by Mike Masnick
Wed, Nov 26th 2014 12:38pm
by Mike Masnick
Tue, Oct 21st 2014 8:09am
Microsoft Takes Down A Bunch Of Non-Infringing YouTube Videos Over People Posting Product Keys In Comments
from the collateral-damage dept
by Mike Masnick
Thu, Sep 4th 2014 4:02am
from the just-another-accident dept
Dotcom filed a counternotice and the album was back up after about a day of being down. However, the real issue here is just how common this sort of thing is. And it comes from the same folks who like to (1) insist that it's "easy" to tell infringing works from non-infringing works and (2) demand that entire sites be blocked based just on their say-so that those sites are "illegal." Of course, Dotcom has some experience on that front, seeing as his own website, Megaupload, was shut down nearly three years ago, despite no adversarial hearing in a court of law on whether or not it was legal.
by Mike Masnick
Mon, Jul 14th 2014 9:57am
MPAA Stretches DMCA To Breaking Point With Questionable Take Down Request For Popcorn Time Repositories
from the stretch-stretch-stretching-the-law dept
The original developers gave up the project after it got lots of attention (both the good and bad kinds), but as an open source project, others have picked it up. The MPAA has basically been playing a big game of whac-a-mole every time a new group picks up the Popcorn Time code. Frequently, those targeted by the MPAA have been scared off and abandoned whatever version they were working on, but there were always more to step in and try again. However, this latest strategy goes a bit further: going to Github to take down the repositories. Reading the MPAA's actual letter is worthwhile. It's a borderline DMCA notice, because they probably realize they can't file a true DMCA notice here, because they have no copyright over the code, which would be required for a DMCA takedown notice. Instead, it seems to be acting like a DMCA notice to try to either trick GitHub into taking down the works anyway, or to hope that it can just convince GitHub to side with them. At worst, it could be argued that the MPAA is reinterpreting the DMCA to try to make it an even more dangerous weapon to flat out censor technology rather than infringement.
Dear GitHub Inc:See the "notify you of, and request your assistance in addressing the extensive copyright infringement of motion pictures and television shows..." It's not a direct takedown notice. Rather it's requesting assistance. That same sort of language continues throughout:
The Motion Picture Association of America, Inc. (“MPAA”) represents each of the major motion picture studios in the United States, specifically, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc., Walt Disney Studios Motion Pictures, and their respective affiliates (collectively, the “MPAA Member Studios”), which own or control exclusive rights under copyright in and to a vast number of motion pictures and television shows worldwide.
We are writing to notify you of, and request your assistance in addressing the extensive copyright infringement of motion pictures and television shows that is occurring by virtue of the operation and further development of the GitHub projects Popcorn Time, and Time4Popcorn (the “Projects”).
Attached as Exhibit A is a series of screenshots taken from within the applications of each Project that includes images of copyrighted works available through the Projects. The representative titles shown in Exhibit A consist of only some of the motion pictures and television programs that are owned or controlled by the MPAA Member Studios and that are being infringed via the Projects. Exhibit A is provided as a representative sample of the infringements being committed as a result of the operation of the Projects and to demonstrate the readily apparent nature of the massive infringement occurring via the Projects. The list is not intended to suggest that the identified infringements are the only ones occurring via the Projects. Having been informed, through the representative examples, of the nature and scope of infringements occurring through the Projects, we hope that you will act appropriately to address all infringement by the Projects, not merely the identified representative examples.Of course, all of that same content is equally available in any browser, but I don't see the MPAA asking Github to remove repositories of regular every day web browsers. From there, the MPAA sort of makes it a DMCA takedown notice with the following paragraph:
Exhibit A, moreover, merely provides concrete examples of what is obvious from even a cursory review of the Projects. The Projects blatantly infringe the MPAA Member Studios’ copyrights and countless other copyrights. Indeed, copyright infringement is so prevalent within the Projects that infringement plainly is their predominant use and purpose.
