Colombian Grad Student Finally Cleared Of Criminal Charges For Posting Academic Article Online

Copyright

from the copyright-gone-mad dept

Three years ago, we brought you the horrifying story of Diego Gomez, a grad student in Colombia. While working on his own research, he relied on and cited a paper that he couldn’t find anywhere else online. As was common practice in Colombia, Gomez uploaded that paper to Scribd so that others could follow his own work and understand his citation. As a research practice, this is a really good idea. Under copyright law, however, it gets stupidly problematic. And it was made much more stupidly problematic by the insane copyright law passed in Colombia — under pressure from the US — which made this a criminal act for which Gomez faced up to 8 years in prison along with monetary fines.

Again, he absolutely did upload someone else’s paper to the internet — but this was an academic paper, it wasn’t for Gomez’s own profit, but for perfectly reasonable academic purposes, to make sure people were better informed. Not only that, but as soon as he found out the paper’s author was unhappy, he deleted the paper from Scribd. And yet he’s spent the past few years dealing with criminal charges over it. Thankfully, just this week Gomez was cleared of any wrongdoing. It just cost him four years of absolute hell. And it’s not totally over yet. While the judge has given a “not guilty” verdict, the prosecutor has already announced plans to appeal.

“I have been cleared. I am innocent,” a delighted G?mez said after the verdict. “When I received the news, after 4 years with so much uncertainty, which is an obstacle in personal and professional life, that was a great happiness. However, knowing that the prosecutor appealed brings uncertainty back.”

EFF has been heavily involved in this case, and note that it shows one of the many problems with countries ratcheting up punishments for copyright infringement often under the guise of “complying with international agreements.”:

Diego?s story also demonstrates what can go wrong when nations enact severe penalties for copyright infringement. Even if all academic research were published freely and openly, researchers would still need to use and share copyrighted materials for educational purposes. With severe prison sentences on the line for copyright infringement, freedom of expression and intellectual freedom suffer.

Diego?s story also serves as a cautionary tale of what can happen when copyright law is broadened through international agreements. The law Diego was prosecuted under was enacted as part of a trade agreement with the United States. But as is often the case when trade agreements are used to expand copyright law, the agreement only exported the U.S.? extreme criminal penalties; it didn?t export our broad fair use provisions. When copyright law becomes more restrictive with no account for freedom of expression, people like Diego suffer.

Indeed. I know that we get a fair amount of pushback from some in the copyright industry whenever we talk about the free speech or chilling effects impact of overzealous copyright enforcement. Time and time again we’re told that these are “anomalies” or that such things are impossible, because why would anyone ever use copyright to stifle someone’s speech. However, I can’t even imagine the horror that Gomez has gone through for the past four years, in which he was literally facing being locked up for years and fines for being a good academic. That’s insane — and so is any copyright law that would allow this to happen.

The fact that Colombian prosecutors aren’t yet willing to drop this case is even more upsetting and concerning. What possible reason do they have for thinking that this case is worth pushing forward like this?

Filed Under: academic research, colombia, copyright, diego gomez

Titan Note Continues Trying To Sell Its Questionable Device; Its Own Actions Keep Raising More Questions

(Mis)Uses of Technology

from the sketchy dept

A few weeks back, I wrote about IndieGogo shutting down a crowdfunding project for a small notetaking/speaker device called Titan Note. As I pointed out at the time, there were a lot of alarm bells about the product, but I had still backed it just to see if it might actually work. IndieGogo shutting it down actually had me relieved because the more I thought about it, the less sure I was the project was legit. Making things even more bizarre — and leading to my post about it — was the news that the guy behind Titan Note had sent a bogus DMCA takedown notice to the Verge over its skeptical take on the product. The DMCA notice targeted the use of Titan Note’s promotional images — which are clearly fair use for news publications.

A few days after that all went down, I went to see if the guy behind Titan Note had anything to say about it. There was a post on Facebook claiming that it was all IndieGogo’s fault and promising it would be on another “more trusted” platform soon:

As you have noticed, your orders on Indiegogo have been refunded. We got into a dispute with Indiegogo and we decided to use another platform instead. Indiegogo doesn’t have your best interest in mind and we decided to find a better solution for both you and ourselves.

This seemed… sketchy for a variety of reasons. What kind of “dispute” could they have gotten into? A number of people asked in the comments, and the Titan Note guy (it’s unclear if it’s more than just one guy), just started pasting the same boilerplate response over and over again, insisting that there was a “dispute” over “payment and fees.”

The dispute was regarding the payment and the fees. Moreover, Indiegogo has a history of not taking responsibility for the users on its platform. Many are dissatisfied with the Indiegogo platform. It was a wrong move from our side to take orders on the Indiegogo platform in the first place and we truly apologize about that. We promise that we will make it up to you when we relaunch Titan Note on a more trusted platform next week. Please let us know if you have any other questions.

More people began to question this, and then he started insisting he couldn’t talk any more about it, because he was going to sue IndieGogo.

We are in the process of pursuing legal action against Indiegogo for their misconduct. Because of this, neither we or them can go into more specific details. We appreciate your understanding and we apologize for the inconvenience this has caused you.

