It's not like many of us haven't been saying this for years: but fighting piracy through greater copyright enforcement doesn't work. It's never worked and it's unlikely to ever work. A year ago, we released our big report, The Carrot or the Stick? that explored at a macro level what appeared to lead to reduced levels of piracy -- enforcement or legal alternatives -- and found overwhelming evidence that enforcement had little long-term impact (and a small short-term impact), but that enabling legal alternatives had a massive impact in reducing piracy. This should sound obvious, but it was important to look at the actual data, which backed it up.
The researchers say that in order to compete with unlawful file sharing (UFS), easy access to information about the benefits of legal purchases or services should be given in a way that meets the specific benefits UFS offers in terms of quality, flexibility of use and cost.
The team looked at the extent to which the unlawful sharing of music and eBooks is motivated by the perceived benefits as opposed to the legal risks. Involving almost 1400 consumers, the research explored people's ability to remain anonymous online, their trust in the industries and UK legal regulators such as Ofcom, and their downloading behaviour.
It's a very different approach to our own research, but the conclusions remain almost identical. In short, the researchers found that for people who really "trust" regulators, then the threat of punishment was effective. The problem, however, is that not that many people actually trust regulators. That leaves officials with two choices: increase trust in regulators, or... figure out ways to incentivize more legal, innovative alternatives. And, of course, one way to destroy trust in regulators is to support policies like expanding copyright enforcement.
Co-author Dr Piers Fleming, from UEA's School of Psychology, said: "It is perhaps no surprise that legal interventions regarding UFS have a limited and possibly short-term effect, while legal services that compete with UFS have attracted significant numbers of consumers.
"Our findings suggest that it may be possible to diminish the perceived benefit of UFS by increasing risk perception, but only to the extent that UFS is considered emotionally, and users trust industry and regulators. Increasing trust in industry and regulators may be one route toward encouraging UFS to be considered in emotional rather than rational terms. However, given the limited impact of risk perception upon behaviour, a better strategy would be to provide a desirable legal alternative."
So, that's common sense and two very different studies with very different approaches -- all suggesting the same thing. And yet, politicians, regulators and legacy industry folks still insist that ratcheting up enforcement is the way to go. What will it take for them to actually follow what the evidence says, rather than continuing with faith-based copyright policies?
Usually, when we see stupid and dangerous DMCA errors like Warner Bros. taking down its own website and Paramount taking down legitimate Linux torrents, it's the studios we call out first for their wanton abuse of the system. But of course that's only part of the story — there is a system of broken incentives both inside and outside the studios that has created an entire "anti-piracy" ecosystem. It started with the third parties that many studios and other rightsholders hire: self-styled copyright enforcement experts who charge a fee to piss an endless stream of DMCA notices into the wind of piracy. Some studios, like NBCUniversal (who we'll be talking about in a moment) choose instead to build this function into their internal structure with anti-piracy divisions staffed by the same kind of folks. Thanks to the willingness of copyright holders to pay out for this pointless service, it's grown into a whole industry — and it's an industry for which the never-ending, whac-a-mole nature of the takedown game is a plus, since it means the job will never be done. While there's plenty of blame to go around among media companies and lawmakers, it's these takedown "experts" who are the most directly responsible for the epidemic of botched and fraudulent takedown notices.
And it's easy to see why: they need to pad the numbers. If we accept that the whole exercise is pointless (it is) and there's no actual end goal (there isn't) then what makes one anti-piracy outfit better than another? Why, sheer volume of pointlessness, of course! The executive who hired the firm that takes down two-million links can brag about his competence compared to the executive who only got one-million for the same price, and the executive who designed the internal division that hit three-million for even less is a damn hero — even though they're all just futilely pecking away at "infinity". And so, since there's no real penalty for abusing the DMCA, these groups have zero incentive to fret about only sending fair and accurate takedowns. But that's not all — they also have every incentive to actively pad their numbers with takedowns they know are bullshit, and as TorrentFreak discovered last month and recently demonstrated again in pretty undeniable terms, that's exactly what they're doing:
... this may look like a proper notice. However, upon closer inspection it’s clear that the URL structure of the links is different from the format Torrentz2 uses. The notice in question lists this URL:
The link NBC Universal reports has never existed and simply returns a blank page. TorrentFreak reached out to the operator of the site who confirmed that they have never used this URL format.
