government and police every instance of fraud with a law suit? It would be tens of millions of $$$ a year.
Learn more before developing such strong views and 'black listing' good people.
Jim D'Addario - CEO D'Addario and Company
First of all, he overestimates the "damage" done by counterfeit products. We've pointed to study after study that suggest the "harm" done by counterfeits is not nearly as bad as most companies believe. That's because most buyers are not being fooled. They tend to know upfront that they're buying counterfeits, and choose to anyway. In other words, they're not doing so as a replacement, but because they'd prefer the counterfeit (often due to pricing), even knowing that it's of inferior quality. However, the studies have also shown that buyers of counterfeit goods quite frequently later "upgrade" to the real version. The counterfeit purchase is aspirational, rather than a substitution.
So, rather than simply assuming the worst about such things, perhaps a better response is to recognize that this is a sign that a lot of people really like his product and want it. From that, the focus should then be on making the legitimate version available, and really reaching out and connecting with the community of D'Addario enthusiasts (of which there are many), and letting them know where and how they can purchase legitimate D'Addario strings, and even giving people additional incentives to buy the legitimate ones. In other words, out-compete the copycats. If those strings really are crappy, then help people learn how to buy the real deal, and offer them incentives to do so.
And, yes, I know that D'Addario already does quite a lot on this front. It has plenty of community features and works hard to connect with fans. The point then is to trust those fans to actually support you. Time and time again we've seen that companies who treat their fans and customers right and with respect, and don't freak out about "thieves" and "pirates," see quite a nice return. Trust your customers, let them know what's going on and they support you. It seems like that's also likely to be a lot more satisfying than worrying about some copycat.
The fact is some people will always buy some cheap strings out there that may be copycats. Those people were unlikely to buy the legitimate strings in the first place, so why even worry about them?
The part I find most troubling in D'Addario's response is this part:
I agree there should be due process before a site is shut down. I dont know what that process should be, but when threre is clear evidence submitted to a government agency that a site is selling fake merchandise the government should have some authority to put a URL on hold until they can defend themselves. Let the theives absorb the burden of defending themselves, don't expect the legitimate folks to foot the bill.The first two sentences suggest, at the very least, that D'Addario didn't know what he was supporting in signing. He says that there should be due process before a site is shut down. But the two things the letter supports do not provide due process before a site is shut down. In fact, they barely provide any after the site has been shut down. We're talking about months later before sites are even directly informed about the seizures. The claim that the domains should be "put on hold until they can defend themselves" simply goes against the basic premises of American law, and the concept of innocent until proven guilty. At the very least, if the concern is that the sites should be shut down quickly, then let the government file for a preliminary injunction in which the site can defend itself in a quick adversarial hearing before the site is taken down. The fact that he automatically calls people thieves, despite a lack of conviction, again goes against the basic principles of due process. It's also wrong. These people are not thieves. Thieves steal your actual product so you don't have it any more. They may very well be infringers and counterfeiters, but calling them thieves is incorrect and an emotional response to what is, certainly, an emotional issue.
No one doubts that sites selling counterfeit products is a scary issue for many companies. But that's no reason to throw out the legal books and basic due process, and support gov't-backed censorship of websites on a "guilty until given a chance to prove innocence many months later" process. Yes, this puts some burden on legitimate companies, but that's the price we pay for believing in due process in the US.
I would hope that Mr. D'Addario would reconsider his support for these programs, and instead admit that perhaps he was a bit hasty in supporting efforts that are half-baked and have already resulted in the blatant censorship of legitimate speech in the form of certain blogs. If he truly wants help responding to counterfeiters, at the very least, he should be horrified at what's been done already falsely in the name of stopping counterfeiting and infringement. He should instead, be putting pressure on these officials to focus on more clearly defined laws that actually tackle the problems, rather than broadly worded laws that result in clear censorship.
by Mike Masnick
Tue, Jan 18th 2011 2:01pm
from the kudos dept
Sandoval also got a comment from Wyden's office, suggesting the Senator is still standing up for what's right, rather than bowing to political pressure:
"Senator Wyden has long worked with U.S. industry on combating the trafficking of counterfeit goods like fake shoes and apparel. But going after trade in real merchandise can be done in a variety of effective ways, like inspecting shipping containers at American ports of entry to identify and seize fake merchandise.Nicely said. Hopefully he sticks to it and doesn't cave in to the pressure.
