from the punchline:-she-wasn't dept
Phew! Another pirate stymied!
by Mike Masnick
Thu, May 1st 2014 8:13pm
by Mike Masnick
Tue, Apr 22nd 2014 12:11pm
The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.Given all that, it should be no surprise at all that McCoy, the failed strategist behind ACTA and the TPP's IP provisions... has received his reward and pat on the back from the industry: a shiny new job at the MPAA. As Tim Lee notes in that link, this is just the latest in the never-ending revolving door between maximalist lobbying groups and the USTR:
Last year I wrote that at least a dozen former senior USTR officials have moved to industry groups that favor stronger protections. McCoy's hire makes it a baker's dozen. Previous hires include including Greg Frazier, who (according to his LinkedIn page) spent 8 years as the executive vice president of the Motion Picture Association of America after a stint at USTR. Other former USTR officials took jobs at drug and medical device companies.As Lee notes, the revolving door between maximalist lobbying organizations and the USTR goes round and round, with USTR officials joining the lobbyist organizations and then going back to the USTR. It's a clear case of regulatory capture by the industry. None of those folks go on to public interest or civil society groups, nor does the USTR ever seem interested in hiring those people. It's entirely a one-sided effort to help out the biggest lobbying interests. Work for a few years pushing through policies that favor those companies, and then get "rewarded" with a nice, high-paying job for those very same lobbyists, and no one ever seems to point out the obvious corruption in the entire process.
McCoy's old job, assistant USTR for intellectual property and innovation, made him the Obama administration's highest-ranking trade negotiator on patent and copyright issues. Jamie Love, director of the public interest organization Knowledge Ecology International, notes that this isn't the first time USTR's top intellectual property official has gone on to take a lobbying job. McCoy's predecessor, Victoria Espinel, is now the head of the software industry group BSA.
Espinel's predecessor at BSA was Robert Holleyman, the man Obama just nominated to a senior post at USTR. While at BSA, Holleyman supported the controversial Stop Online Piracy Act, which would have created an official internet blacklist to aid in anti-piracy efforts. (He backtracked a few weeks later after an uproar in the technology community.
Another of McCoy's predecessors as USTR's top IP official is Joe Papovich, who later spent seven years as a lobbyist for the recording industry.
I doubt public servants like McCoy consciously pursue dubious policies in an effort to curry favor with future employers. McCoy's press representative hasn't responded to my interview request, but I assume McCoy sincerely believes the Hollywood-friendly policies he advocated at USTR were in the interests of the nation.And it's even worse than that, frankly. Because, when you combine that revolving door, with the proposals seen in ACTA, TPP and elsewhere, it undermines the public trust in all of this. People see it and naturally assume corruption, even if the intent is pure. In other words, even if we give McCoy and others the benefit of the doubt, the very fact that he spent 5 years pushing entirely for the MPAA's policies, while brushing off any and all claims from the MPAA's critics, and then took a job at the MPAA, confirms in the minds of many people that the USTR has no interest in representing the public good. And that perception (regardless if the underlying intent is real or not) corrodes public trust in the federal government, and the USTR in particular.
But the revolving door between USTR and industry groups creates a strong but subtle pressure on USTR's culture. Like many government agencies, USTR regularly turns to outside experts to help it sort through complex trade issues. Naturally, they turn to people they trust: their former colleagues — or even former bosses — who now work at trade organizations with plenty of resources to devote to understanding the minutia of trade policy.
by Mike Masnick
Fri, Apr 18th 2014 12:21pm
Noticeably absent from the amicus brief roster are the big entertainment companies, such as the major movie studios and the record labels. Given that this case involves video production, something Google/YouTube don’t know much about, where are the real experts on this topic? One possibility is that they are hubristic enough to believe that they run such a tight legal ship that they will never run into problems with the court’s holding. Another possibility is that they are spiteful enough to delight in Google’s misery, even if the rule ultimately hurts them too (i.e., the enemy of my enemy is my friend). Yet another possibility is that they are happy to free-ride on Google’s efforts, getting all the benefit of Google fixing the law without any of the financial or reputational costs of siding against Garcia or supporting a deceitful rogue film producer. Whatever the reason, I can’t say that I favorably regard their decision to stand on the sidelines as the Ninth Circuit is trying to wreck their industry.It is quite a glaring absence.
by Mike Masnick
Mon, Apr 14th 2014 11:02am
In nine emails from Gane to the Attorney-General's department secretary, Roger Wilkins, and first assistant secretary in the civil law division, Matt Minogue, sent between the election and this year, obtained by ZDNet under Freedom of Information, Gane appears to be providing education notices of his own to the department, offering insights into how copyright infringement is being dealt with in other countries.There are a number of other emails, including a few that regular Techdirt readers may find especially amusing, including one mocking the "vocal minority" who were complaining that draconian copyright enforcement on things like Game of Thrones downloading might have serious unintended consequences. Update: The "vocal minority" has responded.
