by Mike Masnick
Mon, Oct 1st 2012 11:57pm
by Mike Masnick
Mon, Oct 1st 2012 7:59pm
from the no-surprise dept
by Michael Ho
Mon, Oct 1st 2012 5:00pm
from the urls-we-dig-up dept
- SB Nation's network of 300 blogs redesigned all their logos for a re-launch -- with just a single designer, Fraser Davidson, in 7 weeks. Designing 300 logos is hard enough, but add in the complication that none of these logos should in any way infringe upon their related sports teams' official trademarks.... [url]
- Imagine some popular corporate logos redesigned for a hipster blog or startup. You don't have to imagine it, there's a Tumblr blog for it. [url]
- The evolution of corporate logos is kinda fascinating. Apple's first logo in 1976 is really different from its current minimalistic logo. [url]
- Some logos have hidden messages in them. The Big Ten collegiate conference logo has a little nod to the fact that there are actually eleven teams in its organization. [url]
by Mike Masnick
Mon, Oct 1st 2012 3:54pm
from the too-legit-to-quit dept
Of course, over time, things change. Content creators begin to embrace the new, realize that it might not be evil, and suddenly we see more and more interesting case studies. And that seems to be happening with BitTorrent. The recent MusicMetric analysis of BitTorrent downloads for the first six months of 2012 found that 31% of downloads were for authorized files. Now, you can argue that this is still less than half of all files -- but it's a big step up from the standard claims that somewhere between 1% and 10% were authorized. It seems quite likely that the trend is moving in the right direction.
In an effort to highlight just how much authorized content is shared using BitTorrent, Bittorrent Inc. put together a neat graphic representation of just one day's authorized downloads, creating a massive page that includes a single dot for every authorized download. We've put a snapshot of just a small portion of that image below this post... but that's really only a fragment. If you go to the full page, there's an awful lot of scrolling involved. And that's because it's showing 689,955 authorized downloads. In a single day. Not bad.
In case you're wondering who's actually offering up music that's getting downloaded like this, Eliot van Buskirk tracked down the top ten authorized music acts on BitTorrent, which turns up a few surprises.
- Death Grips: 34,151,432
- Counting Crows: 26,950,427
- Billy Van: 18,702,053
- Gods Robot: 12,172,672
- Way Too Sick: 9,974,321
- Paz: 6,485,001
- Bray: 5,878,492
- Pretty Lights: 5,005,061
- DJ Shadow: 4,349,048
- Chester French: 523,356
by Mike Masnick
Mon, Oct 1st 2012 2:46pm
from the oh,-look-at-that dept
And, to do it with an album that is available for free for those who want it is just as amazing. Yes, that's right, free. While there's been plenty of talk about the Kickstarter aspect, there's also the fact that she's offering it as a pure pay what you want model off of her site, where there's even a button to click to get the album for free... and this part where she explains why it's okay to get the album for free (though she wouldn't mind if you paid too...) in which she also encourages people to share it:
DEAR DOWNLOADER of MUSICBut, you know, it's impossible to make money when people share your stuff, right? Maybe if you actually spend time connecting with fans, you'll discover that they're more than happy to support you, as they're supporting Amanda.
i firmly believe in music being as free as possible. unlocked. shared and spread.
i believe that in order for artists to survive and create, their audiences need to step up and directly support them. honor system.
if you’re broke – take it. if you love it, come back and kick in later when you have the money.
if you’re rich, think about who you might be karmically covering if you really love this record.
the store below has two versions of the record. one is totally free, and one has a minimum price of $1.00 so that i can cover the cost of covering other artists’ songs.
once you have it, SHARE SHARE SHARE! COPY COPY COPY! SPREAD THE EVIL!!!
we are the media.