Somewhere around this time, I decided to ask some questions on the Facebook page as well, noting that the boilerplate claims didn’t make much sense. There’s no reason to expect a dispute about “fees” since IndieGogo is pretty damn clear on the fee breakdown. I pointed out that there’s simply no reason that he can’t explain more of what the problem was, even if a lawsuit was in process — and furthermore, suggested that it might make sense to delay a new crowdfunding campaign until after such a lawsuit was filed, so that backers could better understand the details. Separately, I asked about why they sent the DMCA notice.

A few hours later, I noticed that my question about the DMCA was deleted. I saw someone else asked a similar question — and that was deleted. After a few more people asked, he finally posted another boilerplate answer, responding to a bunch of users:

About the DMCA: We sent the DMCA notice to the verge because they used our copyrighted images without our permission. No reputable publication would do that. They stole our property and we had to take action.

I responded to that, noting that this explanation made no sense at all. First of all, the images were promotional images, released for the press. Second, the Verge’s use was clearly fair use. And, finally, I pointed out that this explanation was clearly not true, and the reason for the DMCA notice was obviously the skeptical nature of the Verge’s article because none of the other news articles that were hyping up the Titan Note — and which the company proudly linked to — appeared to have DMCA notices over their use of the very same images.

And that’s when I got blocked from commenting on the Titan Note Facebook page and all my remaining comments were deleted (he had already deleted my DMCA questions earlier).

So that confirmed just how sketchy this whole project was to me. The DMCA notice was bad. The nonsensical explanations were worse. And deleting some fairly straightforward questions about all of that (and then blocking me from commenting any more)? That’s not a trustworthy project.

At almost the exact same time that I got blocked, Titan Note “relaunched” on a supposedly more trustworthy platform, an Australian site called Pozible. The project quickly got to nearly $100,000 in backing. I emailed Pozible to ask if they did any checking on projects, and pointed out that IndieGogo had taken the same project down. Almost immediately I got an email response from someone at Pozible, telling me that their own system had “flagged” the project and they were suspending the project until the creator provided more information.

I similarly reached out to IndieGogo to find out if the “fee dispute” claim was legit. Not so, the company told me. While they would not go into the full reasons for the project being suspended, they did say that “a lengthy investigation” by the trust and safety team determined that the company was violating IndieGogo’s terms and services, and made it clear “this was not a dispute about fees, but a violation on their end.” IndieGogo’s terms involve lots of things, but one line that stands out:

Campaign Owners are not permitted to create a Campaign to raise funds for illegal activities, to cause harm to people or property, or to scam others. If the Campaign is claiming to do the impossible or it’s just plain phony, don’t post it.

Not surprisingly, after Pozible shut down the campaign after just a few hours, a bunch of people went back to Facebook to ask questions and note that this was now two crowdfunding platforms that had shut down the campaign entirely, and demanding answers. A few joked that “boilerplate” answers would be coming soon. It actually took a few days, but eventually…

To clarify, Neither of those platforms have seen our product. The outcome is not a reflection of Titan Note’s quality and again, they have not seen our product. We have had competitors that have posted slanderous information to the platforms and we are in the process of bringing legal action against one of those platforms for their misconduct. We will not let a bump in the road stop our passion.

So… yeah. That doesn’t actually answer the question. Nearly all crowdfunding projects don’t involve the platforms seeing the projects, but it’s very rare for projects to be canceled. It certainly suggests something else is up with this project and that’s why they were canceled. Besides, the original story was that IndieGogo canceled over a “fee dispute.” If that’s the case, why would it matter that it hadn’t seen the product?

And, of course, a few days after that — earlier this week — Titan Note launched its own website entirely (previously, one of the concerns was that the company didn’t appear to have a website). And that website is allowing pre-orders. We won’t link to it directly (no reason to give it free advertising), but astoundingly, the company is using the canceled IndieGogo project on its new website as proof of how cool it is:

Yes, the IndieGogo campaign had over 12,000 backers and had initially raised over $1.1 million dollars. But that was canceled and all the money was refunded. It seems very, very, very questionable to then go on and put up a website that suggests the project successfully raised that much money when that’s not how things actually ended.

Distressingly, the project is also using the various positive press it got upon launching on the website, leaving out the Verge (obviously).

Not surprisingly, I am not the only person concerned about all of this. There are still some users in the Titan Note comments concerned about this (I have no idea how many others had their comments deleted, as mine were). There’s also a Facebook group on crowdfunding scams that has taken a special interest in Titan Note with a few different discussions on it — including concern about the current offering directly off the website.

Throughout all of this, I still would like the product to be legit, because it certainly would be an interesting product! However, with all of the red flags raised, and the questionable way that Titan Note has responded to these kinds of questions, it seems entirely reasonable to believe that the product is, at the very least, greatly exaggerated, and might possibly not exist at all. I did send Titan Note an email listing out a series of questions and letting them know I would be writing about this. So far, there has been no response. If one should come in, I will update this post.

Filed Under: copyright, crowdfunding, dmca, titan note
Companies: titan note

Senate Should Either Fix Or Get Off The Pot On Copyright Office Bill

Copyright

from the copyright-office-modernization? dept

The U.S. Senate is about to consider mostly pointless legislation that would make the nation’s register of copyrights—the individual who heads the U.S. Copyright Office, officially a part of the Library of Congress—a presidential appointment that would be subject to Senate confirmation.

While the measure has earned praise from some in the content industry, including the Motion Picture Association of America, unless senators can find better ways to modernize our copyright system, they really should just go back to the drawing board.