In one email pointing out Canada's moves, he notes that the Canadian government was not buying into the notion that ISPs should be compensated for having to warn customers for downloading infringing content.
by Mike Masnick
Fri, Apr 11th 2014 9:03am
Megaupload amassed the millions of popular content files that it hosted on its servers and offered to the public for download by openly encouraging and paying users to upload these files. Any Internet user who went to the Megaupload website could upload a computer file, whether or not the user registered as a member. When the upload was completed, Megaupload reproduced the file on at least one computer server it controlled and provided the user with a Uniform Resource Locator ("URL")"link" beginning with "megaupload.com." The uploader could then propagate the link broadly over the Internet, so that anyone interested in downloading or otherwise accessing a copy ofthe file could easily find it on Megaupload's servers.And the RIAA's version:
Any user who had the URL link could access and download the associated content from Megaupload's servers. By "clicking" the URL link (or copying it into any web browser), the user was taken to a "download page" on the Megaupload website that allowed the user to download a copy of the file from a computer server controlled by defendants.
Beginning in late 2005 and continuing at least to January 2012 when Defendants were indicted, Megaupload amassed the millions of popular content files that it hosted on its servers and offered to the public for download by openly encouraging users to upload these files. Until mid-2011, Megaupload went so far as to actually pay its users to do this. Any Internet users who went to the Megaupload website could upload content files, regardless of whether the users registered as members. Upon completion of the uploads, Megaupload reproduced each file on at least one computer server it controlled and provided the users with a Uniform Resource Locator ("URL") "link" beginning with "megaupload.com" for each uploaded file. The uploading users could then propagate the links broadly over the Internet, so that anyone interested in downloading or otherwise accessing copies of the files could easily find them on Megaupload’s servers.Yeah. That's pretty damn similar, including numerous identical phrases. Someone's copying something. Okay, how about the lack of a search (which, as we noted previously, is ridiculous, since Napster got in trouble for having a search, and now everyone's saying that not having a search is just as damning). Here's the MPAA:
Users in possession of the Megaupload URL links could access and download the associated content from Megaupload's servers. By "clicking" the URL links (or copying them into any web browser), users were taken to a "download page" on the Megaupload website that allowed users to download the content, including Plaintiffs’ recorded music, from computer servers controlled by Defendants.
To conceal the scope of infringennent occurring on the Megaupload website, defendants did not provide users with a searchable index of files available for download from the Megaupload website (although defendants themselves had access to such an index). Instead, defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including plaintiffs' copyrighted works. Such linking sites made infringing content broadly and easily accessible to users by maintaining an index of links to content files organized by category and/or alphabetically by titles of the copyrighted work; some such linking sites also offered search boxes where users could enter queries quickly to find the content they wanted. Many of these linking sites were blatant pirate sites, hosting thousands of links to infringing material. Any visitor could quickly see the widespread availability on many linking sites of links to infringing content on Megaupload. Defendants knew of this open infringement on pirate linking sites and closely tracked the traffic from those sites to Megaupload. Furthermore, defendants provided financial incentives for premium users to post links to these sites through the Uploader Rewards program.Okay, and the RIAA version:
To conceal the scope of infringement occurring on the Megaupload website, Defendants did not provide users with a searchable index of files available for download from the site (although Defendants themselves had access to such an index). Instead, Defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including Plaintiffs' copyrighted works. Such linking sites made infringing content broadly and easily accessible to users by maintaining an index of links to content files organized by category and/or alphabetically by titles of the copyrighted work; some such linking sites also offered search boxes where users could enter queries quickly to find the content that they sought. Many of these linking sites were blatant pirate sites, hosting thousands of links to infringing material. Several of these linking sites exclusively offered Megaupload links. Any visitor could quickly see the widespread availability on many linking sites of links to infringing content on Megaupload. Defendants knew of this open infringement on pirate linking sites and closely tracked the traffic from those sites to Megaupload. Defendants also knowingly interacted with users of linking sites and have visited such sites themselves. Defendants also provided financial incentives for premium users to post links to these sites through the Uploader Rewards program.Right. So those two paragraphs are identical, except the RIAA adds in two extra sentences about the linking sites. It goes on and on like this, with both filings clearly working off of either each other or the DOJ indictment, which they're copy/pasting into their own filing and fussing with a word or two here or there. Here's just one more example. Both filings claim that Megaupload can't be considered a "cloud storage" site because it would delete unpopular files. Here's the MPAA's version of this:
Contrary to some of defendants' public assertions, Megaupload was not designed to be a private data storage provider. Users without premium subscriptions were restricted not only in their downloading capabilities, but also in their ability to store files on the site. Any content they uploaded would be deleted if it was not also downloaded within a certain period of time -- after 21 days in the case of unregistered, anonymous users and after 90 days in the case of registered users who were not premium subscribers. Only premium subscribers (estimated to be 1% of users) could use Megaupload for long-term file storage.And the RIAA's nearly identical text:
Megaupload was in no respect designed to be a private data storage provider. Users without premium subscriptions were restricted not only in their downloading capabilities, but also in their ability to store files on the site. Any content that users uploaded would be deleted if it was not also downloaded within a certain period of time--after 21 days in the case of unregistered, anonymous users, and after 90 days in the case of registered users who were not premium subscribers. Only premium subscribers (estimated to be one percent of users) could use Megaupload for long-term file storage.Of course, Kim Dotcom has now refuted this claim, saying that content that was unpopular was not deleted from Megaupload.
