One of the reasons why many people are opposed to various "site blocking" laws, is that inevitably such things get abused. And while the US successfully stopped SOPA's site blocking plan, plenty of other countries went ahead and implemented something similar -- including, apparently, Portugal. Yet, earlier today, reports came out that the Portuguese site-blocking system was now blocking the website of an American video game development shop called Carbon Games.
Now, it does appear that someone just screwed up here. It's not happening on all Portuguese connections, but it did happen on multiple ISPs according to the initial report on Reddit. Also, it seems they only blocked the version of the website where the URL starts with "www." Get rid of that and people could access the website without a problem -- again adding to the likelihood of a general screwup. Oh yeah, also, it looks like if you use any other DNS provider, such as Google's DNS, you'd avoid the blocks (another reason why blocking at the DNS level is kind of stupid).
Either way, even if it was just a "mistake," the fact that it happened at all should be a huge concern. When entire websites can be blocked without any real review or due process, it opens the door to much more serious and widespread censorship. It's again troubling how quickly many in the copyright realm ignore the nature of this slippery slope.
A little over a year ago, the MPAA pulled out all the stops in announcing and promoting its new WhereToWatch.com website, which provides lots of information on where you can watch authorized versions of various movies and TV shows. The idea behind it was certainly a noble one. One of the big arguments made by many concerning accessing unauthorized copies of such content is that there aren't real legal alternatives. So the MPAA figured that if it makes it easier to find such authorized alternatives that would be helpful. And, indeed, that's a good idea.
Of course, underlying all of this was that the MPAA hoped to use this site to try to undermine the argument that piracy is about a lack of alternatives. The MPAA basically never misses a chance these days to point to the site as "proof" that Hollywood is meeting consumer needs, and thus claiming that piracy is not about a lack of authorized versions. It seems worth noting that this leaves out that not all authorized versions are convenient (which is another big complaint), including things like restrictive DRM or security-faulty technology. Or they do stupid things (at the demand of Hollywood) like only letting you watch a movie you paid for within a 24-hour time frame. But, let's leave that aside for the moment.
Instead, let's focus on the fact that the MPAA is using this site to push for revisions to the DMCA, such as pushing heavily for a "notice and staydown" provision that means that once they send a DMCA takedown notice, online platforms would be required to make sure such content never shows up again, or face serious liability. This is problematic on any number of levels, including the fact that it increases monitoring, decreases privacy and does nothing to take context into account (the same content may be infringing in some cases, while fair use or authorized in others).
And it totally fails to take into account the vast number of false takedowns. For example, how about false takedowns directed at the MPAA's own WhereToWatch website? Because TorrentFreak is reporting that Hollywood studios have been sending such bogus DMCA takedowns, directed at links to the MPAA's own site, which the MPAA itself has argued is a key part of its "anti-piracy" strategy. The article points to DMCA takedown notices sent for the WhereToWatch links for such Hollywood blockbusters as The Hunger Games: Mockingjay -- Part 2 and The Fault in Our Stars on Google, meaning that when you do a Google search on trying to find those entries on WhereToWatch, you come up empty:
Yes, yes, these are "simple mistakes" almost certainly made by companies hired by the studios who do terrible half-assed automated searches and takedowns without ever bothering to see if what they're taking down is legitimately infringing. But that's kind of the point. The MPAA wants a notice-and-staydown provision because they want to pretend that these kinds of mistakes never happen, rather than acknowledge the reality that they happen basically every day -- even to (or by) the MPAA itself.
Strap in, folks, because we've got quite a battle brewing. You may recall that Mike Huckabee recently found himself the subject of a copyright dispute with Frank Sullivan, a member of Survivor, over the use of the band's hit song Eye of the Tiger at a rally for the release of Kim Davis. Davis was the county clerk who asserted that her right to express her religion -- in the form of denying same sex couples the right to marry -- overrode the secular law of the land, which is about as bad a misunderstanding of how our secular government works as can be imagined. Sullivan's filing indicated that the rally was conducted by the Huckabee campaign and that the use of the song had been without permission, therefore it was an infringing use. Left out of the filing was any indication of whether the Huckabee campaign had acquired the normal performance licenses.
Based on Huckabee's response, it seems like no license was ever obtained, as Huckabee is instead claiming the use was fair use, and that the use was exempt from copyright law to begin with because the Kim Davis rally was a religious assembly.