This ‘mistake’ can be explained though. The URL structure NBCUniversal uses comes from the original Torrentz site, meaning that NBC simply did a search and replaced the old domain with a new one, without checking if the URLs exist.
In other words, they fabricated these links.
And this isn't some isolated incident. TorrentFreak found plenty of new notices targeting URLs where the whole site had been taken down last year, and the URL didn't even exist when it was up. It's clear what's happening: they're just subbing out various known torrent domains into big lists of URLs that maybe, once, sorta, in a similar format on a different site, actually pointed to infringing material — and then billing their masters per URL targeted, regardless of whether it turned out to actually exist or not. Counting up all the fraudulent notices is next to impossible, but TF estimates there were tens if not hundreds of thousands of such URLs included in notices in the past few months alone.
Now, these takedowns of fake URLs might not seem as worrying or embarrassing as the notices that target legal material or a copyright holder's own website, but they are further evidence of just how stupid the whole system is, and how badly it needs to be fixed. In a world where takedown notices are automatically generated by the millions without concern for whether or not the URLs are even valid, can we ever expect them to stop targeting legitimate speech and legal distribution? No. The DMCA needs teeth when it comes to punishing abusers, but giving it those teeth means dismantling this entire automated, slapdash anti-piracy industry — and don't expect them to go without a fight.
For decades now, consumers have been lured into a sour deal: pay for a relatively inexpensive printer, then spend a lifetime paying an arm and a leg for viciously overpriced printer cartridges. As most have learned first-hand, any attempt to disrupt this obnoxious paradigm via third-party printer cartridges has been met with a swift DRM roundhouse kick to the solar plexus. In fact if there's an area where the printer industry actually innovates, it's most frequently in finding new, creative and obnoxious methods of preventing cartridge competition.
Hoping to bring this parade of awfulness to its customers at scale, HP this week unearthed the atomic bomb of printer cartridge shenanigans. HP Printer owners collectively discovered on September 13 that their printers would no longer even accept budget cartridges. Why? A firmware update pushed by the company effectively prevented HP printers from even detecting alternative cartridges, resulting in HP printer owners getting messages about a "cartridge problem," or errors stating "one or more cartridges are missing or damaged," or that the user was using an "older generation cartridge."
As Cory Doctorow over at Boing Boing notes, this behavior is simply par for the course, with Lexmark engaging in similar behavior back in 2003. By embedding an "I am empty" bit in their cartridges, they were similarly able to ensure that users couldn't use third-party cartridges or they'd be told the cartridge lacked ink. Lexmark leaned heavily on Section 1201 of the DMCA to support its behavior, a tactic HP is likely to mirror but evolve:
"Lexmark invoked Section 1201 of the DMCA, which makes it a criminal and civil offense to bypass an "effective means of access control" for a copyrighted work. The DC Circuit court asked Lexmark which copyrighted work was being protected by its access control, and it argued that the checking routine itself was copyrighted, as well as the "Empty" bit. The court found that the DMCA could only be invoked where there was a copyrighted work apart from the access control, and that a single bit didn't qualify as a copyrightable work. Lexmark lost."
In this case, HP's DRM time bomb firmware update was apparently deployed back in March, but HP didn't activate the "improvement" until this month. And as is usually the case in this space, HP isn't saying much outside of a misleading quote proclaiming the company was simply protecting its "innovations" and intellectual property:
"HP said such updates were rolled out "periodically" but did not comment on the timing of the last instalment.
"The purpose of this update is to protect HP's innovations and intellectual property," it said in a statement."
But rejoice! HP claims that users can still refill cartridges, as long as those cartridges contain an HP-approved security chip:
"These printers will continue to work with refilled or remanufactured cartridges with an original HP security chip. Other cartridges may not function."
