"You can't both have protection and totally give your stuff away. They want the income and protection that comes from TONO, but they don't want to play the game."
If the Norweigian situation is anything like what it is in their neighbour country and my home country Sweden then it's not possible to specify the protection per song. Rather you have the choice between transferring the economical rights to all yours songs to the collecting society or get nothing at all for any song.
Maybe it's time for TONO and other collecting societies to become more flexible, wouldn't you say?
I really like this post and believe there's a lot of truth in what you say (being involved in a quite narrow music segment myself). "Fractalization" is a useful term indeed.
The reason why we see some stars in each segment and on each level is not only because some artists are more talented than others and appeal to more people. It's also because of the social importance of sharing experiences and tastes with other people. It is a matter of how personal identity is formed.
At the same time as we have the globalisation which on the surface seems to lead to a more homogeneous culture we also see a technical development that makes it easier for individuals with similar interests and tastes to find each other and form groups and subcultures. So overall I don't think we will see this shift to homogenization because of that.
It's also a fact that people both want to be part of a group where they share experiences and want to feel special. For example if Britney Spears is your favourite artist you may be able to share your experiences with many people, but it will not say anything special about your personal traits. I think this sociological aspect is also something that speaks against a total homogenization.
The company has after communication with Peter Sunde (a.k.a. brokep) decided to unregister the trademark and said that all they wanted to achieve was to get an ok to use the image (although all the free advertising was probably part of the plan too ;)).
There's another interesting part of the story: when the registration became public many people mailed to the patent and registration office with questions about it. When Fredrik Neij - one of the Pirate Bay guys - mailed a question to them he got a reply within two minutes. But not from the Patent and Registration office but instead from Swedish Radio - citing his original mail in full. Now it could be that correspondence like this with authorities is openly available under Swedish transparency laws, but in that case one has to make a formal request in order to access it. I have never heard of normal correspondence being automatically forwarded to journalists like this.
"I don't know how Swedish trademark law works, but at least in the US there is a concept of a "common law trademark," which is supposed to prevent others from registering a mark on a brand that someone else is using -- even if they haven't registered it. It would seem like quite a silly trademark law if the Swedish trademark law doesn't include anything like that."
Swedish trademark law indeed has something similar. Although I don't have any detailed knowledge of it I doubt that "common law trademarks" would cover more areas than the ones established by the common usage however. The trademark application in this case covered just one so called trademark class. I don't think it would have limited the possibility to continue using the image as a logo for the file-sharing site (but I'm no expert on legal matters).
Let me quote the introduction of Applied Cryptography by Bruce Schneier:
"If I take a letter, lock it in a safe, hide the safe somewhere in New York, then tell you to read the letter, that's not security. Thats obscurity. On the other hand, if I take a letter and lock it in a safe, and then give you the safe along with the design specifications of the safe and a hundred identical safes with their combinations so that you and the worlds best safecrackers can study the locking mechanism - and you still can't open the safe and read the letter - thats security."
The E-voting industry clearly seems to favour obscurity over security. It's good to see some of their customers challenge that view.
"Should we discard all patents and just persecute cases of industrial espionage and blatant idea thief instead."
That's not a very accurate description of what is most often patented common knowledge or completely independant "inventions" (if you can call abstract algorithms that), but basically yes. If we cannot prove that software patents are good for the progress of society, then we should of course not allow them.
"So what does it take to get such a court decision?"
I believe all it takes is reasonable suspicion of infringement and a decision by a court that has to consider whether the measures are proportional considering the negative effects for the party that would be subject to them.
According to Swedish law (and the legal system of nordic countries as I said is often quite similar) the enforcement officer may not remove any object from the place of investigation - only make copies of records (I just learnt this). If the term "beslagslaeggelse" is correct it would indicate that either the Danish law is more far-reaching or that this is wishful thinking on IFPI's behalf.
The translation of beslagslaeggelse is indeed correct.
"Of course, that raises some questions about why a private organization representing record labels has any right to seize computers of individuals."