The fair use claims are pretty simple, though I'm not sure they're particularly likely to succeed. Huckabee claims the use was non-commercial (relating back to the nature of the rally as a religious gathering), that the amount of the work he used was non-substantial (something like a quarter of the entire recorded song was used), and argues that the effect of it being played was essentially one of free advertising for the band, and so there was no harm done in the marketplace. We've seen those affirmative defenses raised in the past, with varying degrees of success, but this doesn't ring as a case where the copyright holder is reaching as far as in other cases we've covered.
And, ultimately, part of Huckabee's fair use defense - in particular that the use was non-commercial and, as Huckabee goes even further to state, had nothing to do with election campaign -- relies on the notion that the Kim Davis rally was an independent religious gathering, not any kind of campaign stop.
His campaign also invokes a rarely used limitation to a copyright owner's rights — one that exempts "performances of a nondramatic literary or musical work ... in the course of services at a place of worship or other religious assembly."
From the filing itself:
Notwithstanding the provisions of 17 U.S.C. § 106, 17 U.S.C. § 110 (3) provides in part that the performance of a nondramatic literary or musical work in the course of services at a place of worship “or other religious assembly” is not an infringement of copyright. Although not explicitly defined in the Copyright Act of 1976, the term “nondramatic musical works” refers to musical works, such as popular songs, not incorporated and performed in an opera or theater musical. Based on the averments of paragraph 7 of the Complaint, “Eye of the Tiger” is a popular song and a “nondramatic musical work” within the meaning of 17 U.S.C. § 110 (3).
The September 8, 2015, assembly for Mrs. Davis was, in view of all the surrounding circumstances, a “religious assembly” within the meaning of 17 U.S.C. § 110 (3) and the First Amendment to the Constitution of the United States.
Drink it in. The claim is a stunning one, where Huckabee, ostensibly a man who holds faith and religion in high regard, is suddenly willing to degrade the concept of a religious gathering simply to support his use of a popular song at a rally for someone he supports. One wonders exactly how the claim might work, what with the wide swath of gatherers at the rally, located outside the jailhouse for a secular government, on public land, and attended ostensibly by enough people that it strains credulity to even imagine that they might all be from one church or one faith. Nowhere is it asserted that anyone was referring to the Kim Davis rally as a religious gathering before this filing.
But think of the possibilities if the court buys this argument. Suddenly, loosely-defined religious grounds can be asserted as an affirmative defense to copyright infringement. The very idea of public performance licensing largely goes out the window, as one can imagine all kinds of gatherings suddenly proclaiming religiosity. Keep in mind that our government is not permitted to distinguish between the faiths, so any faith would do. Hell, one enterprising Techdirt writer such as myself might take up the mantle of L. Ron Hubbard and simply whip up a religion out of whole cloth, calling it the Fairusenalists, replacing the prayer rug, the eucharist, or the kippah with loudly-blasted recordings of Justin Bieber. Were Huckabee's argument to be accepted, who could stop us?
What is it with political campaigns issuing totally bogus takedown notices? It happens all too frequently, especially with presidential campaigns. But the latest example may be the stupidest one we've seen to date. The folks at the Lumen Database (formerly Chilling Effects) alert us to the ridiculous news that Bernie Sanders' campain issued a bogus DMCA notice to the Wikimedia Foundation, because Wikimedia Commons has hosted some Sanders' logos.
You can read the full takedown letter here, sent by a redacted lawyer at Garvey Schubert Barer, a firm that claims to have expertise in intellectual property law. If that's true, they sure don't show it in this letter. First of all, they're sending a DMCA notice, which only applies to copyright, but posting campaign logos is hardly copyright infringement. When you're talking about logos, at best you're talking trademark, but that's not an issue here either. Whether it's trademark or copyright, Wikimedia hosting campaign logos is clearly fair use. If they're really arguing copyright, then it's an easy fair use call. If it's trademark, there's no "use in commerce" on the Wikimedia side, and no likelihood of confusion. Either one is simply stupid to argue.
Separately, these are campaign logos which are advertising for the campaign. What kind of clueless lawyer thinks the right move is to demand such things get taken down?
And, then of course, there's the inevitable backlash over this. Presidential campaigns trying to censor people -- or worse, a site like Wikipedia -- is always going to backfire. It makes the campaign look thin-skinned, foolish and short-sighted.
I'm guessing that if this makes enough news, the Sanders campaign will back down on this, and say it was an overzealous lawyer or some other such thing, but there's no reason such takedowns should ever be sent in the first place.
We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.
Every year at the beginning of January, we post a story about all the works that should be entering the public domain in the US, but aren't. That's always based on a blog post from Duke's Center for the Study of the Public Domain, which is led by professor James Boyle. Every time we do this, some people seem to ask what's such a big deal about the public domain anyway, and I usually like to point such people to Boyle's own book on the subject: The Public Domain: Enclosing the Commons of the Mind.
