It's no secret that the DMCA's section 1201 is extremely problematic. It's the "anti-circumvention" part of the law, that makes it illegal to circumvent "technological protection measures" even if it's for non-infringing purposes. This is a mess -- especially in an age of DRM trying to lock up everything. Try to get around it, and it's a violation of the law -- even if you're not trying to infringe on the underlying material. This is why Cory Doctorow is running a new effort to eradicate DRM with a target placed firmly on Section 1201.
So it's great to see Senator Ron Wyden and Rep. Jared Polis team up to introduce a bill to try to reform Section 1201. The full text of the bill (called the "Breaking Down Barriers to Innovation Act of 2015") has a lot of good things in it. It says that circumventing DRM or other technology protection measures for non-infringing reasons should no longer be considered against the law. It also expands other exemptions for things like security research and testing and reverse engineering. It also would automatically renew the exemptions the Librarian of Congress issues every few years so we don't have a repeat of the mess from a few years ago where the Librarian of Congress used the "triennial review" process to first grant an exemption to 1201 for unlocking mobile phones... and then to take that exemption away six years later.
Overall it's a good bill -- and I'm curious to understand how anyone could possibly push back on it, though Hollywood absolutely refuses to consider any changes to Section 1201. Unfortunately, it also seems unlikely that the bill has enough support to actually go anywhere. It seems a bit telling that Wyden released this bill the same day as the fast track bill, suggesting that it's a signal of some sort to people that he's not giving up on fixing copyright law. It's unlikely, however, that this gesture will mollify the folks who are upset that Wyden allowed the fast track bill to move forward in its current form.
For those of us that think certain intellectual property laws have become overbearing and overly burdensome, one of the fun little exercises is to try and figure out where the best battlegrounds are for the fight against them. For instance, if you think cable television has become expensive, unfriendly, and overtly insane, you want to pay special attention to how professional sports are broadcasted now and in the future. If you want to find ground to battle expanded trademark protections and the crazy ways some companies interpret their rights, perhaps the alcohol and beer industry is a good place to draw a line in the proverbial sand. And for copyright? Well, there has always been a ton of focus on music and movies, but we may be seeing the world of video games emerge as the best ground from which to push back against the restrictions of antiquated copyright in the digital age.
Recently, we covered the spiderweb of nonsense one company had to go through just to try to publish a decade-old game, an attempt that was ultimately given up because the web proved to be too convoluted to navigate. Now, a Consumerist post explains how the DMCA and game publishers have (perhaps) unwittingly conspired to keep video games from claiming their rightful place within our cultural lexicon. The focus in the post is on section 1201 of the DMCA.
Section 1201 of the DMCA prohibits consumers from circumventing copyright protection measures put in place on games or any other digital media. So even if you can figure out a fix that will make a game work offline — much like the Sim City player who discovered a work-around against the disastrous always-online requirement — it’s against the law to do so, even if you’re not otherwise violating the copyright and even if this is the only way to make an abandoned game viable again. Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.
The piece then draws up two conflicting sides on section 1201 with regards to video games: the Entertainment Software Association on one side and the EFF on the other. The EFF has filed a request to have exemptions put in to section 1201 for gaming enthusiasts and, more importantly, for museums who would need to alter the game in order to make it in any way useful for exhibit. Take, for instance, any of the games that Electronic Arts, member of the ESA, decides to torpedo in whole or in part by shutting down game servers that support or check-in with the software. Or, perhaps more apropos, take any of the myriad of recent games that have been released as "always online," with copyright protections essentially amounting to a check in with servers not in the consumer's control. What happens when those servers are no longer worth supporting and are shut down? Well, some or all of the game becomes un-playable.
Now, let's leave aside the question of whether or not a consumer truly owns the game they buy under these scenarios. Let's also leave aside whether this kind of DRM or copyright protection is worthwhile at all. Instead, let's focus on how curators of games can handle this kind of thing in a world where DMCA section 1201 forbids the kind of tampering that would get around these restrictions. Should the ESA get its way and keep 1201 exemption-free, so-called abandoned games or abandonware becomes abandoned culture. And not, by the way, abandoned by the consumer or the public, which might include museums or academics with a strong interest in curating older games. No, the abandonment is committed by the game company itself, leaving a giant cultural hole that cannot be filled in because of a copyright law section those same companies are defending.