They most probably don't, but if Danish law is any similar to Swedish law (which I'm more familiar with) then they may request that an enforcement officer enters private property in order to secure evidence in a civil case. This must be preceeded by a court decision. However, such a search may only occur if the need for the evidence outweighs the violation of privacy etc. If I have understood the situation right, in my country it is very seldom that courts decide about this type of searches in people's homes because of just that balance. Rather it's typically used against companies. However, with the types of ridiculous damages awarded today you of course never know how that balance works out.
The mere presence of these so called "infringement investigations" (searches) in the context of the implementation of the EU enforcement directive (IPRED) caused something of an uproar here when that directive was implemented into national law. The Pirate Party probably gained many votes just on those headlines.
The law is probably similar in Denmark and these private organisations would not find it easy to convince their courts that these types of searches are proportional measures. It's somewhat alarming of course, but I would guess it's mostly a PR trick - when it doesn't work out they go ask the politicians for more effective means.
"The package aims to safeguard the neutrality of the Internet and to better protect people's privacy while they are online."
On the contrary. It does not safeguard net neutrality and companies can continue to discriminate on the net if they just provide information about their practices. Neither have I heard any way in which it protects people's privacy, and I strongly doubt that it does. Especially with EU having the Enforcement directive and the Data retention directive in the background.
The fact that net neutrality wasn't included was a major disappointment for the Pirate Party.
"The text of the telecoms package now contains a new Internet freedom provision that states that access to the Internet is a human right of every E.U. citizen"
This is obviously false. If Internet access is a human right then why do the Telecoms package implicitly allow disconnecting people by setting the legal standard for how such disconnections may be done?
No, I think they must have misinterpreted the referal to the European Convention of Human Rights in the context of how (not if) such disconnections may be decided (if a member country decided to disconnect people at all that is).
The new text is quite strong. And it's short too so I'd recommend reading it itself rather than these misleading articles about it. See for example Christian Engström's (PP) blog.
"I wonder how they deal with the issue of vote selling"
Exactly my question too. If not the system is useless.
Geeks always focus on the technical aspects (me too), and of course open source is important if you are going to use electronic voting at all. But in the end this boils down to a trust issue. Can your 80 year old neighbour lady understand how the counting is done? If not, can she still trust the system?
"So the concept that the distribution of legal material would be harmed by shutting down TPB is a laughable concept at best."
If I'm not mistaken the court may only consider the information actively presented by the parties involved (that was the case in the ISP injunction case and I assume it's the same here). From what I have seen the plaintiffs have not provided anything that dispute the statement that a significant amount of material spread via TPB is done so legally and the judges say themselves in the protocol that there is no reason to doubt this information. Neither have the plaintiffs argued about the overall contents of TPB (unless I have missed something) but rather concentrated on the works relevant to this case.
If the court were not allowed to consider other things than what the parties presented in the ISP case, why should it be any different in this case? Besides the whole case is not about TPB as such but only about a couple of hundred works.
Although I'm not sure that it's the translation that is wrong (could be the source too), there are some incorrect things in it, but you seem to have gotten everything right in your blog post. Some sources claim that the Pirate Bay founders will need to pay up if the Pirate Bay stays online. That's not true. They will need to pay up if it can be proven that they themselves assist in the maintenance of the site. If someone else runs the site and they are not involved (the decision doesn't involve Peter Sunde btw) the injunction means nothing.
Swedish Radio has some short coverage in English too (everything in this article is correct) on their SR International site.
Everything in this TorrentFreak article is correct as far as I can see.
This case is very interesting because none of the earlier court decisions have weighed the interest of access to files spread via TPB legally against the interest of rights holders to stop infringements (assuming that TPB is legally responsible for such infringements). The verdict against the Pirate Bay founders was only about ~30 copyrighted works and not about the site as such. The injunction against an ISP wasn't based on any proportionality assessment of the kind mentioned above since the ISP failed to bring this information to the table and the court in this kind of case is only allowed to consider the information brought forward by the parties involved (the TPB guys failed to respond because they were not at home and didn't get their mail in time). The ISP decision also didn't mention anything about blocking the whole site - that that was the only technically viable way of blocking the specific works mentioned in the injunction is another matter.
