When will the legacy entertainment industry get it through their thick skulls that recording content is legal. We’ve done this. We’ve done it at the highest level. Tools that have substantial non-infringing uses are legal.
Well, at least in the US.
Which explains why the legacy companies often go overseas to do their dirty work. And that’s the case here.
For a while now, the recording industry has been absolutely furious that it was possible to download YouTube videos, with their ire directed mainly at one tool that enables such downloads, youtube-dl, a command line video downloader, that is also a plugin component for other download tools. It’s a useful tool. Journalists use it all the time. I have used it multiple times myself, most often when I’m trying to generate a transcript of a YouTube video, and the transcript tool I use requires an upload file.
It has, as the Supreme Court notes, substantial non-infringing uses.
But, of course, the RIAA never gives up its quixotic efforts to attack the open internet. So, it went to Germany, where copyright law is pretty consistently stupid. Sony Music, Warner Music, and Universal Music went after the hosting company, Uberspace, who was hosting the youtube-dl webpage in Germany.
Using the European equivalent of their argument in the US that failed (here it was that the code violated Section 1201 of the DMCA that forbids “circumvention” technologies), a German court sided with the labels back in April, but the site remained online until just recently, when, as TorrentFreak notes, the labels put up a bond that allowed for the enforcement of the original order, even while Uberspace appealed the ruling.
The ruling was published in March but Uberspace wasn’t required to take action right away. The hosting company decided to appeal, which meant that the youtube-dl.org site remained online, unless the music companies posted a €20,000 bond.
Initially, it didn’t appear that the labels would enforce the order, but that changed a few days ago. The plaintiffs informed Uberspace that they had posted the security, leaving the company no other choice than to take the site offline.
Torrentfreak spoke to Uberspace’s owner, Jonas Pasche, who seems (quite understandably) pissed off about this, but noted that his hands were legally tied:
“I received that information from the plaintiff’s side on July 27, with proof that they did the security deposit at a bank. So I no longer have a choice but to follow the judgment. Otherwise, I would face a fine of €250,000 or jail time,” Pasche notes.
The appeals fight continues in the meantime:
Uberspace will continue the legal battle and is prepared to fight the order up to the highest court possible. If the appeal is successful, Pasche will gladly unblock the site.
“We are confident that a higher court will overturn the judgment of the Hamburg Regional Court, so we will be able to unblock the site as soon as this happens,” he says.
All of this is basically just the major record labels being a fucking nuisance. The (again, perfectly useful for non-infringing purposes) youtube-dl code is still on GitHub where it can be downloaded. And, even if the labels somehow managed to kill youtube-dl, people would figure out other ways to download video content. It’s not going to stop piracy. And, really, at a time when the record labels are making record revenue thanks to the internet, maybe they could lighten up a bit on this infatuation with trying to make everything suck just because some tools might be used for infringing uses in some cases.
Get over it. Some people are going to infringe. If the industry and its lawyers spent like 20% of the time and effort they currently spend on “anti-piracy” efforts on just providing better content in more convenient ways to eager music fans, they’d do so much better.
But the whole industry has built up this stupid faith-based belief that “piracy” is the problem, rather than their failure to better serve their customers.
On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.
However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.
But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.
78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.
If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:
Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.
Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.
It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.
The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.
And now he’s trying to kill the world’s greatest library.
Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.
The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.
The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.
When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.
Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.
Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.
Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.
Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.
There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.
It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.
But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.
It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.
Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.
And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.
Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.
This is and will keep happening. As complicated a landscape as copyright law is, the idea of automating the policing of copyright infringement without creating all kinds of collateral damage is simply absurd. Our pages are absolutely brimming with example after example of all kinds of entities issuing copyright claims and strikes on all kinds of platforms in error, with the blame always being laid at the feet of the copyright “bots” that screwed up. Apparently the wider world is okay with this kind of collateral damage clown show, since it sure doesn’t appear to be changing.
The most recent example comes to us courtesy of the Guinness World Records company, which hit at least two YouTubers with copyright strikes for having the phrase “World Record” on their videos. The first to note this publicly was a YouTuber going by “Ducky.”