by Mike Masnick
Wed, Apr 9th 2014 9:01am
When the upload was completed, Megaupload reproduced the file on at least one computer server it controlled and provided the user with a Uniform Resource Locator ("URL") "link" beginning with "megaupload.com." The uploader could then propagate the link broadly over the Internet, so that anyone interested in downloading or otherwise accessing a copy of the file could easily find it on Megaupload's servers.But, of course, Dropbox or YouTube do the same exact thing. Then, they call out the fact that Megaupload did not provide its own search engine, as if that's something nefarious:
To conceal the scope of infringennent occurring on the Megaupload website, defendants did not provide users with a searchable index of files available for download from the Megaupload website (although defendants themselves had access to such an index). Instead, defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including plaintiffs' copyrighted works.Except, cloud storage companies from Dropbox to Box to Google Drive don't supply a searchable index of files available on their services either. And that's for a very good reason. Because they're not promoting their services as a place to go to search for infringing works. In fact, you just have to go back to the RIAA's lawsuit against Napster, to see where the exact opposite claim was made. In that case, the court found that Napster was, in part, liable because it had a search feature:
Napster is not an Internet service provider that acts as a mere conduit for the transfer of files.... Rather, it offers search and directory functions specifically designed to allow users to locate music, the majority of which is copyrighted.Yet, now, the MPAA seems to be arguing that not having a search engine means you're trying to hide copyright infringement. Damned if you do, damned if you don't -- just how the RIAA and MPAA like it. If you have a search engine, you're enabling infringement, if you don't have a search engine, you're "concealing" infringement.
To ensure a vast and ever-growing supply of popular copyrighted content to which they could sell premium access, defendants paid users to upload popular content to Megaupload's servers. Defendants' Uploader Rewards program promised premium subscribers cash and other financial incentives if they uploaded popular works, primarily copyrighted works, to Megaupload's servers. The rewards program also encouraged users to publicly promote links to that content, so that the content would be widely downloaded.Except, nothing in this program appeared to be about encouraging people to post infringing works. In fact, it would seem like a pretty stupid program for encouraging infringement, as Megaupload would likely be able to bring in a lot more attention and revenue for authorized legitimate content. Such a program, in actuality, appears to be the perfect way for artists to go direct to their fans, offering them ways to get the content for free, while still earning money. In fact, that's why artists like Busta Rhymes spoke out in favor of Megaupload after it was shut down. He pointed out that he could make a lot more money releasing his own music directly via Megaupload, than in going the old record label system.
Megaupload could also have implemented various readily available and effective technological solutions (including, without limitation, automated filtering using digital fingerprinting-based content-identification technology) to identify and prevent infringement of copyrighted content. Megaupload chose not to do so.But there is no legal reason why it had to do so. In fact, considering that others have spent tens to hundreds of millions of dollars on such systems, there are perfectly good business reasons not to have spent such money. Here, the MPAA is using this lawsuit to try to get a court to suggest there's a legal duty to filter. This would have a huge negative impact on startups who couldn't afford the tens of millions of dollars entry fee.
by Mike Masnick
Mon, Apr 7th 2014 1:29pm
“When Megaupload.com was shut down in 2012 by U.S. law enforcement, it was by all estimates the largest and most active infringing website targeting creative content in the world,” said MPAA global general counsel Steven Fabrizio. “Infringing content on Megaupload.com and its affiliates was available in at least 20 languages, targeting a broad global audience. According to the government’s indictment, the site reported more than $175 million in criminal proceeds and cost U.S. copyright owners more than half a billion dollars.”The MPAA is using its favorite law firm for these kinds of cases, Jenner & Block. Of course, there's a (pretty strong) argument that if the MPAA was so upset by Megaupload, it should have filed this lawsuit years ago, rather than convincing the DOJ to twist and turn things to pretend that it was a criminal issue. Megaupload has a pretty strong defense to a civil suit in pointing out how the DMCA works and the fact that the company complied with DMCA takedowns. But, now, with Megauploads' assets frozen, Kim Dotcom separately having to fight extradition charges and the criminal charges, it just makes it that much more difficult to also fight the civil case -- which is exactly how the MPAA likes it.