Well, at least until HP figures out a way to DRM the printer fluid itself, which surely can't be too far along on the horizon.
In the first six months of 2016, WordPress received 4,258 DMCA takedown notices, 9 percent of which were rejected as abusive, according to the company's Transparency Report. And though those numbers are nowhere near the volume of, say, Google, the costs of those abuses are high, Sieminski says. "There's really a big chilling effect on speech, especially controversial speech, because there's a very handy tool to use to remove that type of reporting from the internet," he says. "And as a company, we have to invest in the human resources … to sift through the mountain of notices we get."
There are some more interesting quotes in there as well. Having himself featured in Corporate Counsel Magazine seems like reason enough for a Facebook post, so Paul posted a link to the story on Facebook as well, with a little blurb noting how it was "fun" to be quoted, and how such automated takedowns "happen hundreds of times a day, but make the news only occasionally."
Can you guess what happened next? Of course you can...
Facebook's automated takedown algorithms decided that Paul's brief post and link about how bad automated takedowns are... got taken down, because irony lives.
Meta. Posted an article about erroneous, bot driven, internet takedowns. Post was just wrongly removed by Facebook. https://t.co/XSmX2weHf3
Facebook claims that posting about automated takedowns and how they're problematic somehow violates its Community Standards. Obviously, this is a mistake (yet another one) by Facebook's autotakedown system, but it really does help highlight the point of how problematic this kind of system can be, when perfectly legitimate speech is silenced, because a bot thinks it's bad.
* Full disclosure: Automattic recently sponsored & hosted our event on copyright reform, and Paul was our main contact there for that event.
Today is "International Talk like a Pirate Day." While it's a lot of fun to act like a pirate, drink rum and catch up on Errol Flynn movies, piracy is also a serious issue with real economic and legal significance. As electronic devices become an increasingly ubiquitous part of our lives, the content we consume has moved from analog to digital. This has made copying – as well as pirating – increasingly easy and prevalent.
Adding fuel to the flames of this rising "pirate generation" has been the content industry's recalcitrant and often combative attitude toward digital markets. Piracy, and the reactions to it, has had an immense impact on the daily lives of ordinary Americans, shaping their digital experience by determining how they can share, transfer and consume content.
As soon as electronic storage and communication technology was sufficiently developed, digital piracy became accessible. Whether it's a song, movie, video game or other piece of software, you could suddenly reproduce it without having to steal it off a shelf or obtain any specialized machinery to counterfeit it. Additionally, if you wanted to listen to an mp3 of the latest Britney Spears album on your computer, there weren't many lawful options. This led to a surge in online piracy and helped foster a culture of online file-sharing.
The music industry historically has a reputation for being hostile to, or at least slow to embrace, digital markets. Yet there were also some major artists who were early innovators in the space.
Before Spotify or iTunes, there was BowieNet. This music-focused internet service provider launched in July 1998 and gave users 5MB of space to create and share their own websites, content and chat. On BowieNet, according to Ars Technica: "[f]ans could get access to unreleased music, artwork, live chats, first-in-line tickets, backstage access, tickets to private, fan club-only concerts." David Bowie saw the potential to help his fan base access his content and discuss it in a social way in the early days of the internet, before Facebook or Myspace. He remarked at the time: "If I was 19 again, I'd bypass music and go right to the internet."
Bowie wasn't the only early music pioneer of the internet. Prince was also an early unsung hero. In the early 2000s, he created NPG Music Group, later Lotusflow3r. He even won a Webby Lifetime Achievement Award in 2006. Unlike BowieNet, NPG and later Lotusflow3r provided releases of full albums.
As musicians and users were experimenting with new ways to share content on the internet, the United States was working with other World Intellectual Property Organization (WIPO) member countries to create the most comprehensive "digital" update to the Copyright Act. In 1998, President Clinton signed into law the Digital Millennium Copyright Act, which implemented U.S. WIPO treaty obligations, as well as several other significant titles (including the Vessel Hull Design Protection Act – which pirates of the nautical variety might care about). Of particular importance were the sections providing for "safe harbor" (Sec. 512), which protected service providers from infringing content generated by their users, and "anti-circumvention" (Sec. 1201), which was meant to stop pirates from hacking digital rights management (DRM) and similar restriction technologies.