I've long argued that video games should be considered every bit the equivalent of movies and music. Try to find an equivalent to this problem with either music or movies, however, and you'll be at it quite a long time before you find anything meaningful. Netflix doesn't count, because you aren't buying a movie in Netflix. Same with music streaming services. The closest thing to it is probably how some e-readers can disappear books the consumer has purchased. The difference there is that the entire cultural deposit with a literary work likely isn't lost when that sort of thing happens, as it can be found and curated in other forms. That's not the case with old and classic games.
You want to find a place to take a stance against expanded copyright in favor of greater culture? That place is with games. The ESA knows this, which is why it is staunchly defending section 1201.
The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”
In fact, as the EFF points out, “hacking” in and of itself is completely legal.
“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”
And no cultural boon from games as a result. Section 1201, within the framework of gaming, can be said to be firmly anti-culture. No two ways about it.
As you probably heard, last week there was a big story involving North South Carolina police officer Michael Slager being charged with murder for the shooting death of Walter Scott. Slager had told a story about how Scott had taken his taser. But, a few days later, a bystander's video of the incident was released and told a very different story. If you didn't see it, here is the video, which is rather graphic, seeing as someone is shot to death in the video.
We didn't cover this story, which surprised some -- since we frequently cover police brutality stories, with a special focus on stories involving cellphone videos being used to dispute the "official line" from police. However, this was one case where the issue had received so much press coverage that we felt we had little to add to the story.
The publicist who is apparently going around trying to charge for this (one assumes after being retained by Santana) has some interesting views on how this all works:
“It’s been allowed to be used for free for over a week now,” Max Markson, CEO of the Sydney-based Markson Sparks group, told the Daily News.
“Now it’s going to be licensed and now you have to pay for it.”
But there's a big problem with this plan, and that is known as "fair use." News reporting is one of the fundamental parts of fair use. Unfortunately, the reporter from the NY Times, Frances Robles, seems to have very little knowledge about fair use and relied on a ridiculously biased expert to argue otherwise. She spoke with Frederic Haber of the Copyright Clearance Center, an organization that goes around trying to license everything and is fundamentally against fair use. And yet, Robles insisted that "copyright experts agree" that fair use somehow no longer applies:
Copyright experts agreed that although news agencies are allowed to use even copyrighted material under what is called “fair use” clauses in the law that time period has passed.
Many actual copyright experts challenged Robles about this issue on Twitter, and she insists she spoke to two others besides Haber and they all agreed, though when questioned, she refused to name who those copyright experts were. And that's a problem, because all three of those copyright experts -- assuming Robles actually found three -- are wrong. There is no "time limit" element to fair use. At best someone might try to argue that after a certain period of time the piece was no longer newsworthy and thus fair use no longer applied, but that seems like a huge stretch.
“Fair usage for video exists and networks can still use it for a certain amount of time,” Markson further explained, “like with footage from the Olympics, but the fair usage fee is for people who want to use it again. And in the lead-up to the trial we expect there will be more requests for licensing.”
This makes no sense. There is no such thing as a "fair usage fee." Markson doesn't seem to have any idea how fair use works, and it's unfortunate that the NY Times report that many people are basing their own reporting on isn't any better.
There is plenty of case law that I'm sure any real "copyright expert" would have passed along to Robles had she asked them. Hell, just last year there was a good fair use ruling saying that Bloomberg was allowed to distribute a recording of Swatch's investor calls. The idea that time does away with fair use doesn't make much sense. There's a 1968 case in which Time Life sued Random House and others claiming that using stills from the famed Zapruder film of President Kennedy's assassination was infringing, but the court found it to be fair use, despite it happening years after the film was made (rather than weeks in the case of the Walter Scott video). Then there's the case involving video footage of the beating of Reginald Denny, in which the videographers sued CBS over their use and distribution of the footage (including that it was briefly broadcast on Court TV). Here again, courts found the use to be fair use noting:
We conclude that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use except the substantiality of the use, which we treat as neutral. Accordingly, we agree with the district court that Court TV's use was protected, and we affirm the grant of summary judgment in its favor.
So it seems rather difficult to see how fair use magically disappeared, no matter what Frederic Haber or the mysterious other two "copyright experts" told Robles.
“At some point it’s not newsworthy anymore and you are using it for commercial benefit,” said Frederic Haber, a vice president and general counsel of the Copyright Clearance Center, a collective licensing organization that works on behalf of copyright holders such as The New York Times. The issue could change once the video is played in court during a trial, he said.
Robles later also seems more confused about how copyright works in suggesting that because Walter Scott's family gave the NY Times the video, it wouldn't be subject to these demands for payment:
The Times has used the video with the family’s permission and not received a cease and desist letter.
