by Mike Masnick
Tue, Aug 14th 2012 8:24pm
by Glyn Moody
Mon, Jul 23rd 2012 11:15am
from the arrested-for-what? dept
Last month we wrote about a new copyright law in Japan whose punishments seemed so disproportionate it was hard to take it seriously. For example, downloading unauthorized copies or backing up content from a DVD were both subject to criminal penalties. According to this story from Daily Yomiuri Online, it looks like it's no joke:
The Metropolitan Police Department arrested Yoshiaki Kaizuka, 43, an executive of Chiyoda Ward publisher Sansai Books Inc., and three other company employees on suspicion of violating the Unfair Competition Prevention Law, and sent papers on the firm to the Tokyo District Public Prosecutors Office. According to a senior police official, these are the nation's first arrests over the distribution of software to remove copy protection.
And their terrible crime? Allegedly selling a book that told people how to make backup copies of DVDs. That, of course, would involve circumventing the trivial copy protection on DVDs, which was enough to trigger the arrests, apparently. But as a post on Wired.it points out, if publishers can get into trouble under the new law so easily, so might others:
It's interesting to note that Japanese cyber Police could arrest the Amazon Japan CEO too as the online giant is selling a lot of magazines, books and software packages for DVD copy and ripping: exactly what put in trouble Sansai Books staff.
The same post notes that many GNU/Linux distributions come with the libdvdcss library which similarly allows the DRM system to be circumvented so that the DVD can be played, and would therefore fall foul of the new copyright legislation. So does the Japanese government plan to go after all the Web sites offering such software, and all the users?
The current action probably doesn't presage a massive crackdown on every infringing use, since that would involve arresting a significant fraction of the Japanese population. It's more likely to be an attempt to put the frighteners on people in the hope that everyone will stop downloading files and cease making backups. As we know from similar situations, that may work for a few months. But once things die down, people will go back to doing what they did before until the next time the Japanese authorities decide to make an example of someone, and the whole pointless cycle begins again.
by Mike Masnick
Wed, Apr 4th 2012 9:40am
from the sickening dept
It appears that process is continuing. Last week, Paramount's VP of "Content Protection," Alfred Perry, made a ridiculous and childish presentation in which he effectively put criminal targets on the backs of five companies, and suggested that they were all no different than Megaupload, and that the government was coming for them next:
The end result, however, is that the five sites on the list have been forced to go on the defensive hoping to avoid criminal prosecution with the federal government twisting everything they do to present it in the worst possible light.
MediaFire fired back at Perry, pointing out that the company is a large legitimate company run by reputable entrepreneurs, and one that has always worked with the MPAA and RIAA to stop the spread of infringing content. Similarly, PutLocker has fired back, telling TorrentFreak that Perry's comments were defamatory:
In any other industry, a person making this type of statement could be sued for libel. Funny how that works,” PutLocker Operations Officer Adrian Petroff told TorrentFreak.But the chilling effects here are very, very real. Two of the other five sites on the target list have now effectively made themselves useless for sharing legitimate files worldwide -- one of the key use cases for cyberlockers. FileServe and Wupload have turned themselves into pure backup services, rather than file sharing services, to avoid the risk of criminal prosecution.
“PutLocker takes a strong stand against copyright infringement and in the past year and a half we have taken down hundreds of thousands of infringing files and blocked the accounts of hundreds of repeat offenders,” adds Petroff. “PutLocker always cooperates with copyright holders and law enforcement agencies at home and abroad to uphold the rights of content producers and distributors alike.”
And that's the real key here. Perry and the rest of the Hollywood legacy "content protection" crew freak out about 41 billion page views. What they ignore is that the reason there were 41 billion page views was because these sites were offering something useful that people wanted. But Perry isn't in the business of recognizing what the market wants. His very job title makes it clear that his job is holding back the tide. It's about "content protection" in a world where content can't be protected. If Paramount were run by execs who actually had vision and understood innovation, they'd see 41 billion pageviews and their eyes would light up at the massive opportunity. Just imagine what you could do with 41 billion pageviews? And, if you were a company like Paramount and could offer your content up legally, you'd have a huge head start over the cyberlockers. If anything is criminal here, it's the incredible shortsightedness of Paramount's execs, to spit in the face of consumers and a massive business opportunity for themselves.