The book is a wonderful exploration about the public domain, why it's important and how problematic it is that it's been systematically cut off and starved. And, yes, before you ask, if you want a free copy of the book that's available too (though, obviously buying a copy supports both Boyle and us (if you use our Amazon link above). Beyond being educational about the public domain, the book is very readable and entertaining as well. For some reason, people who aren't immersed in this stuff sometimes think that issues like the public domain need to be dry and boring, but much of it is really fascinating. If you don't feel like reading the whole book, but just dipping in for parts, I highly recommend Chapter 6, entitled I Got a Mashup. Though, once you read that, it hopefully will make you want to read the entire thing. I've found it one of the most useful books in showing just why the public domain is so important, and why it's so disastrous that it's been closed off for so long.
Again, the whole story is fascinating and worth reading. The researchers explain how they found the vulnerability (which basically involved setting a trap and eventually having it sprung, more or less after they'd forgotten about it), but there's a surprising tidbit all the way at the end of the article, highlighted by Chris Soghoian, in which the Kaspersky researchers admit that they're not positive the vulnerability they found is the same one described by the Russian hacker who sold his exploits to Hacking Team... thanks to copyright:
One final note: due to copyright reasons, we couldn’t check if the leaked Hacking Team archive has this exploit as well. We assume the security community which found the other zero-days in the HackingTeam leaks will also be able to check for this one.
There's been plenty of talk for years about how copyright can restrict security research. Much of that has focused on anti-circumvention provisions, such as the DMCA 1201, that makes getting around "technological protection measures" a form of copyright infringement. We've seen that issue pop up occasionally, like the time that the RIAA threatened to sue Ed Felten if he presented his research on why its SDMI DRM was broken.
Clearly, however, that's not the issue here. It's not even entirely clear what the exact copyright issue would be here, but it is worth noting that when the leak first happened, at least someone sought to take down the documents by making copyright claims. Perhaps Kaspersky's lawyers fear that even looking through the leaked documents could expose them to some sort of copyright liability.
And, given the way people fling around copyright lawsuits these days, perhaps that's not so crazy from the "limiting liability" perspective. But from the "doing security research" perspective, it's absolutely ridiculous. And, just another example of the dangerous copyright creep -- where this tool is used to stop otherwise perfectly reasonable behavior. In this case, it's not just stopping reasonable behavior, but important research that may be necessary to better protect privacy and safety.
There have been a number of copyright-related discussions spurred by the unfortunate passing of David Bowie, but here's one more that might make for an interesting law school exam. Matthew Braga, over at Vice's Motherboard, has a really wonderful story about how Bowie used a lyric writing word randomizer app called Verbasizer in writing his album Outside in the mid-1990s. He includes this clip from a documentary about it:
In short, it's a digitized version of the famed "cut up technique" that has been used by creators for decades. Bowie had previously been known to use a more traditional method of literally cutting up pieces of words on paper. But in the 90s he teamed up with Ty Roberts, who later went on to found Gracenote, to create a software version that would randomize words to create possible lyrics.
Roberts described Bowie as taking multiple word sources, from the newspaper to hand-written words, cutting them up, throwing them into a hat and then arranging the fragments on pieces of paper. He'd then cross out material that didn't fit to create lines of lyrics.
Roberts suggested he could create software for Bowie to speed up the process and did so for use on a Mac laptop. The app was called the Verbasizer and you can see it in use by Bowie in the video above in which he refers to a "friend" aka Ty Roberts. It allowed for different input methods including simply typing in words and then arranged them in columns which could be restricted to nouns, verbs, adjectives, etc. Each column could be weighted and have multiple words if desired. With a push of a button lyrics would then be created.
The Verbasizer was used in the creation of "Outside" which employed additional creative techniques for bypassing one's usual methods of artmaking that fall into patterns that are otherwise difficult to avoid. Roberts had the unique experience of observing Bowie's working methods as he went from the computer to the mic with new material sometimes in just a minute.
That's kind of cool... but it leads to a bit of a copyright question. We've already been discussing how copyright doesn't apply to works created by animals, but a much bigger fight concerns whether or not it applies to works created by computers. The official answer is no -- as with the monkey situation, copyright requires a human author. But given the rise in computer-generated content -- text, music, videos and more -- it's one that is going to show up in court.