"Unfortunately, the content industry has piggybacked on the legitimate efforts of apparel designers to combat counterfeit goods and now threaten the integrity of the Internet as a means to combat intellectual property infringement. The Internet is too important to our economy and to advancing American values to be inappropriately regulated and censored under the guise of protecting IP, which is why Congress and the Administration should be as cautious as it is surgical when it aims its sights on the Internet."
by Mike Masnick
Thu, Dec 9th 2010 2:05am
from the good-for-them dept
What COICA proposes would induce, and in some cases, force ISPs -- including yours -- to block websites for you without your input. The Internet is a global phenomenon and at OpenDNS we serve a global audience with customers around the world. If we are forced to block something due to a mandate by the U.S. federal government it would impact all our users, not just those in the U.S. That's a terrible precedent for the U.S. government to set.While it looks like there isn't likely to be much movement on COICA in the lameduck session, it'll definitely be back next year. It's important that more people recognize that COICA is all about censorship before the bill goes much further.
Furthermore, as we've seen with the ongoing Wikileaks.org saga, the government will try and utilize whatever resources it can to take sites offline. There is absolutely no need to arm them with a tool to automate it, let alone one that sits outside of any judicial review as COICA does.
Blocking a domain name is black and white act, meaning that if the Justice Department decided that one aspect of a website was enough to make infringement "central" their only recourse would be to block the entire website rather than systematically removing the infringing portion. For many sites this would lead to massive censorship of data and speech that was non-infringing.
by Mike Masnick
Mon, Nov 22nd 2010 9:29am
from the explaining dept
While I have no illusion that most of those who made such comments will ever come back and read this, it is important to make this point clearly, for those who are interested. There are many, many serious problems with the way COICA is written, but this post will highlight why it is a bill for censorship, and how it opens the door to wider censorship of speech online.
First off, the bill would allow the Justice Department to take down an entire website, effectively creating a blacklist, akin to just about every internet censoring regime out there. Now, it is true that there is a judicial process involved. The original bill had two lists, one that involved the judicial review, and one that did not (it was a "watch list," which "encouraged" ISPs and registrars to block -- meaning they would block them). However, everyone seems sure that the second list will not be included in any final bill. Even so, there are serious problems with the way the bill works. Case law around the First Amendment is pretty clear that you cannot block a much wider variety of speech, just because you are trying to stop some specific speech. Because of the respect we have for the First Amendment in the US, the law has been pretty clear that anything preventing speech, due to it being illegal, must narrowly target just that kind of speech. Doing otherwise is what's known as prior restraint.
Two very relevant cases on this front are Near vs. Minnesota and CDT vs. Pappert. Near vs. Minnesota involved striking down a state law that barred "malicious" or "scandalous" newspapers from publishing -- allowing the state to get a permanent injunction against the publications of such works. In most cases, what was being published in these newspapers was pure defamation. Defamation, of course, is very much against the law (as is copyright infringement). But the court found that barring the entire publication of a newspaper because of some specific libelous statements barred other types of legitimate speech as well. The court clearly noted that those who were libeled still have libel law to sue the publisher of libel, but that does not allow for the government to completely bar the publication of the newspaper.
The Pappert case -- a much more recent case -- involved a state law in Pennsylvania that had the state Attorney General put together a blacklist of websites that were believed to host child pornography, which ISPs were required to block access to. Again, child pornography is very much illegal (and, many would argue, much worse than copyright infringement). Yet, once again, here, the courts tossed out the law as undue prior restraint, in that it took down lots of non-illegal content as well as illegal content.
While much of the case focused on the fact that the techniques ISPs were using took down adjacent websites on shared servers, the court did also note that taking down an entire URL is misguided in that "a URL... only refers to a location where content can be found. A URL does not refer to any specific piece of static content -- the content is permanent only until it is changed by the web site's webmaster.... The actual content to which a URL points can (and often does) easily change without the URL changing in any way." The argument was that taking down a URL, rather than focusing on the specific, illegal content constituted an unfair prior restraint, blocking the potential publication of perfectly legitimate content (the court here noted the similarities to the Near case):
Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past.... Plaintiffs compare this burden to the permanent ban on the publication of a newspaper with a certain title, Near v. Minnesota, 283 U.S. 697 (1931), or a permanent injunction against showing films at a movie theater, Vance v. Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute that provided for a permanent injunction against a "malicious, scandalous, and defamatory newspaper, magazine or other periodical." ....One of the complaints we've heard is that such past prior restraint cases do not apply here since "copyright infringement is illegal." But, both defamation and child pornography also break the law. The point is that in all of these cases, there are existing laws on the books to deal with that specific content, which can be handled that way. Adding this additional layer that takes down an entire publication is where it stretches into clear censorship.