by Mike Masnick
Mon, Oct 1st 2012 1:31pm
public advocacy of the united states
from the emotional-reactions dept
“[The photo] represents my long term relationship with my best friend, my partner, and now husband – the love we share and obstacles we have overcome. It is a reminder of the happiness I felt the day he proposed to me and of the excitement I had throughout our engagement. It represents hope and it represents love. Or at least it did… Now I see it faded and brown with a big red, blood-emulating slash across our bodies. It cuts us in half just below our hearts. How do I feel? I’m in shock and I’m angry and I’m hurt and I’m flabbergasted and I’m livid.”The image was used without permission by Edwards, Privitere or Hill, and all three are now suing PAUS over the use of the image. Hill is arguing copyright infringement, while Privitere and Edwards are arguing "appropriation of likeness or personality." I will admit that I have a vague acquaintance with one of the lawyers representing the three (in that I'm very familiar with his work, and met him once at a conference). I should also admit that I find PAUS's general position on this issue despicable, and find their use of an image that was created to celebrate love not just cynical, but insulting and obnoxious in the extreme. Emotionally, I want very much to look at this as a case where copyright makes sense and is being used wisely.
But I have concerns about its use here. Is this copyright infringement? Undoubtedly, under the law, it almost certainly is. The image is covered by copyright, and Hill registered it as well, giving her even greater ability to bring this kind of lawsuit. The photo was clearly used without authorization. Is there a fair use claim? In a pinch, I could see an argument for one (you could argue it's transformative, non-commercial use, political speech, etc.) but I'm not convinced it's a particularly strong fair use claim.
So, I am extraordinarily sympathetic to the plaintiffs here. And, at a gut level, I really, really want to support their position. But I'm worried about the implications here. Copyright in the US is an economic right, not a moral one. Other countries may have "moral rights" or "droit moral" on photographs, but we don't in the US. And it is clear that the copyright complaint is really entirely about the moral rights issue as it relates to copyright. There is no economic impact at issue here, because there is no economic interest in this image. There does not appear to be any plan or intent to license the image or exploit it economically in any way.
And, so, I worry when we start using moral rights arguments to defend a copyright claim, no matter how strongly I support the moral argument being advanced by the plaintiff.
I am somewhat less troubled by the appropriation of likeness argument, and this is one (rare) area where it feels appropriately applied: to a situation in which individuals who do not support a particular viewpoint are thrust into a debate on it. One could argue that this actually gives them a platform to speak out about such bigotry and raise greater attention to the issue -- but it seems like a stretch to think that this is okay in these circumstances. You could also argue that no one (absolutely no one) would look at the image and think that Edwards or Privitere support the politicians running on an anti-gay marriage platform. You could also argue that once the photograph is out in the world, it means that the public can comment on the photo. All of those arguments do feel a bit weak, however.
On the whole, I completely understand why this lawsuit was filed and recognize how ridiculous and hurtful this particular use is for all three plaintiffs. But, cases that create emotional responses quite frequently lead to bad precedents that can later be used in other cases. And establishing the ability to use the economic right of copyright as a catch all moral right potentially stretches the law too far.
by Mike Masnick
Mon, Oct 1st 2012 12:16pm
from the cafc-cafc-cafc dept
Lee kicks it off by pointing to Adam Jaffe and Josh Lerner's seminal book, Innovation and Its Discontents, published in 2004. If you want to see a patent system defender turn bright red, just bring up this book. They go absolutely ballistic about it, insisting that it's all myths and lies made up by critics who don't understand the patent system. You see, in the world of patent lovers, the only people who are allowed to criticize the patent system, are those who are patent lawyers. Everyone else, in their book, simply doesn't understand the facts. Of course, when you suggest that perhaps it does make sense that economists might be able to highlight how bad patents harm the economy, they have no reasonable answer. Either way, you can't get past facts, and Jaffe and Lerner's facts clearly show a massive shift in favor of patents due to CAFC. From their book, here is the rate in which patents were found valid and infringed upon appeal from 1925 up through 2000.