That sounds good but is meaningless. The Scott family doesn't have the copyright on the video. Santana does. They have no right to license it and the NY Times is clearly relying on fair use in its presentation as well.
Unfortunately, because most reporters don't really want to bother to understand the issue, many took the NY Times report and ran with it, insisting that, yes, media outlets now have to pay to continue using the video. Even the Poynter Institute, which should know better, ran with a headline saying that the "media must pay" to continue using the video. The article itself at least discusses the fair use issue, but the headline seems to ignore that.
I'm guessing that many big news organizations will just pay up, because it's cheaper than fighting, but they have every right to fight this attempt to undermine fair use. The video is newsworthy and its use in reporting is the kind of quintessential example of fair use that is often used to show how fair use works.
As you may recall, at the height of the SOPA fight fallout, MPAA boss Chris Dodd went on television and threatened to stop funding the politicians who didn't support the MPAA's copyright agenda:
"Those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake. Don't ask me to write a check for you when you think your job is at risk and then don't pay any attention to me when my job is at stake."
Given that statement, this little tidbit from the Sony email archives is interesting. It's Chris Dodd more or less demanding that all of the member studios donate $40,000 to Rep. Bob Goodlatte's re-election campaign. As you may know, Goodlatte is the head of the Judiciary Committee in the House of Representatives, and copyright falls under that committee. Even more to the point, despite the fact that there's an "Intellectual Property Subcommittee" (headed by Rep. Darrell Issa), Goodlatte has made it clear that copyright reform remains under his own personal mandate. In this email, Dodd notes that Goodlatte is coming to LA and there's a fundraiser -- and he asks each of the member studios to see if they can put together $40,000 for Goodlatte's campaign:
Subject: Goodlatte Victory Committee
As you know, for a number of months we have been discussing the political event that Chairman Goodlatte has asked our industry to host in Los Angeles. The event has now been scheduled for November 22. A copy of the invitation is attached. The Goodlatte staff is currently securing a location and I will send that information as soon as it is confirmed.
The event will be in support of the Joint Committee established by the Congressman called the “Goodlatte Victory Committee.” This event is important and in the best interests of our industry.
A number of you have had an opportunity to speak directly with the Chairman in the past few months, and I know you share my view that he is a good man and we are fortunate to have him at the helm of the House Judiciary Committee for the foreseeable future.
TIME IS OF THE ESSENCE and it is now incumbent upon us to work together to make this event a success. I need each of you to commit to attending the event and I would request that each studio raise $40,000 for the Victory Committee at this event.
So, please confirm that you plan to attend on the 22nd in Los Angeles, and that you will meet the per studio target of $40,000. It is incredibly important, in my view, that this event be a success and that we have a broad representation of studio executives in attendance. I will reach out to you later this week, but look forward to hearing from you in the meantime.
Now, to be clear, this sort of thing happens all the time. It's more a function of how money in politics works today. It wouldn't surprise me to find out that plenty of other companies in other industries do the same sort of thing -- though, generally speaking, it would be done by the companies themselves, not at the direction of a trade organization. Still, it's a bit of insight into how the process works that I figured some of you might find rather revealing.
Two years ago, we were among those who noted how odd it was to see the MPAA in court arguing in favor of fair use, since the MPAA tends to argue against fair use quite frequently. The legal geniuses at the MPAA felt hurt by our post and some of the other news coverage on the issue, and put out a blog post claiming that the MPAA and its members actually love fair use. According to that post, the MPAA's members "rely on the fair use doctrine every day" and the idea that it "opposes" fair use is "simply false, a notion that doesn't survive even a casual encounter with the facts."
Now, as you may have heard, Wikileaks has put the leaked Sony emails online for everyone to search through for themselves. I imagine that there will be a variety of new stories coming out of this trove of information, now that it's widely available, rather than limited to the small group who got the initial email dumps. In digging through the emails, one interesting one popped up. It's Chris Dodd revealing the MPAA's true view on "fair use" in an email to Michael Froman, the US Trade Rep in charge of negotiating agreements like the Trans Pacific Partnership (TPP) agreement and the Transatlantic Trade & Investment Partnership (TTIP).
You see, about a year ago, Froman gave a speech where he made a very brief mention of the importance of fair use, and how, for the first time, the USTR would be including fair use in agreements. Here's what Froman said:
And, for the first time in any trade agreement, we are asking our trading partners to secure robust
balance in their copyright systems – an unprecedented move that draws directly on U.S.
copyright exceptions and limitations, including fair use for important purposes such as
scholarship, criticism, news commentary, teaching, and research.