So, then, are Bowie's lyrics copyrightable at all? It's not clear that enough is really known to make that call entirely. On the "yes, copyrightable" side of the argument, you can claim that Bowie likely fed in the original texts used for the cut ups, giving some element of human authorship. And, also, he was responsible for finally choosing which algorithmicly generated lyrics to actually use. Finally, in at least some interviews, Bowie admits that the cut up technique was often most useful in inspiring him, rather than necessarily giving him the final lyrics. That's probably enough to say he has the copyright on those lyrics. But, at the very least, it does seem open to someone challenging that. And these issues are only going to become a bigger issue as more and more works are generated by computers, with less and less human input at all. And, once again, Bowie appears to have been on the cutting edge...
People are quite reasonably upset by the news of David Bowie's passing, with lots of reminiscing and certainly tons of listening to his music. I certainly re-listened to a bunch of his music on Sunday night after hearing about Bowie's death. And, some, such as comedian Eddie Izzard, suggested that "every radio station" should just play David Bowie music for the day as a tribute:
Please could every radio station around the globe just play David Bowie music today - I think the world owes him that.
It's certainly a nice idea... but as lawyer Cathy Gellis points out, at least in the US, it's likely against copyright law for many radio stations. The specific issue has to do with those radio stations that also stream online. As you may or may not know, there are a set of rules that you need to follow to be considered a "non-interactive" webcaster, and among those are the "performance complement" rules:
No more than 4 tracks by the same featured artist (or from a compilation album) may be transmitted to the same listener within a 3 hour period (and no more than 3 of those tracks may be transmitted consecutively).
No more than 3 tracks from the same album may be transmitted to the same listener within a 3 hour period (and no more than 2 of those tracks may be transmitted consecutively).
That's not just something that SoundExchange came up with on its own. It's written directly into US Copyright law (at the bottom of the page). At some point, years ago, Congress (or, more likely, a recording industry lobbyist), wrote up rules that said online radio couldn't play too many songs in a row by a single artists, because of the ridiculous fear that if they could, no one would buy music any more.
Now, the rules do say that the performance complement "may only be violated if the service has received specific waivers from the owner of the sound recording copyright" -- so it's possible that the copyright holder on Bowie's music could waive those rules, but it would have to be to a bunch of different radio stations, and it's unlikely they're going to do that.
So, once again, it seems that copyright law is getting in the way of what sounds like a perfectly lovely idea: creating a day-long tribute to David Bowie. No wonder he was so keen on having copyright go away entirely.
As I'm sure you've heard by now, famed musician David Bowie passed away yesterday at age 69 due to cancer. As someone who influenced so many people in so many different ways, it's great to see basically everyone celebrating his life and his music. But, given that this is Techdirt, I also thought that Bowie deserved a shoutout on topics that we discuss around here as well: Bowie wasn't just an amazing music visionary, but he was similarly visionary about the music business and the internet as well.
All the way back in 1996, he was the first major musician to release music only on the internet, launching the single for "Telling Lies" as a direct download off of his website, and announcing it in an online chat session. Yes, nearly 20 years ago, Bowie embraced internet distribution for his music.
Then, in 1997, he went way beyond basically any other music business model experiment by issuing Bowie Bonds, creating a financial instrument that was backed by the royalties from his music, without losing control of the actual music itself.
That same year, he also became the first major musician to "cybercast" a live concert online. Other musicians had tried similar things around that time, but Bowie was by far the most well-known (though the technology basically sucked for all of them, including Bowie).
Just a year later, in 1998, David Bowie launched BowieNet, his very own internet service provider (ISP), saying:
If I was 19 again, I’d bypass music and go right to the internet.
Again, that was 1998 -- the same year that Google was founded (and a little site called Techdirt first came online too, but we'll leave that aside for now).
There's so much good stuff in that interview. He talks about how he doesn't view himself in the music industry at all any more because of the way the industry works, and how much he just wants to do his own thing. And the internet is incredibly exciting to him. He talks about how he got into music because it was a rebellious thing to do, but then:
It had a sort of 'call to arms' feeling to it. This is the thing that will change things. It is a dead-dodgy occupation to have. It still produced signs of horror from people if you said 'I'm in rock and roll.'... Now it's a career opportunity. And the internet carries the flag of being subversive and possibly rebellious and chaotic and nihilistic.... Forget about the Microsoft element. The monopolies do not have a monopoly....
... I like the idea that there's a demystification process going on between the artist and the audience....
... I don't think we've even seen the tip of the iceberg. I think what the internet is going to do to society -- both good and bad -- is unimaginable. I think we're on the cusp of something exhilarating and terrifying....
... The actual context and the state of content is going to be so different to anything we can envisage at the moment – the interplay between the user and the provider will be so in simpatico it's going to crush our ideas of what mediums are all about.