...the heavy load of patent cases on the court's docket means that the judges of the Federal Circuit are constantly interacting with patent lawyers. In addition to hearing their arguments in the courtroom, they read the same patent law publications as the lawyers, hire young patent lawyers to clerk for them, and are invited to speak at events organized by the patent bar.Lee also goes into detail on how CAFC effectively "overruled" the Supreme Court on various issues related to patents, in part because, historically, the Supreme Court ignored patent issues as being petty, "commercial" disputes, unrelated the the weighty constitutional issues that it was focused on. Thankfully, over the past seven or eight years, the Supreme Court has become a lot more interested in patent issues, almost always slapping down CAFC. Even so, as Lee notes, patent lawyers know that CAFC often seems to hold itself to a different standard:
Moreover, the prestige of the Federal Circuit itself is directly tied to the prominence of patent law in the American legal system. If the Federal Circuit had followed the stricter rules in place before the court was created, patent law might have remained a legal backwater, receiving little attention from either the legal profession or the general public. That, of course, would have made the Federal Circuit a less prestigious place to work.
[....] patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit's chief judge from 2004 to 2010, he didn't seem to understand the problems facing small software companies. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he said, seemingly oblivious to the fact that software companies don't have the option to opt out of patent troll lawsuits.
This dismissive attitude toward Supreme Court precedents apparently survives to this day among patent lawyers. In the wake of this year's decision limiting patents on the practice of medicine, patent attorney Gene Quinn wondered, "How long will it take the Federal Circuit to overrule this inexplicable nonsense?" Obviously, the Federal Circuit can't "overrule" a Supreme Court decision. But with enough persistence, it can, and often does, subvert the principles enunciated by the nation's highest court. And when it does so, it almost always works in the direction of making patents easier to obtain and enforce.These all represent real problems and the really bizarre thing is that it makes absolutely no sense for this single court to exist. Part of the reason that we have all of the different circuits is to create differing viewpoints from different courts, which then allow the Supreme Court to consider the different opinions and to point out which is proper. But without any circuit split issues to deal with, and with that form of "judicial capture" going on in CAFC, the results are a one-way ratchet, except in the few cases where the Supreme Court decides to step in, despite a lack of circuit split. Lee points out that we could see a lot more interesting rulings if we just treated patent cases (as we used to) like most other cases, and let each circuit decide the appeals separately:
This is a pretty big problem -- and one that is much more significant and troubling that the "problem" that the government was trying to "solve" with the establishment of CAFC. The issue then was that people would "rush" to different courts to file their patent lawsuits, trying to use jurisdiction shopping to find a favorable court. Of course, switching to a single federal appeals court didn't even do anything to fix that problem. Just ask patent trolls their opinion on East Texas to see why.
The consolidation of the patent jurisdiction in a single appeals court has also deprived the judicial system of valuable viewpoint diversity. Consider Judge Richard Posner of the Seventh Circuit Court of Appeals. This summer, he threw out the entire patent lawsuit between Apple and Motorola, arguing that the patent system had descended into "chaos." Posner was able to hear the case because he was temporarily filling in as a trial court judge, but the Federal Circuit—not his own Seventh Circuit—will hear appeals in the case.
Under the pre-1982 judicial structure, Posner and his colleagues on the Seventh Circuit Court of Appeals would have heard appeals in some of the nation's patent lawsuits. If his comments in the Apple/Motorola case are any indication, Posner would sharply disagree with some of the Federal Circuit's precedents. This kind of disagreement among appeals courts, known in legal jargon as a "circuit split," would signal the Supreme Court that it needed to step in and resolve the dispute.
Posner's skeptical view of the patent system may be explained by the fact that he's an academic as well as a judge. This background may have exposed him to academic criticisms of current patent jurisprudence that aren't as well known to other judges. Similarly, if the Ninth Circuit Court of Appeals (based in San Francisco) were allowed to hear patent appeals, some of its judges might share Silicon Valley's skeptical attitude toward software patents. Such dissenting views would provide balance to the Federal Circuit's pro-patent rulings and give the Supreme Court the raw material it needs to fashion a sensible body of patent law.
All of this matters quite a lot. Beyond just the fact that CAFC's various rulings have massively expanded patent law (such as by recognizing that software and business methods could be patentable, despite most people believing neither were prior to CAFC's rulings, or by establishing much more restrictive rules on when a patent could be invalidated), it's become unfortunately common for some (including people we otherwise agree with) to think that the solution to the problems with today's patents is because judges aren't that familiar with patents, and thus it would be best to set up specialized courts or even specialized judges, who focus mainly on patent issues. But, of course, that seems to be making the exact same mistake all over again. Such courts or judges become victim to the same pressures as CAFC has, creating the same broken incentive structure that has resulted in such problems in the first place.