by Mike Masnick
Tue, Apr 1st 2014 7:41am
One idea — though now it is no more than that — is to build alliances with educational nonprofit groups that might enforce the notion that stealing an artist’s work online is just like lifting from a classmate’s desk.For decades, the industry has kept insisting that all people really needed was a bit of "education" and they would magically start shoveling money back down the same payment channels they used to. But, of course, that's never worked. Because it's never been an education issue. It's always been a service problem, in that the industry fails to make works available in a convenient way that consumers want. Yes, the industry has gotten better at this over the years, but they still make it way, way too difficult, and that's why there's infringement.
“It’s as simple as this: One kid does a painting, and another kid comes up and puts his name on it,” Ms. Vitale said.
by Mike Masnick
Fri, Mar 28th 2014 12:57pm
by Tim Cushing
Thu, Mar 13th 2014 9:46am
Hollywood's inability to see any new technology as anything other than a piracy enabler continues to cripple potentially great products. David Pogue has a review of a "set top" box that has the potential (remember that word) to make your home movie viewing instant and seamless.
You feed it all your movies and music on disc: CDs, DVDs and Blu-ray discs. The Cinema One copies each disc to its 4-terabyte hard drive. 25 minutes for a DVD; two hours for a Blu-ray.Once these movies are stored on the drive, you can call them up instantly using the remote or the iPad app.
And I mean it copies everything. Every deleted scene, director’s commentary, alternate ending. Every DVD extra. And it doesn’t touch the video — there’s no compression or anything; it copies every pixel of quality that’s on the disc.
When you hit Play on the remote, the movie begins playing instantly.This convenience of not being told you're a thief by your purchased product comes at a price. One is the retail price, which is an astounding $4,000. The other is a tax (of sorts) borne out of Hollywood's stupidity and paranoia.
Read that again. The movie begins playing. Not the FBI warning, not the MPAA screen, not the previews, not the DVD menu — the movie itself. You cannot imagine how delightful that is compared with what we’re used to now: Downloading or streaming movies is handy, but you don’t get anything like the quality of Blu-ray, and you generally don’t get any of the bonus features. And discs give you the quality and the extras but require you to sit there staring at stupid FBI and MPAA screens that you’re not allowed to skip. The Kaleidescape box offers the best of both worlds.
When you want to play a Blu-ray movie off the Cinema One, you have to hunt down the original disc you own, insert it into the Cinema One’s slot, and wait for it to load. You’re not playing the disc; you’re just confirming that you own it.That's Hollywood crippling a device to ensure the $4,000 product never lives up to its potential. This is what happens when execs see nothing in the technology but a new way to pirate movies. Instead of a seamless, instant experience, you're back in the position of hunting for the purchased discs you already "conveniently" stored on the hard drive. For whatever reason, you don't have to do this with regular DVDs. (Presumably because that market isn't where the money is anymore, although at one time, that ridiculous stipluation was forced on Kaleidescape by Hollywood lawyers -- and that's when the box ran about $10,000.)
But you’re also losing 80 percent of the value of having a Cinema One! What happened to “any movie in your collection, instantly”?
That’d be a reasonably priced solution if it were available for any Blu-ray movie you own. But it’s not. In fact, it’s available for relatively few movies: only those from Lionsgate and Warner Bros. Kaleidescape says it’s working on reaching similar deals with other movie companies, but for now, it’s only a fractional solution.So, the studios are more than happy to cripple the device, but not so interested in providing affordable licensing of their productions. It's certainly had time to work these details out. It's been fighting Kaleidescape since 2004, tenanciously combating every technological advance the company made. Along the way, it forced the company to require the insertion of every disc before playing (including regular DVDs) and dragged it to court on multiple occasions to claim its "circumvention" of disc-based copyright protection was infringement (even if people were "burning" movies they owned to the drive).
But that copy-protection business is going to kill a lot of potential sales. It’s like having a TiVo that can’t record anything on a timer, or hiring a tax preparer who hands you the blank 1040 form and a pen. It just defeats the purpose.That's copyright protection for you. All the promise in the world negated by fearful Hollywood execs who see pirates hiding under every new technological advance.
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