Karl's Favorite Techdirt Posts Of The Week

from the good-news-bad-news dept

Handling the "favorites of the week" post this week is Karl, one of our prolific commenter's who's known for calmly responding to questionable claims from other commenters with thorough, detailed insights and a firm grasp of the law and case law.

When Mike asked me to do a "Favorites of the Week" post, I joked that hopefully I'll be able to do "favorite posts" and not "bad news." A lot of the breaking news this week amounted to more of the same, and all bad: more third-party liability, the government lying about Wikileaks, ICE ramping up their seizures, even libraries teaching kids to hate a free press. Stuff like this is always going on, and it can't last forever, but after a while you get too saddened to think about it.

So, in 2011's spirit of optimism, I'd like start off with artists who are doing something right.

The obvious winner is Paulo Coelho, who heard that his books were banned in Iran, so he immediately offered them as a free download. This shows us that free public use of your art does not just make your work more valuable, it is also a tool to fight censorship and is a fundamental part of free expression. It's not about creating art for free; it's about keeping it from being imprisoned.

Honorable mention goes to Jono Bacon from the band Severed Fifth, who is using an open source model to "reinvent the music business." Now, the "reinventing" claim is a steaming pile of hyperbole, but it's awesome to see more artists realize that "open culture" is not their enemy. And this band is actually practicing what they preach: their album will be released under a CC-BY-SA license, which means that anyone can make money off of it... even you, faithful reader.

And I have to mention Deadmau5, who realized that a connection with his fans is more important than management relations. But it should be noted that Deadmau5 is not any sort of copyright abolitionist. In 2008, he took legal action against a Fruity Loops user called DirtyCircuit, who (unintentionally?) used uncleared Deadmau5 samples that were bundled with the software. As a result, Fruity Loops removed all melodic samples. I mostly like the Techdirt story because it led me to YouTube videos of Deadmau5 pranking his fans on Minecraft.

Of course, for every person who is doing something right, there are two who are downright clueless. They're not bad people, mind you; they just don't know what's going on.

Such was the case when Jim D'Addario defended his support of seizing music blogs. Mike responded by focusing on counterfeit goods, but, as I pointed out in the comments, that's the least worrisome thing about the seizures. Many of the seized domains had absolutely nothing whatsoever to do with counterfeit products. This shows another bad result when you conflate counterfeiting with file sharing: companies can't object to horrible file sharing laws without undercutting their support for anti-counterfeiting efforts. Assuming they're even aware of it at all, of course. I genuinely think Jim D'Addario has no idea music blogs were seized and I'm guessing a lot of the companies on the list didn't either.

As a side note: One of the "counterfeiting sites" that Jim D'Addario mentioned is Alibaba.com. When I went to that site, I found a ton of cheap, shoddy merchandise -- most of it is crap, some of it is probably "grey market," and a couple of things might be counterfeit. But ironically, the one thing I did not find is counterfeit D'Addario guitar strings.

Of course, Jim D'Addario is far from the most clueless man in the industry. As usual, that honor goes to the heads of the RIAA, who this week claimed that a .music gTLD would "enable wide scale copyright and trademark infringement." As Marcus Carab pointed out, their attitude seems to be "ALL MUSIC = crime unless it is explicitly and completely controlled by us."

But it's even more ridiculous than that. The ability to get a .music gTLD would be available only to official members of the music community, deliberately to ward off pirates and cybersquatters. Constantine Roussos, the man behind the dotMusic campaign, is also the man behind FightPiracy.org. He's certainly no friend of piracy or enemy of the recording industry, despite the RIAA's assumptions. When it took aim at Roussos, the RIAA set its phasers to "stupid."

There's one final story that I'd like to mention, to complete this compliment sandwich. That is how ACS:Law is continuing to screw the pooch in court. There's nothing particularly surprising about this, but it makes me smile. It's like a cross between Boston Legal and the Keystone Cops. Hopefully the USCG suits in Minnesota will crash and burn too.

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  1. icon
    average_joe (profile), 24 Jan 2011 @ 6:16am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Heh. They do. Pay attention.

    Good deal. The more lawyers arguing the law, the better. :)

    Huh? Can you explain how this evidence has been "preserved" in a manner that couldn't have been preserved without seizing the domains?

    The domain name now safely resides in the control of the district court. Before it was seized, it could have been transferred to someone else by the alleged criminal. Now it can't.

    Yes, well, that's a pretty big problem, isn't it? Given that the folks who operated these sites did not directly infringe on anyone's copyright, nor did were they involved in a conspiracy to infringe.

    That's sort of a problem for your argument.

    I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized. I suspect that if torrent-finder.com fights this, the feds will be happy to change their theory of liability to one that fits the facts--accomplice liability. As far as conspiracy goes, the agent threw that out, but he never really explained it. The agent did say that he was only releasing the information he thought necessary to get the warrant, so until the rest of the investigation comes to light, we don't know what the feds have.

    How? Seriously. How are they guilty of *direct* infringement?

    As I indicated in the previous response, I agree that torrent-finder.com is probably not actually liable for direct infringement and the agent got that wrong. That doesn't mean that warrant is fatally flawed though. More importantly, that one case does in no way affect the legality of the seizures in general.

    Why do you keep making this false claim? The affidavit itself indicated the intent was to shut down the site. Why do you always ignore this?

    The statute says that any property used to commit criminal infringement can be seized. The domain name fits this definition, and that's what was seized. The effect on the site was incidental. I'm not ignoring it. I admit that the site was affected. I just don't see how that negates the authority to seize the domain name under 18 U.S.C. 2323. Besides, I think the servers themselves could also be seized.

    AJ, you seem to be bending over backwards here to defend the indefensible. Can I at least ask a simple question: whether or not these seizures were legal, do you feel they were right? Think carefully.

    I disagree that it's indefensible for the simple reason that it's not conclusive whether or not these seizures are unconstitutional under the 1st or 5th Amendments. You keep talking like that's a foregone conclusion, but it's not. I'm keeping an open mind. You're locked in to your position and you've got a closed mind.

    To answer your question, I don't have a problem with the seizures, as long as they are legal.

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