On this 30th anniversary of CAFC, it seems only reasonable that one step towards fixing the broken patent system is a simple one: end having all patent cases the jurisdiction of CAFC and send those cases back to the individual circuit appeals courts.
Mon, Oct 1st 2012 11:00am
from the a-missed-opportunity dept
So I felt some nostalgia when I got a call from a staffer on Kurtis' current show, Crime Inc., about an episode they wanted to do on media piracy. And also some apprehension, since we've been pretty adamant in our work that criminality--and especially organized crime--is the wrong way to look at piracy. But since I'm a regular complainer about press coverage of these issues and an optimist that the debate can be changed, I agreed to help.
The Crime Inc. people sent over an outline that leaned heavily on content industry talking points: job losses attributable to piracy; financial losses to Hollywood, artists, and the economy; downloading as theft; and the role of organized crime.
But they had also found our Media Piracy in Emerging Economies report and wanted to understand our perspective. I explained that we have problems with the way the major industry groups frame these issues. We don't think piracy is primarily a crime story, but rather about prices, lack of availability, the changing cultural role of media, and the irreversible spread of very cheap copying technologies. They said they understood. It's a complicated topic.
I said I'd help as long as this didn't end up as an MPAA propaganda piece. 60 Minutes had done one of those a couple years ago and it was a major public disservice. They said they'd do their best.
Over the next few months I spent four or five hours talking to and corresponding with staff at Crime Inc. I walked them through the difficulties with measuring the impact of piracy, the problems with opaque industry research, the general irrelevance of organized crime, the market structure and price issues that have made piracy an inevitability in the developing world, the wider forms of disruption in the music industry and so on, and so on. I gave them a list of people to talk to, including Internet hero and MPEE support group gold member Mike Masnick. And they did interview Mike for several hours.
The episode aired a few weeks ago. Unfortunately, it is an almost pure propaganda piece for the film and music industry groups, reproducing the tunnel vision, debunked stats, and scare stories that have framed US IP policies for years. Nothing I told them registered. Mike did not appear. The only concession was two minutes at the end for an alternative business model segment focused, strangely, on the Humble Bundle software package.
By the end, I no longer thought this was an MPAA covert op. Rather it looked like a Rick Cotton overt op. Cotton is VP and General Counsel at NBC-Universal, an enforcement hardliner and piracy fabulist to rival Jack Valenti, and one of Crime Inc.'s corporate bosses at NBC-Universal. He got plenty of airtime to talk about the existential crisis of piracy and the need for stronger enforcement. I have no idea if word came down from him to produce this story (it was the early days of the SOPA fight) or if Crime Inc. was just following the well-worn script on these issues. One doesn't exclude the other. But it is clear that the show rented itself out to Cotton's larger enterprise: Crime Inc. Inc., the business of hyping the piracy threat.
So what do we learn from Crime Inc. Inc? Here's a short summary. I'll also reproduce some of my end of my correspondence with them below, which goes into more detail.
First--and bizarrely--that there is a massive problem of organized criminal DVD and CD street piracy in the US. And that this is part of a much wider array of linked criminal activities; and that DVD piracy is more lucrative than the drug trade.
I imagine they led with this because it's more filmable, but it has little to do with present day piracy. I tried to tell them that. Our work does go into this and finds what everyone knows--that DVD piracy has been displaced by sharing and downloading of digital files in the US in the past decade, and that the street trade has been almost completely marginalized. Even at its peak, CD/DVD piracy does not appear to have been a big market. Our 2011 'Copy Culture' survey found that only 7% of American adults had ever bought a pirated DVD. The drug trade claim--ugh. It's incredible that this bit of nonsense can be endorsed by journalists with some investment in understanding crime.
Second--we get a recitation of impossible-to-kill zombie stats: that media piracy costs the global economy $57 billion/year; that it costs the movie business $6.2 billion/year; that 2 million people work in film/TV production in the US and that piracy has destroyed 373,000 jobs. The problems with these numbers will be familiar to readers of this site, but see below for more detail.