Nothing major. Nothing controversial. In fact, as we've pointed out, the actual text in the various leaks of the TPP show that while it is true that the USTR has, for the first time, mentioned concepts related to fair use, it has only done so in a manner that would limit how fair use could be implemented.
And that brings us to Dodd's email to Froman, in which he reveals that, contrary to the MPAA's "we love fair use" claim in its public blog post, the MPAA is actually quite fearful of fair use and the idea that it might spread outside of the US to other countries:
Dear Ambassador Froman:
I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements’ copyright provisions were unbalanced and that USTR has addressed this lack of balance by including “fair use” in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement.
As I know you are aware, the inclusion of “fair use” in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry.
It may be that people are reacting to the subsequent press releases by private groups following your remarks. I am certain these concerns have been elevated by indications from the US government that the ISP liability provisions in the TPP are going to be weakened. Nonetheless, this issue is of enough significance that I felt I must reach out to you directly prior to your departure for Singapore to register our deep concerns.
I am hopeful that I can report back to my members that that US trade policy has not changed, that USTR is committed to securing strong copyright provisions in the TPP. But, there is no question Wednesday’s speech is reverberating in the content community, and I would be remiss if I failed to raise these concerns to you personally. I would be very grateful if you would respond to these concerns at your earliest convenience. I realize you will be traveling, but this is a sense of urgency surrounding our concerns.
Christopher J. Dodd
Motion Picture Association of America
So, the MPAA loves fair use... but the very idea that the USTR might include fair use in a trade agreement (as it had announced years earlier, and which it is doing in very limited -- and limiting -- ways) is "controversial and divisive"? All the way to the point that the MPAA is concerned about whether it can still support the effort? That does not sound like an organization that really does support fair use at all. In fact, it sounds like an organization that actively does "oppose" fair use, contrary to the claims in its blog post. Funny how the MPAA's public statements appear to completely disagree with what it says directly to politicians, huh?
Among other wrongful conduct: Rightscorp has engaged in telephone harassment and abuse (15 U.S.C. § 1692d); made various false and misleading representations (15 U.S.C. § 1692e); engaged in unfair collections practices (15 U.S.C. § 1692f); failed to provide validation and required notices relating to the debts (15 U.S.C. § 1692g); and furnished emails and letters knowing they would create false beliefs on the parts of consumers that their Internet Service Providers (“ISPs”) were participating in the attempt to collect on the purported debts when in fact the ISPs were not participating (15 U.S.C. § 1692f).
Robocalls, baseless threats, seemingly endless harassment, constantly fluctuating "settlement offers"... it's all included in the FTC complaints. (And turned over with extreme expeditiousness by the FTC -- seven days from the point my FOIA request was received.) [Spreadsheet link. Scroll all the way to the right to see complaint details. Also note there are two tabs of complaints.]
Consumer had his internet turned off and he called his service provider and they told him that Digital Rights Corp sent them a warning telling him that they would shut off his internet if he didn’t contact them and he did and they told him that they had 34 counts against him of uploading a children’s song and they told him that it could be $150 thousand dollars per each count and they have admitted that he didn’t do it but he has to pay it because his service was used to do this and he has to pay teh consumer was told if he gave them $500 they would make everything go away. Advised Consumer to call the State Attorney General.
Consumer is receiving repeated phone calls from a company claiming to be from Rights Corp and the company claims that the consumer has illegally downloaded music and the company is trying to collect money for the illegal downloads. Consumer states that the company states that the consumer must pay immediately and they tried to obtain a cc number. Consumer states that the company claims that if the consumer does not pay over the phone the amount of the money owed would be mulitplied by 100% and that they would terminate the consumer's internet services.
Every settlement offer looks "reasonable" when compared to maximum statutory infringement damages -- something Rightscorp has no intention of pursuing. As for the claim that the alleged infringer's internet connection could be cut off? It's mostly false. Rightscorp has managed to push around a few small ISPs using its untested theory that the DMCA requires service providers to boot repeat infringers. But at this point, any internet disconnection is a purely voluntary action on the part of the ISP. There's no legal basis for its claims and no court decision that backs its assertions up. And, most importantly, Rightscorp can't actually cut off anyone's internet connection -- at least not on its own. But that doesn't stop it from insinuating that it possesses this power.
How can you tell Rightscorp has far less power than it pretends to have? By how swiftly it resorts to bargaining.