By this notification, we are asking for your immediate assistance in stopping your users’ unauthorized activity. Specifically, we request that you remove or disable access to the infringing Projects’ repositories and all related forks in accordance with either 17 U.S.C. § 512(c)(3)(A)(ii) (DMCA “representative list” provision), 17 U.S.C. § 512(i)(1)(A) (DMCA “repeat infringer” provision), and/or GitHub’s Terms of Service, which prohibits use of your facilities for copyright infringement, see https://help.github.com/articles/github-terms-of-service. Moreover, the Projects in question host software that is distributed and used to infringe on the MPAA Member Studios’ copyrights. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913, 940 n.13 (2005) (“the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe”).So, yes, there they do cite the DMCA, and try to make it seem like a DMCA notice, but it's not clear they can really legitimately make those claims. Again, they're not claiming that there's any direct infringement going on here, which is really necessary. Instead, they're trying to stretch the DMCA to mean that a third party hosting company could be forced to take down a third party bit of software that might be used (or even is often used) to infringe. That's... a stretch. It's basically implying that GitHub itself might face liability by adding a tertiary level of liability to the Popcorn Time app under the Grokster inducement theory. It's a unique interpretation of the law, which some are already pointing out would make a fascinating law school question.
We are providing this notice based on our good faith belief that the use of motion pictures and television programs owned by the MPAA Member Studios in the manner occurring via the Projects is not authorized by the copyright owners, their agents, or the law. The information in this notification is accurate and, under penalty of perjury, we are authorized to act on behalf of the MPAA Member Studios, which own or control exclusive rights under copyright that are being infringed in the manner described herein. This letter is without prejudice to the rights and remedies of the MPAA Member Studios and their affiliates, all of which are expressly reserved.
In short, the MPAA is effectively implying that rather than using the DMCA to take down infringement, it might be able to use the DMCA to take down projects that might be used to infringe. That's a big stretch, but expect to see more of that.
Of course, it's doubtful that any of that would actually do anything to, you know, slow down the continued growth and development of Popcorn Time, but the MPAA is never above continually trying to stretch copyright law to do its bidding. That it could spend some more time understanding why so many people like the Popcorn Time app and figuring out ways to help create better overall experiences for end users apparently never occurs to the lawyers at the MPAA.
by Tim Cushing
Fri, Jul 11th 2014 1:06pm
remove your media
Film Distributor, Copyright Enforcement Company Join Forces To Kick Creative Commons-Licensed Film Off YouTube
from the would-rather-be-fast-than-be-correct dept
Infringement takedown notices: can't live with them, rights holders won't let your service live without them. YouTube once again is the flashpoint, with a Creative Commons-licensed film being taken down in response to a takedown notice. The Aaron Swartz documentary, "The Internet's Own Boy," was briefly knocked offline by a bogus copyright claim (that it was likely an error doesn't make it any less bogus) filed by Remove Your Media, LLC.
Brian Knappenberger, the director and producer of the film (which is also available through paid streaming services, along with other non-paid outlets like the Internet Archive), confirmed that no one on his side of the film had anything to do with it.
"It wasn't done by us," Knappenberger told the Daily Dot. "I'm trying to figure out [who issued the claim]."The Daily Dot contacted Remove Your Media, which refused to offer any insight on this bogus copyright claim.
A representative for Remove Your Media, Eric Greene, refused to name the client who hired him for the takedown, though he noted it was "a distributor outside the U.S."Greene then deployed the most unfortunate excuse anyone can offer post-World War II.
"We were just following orders," Greene said.Apparently, the documentary's foreign distributor confused CC-licensing with regular old copyright, if it even bothered to check on the film's US distribution rights before it issued the notice. (The Internet Archive's upload is one of the few places foreign viewers won't run into a "Sorry, but this content is not available in your country" message.)
A representative for one of the film's U.S. distributors attributed the takedown to "miscommunication," and expressed confidence it would be resolved soon.And, what do you know, it actually was. As of this point, the film has already been restored to its fully playable glory, something of an anomaly in an era when even clearly erroneous takedowns take hours or days to be reinstated -- if they ever are.
