Google Finally Changes ContentID Appeals Process

Copyright

from the good-move dept

While some aspects of YouTube’s ContentID feature have been quite cool, creating new ways for content creators to monetize their works, there have been significant problems too, especially in taking down legitimate content with little recourse for the uploader. Thankfully, it appears that the folks at YouTube have finally realized that the counter-notification/appeals process for ContentID takedowns was bogus. A lot of people get DMCA takedowns and ContentID takedowns confused, but they’re different. With the DMCA, you have an official counternotice process, and if the copyright holder doesn’t sue (realistically, file for an injunction), then YouTube puts your content back up after 10 business days. However, with ContentID, there are no legal rules. Google handled ContentID disputes by letting the copyright holder simply “reject” the dispute — and that was about the end of it, even in cases where they were putting ads on someone else’s content. Now, however, YouTube has revamped the appeals process so that if someone disputes a ContentID takedown, the copyright holder would need to file an actual DMCA claim if they want to keep claiming infringement:

Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.

This is a much more reasonable process that doesn’t allow people claiming copyright to effectively take over a video regardless of whether or not the video’s uploader disputes it. This probably should have happened a long time ago, but it’s good to see it finally has.

The announcement also claims that their system is becoming better at avoiding “invalid claims.” It sounds as though there’s some sort of threshold now, where if something is borderline, it goes into a manual review queue, rather than automatically being taken down. So the more “gray area” cases will get a human review first.

We’ll see how all of this works out, but it’s good to see that Google is taking many of the complaints about ContentID’s overeager takedowns seriously.

Filed Under: appeals, contentid, youtube

Supreme Court Denies Appeal For The Pirate Bay Founders

Legal Issues

from the jail-time-may-be-imminent dept

Despite significant questions raised on some of the specifics of the lower court’s ruling against the folks behind The Pirate Bay, the Swedish Supreme Court announced today that it would not hear the appeal in the case. In theory, this means that the four individuals may face jail time pretty soon — though, as Torrentfreak notes, it’s pretty standard in Sweden for cases that have gone on this long to take 12 months off of the sentences, which might mean no actual jail time. One of those still facing jail time, Peter Sunde, who has since gone on to create Flattr (a service that has helped many, many content creators — including us at Techdirt — make lots of money), has written up a post highlighting just how questionable the entire process has been:

We’re not surprised by this. The previous court cases has been filled of corruption. From having the minister of justice pressured by the US to illegally make a case of TPB, through the police officer responsible for the investigation (Jim Keyzer) “just happened” to get a job at Warner Brothers the weeks before I myself got promoted from a witness to a suspect, to the judges in the court cases being either board members, or in one case the actual chairman of the board, for the swedish pro-copyright society, it was clear to us that the supreme court – where many of the judges make a lot of money on their own copyrights – would be hard to persuade to take the case. Even though most of the public would want the case tested there. Even though it’s one of the most important cases for all of the EU.

Another view worth reading comes from my friend Martin Thornkvist, who is from Sweden, and ran a record label in Sweden and has worked with a bunch of Swedish artists. You might think he’d be against The Pirate Bay, but he’s quite upset about this ruling, noting that it makes him both sad and angry. He points out that it makes him sad, because the entertainment industry is still fighting their fans. He notes that when they stop fighting their fans — as the record labels finally realized with Spotify — piracy almost disappears. Though he also points out that without The Pirate Bay, Spotify almost certainly would not have existed. And that’s the part that makes him angry. Despite helping to push the world forward, the thanks they get is jail time:

I’m angry because the founders of The Pirate Bay don’t get the recognition they deserve. For pushing the development of new services further and forcing the media industries to distribute their content in a manner that people want, (ie not plastic discs and windows policies).