The Digital Rights Corp. has charged us with 216 illegal down loads. They said that 153 sucessfully down loaded. They first wanted us to pay 3,000 dollars. Now everytime we speak to them the amount changes from 3,000, 560.00, 500.00, and the last amount was 390.00.
Rightscorp, Inc sent us a letter about 6-24-2014 saying we owe $4,060 for copyright infringments. We called to inquire on this accusation. They stated pay $460 by ~6pm (that day ) or pay the full amount. They also pressed for a credit card number. To this day they have been calling about 3x's a week. (They threaten to cut off our internnet service.)
And how can you tell Rightscorp is nothing more than a troll? Because if you feed it, it comes back for more.
Forwarded by the State of Alabama Office of the Attorney General… Consumer responded to first email and paid $20 for the fee requested. She received 27 more emails each requesting $20… Consumer received another email threatening to shut down her internet service demanding settlement. Consumer states she is now getting phone calls from this company.
Digital Rights started annoying robot calls after I made a $20 payment on behalf of a third party to settle an alleged copyright issue. They decided I "owed" them a lot more, $280. I demanded no further calls...They insisted they can call me as much as they want by any means even though I was not actually involved directly with the internet account.(gift,not at my home) They sent a threatening letter and emails, too...
I received notification from my internet provider that a report had been made of illegally download. I contacted Charter who offer no assistance they were "only relaying a message" I then contacted the RIGHTSCORP. I was hesitant to give them information but was coerced into giving them our name and phone number. Initially they said they wanted 20.00 or else they would sue us for 150,000.00 dollars. I told them I had checked with the entire family and they did not believe they had downloaded these songs. She , Cecilee, called back and stated the charges were now 180.00.
I made a single payment on behalf of my son in law to clear a digital rights claim as I gave him a year internet as a gift. Now they won't stop calling me trying to get more money for more "claims."
Rightscorp apparently deploys two tactics with regularity, both unpleasant: threats and harassment.
Rightscorp sent me a letter for copyright infringement so I called the number on the paper they sent and they said that it carries a fine of $150,000 but if I gave them $20 they would settle it. Now they call me every Monday, Wednesday & Friday and are continuing to send me the same letter.
Rights Corp is claiming that I owe them money because they served my internet service provider with a subpoena for my information. They call 3 or 4 times per day in addition to text messaging…
This company has been calling my home 3-4 times a day for months, originally threatening me to pay them thousands of dollars or they would sue us. Since the initial call with them, which I refused to comply with, they have called continually, everyday and on weekends, always with a recorded message that I never pick up...
And the company's "collection agents" appear to be disguising the origin of the calls.
False claims of copyright infringement from well-known copyright "troll". Company is California based, but call came from Tennessee.
...They are trying to intimidate me into giving them money for nothing by harassing me over the telephone. Most of the telephone calls are not live people, but an automated message that leaves me a voice mail from several different numbers with several different area codes..
I've reached out to Rightscorp to see if it has any comment on the FTC complaints. I'm not holding my breath for an answer, considering much of what's alleged in these complaints is the subject of two class action suits. But what's detailed here is nothing more than pure copyright trolling: baseless threats, harassment, and settlement offers. We've seen this deployed by a fair number of supposed rights enforcement entities and most of those are now languishing. Rightscorp isn't looking too healthy itself.
And the most amazing part is that -- despite two lawsuits centering on this abusive behavior -- it hasn't reined in its collection efforts. Many of the complaints filed with the FTC appeared after Morgan Pietz filed his lawsuit in November of 2014, with the latest listed being March 24, 2015. Apparently, it's just going to keep up its questionable tactics until it's forced to stop, even though there's little indication they've resulted in anything more than a few scattered, small settlements.
If you (lucky you!) don't pay attention to the latest craze among the internet media, you may have missed the mid-to-late-March hype cycle around two livestreaming apps that are available via Twitter. The initial darling was Meerkat, which became this year's annual darling-for-a-week at SXSW. Soon after, it was eclipsed by Periscope, a startup that Twitter bought, just about the same time it pulled Meerkat's ability to push notifications out to users. Both offer the same basic idea: enabling Twitter users to easily livestream video to their followers. Of course, livestreaming is not a new concept. It's been around for ages, and things like Ustream and JustinTV are well-known. Even BitTorrent has tried to get into the livestreaming game. Not surprisingly, livestreaming technology has been particularly useful for newsworthy situations -- and have been used extensively in violent clashes around the globe or at protests like in Ferguson, Missouri last summer.