Ducky wasn’t alone.
Ducky wasn’t the only big-name YouTuber to get hit with a copyright strike from the company, either. LazarBeam, one of the most iconic Fortnite content creators on the internet, revealed just a couple of days after Ducky’s tweet that he had also been hit with a copyright strike.
“Guinness world records making the psychopathic decision to strike YouTube videos that mention ‘world record’ or use their logo in thumbnails. Video was 5 years old with 26 million views,” he said.
Now, here’s where I’ll give the Guinness folks some props. The company responded to Ducky fairly quickly and admitted that the strike was issued in error due to, you guessed it, an automated copyright bot. Ducky got the strike removed fairly quickly as well. There hasn’t been public acknowledgement that the company reached out in the same fashion to LazarBeam as well, but I imagine it has or is willing to, given how it handled Ducky.
But this simply isn’t good enough. It isn’t enough that these companies fix their mistakes shortly after the copyright gun goes off. First off, not every company is as responsive and honest about this stuff as the Guinness people. And even if they were, we have pages and pages of real world examples of these bots not working. And we’re doing nothing about it.
We would simply not put up with this kind of knock-on fallout in most other situations in our society. Why are we putting it up with it in the name of copyright?
If you go take a look at all the different posts we’ve done on the topic of Pokémon, you will be left with one undeniable conclusion: the people behind Pokémon content take IP rights very seriously. This has particularly been true when it comes to some of the franchise’s most dedicated fans trying to express their fandom by creating cool things. Ownership is everything here and the Pokémon people will simply not countenance anyone using its creation, because that’s wrong.
It appears that the Pokémon people don’t have any problem with using some of that same fan content without credit in reverse, however. A trailer recently came out for some Pokémon DLC and fans noticed the inclusion of a fan arrangement of music right away.
Fans are expressing their concerns after The Pokémon Company seemingly used fan-created music in a recent trailer for the Pokémon Scarlet & Violet DLC, The Hidden Treasure of Area Zero. The uproar began shortly after today’s Pokémon Presents wrapped up. While many tuned in for updates on things like Detective Pikachu Returns and the aforementioned add-on content, musician NightDefined (a.k.a. ND) noticed that some of the footage featured music they created. In many cases, it might be an honor for a fan to see their Pokemon fan music creation used by a company they admire, but for ND, it was also a surprise.
While it does appear that ND’s song was a different arrangement of existing Pokemon music, that still doesn’t mean Pokemon automatically gets control over it. Still, while the artist pointed out that they had not received any credit for their work, they also expressed that they were honored that it was used.
But that’s not really the point. ND Music did mention that they would have appreciated being asked or informed, never mind credited, if the Pokémon Company wanted to use their music in a trailer. After all, ND Music certainly credited everyone properly when the music was originally uploaded.
ND says The Pokémon Company included the music in its trailer without their permission, with no credit to be found. It’s worth noting the musician’s original upload does give credit to Nintendo, developer Game Freak, Creatures Inc., and The Pokémon Company, as well as composers Go Ichinose and Toby Fox, but the uncredited use of ND’s specific arrangement in the trailer remains perplexing.
No it doesn’t. This is all about myopic control. The Pokémon Company controls all the things when it comes to Pokémon. It didn’t credit ND for the music because the music is theirs, in its view.
I do understand why so many people, especially creative folks, are worried about AI and how it’s used. The future is quite unknown, and things are changing very rapidly, at a pace that can feel out of control. However, when concern and worry about new technologies and how they may impact things morphs into mob-inspiring fear, dumb things happen. I would much rather that when we look at new things, we take a more realistic approach to them, and look at ways we can keep the good parts of what they provide, while looking for ways to mitigate the downsides.
Hopefully without everyone going crazy in the meantime. Unfortunately, that’s not really the world we live in.
Last year, when everyone was focused on generative AI for images, we had Rob Sheridan on the podcast to talk about why it was important for creative people to figure out how to embrace the technology rather than fear it. The opening story of the recent NY Times profile of me was all about me in a group chat, trying to suggest to some very creative Hollywood folks how to embrace AI rather than simply raging against it. And I’ve already called out how folks rushing to copyright, thinking that will somehow “save” them from AI, are barking up the wrong tree.