The Register of Copyrights Selection and Accountability Act of 2017 already cleared the U.S. House in April by a 378-48 margin. Under the bill and its identical Senate companion, the power to select the register would be taken away from Librarian of Congress Dr. Carla Hayden. Instead, the president would select an appointment from among three names put forward by a panel that includes the librarian, the speaker of the House and the majority and minority leaders of both the House and Senate. And the register would now be subject to a 10-year term with the option of multiple reappointments, like the Librarian of Congress.

The legislation is ostensibly the product of the House Judiciary Committee’s multiyear series of roundtables and comments on modernizing the U.S. Copyright Office. In addition to changes to the process of selecting the register, the committee had recommended creating a stakeholder advisory board, a chief economist, a chief technology officer, making information technology upgrades at the office, creating a searchable digital database of ownership information to lower transaction costs in licensing and royalty payments, and creating a small claims court for relatively minor copyright disputes.

Alas, while it’s billed as a “first step,” the current legislation gives up most of those more substantive reforms and instead amounts largely to a partisan battle over who will have the power to select the next register: Hayden, who was appointed by Barack Obama, or President Donald Trump.

Opponents argue the bill will make the register and the Copyright Office more politicized and vulnerable to capture by special interests, while ceding more power to the executive. They argue that vetting the register through the nomination process could delay modernization efforts. Hayden needs the position to be filled expeditiously to implement her modernization program, and Trump already faces a sizable confirmation backlog.

Meanwhile, proponents argue a more independent register, less tethered to the will of the Library of Congress, will make USCO more accountable. They say it will make the office run more efficiently and allow it to modernize. They also believe it will address important constitutional questions, such as the separation of powers and oversight by the president.

At the heart of these constitutional questions is the fact the Library of Congress has both significant legislative and executive functions. Housed within the legislative branch, it also sets royalty rates and rules on exemptions from the Digital Millennium Copyright Act. Critics have derided the Copyright Office for being slippery about whether it is serving a legislative or executive role, depending on who’s asking. The contention is that this unusual arrangement renders USCO a “constitutional chameleon.”

Of course, it is not uncommon for entities in one branch to perform the functions of another. The president has a role in the legislative process through his veto power. The International Trade Commission performs judicial functions, but is an independent agency housed within the executive branch. The federal government’s separation of powers is not absolute. But there does come a point where those lines become so blurred as to call the original classification into question. In that respect, Congress should consider taking certain functions—such as the Copyright Royalty Board or the Triennial Section 1201 Proceeding—out of the Copyright Office.

Some would propose moving the entire Copyright Office out of the Library of Congress and rendering it a standalone agency, which would elevate the register’s position to one of an officer of the United States. Under that highly controversial scenario, the Constitution’s Appointments Clause definitely would require the job be filled by the president. But for now, since the librarian still has ultimate authority over the substantive regulatory powers surrounding copyright, changing who appoints the register won’t change anything outside of a short-term political calculation of who the next register is.

The bottom line is that the current bill simply doesn’t do that much, good or bad. Making the position a presidential appointment is unlikely to speed up IT modernization efforts, at a time when the office has faced numerous setbacks and problems getting that IT infrastructure in place. The original policy proposal drafted by the House Judiciary Committee was a more comprehensive and substantial approach to modernization and many of its provisions were supported broadly. First step or not, this is a feeble try.

As the Senate considers the bill in the coming weeks, they should either amend the legislation so that it will do something to modernize copyright, or just jettison it entirely. As currently written, the bill serves no purpose, and Congress shouldn’t waste its time on it.

Sasha Moss is Technology Policy Manager for the R Street Institute

Filed Under: congress, copyright, copyright office, library of congress

Someone Under Federal Indictment Impersonates A Journalist To File Bogus DMCA Notice

Copyright

from the system-still-works! dept

Everyone’s favorite abusable statute is back at it. Anyone can file a DMCA takedown request. Not everyone gets theirs granted. But it’s a zero-cost, mostly-zero risk effort that takes about five minutes from start to finish. It’s no wonder it’s been abused by a handful of ex-cons and, very memorably, by a revenge porn purveyor who suddenly developed concerns about personal privacy.

In this case, it’s someone named in an Albuquerque Journal article about a federal fraud indictment. The most obvious pick would be the couple named early on in the article by Nicole Perez: Michael Jacobs and/or Ruth Handler-Jacobs. But there are others listed as well, co-conspirators Rienzie Edwards (of Sri Lanka), F.K. Ho (a broker located in Singapore), and a couple of other Americans, Laurence Lester and Rachel Gendrau.

It could be any one of these people (though the fractured English in the takedown request would seem to point overseas), but there’s no way to know for sure because the DMCA notice is clearly falsely filed in the name of the journalist who wrote the article. This appropriation of someone else’s name and profession leads to one of the most unlikely claims ever made in a DMCA notice: that journalists refer to publishing articles as “posting a content.”

Here’s the whole BS claim:

I am Nicole Perez. I posted a content about Michael Jacobs’s fraud cases on abqjournal.com. I personally investigated that my original content is copied and posted on different websites. I contacted the webmaster team of the websites to remove it, but did not get any positive response. I request you to remove it from online searches.