Unfortunately, while the system worked when isolated incidents of infringement occurred on largely static web pages—as was the case when the law was passed in 1998—it is largely useless in the current world where illegal links that are taken down reappear instantaneously. The result is a never-ending game that is both costly and increasingly pointless.
While lawmakers were hard at work trying to find ways to quell online piracy, the courts weren't taking a nap. Indeed, going back to the 1980s, there were important judicial fights that would set the stage for how content would be handled on our electronic devices.
The U.S. Supreme Court's 1984 Sony Corp. of America v Universal City Studios Inc.decision coined what is known as "time shifting," referring to a user's ability to record a live show using the Betamax to watch it later. The court's decision set the precedent that a manufacturer would not be held liable for any contributory negligence or potential infringement where they did not have actual knowledge of infringement and their devices were sold for a legitimate, non-infringing purpose. As Justice John Paul Stevens wrote in the majority opinion:
One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible. It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written.
But not everyone was so enthusiastic. Jack Valenti, former president of the Motion Picture Association of America said in a congressional hearing two years prior [regarding VHS technology]:
We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.
The 9th U.S. Circuit Court of Appeals would take another approach in 2000s A&M Records v Napster. The court affirmed the district court's ruling that peer-to-peer services could be held for contributory infringement and vicarious liability. Even though their service merely facilitated the exchange of music as an intermediary, they were on the hook. Judge Marilyn Hall Patel wrote in the district court's ruling:
…virtually all Napster users engage in the unauthorized downloading or uploading of copyrighted music; as much as eighty-seven percent of the files available on Napster may be copyrighted, and more than seventy percent may be owned or administered by plaintiffs
Napster lodged several defenses, including fair use, but the most important (in lieu of the Sony decision) was the concept of "space-shifting," referring to the process of a user converting a compact disc recording to mp3 files, then using Napster to transfer the music to a different computer. Patel concluded Sony did not apply, because Napster retained control over their product, unlike Sony's Betamax, which was manufactured and sold, but not actively monitored.
The courts would continue ruling in a similar manner as other peer-to-peer services found themselves in the courtroom. At times, users would be targeted. And in the 2003 case of In re: Aimster, the pirates' bluntness for wanting to bring the music industry to its knees did not help the situation
What you have with Aimster is a way to share, copy, listen to, and basically in a nutshell break the law using files from other people's computers…. I suggest you accept aimster for what it is, an unrestricted music file sharing database – (posted by zhardoum, May 18, 2001)
Naturally with all of the music-sharing services were being shut down, the pirates found a new way to connect, share files and shape the industry. Which brings us to BitTorrent and websites like The Pirate Bay and Swepiracy. Torrenting does not require a central server, does not require direct streaming from one peer to another and the host does not contain any full file contents. All of the content received is from other users.
Sweden brought Pirate Bay to trial for both civil and criminal penalties. Per E. Samuelson, the site's attorney, lodged the now-famous (and familiar, for U.S. copyright scholars) King Kong defense:
EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don't initiate transfers. It's the users that do and they are physically identifiable people.
The defense was unsuccessful. Which brings many questions to mind for future cases — how will courts begin to rule with such complex systems of file transfer as fragmented torrents? Targeting users is widely unpopular, especially in the United States, where statutory penalties range from $750 to $300,000 per willful infringing use and $200 to $150,000 for non-willful infringement.
Efforts around the world have continually been made to combat piracy. But maybe it's time we take a fresh look at the market. As the Copia Institute observed in a recent report, whenever there are new ways to share content legally, users ultimately respond by employing those technologies.