On one hand, with a platform of YouTube's size, mistakes are inevitable. On the other hand, if the DMCA provided for a notice-and-notice system, minor debacles like this could be easily averted. Instead, it's a notice-and-takedown system that makes it all too easy to pull the trigger and let those at the other end deal with the damage. Companies attempting to protect their content are all too willing to move quickly, rather than move carefully, resulting in a lot of collateral damage -- sometimes including to their own assets.
Fortunately, this was fixed quickly, and even if it wasn't, several viewing options remain. But this is yet another indication that the ease of YouTube's takedown system is only making things progressively worse, rather than reaching some sort of balance between YouTube users and rights holders.
by Mike Masnick
Tue, Jul 1st 2014 9:58am
from the breaking-the-internet dept
Unfortunately, Microsoft never contacted us or asked us to block any subdomains, even though we have an open line of communication with Microsoft corporate executives.As No-IP further notes, Microsoft could have easily contacted them, and the company would have taken action:
We have been in contact with Microsoft today. They claim that their intent is to only filter out the known bad hostnames in each seized domain, while continuing to allow the good hostnames to resolve. However, this is not happening. Apparently, the Microsoft infrastructure is not able to handle the billions of queries from our customers. Millions of innocent users are experiencing outages to their services because of Microsoft’s attempt to remediate hostnames associated with a few bad actors.
Had Microsoft contacted us, we could and would have taken immediate action. Microsoft now claims that it just wants to get us to clean up our act, but its draconian actions have affected millions of innocent Internet users.Except, instead, it appears that Microsoft went to court (secretly, without telling Vitalwerks/No-IP) and convinced the judge that the company itself was violating the law. And the court bought it:
Vitalwerks and No-IP have a very strict abuse policy. Our abuse team is constantly working to keep the No-IP system domains free of spam and malicious activity. We use sophisticated filters and we scan our network daily for signs of malicious activity. Even with such precautions, our free dynamic DNS service does occasionally fall prey to cyber scammers, spammers, and malware distributors. But this heavy-handed action by Microsoft benefits no one.
There is good cause to believe that, unless the Defendant Vitalwerks is restrained and enjoined by Order of this Court, immediate and irreparable harm will result from its ongoing violations the Anti-Cybersquatting Consumer Protection Act (15 U.S.C. § 1125) and the common law of negligence. The evidence set forth in Microsoft’s TRO Motion, and the accompanying declarations and exhibits, demonstrate that Microsoft is likely to prevail on its claim that this Defendant has engaged in violations of the foregoing laws through one or more of the following:Given the nature of the ex-parte (without Vitalwerks being able to present its side of the story) proceedings, Microsoft was able to paint the fact that a platform provider (which has a full anti-abuse program), was somehow liable for actions of its users. This flies in the face of a variety of laws and caselaw on secondary liability, which protect the service provider from being held liable for abusive behavior by its users. Yet here, not only did the court ignore all of that, it simply flat out handed over to Microsoft a whole bunch of No-IP's domains (which, clearly, Microsoft was unable to handle), bringing down a big chunk of the web that relied on No-IP's dynamic DNS services.a. Leasing to Malware Defendants No-IP sub-domains containing Microsoft’s protected marks; and
b. Negligently enabling Malware Defendants to participate in illegal acts, and failing to take sufficiently corrective action to stop and prevent the abuse of its services, all of which harms Microsoft, Microsoft’s customers, and the general public.
This seems like a tremendously dangerous move for the internet in a variety of ways. Microsoft needs to take some of the blame. Even if its goal was to stop malware proliferation, there are better ways to do that than to falsely blame No-IP, and to misleadingly represent the service to the court, allowing the domains to be seized and rerouted.
by Mike Masnick
Wed, Jun 25th 2014 8:59am
from the not-this-again dept
It's a dangerous myth, that we should all need permission any time we're getting value out of a piece of culture. And it's one that gets entrenched deeper each time we accept the idea that we're able to make use of a work because a copyright owner is or would be OK with it, and not just because we have a basic right to participate in culture that is more fundamental than anybody else's desire to maximize profits.Every time we discuss the public domain and how it's increasingly difficult to (a) get anything new into the public domain or (b) determine if something is in the public domain, people seem to dismiss this, as if it's not really a problem. But it is a big problem -- and much of it brought about because of our over aggressive copyright laws, and the potential liability it puts on companies.