But, in the meantime, the fear over AI is leading to some crazy and sometimes unfortunate outcomes. Benji Smith, who created what appears to be an absolutely amazing tool for writers, Shaxpir, also created what looked like an absolutely fascinating tool called Prosecraft, that had scanned and analyzed a whole bunch of books and would let you call up really useful data on books.
He created it years ago, based on an idea he had years earlier, trying to understand the length of various books (which he initially kept in a spreadsheet). As Smith himself describes in a blog post:
I heard a story on NPR about how Kurt Vonnegut invented an idea about the “shapes of stories” by counting happy and sad words. The University of Vermont “Computational Story Lab” published research papers about how this technique could show the major plot points and the “emotional story arc” of the Harry Potter novels (as well as many many other books).
So I tried it myself and found that I could plot a graph of the emotional ups and downs of any story. I added those new “sentiment analysis” tools to the prosecraft website too.
When I ran out of books on my own shelves, I looked to the internet for more text that I could analyze, and I used web crawlers to find more books. I wanted to be mindful of the diversity of different stories, so I tried to find books by authors of every race and gender, from every different cultural and political background, writing in every different genre and exploring all different kinds of themes. Fiction and nonfiction and philosophy and science and religion and culture and politics.
Somewhere out there on the internet, I thought to myself, there was a new author writing a horror or romance or fantasy novel, struggling for guidance about how long to write their stories, how to write more vivid prose, and how much “passive voice” was too much or too little.
I wanted to give those budding storytellers a suite of “lexicographic” tools that they could use, to compare their own writing with the writing of authors they admire. I’ve been working in the field of computational linguistics and machine learning for 20+ years, and I was always frustrated that the fancy tools were only accessible to big businesses and government spy agencies. I wanted to bring that magic to everyone.
Frankly, all of that sounds amazing. And amazingly useful. Even more amazing is that he built it, and it worked. It would produce useful analysis of books, such as this example from Alice’s Adventures in Wonderland:
And, it could also do further analysis like the following:
This is all quite interesting. It’s also the kind of thing that data scientists do on all kinds of work for useful purposes.
Smith built Prosecraft into Shaxpir, again, making it a more useful tool. But, on Monday, some authors on the internet found out about it and lost their shit, leading Smith to shut the whole project down.
There seems to be a lot of misunderstanding about all of this. Smith notes that he had researched the copyright issues and was sure he wasn’t violating anything, and he’s right. We’ve gone over this many times before. Scanning books is pretty clearly fair use. What you do with that later could violate copyright law, but I don’t see anything that Prosecraft did that comes anywhere even remotely close to violating copyright law.
But… some authors got pretty upset about all of it.
I’m still perplexed at what the complaint is here? You don’t need to “consent” for someone to analyze your book. You don’t need to “consent” to someone putting up statistics about their analysis of your book.
But, Zach’s tweet went viral with a bunch of folks ready to blow up anything that smacks of tech bro AI, and lots of authors started yelling at Smith.
The Gizmodo article has a ridiculously wrong “fair use” analysis, saying “Fair Use does not, by any stretch of the imagination, allow you to use an author’s entire copyrighted work without permission as a part of a data training program that feeds into your own ‘AI algorithm.’” Except… it almost certainly does? Again, we’ve gone through this with the Google Book scanning case, and the courts said that you can absolutely do that because it’s transformative.
It seems that what really tripped up people here was the “AI” part of it, and the fear that this was just another a VC funded “tech bro” exercise of building something to get rich by using the works of creatives. Except… none of that is accurate. As Smith explained in his blog post:
For what it’s worth, the prosecraft website has never generated any income. The Shaxpir desktop app is a labor of love, and during most of its lifetime, I’ve worked other jobs to pay the bills while trying to get the company off the ground and solve the technical challenges of scaling a startup with limited resources. We’ve never taken any VC money, and the whole company is a two-person operation just working our hardest to serve our small community of authors.