It’s extremely likely none of what’s said here is true, starting with the name used. I find it incredibly hard to believe someone impersonating a journalist “contacted webmasters” to have these articles removed. (The lack of positive response is the only believable part, but that relies on the original contact taking place.) It’s even harder to believe when one of the websites is the Albuquerque Journal’s Facebook page.

https://www.facebook.com/TheAlbuquerqueJournal/posts/10154300263908237

It’s impossible to believe when one of the targeted URLs is the DOJ’s indictment press release.

https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-announces-charges-against-six-individuals-international-high

Others targeted include Ripoff Report, Courthouse News Service, and Sri Lankan news site The Sunday Times. The inclusion of this site shifts the needle of blame towards Reinzie Edwards. This story includes a photo of Edwards as well as details of his run-ins with local authorities over apparent financial fraud.

Again, nothing can be said conclusively about the origin of this DMCA notice, other than it obviously wasn’t Nicole Perez, who would likely prefer her “content” to be spread as far as possible across the internet. The people written about, not so much. When you’re already facing federal fraud charges, what’s a little perjury?

Filed Under: censorship, copyright, dmca, takedowns

Theresa May Plans To Regulate, Tax And Censor The Internet

Legal Issues

from the who-would-vote-for-that? dept

With UK Prime Minister Theresa May recently calling for a new election there, which she is expected to win easily (despite recent reports of narrowing polls), last week May’s Conservative party released its Manifesto (what we in the US tend to call a party’s “platform”). There are all sorts of things in there that are getting press attention, but for the stuff that matters here on Techdirt, let’s just say May’s view of the internet is not a good one. A part of the plan is basically to regulate, tax and censor the internet, because the Conservative Party leadership doesn’t seem to much like the internet — and they especially dislike the fact that Google and Facebook are so successful.

What’s hilarious is that the manifesto basically promises to put in place all sorts of rules that will absolutely kill off any internet economy in the UK, as no company in its right mind would agree to these restrictions, while, at the same time, it talks up how important it is to support digital businesses in the UK. Of course, some of the plan is couched in nice sounding language that should actually scare you:

A Conservative government will develop a digital charter, working with industry and charities to establish a new framework that balances freedom with protection for users, and offers opportunities alongside obligations for businesses and platforms. This charter has two fundamental aims: that we will make Britain the best place to start and run a digital business; and that we will make Britain the safest place in the world to be online.

“Balances” freedoms? Freedoms aren’t supposed to be “balanced.” They’re supposed to be supported and protected. And when you have your freedoms protected, that also protects users. Those two things aren’t in opposition. They don’t need to be balanced. As for “obligations for businesses and platforms” — those five words are basically the ones that say “we’re going to force Google and Facebook to censor stuff we don’t like, while making it impossible for any new platform to ever challenge the big guys.” It’s a bad, bad idea.

Of course, immediately after that, there’s a bunch of nonsense about how the UK will be the “best” place to run a digital business. That’s, uh, not even remotely true based on what is said in the immediately preceding paragraph.

We will ensure there is a sustainable business model for high-quality media online, to create a level playing field for our media and creative industries.

This is a dog whistle to the legacy film and recording industries about terrible copyright laws on the way. For a few years now, those industries have been whining about the need for a “level playing field” — which to them means no internet innovation in business models, but rather a government mandated business model that protects an old, legacy way of doing business. Promising a “sustainable business model” from the government makes no sense. That’s not how it works unless you’re giving companies monopolies… oh, wait, yeah, that’s what copyright is all about. So, basically, say goodbye to lots of innovation in the creative fields in the UK, because Theresa May wants to lock in the business model from 1998.

Our starting point is that online rules should reflect those that govern our lives offline. It should be as unacceptable to bully online as it is in the playground, as difficult to groom a young child on the internet as it is in a community, as hard for children to access violent and degrading pornography online as it is in the high street, and as difficult to commit a crime digitally as it is physically.

Again, these are the kinds of things that lots of people find reassuring… if they know absolutely fuck all about how the internet works and what it would actually take to do this. First off, the rules that govern offline do govern online. Second, it is just as socially unacceptable to bully on the playground as it is to online — but (spoilers!) it still happens in both places. It’s sad and unfortunate, but history has yet to come up with a way to stop bullying on the playground, and most suggestions for how to do it online involve ridiculous surveillance and censorship, which creates a whole host of other problems. And, the whole “grooming children” on the internet is an overblown moral panic that happens extremely rarely. As for running into pornography and violence — certainly an issue, but one that parents generally are supposed to handle, rather than the government seeking to censor the entire internet. And, what the hell does it even mean to say it should be as difficult to commit a crime digitally as it is physically? In many cases, it’s more difficult. In some cases, it’s easier. But, given the long list of crimes, it’s difficult to argue that digital crime, as a whole, is somehow “easier” than offline crime. It’s a silly, meaningless statement that just plays on bogus fears about the “dangers” of the internet.

We will put a responsibility on industry not to direct users ? even unintentionally ? to hate speech, pornography, or other sources of harm. We will make clear the responsibility of platforms to enable the reporting of inappropriate, bullying, harmful or illegal content, with take-down on a comply-or-explain basis.

Basically: we will make private internet companies our internet censorship police, or we’ll fine them millions of dollars. This will create all sorts of unnecessary problems. First, to avoid liability, companies will massively over-censor. We see this happen all the time. All sorts of perfectly fine and legitimate content will be censored just to avoid the potential liability. Second, this will be massively expensive. Sure, Facebook and Google can probably handle the expense, but no one else will be able to. If you’re trying to start the next Facebook or Google in the UK, you’re fucked. You can’t afford to police all the content on your platform, nor can you afford the potential liability. Probably best to just move somewhere else. Third, does the UK government really want private platforms like Google and Facebook making these determinations? Why is it handing off the responsibility of what kind of speech is “illegal” to private, for-profit companies (foreign companies, at that)?