But, of course, Hollywood absolutely hates such things. For years, they've argued that Ustream and JustinTV were destroying their businesses because some people would turn on a television and set up their phone or computer to livestream whatever they were seeing. So it should come as little shock that right after the media hype cycle around Periscope and Meerkat, a whole series of silly articles started appearing about the copyright consequences of livestreaming. The Guardian warned that these new livestreaming apps "could cost unwary brands dear." Billboard warned that these two new apps created a "legal minefield" because a song playing in the background might (*gasp*) infringe on someone's copyrights. The Atlantic warned that these apps were enabling "a new kind of internet pirate." And, CBS really went the distance with a fearmongering headline about how Periscope and Meerkat "threatened" the "multi-billion dollar sports broadcast copyrights," even though they do no such thing (and, in fact, that article speaks to no actual sports officials, whereas when Major League baseball was asked, it noted that it sees no real threat).
And, rather than admit that (1) livestreaming has been around for ages and hasn't really been a serious drag on revenue, and (2) it's not a particularly good user experience for watching broadcast content anyway, various folks in Hollywood lost their minds about these two new services. The main culprit? HBO. After there were a few scattered reports of various Game of Thrones fans using Periscope to broadcast the latest episode of the popular show, HBO decided that it's all Twitter's fault, and who cares about DMCA safe harbors, something must be done, and Twitter has to do it:
"We are aware of Periscope and have sent takedown notices," an HBO spokeswoman said in a statement. "In general, we feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications."
There are two issues there. First are the takedowns -- which is a part of the DMCA. But the second part is asking for Twitter to go Beyond the DMCA and to start proactively reviewing and policing the content that is streaming over Periscope. This is a bad idea for a whole variety of reasons that both Twitter and HBO should already understand. First, such efforts inevitably lead to takedowns that block important, legitimate, non-infringing speech. Considering how Periscope and Meerkat are designed for livestreaming events right now, blocking those could lead to important content never seeing the light of day at all. The chilling effects could be massive.
On top of that, there is little to no evidence that unauthorized streams of Game of Thrones are doing any harm whatsoever. In fact, Game of Thrones is often the prime example of how unauthorized streams have helped certain content get more attention and more long-term committed fans. Both a director on the show and Time Warner's CEO (who owns HBO) have admitted as much. So why the collective freakout about these new apps?
It seems, as is the tradition among some in Hollywood, any new technology that might possibly be used for some amount of infringement must be loudly condemned and shamed. Despite the fact that this policy never works, and tends to just lead to widespread ridicule, it is the only gameplan that the old guard in Hollywood have. They could embrace these things. HBO execs -- especially with the launch of HBO's new streaming services -- could be highlighting how much better the official streaming experience is than the crappy Periscope/Meerkat experience. But, what fun is that? That, apparently, takes work.
For a few years now, folks like Michael Weinberg have been pretty vocal about warning the world not to screw up 3D printing by falling for the same copyright/patenting mistakes that are now holding back other creative industries. Trying to lock up good ideas is not a good idea. Just recently we noted how 3D printing was challenging some long held beliefs about copyright, and we shouldn't simply fall into the old ways of doing things. At our inaugural Copia Institute summit, we had a really fascinating discussion about not letting intellectual property freakouts destroy the potential of 3D printing.
This bill would require every public library that provides public access to a 3D printer, as defined, to post a notice on or near the 3D printer that would alert users of the 3D printer of the potential liability of the user for misuse of the 3D printer, as specified. This bill would require the Department of Justice to draft and distribute this notice, as specified, and annually review and revise the notice for accuracy. By imposing additional duties upon local officials, this bill would create a state-mandated local program.
In the actual text of the law, they're explicit about how it's about not infringing intellectual property:
The Department of Justice shall prepare and distribute to a public library that provides public access to a 3D printer a notice that would alert users of the 3D printer of the potential liability of the user for misuse of the 3D printer. The notice shall do all of the following:
(A) Provide citations to the applicable state and federal laws that may impose civil liability or criminal penalties for misuse of a 3D printer, including laws regarding copyright infringement and trademark and patent protection.
Katy Perry's left shark is weeping at the ridiculousness of it all.
First of all, this shows the ridiculous ownership mentality of some, who automatically assume that creating something new must be infringing on someone's rights somewhere. Second, the idea that government mandated signs are somehow going to alleviate such uses is ridiculous. Beyond the fact that government "warnings" about infringement are routinely mocked (or just widely ignored), this has all the markings of the old red flag laws, in which the government mandated that there needed to be someone waving a red flag walking in front of every automobile. Trying to place restrictions on new technology based on some fantasy possible problems is no way to create a more innovative society and economy. It's only a way to hinder it.