Even worse, they're doing so by simply declaring innovative websites guilty of criminal charges, despite no actual charges being filed, no trial, no evidence and no chance for these companies to make their case. From a legal standpoint, this is despicable. It's standard operating procedures for a flailing, out of touch, anti-visionary company, however. It's just too bad that the world is letting a company like Paramount (and its parent company, Viacom) get away with such practices.
by Mike Masnick
Wed, Jul 13th 2011 10:31am
from the in-their-own-words dept
Supporters of the bill again point to the key provisions that would make the embedding of a video liable under the law, to claim that my statements are an exaggeration. Specifically, they highlight that a public performance (i.e., embedding of the video) is only a felony if "(1) it is willful (knowing and intentional) infringement (2) for commercial advantage or private financial gain (3) involving 10 or more performances within 180 days (4) that cause more than $2,500 in loss to the rights holder." As some supporters of the law state, embedding YouTube videos does not meet that threshold.
That's incorrect. The public performance is clear. Embedding on a website qualifies as a public performance due to the ridiculously broad and vague description of what constitutes a public performance under the law. Now, on to the other points. We can now support many of them (the ones that supporters of the law claim are impossible to show) with the Justice Department's own words, thanks to the recent filing against Rojadirecta's petition to retrieve its domain.
First up... willful infringement. The government opens by claiming that to establish "willfulness" you only need to show that the defendant "recklessly disregarded the possibility" that embedding the video might by infringing. Not only that, but it even suggests that all it needs to show is willfulness in the "intent to copy," rather than the intent to infringe.
Although the Second Circuit held in 1943 that willful intent in the criminal copyright context need only be shown as to the intent to copy the works, and not as to the intent to infringe the copyright... recent decisions in the Second Circuit in civil cases have made clear that "[t]he standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility."Got that? The government believes that if you had willful intent just to copy the content -- as everyone does if you embed a video -- then willfulness can be established for criminal cases. If they bring in the standard for civil cases, then all they have to show is that you didn't pay attention to see if the video was covered by copyright law, and thus "recklessly disregarded the possibility." In other words, the government makes it clear that the bar here is low. Very, very low. Pretty much anyone who embeds a video has taken a proactive step. Willful? Check.
Next up is the big one. Personal or financial gain. This is the one that supporters of the bill insist is why my points are not valid. But, again, let's see what the government itself has to say in the Rojadirecta filing, in proving financial gain. Here, the government makes it clear that even if you don't get direct financial gain from the video, if you put any ads around it, even the automated AdSense ads that earn nothing, they have enough to nab you for financial gain:
As an initial matter, Title 17, United States Code, Section 506(a) "does not require that a defendant actually realize a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of financial gain or benefit.".... Moreover, courts have held that "[f]inancial benefit exists where the availability of infringing material 'acts as a "draw" for customers.'" ... It appears that Puerto 80's revenue and profitability are directly dependent upon increases in user base and enhanced Internet traffic to the website. Thus, even if Puerto 80 does not directly profit by receiving payment from the sites to which it links that stream the content, in at least some sense, Puerto 80 apparently benefits financially from making available copyright protected works on the Rojadirecta website.So there you have it, in the government's own words. If you have any ads on your website, they can claim that the embed "acts as a draw," and they've got enough to prove financial gain. It apparently doesn't matter if you earn pennies from it, or if the money that comes in doesn't even cover your basic costs:
the Government's investigation has revealed that the CEO of Puerto 80, the owner of the Rojadirecta Domain Names, has in fact received thousands of dollars since at least October 2005 from Google AdSense, a free program that allows website publishers to earn revenue by displaying advertisements that are likely to be relevant and of interest to users of those websites.Okay, so let's start at October 2005, and the domain was seized on February 1, 2011. By my count, that's 73 months. Note, carefully, that they claim "thousands" of dollars earned from AdSense. Not even "tens of thousands" of dollars. At most, then, they seem to be saying he earned $19,999 (though, I would imagine they'd round up in that case). But to give the government the benefit of the doubt here, let's take that number as the absolute maximum. That would mean, at a maximum, Rojadirecta earned a whopping $273.96 per month. For a popular website. I can tell you from first hand experience (and Techdirt gets less traffic than Rojadirecta) that it costs a hell of a lot more than that in basic bandwidth costs to run a site that gets this kind of traffic.