In addition, we do not believe that there should be a safe space for terrorists to be able to communicate online and will work to prevent them from having this capability.

And this may be the most terrifying line of all here. That’s the dog whistle for “we’ll outlaw encryption” because encryption — in the minds of foolish, scaredy-cat politicians — creates “safe spaces” for terrorists. Nevermind that the same encryption creates “safe” spaces for every other person and that undermining that makes absolutely everyone less safe. This is a dangerous plan that seems to echo the words of the UK’s Home Secretary, Amber Rudd, from a few months ago, where she wanted to find people who knew the necessary hashtags to silence terrorists online. This isn’t policy making. This is nonsense.

We will educate today?s young people in the harms of the internet and how best to combat them, introducing comprehensive Relationships and Sex Education in all primary and secondary schools to ensure that children learn about the risks of the internet, including cyberbullying and online grooming.

First of all, why is the education only on the “risks” of the internet, and not the benefits and opportunities? What an odd thing to focus on. Second, it’s 2017. Are there really still schools that don’t already teach this stuff? And, as mentioned earlier, the bogeymen of “cyberbullying” and “online grooming” are both overblown moral panics.

We will give people new rights to ensure they are in control of their own data, including the ability to require major social media platforms to delete information held about them at the age of 18, the ability to access and export personal data, and an expectation that personal data held should be stored in a secure way.

And… there’s the “right to be forgotten.” Apparently, the plan is a blanket right to be forgotten for anything about you from before you’re 18. Look, I did stupid things before I was 18. You probably did too. It’s kind of part of being a teenager. You do stupid things. Most people then grow up. They regret what they did, but most normal people recognize that when others did stupid stuff in their teens, it was because they were teenagers who then grew up as well. In other words, most people put that stuff into context. You don’t need to delete it. You just recognize it happened, that the person was a teenager when they did it, and you assume they probably grew up and matured.

We will continue with our £1.9 billion investment in cyber security and build on the successful establishment of the National Cyber Security Centre through our world-leading cyber security strategy. We will make sure that our public services, businesses, charities and individual users are protected from cyber risks. We will further strengthen cyber security standards for government and public services, requiring all public services to follow the most up to date cyber security techniques appropriate.

How the hell are you going to do that at the same time that you’re outlawing encryption?

Some people say that it is not for government to regulate when it comes to technology and the internet. We disagree.

Yeah, we got that from all the nonsense above.

Nor do we agree that the risks of such an approach outweigh the potential benefits.

Then you need to hire at least someone in your leadership who understands the internet, because it’s clear that that’s severely lacking.

We will introduce a sanctions regime to ensure compliance, giving regulators the ability to fine or prosecute those companies that fail in their legal duties, and to order the removal of content where it clearly breaches UK law. We will also create a power in law for government to introduce an industry-wide levy from social media companies and communication service providers to support awareness and preventative activity to counter internet harms, just as is already the case with the gambling industry.

There’s the censorship and taxation bit, all in the course of a couple of sentences. Sanctions to “ensure compliance” with the censorship regime and “levies” to tax Facebook and Google to pay up because of imaginary “internet harms.”

We believe that the United Kingdom can lead the world in providing answers. So we will open discussions with the leading tech companies and other like-minded democracies about the global rules of the digital economy, to develop an international legal framework that we have for so long benefited from in other areas like banking and trade.

So, not only will they tax, regulate and censor the internet, they want to get other countries to do the same thing.

There’s much more in the manifesto, but this is basically a joke, and would destroy the tech sector in the UK, rather than help it. It shows an astounding level of ignorance about the internet and technology, and seems to be written by technically illiterate people who fall for internet hoaxes and now only think of the internet in terms of what they fear about it. It’s a bad look, and a rather stunning one from a Conservative Party that supposedly favors deregulation/free market kind of ideas. This plan is the exact opposite. It’s technically clueless, top-down paternalism.

Filed Under: censorship, copyright, internet, regulations, theresa may, uk

Conan O'Brien Joke-Stealing Case Gets Green-Lit For Jury Trial

Copyright

from the no-laughing-matter dept

Consternation over so-called “joke stealing” goes back roughly as long as comedy itself has been a thing, but these past few years have seen something of a rise in awareness whenever a comedian is accused of copying a joke. Honestly, much of this hand-wringing is overblown, likely born of an ownership culture that values protectionism over expanded culture, and devoid of the understanding that a joke is much more than the words used to tell it. After all, timing and delivery factor into the success in telling any joke, and it almost seems too obvious to have to point out that multiple comedians come up with similar jokes all the time. For that reason, the bar for copyright infringement on jokes has tended to be very high in the few cases that actually get tried. On top of that, the common method for policing such copying involved the massive reputational hit the accused takes — rather than legal action. And that’s only accelerated thanks to the internet’s public shaming engine. Because of that, actual lawsuits over this sort of thing are few and far between.

Which brings us to Conan O’Brien, who is still in the midst of a years-old copyright infringement suit over the claim that he and the writers of his show used several jokes from a freelance joke writer without authorization.