On this International Talk like a Pirate Day, let's take a moment to remember the pirates and how they have helped shape the internet era. While CD sales and digital downloads may be declining, new streaming services are on the rise (vinyl records are also doing remarkably well). The digital revolution has, indeed, changed how we consume and access our music. It has given us access to (nearly) everything, through services like Spotify and Apple music, at a reasonable price and with unparalleled convenience.
From the consumer's perspective, you now carry hundreds of hours of music on your phone and listen to it whenever you want – no need for one of those bulky CD binders. The slot where the CD used to go in your car is now an auxiliary cable jack.
From an artist perspective's, these are new challenges that require adaptation. Particularly in the case of music licensing, our pre-existing laws are unnecessarily complex, cumbersome and antiquated. However, innovative technologies and services are not to blame. Instead, we should seek new and equally innovative ways for artists to be compensated through more direct and transparent payments (such as Ujo).
While our copyright laws are far from perfect, we still have substantial freedom to remix, repurpose and share creative content online in a social context. This is essential to online free expression, digital commerce and the proper functioning of the internet itself. As additional discussions in Congress and in the courts move forward, let's make sure we keep it that way.
Just a few weeks ago, we had lawyer Ira Rothken on our podcast (it's a really great episode, so check it out if you haven't heard it yet). Rothken has been involved in lots of big copyright cases, but is probably most well-known these days as Kim Dotcom's US lawyer. In that episode we talked a lot about the Kim Dotcom situation, but also spent a fair amount of time on the case of Artem Vaulin, who was arrested in Poland for running the search engine KickassTorrents. The US is seeking to extradite him to stand trial in Illinois. On the podcast, Rothken expressed some concerns that he hadn't been able to speak directly to Vaulin and noted that he was working on it.
Even though nearly two months have passed, the alleged KickassTorrents owner still hasn’t been allowed to meet with his U.S. defense team. A clear due process violation, according to Rothken.
“We still have not had an opportunity, nor have we been granted access, to meet with Artem Vaulin in prison in Poland. So we now believe that this has ripened into an international due process problem.
“We believe that Artem’s rights are now being impacted with his inability to communicate with U.S. counsel,” Rothken tells TF.
Vaulin is allowed to meet with his Polish lawyer, but since the charges against him are in the US, under US law, and the key issue involves extradition to the US, it's ridiculous that he's unable to consult with a US lawyer.
“There’s no way that there could be a fair trial in the United States, or a fair extradition process, without Artem being able to have access to U.S. counsel, to learn his rights, to be able to galvanize the evidence, and to do so in a robust and expedient manner,”
It seems quite bizarre that Vaulin is being denied access to his lawyer. Once again, as with the Dotcom case, it feels like a situation where officials are purposely stacking the deck against the person they're accusing, doing everything possible to make sure that they're pressured into cutting a deal, rather than actually being able to fight for their rights.
The details here do matter. The defendant, lawyer Ezra Sutton, had worked alongside Newegg in one of the many patent troll lawsuits. Sutton was representing another company sued in the same lawsuit as Newegg by a patent troll, Adjustacam. They had won the case against the troll, and both Newegg and the company Sutton represented, Sakar International, filed motions seeking attorneys' fees. Here's where things get iffy on Sutton's part, as described by Alison Frankel via the Reuters link above:
As Newegg general counsel Lee Cheng recounts the story, he told Sutton early on that Newegg would be willing to file a joint brief with Sakar if Sakar paid a share of the legal fees. Sutton said no thanks, but, as the filing deadline approached, he came back to Newegg. Cheng agreed to show Sutton a draft of the brief Newegg intended to submit to the Federal Circuit to help him write a complementary brief for Sakar.
Instead, the day before Newegg’s brief was due, Sutton filed a brief that was largely copied from Newegg’s draft. When Newegg realized what he’d done and protested the filing, Sutton withdrew the brief and subsequently filed a shorter version focused on Sakar’s argument.
So, first off, what a shitty thing to do by Sutton. I think that's pretty clear. At the very least it potentially would have made a mess for Newegg who would have looked bad filing a nearly identical brief to Sutton's after he did. But, then there's the question of what to do about it. Newegg decided to sue Sutton for copyright infringement -- and this is where I'm a lot less comfortable with Newegg's decision. I think it's the wrong move.