To claim that this is "financial gain," is laughable. But, apparently it's good enough for the feds in this case. And the government's own filing clearly supports my claims -- which supporters of the bill claimed were laughable -- that the government can and will claim that any advertising, no matter how little, represents financial and personal gain. Financial gain? Check.
Okay. Involving 10 or more performances in 180 days. While I'm sure some videos don't get that many, this is not a high threshold to reach -- especially if the feds themselves view the embeds a couple times. 10+ performances? Check.
Finally, that cause more than $2,500 in loss to the rights holder, again this is incredibly easy to show. Given the industry's history of massively exaggerating its "losses," combined with the feds seeming willingness to completely take the industry's word on such losses, does anyone legitimately believe that the feds won't have an easy claim of $2,500 in "loss" to the rightsholder, should they wish to go after someone? $2,500 loss? Check.
So, there you have it. Using the Justice Department's own words, it's not difficult to see how S.978 can be abused to go after a very large number of people who embed a YouTube video that includes some infringing content (which can include an awful lot of videos).
by Mike Masnick
Wed, Jun 22nd 2011 10:30am
from the and-that's-what-you-get dept
Over the last few years, the fact that the feds have effectively been working as the entertainment industry's private police force has grown more and more obvious. No one from Homeland Security seems willing to explain (and trust me, I've asked multiple times) why it is that when ICE did its domain seizures, it relied solely on claims from the industry and (even more ridiculous) announced the first round of seizures from Disney headquarters. Can you imagine how people would react if the FTC announced it was filing antitrust charges against Google... from Microsoft's offices? Or if the FCC announced it was blocking the AT&T-T-Mobile merger from Sprint's offices? Such scenarios seem preposterous, but ICE doesn't seem to recognize the clear conflict of interest in acting as the private police force for an industry, rather than actually doing its job.
Perhaps part of that is because the entertainment industry is spending a ton of money lobbying law enforcement agencies directly. Most of the time when you think about lobbying activities, you think about talking to politicians to try to get them to pass certain laws, or talking to regulators to have them adjust or change certain rules and regulations. You don't tend to think of lobbying law enforcement directly in order to convince them to do your private bidding. But, the MPAA does.
According to a disclosure report, the MPAA spent $400,000 lobbying a wide range of US government departments in the first quarter of 2011 including the FBI, Department of Justice, Department of Homeland Security, ICE and the Vice President’s Office. Issues on the table include so-called “rogue sites” including RapidShare, streaming, graduated response (3 strikes) and domain seizures.There are no real surprises in the content covered. It's the same stuff the MPAA has been pushing for a while now. But the fact that they're directly lobbying the FBI, the Justice Department, Homeland Security and ICE should raise some eyebrows. Law enforcement should not be influenced by the desires of private companies -- especially ones with a long history of failing to adapt to changing technologies and trying to get those technologies declared illegal. Imagine if, rather than a civil lawsuit, when the VCR was introduced, the movie industry could have just had the FBI declare the things illegal?
Fri, Apr 15th 2011 12:59pm
from the bad-idea-of-the-day dept
Even though The Netherlands' plans for copyright enforcement are quite far reaching, the Dutch Publisher Association, which includes about 90% of Dutch publishers among its members, says it does not go far enough, and is now asking for criminal prosecution of filesharers. The Association also claims that the new policy justifies sanctions against downloaders, such as fines, "if only for the preventive effect." What stands out, is that the Association also wants equal rules for "paper and digital copies," which could possibly equate counterfeiting to filesharing. To top things off, the statement also opposes the state secretary's plans for introducing a fair use policy in The Netherlands.
While much of the response is predictable and needs no further discussion on my part (comments are open, discuss away!), I would like to highlight again the fact that they're arguing for bringing filesharers to criminal, instead of civil, courts. This, in my opinion, clearly displays the way current copyright law and its developments clash with certain civil rights (and perhaps human rights). This is not the first time such a measure has been suggested and it will not be the last time; the lobbies and the companies they represent are rapidly draining money. Making this a matter of criminal prosecution instead of civil suits would mean that these lawsuits would rapidly decrease in cost for the industry -- but puts that cost on the taxpayer. This burdens the overall government and taxpayer, but enables organizations to continue their fight against the internet, third party innovation and the loss of control.