There are some similarities between a newspaper and a web site. Just as the content of a newspaper changes without changing the title of the publication, the content identified by a URL can change without the URL itself changing.... In fact, it is possible that the owner or publisher of material on a web site identified by a URL can change without the URL changing. .... Moreover, an individual can purchase the rights to a URL and have no way to learn that the URL has been blocked by an ISP in response to an Informal Notice or court order.... Despite the fact that the content at a URL can change frequently, the Act does not provide for any review of the material at a URL and, other than a verification that the site was still blocked thirty days after the initial Informal Notice, the OAG did not review the content at any blocked URLs....
The other argument that says COICA is not censorship is that it states that it is only directed at sites "dedicated to infringing activities" that have "no demonstrable, commercially significant purpose or use other than" infringement. However, what supporters of COICA hate to admit is that "dedicated to infringing activities" is very much in the eye of the beholder, and the same folks who support COICA -- such as the MPAA and the RIAA -- have a very long and troubled history of declaring all sorts of new technologies as "dedicated to infringing activities." The VCR, cable TV, the DVR and the MP3 player were all lambasted as being dedicated to infringing activities with no demonstrable, commercially significant purpose, when each was introduced. In hindsight, supporters of COICA like to ignore this, and insist they always knew that each of those technologies could have perfectly legitimate non-infringing uses. But that's only because they were allowed to go forward after a series of legal fights. With COICA, no such chance would be given. It's easy to declare something as dedicated to infringing activities if you're unwilling to see how it can be useful.
by Mike Masnick
Fri, Nov 19th 2010 2:14pm
from the good-for-him dept
"It seems to me the Combating Online Infringement and Counterfeits Act as written today, is the wrong medicine," Wyden, the chairman of the Finance International Trade, Customs, and Global Competitiveness Subcommittee, said during a hearing on international trade and the digital economy. "Deploying this statute to combat online copyright and infringement seems almost like a bunker buster cluster bomb when really what you need is a precision-guided missile."Who knows how much one guy can do against a bunch of (quite powerful) Senators, but hopefully this means that at least COICA will get serious scrutiny and hopefully it will make sure that the clear violations of the First Amendment are removed.
Wyden said that unless changes are made to the bill, introduced by Senate Judiciary Chairman Patrick Leahy, D-Vt., to ensure it "no longer makes the global online marketplace more hazardous to consumers and American Internet companies, I'm going to do everything I can to take the necessary steps to stop it from passing the U.S. Senate."
by Mike Masnick
Thu, Nov 18th 2010 1:14pm
from the weak dept
They're called rogue sites, and they exist for one purpose only: to make a profit using the Internet to distribute the stolen and counterfeited goods and ideas of others.Lovely misleading way to open the piece. In fact, many of the sites the MPAA has declared as "rogue" are nothing more than online forums. Some of them, yes, do involve people pointing each other to where they might obtain unauthorized copies of movies, but it's overly dramatic (though, hardly Oscar-worthy) to claim that the only purpose they serve is to profit from "the stolen and counterfeited goods and ideas of others." First of all, you can't steal an idea and I'm not sure how one downloads a counterfeit good.
The economic impact of these activities -- millions of lost jobs and dollars -- is profound.Actually, the economic impact of those activities appears to be profound... but in the other direction. Recent independent research on the impact of weaker copyright laws has shown that it has helped increase the dollars flowing in the industry, not decrease it. Meanwhile, the studies that the MPAA relies on (which it helped finance) have been debunked by the US government itself.
That's why dozens of labor organizations and business groups have come together to support legislation to provide the Justice Department with new enforcement tools to combat this growing menace to the American economy.The reason why those groups have all come together is because they're looking for the government to protect an obsolete business model. The labor organizations and business groups mentioned all have a rather long history of relying on government protectionism rather than being willing to compete in the free market. So it comes as no surprise that they wish to continue to get greater protectionism rather than face the realities of the marketplace, where they would have to actually innovate to compete.