He also recognizes that the concerns about it being some “AI” thing are probably what upset people, but plenty of authors have found the tool super useful, and even added their own books:
I launched the prosecraft website in the summer of 2017, and I started showing it off to authors at writers conferences. The response was universally positive, and I incorporated the prosecraft analytic tools into the Shaxpir desktop application so that authors could privately run these analytics on their own works-in-progress (without ever sharing those analyses publicly, or even privately with us in our cloud).
I’ve spent thousands of hours working on this project, cleaning up and annotating text, organizing and tweaking things. A small handful of authors have even reached out to me, asking to have their books added to the website. I was grateful for their enthusiasm.
But in the meantime, “AI” became a thing.
And the arrival of AI on the scene has been tainted by early use-cases that allow anyone to create zero-effort impersonations of artists, cutting those creators out of their own creative process.
That’s not something I ever wanted to participate in.
Smith took the project down entirely because of that. He doesn’t want to get lumped in with other projects, and even though his project is almost certainly legal, he recognized that this was becoming an issue:
Today the community of authors has spoken out, and I’m listening. I care about you, and I hear your objections.
Your feelings are legitimate, and I hope you’ll accept my sincerest apologies. I care about stories. I care about publishing. I care about authors. I never meant to hurt anyone. I only hoped to make something that would be fun and useful and beautiful, for people like me out there struggling to tell their own stories.
I find all of this really unfortunate. Smith built something really cool, really amazing, that does not, in any way, infringe on anyone’s rights. I get the kneejerk reaction from some authors, who feared that this was some obnoxious project, but couldn’t they have taken 10 minutes to look at the details of what it was they were killing?
I know we live in an outrage era, where the immediate reaction is to turn the outrage meter up to 11. I’m certainly guilty of that at times myself. But this whole incident is just sad. It was an overreaction from the start, destroying what had been a clear labor of love and a useful project, through misleading and misguided attacks from authors.
In a well-intentioned yet dangerous move to fight online fraud, France is on the verge of forcing browsers to create a dystopian technical capability. Article 6 (para II and III) of the SREN Bill would force browser providers to create the means to mandatorily block websites present on a government provided list.
The post explains why this is an extremely dangerous approach:
A world in which browsers can be forced to incorporate a list of banned websites at the software-level that simply do not open, either in a region or globally, is a worrying prospect that raises serious concerns around freedom of expression. If it successfully passes into law, the precedent this would set would make it much harder for browsers to reject such requests from other governments.
If a capability to block any site on a government blacklist were required by law to be built in to all browsers, then repressive governments would be given an enormously powerful tool. There would be no way around that censorship, short of hacking the browser code. That might be an option for open source coders, but it certainly won’t be for the vast majority of ordinary users. As the Mozilla post points out:
Such a move will overturn decades of established content moderation norms and provide a playbook for authoritarian governments that will easily negate the existence of censorship circumvention tools.
It is even worse than that. If such a capability to block any site were built in to browsers, it’s not just authoritarian governments that would be rubbing their hands with glee: the copyright industry would doubtless push for allegedly infringing sites to be included on the block list too. We know this, because it has already done it in the past, as discussed in Walled Culture the book (free digital versions).
Not many people now remember, but in 2004, BT (British Telecom) caused something of a storm when it created CleanFeed:
British Telecom has taken the unprecedented step of blocking all illegal child pornography websites in a crackdown on abuse online. The decision by Britain’s largest high-speed internet provider will lead to the first mass censorship of the web attempted in a Western democracy.
Here’s how it worked:
Subscribers to British Telecom’s internet services such as BTYahoo and BTInternet who attempt to access illegal sites will receive an error message as if the page was unavailable. BT will register the number of attempts but will not be able to record details of those accessing the sites.