We've actually discussed the question of whether or not legal briefs should be subject to copyright before. A few years ago, some lawyers sued the big legal publishing companies, Westlaw and LexisNexis, for republishing briefs when they published compendiums of cases. That was ridiculous, and thankfully the court tossed out the lawsuit, finding that the republishing in this case was easily fair use.
Admittedly the facts in Newegg's case against Sutton are very different. This isn't republishing dockets for lawyers and scholars to access and review. The situation here seemed more like plagiarism, with Sutton more or less trying to take credit for Newegg's work (which had the knock on effect of potentially making Newegg look bad). And I get all of that, but it still troubles me that copyright was the tool here. It feels inappropriate. Copyright is supposed to be about the incentives to create. And no one needs a copyright incentive to create a legal brief -- something that Newegg's Cheng agreed about when I reached out to him about this case. He more or less admits that they're just using copyright here for a clearly non-copyright purpose. As he told me:
"We didn't file this case for profit or money. It's for principle and justice (corny but those values truly motivate me). However, we do believe that Sutton's action did cause us monetary harm and that we are entitled to remedies, but it clearly wasn't the focus of this suit. This suit was to send a message, strictly directed at unethical and lazy lawyers, to do what they learned in the first year of law school in terms of properly crediting others' work, and to do what anyone with common decency would do. Lawyers should be held to, and should hold themselves to, higher rather than lower standards."
I don't disagree with any of that -- but it's still troubling to me that copyright is the tool here, because that's a decidedly non-copyright thing that it's being used for. In fact, this seems to be one of those situations where the complaint is really about plagiarism rather than copyright, but where there's enough overlap that the legal mechanism of copyright is enabled to come into play. I fear that this will then be used by others in even more abusive ways -- though Cheng seems confident that the specific facts of this case would likely limit such a potential result.
I'm even bothered a bit by the fair use analysis here where the judge denied Sutton's fair use claims. I would think that the question of whether or not a legal brief should be covered by copyright would be a pretty big factor here. And the judge does agree that this point weighs somewhat in Sutton's favor (and points to that earlier case). The judge also finds, correctly, that the 4th factor -- the impact on the market -- weighs in favor of Sutton since Newegg doesn't have a market for selling its legal briefs. But while many courts often point to that 4th factor as a key one, this court basically just decides that it doesn't matter as much:
Upon consideration of all four factors, with more weight given to the first and
third factors based on the facts, circumstances and particular nature of this case, Sutton
did not meet his burden of establishing a prima facie case that his copying of Newegg’s
draft brief was fair use.
So, yes, he's saying because of the specific facts in this case, but it does feel like -- as is all too often the case in fair use cases -- the judge has basically determined what result he wants, and then weighs the four factors accordingly. Admittedly, this might not be a huge deal. The facts are pretty specific, and plagiarizing is sleazy. But, I'm still troubled with the use of copyright to punish even sleazy behavior if it's not related to the reasons for copyright existing.
The music community’s grievances are the following: (1) The DMCA allows internet service providers to build ad-based businesses built upon infringing content that the artists cannot effectively police through “notice and take down” procedures; (2) If and when service providers pay the artists, it’s on the providers’ hopelessly complex terms, resulting in payments that offer fractions of pennies per view; (3) Service providers offer “free” teaser music to the public when copyright owners should have the absolute right to control distribution of their music.
(1) The DMCA sucks, but it sucks the way studios and labels wanted it to. Now they don't like it and they want to change it to suck in a different way. They're also arguing for "notice and STAY down," which works out great for labels/studios… unless they're inadvertently targeting their OWN site with unvetted DMCA notices.
(2) "Hopelessly complex terms" are included in almost every royalty agreement. Service providers don't have a monopoly on this behavior.