Third--the now traditional guided tour of Mexican street markets, to look for evidence of cartel manufacture of CDs and DVDs. See here and below for more on how this has become a media ritual. In short: are cartels involved? Almost certainly yes, in parts of Mexico where the cartels control most of the informal (and some of the formal) economy. Is this typical of developing countries or the US? No. Will it survive the spread of bandwidth and cheap computers in Mexico? No.
Fourth--that downloading is theft and everyone knows it. End of story. Pity the hipster they found to stage this point. We document more complicated attitudes toward copying and sharing in the US, marked by generally strong concern with the ethics of uploading or 'making available' of materials; widespread but weak and largely non-operative concerns with downloading; and virtually no concerns about sharing with friends and family.
Fifth--that piracy is why sympathetic characters like a Hollywood stuntwoman have to worry about not having steady jobs or insurance. This is an odd claim in an era of record profits for the major studios, massive corporate welfare for film production, and continued outsourcing of production to non-union, low-wage countries, but hey--it's a show about piracy.
Sixth--that the SOPA debate was about... I kid you not... "Hollywood vs. high-tech thievery." Censorship or innovation concerns? No. (Skip to the very end for this somewhat garbled line. I imagine some embarrassed producer telling host Carl Quintanilla to just mumble through it and get it over with.)
That's not a full list, but life is short and Crime Inc. has already absorbed too much of mine. I'll add that watching this on Hulu in several sittings was a maddening experience in itself since Hulu resets with every viewing, force feeding the same 90 second Buick LaCrosse commercial each time. [How has this viewer annoyance system survived? And how is this targeted advertising for someone living in Manhattan?]
Uncharacteristically, there appear to be no pirated versions of the episode available online. Which leads me to think that Crime Inc. may have stumbled onto the most powerful anti-piracy strategy of all: make TV that's only designed to please the corporate boss.
Additional thoughts from Mike: Just to add to Joe's excellent breakdown of the what happened. I had two roughly hour-long phone calls with Crime Inc. staffers, sent one detailed email to them and also spent an entire afternoon being interviewed on camera by them in San Francisco. In all of that, I corrected various misconceptions, and repeatedly pointed out that these issues were complex and nuanced, and it would be inaccurate to classify things as simply "theft" or to not recognize the wider implications of what was happening. Throughout it all, they insisted that the show would be a balanced exploration of the topic, and they even promised me a DVD of the final program (which has yet to arrive). I should have suspected that the whole thing was going south when we spent an inordinate period of time with the producer coaching me to make fun of Kim Dotcom during the videotaped interview. She literally would take some of my words and suggest alternatives as ways to make fun of Dotcom. I pushed back on a few points and she seemed annoyed that she couldn't get me on tape saying it exactly the way she wanted. This, apparently, is how the TV sausage gets made. My reward for all of that was apparently to be cut out of the program entirely.
Given how much of my interview was about opportunities, alternative business models, and the recognition that the issues were really business model problems, rather than legal problems having to do with copyright law, I now wonder if my inclusion was solely to try to get me to mock Dotcom on camera, with the rest just being a setup to make me comfortable to say such things. Failing that, my segment got cut out entirely.
I'm sure NBC and Rick Cotton got what they wanted out of the broadcast. But what could have been a valuable and nuanced discussion about the complex problems being dealt with here turned into a simplistic, stereotyped and factually bogus report that reflects poorly on Bill Kurtis, NBC and Crime Inc.