The key justification for what the Guardian called “the first mass censorship of the web attempted in a Western democracy” was that it only blocked illegal child sexual abuse material Web sites. It was therefore an extreme situation requiring an exceptional solution. But seven years later, the copyright industry were able to convince a High Court judge to ignore that justification, and to take advantage of CleanFeed to block a site, Newzbin 2, that had nothing to do with child sexual abuse material, and therefore did not require exceptional solutions:
Justice Arnold ruled that BT must use its blocking technology CleanFeed – which is currently used to prevent access to websites featuring child sexual abuse – to block Newzbin 2.
Exactly the logic used by copyright companies to subvert CleanFeed could be used to co-opt the censorship capabilities of browsers with built-in Web blocking lists. As with CleanFeed, the copyright industry would doubtless argue that since the technology already exists, why not to apply it to tackling copyright infringement too?
That very real threat is another reason to fight this pernicious, misguided French proposal. Because if it is implemented, it will be very hard to stop it becoming yet another technology that the copyright world demands should be bent to its own selfish purposes.
Ah, copyright. Eric Goldman alerts us to to a new bit of copyright nonsense. Jieun Kiaer, an Oxford professor of Korean linguistics, recently published an academic book called Emoji Speak: Communications and Behaviours on Social Media. As you can tell from the name, it’s a book about emoji, and about how people communicate with them:
Exploring why and how emojis are born, and the different ways in which people use them, this book highlights the diversity of emoji speak. Presenting the results of empirical investigations with participants of British, Belgian, Chinese, French, Japanese, Jordanian, Korean, Singaporean, and Spanish backgrounds, it raises important questions around the complexity of emoji use.
Though emojis have become ubiquitous, their interpretation can be more challenging. What is humorous in one region, for example, might be considered inappropriate or insulting in another. Whilst emoji use can speed up our communication, we might also question whether they convey our emotions sufficiently. Moreover, far from belonging to the youth, people of all ages now use emoji speak, prompting Kiaer to consider the future of our communication in an increasingly digital world.
Sounds interesting enough, but as Goldman highlights with an image from the book, Kiaer was apparently unable to actually show examples of many of the emoji she was discussing due to copyright fears. While companies like Twitter and Google have offered up their own emoji sets under open licenses, not all of them have, and some of the specifics about the variations in how different companies represent different emoji apparently were key to the book.
So, for those, Kiaer actually hired an artist, Loli Kim, to draw similar emoji!
The page reads as follows (with paragraph breaks added for readability):
Notes on Images of Emojis
Social media spaces are almost entirely copyright free. They do not follow the same rules as the offline world. For example, on Twitter you can retweet any tweet and add your own opinion. On Instagram, you can share any post and add stickers or text. On TikTok, you can even ‘duet’ a video to add your own video next to a pre-existing one. As much as each platform has its own rules and regulations, people are able to use and change existing material as they wish. Thinking about copyright brings to light barriers that exist between the online and offline worlds. You can use any emoji in your texts, tweets, posts and videos, but if you want to use them in the offline world, you may encounter a plethora of copyright issues.
In writing this book, I have learnt that online and offline exist upon two very different foundations. I originally planned to have plenty of images of emojis, stickers, and other multi-modal resources featured throughout this book, but I have been unable to for copyright reasons. In this moment, I realized how difficult it is to move emojis from the online world into the offline world.
Even though I am writing this book about emojis and their significance in our lives, I cannot use images of them in even an academic book. Were I writing a tweet or Instagram post, however, I would likely have no problem. Throughout this book, I stress that emoji speak in online spaces is a grassroots movement in which there are no linguistic authorities and corporations have little power to influence which emojis we use. Comparatively, in offline spaces, big corporations take ownership of our emoji speak, much like linguistic authorities dictate how we should write and speak properly.
This sounds like something out of a science fiction story, but it is an important fact of which to be aware. While the boundaries between our online and offline words may be blurring, barriers do still exist between them. For this reason, I have had to use an artist’s interpretation of the images that I originally had in mind for this book. Links to the original images have been provided as endnotes, in case readers would like to see them.
Just… incredible. Now, my first reaction to this is that using the emoji and stickers and whatnot in the book seems like a very clear fair use situation. But… that requires a publisher willing to take up the fight (and an insurance company behind the publisher willing to finance that fight). And, that often doesn’t happen. Publishers are notoriously averse to supporting fair use, because they don’t want to get sued.