Now one of the TPB founders have for the first time forced the court to weigh legal file-sharing against illegal file-sharing by providing relevant information. Here's how the judges argues - a translation of an excerpt from the court decision protocol:
"Fredrik Neij has objected against the charges by claiming that there is a significant amount of legal material on The Pirate Bay and that artists use The Pirate Bay for spreading their works. There is no reason to doubt this information, but it does not result in any change to our assessment. Nor can the circumstance that a prohibition, because of technical difficulties, may have the consequence that certain legal material cannot be spread via The Pirate bay cause a prohibition to be viewed as an unproportional measure or result in a different conclusion."
Not a very satisfactory explanation IMO. If proportionality is always assessed in that manner I'm afraid that it will have very bad consequences sooner or later.
The diff utility was developed in the early 1970s on the Unix operating system which was emerging from AT&T Bell Labs in Murray Hill, New Jersey. The final version, first shipped with the 5th Edition of Unix in 1974, was entirely written by Douglas McIlroy. This research was published in a 1976 paper co-written with James W. Hunt who developed an initial prototype of diff.[2]
In 1985, Larry Wall composed a separate utility, patch, that generalized and extended the ability to modify files with diff output.
In my country (Sweden) the shield law protects not only the journalist and his right to keep his sources secret but actually makes it criminal for someone to research the sources of a journalist. The slightest hint of even trying to find out and it would be all over the newspapers as a scandal.
Sadly though bloggers have much worse protection, but I guess that's a common theme today.
I find it quite funny that you address Mike Masnick by misspelling his name and then start lecturing him om the very basics that I'm sure everyone with the most basic insights in copyright matters already knows. No offense, but it seems a bit silly ;)
"Copyleft is restrictive which is a fact most people don't understand, but it's very vital to keep such restrictions to keep development work available to public."
But the whole point of the post is that if some derivative works are kept from the public that doesn't matter if the overall contributions increase thanks to a larger user base attracted by a more liberal license. The goal is (normally) not to minimize free-loading but rather to maximize the contributions and the vitality of the project.
Like others have already pointed out there is no size that fits all, but I still think every open source project leader should consider these things.
"Some people try to claim that the GPL is not “business-friendly”. But the evidence of the sheer number of commercial companies benefiting from, and contributing back to, GPL’d projects like the Linux kernel, the GCC compiler suite, the SAMBA networking stack, the MySQL database, the Asterisk telephony server and so on, shows what a complete load of nonsense such a statement is."
MySQL is an interesting example. According to the MySQL webpage it's quite clear that if you produce a closed source web solution that uses MySQL as a backend-server and sell it to a customer who hosts it on his server (i.e. distribute it to the customer), then you need a commercial license. So basically anyone who hacks together a couple of php scripts that rely on MySQL and sells these without disclosing the source to someone else needs a commercial license. Now, how many of these small players do you think actually bother to get such a license? The proportion is probably extremely small.
So what would happen if Sun decided to go after these developers or if they decided themselves to respect these limitations? What would that do to the popularity of MySQL? There's no doubt in my mind that these developers would then quickly turn to PostgreSQL instead which in many areas are more fully featured and happen to be licensed under the more liberal BSD license.
Ah, another example of colorful language. The director of the Swedish Copyright Association, who is contracted by the government here to do a survey of necessary changes to copyright law, repeatedly used the term Digital Maoists in an article that ended up being referenced in the verdict of the Pirate Bay trial.
But in the case of WSJ one would of course expect more. Using a strawman argument and not even being able to dismiss it with consistent arguments doesn't impress much.
The decision also contains another interesting thing. The TPB guys argued that they are no longer responsible for the site, but the judge argued that unless they can show who is they still are. It's likely that a Swedish judge would argue in the same way if more recent allegations against TPB were brought up in Sweden. So hiding behind an off-shore company doesn't help unless one can prove who took over ownership.
I wonder if this will prompt the copyright industry to try to raise some new charges against TPB in Sweden just to force them to reveal this information.
"Honestly, I'm still trying to figure out who believes this myth that copying news content is some massive problem."
Exactly. A year ago there were two guys who got irritated on the Swedish pirate party and in order to provoke some kind of hypocritical response (I suppose) they copied the whole PP site and changed certain things on their copied site.