by Mike Masnick
Mon, Oct 1st 2012 9:55am
from the not-justice dept
On the negative side, there are insufficient safeguards in CAS to insure the accuracy of allegations of infringement, the fairness of the independent review process, and the independence and expertise of the various “independent experts” the MOU requires CCI to consult. Moreover, there is no way for the public to know whether the program is meeting the goals established for it in the MOU.Those all seem like pretty big "negatives." The accuracy of the allegations is a huge one, since (once again) the whole system is based on allegations and not convictions. This has been my concern with all of these plans since the beginning. Generally speaking, here in the US, we tend to believe that you have to actually be found guilty of violating the law before being punished as if you did break the law. But the six strikes system flips that on its head. Those accused have the burden almost entirely on them -- and (even worse) are given limited defenses which block certain key things (such as claiming that a work is in the public domain). The report highlights this concern:
The Copyright Act provides a range of defenses and exceptions to copyright infringement. While the exclusive rights of copyright owners are fully enumerated in just two sections of code, section 106 and section 106A, the following fifteen sections—107 through 122—enumerate a wide range of limitations and exceptions that are crucial for maintaining a balanced copyright system. CAS, by contrast, permits a subscriber to raise only six defenses, and only two of those—fair use and publication before 1923—are grounded directly in copyright law.Putting the burden on the accused is also a major concern which basically goes against everything we believe in the US about where the burden should lie:
It is true that many of the defenses and exceptions provided in the Copyright Act are not relevant to the lion’s share of infringement claims arising from P2P file sharing. But CAS, on principle, should permit a subscriber to raise any relevant defense that is cognizable under the public law of copyrights. There are, for example, several reasons for which a work can be in the public domain that are unrelated to publication before 1923, which is the only out-of-copyright scenario the MOU contemplates. Works in the public domain include those published between 1923 and 1963 whose copyrights were not renewed, works published before 1989 without proper copyright notices, and most works created by the U.S. government. The rules concerning lapse and loss of protection are complicated, even byzantine, but they are nevertheless the rules. If the substantive law of the independent review under CAS is U.S. copyright law, as it should be, then all relevant provisions of U.S. copyright law should be the law of CAS.
In civil suits for copyright infringement, the burden of proof is on the plaintiff, who must prove both ownership of a valid copyright and infringement of an exclusive right granted by section 106 of the Copyright Act. CAS alters this allocation of burdens by making it the responsibility of the accused (i.e., the recipient of a fifth or sixth copyright alert) to raise and prove a defense to infringement in order to avoid a sanction. In addition to shifting the burden of proof with respect to infringement, the MOU creates a presumption of accuracy in favor of the copyright owner, as discussed above in Part III.B above, with respect to both the capture of IP addresses and the identification of copyrighted content. The presumptions of accuracy attach under the MOU as long as the copyright owners’ methods of collection and identification have not been found “fundamentally unreliable” by a technical expert. On the strength of these presumptions, notices from the complaining copyright owner are treated as proof of infringement sufficient to trigger the imposition of a sanction. Such treatment was criticized in Corbis Corp. v. Amazon.com, a case interpreting the repeat infringer provision of the DMCA.Of course, they can get away with this because the whole thing is supposedly a "voluntary" agreement between private parties (which ignores the government's close involvement in the negotiations). Either way, it seems to just add more questions about why ISPs were willing to agree to such a plan, when it seems to be at odds with the law itself.
The allocation of burdens built into CAS is troubling because it conflicts with a basic principle underlying our justice system—that a person accused of having engaged in illegal conduct is presumed innocent until proven guilty in a court of law.
by Mike Masnick
Mon, Oct 1st 2012 8:37am
from the it-doesn't dept
The latest person to make such a bizarrely incorrect claim is Colin Hanna, who purports to run an organization "advocating for a constitutional approach to public policy making." Kind of surprising that he'd say that when it's not clear he's all that familiar with the Constitution, as he argues at length about the supposed Constitutional "rights" of "authors, scientists and inventors."
Protecting intellectual property is in fact a property rights issue. Protecting free speech is not the same as stopping the outright theft of another's property. It's the difference between liberty and lawlessness. We must be in favor of the former and opposed to the latter.The title of the article is "our forgotten constitutional right: intellectual property." But, again, that's ridiculous and wrong and not what the Constitution says at all. Section 8 enumerates the powers of Congress, not the public. To interpret that to mean there's a Constitutional Right to patents and copyrights is not just ridiculous, but would open up all sorts of bizarre "rights" on other issues in Section 8. Let's go through a few examples, if Hanna's interpretation is correct.