Meanwhile, the site itself has moved to a .se domain, assuming that the US government is likely to seize their .org before too long. Because, you know, that’ll really stop file sharing…

Filed Under: appeals, copyright, corruption, peter sunde, sweden
Companies: the pirate bay

Righthaven Screws Up (Again); Appeal Dismissed

Failures

from the do-they-do-anything-right? dept

Righthaven has a pretty long history of totally screwing up. And in the last month or so, it’s simply been not showing up at all. It seems both trends have continued. Righthaven had indicated that it was focusing much of its efforts on its appeals in the 9th Circuit appeals court, where it hoped to reverse its rather stunning string of losses. But, instead, it appears that it just didn’t show up. In a short and sweet order today from the appeals court, its appeal in the case against Garry Newman was dismissed, because Righthaven “failed to comply” with an earlier court order:

Appellant has failed to comply with the court?s order filed December 14, 2011. Accordingly, this appeal is dismissed. Ninth Cir. Rule 42-1. The parties shall bear their own costs on appeal.

This order served on the district court shall act as and for the mandate of this court.

Amazingly, a big part of the reason Righthaven is even in this situation, appealing the Newman case concerning his website FacePunch.com, is that Righthaven missed earlier deadlines on the case as well. So it appealed… and now it’s totally failed to comply with the earlier court order here too.

Righthaven seems to invent new and interesting ways to display incompetence almost every day.

Filed Under: appeals, facepunch, garry newman, incompetence
Companies: righthaven

Righthaven Appeals The Idea That Using Entire Work Could Be Fair Use

Copyright

from the and-then-cites-a-case-that-proves-it-wrong dept

Righthaven has finally gotten around to filing its official appeal in the case against the non-profit Center for Intercultural Organizing (CIO). If you don’t recall, this was the case in which the judge ruled at the summary judgment stage in in favor of fair use, even though an entire article was used (the issue of Righthaven’s standing concerning whether or not it actually held the copyrights in question was not raised in this case, since it was before the agreement between Stephens Media and Righthaven became public). The argument is embedded below, but Righthaven basically hits on two points:

1. The judge erred in ruling on fair use at this point in the process.
2. The judge’s fair use analysis itself was wrong

The first argument may have some legs. It’s unfortunate and stupid, but traditionally, fair use is only a “defense” that can be raised later in the process. Righthaven basically argues that this was too early in the process to determine fair use. This part of the argument could get interesting, because if the appeals court determines that the lower court was correct in its process, that could open the doors to courts dumping bogus lawsuits via a fair use claim much earlier in the process. That would certainly increase the power of fair use (if only slightly). That would be a good thing, but I’m not holding my breath.

The second argument focuses on the actual fair use analysis, and suggests that using an entire work cannot be considered fair use. It relies, almost entirely on the Worldwide Church of God case in which the appeals court ruled that a church was infringing on another church’s book, by distributing the whole thing, despite it being a nonprofit. The two key issues here are whether or not the non-profit status matters, as well as whether or not it can still be fair use when the whole thing is used. The WCOG case said that the full use was not fair use and that even as a non-profit, since it was used for seeking donations, it worked against fair use.

While I have trouble with the reasoning in the WCOG case on many fronts, I’m not sure that it will help Righthaven all that much here. The distribution of the book in that case was much more closely tied to raising funds than a nonprofit posting a news article on its blog. Claiming otherwise is a stretch. As for the 100% use, Righthaven has very little argument here at all. Multiple courts have found that full item use can still be fair use… including in one of the cases Righthaven cites for its own argument, Hustler Magazine, Inc. v. Moral Majority, Inc.,. In fact, if you read that ruling, you’ll see the court admitting that while it had suggested in the past that wholesale copying shouldn’t be fair use, in this case it was reminded that “copying of an entire work does not preclude fair use.” In other words, the very case Righthaven cites seems to argue against its own point here. But isn’t that just like Righthaven?

Filed Under: appeals, fair use, nonprofit, summary judgment
Companies: cio, righthaven

Righthaven Loses Track Of Its Many Cases; Discovers Four Days Late That It Missed Deadline In Appeal

Too Much Free Time

from the so-professional dept

Righthaven, which already has a history of late filings with the court, using questionable excuses, seems to be working extra hard to make any story about the company appear to be a farce. The latest is that Righthaven’s lawyer, Shawn Mangano, just discovered on Monday (October 31st) that the deadline for filing the opening briefs in the Hoehn case, one of its many appeals of cases it has lost, was October 27th. He claims that the court misled him on the phone concerning the timing, though that seems questionable:

Righthaven?s counsel originally requested a telephonic 14-day extension of time to file its opening brief in this matter on October 27, but was advised that its opening brief was not due under November 28, 2011. Upon further inquiry, it appears that the opening brief deadline provided was for an associated appeal in this action concerning an award of attorneys? fees and costs (Case No. 11-16995). Righthaven discovered this apparent misunderstanding today, October 31, 2011, which is one business day following the October 28, 2011 filing deadline for its opening brief.