But, really, this just ends up highlighting (once again) the absolute ridiculousness of copyright in the modern world. No one in their right mind would think that a book about emoji is somehow harming the market for whatever emoji or stickers the professor wished to include. Yet, due to the nature of copyright, here we are. With an academic book about emoji that can’t even include the emoji being spoken about.
And here we go again. we’ve been talking about how copyright has gotten in the way of cultural preservation generally for a while, and more specifically lately when it comes to the video game industry. The way this problem manifests itself is quite simple: video game publishers support the games they release for some period of time and then they stop. When they stop, depending on the type of game, it can make that game unavailable for legitimate purchase or use, either because the game is disappeared from retail and online stores, or because the servers needed to make them operational are taken offline. Meanwhile, copyright law prevents individuals and, in some cases, institutions from preserving and making those games available to the public, a la a library or museum would.
When you make these preservation arguments, one of the common retorts you get from the gaming industry and its apologists is that publishers already preserve these games for eventual re-release down the road, which is why they need to maintain their copyright protection on that content. We’ve pointed out failures to do so by the industry in the past, but the story about Hasbro wanting to re-release several older Transformers video games, but can’t, is about as perfect an example as I can find.
Released in June 2010, Transformers: War for Cybertron was a well-received third-person shooter that got an equally great sequel in 2012, Fall of Cybertron. (And then in 2014 we got Rise of Dark Spark, which wasn’t very good and was tied into the live-action films.) What made the first two games so memorable and beloved was that they told their own stories about the origins of popular characters like Megatron and Optimus Prime while featuring kick-ass combat that included the ability to transform into different vehicles. Sadly, in 2018, all of these Activision-published Transformers games (and several it commissioned from other developers) were yanked from digital stores, making them hard to acquire and play in 2023. It seems that Hasbro now wants that to change, suggesting the games could make a perfect fit for Xbox Game Pass, once Activision, uh…finds them.
You read that right: finds them. What does that mean? Well, when Hasbro came calling to Activision looking to see if this was a possibility, it devolved into Activision doing a theatrical production parody called Dude, Where’s My Hard Drive? It seems that these games may or may not exist on some piece of hardware, but Activision literally cannot find it. Or maybe not, as you’ll read below. There seems to be some confusion about what Activision can and cannot find.
And, yes, the mantra in the comments that pirate sites are essentially solving for this problem certainly applies here as well. So much so, in fact, that it sure sounds like Hasbro went that route to get what it needed for the toy design portion of this.
Interestingly, Activision’s lack of organization seems to have caused some headaches for Hasbro’s toy designers who are working on the Gamer Edition figures. The toy company explained that it had to load up the games on their original platforms and play through them to find specific details they wanted to recreate for the toys.
“For World of Cybertron we had to rip it ourselves, because [Activision] could not find it—they kept sending concept art instead, which we didn’t want,” explained Hasbro. “So we booted up an old computer and ripped them all out from there. Which was a learning experience and a long weekend, because we just wanted to get it right, so that’s why we did it like that.
What’s strange is that despite the above, Activision responded to initial reports of all this indicating that the headlines were false and it does have… code. Or something.
Hasbro itself then followed up apologizing for the confusion, also saying that it made an error in stating the games were “lost”. But what’s strange about all that, in addition to the work that Hasbro did circumventing having access to the actual games themselves, is the time delta it took for Activision to respond to all of this.
Activision has yet to confirm if it actually knows where the source code for the games is specifically located. I also would love to know why Activision waited so long to comment (the initial interview was posted on July 28) and why Hasbro claimed to not have access to key assets when developing its toys based on the games.
It’s also strange that Hasbro, which says it wants to put these games on Game Pass, hasn’t done so for years now. If the games aren’t lost, give ‘em to Hasbro, then?
Indeed. If this was all a misunderstanding, so be it. But if this was all pure misunderstanding, the rest of the circumstances surrounding this story don’t make a great deal of sense. At the very least, it sounds like some of the concern that these games could have simply been lost to the world is concerning and yet another data point for an industry that simply needs to do better when it comes to preservation efforts.