The funny thing was that this just proved the opposite of what they wanted to say. In the end, of course nobody really cared about the duplicate. I mean, why would you go there when you could go to the authentic site?
So PR matters and common norms see to it that copying never is that much of a problem.
RSS
Twitter
Re: Re: May you live in interesting times.. (as Tor)
"You can't both have protection and totally give your stuff away. They want the income and protection that comes from TONO, but they don't want to play the game."
If the Norweigian situation is anything like what it is in their neighbour country and my home country Sweden then it's not possible to specify the protection per song. Rather you have the choice between transferring the economical rights to all yours songs to the collecting society or get nothing at all for any song.
Maybe it's time for TONO and other collecting societies to become more flexible, wouldn't you say?
(as Tor)
I really like this post and believe there's a lot of truth in what you say (being involved in a quite narrow music segment myself). "Fractalization" is a useful term indeed.
The reason why we see some stars in each segment and on each level is not only because some artists are more talented than others and appeal to more people. It's also because of the social importance of sharing experiences and tastes with other people. It is a matter of how personal identity is formed.
At the same time as we have the globalisation which on the surface seems to lead to a more homogeneous culture we also see a technical development that makes it easier for individuals with similar interests and tastes to find each other and form groups and subcultures. So overall I don't think we will see this shift to homogenization because of that.
It's also a fact that people both want to be part of a group where they share experiences and want to feel special. For example if Britney Spears is your favourite artist you may be able to share your experiences with many people, but it will not say anything special about your personal traits. I think this sociological aspect is also something that speaks against a total homogenization.
The company will unregister it (as Tor)
The company has after communication with Peter Sunde (a.k.a. brokep) decided to unregister the trademark and said that all they wanted to achieve was to get an ok to use the image (although all the free advertising was probably part of the plan too ;)).
Source: Swedish Radio news (google translated)
There's another interesting part of the story: when the registration became public many people mailed to the patent and registration office with questions about it. When Fredrik Neij - one of the Pirate Bay guys - mailed a question to them he got a reply within two minutes. But not from the Patent and Registration office but instead from Swedish Radio - citing his original mail in full. Now it could be that correspondence like this with authorities is openly available under Swedish transparency laws, but in that case one has to make a formal request in order to access it. I have never heard of normal correspondence being automatically forwarded to journalists like this.
Swedish trademark law indeed has something similar. Although I don't have any detailed knowledge of it I doubt that "common law trademarks" would cover more areas than the ones established by the common usage however. The trademark application in this case covered just one so called trademark class. I don't think it would have limited the possibility to continue using the image as a logo for the file-sharing site (but I'm no expert on legal matters).
Security vs. obscurity (as Tor)
Let me quote the introduction of Applied Cryptography by Bruce Schneier:
The E-voting industry clearly seems to favour obscurity over security. It's good to see some of their customers challenge that view.
Re: (as Tor)
"Should we discard all patents and just persecute cases of industrial espionage and blatant idea thief instead."
That's not a very accurate description of what is most often patented common knowledge or completely independant "inventions" (if you can call abstract algorithms that), but basically yes. If we cannot prove that software patents are good for the progress of society, then we should of course not allow them.
Re: 2 seperate issues (as Tor)
"I think the judge was correct in defining twittering as being a type of broadcast"
I agree.
Re: Re: (as Tor)
"So what does it take to get such a court decision?"
I believe all it takes is reasonable suspicion of infringement and a decision by a court that has to consider whether the measures are proportional considering the negative effects for the party that would be subject to them.
According to Swedish law (and the legal system of nordic countries as I said is often quite similar) the enforcement officer may not remove any object from the place of investigation - only make copies of records (I just learnt this). If the term "beslagslaeggelse" is correct it would indicate that either the Danish law is more far-reaching or that this is wishful thinking on IFPI's behalf.
(as Tor)
The translation of beslagslaeggelse is indeed correct.
"Of course, that raises some questions about why a private organization representing record labels has any right to seize computers of individuals."