On this Constitution Day, we should begin to rethink the protection of intellectual property rights on the Internet not as a limitation of Internet freedom, but rather as a logical contemporary interpretation extension of the basic Constitutional rights of authors, scientists and inventors that our Framers set forth so plainly two and a quarter centuries ago.
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;Under "Hanna-logic," where he believes the powers given to Congress to do something mean that Americans have a "right" to the output, it would appear that the Constitution clearly grants the public the right to have all the money they want. Clearly, this line is the "right to money" line. Where's mine?
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;I'm declaring war! Anyone want a letter of marque? Let me know! It's my right!
To provide and maintain a Navy;I do live near the water... and apparently, under Hanna-logic, I have a "right" to make use of the Navy... Hmm...
Point made? Section 8 does not grant any rights to the public at all. It simply gives Congress the power to enact laws -- in the case of the copyright clause, solely for the purpose of promoting the progress of science and the useful arts. That has no bearing on whether or not such laws or their output are a "right" in any sense of the word.
by Mike Masnick
Mon, Oct 1st 2012 7:18am
from the no,-it's-not dept
But, apparently, that doesn't stop some from still trotting it out. The CopyrightClerk site has the news of a recently filed lawsuit by Daniel Ruggiero, which has a number of claims -- with the final one being the same old negligence theory.
Defendant had a duty to secure his Internet connection. Defendant breached that duty by failing to secure his Internet connection.Of course, there is absolutely nothing that supports those two statements, and the previous courts looking at such claims have already made that clear. Those rulings may not be precedential on this court (eastern district, Pennsylvania), but judges often are interested in how others have ruled on similar issues. One hopes that the defendant in this case, Andrew Burdziak, will make sure whoever represents him makes the judge aware of those other rulings.
Reasonable Internet users take steps to secure their Internet access accounts preventing the use of such accounts for an illegal purpose. Defendant’s failure to secure his Internet access account, thereby allowing for its illegal use, constitutes a breach of the ordinary care that a reasonable Internet account holder would do under like circumstances.
by Mike Masnick
Mon, Oct 1st 2012 5:16am
from the politics dept
Over at Broadband Reports, they've been chronicling FCC boss Julius Genachowski's constant flip-flopping on whether or not broadband caps are good or bad. Tellingly, it seems to depend, in part, on what audience he's speaking to.
FCC boss Julius Genachowski has been busy lately paying lip service to Silicon Valley, most recently telling a bunch of Silicon Valley conference attendees that caps were something we should be "concerned" about, after telling cable companies just a few months earlier he thought caps and overages are nifty and innovative. Speaking again to Silicon Valley folks yesterday at a speech at Vox Media headquarters, Genachowski hashed out his muddy position a little further, again insisting he was "concerned" about caps -- sort of -- maybeAs the article makes clear, beyond tailoring his remarks to his audience, Genachowski seems to be discussing things as if we were in a world where there was real competition, where meters and caps were used to offer lower prices, where the meters actually worked, where money from these activities goes into greater broadband investment and where such things were needed to make broadband profitable. The problem: exactly none of those things appear to be true. It's kind of tough to make competent policy when all of your assumptions are basically wrong. More from Broadband Reports:
One, caps (and especially usage fees) are not technically or economically necessary whatsoever. Flat-rate broadband is perfectly profitable and despite doomsday prognostications designed to scare regulators (it apparently worked), most networks consistently keep pace with demand thanks to dropping bandwidth and hardware prices and improved engineering. Ten years of ISP earnings reports are proof the flat-rate pricing model is sustainable.These things are important if we're going to actually get broadband policy right. The FCC has often seemed way too timid in recognizing that what the telcos tell them is often a complete fabrication. Given how that's been the case for decades, you'd think sooner or later someone would pick up on it and use it to try to fix things, rather than kowtowing to their latest talking points.
Two, they're not being imposed in a "competitive market"; they're just price hikes on already-expensive service, designed to protect TV revenues from Internet video -- and they're made possible specifically because of limited wireline competition, a problem the FCC refuses to seriously tackle. Most modern, well-managed wired broadband networks don't see much congestion. Caps and overages are an executive and investor pipe dream; an entirely new unnecessary fee system layered on top of what is already some of the most expensive broadband service in the developed world (OECD data).