(3) If copyright owners want "absolute control," they're free to pull their music, movies, etc. from services they don't like. Not many have, because not many are willing to give up this revenue stream they constantly claim isn't paying enough. As for the artists themselves, they have no "absolute control" -- not if they're signed to a label. Young may be writing about screwed artists, but he's really only interested in protecting the "rights" of gatekeepers.
He confirms this by claiming major labels deserve to be treated better than other copyright owners.
Free music streaming is fair only for original, home-based music. However, what the public streams mostly comprises of premium, professional content. This content is expensive to create, risky to market and requires many behind-the- scene professionals.
It's OK for service providers to screw the little guy. But don't mess with the majors. They have oh-so-many mouths to feed -- mouths that are more deserving of revenue than creators that don't cut them in on the deal. Young wants a better deal for artists, but with a caste system attached.
Every minute, 400 hours of footage is uploaded to YouTube, much of it synched to copyrighted music. [Note: citation needed.] This gives YouTube a distinct advantage over Spotify, Tidal, Apple Music and other services that do not offer user-generated streaming of works they do not control.
Much of this YouTube footage is monetized with paid ads. YouTube retains a minimum of 45 percent of this revenue, at prices it sets (but does not reveal), irrespective of the content’s creation costs.
Major label music should "pay" more -- whether it's a premium in subscription fees or a larger cut of advertising revenue payouts. Why? Because it costs more to make. But production costs have little to do with pricing -- and that includes advertising revenue.
If we lived in Young's world, tickets to "Paranormal Activity" (production budget: $450,000) would be $5 and tickets to "Avatar" (production budget $425,000,000) would be $4,700. [Productions costs taken from here.] Buying My Bloody Valentine's "Loveless" would bankrupt music fans just as certainly as it nearly financially destroyed the label that released it, while Owl City's basement-produced hit album could presumably be had for a handful of pocket change.
Young -- and the label he worked for -- appear to believe the internet owes them a living. But just them. Not the rest of these shabby artists the labels are unwilling to gatekeep for.
Once Young has finished deliberately misunderstanding how markets work, he moves on to the point of his op-ed, which begins with him recycling the stupid "built on the backs of artists" trope that presumes no service provider could ever become successful without engaging in copyright infringement. Then he goes right off the rails.
I would argue for stronger, industry-wide measures: a complete repeal of the safe harbor provisions of the DMCA and a prohibition on any unauthorized uploading of the property of others.
The first part is insane. Young actually wants service providers to be fully responsible for the actions of their users. Like the ongoing attacks on Section 230 of the CDA, this is a very lazy, very dangerous attempt to paint targets on the backs of those who have money, rather than perform the more difficult work of targeting the users who actually commit copyright infringement, make defamatory statements, etc.
This line of thinking says labels and studios need do nothing more than bitch loudly and expect everyone else to solve their problems -- whether it's websites, legislators, or internet service providers. This is how they "protect" their artists. By complaining stupidly and demanding the internet be torn apart and rebuilt to their specifications, damn the collateral damage.
The second part is just moronic. Every site prohibits unauthorized uploadings. Active efforts are made to police uploaded content and any site that wants to stay alive for long sets up a DMCA agent to respond to takedown notices. But it's never enough. Young apparently feels current prohibitions just aren't prohibitive enough, as though there were a magical tech solution somewhere that might prevent any unauthorized uploading from taking place ever again, if only service providers weren't so busy raking in billions on the backs of major label artists.
The whole op-ed is an embarrassment. But, unfortunately, it's par for the course in major label/studio arguments. It's worse than the blind leading the naked. It's the ignorant leading the angry. It's short-sighted rent-seeking by people who somehow think they can force more revenue out of service providers by destroying the protections that have allowed them to prosper.
The Indian court went the other way. The full ruling takes a fair use-style look at the question, and recognizes that educational purposes are more important than padding the bank account of some big publishers. The ruling is pretty long, but there are a number of good points in there. Here's the one that a bunch of people have been quoting, noting that copyright is not inevitable, divine or a natural right:
Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.
Now that's a damn good quote on copyright law.