Experts in copyright law say the 2-year-old copyright infringement lawsuit filed against O’Brien, his writers for his late-night show, Conan, and Time Warner over a handful of topical jokes may never get before a jury, despite a ruling by a judge that the case can proceed.

The stakes are high, not just in time and litigation costs but in “reputational” costs: No comedian wants to be known as a joke thief. “Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder,” O’Brien said in a deposition in the case. “I think it’s absolutely terrible.”

The relatively few lawsuits of this sort almost never get to trial for this very reason. It ends up being in the accused’s best interest to settle, and settle quickly, regardless of the merits. The more public attention given to accusations, the bigger the reputation hit. Of course, those bringing the suits know this as well. The plaintiff in this case is Robert Kaseberg, a freelance joke writer who claims several of his jokes made their way onto Conan’s show, unauthorized by him. In the ruling, you can get a flavor of how similar the jokes actually are, but here’s a sample.

On Feb. 3, 2015, Kaseberg posted his version: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.”

That night, O’Brien ran with this: “Tom Brady said he wants to give the truck that he was given as Super Bowl MVP … to the guy who won the Super Bowl for the Patriots. Which is very nice. I think that’s nice. I do. Yes. So Brady’s giving his truck to Seahawks coach Pete Carroll.”

Keep in mind that when it comes to jokes and copyright, the bar has generally been set really high. Generally, the word for word lifting of a joke is required for there to be infringement. While the examples in the suit don’t rise quite to that level, the judge decided there was enough to push the trial to a jury.

“Plaintiff’s protectable expression is his implication that a fictionalized Tom Brady would therefore give his truck to the coach of the opposing team, Pete Carroll,” she writes. “And although the Conan joke takes an active stance … the fundamental expression is the same, i.e., that there was no doubt Brady would be giving his MVP award to the opposing team’s coach. As previously stated, while not exactly identical, the jokes are sufficiently objectively virtually identical to create a triable issue of fact regarding whether a jury would find these objective similarities to be virtually identical within the context of the entire joke.”

It’s worth noting that while several jokes are currently at issue in this case, two more were, but are no longer part of it. Why? Well, because the judge ruled that they should be tossed, with the reasoning for one of them demonstrating exactly how it is that two comedians could come up with similar, nearly identical jokes in parallel.

Judge Sammartino threw out the jokes about UAB football and the Delta flight (finding in the latter case that one of O’Brien’s writers had already pitched a similar joke before the one on the blog appeared). That left Kaseberg with the Tom Brady Joke, the Washington Monument Joke, and the Jenner Joke, as the judge labels them.

It’s worth noting that while the judge ruled that the remaining jokes at issue were similar enough for this to go to trial, she also points out that though these jokes are deserving of copyright protection in general, that protection is mitigated by both the nature and length of the works. She notes that we’re talking about two-sentence jokes in every case here, with a topical setup sentence and a punchline. There are only so many ways those jokes can be told, which means that for any infringement to have occurred, the bar for that is typically going to be that the uses must be virtually identical. It’s a function of the jokes’ format, which the judge appears to go to some lengths to point out.

Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright.

So now both sides of the lawsuit will attempt to calculate whether it’s worth it to see this thing through to the completion of a trial. Conan and his team will have to weigh the reputation hit against the likelihood they will prevail given the high bar for infringement in these cases, while Kaseberg will have to weigh the cost of carrying on with the trial against that same high bar.

If it strikes you as silly to watch a legal system contemplate the nature of comedy and jokes in this manner, you aren’t alone. It strikes me that all of this legal wrangling is only effective because of the reputation hit Conan has taken and will continue to take. So, why wasn’t public shaming enough, even if there truly was joke-copying going on?

Filed Under: conan o'brien, copyright, joke stealing, jokes, robert kaseberg, thin copyright

Japanese Music Collection Society Demands Copyright Fees From Music Schools For Teaching Music

Copyright

from the getting-schooled dept

A brief review of our past stories about copyright collection societies should paint you a fairly complete picture on how these businesses operate. While they pimp themselves as proxies for content creators to police the known world for unauthorized use of that content, as well as operators working to license the use of that content, instead these companies work as syphons sucking money from both sides. They will be genuinely creative in their attempts to find infringement everywhere, liberally interpreting copyright law and what constitutes requirements for various licenses for things like art and music, while at the same time often being found to feign brain-death when it comes to paying the copyright holders’ share for the money they collect.

While the tactics used by collection societies regularly flirt with absurdity, it’s not terribly often that they behave in a way that will garner broad disdain. One collection society in Japan, though, has decided to cross that line, unilaterally informing music schools that they must now pay up for daring to teach students how to play music. The schools, it seems, are not taking this lying down, having banded together and planning to sue the collection society.

The music school operators said they planned to file a lawsuit against the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) with the Tokyo District Court as early as July, a representative told The Japan Times. In February, JASRAC informed several hundred private music school operators it will begin collecting copyright fees for the use of sheet music under its management.

It claims the use of music to teach piano or other instruments infringes on the “right of performance” under Article 22 of the Copyright Law, which stipulates the composer has the exclusive right to perform their work publicly. JASRAC plans to revise its regulations, enabling the organization to collect 2.5 percent of all annual fees charged by the music schools.