These sites take many forms, and their operators are located throughout the world. They have in common one characteristic: They materially contribute to, facilitate and/or induce the illegal distribution of both stolen lawful products, such as movies and television programs, as well unlawful ones, such as counterfeit goods, including prescription medications.Note two neat little (and extremely misleading) tricks by Pisano here. First, he is blaming the sites themselves rather than the users of the sites. It's the entire key to getting COICA approved. Pretend that the users of the site and the site itself are the same thing. It's a lie.
Second, he tosses in the claim about prescription medicines. This is one of the older tricks in the entertainment industry's playbook. When they know their argument is weak when it comes to their content, conflate the issue with fake medicines to make it sound scary. Of course, the issue of fake medicines is entirely different than unauthorized file sharing. Lumping the two together is in ridiculously poor taste and incredibly misleading.
Bipartisan congressional efforts to crack down on these operations are opposed by groups who claim the First Amendment protects the rights of these sites to use the Internet for their illegal practices. But the First Amendment was not intended as a shield for those who steal, irrespective of the means. Theft is theft, whether it occurs in a dark alley or in the ether, and to attempt to distinguish the two is to undermine the most basic tenets of our criminal laws.There are so many things wrong with this paragraph, and it is so incredibly misleading, that I'm not even sure where to start. Theft may be theft, but copyright infringement is not theft. Pisano could have said that the First Amendment was not intended as a shield for copyright infringement, and he would have been slightly more accurate, but still missing the point. That's because, once again, Pisano is falsely and misleadingly claiming that these sites themselves are infringing on the content. They are not. Users of those sites may be pointing others to places they can go, which could potentially infringe, but that is quite different.
What the First Amendment does protect is speech. The law does already allow takedowns of infringing content. But COICA goes beyond that. Rather than -- as the First Amendment requires -- narrowly tailoring any takedown or injunction to the actual infringing content, it orders the entire site taken down prior to any trial. That's a classic situation of prior restraint, where the specifically infringing content is not specified and narrowly taken down. Instead, it's using a shotgun to try to remove a bandaid.
According to a study by the International Intellectual Property Alliance, in 2007 more than 11.7 million people were employed by copyright industries in the U.S. This amounted to 8.51 percent of the U.S. workforce. In other words, in 2007 these industries added $1.52 trillion to the economy, or 11.05 percent of the GDP.This is one of the more ridiculous and regularly debunked studies out there. First of all, the IIPA study lumped together all kinds of people, who are not actually creating "intellectual property," and put them all in this big bucket defined as "copyright industries." The false assertion here is that these jobs would not exist but for copyright. That is simply not true. In fact, many of the people and companies included in "the copyright industries" include those like open source software companies, who are (for the most part) not relying on copyright law.
To further debunk these statements, if you took the exact same methodology and looked at what it meant for those industries that rely on exceptions or a lack of copyright laws, you find that they represent a much larger percentage of the US workforce and GDP. In other words, if we are to take the MPAA's claim here that the IIPA's numbers are correct, then it means that we should be doing away with copyright, since the industries that rely on ignoring copyright law are much bigger and contribute more to the economy.
The American intellectual property community creates well-paying jobs, provides and funds pension and healthcare plans and increases tax revenues to cities and towns across the nation. In my industry alone, millions of carpenters, electricians, set designers, caterers, costume designers and others bring home paychecks because of their roles in making movies and television programs.Again, note the misleading claim. The argument is that without protectionism such jobs would not exist. This is false. Industries that don't rely on copyright create all those same things -- in fact, more, according to the evidence Pisano himself cited. And, the silly appeal about carpenters, electricians, set designers, caterers and costume designers pre-supposes that without this law they are out of work. That's a false claim. Considering that we keep seeing more and more filmmakers thriving while embracing the very sites that the MPAA seeks to shut down, it suggests that those people are not, in fact, at risk from these sites.
Realistically, the only people "at risk" from such sites are those who choose not to adapt. And that's mainly made up of the members of the MPAA.
Rogue websites threaten the heart of our industry and the livelihoods of the people who give it life. These sites do not represent a problem that lies on the far horizon. They are here now, and they are here in volume.And for those who have embraced them, they represent a huge opportunity.