by Mike Masnick
Fri, Mar 4th 2011 8:46am
from the is-there-secondary-criminal-infringement? dept
About the only thing that could be claimed is some sort of "inducement" claim -- but as we discussed recently, there's simply no such thing as criminal contributory infringement, so if that's the claim, then it would appear that ICE (yet again) is simply making up what it wants the law to be, rather than what the law actually says. Now, there may be more to this than has been made clear to date. Perhaps there's evidence that the site actually did host content, but that was not clear from what I saw earlier. Some have said that there's an "aiding and abetting" charge to be made under criminal law, but as we pointed out in the link above, the standard for aiding and abetting are much, much higher, and there's little evidence that ICE has enough to meet the aiding and abetting standard.
On top of this, there are serious questions about why this should be a criminal claim, rather than a civil claim. ICE appears to be using the fact that the guy, Bryan McCarthy, made some money, from ads on the website, as the basis for the criminal charges. But that seems like a stretch (at best). While we still question why there should even be such a thing as criminal copyright infringement, even if we accept the idea that it does exist, isn't it supposed to be focused on those doing significant behavior where the connection between the infringement and the money making is clear and direct? Putting some ads on a website that earn a small amount of money (as is the case here) shouldn't be enough to trigger criminal infringement claims. Anyone can put ads on a website. That, alone, shouldn't shift liability from civil to criminal.
No matter what, this will represent a lawsuit worth watching. I'm always nervous that tough cases make bad law, and I could definitely see how certain aspects of this case could obscure the key issues. It will come as a surprise to no one that I'm greatly troubled by a criminal charge here, but it should worry almost anyone who has a website and has ever embedded videos. I have, for example, frequently embedded YouTube videos on this site -- and some of those videos might have been infringing. On top of that, I make some money from advertising on this site. Does that mean I now face criminal liability? I certainly hope not, but that seems to be the incredibly chilling message that ICE is sending. It immediately makes me question if I can ever embed another video without first getting explicit permission from the copyright holder.
by Mike Masnick
Mon, Dec 27th 2010 2:11am
Dutch Court Dismisses Criminal Charges Against P2P Index Site, Noting Law Enforcement Relied Too Much On Anti-Piracy Group
from the hmmm dept
Well, in that case, against an indexing site called ShareConnector, the court has dismissed the case over the "faulty evidence," specifically having to do with law enforcement relying way too much on industry sources, rather than doing the real investigation themselves. This follows on an earlier criminal case where the operator of ShareConnector had all charges dismissed as well.
Once again, all this highlights is how these issues are not as clear cut as the industry and its supporters often make out. It's getting rather silly how often we hear people insist that this or that service or software are "obviously" infringing on copyrights -- and no case should even be heard before they're shut down/seized/thrown in jail/fined whatever. Copyright is not a black or white situation -- there's an awful lot of gray and it should be determined in a court of law, rather than just on the say so of certain industries who benefit from shutting down alternative means of distribution that interfere with their ability to be a gatekeeper.
by Mike Masnick
Mon, Oct 11th 2010 8:42am
from the this-is-not-good dept
ACTA 2.14.1: "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. [ACTA footnote 9]"Carried out as commercial activities for direct or indirect economic or commercial advantage." Could you be any more inclusive than that? We've recently discussed how the borderline between commercial and non-commercial use can sometimes be very difficult to distinguish. Under ACTA, it appears that when in doubt, it's commercial scale.
For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage."
Of course, what's really troubling here is that the EU negotiators had already promised that there would be no definition of "commercial scale." Yet, there is... and it's a lot worse than what the EU Parliament had already determined "commercial scale" to cover. The analysis linked above, first looks at the Max Planck Institute's analysis of "commercial scale" infringement, where it notes that just saying "commercial scale" "fails to provide for an appropriate and sufficiently precise definition of the elements of a crime" under the current laws of the EU. Instead, it says such actions can only qualify as a crime if the following conditions are met:
- Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
- Commercial activity with an intention to earn a profit.
- Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.
"infringements on a commercial scale" means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposesNotice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on "commercial scale" infringement, by subtly changing (mostly via omission) the definition of "commercial scale," ACTA now covers an awful lot that most people would not, in fact, consider to be "commercial scale." We'll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.
by Mike Masnick
Thu, Aug 19th 2010 11:41pm