You can immediately see what I mean about liberal interpretations of the law. Only in the mind of someone working at a collection group would a private school teaching a student how to play a song constitute a “public performance.” For the collection group to suggest that this liberal interpretation entitles it to 2.5% of the gross revenue of a music school is plainly absurd. Japan’s exceptions to copyright law do include exceptions for non-profit educational institutions, but these schools appear to be private. Those exception provisions also appear to be more geared to works like educational software than music.

The schools are trying to get the government to fill in this gap.

In response to JASRAC’s move, Yamaha Music Foundation, Kawai Musical Instruments Manufacturing Co. and five other musical school operators initially set up a group advocating for the right to educate using musical works without copyright consent. The group, which now has 350 members, has collected over 10,000 signatures demanding a halt to JASRAC’s plan, which it plans to submit to the culture ministry in July.It remains unclear how many companies will join the lawsuit.

“We want the court to confirm that performances at (music) schools do not need JASRAC’s consent,” said a representative for the group.

For it’s part, JASRAC points out that there is no definition of a “public performance” in Japanese copyright law. But that likely doesn’t mean that JASRAC can simply interpret what a public performance is any way it likes, including in the teaching of a student. Instead, it seems likely that this dispute will give the Japanese government the impetus to flesh out the law. That will ultimately be a good thing, assuming the government doesn’t suddenly lose its mind and decide to pretend that educating students is a public performance of music.

Filed Under: collection societies, copyright, fees, japan, music teachers, teaching
Companies: jasrac

US Court Upholds Enforceability Of GNU GPL As Both A License And A Contract

Copyright

from the but-might-that-prove-a-mixed-blessing? dept

Free software dominates modern computing, from smartphones to supercomputers — only the desktop remains a stronghold of proprietary code. Most of that free software has the Linux kernel at its heart, and a key element in the success of Linux — and of thousands of other coding projects — is the GNU General Public License. Although the first version of the GNU GPL was released by Richard Stallman back in 1989, and version 3 was issued in 2007, there have been surprisingly few court cases examining it and other open source licenses, and whether they are legally watertight.

A key case is Jacobsen v. Katzer from 2008. As a detailed Groklaw post at the time explained, the US appeals court held that open source license conditions are enforceable as a copyright condition. Now we have another important judgment, Artifex v. Hancom, that clarifies further the legal basis of open source licenses. It concerns the well-known Ghostscript interpreter for the PostScript language, written originally by L. Peter Deutsch, and sold by the company he founded, Artifex Software. Artifex was a pioneer in adopting a dual-licensing approach for Ghostscript. That is, you could either use the software under the GNU GPL, or you could avoid copyleft’s redistribution requirements by taking out a conventional proprietary license.

Hancom is a South Korean company that produces Hangul, word-processing software that is primarily used in South Korea as an alternative to Microsoft Word. Artifex says that Hancom incorporated Ghostscript into its Hangul software, but neither sought a proprietary license, nor complied with the terms of the GPL by releasing the source code for the application that incorporated Ghostscript. As a result, Artifex took legal action, alleging copyright infringement and breach of contract. Hancom asked the court to dismiss Artifex’s complaint on several grounds, but they were all denied. The most significant ruling is on Hancom’s claim that the GNU GPL was not a contract. In her order, embedded below, Judge Jacqueline Scott Corley wrote:

The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNU GPL. These allegations sufficiently plead the existence of a contract.

That’s an important new ruling. The judge also affirmed a result of the Jacobsen v. Katzer case, that even though code released under the GPL is available free of charge, damages could still be awarded because:

there is harm which flows from a party’s failure to comply with open source licensing.

A useful analysis of the judge’s order on the Lexology blog explains the pros and cons of bringing cases under copyright and contract law:

Generally, copyright claims may afford plaintiffs more damages and stronger remedies than contract claims. However, contract claims may help a plaintiff pursue a violator’s worldwide conduct in a way that jurisdictional limits on copyright claims might not allow. Breach of contract claims may also be able to address reputational harm and other indirect non-economic benefits that a plaintiff might derive from enforcing open source license conditions. A breach of contract claim might also, in certain instances, allow for specific performance of open source obligations.

However, the fact that Artifex may now proceed, drawing on both copyright and contract law, raises the important question of how those interact. Mike wrote about this back in 2010, and pointed to a longer discussion of the legal questions involved. The decision by the District Court for the Northern District of California to allow Artifex to move forward with its case is certainly an important confirmation of the legal solidity of open source licensing. But it also brings with it important questions about the role of contracts in the world of free software.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: contract, copyright, ghostscript, gnu, gpl, license
Companies: artifex, hancom

Texas Court Orders Sports Streaming Sites To Be Blocked In Anticipation Of Piracy

Copyright

from the pre-crime dept

A few years ago, we wrote about HBO and Showtime’s somewhat novel decision to file a lawsuit against two sports streaming sites for copyright infringement that both claimed would happen… in the future. The lawsuit was filled with understandably novel language, but the fact remained that this was something akin to pre-crime enforcement, best demonstrated in the film Minority Report. One of the chief axioms of American law is that a crime must have occurred for punishment to be doled out. Injunctions are a departure from that, but actually suing for infringement when that infringement hadn’t happened yet and, indeed, when the content to be infringed didn’t even yet exist, seemed like a departure from the way the law works.

But perhaps this is a practice we’ll see expanded, as it seems to be happening again. This time, a federal court in Texas has issued an injunction ordering ISPs to proactively block a group of streaming sites ahead of the Premier League cricket tournament.