What's scary is that there are still people, and people in power, who will believe Pisano's blatantly false and misleading claims here and will push forward in favor of government censorship of websites, contrary to the very clear rules of the First Amendment. In the end, it's hard to see how COICA would pass even a rudimentary First Amendment review -- as more and more First Amendment experts are noticing.
It's really quite distressing the level of blatant falsehoods that the MPAA will spew in favor of getting the US to become a regime of censorship.
by Mike Masnick
Thu, Nov 18th 2010 11:10am
from the free-speech-isn't-free dept
- Patrick J. Leahy -- Vermont
- Herb Kohl -- Wisconsin
- Jeff Sessions -- Alabama
- Dianne Feinstein -- California
- Orrin G. Hatch -- Utah
- Russ Feingold -- Wisconsin
- Chuck Grassley -- Iowa
- Arlen Specter -- Pennsylvania
- Jon Kyl -- Arizona
- Chuck Schumer -- New York
- Lindsey Graham -- South Carolina
- Dick Durbin -- Illinois
- John Cornyn -- Texas
- Benjamin L. Cardin -- Maryland
- Tom Coburn -- Oklahoma
- Sheldon Whitehouse -- Rhode Island
- Amy Klobuchar -- Minnesota
- Al Franken -- Minnesota
- Chris Coons -- Delaware
Update: Some people in the comments are claiming this is not about censorship, so I've put up a new post explaining in detail why this bill is all about censorship.
by Mike Masnick
Tue, Nov 16th 2010 1:43pm
from the protect-protect-protect dept
Congress is listening to our message. Let's continue the fight against online piracy. If you haven't already done so, please click here to send an email to your Senator and Representative - it's quick and easy.Oddly, Jim Urie never responded to my challenge to him, to see if we could come up with reasonable solutions that don't involve drowning out those who disagree with him. Gee, I wonder why...
Update: And... in an interesting bit of timing, the news came out today that Universal Music is planning major cuts. Perhaps instead of focusing on astroturf campaigns and running to the government to prop up their business model, they should have focused on actually innovating.
by Mike Masnick
Tue, Nov 16th 2010 6:08am
from the yah,-ok dept
A few weeks back, I went to Hollywood to appear on a panel for the Filmmaker Forum event, all about "piracy." You can see a short clip of the panel here. One of the panelists was Kevin Suh, who has the title "VP of Content Protection" at the MPAA. Of course, just the fact that the MPAA has a position that involves "content protection" suggests that there's a pretty big problem with how the MPAA views where the market is heading (hint: protectionism is not going to get you very far). Kevin was extremely nice -- and we had quite a pleasant conversation prior to the panel. But, at one point, he made some assertions (not in the video) that seemed odd to me. First, he went on and on about how much money these new "digital locker" sites make, and then in the very next sentence said that Hollywood couldn't offer a competing service because it would make no money.
At one point, I challenged him on the idea that taking down these sites was effective, and he insisted that the sites that were taken down had stayed down, and no others had stepped up to take their place. While I don't follow these sites all that closely, I'd already seen that this wasn't true, as lots of our users like to send in tips about new sites popping up (or where those "downed" sites reappeared). And, in fact, the press is noting that at least one of the sites taken down went right back up days later.
But what's really troubling about the article that has that info, is that it focuses in on how the US government has pledged to continue to be Hollywood's copyright cops, based on questionable legal authority (this, by the way, is one reason why the government is so keen to pass COICA, which would give the feds some authority that they're lacking here). But the simple fact is that this is a huge waste of taxpayer money, trying to stop the unstoppable and protect the unprotectable. There are all sorts of great opportunities for better, smarter business models for the industry, and yet rather than explore those, we have VPs of protectionism, running to the government and getting them to run crazy, legally dubious domain name seizures that do little, if anything to help.
About the only good thing that I can think of is that more and more filmmakers are realizing this. Following the panel, I was (quite pleasantly) surprised by just how many filmmakers spoke to me about how ridiculous the MPAA's position on all of this is, and saying that it's time for the industry to actually compete. Unfortunately, the industry hasn't had to compete in so long, thanks in part to lobbying efforts by the MPAA, that the legacy players don't seem to know how to do so. That's why it's going to be the up and coming filmmakers that figure it out.