One of the complaints that many have made concerning various file sharing lawsuits is how rightsholders too often rely on highly questionable or weak evidence. Over in Denmark, where efforts against file sharing by record labels and the IFPI have been aggressive, the Supreme Court has now deemed weak evidence insufficient for such cases. The case involved a guy who was accused of sharing 13,000 tracks. The court eventually decided he should pay $1,900 -- significantly less than what the record labels requested. The main reason for the lower dollar amount was the limited quality of the evidence by the "anti-piracy" group Antipiratgruppen:
APG used techniques which scraped the index of the files said to be being made available by the defendant and then linked them back to his IP address, a method which has been acceptable in the past. But while the Court accepted that some sharing had occurred due to the defendantís confession, it wasnít satisfied that the index was an accurate representation of the files physically present on the defendantís computer.
Nice to see some courts recognizing that just having an IP address is not enough evidence on its own.
If you've been to a gym lately, you've probably seen how "spinning" classes have become quite popular these days. When I first heard of them, I couldn't figure out why they called them "spinning," rather than just "stationary bike" classes, but now I know: apparently "spinning" is a trademarked term, held by a company called Mad Dogg Athletics, and the company is gaining a reputation for trying to enforce that trademark around the globe. If you look at the USPTO, the company appears to have a ton of different trademarks on "spinning," covering not just exercise classes, but also sports drinks, lotions and creams, nutritional supplements and computer software. It looks like the original spinning trademark was filed for back in 1992 -- so it's entirely possible that this company really did come up with the term and popularize it.
However, it seems that many people now feel that the term really has become generic, and I'd have to agree. I've known about "spinning classes" for ages, but never had any idea it was associated with any particular company -- until now. And that's only because an anonymous reader sent in this story of how Mad Dogg has had lawyers threatening gyms in Denmark (Google translation of the original Danish). The Danish gyms seem pretty upset by this, arguing that "spinning" has become a common generic word, and no one associates it with Mad Dogg at all. It also appears that nearly all of the gyms contacted have simply decided to call their stationary bike classes something else, rather than give in and pay a licensing fee just to call a spinning class a spinning class.
Now that most of the ACTA negotiations are complete, you would think that governments would recognize the problems of trying to negotiate big deals that impact internet users in secret without involving the users themselves. No such luck. Apparently, over in Denmark, the government, the entertainment industry and ISPs have been secretly negotiating a 3-strikes plan for Danes, with an agreed upon press blackout, where none of the participants will speak to the press. They're pretty upfront as to why not:
After experiencing difficulty, Comon was told by Committee members that they had "promised to keep working secretly in order not to create too much fuss" and "could never agree on some recommendations if there was too much public debate about its work."
Yes, you see, we couldn't actually come to agreement if the people this will actually impact the most are allowed to chime in and point out why they don't like their rights being taken away. It's probably worth reminding folks at this point that Denmark was one of the players in the ACTA negotiations who was vehemently against transparency. Apparently, that's carried over into domestic discussions as well.
Oh boy! Where to start on this one. Normally, when you have a commercial on TV, you would like it to go viral so more people see it. We've certainly seen some companies use this to their advantage. But what if the actors in those commercials don't want it to go viral? What if they happen to be (or hope to be) upstanding professionals, and the commercial involves them participating in frat-boyish fun, such as playing beer pong, which they hoped would only be seen in a tiny country on the other side of the globe? Well, that seems to be exactly what happened to a pair of unfortunate (but quite talented) beer pong players, who have now sued the producers of "The World's Funniest Commercials," TBS and Carlsberg beer.
You see, Scott Tipton and Christopher Kolb are really good at beer pong. So good, that Carlsberg hired them (and a few others) to perform in this commercial:
However, one of the guys was in law school at the time, and didn't want his future career prospects diminished by his beer pong prowess. Why? Because, as the complaint explains, "the plaintiffs' difficult trick-shots indicate substantial experience playing Beer-Pong, i.e., substantial experience drinking substantial quantities of beer -- a less than desirable image...." (emphasis in the original). He also did not want his (apparently beer pong ignorant) parents and grandparents to know of his amazing skills at the "most remarkable trick-shot, ricocheting the ping-pong ball four times off of uneven, angled surfaces, and into the beer cup with back-spin, after which both Tipton and Kolb celebrate exuberantly" (emphasis in the original). Because of this, he made sure that the agreement had geographic restrictions, such that it only showed in Denmark. The other guy was an actor, who claims he agreed to a "below standard" rate, knowing that the commercial was only for the Danish market.
But, of course, the video got some attention, and the producers of The World's Funniest Commercials decided to include it in their show (with Carlsberg's blessing) which aired in the US on TBS. Even worse, the producers used a clip from the commercial in their own commercial for the show. The guys then try to make the case that the TBS promo was the key reason why people watched the show, and their clip in the promo was the key part, and thus, they deserve 50% of all of TBS's advertising from the show. Good luck with that.
The lawsuit itself involves California's popular publicity rights law (that we've been talking about a lot lately) as well as a variety of other claims. However, in an age when we're already pointing out that geographic restrictions are obsolete, does it seem even remotely reasonable that the commercial would never be seen outside of Denmark?