They most probably don't, but if Danish law is any similar to Swedish law (which I'm more familiar with) then they may request that an enforcement officer enters private property in order to secure evidence in a civil case. This must be preceeded by a court decision. However, such a search may only occur if the need for the evidence outweighs the violation of privacy etc. If I have understood the situation right, in my country it is very seldom that courts decide about this type of searches in people's homes because of just that balance. Rather it's typically used against companies. However, with the types of ridiculous damages awarded today you of course never know how that balance works out.
The mere presence of these so called "infringement investigations" (searches) in the context of the implementation of the EU enforcement directive (IPRED) caused something of an uproar here when that directive was implemented into national law. The Pirate Party probably gained many votes just on those headlines.
The law is probably similar in Denmark and these private organisations would not find it easy to convince their courts that these types of searches are proportional measures. It's somewhat alarming of course, but I would guess it's mostly a PR trick - when it doesn't work out they go ask the politicians for more effective means.
Errors in article (as Tor)
A couple of quotes from the article:
"The package aims to safeguard the neutrality of the Internet and to better protect people's privacy while they are online."
On the contrary. It does not safeguard net neutrality and companies can continue to discriminate on the net if they just provide information about their practices. Neither have I heard any way in which it protects people's privacy, and I strongly doubt that it does. Especially with EU having the Enforcement directive and the Data retention directive in the background.
The fact that net neutrality wasn't included was a major disappointment for the Pirate Party.
"The text of the telecoms package now contains a new Internet freedom provision that states that access to the Internet is a human right of every E.U. citizen"
This is obviously false. If Internet access is a human right then why do the Telecoms package implicitly allow disconnecting people by setting the legal standard for how such disconnections may be done?
No, I think they must have misinterpreted the referal to the European Convention of Human Rights in the context of how (not if) such disconnections may be decided (if a member country decided to disconnect people at all that is).
The new text is quite strong. And it's short too so I'd recommend reading it itself rather than these misleading articles about it. See for example Christian Engström's (PP) blog.
Re: Questions (as Tor)
"I wonder how they deal with the issue of vote selling"
Exactly my question too. If not the system is useless.
Geeks always focus on the technical aspects (me too), and of course open source is important if you are going to use electronic voting at all. But in the end this boils down to a trust issue. Can your 80 year old neighbour lady understand how the counting is done? If not, can she still trust the system?
Re: Re: Error in the linked article + a couple of reliable sources (as Tor)
"So the concept that the distribution of legal material would be harmed by shutting down TPB is a laughable concept at best."
If I'm not mistaken the court may only consider the information actively presented by the parties involved (that was the case in the ISP injunction case and I assume it's the same here). From what I have seen the plaintiffs have not provided anything that dispute the statement that a significant amount of material spread via TPB is done so legally and the judges say themselves in the protocol that there is no reason to doubt this information. Neither have the plaintiffs argued about the overall contents of TPB (unless I have missed something) but rather concentrated on the works relevant to this case.
If the court were not allowed to consider other things than what the parties presented in the ISP case, why should it be any different in this case? Besides the whole case is not about TPB as such but only about a couple of hundred works.
Error in the linked article + a couple of reliable sources (as Tor)
Although I'm not sure that it's the translation that is wrong (could be the source too), there are some incorrect things in it, but you seem to have gotten everything right in your blog post. Some sources claim that the Pirate Bay founders will need to pay up if the Pirate Bay stays online. That's not true. They will need to pay up if it can be proven that they themselves assist in the maintenance of the site. If someone else runs the site and they are not involved (the decision doesn't involve Peter Sunde btw) the injunction means nothing.
Swedish Radio has some short coverage in English too (everything in this article is correct) on their SR International site.
Everything in this TorrentFreak article is correct as far as I can see.
Some analysis (as Tor)
This case is very interesting because none of the earlier court decisions have weighed the interest of access to files spread via TPB legally against the interest of rights holders to stop infringements (assuming that TPB is legally responsible for such infringements). The verdict against the Pirate Bay founders was only about ~30 copyrighted works and not about the site as such. The injunction against an ISP wasn't based on any proportionality assessment of the kind mentioned above since the ISP failed to bring this information to the table and the court in this kind of case is only allowed to consider the information brought forward by the parties involved (the TPB guys failed to respond because they were not at home and didn't get their mail in time). The ISP decision also didn't mention anything about blocking the whole site - that that was the only technically viable way of blocking the specific works mentioned in the injunction is another matter.