Genachowski appears to have swallowed the lie that money gleaned from overages goes back into the network; yet CAPEX and wired network investment is dropping like a stone for most incumbents, and most of the cash gleaned goes into the pockets of CEOs and investors. While that's the public corporation's primary objective, pretending that caps are helping to create the networks of tomorrow is not supported by the facts. If the money from overage fees actually went back into the network, Canada would have some of the most advanced residential broadband networks in the world. Go ask our Canadian forum users exactly what caps have done to improve the quality of their services.
by Glyn Moody
Mon, Oct 1st 2012 3:16am
from the time-to-stop-this-nonsense dept
Levies on blank storage media are a relic of older times when copying was a new possibility for copyright works. You no longer needed an LP pressing plant, say, you could copy music in the comfort of your own home, first on analog cassette tapes, then later on digital media like CDs and MP3 players. At that time, it was easy to see each of those copies as somehow replacing purchases, and so the argument for levies was born: people should pay indirectly for the "lost" sales their copying caused.
Fast forward to the Internet age, when everything online is copied multiple times as it traverses the nodes of the network, and where everyone is constantly copying files, regardless of copyright law -- with a potential annual liability of around $4.5 billion, according to a well-known study by John Tehranian. Basically, the idea that every copy of a digital file must be paid for is dead, which makes levies on storage media -- currently being pushed to absurd levels in some countries -- look even more unjustifiable.
Even the copyright holders are aware of this. A new "Declaration on Private Copying Remuneration" (pdf), pointed out to us by an article in Intellectual Property Watch, tries to convince people that levies are fair:
Private copying is becoming a more and more frequent subject of debate. The companies which market copying devices are systematically attacking the system through European and national courts, lobbying and through the press. On behalf of hundreds of thousands of creators we, the undersigned organisations representing authors, performers and producers of musical, audiovisual, literary and visual arts works, feel the need to give a reminder of why private copying combined with fair remuneration remains essential.
But its attempted justification fails right at the start:
Over 50 years ago, the first commercially available recording devices created a dilemma. Copyright as it stood at the time required permission for each act of copying of protected works. It was practically impossible for private users to get permission whenever they wanted to copy something. At the same time, rightsholders were clearly entitled to remuneration for such use of their
Well, no: they are not "clearly" entitled at all. When people pay for music or videos, they pay for the ability to enjoy them, possibly on a range of different devices. Making copies of CD tracks to an MP3 player, or of DVDs to a tablet does not entitle copyright holders to any more money, since they have done nothing extra to deserve additional remuneration. They produced the work, they were paid for the work, end of the story. The fact that copyright does not allow such reasonable, everyday actions without "exceptions" just shows that it is unfit for the modern world, where personal copies are ubiquitous.
To resolve this, the vast majority of European countries allowed private copying as long as remuneration was paid to the rightsholders. These national pieces of legislation were brought together at European level in 2001, reiterating the necessity of rightholder remuneration.
Against this background of increasing irrelevance for copyright levies, it's a shame to see the European Commission meekly accepting their imposition on cloud-based storage systems. Here's what it writes in one of the documents (pdf) accompanying its new strategy for "Unleashing the potential of cloud computing in Europe":
Currently, depending on the national private copy levy system, private copy levies are being asked for the storage media and the hard ware used by consumers in the context of cloudservices.
But trying to impose a complicated set of differing national levies on cloud computing services will simply reproduce the huge problems that a fragmented copyright licensing market is causing for startups in the EU. Moreover, cloud computing actually reduces the need for levies altogether, as the same paper points out:
Some of the technologies applied in the digital context, such as streaming, have the potential of reducing the number of copies which are actually made on consumer devices. Cloud computing services, where end-users are actually replicating less on their personal local devices have been seen as a game changer, making the private copy levy concept less appropriate, as digital technology advances.
Rather than permit an outdated system to throttle innovative cloud services in Europe, the Commission should use the shift to this technology to kill off the private copying levy once and for all.