We've lost a valuable chunk of the public domain, then, even without the complicity of online services. But those sites feel pressure, too: the minimum they must do to stay inside copyright “safe harbors” is prescribed by law, and many go further in efforts to be on good terms with media companies. That looks like overzealous algorithmic copyright enforcement, like the automated system that caught my upload after some partner presumably laid claim to it (and who knows how much else).This sense of copyright being the default and everything else the exception is backwards. It was never intended to be that way. In fact, the system was explicitly designed to be the reverse. It is supposed to be about providing limited protections for the purpose of benefiting the public. But now it's turned into a giant "minefield" in which everything is simply a potential liability, creating a dangerous "permission culture," that chills speech and innovation.
Even as these companies and services strive to be massively accessible public spaces—SoundCloud bills itself as “the world's leading social sound platform where anyone can create sounds and share them everywhere”—they reflect mostly corporate priorities, because they face far too little pressure from the other side. That is, from users who wish to participate in culture, and who don't want to be treated like criminals.
Higgins titled his essay on this, Houston, we have a public domain problem -- but the public domain is not the problem here. The problem is the overaggressive nature of copyright laws that have totally flipped the equation. Copyright is supposed to be the exception, not the rule. And yet, decades of fierce lobbying has completely changed that around, much to the detriment of arts, culture and innovation.
by Mike Masnick
Fri, May 2nd 2014 2:22pm
from the this-is-a-problem dept
Recently, AGCOM decided to exercise its new power, issuing its first administrative blocking injunction against a site called Cineblog01 -- meaning that ISPs in Italy need to block users from accessing the site. Now, it does appear that the site was linking and/or embedding certain films that may have been infringing. But there are still serious problems with the injunction. IPKat, who wrote about this, details three fairly serious problems with the way that AGCOM handled this.
- AGCOM declared the site guilty of "massive infringement" based on having just eleven movies. That seems like a ridiculously low threshold. Under such a threshold nearly any user-generated content site might be declared as engaging in "massive infringement."
- Much is made of the claim that AGCOM tried to reach the operator of the site. They are required to try to communicate with the "website manager." Since the operators of the site used a privacy guard feature from their Panamanian registrar for their Whois entry, AGCOM basically just reached out to that Panamanian registrar, and when there was no response, concluded that the site's operators were ignoring the requests. While we can argue over whether or not the site should have provided a better means to communicate, it still seems fairly weak to argue that sending an email to a third party like that constitutes true notification of the complaint.
- Third, and most importantly, IPKat checked out the site and the eleven movies in question... and found that they all had been removed already. In other words, it seems fairly clear the site was perfectly amenable to a standard notice-and-takedown type of system, but AGCOM went all in and ordered the entire site blocked.
by Mike Masnick
Tue, Apr 1st 2014 3:30am
from the nice-try,-but-no dept
Appellant's emergency contempt motion... is denied.So much for that little wasteful diversion. Now we wait to see if the en banc 9th Circuit will revisit whether or not it's appropriate to issue a stay on the injunction against Google.
by Mike Masnick
Fri, Mar 7th 2014 4:35pm
from the wave-that-magic-wand dept
Unfortunately, it looks like this is something of a trend, with law enforcement types suddenly deciding on their own what websites need to be shut down absent any sort of judicial due process. These efforts probably make copyright maximalists happy, but they fly in the face of pretty much all of copyright law. They're almost entirely based on confusing law enforcement types into believing that copyright is just like "property" and thus that it can treat sites that are somehow connected to possible infringement the same as entities that traffic in stolen merchandise. There are, of course, worlds of difference between the two, but copyright maximalists play on the ignorance of law enforcement officials in these settings, playing up the misleading analogy, leading to vast censorship and a near total lack of due process.