Now one of the TPB founders have for the first time forced the court to weigh legal file-sharing against illegal file-sharing by providing relevant information. Here's how the judges argues - a translation of an excerpt from the court decision protocol:
Not a very satisfactory explanation IMO. If proportionality is always assessed in that manner I'm afraid that it will have very bad consequences sooner or later.
Prior art (as Tor)
http://en.wikipedia.org/wiki/Diff#History:
(as Tor)
In my country (Sweden) the shield law protects not only the journalist and his right to keep his sources secret but actually makes it criminal for someone to research the sources of a journalist. The slightest hint of even trying to find out and it would be all over the newspapers as a scandal.
Sadly though bloggers have much worse protection, but I guess that's a common theme today.
Re: (as Tor)
I find it quite funny that you address Mike Masnick by misspelling his name and then start lecturing him om the very basics that I'm sure everyone with the most basic insights in copyright matters already knows. No offense, but it seems a bit silly ;)
"Copyleft is restrictive which is a fact most people don't understand, but it's very vital to keep such restrictions to keep development work available to public."
But the whole point of the post is that if some derivative works are kept from the public that doesn't matter if the overall contributions increase thanks to a larger user base attracted by a more liberal license. The goal is (normally) not to minimize free-loading but rather to maximize the contributions and the vitality of the project.
Like others have already pointed out there is no size that fits all, but I still think every open source project leader should consider these things.
Re: Look At The Evidence (as Tor)
"Some people try to claim that the GPL is not “business-friendly”. But the evidence of the sheer number of commercial companies benefiting from, and contributing back to, GPL’d projects like the Linux kernel, the GCC compiler suite, the SAMBA networking stack, the MySQL database, the Asterisk telephony server and so on, shows what a complete load of nonsense such a statement is."
MySQL is an interesting example. According to the MySQL webpage it's quite clear that if you produce a closed source web solution that uses MySQL as a backend-server and sell it to a customer who hosts it on his server (i.e. distribute it to the customer), then you need a commercial license. So basically anyone who hacks together a couple of php scripts that rely on MySQL and sells these without disclosing the source to someone else needs a commercial license. Now, how many of these small players do you think actually bother to get such a license? The proportion is probably extremely small.
So what would happen if Sun decided to go after these developers or if they decided themselves to respect these limitations? What would that do to the popularity of MySQL? There's no doubt in my mind that these developers would then quickly turn to PostgreSQL instead which in many areas are more fully featured and happen to be licensed under the more liberal BSD license.
(as Tor)
Ah, another example of colorful language. The director of the Swedish Copyright Association, who is contracted by the government here to do a survey of necessary changes to copyright law, repeatedly used the term Digital Maoists in an article that ended up being referenced in the verdict of the Pirate Bay trial.
But in the case of WSJ one would of course expect more. Using a strawman argument and not even being able to dismiss it with consistent arguments doesn't impress much.
Legal responsability (as Tor)
The decision also contains another interesting thing. The TPB guys argued that they are no longer responsible for the site, but the judge argued that unless they can show who is they still are. It's likely that a Swedish judge would argue in the same way if more recent allegations against TPB were brought up in Sweden. So hiding behind an off-shore company doesn't help unless one can prove who took over ownership.
I wonder if this will prompt the copyright industry to try to raise some new charges against TPB in Sweden just to force them to reveal this information.
(as Tor)
"Honestly, I'm still trying to figure out who believes this myth that copying news content is some massive problem."
Exactly. A year ago there were two guys who got irritated on the Swedish pirate party and in order to provoke some kind of hypocritical response (I suppose) they copied the whole PP site and changed certain things on their copied site.
The funny thing was that this just proved the opposite of what they wanted to say. In the end, of course nobody really cared about the duplicate. I mean, why would you go there when you could go to the authentic site?
So PR matters and common norms see to it that copying never is that much of a problem.