... Artists like Duchamp were so prescient here – the idea that the piece of work is not finished until the audience comes to it and adds their own interpretation, and what the piece of art is about is the grey space in the middle. That grey space in the middle is what the 21st century is going to be all about.
That same year, Bowie also launched BowieBanc, an online banking operation, that offered ATM cards and checks (with Bowie's image on them), exploring new ways of connecting with fans and building his own brand online.
His deal with Sony is a short-term one while he gets his label started and watches the Internet's effect on careers. ''I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way,'' he said. ''The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing.''
''Music itself is going to become like running water or electricity,'' he added. ''So it's like, just take advantage of these last few years because none of this is ever going to happen again. You'd better be prepared for doing a lot of touring because that's really the only unique situation that's going to be left. It's terribly exciting. But on the other hand it doesn't matter if you think it's exciting or not; it's what's going to happen.''
It hasn't totally played out the way he expected, but there's no doubt that Bowie's ability to be a visionary wasn't merely limited to the incredible music he wrote, performed and recorded, but to the internet and music/internet business models as well.
from the from-plaintiff-to-defendant-(and-civil-to-criminal) dept
So, you've sued a major studio for copyright infringement and lost. How bad could it be? Here are the possible outcomes, rated from least to most painful.
4. Dismissed without prejudice. (A glimmer of hope. You can refile.)
3. Dismissed with prejudice. (You're done.)
2. Dismissed with prejudice and fees awarded to the defendant. (If you thought paying one lawyer was expensive…)
1. You're prosecuted for wire fraud and perjury and face fines of $500,000 and 25 years in prison.
Jayme Gordon, the other person to sue Dreamworks for allegedly copying his work has won the Worst Outcome Ever sweepstakes. The cartoonist claimed Dreamworks ripped off his sketches and he seemingly had the evidence to prove this -- including a rarity in many of these little-guy-sues-big-studio lawsuits: actual registered works.
Gordon demanded $12 million and a cut of the proceeds. He survived a motion to dismiss and seemed ready to take a serious run at the studio. Two years after he filed the lawsuit, Gordon suddenly dismissed it with prejudice and received no settlement for doing so.
Apparently, while Gordon was litigiously complaining about someone ripping him off, he had been ripping off another major player in the animation industry: Disney. The drawings he submitted to the copyright registration office in 2000 (that Gordon claimed to have created in 1992) looked very similar to some found in a Disney coloring book published in 1996.
According to the indictment, Gordon saw a trailer for Kung Fu Panda in early 2008. Gordon then revised his Panda Power drawings and registered them as Kung Fu Panda Power with the Copyright Office in May 2008, prior to the June 2008 release of DreamWorks’ animated feature.
In addition, Gordon apparently deleted possibly incriminating evidence from his personal computer to better obscure the origin of his "original" illustrations.
During discovery related to the lawsuit, DreamWorks’ attorneys unearthed evidence that on April 10, 2012 Gordon had deliberately erased computer files holding material related to the lawsuit. In fact, Gordon installed and used a program called Permanent Eraser to remove the files, and then deleted Permanent Eraser itself on April 13, 2012.
So, how do bogus copyright claims rise to the level of wire fraud? Well, in the same way that almost any false communication can be considered wire fraud if the government feels like pursuing it.
The Cybercrime Unit of the U.S. Attorney’s Office in Boston will now prosecute Gordon, alleging that, when his attorneys sent four emails on his behalf related to the lawsuit, including requests for discovery and a settlement proposal, Gordon “did knowingly transmit…by means of wire communication in interstate commerce, writings…for the purpose of executing” his fraudulent scheme, and that by knowingly lying under oath he committed perjury.
If only Gordon had hand-delivered those communications…
That's the bogus part of this prosecution. Sure, perjury is a given, considering the evidence uncovered by Dreamworks' lawyers. But wire fraud? That's just charge stacking. This office, however, isn't exactly shy about trumping up charges to make itself seem more impressive. It's the same US Attorney's Office that was behind the investigation and prosecution of Aaron Swartz, so this could go very, very badly for Gordon.
Gordon's case does show there's an absolute rock bottom to bogus copyright infringement lawsuits. Most suits never involve anything more than people mistakenly thinking IP laws protect ideas rather than expressions, or that similar ideas/expressions must be infringing because it's not possible for more than one person to think of the same thing. Both are the result of people overestimating their originality and grasp of copyright law.
Gordon's case looks like someone attempting to knock bags off a passing money train. Many have made similar efforts, but Gordon has surpassed them all in terms of complete, abject failure.