The court also talks a lot about how technology has changed over time, and that it shouldn't be held back by copyright.
Today, nearly all students of the defendant no.2 University would be carrying cell phones and most of the cell phones have a camera inbuilt which enables a student to, instead of taking notes from the books in the library, click photographs of each page of the portions of the book required to be studied by him and to thereafter by connecting the phone to the printer take print of the said photographs or to read directly from the cell phone or by connecting the same to a larger screen. The same would again qualify as fair use and which cannot be stopped.
The German Federal Supreme Court in Re. the Supply of Photocopies of Newspaper Articles by Public Library  E.C.C. 237 held that in a modern technologically highly developed nation like Germany, an extensive fast functioning and economic information exchange was vital; that is why the libraries were given the freedom to operate and the reproduction rights of authors were restricted in favour of freedom of information; that it was sufficient to escape liability for copyright infringement if the customer of the library could claim the benefit of the exemption which allowed the copying for personal use, of articles published in a periodical; whether or not the library charges for its service is immaterial;
The court similarly notes the hypocrisy of lawyers who regularly photocopy things now complaining about students doing the same:
What the defendant no.2 University is doing is not different from what is being done in the Bar Association library in the premises of this Court. With the advent of photocopying, the advocates of this Court, instead of carrying books from their residences / offices to this Court for citing judgments therefrom during the course of arguments and instead of giving in advance the list of such books to the Restorer of this Court and the Restorer of this Court also taking out the court's copies of the same books for the Judges to read, and all of which was cumbersome and time consuming, started having the photocopies of the relevant judgments made from the books in the Bar Association Library of this Court. Initially the said photocopying was got done by having the book issued from the library and carrying the same to the photocopier who had, for the convenience of the advocates, been granted a licence to operate from the premises of this Court. Subsequently, for expediency and to avoid the books being taken out of the library, the Bar Association library itself allowed the photocopier to install his machine within the library premises and any advocate could get the photocopy done by having the relevant judgment photocopied within the Bar Association library by paying the cost of photocopy as is fixed by the Bar Association.
It's always nice to see a good copyright ruling -- especially one that will make it easier for the dissemination of knowledge and learning in an academic setting.
For quite some time now, we've been following an odd case through the German and then EU court system, concerning whether or not the operator of an open WiFi system should be liable for copyright infringement that occurs over that access point. Back in 2010, a German court first said that if you don't secure your WiFi, you can get fined. This was very problematic -- especially for those of us who believe in open WiFi. The EU Court of Justice agreed to hear the case and the Advocate General recommended a good ruling: that WiFi operators are not liable and also that they shouldn't be forced to password protect their access points.
In today’s judgment, the Court holds, first of all, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive.
Next, the Court confirms that, where the above three conditions are satisfied, a service provider such as Mr Mc Fadden, who providers access to a communication network, may not be held liable. Consequently, the copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe its rights. Since such a claim cannot be successful, the copyright holder is also precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to that claim.
However, the directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers.
Lastly, the Court holds that an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users. The Court notes, in particular, that such a measure is capable of deterring network users from infringing intellectual property rights.
The details here are especially troubling. As legal experts are noting, this ruling basically says that the times when an injunction can be ordered for password protection, the reason is for the sake of identifying users:
In McFadden the CJEU appears to have decided that password protection would be effective only if the user is required to provide identity details to the service provider so that the user cannot act anonymously.
Now that should raise some very serious concerns about anonymity and privacy -- things that we thought the EU supported. Instead, the CJEU basically seems to be saying you have a right to anonymity in connecting to the internet up until the point a major copyright holder doesn't like it any more, and they can now force WiFi operators to lock up their WiFi and/or demand identification to use it. Yikes.
This also punches a HUGE hole in the previous day's announcement by the EU Commission that there would be open WiFi across Europe. Under this new CJEU ruling, that may no longer be possible. It's fairly incredible how, between the European Court of Justice and the EU Commission, they seem so oddly confused about copyright and related issues that they seem to be messing absolutely everything up in just a few short weeks.