Meanwhile, Hoehn’s lawyers, from the Randazza Group, aren’t buying the excuse and are asking the judge not to grant the belated extension request:

Defendant Wayne Hoehn (“Hoehn”), through counsel, opposes Righthaven LLC?s (“Righthaven?s”) Motion for Extension of Time to File Opening Brief (the “Motion”). (Doc. # 4.) Righthaven?s request for an extension is untimely, sought four days after Righthaven?s brief was due – October 27 (Doc. # 1), not October 28, as Righthaven?s counsel misstated in the Motion (Doc. # 4 at 2). The docket?s plain language belies Righthaven?s claims of diligence, as even a cursory check would have revealed, immediately, the appellant?s briefing deadline. Moreover, a review of this Circuit?s law and the context in which Righthaven brings this motion reveals that it is bereft of good faith as well.

Hoehn’s lawyers make the case that just the merest ability to check the details would have shown the timing on the case, and Mangano’s failure to do so should not result in delaying the case any further.

Righthaven also attempts to blame the Court?s clerk for its untimely motion. (Doc. # 4 at 2). Righthaven?s inability to track its appeals before this Court is not the fault of Court administrators. With six appeals pending before this District ? and not a single brief filed despite numerous extensions sought ? it is all the more important that Righthaven diligently prosecute its appeals. To date, it has not done so, nor offered any legitimate excuse for failing to abide by the original briefing schedule imposed in a single appeal before this Court.

The instant untimely Motion (Doc. # 4) is Hoehn?s first indication that Righthaven had any issue with the briefing schedule. Having not voiced any objections to the Court?s earlier deadlines, Hoehn?s attorneys have made travel plans, holiday plans, and scheduled other litigation matters with this original schedule in mind. (Decl. of J. DeVoy.) To allow Righthaven?s counsel to attempt to change the clock after time has run out will create serious prejudice to Hoehn?s counsel.

It’s somewhat amazing that Righthaven ever accomplished anything, given the way its lawyers have handled these cases.

Filed Under: appeals, copyright, deadlines, hoehn, missed filing
Companies: righthaven

UK Government Tried To Make It Harder To Appeal Three Strikes Accusations

Copyright

from the noticing-a-pattern? dept

Back when the legacy entertainment industry and US ISPs announced a “voluntary” six strikes plan to deal with those accused (but not convicted) of copyright infringement online, we noted that the agreement seemed to bend over backwards to make the appeals process hard. Not only does it cost money to appeal, but your appeals options are greatly limited. For example, claiming that something is in the public domain? Yeah, that’s not allowed unless it’s a pre-1923 work. So, basically, even if you’re using a more modern public domain work, anyone can accuse you of infringement, racking up your strikes and you can’t appeal it using the most obvious appeal.

It’s beginning to look like that sort of limited list is all a part of the bigger plan by such [insert random smallish number here] strikes plans. Some “leaked” documents in the UK show that the government (and take one wild guess who asked them to do this…) asked the regulators at Ofcom to limit the ability to appeal:

The Government has asked Ofcom to remove a catch-all in the appeals process which allowed appeals to be made on “any other reasonable ground.”

This catch-all was previously thought necessary, as the list of grounds for appeal was “non-exhaustive” and may need updating as technology evolves. Justice for internet subscribers is now dependent on Ofcom coming back with an exhaustive list of appeal grounds in the redrafted IOC; and, keeping this list up-to-date as technology evolves (and, presumably, updating the legislation in Parliament and notifying each update to the EC).

It looks like Ofcom may have pushed back and doesn’t appear supportive of such an effort, but it really does make you wonder what the industry is so afraid of. If it gets to punish people based solely on accusations, it’s flat-out crazy not to allow them to appeal on any reasonable basis.