What's really unfortunate, is it appears this bill was proposed by Assemblymember Nora Campos -- who represents San Jose. In other words, our Copia Inaugural Summit, in which we discussed these exact issues and why people shouldn't overreact was held in her district. And while Campos was invited to the event, and a number of her colleagues in the California Assembly attended, she did not. Perhaps it would have been helpful to have her come and learn about the actual issues related to intellectual property and 3D printing, rather than pushing out a ridiculous bill like this.
* For unclear reasons, the bill was originally about drones, and was then amended to remove everything drone related and add all the 3D printing stuff. It is unclear why.
Back during the SOPA fight, in a discussion with someone who was working with the politicians pushing SOPA, I pointed out that such a law would encourage much more encryption -- and the response was "that's no problem, because we'll just ban encryption next." As stupid and impossible as such a statement is, it shows the mindset of some copyright extremists. Thus, it should be no surprise that they're actually starting down just such a path in New Zealand. As we noted last year, Kiwi ISPs, frustrated that their users kept running up against geoblocks, have started offering VPN services that get around geoblocks as a standard feature there. Basically, this is nothing more than a recognition that the internet really is global and attempts to pretend otherwise are pretty fruitless.
However, the big media companies are not happy about this turn of events. A week or so ago, a bunch of them (Lightbox, MediaWorks, SKY, and TVNZ) teamed up to threaten New Zealand ISPs that if they didn't stop offering "global mode" VPN services to customers, that the media companies would sue -- arguing that merely offering such a service was copyright infringement. The letter is full of the usual bluster:
“Offshore providers, such as Netflix US, Hulu, Amazon Prime and BBC iplayer do not have the right to exploit the copyright works in New Zealand,” the letter says. Licenses they hold apply only to specific overseas locations and prohibit customers from circumventing geo-blocking measures and other content protections.
That may be true, but whether or not those companies are operating in New Zealand is not an issue that is of concern to the ISPs, who are providing internet access to the entire internet. If Netflix US, Hulu, Amazon and the BBC were the ones sneaking around the geoblocks, the companies might have a point. But arguing that merely offering a VPN service to users somehow violates the law seems like a crazy interpretation of copyright laws.
The four are claiming that Global Mode, offered by Slingshot and Orcon, and similar services offered by other providers, are ‘unlawful’ for several reasons.
Top of the list is infringement of the Copyright Act 1994, ‘either directly or as a joint tortfeasor’.
The four are also claiming the services are unlawful in providing ‘misleading representations’ in stating or implying ‘without a proper basis’ that it is lawful for New Zealand based users of the services to access content from the offshore providers, and that ‘circumvention of geo-blocking measures in this way is permitted by New Zealand law (just like parallel importing of DVDs)’.
The four are also claiming that use of the services constitutes a clear breach of the terms and conditions of the offshore providers – being the likes of Netflix, Hulu and Hulu Plus, Amazon Prime and BBC iPlayer.
From a loose reading of this it seems like they're really arguing three things: (1) that offering such a service is a form of "inducement" to infringement, (2) that this is a form of circumvention of restrictions, which violates anti-circumvention clauses and (3) that this violates the terms of those video services.
The third argument is meaningless since that's an issue between those services and the ISPs, not the media companies and the ISPs. The first one seems like a stretch but probably depends on a few factors, including how the services are marketed and whether or not merely viewing geoblocked content is a form of direct infringement (which seems like a stretch to me). The circumvention issue also seems like a stretch, but may depend on the specifics of New Zealand's Copyright Act, which I'm not as familiar with. You can read it here though to see which sections might apply.
Either way, with the threat looming, at least one ISP has caved, saying it's not worth the fight:
Unlimited Internet director Ben Simpson says that while his company doesn’t necessarily agree with that assertion, it has taken down the service nonetheless.
“Geo-unblocking services are a direct result of consumer demand for access to content that is not made available to the New Zealand market,” Simpson says.
“To be on the safe side, we have taken legal advice on this matter and I have made a firm call that we will sit on the sideline until a legal precedent has been set.”
Of course, whether or not offering such a service technically violates copyright law is kind of besides the point, as the very idea that offering such a service should be against the law is crazy. Such services provide real value to consumers not just in getting around pointless geoblocks, but also in protecting privacy. Trying to outlaw VPN services like that just to protect obsolete business models of media companies pretending the world is not global these days, just seems like yelling at the tide. But, given that it's big old media companies we're dealing with, they still haven't figured out that going with the tide is much easier than ordering it not to come in...