And yes, the legal complaint makes sure to explain just what beer pong is, in case the court is unfamiliar with the... um... sport:
Apparently the ruling hinged on a questionable bit of Danish copyright law that makes an ISP liable for the content sent by users, because "the ISP makes temporary copies of small fragments of the copyrighted work as IP packets pass their routers." Of course, if you read the law that way, that puts tremendous liability on any ISP. It seems wholly unreasonable to interpret the law that way -- and, in fact, some point out that this appears to go against EU law. The article also notes that the questionable clause in Danish copyright law that puts this burden on ISPs was written by a guy who (you guessed it) now works for the recording industry. Funny how that works.
We've talked about smart filmmakers learning to embrace file sharing to enlarge their audience and to improve their business model, but it appears that some filmmakers are getting the wrong kind of message. TorrentFreak has the story of how some filmmakers in Denmark, who had a total flop on their hands, pretended that the local Piratgruppen organization literally broke into the studio, stole (used correctly, for once) the film, and were threatening to put it online. Of course, the whole thing was completely made up in a weak attempt to get publicity. Little actually came of it until it was exposed as totally made up -- but it's a pretty serious issue. The studio was blatantly lying and accusing people of out-and-out criminal behavior, knowing that it was false. And this is in Denmark, where the local anti-piracy group has been quite aggressive in going after anyone for copyright infringement. Shameful.
One of the really amazing things in witnessing the reactions among various politicians to the ACTA negotiations is realizing how out of the loop they are as well. They're often just as angry that things are being done in the name of their country that they have no visibility into. Of course, this adds to the impression that this whole process is not about figuring out what's best for the people of each country, but an end run around the democratic lawmaking process, pushed mainly by big industries (led by the entertainment and pharmaceutical industries).
So, with last week's leak showing that Denmark was one of the countries that was most against transparency for ACTA negotiations, Danish free culture activists like Henrik Moltke have been speaking up, going on TV and questioning why Denmark is being the transparency roadblock. And it appears to be working.
"It is news to me that Denmark is so close to the negotiations. And it's pretty shocking that Denmark should have taken the position that you actually want to give priority to secrecy," said Morten Messerschmidt, a member of the European Parliament
Messerschmidt has gone on to say that he's going to demand that Denmark support a more transparent ACTA process, and it appears that some other Danish politicians are agreeing as well.
One of the biggest issues in discussing ACTA is the rampant secrecy behind the negotiations. We've heard calls from many different politicians to get rid of the secrecy and be more transparent, but we hadn't heard who was against the transparency (other than some industry lobbyists who, in theory, shouldn't have much say in this). The only statement came from the USTR, who claimed that countries would leave the negotiating table if the text were made public -- but wouldn't say who or why.
Well, now we know who. A leaked document highlights which countries are against transparency and the list includes Belgium, Portugal, Germany, Denmark, South Korea and Singapore. Many other countries -- headed by the UK -- have been in support of opening up the process and being more transarent. Among those in favor of transparency are the Netherlands, Sweden, Finland, Ireland, Hungary, Poland, Estonia, Austria, Canada, Australia and New Zealand. And then there's the US, who simply claims it's being transparent, but apparently refuses to take a stand on transparency in the negotiations (why should it -- when those negotiations themselves are secret). Apparently the real stickler for secrecy is Denmark, which perhaps isn't that surprising. While there are many Danish people who are fighting the copyfight, Denmark's "anti-piracy" organization has been among the most aggressive in suing pretty much anyone, and demanding all sorts of sites be shut down or blocked. Unfortunately, it sounds like they're now the main blockers in keeping the ACTA process secret.
But, of course, for all that attempted secrecy, the documents keep leaking, and they're definitely problematic. It seems like it's time for the supporters of transparency to stand up to Denmark and the others and tell them that if they don't want the process to be transparent, then they should walk away from the agreement. And, in the meantime, it's time for the USTR to stop pretending it's being transparent and to actually support real transparency in these negotiations.
A bunch of folks have submitted the story of Henrik Anderson, a Danish man who ripped a bunch of DVDs for personal storage, and then turned himself in, noting that even though Danish law says it's okay to make a backup copy of content for private purposes, it also forbids circumvention of DRM, such as the DRM found on DVDs. We had avoided posting anything on the story until the Danish group responded, and while it missed the original deadline, it has now stated that it will not go after Anderson, so long as he's only using the content for private use:
The main purpose of the rule is to ensure against abuse of films and music being illegally copied and distributed further. The Association of Danish Videodistributors certainly have no interest in suing consumers who like you have purchased legitimate products -- quite the contrary.
Of course, if that were true, then wouldn't the Danish Antipiratgruppen push to change the anti-circumvention law that makes this particular process illegal? After all, shouldn't they stand behind what they claim?
We just wrote about how the Danish anti-piracy group was dropping its lawsuits against individual file sharers after realizing that Danish law made it almost impossible for the industry to win those cases. However, as pointed out by brokep, the international wing of the recording industry, the IFPI, wasted little time in trying to spin the news in its favor (Google translation of the original). The IFPI insists that the lawsuits won't stop, but just that the anti-piracy organization was realizing it needed more detailed evidence -- and this means that it will now start seizing computers to get evidence. Now, the Google translation trips up over the word "beslagslaeggelse," but multiple Danish speakers have confirmed that the word means "seize" or "confiscate." Of course, that raises some questions about why a private organization representing record labels has any right to seize computers of individuals. I think they were better off when they just admitted they were going to give up on the counterproductive legal strategy.