The gears of justice turn slowly, but they do turn. Late last year we discussed a delightful gentleman named Roland Macher, who goes by “Spanky”, because of course he does. Spanky was a restaurant owner and real estate businessman who found himself in prison for over 2 years because paying your taxes is hard or annoying or something. Either way, he didn’t do it. In jail, he wrote a book about how others should do business and called it Slumlord Millionaire. Some time after that, Netflix released a series called Dirty Money, focusing on bad people doing bad business. One episode that centered on possible real life replicant Jared Kushner was also titled Slumlord Millionaire. And because of that, Spanky sued, representing himself.
Now, as we explained in the original post, this was never going to go anywhere. This lawsuit was always destined for the wastebin. The filing itself was rife with grammar issues to start with, but the merits of its claims that any of this is trademark or copyright infringement were laughable. Titles of works are not copyrightable elements and the content of the creative works were so completely different that no part of the copyright claim could have possibly have held up. As for trademark, here again the content is so different that the mere titling of an episode about completely different subject matter the same as the title of some book somewhere simply isn’t going to create any confusion in the public about source or origin, or the involvement of Spanky in a Netflix series.
And now we learn that the court has agreed, having dismissed the suit for being “deficient in many respects.”
“The episode has nothing to do with Macher or his book,” Judge Thomas T. Cullen said in his July 27 opinion in US District Court for the Western District of Virginia.
The judge noted that even under the “more lenient standard” of review afforded to a pro se plaintiff’s complaint, it “must still ‘allege facts sufficient to state all the elements of [the] claim.’”
Cullen said it has been “well-settled” that titles are not copyrightable, and the works’ differences mean there wouldn’t likely be confusion between the book and the show that would support a trademark claim.
And there you have it. Instead of filing spurious lawsuits he wrote himself and representing himself pro se, Spanky can now go back to… advising others on how to business, presumably without the whole, you know, going to prison thing.
There’s an interesting post on TorrentFreak that concerns so-called “pirate” subtitles for films. It’s absurd that anyone could consider subtitles to be piracy in any way. They are a good example of how ordinary people can add value by generously helping others enjoy films and TV programs in languages they don’t understand. In no sense do “pirate” subtitles “steal” from those films and programs, they manifestly enhance them. And yet the ownership-obsessed copyright world actively pursues people who dare to spread joy in this way. In discussing these subtitles, TorrentFreak mentions a site that I’ve not heard of before, Karagarga:
an illustrious BitTorrent tracker that’s been around for more than 18 years. Becoming a member of the private community isn’t easy but those inside gain access to a wealth of film obscurities.
The site focuses on archiving rare classic and cult movies, as well as other film-related content. Blockbusters and other popular Hollywood releases can’t be found on the site as uploading them is strictly forbidden.
TorrentFreak links to an article about Karagarga published some years ago by the Canadian newspaper National Post. Here’s a key point it makes:
It’s difficult to overstate the significance of such a resource. Movies of unflagging historical merit are otherwise lost to changes in technology and time every year: film prints are damaged or lost, musty VHS tapes aren’t upgraded, DVDs fall out of print without reissue, back catalogues never make the transition to digital. But should even a single copy of the film exist, however tenuously, it can survive on Karagarga: one person uploads a rarity and dozens more continue to share.
Although that mentions things like film prints being lost, or back catalogues that aren’t converted to digital formats, the underlying cause of films being lost is copyright. It is copyright that prevents people from making backups of films, whether analogue or digital. Even though people are painfully aware of the vulnerability of films that exist in a few copies or even just one copy, it is generally illegal for them to do anything about it, because of copyright. Instead, they must often sit by as cinematic masterpieces are lost forever.
Unless, of course, sites like Karagarga make unauthorized digital copies. It’s a great demonstration of the fact that copyright, far from preserving culture, often leads to its permanent loss. And that supposedly “evil” sites like Karagarga are the ones that save it for posterity.