One of the most wonderful sights to see in the gaming community, particularly in the PC gaming community, is what a combination of a loyal fan-base and a strong modding community can produce. This is particularly so when the mods released are clear and active attempts at doing nothing more than making the original product even better. You see this all the time in PC gaming -- old games being yanked into the present, an increase the replayability of a classic, and even all-new sub-games created out of the original. All of this done through a modding community that loves the original work produced by game designers. Some gaming companies embrace the modding community, while some don't. Which way they go is typically decided by just how much control the company generally wants to exert over its product.
Guess which way Microsoft tends to go? Well, they tend to be the protectionist sort, but a recent story about the release of a new free-to-play Halo game, Halo Online, both puzzled me and amused me. The puzzled part came from Microsoft firmly insisting that the release would be available for play in Russia only, which...what the hell? Even the excuse of a long testing period in a Russia-only beta setting is, well, kind of strange.
Microsoft: Right now our focus is on learning as much as we can from the closed beta period in Russia. Theoretically, any expansion outside of Russia would have to go through region-specific changes to address player expectations.
Note that availability of the game to markets outside of Putin-ville is theoretical at this point. Except not really, of course, and that's where the amusement came from. Because if the alchemy ingredients for mods is a loyal fan-base, something begging for modification, and a capable modding community, everyone had to know that restricting this to Russia was going to be a barrier tested by the public before too long. It turns out that "before too long" meant in the past few weeks, because modders were already posting information on their work to free Halo from Russian imprisonment when Microsoft caught wind and fired off a DMCA notice to the host site.
Modders have been mucking about with the leaked Halo Online files to unlock features, with one team creating a game launcher called ‘ElDorito.’ But all that work came to screeching halt yesterday after Microsoft sent a DMCA takedown notice to Github, who was hosting the files. The site quickly complied. Microsoft sent the following notice to Github:
"We have received information that the domain listed above, which appears to be on servers under your control, is offering unlicensed copies of, or is engaged in other unauthorized activities relating to, copyrighted works published by Microsoft," the company wrote in a DMCA notice to Github.
Under other circumstances, that might be the end of the story, except that these are game modders we're talking about. When they commit, they're committed, and their work tends to mean that they're the sort of types who know how to route around these sorts of attacks. Now, to be clear, Microsoft certainly has the right to try to kill off these modders' work, but they're going to have to try a lot harder than a single DMCA if they want to really have this battle.
"In terms of DMCA/C&D mitigation, we have made redundant git backups on private and public git servers. This is to ensure we will always have one working copy. These are being synchronized so that data is always the same," [modder] Woovie explains. "Further DMCAs may happen potentially, it’s not really known at the moment. Our backups will always exist though and we will continue until we’re happy."
Team member Neoshadow42 says that, as a game developer himself, he sympathizes with Microsoft to a point about protecting ones copyrighted material:
"As someone involved in game development, I’m sympathetic with some developers when it comes to copyright issues. This is different though, in my opinion,” the dev explains. "The game was going to be free in the first place. The PC audience has been screaming for Halo 3 for years and years, and we saw the chance with this leak. The fact that we could, in theory, bring the game that everyone wants, without the added on stuff that would ruin the game, that’s something we’d be proud of."
Making the moral equation here slightly more complicated is that the things that "would ruin the game" don't only refer to the geo-restrictions, but to other game "features" as well, such as in-game microtransactions that almost uniformly piss off the PC gaming community. The modding team has aimed at removing those from the game as well, which, given that this is a free-to-play game, might break the business model Microsoft set up for the game. I expect Microsoft to continue battling for control of its product, as well as for the game's restrictions and microtransactions.
Ultimately, this is a damned shame, because there's a lesson to be learned from all of this and that lesson is not that the modding community is the enemy of the game designer. This is pure market testing at its finest. What this entire episode clearly outlines for Microsoft, were it willing to listen, is that potential customers want wider availability for the beta version of the game (as in, not restricted along national borders) and don't want annoying microtransactions in a Halo game. And if they want those things, fans will be willing to pay for them. Should Microsoft continue with its plan to not meet customer demand, those customers likely won't go unfulfilled, they'll simply find their pleasure in the form of a mod from a strong modding community that Microsoft wants to play whac-a-mole with, rather than listen to the wants of its customers.