This is also the path Indian media outfit Times Content Limited (TCL) decided to go down. The company operates the cricket channel Willow TV and owns the US broadcasting rights to the Indian Premier League cricket tournament, which is currently ongoing. Two weeks ago the company sued several sports streaming sites including smartcric.com and crickethdlive.com. These sites allow users to watch cricket games for free over the Internet, without permission. To stop this from taking place, the Indian company requested a broad injunction, which the court granted last week.

The preliminary injunction (pdf) orders various third party providers to stop working with these sites effective immediately to prevent future copyright infringements. This also applies to any new domain names or websites the operators may launch.

Now, there are a couple of things to stipulate here. The websites in question appear to be common sports streaming sites that regularly infringe on the copyright of others. The injunction also suggests that Willow TV has attempted to communicate with the sites many times and has not received much in the way of a response. Whatever you think about copyright and sports streaming sites, it’s not like Willow TV has no reason to complain here.

Still, when one paints a picture of justice on a legal system canvas, it’s not simply about what picture you paint but how you paint it that’s important. After all, precedence is a thing, as are the norms of how the law is carried out. The injunction’s inclusion of language like the following seems to set us all on a dark path to prior restraint of speech.

…all service providers whose services will enable or facilitate Defendants’ anticipated infringement are ordered to suspend all services with respect to [ the offending websites]…

Again, whatever you might think of sports streaming sites such as the defendant sites, opening the door to broad injunctions on the basis of future infringement seems like a mistake. It’s a door that will almost certainly be barged through by copyright holders all over the place and is fertile soil for wanton abuse. The injunction goes to great lengths to acknowledge its order is based on all kinds of past infringing activities by the websites in question, but there is no clear standard for how much infringement must take place prior to a court being able to take down what is ultimately speech pre-emptively in anticipation of infringement in this way.

We must hope this practice is not expanded, or you can expect to see the collateral damage stories begin to appear.

Filed Under: anticipation of infringement, copyright, infringement, pre-crime, sports, streaming, streaming sites
Companies: tcl, willow tv

Makers Of Payday 2 Donating DLC Profits To Help 2 YouTubers Fight Copyright Lawsuit

Copyright

from the good-guys dept

The landscape of YouTubers who do reviews or takes on video games, including Let’s Plays, and their interactions with the game makers themselves is one that lacks any sort of norm or uniformity. Some game developers understand the value these YouTubers bring to their businesses, while some tend to go on the attack with copyright claims. Some developers appreciate an open and honest ecosystem of reviews, including snarky reviews, while others attempt to suppress any sort of negativity.

But, as far as I’m aware of, Overkill Software, makers of Payday 2, is the first studio to donate proceeds from its DLC content to defend YouTubers from copyright lawsuits.

Ethan [Klein] and Hila [Klein], who run the YouTube channel H3H3Productions, make sketch comedy and “reaction” videos in which they comment on internet and YouTube culture. Last year, the husband-wife team filmed a video mocking YouTuber Matt Hosseinzadeh, or “Bold Guy,” for his video about picking up girls using parkour. In response, Hosseinzadeh filed a complaint with the Southern District of New York District Court alleging copyright infringement. In the complaint, Hosseinzadeh accuses the Kleins of “purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop.”

Now, we’ve discussed this lawsuit previously. It’s a suit clearly designed to shut up two critics who engaged in what seems to be pretty straightforward Fair Use of Hosseinzadeh’s content. Following along with the court proceedings, the last entry seems to indicate the court feels this whole thing, which has already gone on too long, will end with a summary judgement. I can’t be certain the court feels that this is going to end up going in the Kleins’ favor, but that would be my educated guess based on our previous analysis of the suit.

Regardless, Overkill Software has swooped in to try and help the Kleins by baking them into Payday 2 via DLC and using any money made by it to fund the Kleins’ legal efforts.

On April Fools, Overkill Software introduced Ethan Klein into first-person shooter Payday 2. Yesterday, Overkill, who are fans of the Kleins, announced they’ll be making the joke a permanent, and charitable, reality. This Fall, the faces behind H3H3Productions will be playable characters in Payday 2, and Overkill studios will donate all of the DLC’s revenue to the Kleins as they continue to fight their legal battle that, they say, could financially ruin them even if they win.

While the Kleins were initially represented pro bono, a year later, after switching firms, the price of fighting the lawsuit has reportedly snowballed, with the first month allegedly costing over $50,000. And they will continue to fight it, the Kleins say, to protect fair use and prevent a bad precedent. (YouTube personality Philip DeFranco helped raise $170,000 for them in a GoFundMe, arguing that the lawsuit is “an attempt to step on freedom of speech via a broken copyright system and most people’s confusion over Fair Use.”)

This is, to some degree, connecting with fans. Fans, at least, of the Kleins. It’s also refreshing to see a game studio take the stance that they are fans of YouTubers that do some videos based on video games and are actively looking to support them against a bogus copyright lawsuit. Can you imagine, say, Nintendo doing something like this? Given its hardline stance on intellectual property, it’s a difficult thing to conjure in one’s mind.

Overkill, by the way, is taking 0% from the sales of the Klein DLC. It’s a great look for the company.

Filed Under: copyright, ethan klein, fair use, hila klein, let's play, matt hosseinzadeh, payday 2
Companies: overkill software