Filed Under: appeals, public domain, three strikes, uk

isoHunt Appeals Process Begins

Copyright

from the not-so-simple dept

As we’re still left scratching our heads over the US government’s botched affidavit to seize Torrent-Finder, that includes numerous technical and legal errors — and most importantly, does not take into account the First Amendment implications of domain name seizures — it’s worth remembering that a site that has a few similarities to Torrent-Finder, IsoHunt, is still involved in a legal fight concerning its operations.

While we keep hearing defenders of the domain name seizures claim that it’s somehow “obvious” that Torrent-Finder is guilty of criminal copyright infringement, it pays to remember that IsoHunt, which is being charged with civil copyright infringement (which has a lower bar) has caused something of a stir in legal circles. The original ruling on IsoHunt broke some new ground in actually being one of the first (and perhaps most high profile case) to use the whole “Red Flag” claim to make IsoHunt guilty of contributory infringement. This is why lots of other cases now cite the district court’s ruling in the IsoHunt case — because it’s really the only case that recognizes such “general knowledge” as removing DMCA safe harbors.

In other words, it’s still a pretty open question how the courts will actually rule on this issue — and yet Homeland Security and its supporters somehow think it’s “obvious” that Torrent-Finder is even more guilty, despite a lack of any actual charges or a full trial? In its appeal, IsoHunt questions whether or not the injunctions placed by the judge in the district court ruling (who, it should be noted, still lets IsoHunt continue to exist, if in a modified form — unlike the seizures) are violating the First Amendment in forcing search engines to somehow pre-censor their results, based on no factual evidence of infringement.

There certainly may be additional evidence that makes IsoHunt guilty of contributory infringement, but it’s certainly not a clear cut question (though I can predict some folks in the comments will claim otherwise). However, considering that this legal battle is still being fought, it seems even more ridiculous for Homeland Security (or its recent college grad ICE agent) to declare that another search engine is somehow obviously guilty of criminal copyright infringement.

Filed Under: appeals, contributory infringement, copyright, isohunt

UK Digital Economy Bill Concession Is To Allow In A Smidgen Of Due Process, After You've Been Declared Guilty

Politics

from the guilty-until-appealed-innocent dept

As the debate continues in the UK over the Digital Economy Bill, Stephen Timms, the minister for Digital Britain, is trying to appease critics of the bill, by promising to include an appeals process for those who are accused of copyright infringement and threatened with having their internet access removed. This is mind-boggling for a few reasons. First, the admission shows that such an appeals process hadn’t been in the plan already. More importantly, it shows the general thinking: this is a guilty-until-proven-innocent process. You get accused and you’re guilty until you “appeal” and can prove that you were falsely accused. That doesn’t seem like reasonable due process. That seems like stacking the deck in favor of copyright holders against the public.

Filed Under: appeals, copyright, digital economy bill, due process, stephen timms, uk

Insult To Injury: Mandelson Wants Those Wrongly Kicked Off The Internet To Pay To Appeal

News You Could Do Without

from the guilty-by-association dept

As if Peter Mandelson’s Digital Economy Bill proposal wasn’t bad enough, Dave sends in yet another problem with it. While it does include a process for appealing if you are cut off for accusations (not convictions) of unauthorized file distribution or reproduction, you will have to pay up to appeal. So even if you are innocent, it will cost you money to make your case for why you shouldn’t have been cut off in the first place.

Filed Under: appeals, digital economy bill, peter mandelson, uk

California Appeals Overturned Video-Game Ban To The Supreme Court

Legal Issues

from the if-at-first-you-don't-succeed dept

Politicians in California keep trying to push through a ban on the sale of violent video games to minors — despite the fact that every state that’s passed a ban has seen it get tossed out by the courts. The latest setback for California came in February, when an appeals court upheld a lower court’s ruling that the ban was unconstitutional, but the state’s not finished. Its attorney general, Jerry Brown, now says he’s asked the Supreme Court to hear another appeal of the original ruling. It’s fairly annoying that Brown sees fit to waste even more taxpayer money (especially given the state’s budget woes), but perhaps the only saving grace is that the Supreme Court might take the case and reaffirm what other courts have said all along, and finally put a stop to some of this political grandstanding.

Filed Under: appeals, california, first amendment, video games